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R00-124RESOLUTION NO. R 00-124 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF A NOTE OF THE CITY IN THE PRINCIPAL AMOUNT OF NOT EXCEEDING $5,200,000.00 TO REFINANCE THE CITY'S GENERAL OBLIGATION REFUNDING BONDS, SERIES 1992; PROVIDING THAT SUCH NOTE SHALL BE A GENERAL OBLIGATION OF THE CITY PAYABLE FROM AD VALOREM TAXES LEVIED BY THE CITY ON THE TAXABLE PROPERTY WITHIN THE CITY; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; PROVIDING FOR THE RIGHTS, SECURITIES, AND REMEDIES FOR THE OWNER OF SUCH NOTE; PROVIDING FOR THE CREATION OF CERTAIN FUNDS; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. Whereas, pursuant to the authority of Resolution No. R91-205 adopted by the City Commission (the "City Commission") of the City of Boynton Beach, Florida (the "City") on December 3, 1991, the City issued its General Obligation Refunding Bonds, Series 1992 (the "1992 Bonds"); and WHEREAS, as of this date $5,695,000 in aggregate principal mount of the 1992 Bonds remain outstanding; and WHEREAS, the City has received a proposal from Bank of America, N.A. to refinance the 1992 Bonds maturing on and after November 1, 2001 at a lower interest rate resulting in substantial interest savings to the City, currently estimated at approximately $162,000; and WHEREAS, the City has determined to proceed with the issuance of a promissory note in the principal amount of not exceeding $5,200,000 to provide funds, together with other funds available for such purpose, to refinance the 1992 Bonds. . NOW, THEREFORE, BE IT RESOLVED BY CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. Authori_ty for this Re$olution. This Resolution is adopted pursuant to the provisions of the Charter of the City, the Constitution of the State of Florida, including, but not limited to, Article VIII, Section 2 and Article VII, Section 12 thereof, Chapter 166 and Sections 132.33-132.47, Florida Statutes and other applicable provisions of law. Section 2. Definitions. The following words and phrases shall have the following meanings when used herein: "Act" means the Charter of the City, the Constitution of the State of Florida, including, but not limited to, Article VIII, Section 2 and Article VII, Section 12 thereof, Chapter 166 and Sections 132.33-132.47, Florida Statutes and other applicable provisions of law. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is closed. "Clerk" means the Clerk of the City or any duly authorized deputy thereof. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Mayor" means the Mayor or Vice-Mayor of the City. "Note" means the Note of the City authorized by Section 4 hereof. "Original Purchaser" means Bank of America, N.A. "Owner" means the Person or Persons in whose name or names the Note shall be registered on the books of the City kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, parmerships and public bodies. "Principal Office" means, with respect to the Original Purchaser, the office located at 625 North Flagler Drive, 10th Floor, West Palm Beach, Florida 33401, or such other office as the Original Purchaser may designate to the City in writing. "Resolution" means this Resolution, pursuant to which the Note is authorized to be issued. "State" means the State of Florida. Section 3. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Note authorized to be issued hereunder by those who shall be the Owners thereof from time to time, this Resolution shall constitute a contract between the City and the Owners. Section 4. Authorization of Note. Subject and pursuant to the provisions of this Resolution, an obligation of the City is hereby authorized to be issued under and secured by this Resolution, in the principal amount of not exceeding $5,200,000, for the purpose of pro,'iding funds, together with other funds of the City available for such purpose, to refund the 1992 Bonds and to pay costs of issuance of the Note. The principal amount of the Note shall not exceed the amount necessary to provide funds, together with other funds available for such purpose, to provide for the payment of the principal of, premium, and interest on the 1992 Bonds becoming due on November 1, 2000 either as a regularly scheduled payment of principal and interest or pursuant to the redemption hereinafter described. Because of the characteristics of the Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the City to negotiate with the Original Purchaser to purchase the Note at a private negotiated sale. Prior to the issuance of the Note the City shall receive from the Original Purchaser a disclosure statement containing the information required by Section 218.385, Florida Statutes. Section 5. Description of Note. The Note shall be dated the date of its execution and delivery, which shall be September 15, 2000, or such other date as may be agreed upon by the Mayor and Original Purchaser, shall bear interest at the rate of 5.10% per annum, computed on the basis of a 360-day year consisting of twelve 30-day months, and shall mature November 1, 2009. Payments of principal and interest on the Note shall be payable on each May 1 and November 1, commencing May 1, 2001, and the Note shall mature on November 1, 2009. The principal amortization of the Note shall be such that the payments of principal and interest during each calendar year after 2001 shall be as nearly equal as