R04-212
RESOLUTION NO. R04-212
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF BOYNTON BEACH, FLORIDA AUTHORIZING THE
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY TO
ISSUE ITS TAX INCREMENT REVENUE BONDS, SERIES 2004,
IN THE PRINCIPAL AMOUNT OF NOT EXCEEDING
$19,575,000; AUTHORIZING THE CITY TO GUARANTY THE
OBLIGATIONS OF THE COMMUNITY REDEVELOPMENT
AGENCY UNDER THE BONDS; AND PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH,
FLORIDA, AS FOLLOWS:
Section 1: The Boynton Beach Community Redevelopment Agency (the "Agency") is hereby
authorized to issue its Tax Increment Revenue Bonds, Series 2004 (the "Bonds") in the principal amount
of not exceeding $19,575,000, and having such otherterms and conditions as authorized by the Agency's
Bond Resolution adopted December 6,2004, a copy of which is attached hereto as Exhibit "A."
Section 2: The City determines that it will further a paramount public purpose for the City to
guaranty the payment of the Bonds, and the City shall guaranty the payment of the Bonds. The City
Manager is hereby authorized and directed to execute the Guaranty in the form attached hereto as Exhibit
"B".
Section 3: This Resolution shall take effect immediately upon its passage.
PASSED AND ADOPTED in regular session on this, the 7th day of December, 2004.
(SEAL) City of Boynton Beach, Florida
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ATTEST:
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!?UfJ /vh tJ Y\ /110. CITY OF BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY
TAX INCREMENT REVENUE BONDS
BOND RESOLUTION
ADOPTED DECEMBER 6, 2004
TABLE OF CONTENTS
(This Table of Contents is not part of the Resolution
and is for convenience of reference only.)
PAGE
ARTICLE I GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions ........................................... I
SECTION 1.02. Authority for This Resolution ........................... II
SECTION 1.03. Resolution to Constitute Contract ........................ 11
ARTICLE II AUTHORIZATION, TERMS, EXECUTION
AND REGISTRATION OF BONDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.01. Authorization of Bonds ................................ 12
SECTION 2.02. Authorization, Description and Terms of Series 2004 Bonds ... 12
SECTION 2.03. Paying Agent and Registrar for Series 2004 Bonds . . . . . . . . . . . 13
SECTION 2.04. Award of the Series 2004 Bonds ......................... 13
SECTION 2.05. Official Statement for Series 2004 Bonds .................. 14
SECTION 2.06. Book Entry System for Series 2004 Bonds ................. 14
SECTION 2.07. Application of Series 2004 Bond Proceeds ................. 14
SECTION 2.08. Municipal Bond Insurance Provisions. . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.09. Execution and Delivery of the Series 2004 Bonds. . . . . . . . . . . . 17
SECTION 2.10. Insurance Commitments ............................... 17
SECTION 2.11. Execution of Bonds ................................... 17
SECTION 2.12. Authentication ....................................... 17
SECTION 2.13. Bonds Mutilated, Destroyed, Stolen or Lost ................ 17
SECTION 2.14. Negotiability, Interchangeability and Transfer. . . . . . . . . . . . . . . 18
SECTION 2.15. Form of Bonds . . . .. . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.16. The City Guaranty .................................... 25
ARTICLE III REDEMPTION OF BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.01. Privilege of Redemption ...............................26
SECTION 3.02. Selection of Bonds to be Redeemed ...................... 26
SECTION 3.03. Notice of Redemption .................................26
SECTION 3.04. Redemption of Portions of Bonds ........................27
SECTION 3.05. Payment of Redeemed Bonds ...........................27
ARTICLE IV SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.01. Bonds Not to be Indebtedness of Agency .................. 28
SECTION 4.02. Security for Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 4.03. Funds and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.04. Project Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.05. Debt Service Fund; Reserve Fund. ....................... 29
SECTION 4.06. Rebate Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.07. Investments ......................................... 32
SECTION 4.08. Separate Accounts .................................... 32
ARTICLE V SUBORDINATED INDEBTEDNESS
ADDITIONAL BONDS, AND COVENANTS OF AGENCY . . . . . . . . . . . . . . 33
SECTION 5.01. Subordinated Indebtedness ............................. 33
SECTION 5.02. Issuance of Additional Bonds ........................... 33
SECTION 5.03. Bond Anticipation Notes ............................... 34
SECTION 5.04. Accession of Subordinated Indebtedness to Parity Status
with Bonds .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.05. Annual Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.06. Redevelopment Trust Fund; Compliance With Laws ......... 35
SECTION 5.07. Books and Records ...................................35
SECTION 5.08. Annual Audit ........................................ 35
SECTION 5.09. No Impairment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.10. Covenants with Credit Banks and Insurers ................. 36
SECTION 5.11. Federal Income Tax Covenants; Taxable Bonds ............. 36
SECTION 5.12. Nonpresentment of Bonds; Disposition of Unclaimed Money ..37
SECTION 5.13. Continuing Disclosure Compliance. . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VI DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.01. Events of Default .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.02. Remedies ........................................... 39
SECTION 6.03. Directions to Trustee as to Remedial Proceedings . . . . . . . . . . . . 40
SECTION 6.04. Remedies Cumulative ................................. 40
SECTION 6.05. Waiver of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 6.06. Application of Moneys After Default .....................40
SECTION 6.07. Control by Insurer or Credit Bank ........................ 41
ARTICLE VII SUPPLEMENTAL RESOLUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.01. Supplemental Resolution Without Bondholders' Consent. . . . . . 42
SECTION 7.02. Supplemental Resolution With Bondholders', Insurer's
and Credit Bank's Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 7.03. Amendment with Consent ofInsurer and/or Credit Bank Only. . 44
SECTION 7.04. Required Opinion of Bond Counsel . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII MISCELLANEOUS ........................................ 45
SECTION 8.01. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 8.02. Capital Appreciation Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.03. General Authority .................................... 46
SECTION 8.04. No Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.05. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.06. Sale of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 8.07. Severability ofInvalid Provisions ........................ 47
SECTION 8.08. Repeal ofInconsistent Resolutions .......................47
SECTION 8.09. Table of Contents and Headings not Part Hereof. . . . . . . . . . . . . 47
SECTION 8.1 O. Holidays; Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.11. Effective Date ....................................... 48
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RESOLUTION NO. 04-04
A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE BOYNTON
BEACH COMMUNITY REDEVELOPMENT AGENCY, AUTHORIZING THE
ISSUANCE BY THE AGENCY OF NOT EXCEEDING $19,575,000 IN
AGGREGATE PRINCIPAL AMOUNT OF TAX INCREMENT REVENUE
BONDS, SERIES 2004, TO FINANCE VARIOUS CAPITAL EXPENDITURES OF
THE AGENCY; AUTHORIZING ADDITIONAL BONDS; PLEDGING TO
SECURE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON SUCH
BONDS CERTAIN PLEDGED FUNDS, INCLUDING THE REDEVELOPMENT
TRUST FUND REVENUES OF THE AGENCY AND MONEYS ON DEPOSIT IN
AND INVESTMENTS HELD FOR THE CREDIT OF CERTAIN FUNDS
CREATED HEREUNDER; SETTING FORTH A METIIOD TO ESTABLISH THE
PRINCIPAL AMOUNT, INTEREST RATES, MATURITY SCHEDULE AND
REDEMPTION PROVISIONS FOR SUCH SERIES 2004 BONDS;
AUTIIORIZING AGENCY OFFICIALS TO A WARD THE SALE OF THE SERIES
2004 BONDS AND EXECUTE A BOND PURCHASE CONTRACT AND
MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH; APPOINTING
A PAYING AGENT AND REGISTRAR FOR THE SERIES 2004 BONDS;
PROVIDING A METHOD TO APPROVE THE FORM AND USE OF A
PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE
EXECUTION AND DELIVERY OF A FINAL OFFICIAL STATEMENT;
AUTHORIZING THE PURCHASE OF A MUNICIPAL BOND INSURANCE
POLICY FOR THE SERIES 2004 BONDS AND MAKING CERTAIN
COVENANTS IN CONNECTION THEREWITH; MAKING CERTAIN
COVENANTS AND AGREEMENTS FOR THE BENEFIT OF TIIE OWNERS OF
SUCH BONDS; PROVIDING FOR THE CREATION OF FUNDS AND
ACCOUNTS; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE BOYNTON
BEACH COMMUNITY REDEVELOPMENT AGENCY:
ARTICLE I
GENERAL
SECTION 1.01. Definitions. When used in this Resolution, the following terms shall
have the following meanings, unless the context clearly otherwise requires:
"Accreted Value" shall mean, as of any date of computation with respect to any Capital
Appreciation Bond, an amount equal to the principal amount of such Capital Appreciation Bond (the
principal amount at its initial offering) plus the interest accrued on such Capital Appreciation Bond
from the date of delivery to the original purchasers thereof to the Interest Payment Date next
preceding the date of computation or the date of computation if an Interest Payment Date, plus, 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 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.
"Act" shall mean Part III, Chapter 163, Florida Statutes and other applicable provisions of
law.
"Additional Bonds" shall mean the obligations issued at any time under the provisions of
Section 5.02 hereof.
"Agency" shall mean the Boynton Beach Community Redevelopment Agency.
"Annual Audit" shall mean the annual audit prepared pursuant to the requirements of Section
5.08 hereof.
"Annual Budget" shall mean the annual budget prepared pursuant to the requirements of
Section 5.05 hereof.
"Arches Funding Agreements" means the Advance Funding Agreement and the Direct
Incentive Funding Agreement, each dated November 19,2003, between the Agency and Boynton
Ventures I, LLC.
"Authorized Depository" shall mean a qualified public depository, as defined in Chapter 280,
Florida Statutes, or any successor provision thereof.
"Authorized Investments" shall mean any of the following which shall be authorized from
time to time by applicable laws of the State for deposit or purchase by the Agency for the investment
of its funds:
(I) Defeasance Obligations.
(2) Direct obligations of the United States of America (including obligations issued or
held in book-entry form on the books of the Department of the Treasury, and CATS
and TIGRS) or obligations, the principal of and interest on which are unconditionally
guaranteed by the United States of America.
(3) Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by
any of the following federal agencies and provided such obligations are backed by
the full faith and credit of the United States of America (stripped securities are
permitted only if they have been stripped by the agency itself):
1. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
2. Farmers Home Administration (FMHA)
Certificates of beneficial ownership
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3. Federal Financing Bank
4. Federal Housing Administration Debentures (FHA)
5. General Services Administration
Participation certificates
6. Government National Mortgage Association (GNMA or "Ginnie Mae")
GNMA-guaranteed mortgage-backed bonds
GNMA-guaranteed pass-through obligations
7. U.S. Maritime Administration
Guaranteed Title XI financing
8. U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures-U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds-U.S. government guaranteed public
housing notes and bonds
(4) Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by
any of the following non-full faith and credit U.S. government agencies (stripped
securities are permitted only if they have been stripped by the agency itself):
1. Federal Home Loan Bank System
Senior debt obligations
2. Federal Home Loan Mortgage Corporation (FHLMC or "Freddie Mac")
Participation Certificates
Senior debt obligations
3. Federal National Mortgage Association (FNMA or "Fannie Mae")
Mortgage-backed securities and senior debt obligations
4. Student Loan Marketing Association (SLMA or "Sallie Mae")
Senior debt obligations
5. Resolution Funding Corp. (REF CORP) obligations
6. Farm Credit System
Consolidated systemwide bonds and notes
(5) Money market funds registered under the Federal Investment Company Act of 1940,
whose shares are registered under the Federal Securities Act of 1933, and having a
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rating by S&P of "AAAm-G," "AAA-m," or "AAA-m" and ifrated by Moody's rated
"Aaa," "Aal" or "Aa2. II
(6) Certificates of deposit secured at all times by collateral described in (2) and/or (3)
above, Such certificates must be issued by commercial banks, savings and loan
associations or mutual savings banks. The collateral must be held by a third party
and the bondholders must have a perfected first security interest in the collateral.
(7) Certificates of deposit, savings accounts, deposit accounts or money market deposits
that are fully insured by FDIC, including BIF and SAIF.
(8) Investment Agreements, including GIC's, acceptable to the Insurer.
(9) Commercial paper rated, at the time of purchase , "Prime - I by Moody's and "A-I"
or better by S&P.
(10) Bonds or notes issued by any state or municipality that are rated by Moody's and
S&P in one of the two highest rating categories assigned by such agencies.
(II) Federal funds or bankers acceptances with a maximum term of one year of any bank
that has an unsecured, uninsured and unwarranted obligation rating of "Prime - I,"
or "M" or better by Moody's and "A- I" or "A" or better by S&P.
(12) Repurchase agreements provide for the transfer of securities from a dealer bank or
securities firm (seller/borrower) to a municipal entity (buyer/lender), and the transfer
of cash from a municipal entity to the dealer bank or securities firm with an
agreement that the dealer bank or securities firm will repay the cash plus a yield to
the municipal entity in exchange for the securities at a specified date.