practicable to the payments that would have been made on the 1992 Bonds during such years, and so that the payments on the Note during the year 2001 shall be as low as possible. The Note shall have such other terms and provisions and shall be in the form of the Note attached hereto as Exhibit A. The Note shall be executed on behaff of the City with the manual signature of the Mayor, and shall have impressed thereon the official seal of the City, and be attested with the manual signature of the Clerk, and the said Mayor and Clerk are hereby authorized to execute and attest to the Note on behalf of the City. Section 6. Registration and Exchange of Note: Persons Treated as Owner~. The Note shall be initially registered to the Original Purchaser. In the event of a transfer of the Note, then thereafter so long as the Note shall remain unpaid, the City will keep books for the registration and transfer of the Note. The Note shall then be transferable only upon such registration books. The City will transfer the registration of the Note upon written request of the Owner specifying the name, address and taxpayer identification number of the transferee. The Person in whose name the Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on the Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. Section 7. Payment of Principal and Interest: General Obligation. The City promises that it will promptly pay the principal of and interest on the Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof. The full faith, credit and taxing power of the City are hereby irrevocably pledged to the payment of the principal of and interest on the Note. While the Note is outstanding, there shall be assessed, levied and collected an ad valorem tax on all taxable property within the corporate limits of the City (excluding exemptions as required by applicable law), sufficient in amount to pay the principal of and interest on the Note as the same shall become due and payable. The tax assessed, levied and collected for the payment of the Note shall be assessed, levied and collected in the same manner and at the same time as other ad valorem taxes of the City and the proceeds of said tax shall be applied solely to the payment of the principal of and interest on the Note. The City will diligently enforce its right to receive tax revenues and will diligently enforce and collect such taxes. The City will not take any action that will impair or adversely affect its rights to levy, collect and receive said taxes, or impair or adversely affect in any manner the pledge made herein or the rights of the Owners of the Note. Section 8. Cornpliance with Tax Requirements. The City hereby covenants and agrees, for the benefit of the Owners from time to time of the Note, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest on the Note from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the City co{tenants and agrees: (1) to refrain from using proceeds of the Note in a manner that would cause the Note to be classified as a private activity bond under Section 141(a) of the Code; and (2) to refrain from taking any action or omitting to take any action if such action or omission would cause the Note to become an arbitrage bond under Section 103(b) and Section 148 of the Code. The City understands that the foregoing covenants impose continuing obligations on the City to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Section 9. Application of Note Proceeds. Proceeds of the Note shall be applied to the refunding of the 1992 Bonds and to the payment of costs of issuance of the Note pursuant to the written direction of the Finance Director. Section 10. Refunded Bonds. The City has determined that it is in the best interests of the City to provide for the refunding of the 1992 Bonds. The City hereby irrevocably elects, effective upon and only upon the issuance of the Note, that the 1992 Bonds maturing on and after November 1, 2001, shall be called for redemption on November 1, 2000. Section 11. Escrow Deposit A~eement. The City hereby appoints First Union National Bank (the "Escrow Agent") as the Escrow Agent with respect to the 1992 Bonds. The form of Escrow Deposit Agreement (the "Escrow Agreement") attached hereto as Exhibit B is hereby approved and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is hereby authorized and directed to attest to and apply the seal of the City to the Escrow Agreement, with such changes, alterations or corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. Section 12. Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Note without the written consent of the Owner. 4 Section 13. Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note is intended or shall be construed to give to any Person other than the City and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the City and the Owner. Section 14. Severabili .ty. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 15. Business Days. In any case where the due date of interest on or principal of the Note is not a Business Day, then payment of principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owner. Section 16. Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 17. Rules of Interpretation. Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 18. Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. Section 19. Officers and Ernployees of the ci-tY Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution or the Note or for any claim based thereon or otherwise in respect thereof, shall be had against any member of the City COmmission of the City, or any officer, agent or employee, as such, of the City past, present or future, it being expressly understood (a) that the obligation of the City under this Resolution is solely a c0rPor~tte One, (b) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the members of the City Commission of the City, or the officers, agents, or employees, as such, of the City, or any of them, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (c) that any and all such personal liability of every such member of the City Commission of the City, and every officer, agent, or employee, as such, of the City under or by reason of the obligations, covenants or agreements contained in this Resolution, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Note on the part of the City. Section 20. Authorizations. The Mayor, the Clerk, and any other member of the City Commission of the City, and such other officials and employees of the City as may be designated by the Mayor are each designated as agents of the City in connection with the issuance and delivery of the Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, certificates and contracts on behalf of the City that are necessary or desirable in connection with the execution and delivery of the Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 21. Note Mutilated. Destroyed. Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the City shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Owner furnishing the City proof of ownership thereof and indemnity reasonably satisfactory to the City and complying with such other reasonable regulations and conditions as the City may prescribe and paying such expenses as the City may incur. The Note so surrendered shall be cancelled. Section 22. Impairment of Contract. The City covenants with the Owner of the Note that it will not, without the written consent of the Owner of the Note, adopt or enact any resolution or ordinance which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 23. Budget and Financial Information. The City shall provide the Owner of the Note with (a) a copy of its annual operating budget for each fiscal year ending after September 30, 2000 promptly after the same is adopted and (b) its audited financial statements for each fiscal year ending after September 30, 1999 Within 270 days after the end thereof until the Note is satisfied. The City hereby covenants that it shall promptly give written notice to the Owner of the Note of the commencement of any litigation or proceeding Which if determined adversely to the City could adversely affect the security for the payment of the Note. Section 24. Remedies of Noteholder. Should the City default in any obligation created by this Resolution or the Note, the Owner of the Note may, in addition to any other remedies set forth in this Resolution or the Note, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent juriSdiction, protect and enforce any and all rights' under the laws of the State of Florida, or granted or 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 performed by the City or by any Officer thereof. Section 25. Qualified Tax-Exernpt Obligation. The reasonably anticipated amount of tax- exempt obligations which will be issued by the City during 2000 does not exceed $10,000,000. There are no entities that are subordinate to the City or that issue obligations on behalf of the City. The City hereby designates the Note as a "qualified m-exempt obligation" within the meaning of Section 265(b)(3) of the Code. 6 Section 26. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 27. Effective Date. This ResolUtion shall take effect immediately upon its adoption. PASSED AND APPROVED THIS 6TH DAY OF SEPTEMBER, 2000. Suzgnne M. tinsel city CITY OF BOYNTON BEACH, FLORIDA ts ~ce-Mayor Commissioner G:\O2345~30XResolutionf2).wpd 7 September 15, 2000 EXHIBIT A CITY OF BOYNTON BEACH, FLORIDA PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the City of Boynton Beach, Florida (the "City"), a municipal corporation and political subdivision of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay to the order of Bank of America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $ together with interest on the principal balance outstanding at the rate per annum of ~% (subject to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in lawful money of the United States of America at such place as the Owner may designate to the City in writing, in the following manner: Interest shall be payable on the outstanding principal amount of this Note on the first day of each May and November, commencing May 1, 2001. Installments of principal shall be due hereon on the fu:st day of each May and November, commencing May 1, 2001, in accordance with the table set forth below: ?rincipal Installment Installment Due Date Payable 5/1/01 11/1/01 5/1/02 11/1/02 5/1/03 11/1/03 5/1/04 11/1/04 5/1/05 11/1/05 5/1/06 11/1/06 5/1/07 11/1/07 5/1/08 11/1/08 5/1/09 11/1/09 The entire unpaid principal balance, together with all accrued and unpaid interest thereon, shall be due and payable in full on November 1, 2009. All payments by the City pursuant to this Note shall apply first to accrued interest, then to other charges, due the