Repurchase Agreements must satisfY the following criteria or be approved by the Insurer:
1. Repos must be between the municipal entity and a dealer bank or securities
firm
a. Primary dealers on the Federal Reserve reporting dealer list that are
rated "A" or better by S&P and Moody's, or
2. Banks rated "A" or above by S&P and Moody's.
1. The written repo contract must include the following:
a. Securities that are acceptable for transfer are:
(i) Direct U.S. governments, or
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(ii) Federal agencies backed by the full faith and credit of the U.S.
government (and FNMA and FHLMC)
b. The term of the repo may be up to 30 days
c. The collateral must be delivered to the municipal entity, trustee (if
trustee is not supplying the collateral) or third party acting as agent
for the trustee (if the trustee IS supplying the collateral)
before/simultaneously with payment (perfection by possession of
certificated securities)
d. Valuation of Collateral
(i) The securities must be valued weekly. marked-to-market at
current market price plus accrued interest
(a) The value of collateral must be equal to 104% of the amount
of cash transferred by the municipal entity to the dealer bank
or security firm under the repo plus accrued interest. If the
value of securities held as collateral slips below 104% of the
value of the cash transferred by municipality, then additional
cash and/or acceptable securities must be transferred. If,
however, the securities used as collateral are FNMA or
FHLMC, then the value of collateral must equal I 05%.
3. Legal opinion that must be delivered to the municipal entity:
a. Repo meets guidelines under state law for legal investment of public
funds.
(13) The Florida Municipal Investment Trust I - 3 year High Quality Bond Fund.
(14) The Local Government Surplus Funds Trust Fund created pursuant to Chapter 218,
Part IV, Florida Statutes for which Florida State Board of Administration acts as
custodian.
(15) The Florida Municipal Investment Trust Enhanced Cash Portfolio
(16) Any other investment in which proceeds of the Bonds may be invested under Florida
law, provided that such investments are approved in writing by the Insurer.
"Authorized Agency Officer" for the performance on the behalf of the Agency of any act of
the Agency or the execution of any instrument on behalf of the Agency shall mean the Executive
Director or any other person authorized by resolution of the Agency or appointed by certificate of
the Chair to perform such act or sign such document.
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"Balloon Indebtedness" shall mean indebtedness 25% or more of the principal payments of
which are due in a single Fiscal Year and which indebtedness is not required to be paid over its term
on a substantially level debt service basis on a Fiscal Year basis, and indebtedness 25% or more of
the principal of which may, at the option of the holder or registered owner thereof, be redeemed in
a Fiscal Year.
"Beneficial Owner" means any person which (i) has the power, directly or indirectly, to vote
or consent with respect to, or to dispose of ownership of, any Series 2004 Bonds (including persons
holding Series 2004 Bonds through nominees, depositories or other intermediaries) or (ii) is treated
as the owner of the Series 2004 Bonds for federal income tax purposes.
"Board of Commissioners" shall mean the board of commissioners of the Agency or its
successor in function.
"Bond Counsel" shall mean any attorney at law or firm of attorneys, of nationally recognized
standing in matters pertaining to the federal tax exemption of interest on obligations issued by states
and political subdivisions, and duly admitted to practice law before the highest court of any state of
the United States of America.
"Bond Insurance Policy" shall mean a municipal bond new issue insurance policy or policies
issued by an Insurer guaranteeing the payment of the principal of and interest on any portion of the
Bonds.
"Bondholder" or "Holder" or "holder" shall mean any Person who shall be the registered
owner of any Outstanding Bond or Bonds according to the registration books of the Agency.
"Bonds" shall mean the Series 2004 Bonds, any Additional Bonds and any Subordinated
Indebtedness which accedes to the status of Bonds pursuant to Section 5.04 hereof.
"Business Day" shall mean, as to any Series of Bonds, any day on which any Paying Agent
for such Series is open for business.
"Capital Appreciation Bonds" shall mean those Bonds so designated by Supplemental
Resolution, which may be either Serial Bonds or Term Bonds and which shall bear interest payable
at maturity or redemption. In the case of Capital Appreciation Bonds that are convertible to Bonds
with interest payable prior to maturity or prior to redemption of such Bonds, such Bonds shall be
considered Capital Appreciation Bonds only during the period of time prior to such conversion.
"Chair" shall mean the Chair or Vice-Chair of the Agency or such other person as may be
duly authorized by the Agency to act on his or her or their behalf.
"City" means the City of Boynton Beach, Florida.
"Code" shall mean the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder, whether proposed, temporary or final, promulgated by the Department ofthe
Treasury, Internal Revenue Service.
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"Cost" when used in connection with a Project, shall mean all amounts permitted to be paid
by State law, including costs of issuance of Bonds.
"Credit Bank" shall mean as to any particular Series of Bonds, the Person providing a Credit
Facility as designated in the Supplemental Resolution providing for the issuance of such Bonds.
"Credit Facility" shall mean as to any particular Series of Bonds, a letter of credit, a line of
credit or another credit or liquidity enhancement facility (other than insurance policies issued by an
Insurer, Reserve Fund Insurance Policies or Reserve Fund Letters of Credit), as approved in the
Supplemental Resolution providing for the issuance of such Bonds.
"Debt Service Fund" shall mean the Debt Service Fund established pursuant to Section 4.03
hereof.
"Debt Service Requirement" for any Fiscal Year shall mean the sum of:
(I) The aggregate amount of interest becoming due on the Bonds, other than Capital
Appreciation Bonds, during such Fiscal Year. Except as otherwise specified in Section 5.02 of this
Resolution, for purposes of this definition, the interest due on any Variable Rate Bonds shall be
assumed to be the greater of (a) 110% of the daily average interest rate on such Variable Rate Bonds
during the 12 months ending with the month preceding the date of calculation, or such shorter period
that such Bonds shall have been outstanding, or (b) the actual rate of interest borne by such Variable
Rate Bonds on the date of calculation.
(2) The aggregate amount of principal becoming due on the Bonds, other than Capital
Appreciation Bonds, for such Fiscal Year, whether by reason of maturity or mandatory redemption.
(3) The aggregate amount of Accreted Value due on any Capital Appreciation Bonds
maturing in such Fiscal Year.
In determining the amount of principal and interest becoming due on Bonds in any
Fiscal Year, the following rule shall apply:
With respect to Balloon Indebtedness, the principal and interest becoming due on the
Bonds shall be calculated based upon the assumption that the amount of principal and interest which
will be payable in a given period is equal to the amount which would be payable on such Balloon
Indebtedness if such Balloon Indebtedness were amortized from the date of such calculation to the
final maturity of such Balloon Indebtedness, on a level annual debt service basis calculated on a
Fiscal Year basis, at an interest rate, if such Balloon Indebtedness bears interest at a fixed interest
rate for its entire term, equal to the actual interest rate on such Balloon Indebtedness, and if such
Balloon Indebtedness does not bear interest at a fixed rate for its entire term, bearing interest at a rate
calculated in accordance with the methodology established above for Variable Rate Bonds.
"Defeasance Obligations" shall mean:
(i) direct obligations of, or obligations the timely payment of the principal of and interest
on which are unconditionally guaranteed by, the United States of America and which
are not redeemable or subject to prepayment prior to the stated maturity thereof by
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or at the direction of the obligor thereon, and including Separately Trading of
Registered Interests and Principal of U.S. Treasury Securities ("Strips") and the
interest component of obligations of the Resolution Funding Corporation which have
been stripped by the Federal Reserve Bank of New York, to the extent such
instruments are backed by the full and credit ofthe United States of America; and
(ii) pre-refunded municipal obligations meeting the following criteria:
(a) the municipal obligations must be rated AAA by S&P and Aaa by Moody's
and may not be callable prior to maturity or, alternatively, the trustee has received irrevocable
instructions concerning their calling and redemption;
(b) the municipal obligations are secured by cash or securities described in clause
(a) above (the "Defeasance Obligations"), which cash or Defeasance Obligations may be applied only
to interest, principal, and premium payments of such municipal obligations;
(c) the principal and interest of the Defeasance Obligations (plus any cash in the
fund) are sufficient to meet the liabilities of the municipal obligations;
(d) the Defeasance Obligations serving as security for the municipal obligations
must be held by an escrow agent or a trustee; and
(e) the Defeasance Obligations are not available to satisfy any other claims,
including those against the trustee or escrow agent holding the same.
"Event of Default" shall mean the occurrence of any event designated as such pursuant to
Section 6.0 I hereof.
"Fiscal Year" shall mean the period commencing on October I of each year and continuing
through the next succeeding September 30, or such other period as may be prescribed by law as the
fiscal year of the Agency.
"Fitch" means Fitch Ratings, the nationally recognized securities rating firm, and any
successor or successors thereto; and if such corporation shall be dissolved or liquidated or shall no
longer perform securities rating functions, shall mean any other nationally recognized securities
rating firm designated by the Agency and approved by the Insurer and/or the Credit Bank, as
applicable.
"Guaranty" means the Guaranty Agreement, dated of even date with the Series 2004 Bonds,
pursuant to which the City guarantees the timely payment of the principal and interest on the Series
2004 Bonds, and which shall be in substantially the form attached hereto as Exhibit B.
"Insurer" shall mean such Person as shall be in the business of insuring or guaranteeing the
payment of principal of and interest on municipal securities and with respect to any Series of Bonds,
which shall have insured or guaranteed payment of the principal of or interest on such Bonds, and
as to the Series 2004 Bonds, means MBIA Insurance Corporation.
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"Interest Payment Date" shall be such date or dates for the payment of interest on a Series
of Bonds as shall be provided by Section 2.02 hereof or by Supplemental Resolution.
"Maximum Debt Service Requirement" shall mean, as of any particular date of calculation,
the greatest annual Debt Service Requirement for the Bonds for the then current or any future Fiscal
Year.
"Maximum Interest Rate" shall mean, with respect to any particular Variable Rate Bonds, a
numerical rate of interest, which shall be set forth in the Supplemental Resolution delineating the
details of such Bonds, that shall be the maximum rate of interest such Bonds may at any time bear
in the future in accordance with the terms of such Supplemental Resolution.
"Moody's" shall mean Moody's Investors Service, Inc., a Delaware corporation, the nationally
recognized securities rating firm, and any successor or successors thereto; and if such corporation
shall be dissolved or liquidated or shall no longer perform securities rating functions, shall mean any
other nationally recognized securities rating firm designated by the Agency and approved by the
Insurer and/or the Credit Bank, as applicable.
"Outstanding" shall mean all Bonds which have been authenticated and delivered under this
Resolution except, (I) Bonds for which irrevocable (including revocable notice which shall have
become irrevocable) notice of redemption has been given and for which moneys have been deposited
with any Paying Agent(s) solely for the payment of such Bonds, (2) any Bond surrendered by the
Holder thereof in exchange for another Bond or other Bonds under Sections 2.13 or 2.14 hereof, (3)
Bonds deemed to have been paid pursuant to Section 8.01 hereof, and (4) Bonds cancelled after
purchase in the open market or because of payment at or redemption prior to maturity.
"Parity Note" means the Promissory Note dated September 20, 200 I, made by the Agency
in the principal amount of $3,000,000.00 and payable to Bank of America, N.A.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant to resolution
of the Board of Commissioners, and its successors or assigns, and any other Person which may at
any time be substituted in its place pursuant to resolution of the Board of Commissioners.
"Person" shall mean an individual, a corporation, a partnership, an association, ajoint stock
company, a trust, any unincorporated organization or goverrunental entity.
"Pledged Accounts" shall mean, until applied in accordance with the provisions of this
Resolution, all moneys, including investments thereof, in the funds and accounts established
hereunder, except (i) moneys in any account of the Rebate Fund, and (ii) to the extent moneys on
deposit in a subaccount of the Reserve Fund and/or an account of the Project Fund are pledged solely
for the payment of the Series of Bonds for which such account was established in accordance with
the provisions hereof.
"Pledged Funds" shall mean all Tax Increment Revenues and the Pledged Accounts.
"Project" shall mean any undertaking of the Agency the cost of which is to be paid, in whole
or in part, from amounts in the Project Fund.
9
"Project Fund" shall mean the Project Fund established pursuant to Section 4.03 hereof.
"Rating Agency" means any of Fitch, Moody's and S&P.
"Rebate Fund" shall mean the Rebate Fund established pursuant to Section 4.06 hereof.
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to resolution of
the Board of Commissioners and its successors and assigns, and any other Person which may at any
time be substituted in its place pursuant to resolution of the Board of Commissioners.
"Reserve Fund" shall mean the fund of that name established pursuant to Section 4.03 hereof.
"Reserve Fund Insurance Policy" shall mean an insurance policy deposited in the Reserve
Fund in lieu of or in partial substitution for cash on deposit therein pursuant to Section 4.05(B).
"Reserve Fund Letter of Credit" shall mean a Credit Facility (other than a Reserve Fund
Insurance Policy) issued by any bank or national banking association, insurance company or other
financial institution and then on deposit in the Reserve Fund in lieu of or in partial substitution for
cash on deposit therein pursuant to Section 4.05(B) hereof.