Owner, and the balance thereof shall apply to the principal sum due. The principal of this Note may not be prepaid at the option of the City prior to maturity. If any payment hereunder is not made when due, the same shall constitute a default, and if such payment is not made within ten Business Days after written demand therefor by the Owner, the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the City shall also be obligated to pay, from lawfully available funds, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes, and proceedings seeking adequate protection or relief from the automatic stay. To the extent permitted by law, interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of acceleration of maturity. The City, to the extent permitted by law, hereby waives presentment, demand, protest and notice of dishonor. The City, to the extent permitted by law, and the Owner, by acceptance hereof, hereby waive trial by jury in any litigation commenced by either in respect hereof or of the Resolution (hereinafter defined). The full faith, credit and taxing power of the City are irrevocably pledged to the prompt payment of the principal of and interest on this Note. The City has covenanted in the Resolution (hereinafter defined) that while this Note is outstanding there shall be assessed, levied and collected a tax, on all taxable property within the corporate limits of the City (excluding exemptions as required by applicable law), sufficient in amount to pay the principal of and interest on this Note as the same shall become due. This Note is issued pursuant to Resolution No. R00- duly adopted by the City on September 6, 2000, as from time to time amended and supplemented (herein referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution. All terms, conditions and provisions of the Resolution are by this reference thereto incorporated herein as a part of this Note. This Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the City and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, the delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and A-2 manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, City of Boynton Beach, Florida has caused this Note to be executed in its name by the manual signature of its Mayor and attested by the manual signature of its Clerk, and its seal to be impressed hereon, all this 15th day of September, 2000. [SEAL] CITY OF BOYNTON BEACH, FLORIDA Attest: By: Mayor city Clerk A-3 EXHIBIT B ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT (the "Agreement"), is made and dated as of September 15, 2000, and is by and between CITY OF BOYNTON BEACH, FLORIDA (the "Issuer") and FIRST UNION NATIONAL BANK (the "Escrow Agent"), Miami, Florida, a national banking association, as Escrow Agent and as Paying Agent (in such capacity, the "Paying Agent") for the hereinafter described Refunded Bonds. WITNESSETH: WHEREAS, the Issuer has heretofore issued its $10,075,000 General Obligation Refunding Bonds, Series 1992, of which $5,695,000 are currently outstanding (the "1992 Bonds"); and WHEREAS, the Issuer has determined to provide for the payment of all of the 1992 Bonds maturing on and after November 1, 2000, (the "Refunded Bonds"), and to obtain a portion of the funds necessary for such payment by issuing $ in aggregate principal amount of its Promissory Note (the "Note"); and WHEREAS, a portion of the proceeds derived from the sale of the Note, together with other moneys made available by the Issuer for such purpose, will be applied to the purchase of certain direct obligations of the United States of America ("Government Obligations"), the principal of which, together with investment earnings thereon and an initial cash balance, will be sufficient to pay when due the principal, redemption premium, and interest on the Refunded Bonds to and including November 1, 2000, on which date the Refunded Bonds will be discharged; and WHEREAS, in order to provide for the proper and timely application of the moneys deposited in the trust created herein to the payment of the Refunded Bonds, it is necessary for the Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the owners from time to time of the Refunded Bonds; NOW, THEREFORE, in consideration of the foregoing and the mutual covenahts herein set forth and in order to secure the payment of the principal of, premium, and interest on the Refunded Bonds, according to their tenor and effect, the Issuer does by these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby created, and to it and its assigns forever, all and singular the property hereinafter described, to wit: CLAUSE I. All right, title, and interest of the Issuer in and to $ behalf of the Issuer with the Escrow Agent hereunder. deposited by or on CLAUSE II. All right, title, and interest of the Issuer in and to the Government Obligations purchased from the moneys described in Clause I above. CLAUSE IH. All right, title, and interest of the Issuer in and to all cash balances held frOm time to time hereunder and all income and earnings derived from or accruing to the Government Obligations described in Clause II above. CLAUSE IV. 