"Reserve Fund Requirement" shall mean, for a subaccount in the Reserve Fund, unless
otherwise provided with respect to a Series of Bonds by Supplemental Resolution adopted prior to
issuance of such Series, as of any date of calculation. an amount of money equal to the lesser of (1)
the Maximum Debt Service Requirement for all Series of Bonds to which such subaccount relates,
(2) 125% of the average annual Debt Service Requirement for all Series of Bonds to which such
subaccount relates calculated on a Fiscal Year basis as of the date of issuance ofthe most recently
issued Series secured by such subaccount, or (3) the sum of 10% of the aggregate initial principal
amount of each Series of Bonds to which such subaccount relates (unless the Code requires issue
price to be used instead of initial principal amount, in which case, issue price shall be used). In
computing the Reserve Fund Requirement, the interest rate on Variable Rate Bonds shall be assumed
to be the lesser of (a) the average of The Bond Buver 20 Revenue Bond Index for a period of 52
consecutive weeks selected by the Agency ending not more than sixty days prior to the date of
issuance of such Variable Rate Bonds or (b) the Maximum Interest Rate.
"Resolution" and "this Resolution" shall mean this instrument, as the same may from time
to time be amended, modified or supplemented by any and all Supplemental Resolutions.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous transaction
and identified pursuant to Sections 2.01 or 2.02 hereof or in a Supplemental Resolution authorizing
the issuance by the Agency of such Bonds as a separate Series, regardless of variations in maturity,
interest rate or other provisions.
"Series 2004 Bonds" shall mean the Agency's Tax Increment Revenue Bonds, Series 2004,
authorized pursuant to Section 2.02 hereof.
10
"Series 2004 Project" means various capital projects of the Agency described in the
Community Redevelopment Plan of the Agency as may be in effect from time to time.
"S&P" shall mean Standard and Poor's Ratings Services, the nationally recognized securities
rating firm, and any successor or successors thereto; and if such corporation shall be dissolved or
liquidated or shall no longer perform securities rating functions, shall mean any other nationally
recognized securities rating firm designated by the Agency and approved by the Insurer and/or the
Credit Bank, as applicable.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall mean any indebtedness of the Agency, subordinate and
junior to the Bonds, issued in accordance with the provisions of Section 5.01 hereof, and any
Variable Rate Bonds which become Subordinated Indebtedness in accordance with Section 5.02(F)
hereof.
"Supplemental Resolution" shall mean any resolution of the Agency amending or
supplementing this Resolution, adopted and becoming effective prior to the issuance of the Series
2004 Bonds or in accordance with the terms of Article VII hereof.
"Taxable Bond" shall mean any Bond which states, in the body thereof, that the interest
income thereon is includable in the gross income of the Holder thereoffor federal income taxation
purposes or that such interest is subject to federal income taxation.
"Tax Increment Revenues" shall mean all tax increment revenues received by the Agency and
deposited in the redevelopment trust fund of the Agency pursuant to Section 163.387, Florida
Statutes.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds hereby or
by Supplemental Resolution.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable, convertible or
other interest rate which at the date of issue is not fixed as one or more stated percentages for the
entire term of such Bonds.
The terms herein, "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer
to this Resolution; the term "heretofore" shall mean before the date of adoption of this Resolution;
and the term "hereafter" shall mean after the date of adoption of this Resolution. Words importing
the singular number include the plural number, and vice versa.
SECTION 1.02. Authoritv for This Resolution. This Resolution is adopted pursuant
to the provisions of the Act.
SECTION 1.03. Resolution to Constitute Contract. In consideration of the purchase
and acceptance of any or all of the Bonds by those who shall hold the same from time to time, the
provisions of this Resolution shall be deemed to be and shall constitute a contract between the
Agency and the Holders from time to time of the Bonds and shall be a part of the contract of the
Agency with any Credit Bank and any Insurer. The pledge made in this Resolution and the
II
provisions, covenants and agreements herein set forth to be performed by or on behalf of the Agency
shall be for the equal benefit, protection and security of the Holders of any and all of the Bonds and
for the benefit, protection and security of any Credit Bank and any Insurer. All of the Bonds,
regardless of the time or times of their issuance or maturity, shall be of equal rank without
preference, priority or distinction of any of the Bonds over any other thereof except as expressly
provided in or pursuant to this Resolution.
[End of Article I]
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND REGISTRATION OF BONDS
SECTION 2.01. Authorization of Bonds. The Agency hereby authorizes the issuance
of Bonds of the Agency to be designated as "Boynton Beach Community Redevelopment Agency
Tax Increment Revenue Bonds," which may be issued in one or more Series as hereinafter provided.
The aggregate principal amount of the Bonds which may be executed and delivered under this
Resolution is not limited except as may hereafter be provided by Supplemental Resolution or as
limited by the Act or by other applicable law.
The Bonds may, if and when authorized by the Agency pursuant to this Resolution or
Supplemental Resolution, be issued in one or more Series, with such further appropriate particular
designations added to or incorporated in such title for the Bonds of any particular Series as the
Agency may determine and as may be necessary to distinguish such Bonds from the Bonds of any
other Series. Each Bond shall bear upon its face the designation so determined for the Series to
which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at such rate or
rates not exceeding the maximum rate permitted by law; and shall be payable in lawful money of the
United States of America on such dates; all as determined by this Resolution and by Supplemental
Resolution. The Bonds shall be issued in such denomination or denominations and such form,
whether coupon or registered; shall be dated such date or dates; shall bear such numbers; shall be
payable at such place or places; shall contain such redemption provisions; shall have such Paying
Agent(s) and Registrar(s); shall mature on such date or dates in such years and amounts; and the
proceeds shall be used in such manner all as determined by this Resolution and by Supplemental
Resolution. The Agency may issue Bonds which may be secured by a Credit Facility or by a Bond
Insurance Policy all as shall be determined by this Resolution or by Supplemental Resolution.
SECTION 2.02. Authorization. DescriDtion and Terms of Series 2004 Bonds. A Series
of Bonds entitled to the benefit, protection and security of this Resolution is hereby authorized in an
aggregate principal amount not to exceed $19,575,000 for the principal purpose of paying the cost
of the Series 2004 Project. Such Series shall be designated as, and shall be distinguished from the
Bonds of all other Series by the title "Boynton Beach Community Redevelopment Agency Tax
Increment Revenue Bonds, Series 2004."
12
The Series 2004 Bonds shall be issued as fully registered Bonds; shall be numbered
consecutively from one upward in order of maturity preceded by the letter R; shall be in
denominations of $5,000 and integral multiples thereof shall be dated, shall be issued in the
aggregate principal amounts, shall bear interest at the rates per annum, computed on the basis of a
360-day year consisting of twelve thirty (30) day months, payable on such date or dates (the "Interest
Payment Dates"), may have such redemption provisions and shall mature on such dates, not later
than 25 years after issuance, and in the amounts, as set forth in a certificate in the form attached
hereto as Exhibit A signed by the Chair, and in the absence ofthe Chair, any other member of the
Board of Commissioners, provided, however, that the arbitrage yield on the Series 2004 Bonds, as
calculated for purposes of the Code, shall not exceed 7.00%. The Chair, and in the absence of the
Chair, any other member of the Board of Commissioners are jointly and severally authorized to
determine the details of the Series 2004 Bonds within the parameters set forth above, and upon such
determination to execute a certificate it the form attached hereto as Exhibit A completed with the
details of the Series 2004 Bonds, thereby establishing such details.
The principal of and premium, if applicable, on the Series 2004 Bonds are payable when due
upon presentation and surrender of the Series 2004 Bonds at the office of the Paying Agent. Interest
payable on any Series 2004 Bond on any Interest Payment Date will be paid by check or draft of the
Paying Agent mailed on the Interest Payment Date to the Holder in whose name such Bond shall be
registered at the close of business on the 15th day (whether or not a Business Day) of the calendar
month next preceding such Interest Payment Date, or, unless otherwise provided by Supplemental
Resolution, at the written request and expense of any Holder of at least $500,000 in principal amount
of Series 2004 Bonds (or of all Series 2004 Bonds if less than $500,000 shall be unpaid), by bank
wire transfer for the account of such Holder. In the event the interest payable on any Series 2004
Bond is not punctually paid or duly provided for by the Agency on such Interest Payment Date, such
defaulted interest will be paid to the Holder in whose name such Bond shall be registered at the close
of business on a special record date for the payment of such defaulted interest as established by
notice sent by the Agency to such Holder not less than ten (IO) days preceding such special record
date.
All payments of principal of, premium, if any, and interest on the Series 2004 Bonds shall
be payable 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.
SECTION 2.03. Paving Agent and Registrar for Series 2004 Bonds. The Agency
hereby appoints U.S. Bank as the Paying Agent and Registrar with respect to the Series 2004 Bonds,
and authorizes the Chair to execute a paying agent and registrar agreement between U.S. Bank and
the Agency.
SECTION 2.04. Award of the Series 2004 Bonds. The Agency hereby determines that
a negotiated sale of the Series 2004 Bonds is in the best interest of the Agency and the citizens and
inhabitants of the Agency by reason of the volatility of the market for tax-exempt bonds.
The Agency expects to receive and offer to purchase the Series 2004 Bonds in the form of
a Bond Purchase Contract (the "Bond Purchase Contract") between the Agency and Bane of America
Securities LLC (the "Original Purchaser"). Prior to execution of the Bond Purchase Contract, the
Original Purchaser shall file with the Agency the disclosures required by Section 218.385, Florida
13
Statutes and competitive bidding for the Series 2004 Bonds is hereby waived pursuant to the
authority of Section 218.385, Florida Statutes.
Upon establishment of the terms of the Series 2004 Bonds, as described in Section 2.02
hereof, the Chair, or in the absence of the Chair, any other member of the Board of Commissioners,
are, jointly and severally, authorized to award the Series 2004 Bonds to the Original Purchaser,
provided that the underwriting discount shall not exceed 0.55% of the principal amount of the Series
2004 Bonds. Upon award of the Series 2004 Bonds, the Chair, or in the absence of the Chair, any
other member of the Board of Commissioners, are hereby jointly and severally authorized and
directed for and in the name of the Agency to execute and deliver the Bond Purchase Contract in
such form as shall be approved by the official of the Agency executing the same, such execution to
constitute conclusive evidence of such approval.
SECTION 2.05. Official Statement for Series 2004 Bonds. The Agency hereby
authorizes the preparation of a Preliminary Official Statement relating to the Series 2004 Bonds, and
authorizes its use in connection with the sale of the Series 2004 Bonds. The Chair, or in the absence
of the Chair, any other member of the Board of Commissioners, are jointly and severally authorized
to "deem final" the Preliminary Official Statement for purposes of Securities and Exchange
Commission Rule l5c2-12. The preparation of a final Official Statement for the Series 2004 Bonds,
which shall be in substantially the form of the Preliminary Official Statement, changed to reflect the
terms of the Series 2004 Bonds and otherwise in such form as may be approved by the Chair, or in
the absence of the Chair, any other member of the Board of Commissioners, such approval to be
conclusively established by the execution thereof, is hereby authorized, and upon preparation thereof
the Chair, or in the absence of the Chair, any other member of the Board of Commissioners, are
jointly and severally authorized and directed for and in the name of the Agency to execute and
deliver the Official Statement, as hereby approved.
SECTION 2.06. Book Entrv Svstem for Series 2004 Bonds. The Agency is authorized
to enter into a Blanket Issuer Letter of Representation with The Depository Trust Company to
establish a book-entry system of ownership of the Series 2004 Bonds. Beneficial owners of the
Series 2004 Bonds will not receive physical delivery of Series 2004 Bond certificates nor will they
have a right to receive a certificate during the period that the Series 2004 Bonds are immobilized in
the custody ofDTC
SECTION 2.07. Application of Series 2004 Bond Proceeds. Proceeds from the sale
of the Series 2004 Bonds, including accrued interest, but excluding the cost of the Bond Insurance
Policy for the Series 2004 Bonds, which shall be paid by the Original Purchaser directly to the
Insurer, shall be deposited in the Series 2004 Account of the Project Fund.
SECTION 2.08. Municipal Bond Insurance Provisions. Notwithstanding any provision
to the contrary contained herein, the following provisions shall apply with respect to the Series 2004
Bonds:
(a) In the event that, on the second Business Day prior to any Interest Payment Date on the
Series 2004 Bonds, and again on the Business Day prior to any Interest Payment Date on the Series
2004 Bonds, the Paying Agent has not received sufficient moneys to pay all principal of and interest
on the Series 2004 Bonds due on the second following or the following, as the case may be, Business
Day, the Paying Agent shall promptly notify the Insurer or its designee (designated in writing to the
14
Paying Agent) on the same Business Day by telephone or telegraph, confirmed in writing by
registered or certified mail, of the amount of the deficiency.