'All (i) property which by the express provisions of this Agreement is required to be subject to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and for additional security hereunder or to be subject to the pledge hereof, by the Issuer or by anyone in its behalf, and the Escrow Agent is hereby authorized to receive the same at any time as additional security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel to the effect that such acceptance will not cause the interest on the Refunded Bonds and Note to be included in the gross income of the owners thereof for federal income tax purposes. TO HAVE AND TO HOLD, all and the same, forever; in trust nevertheless, upon the terms and trusts herein set forth, for the equal and proportionate benefit, security and protection, as herein described, of the owners from time to time of the Refunded Bonds in the manner herein provided; but if the Refunded Bonds shall be fully and prOmptly paid when due or redeemed in accordance with the terms thereof and hereof, then this Agreement shall be and become void and of no further force and effect, otherwise the same shall remain in full force and effect, and upon the trusts and subject to the covenants and conditions hereinafter set forth. ARTICLE I DEFINITIONS Section 1.01. Definitions. In addition to words and terms elsewhere defmed in this Agreement, as used herein, unless some other meaning is plainly intended, the following terms and phrases shall have the following meanings: "Escrow Deposit Trust Fund" means the fund so designated and established under Section 2.01 of this Agreement. B-2 "Government Obligations', means direct obligations of the United States of America that are not callable or subject to redemption or prepayment prior to maturity by the obligor thereon. Section 1.02. Uses of Phrases. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and vice-versa. ARTICLE II ESTABLISHMENT OF FUNDS: FLOW OF FUNDS Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "Escrow Deposit Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other funds of the Issuer or the Escrow Agent. Section 2.02. Deposit to Escrow Deposit Trust Fund. Concurrently with the execution of this Agreement the Issuer has deposited or caused to be deposited with the Escrow Agent and the Escrow Agent acknowledges receipt of immediately available moneys in the amount of $ , for deposit in the Escrow Deposit Trust Fund. The funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding sentence shall, except for a cash balance of $ , be immediately invested by the Escrow Agent in the Government Obligations described in Exhibit A attached hereto, and retained in the Escrow Deposit Trust Fund until applied as hereinafter authorized. Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply the Government Obligations and other moneys or additional property deposited in the Escrow Deposit Trust Fund, together with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent shall not invest any moneys or additional property held hereunder or make substitutions of the Government Obligations hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held hereunder except as provided in this Agreement. Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit of (or purchase for deposit of) the Government Obligations and moneys in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit for the benefit of the owners of the Refunded Bonds and the owners of the Refunded Bonds shall have an express lien on the principal of and earnings on the Government Obligations, other moneys and any additional property held in the Escrow Deposit Trust Fund hereunder until applied in accordance with this Agreement. The Government Obligations, earnings thereon, other moneys and any additional property shah be held in trust by the Escrow Agent and used only for the purposes and in the manner provided in this Agreement. B-3 Section 2.05. Redemption of Refunded Bonds. The Issuer has irrevocably called the Refunded Bonds maturing on and after November 1, 2001, for redemption on November 1, 2000 and hereby irrevocably instructs the Escrow Agent, and the Escrow Agent hereby agrees, to at least thirty (30) days, but not more than sixty (60) days, before November 1, 2000, mail a notice of redemption substantially in the form attached hereto as Exhibit B to all registered owners of such Refunded Bonds to be redeemed at their addresses as they appear on the registration books for the Refunded Bonds. Section 2.06. Use of Moneys in Escrow Deposit Trust Fund. On each date on which principal, premium, and/or interest on any of the Refunded Bonds shall become payable, the Escrow Agent shall use funds in the Escrow Deposit Trust Fund to pay the interest, principal and/or redemption price of the Refunded Bonds coming due on such dates, as shown on Exhibit C. Section 2.07. Investment of Trust Funds. Subject to the requirements of this Section 2.07, the Issuer may direct in writing the Escrow Agent to invest and reinvest any moneys remaining from time to time in the Escrow Deposit Trust Fund until such time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow Agent shall hold such moneys uninvested (except as otherwise provided herein). Such moneys may be invested and reinvested only in Government Obligations bearing interest at such rate or rates and maturing on such date or dates and in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the Escrow Agent unless the Issuer and the Escrow Agent shall have received in writing an opinion of nationally recognized bond counsel to the effect that such investment of such moneys will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and the Note for federal income tax purposes. Provided further, that no such investment instruction shall be given unless the Issuer and the Escrow Agent shall have received verification from a firm of independent certified public accountants to the effect that, taking into account such investment, the amounts held hereunder will be sufficient to pay the principal, premium, and interest on the Refunded Bonds in full as the same shall become due. Section 2.08. Transfer of Funds After All Payments Required by the Agreement Are Made. After all the principal of, interest on, and redemption premium, if any, with respect to the Refunded Bonds has been paid in full, all remaining moneys and Government Obligations, together with any income and interest thereon, in the Escrow Deposit Trust Fund shall, upon written direction of the Issuer, be transferred to the Issuer by the Escrow Agent and shall be used by the Issuer in the following order of priority (i) if the Note shall be outstanding, to pay principal or interest on the Note, and (ii) otherwise, for any lawful purpose of the Issuer authorized by a written opinion of nationally recognized bond counsel. The Escrow Agent shall have no responsibility for the application of amounts transferred by it to the Issuer as provided above. Section 2.09. Deficiencies. If at any time it shall appear to the Escrow Agent that the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment when due to the owners of any of the Refunded Bonds, the Escrow Agent shall notify the Issuer as promptly as possible prior to such payment date and the Issuer agrees that it will make available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on B-4 the Refunded Bonds. The Escrow Agent shall in no manner be responsible for the Issuer's failure to-make such deposits. Section 2.10. Escrow Agent Fees. The Issuer hereby agrees to provide for the payment, from lawfully available funds of the Issuer, of the compensation due and owing the Escrow Agent which compensation shall be paid at such times and in such amounts shown on Exhibit D. In no event shall the Escrow Agent have any lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the payment of such compensation, or for the payment or reimbursement of any expenses incurred by the Escrow Agent in connection with this Agreement. ARTICLE IH CONCERNING THE ESCROW AGENT Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints First Union National Bank, Miami, Florida as Escrow Agent under this Agreement. Section 3.02. Acceptance by Escrow Agent. By execution of this Agreement, the Escrow Agent accepts its duties and obligations hereunder. Section 3.03. Liability of Escrow Agent. The Escrow Agent shall not be liable in connection with the performance of its duties hereunder except for its own negligence, malfeasance or willful misconduct. The Escrow Agent shall not be liable for any loss or any taxability of interest on the Refunded Bonds or Note resulting from any investment made pursuant to the terms and provisions of this Agreement. The Escrow Agent shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the Government Obligations and the earnings thereon to pay the Refunded Bonds. So long as the Escrow Agent applies all moneys,' additional property and the Government Obligations and the interest earnings therefrom to pay the Refunded Bonds as provided herein, and complies fully with the terms of this Agreement, it shall not be liable for any deficiencies in the amounts necessary to pay the Refunded Bonds caused by such calculations. The Escrow Agent shall keep such books and records as shall be consistent with prudent industry practice and shall make such books and records available for inspection by the Issuer at all reasonable times. In the event of the Escrow Agent's failure to account for any of the Government Obligations, additional property or moneys received by it, said Government Obligations, additional property or moneys shall be and remain the property of the Issuer in trust for the owners of the Refunded Bonds, as herein provided, and if for any reason such Government Obligations or moneys are not properly applied by the Escrow Agent as herein provided, the Escrow Agent shall be liable to the owners of the Refunded Bonds for the amount thereof until the required application shall be made. B-5 The duties and obligations of the Escrow Agent Shall be determined by the express provisions of this Agreement. The Escrow Agent may consult with counsel with respect to any matter relevant to this Agreement, who may or may not be counsel to the Issuer, and be entitled to receive from the Issuer reimbursement of the reasonable fees and expenses of such counsel, and in reliance upon the opinion of such counsel have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer, and the Escrow Agent may in good faith conclusively rely upon such certificate. Section 3.04. Permitted Acts. The Escrow Agent and its aff'fliates may become the owner of or may deal in any obligations of the Issuer described herein as fully and with the same rights as if it were not the Escrow Agent. Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting hereunder may at any time resign by giving not less than sixty (60) days' written notice to the Issuer, but no such resignation shall take effect unless a successor Escrow Agent shall have been appointed by the owners of the Refunded Bonds or by the Issuer as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent and the transfer to suCh successor Escrow Agent of the funds and accounts held by the Escrow Agent hereunder. Section 3.06. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time if the owners of a majority in aggregate principal amount of the Refunded Bonds then outstanding file a request for removal in writing with the Issuer, but the Escrow Agent shall remain in office until the appointment and taking office of a successor Escrow Agent in accordance with the provisions of this Agreement. A copy of any such bondowners' request shall be delivered by the Issuer to the Escrow Agent. (b) The Escrow Agent may also be removed at any time for any breach of trust or for any violation of this Agreement by a court of competent jurisdiction upon the application of the Issuer or the owners of not less than fifty percent (50%) in aggregate principal ambunt of the Refunded Bonds then outstanding. (c) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental action. (d) Prior to the removal of the Escrow Agent, all fees and expenses of the Escrow Agent, including, without limitation, if such removal is without reasonable cause, reasonable attorney's fees and expenses, shall have been paid to the Escrow Agent. B-6 Section 3.07. Successor Escrow Agent. (a) When the position of the Escrow Agent becomes or is about to become vacant, the Issuer shall appoint a successor Escrow Agent to fill such vacancy. (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the owner of any Refunded Bond then outstanding may, or any Escrow Agent retiring or being removed from such position shall, apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring or removed Escrow Agent of all funds and securities held by it under the provisions hereof into the registry of such court, such retiring or removed Escrow Agent shall be relieved of all future duties hereunder. (c) ~amy corporation or association into with the Escrow Agent may be converted or merged, or with which it may sell its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer shall be and become successor Escrow Agent hereunder without the necessity of any further act. Section 3.08. Limitation on Resignation or Removal. The Escrow Agent may not resign or be removed hereunder unless it also resigns or is removed as Paying Agent for the Refunded Bonds. ARTICLE IV MISCELLANEOUS Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer and the owners from time to time of the Refunded Bonds and it shall not be repealed, revoked, altered or amended without the written consent all such owners, the Escrow Agent and the Issuer; provided, however, that the Issuer and the Escrow Agent, may, without the consent of, or notice to, such owners, enter into such agreements supplemental to this Agreement as shall not adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Refunded Bonds and the Note and the rights of such owners and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent for the benefit of the owners of the Note, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such owners or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. B-7 The Escrow Agent shall be entitled to rely exclusively.upon an unqualified opinion of Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A. or other nationally recognized bond counsel with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the owners of the Refunded Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 4.02. Substitution of Securities. Notwithstanding the foregoing or any other provision of this Agreement, at the written direction of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent shall in simultaneous transactions, sell, transfer, otherwise dispose of or request the redemption of the Government Obligations held hereunder and to substitute therefor other Government Obligations, subject to the condition that such moneys or securities together with the interest or income thereof, shall be sufficient to pay, when due, the principal of, interest on and redemption premiums, if any, with respect to the Refunded Bonds. The Escrow Agent shall upon the written direction of the Issuer purchase such substituted securities with the proceeds derived from the sale, transfer, disposition or redemption of the Government Obligations held hereunder or from other moneys available. The transactions may be effected only if there shall have been obtained: (1) an opinion from Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A. or other nationally recognized bond counsel to the Issuer and the Escrow Agent to the effect that the disposition and substitution or purchase of such securities will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and Note for federal income tax purposes; and (2) new cash flow schedules showing (i) the cash and Government Obligations to be on deposit in the Escrow Account upon making such substitution, (ii) the dates and amounts of maturing principal and interest to be received by the Escrow Agent from such Government Obligations, and (iii) that the cash on hand in the Escrow Account plus cash to be derived from the maturing principal and interest of such Government Obligations shall be sufficient to pay when due all remaining debt service payments on the Refunded Bonds. If securities are substituted pursuant to this Section 