(b) If the deficiency is made up in whole or in part prior to or on the Interest Payment
Date, the Paying Agent shall promptly so notify the Insurer or its designee.
(c) In addition, if the Paying Agent has written notice that any Holder has been required
to disgorge any payment of principal or interest on any Series 2004 Bond pursuant to a final
judgment by a court of competent jurisdiction that such payment constitutes a voidable preference
to such Holder within the meaning of any applicable bankruptcy laws, then the Paying Agent shall
notify the Insurer or its designee (designated in writing to the Paying Agent) of such fact by
telephone or telegraphic notice, confirmed in writing by registered or certified mail.
(d) The Paying Agent is hereby irrevocably designated, appointed, directed and
authorized to act as attorney-in-fact for Holders of the Series 2004 Bonds as follows:
I. If and to the extent there is a deficiency in amounts required to pay interest
on the Series 2004 Bonds, the Paying Agent shall (a) execute and deliver to U.S. Bank Trust
National Association, or its successors under the Policy (the "Insurance Paying Agent"), in
form satisfactory to the Insurance Paying Agent, an instrument appointing the Insurer as
agent for such Holders in any legal proceeding related to the payment of such interest and an
assignment to the Insurer of the claims for interest to which such deficiency relates and
which are paid by the Insurer, (b) receive as designee of the respective Holders (and not as
Paying Agent) in accordance with the tenor of the Policy payment from the Insurance Paying
Agent with respect to the claims for interest so assigned and (c) disburse the same to such
respective Holders; and
2. If and to the extent ofa deficiency in amounts required to pay principal of the
Series 2004 Bonds, the Paying Agent shall (a) execute and deliver to the Insurance Paying
Agent in form satisfactory to the Insurance Paying Agent an instrument appointing the
Insurer as agent for such Holder in any legal proceeding relating to the payment of such
principal and an assignment to the Insurer of any Series 2004 Bond surrendered to the
Insurance Paying Agent of so much of the principal amount thereof as has not previously
been paid or for which moneys are not held by the Paying Agent and available for such
payment (but such assignment shall be delivered only if payment from the Insurance Paying
Agent is received), (b) receive as designee of the respective Holders (and not as Paying
Agent) in accordance with the tenor of the Policy payment therefor from the Insurance
Paying Agent and (c) disburse the same to such Holders.
(e) Payments with respect to claims for interest on and principal of Series 2004 Bonds
disbursed by the Paying Agent from proceeds of the Policy shall not be considered to discharge the
obligation of the Issuer with respect to such Series 2004 Bonds, and the Insurer shall become the
holder of such unpaid Series 2004 Bonds and claims for the interest in accordance with the tenor of
the assignment made by it under the provisions of this subsection or otherwise.
(f) Irrespective of whether any such assignment is executed and delivered, the Issuer
agrees, and the Paying Agent by acceptance of the duties of Paying Agent hereunder agrees, for the
benefit of the Insurer that:
15
I. they recognize that to the extent the Insurer makes payments, directly or
indirectly (as by paying through the Paying Agent), on account of principal of or interest on
the Series 2004 Bonds, the Insurer will be subrogated to the rights of the Holders of such
Series 2004 Bonds to receive the amount of such principal and interest from the Issuer, with
interest thereon as provided and solely from the sources stated in this Resolution and the
Series 2004 Bonds, and
2. they will accordingly pay to the Insurer the amount of such principal and
interest (including principal and interest recovered under subparagraph (ii) of the first
paragraph of the Policy, which principal and interest shall be deemed past due and not to
have been paid), with interest thereon as provided in this Resolution and the Series 2004
Bonds, but only from the sources and in the manner provided herein and therein for the
payment of principal of and interest on the Series 2004 Bonds to the Holders, and will
otherwise treat the Insurer as the holder of such rights to the amount of such principal and
interest.
(g) The Issuer shall notifY the Insurer of the resignation or removal of the Paying Agent
and the appointment of a successor thereto.
(h) The Issuer shall provide the Insurer with copies of all notices required to be delivered
to Holders ofthe Series 2004 Bonds and, on an annual basis, copies of the Issuer's audited financial
statements and annual budget.
(i) The Issuer shall deliver to Standard & Poor's a copy of any amendment to this
Resolution which amendment has been consented to by the Insurer.
(j) Any notice that is required to be given to an Holder or to the Paying Agent pursuant
to this Resolution shall also be provided to the Insurer. All notices required to be given to the Insurer
pursuant to this Resolution shall be in writing and shall be sent by registered or certified mail
addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504, Attention:
Insured Portfolio Management.
(k) The Issuer agrees to reimburse the Insurer immediately and unconditionally upon
demand, to the extent permitted by law, and only from Pledged Funds available for such purpose,
for all reasonable expenses, including attorneys' fees and expenses, incurred by the Insurer in
connection with (i) the enforcement by the Insurer of the Issuer's obligations, or the preservation or
defense of any rights of the Insurer, under this Resolution and any other document executed in
connection with the issuance ofthe Series 2004 Bonds, and (ii) any consent, amendment, waiver or
other action with respect to the Resolution or any related document, whether or not granted or
approved, together with interest on all such expenses from and including the date incurred to the date
of payment at Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law,
whichever is less. In addition, the Insurer reserves the right to charge a fee in connection with its
review of any such consent, amendment or waiver, whether or not granted or approved.
(I) The Issuer agrees not to use the Insurer's name in any public document, other than this
Resolution and the closing documents for the Series 2004 Bonds, including, without limitation, a
press release or presentation, announcement or forum without the Insurer's prior consent. In the event
the Issuer is advised by counsel that it has a legal obligation to disclose the Insurer's name in any
16
press release, public announcement or other public document, the Issuer shall provide the Insurer
with at least three (3) Business Days' prior written notice of its intent to use the Insurer's name
together with a copy of the proposed use of the Insurer's name and of any description of a transaction
with the Insurer and shall obtain the Insurer's prior consent as to the form and substance of the
proposed use of the Insurer's name and any such description.
(m) The Issuer shall not enter into any agreement nor shall it consent to or participate in
any arrangement pursuant to which Series 2004 Bonds are tendered or purchased for any purpose
other than the redemption and cancellation or legal defeasance of the Series 2004 Bonds without the
prior written consent ofthe Insurer.
SECTION 2.09. Execution and Deliverv of the Series 2004 Bonds. The Chair is hereby
authorized and directed on behalf of the Agency to execute the Series 2004 Bonds as provided
herein, and such officials are hereby authorized and directed upon the execution of the Series 2004
Bonds in the form and manner set forth herein to deliver the Series 2004 Bonds in the amount
authorized to be issued hereunder to the Registrar for authentication and delivery to or upon the order
of the Original Purchaser upon payment of the purchase price set forth herein.