4.02, any surplus moneys resulting from the sale, transfer, other disposition or redemption of the Government Obligations held hereunder and the substitutions therefor of Government Obligations, as shown in the verification referred to in (1) above shall be released from the Trust Estate created hereunder and shall be transferred to the Issuer, and shall be used by the Issuer in the following order of priority (i) if the Note shall be outstanding, to pay principal and/or interest on the Note, and (ii) otherwise, for any lawful purpose of the Issuer approved in writing by nationally recognized bond counsel. Section 4.03. Severability. If any one or more of the covenants or agreements provided in this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the remaining provisions of this Agreement. Section 4.04. Agreement Binding. Ail the covenants, promises and agreements in this Agreement contained by or on behalf of the Issuer or by or on behalf of the Escrow Agent shall bind and inure to the benefit of their respe, ctive successors and assigns, and to the benefit of the owners of the Refunded Bonds, whether so expressed or not. B-8 Section 4.05. Termination. This Agreement shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. Section 4.06. Governing Law. This Agreement shall be governed by the applicable laws of the State of Florida. Section 4.07. Execution by Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded for all purposes as an original, and all of which, together, shall constitute and be but one and the same instrument. Section 4.08. Notices. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given shall be deemed sufficiently given on the day sent by registered mall, return receipt requested, addressed as follows or to such other address furnished in writing by any of the following to all of the following: If to the Issuer: Finance Director City of Boynton Beach, Florida 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 If to the Escrow Agent: First Union National Bank Corporate Trust Department FL6065 First Union Financial Center 200 South Biscayne Boulevard 14th Floor Miami, Florida 33131 IN WITNESS WHEREOF, the Issuer and the Escrow Agent have duly executed this Agreement dated as of September 15, 2000. Attest: CITY OF BOYNTON BEACH, FLORIDA By: By: City Clerk Mayor FIRST UNION NATIONAL BANK, as Escrow Agent By: Vice-President B-9 EXHIBIT A GOVERNMENT OBLIGATIONS TO BE DEPOSITED INTO ESCROW DEPOSIT TRUST FUND Maturity Date Cou_r) on Principal % Type Type: =U.S. Treasury EXHIBIT B REDEMPTION NOTICE CITY OF BOYNTON BEACH, FLORIDA GENERAL OBLIGATION REFUNDING BONDS, SERIES 1992 Maturity CUSIP Nos.* (November 1) 2001 103565 DF1 2002 103565 DG9 2003 103565 DH7 2004 103565 DJ3 2009 103565 DL8 Notice is hereby given that the bonds of the above issue maturing on and after November 1, 2001 are called for payment and redemption on November 1, 2000 (the "Redemption Date") at a redemption price of 101% of the principal amount thereof plus accrued interest thereon to the Redemption Date. The Bonds so called for redemption should be presented for payment and redemption at the office of the Paying Agent set forth below, on or after November 1, 2000, and will cease to bear or accrue interest after that date, whether or not so presented. First Union National Bank 'First Union Customer Information Center Corporate Trust Operations 1525 West W.T. Harris Boulevard, 3C3 Charlotte, N.C. 28262-1153 1-800-665-9343 Withholding of 31% of gross redemption proceeds of any payment made within the United States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless the Paying Agent has the correct taxpayer identification number (social security or employer identification number) or exemption certificate of the payee. Please furnish a properly.completed IRS Form W-9 or exemption certificate or equivalent when presenting your securities for redemption. DATED this day of ,2000. FIRST UNION NATIONAL BANK CUSIP numbers are included solely for the convenience of the owners, and no representation is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice. B-1 EXHIBIT C REFUNDED BONDS DEBT SERVICE SCHEDULE Date 11/01/00 Called Premium PrinCipal Principal 1% Interest Total $ 735,000.00 $4,960,000.00 $ 49,600.00 $168,721.25 $5,913,321.25 C-1 EXHIBIT D ESCROW AGENT FEES AND EXPENSES (i) In consideration of the services rendered by the Escrow Agent, the Issuer agrees to pay the Escrow Agent a one-time fee of $1000.00 to be paid at closing and not from the escrow fund for all services to be incurred as Escrow Agent in connection with such services, including the cost of giving the notice of redemption. (ii) The Issuer shall also reimburse the Escrow Agent for any extraordinary expenses incurred by it in connection herewith. The term "extraordinary expenses" includes (a) expenses arising out of the assertion of any third party to any interest in the Escrow Deposit Trust Fund or any challenge to the validity hereof, including reasonable attorneys' fees, (b) expenses relating to any substitution under Section 4.02 hereof, and (c) expenses (other than ordinary expenses) not occasioned by the Escrow Holder's misconduct or negligence. (iii) The fees and expenses payable by the Issuer under Sections (i) or (ii) shall not be paid from the Escrow Deposit Trust Fund, but shall be paid by the Issuer from legally available funds of the Issuer. D-1