SECTION 2.10. Insurance Commitments. The Agency accepts the Commitment to
Issue a Financial Guaranty Insurance Policy, dated November 30, 2004, issued by MBIA Insurance
Corporation. The Executive Director is authorized to execute, on behalf of the Agency, the
Commitment.
SECTION 2.11. Execution of Bonds. The Bonds shall be executed in the name of the
Agency with the manual or facsimile signature of the Chair. In case anyone or more of the officers
who shall have signed any of the Bonds or whose facsimile signature shall appear thereon shall cease
to be such officer of the Agency before the Bonds so signed have been actually sold and delivered,
such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the
person who signed such Bonds had not ceased to hold such office. Any Bond may be signed on
behalf of the Agency by such person who at the actual time of the execution of such Bond shall hold
the proper office of the Agency, although at the date of such Bond such person may not have held
such office or may not have been so authorized. The Agency may adopt and use for such purposes
the facsimile signatures of any such persons who shall have held such offices at any time after the
date of the adoption of this Resolution, notwithstanding that either or both shall have ceased to hold
such office at the time the Bonds shall be actually sold and delivered.
SECTION 2.12. Authentication. No Bond of any Series shall be secured hereunder or
entitled to the benefit hereof or shall be valid or obligatory for any purpose unless there shall be
manually endorsed on such Bond a certificate of authentication by the Registrar or such other entity
as may be approved by the Agency for such purpose. Such certificate on any Bond shall be
conclusive evidence that such Bond has been duly authenticated and delivered under this Resolution.
The form of such certificate shall be substantially in the form provided in Section 2.15 hereof.
SECTION 2.13. Bonds Mutilated. Destroved. Stolen or Lost. In case any Bond shall
become mutilated, or be destroyed, stolen or lost, the Agency may, in its discretion, issue and deliver,
and the Registrar shall authenticate, a new Bond of like tenor as the Bond so mutilated, destroyed,
stolen or lost, in exchange and substitution for such mutilated Bond upon surrender and cancellation
of such mutilated Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon
17
the Holder furnishing the Agency and the Registrar proof of such Holder's ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and conditions as the
Agency or the Registrar may prescribe and paying such expenses as the Agency and the Registrar
may incur. All Bonds so surrendered or otherwise substituted shall be cancelled by the Registrar. If
any of the Bonds shall have matured or been called for redemption or be about to mature, instead of
issuing a substitute Bond, the Agency may pay the same or cause the Bond to be paid, upon being
indemnified as aforesaid, and if such Bond be lost, stolen or destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section 2.13 shall constitute original,
additional contractual obligations on the part of the Agency whether or not the lost, stolen or
destroyed Bond be at any time found by anyone, and such duplicate Bond shall be entitled to equal
and proportionate benefits and rights as to lien on the Pledged Funds to the same extent as all other
Bonds issued hereunder and shall be entitled to the same benefits and security as the Bond so lost,
stolen or destroyed.
SECTION2.14. Negotiabilitv. Interchangeabilitv and Transfer. The Bonds issued under
this Resolution shall be and have all the qualities and incidents of negotiable instruments under the
laws of the State of Florida, subject to the provisions for registration and transfer contained in this
Resolution and in the Bonds. So long as any of the Bonds shall remain Outstanding, the Registrar
shall keep on behalf of the Agency books for the registration and transfer of the Bonds.
Upon surrender thereof at the office of the Registrar with a written instrument of transfer
satisfactory to the Registrar, duly executed by the Holder thereof or such Holder's attorney-in-fact
duly authorized in writing, Bonds may, at the option of the Holder thereof, be exchanged for an equal
aggregate principal amount of registered Bonds of the same Series and maturity of any other
authorized denominations.
Each Bond shall be transferable only upon the books of the Agency, at the office of the
Registrar, under such reasonable regulations as the Agency may prescribe, by the Holder thereof in
person or by such Holder's attorney-in-fact duly authorized in writing upon surrender thereof together
with a written instrument of transfer satisfactory to the Registrar duly executed and guaranteed by
the Holder or such Holder's duly authorized attorney-in-fact. Upon the transfer of any such Bond,
the Agency shall issue, and cause to be authenticated, in the name of the transferee a new Bond or
Bonds of the same aggregate principal amount and Series and maturity as the surrendered Bond.
The Agency, the Registrar and any Paying Agent or fiduciary of the Agency shall deem and
treat the Person in whose name any Outstanding Bond shall be registered upon the books of the
Agency 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, premium, if any, and interest on
such Bond and for all other purposes, and all such payments so made to any such Holder or upon
such Holder's 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 Agency nor the Registrar nor any Paying
Agent or other fiduciary of the Agency shall be affected by any notice to the contrary.
The Registrar, in any case where it is not also the Paying Agent in respect to any Series of
Bonds, shall forthwith (a) following the 15th day of the calendar month next preceding an Interest
Payment Date for such Series, (b) following the 15th day next preceding the date of first mailing of
notice of redemption of any Bonds of such Series, and (c) at any other time as reasonably requested
18
by the Paying Agent of such Series, certifY and furnish to such Paying Agent the names, addresses
and holdings of Bondholders and any other relevant information reflected in the registration books.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is exercised,
the Agency shall execute and the Registrar shall authenticate and deliver such Bonds in accordance
with the provisions of this Resolution. Execution of Bonds by the Chair for purposes of exchanging,
replacing or transferring Bonds may occur at or after the time of the original delivery of the Series
of which such Bonds are a part. All Bonds surrendered in any such exchanges or transfers shall be
cancelled by the Registrar. For every such exchange or transfer of Bonds, the Agency or the Registrar
may make a charge sufficient to reimburse it for any tax, fee, expense or other governmental charge
required to be paid with respect to such exchange or transfer. The Agency and the Registrar shall not
be obligated to make any such exchange or transfer of any Bonds which shall have been selected for
redemption or, in the case of any proposed redemption of Bonds, during the fifteen (15) days next
preceding the date of selection of Bonds to be redeemed.
SECTION 2.15. Form of Bonds. Except for Capital Appreciation Bonds and Variable
Rate Bonds, the form of which shall be provided by Supplemental Resolution, the Bonds shall be
in substantially the following form with such omissions, insertions and variations as may be
necessary and/or desirable and approved by the Chair prior to the issuance thereof (which necessity
and/or desirability and approval shall be evidenced conclusively by the Agency's delivery of the
Bonds to the purchaser or purchasers thereof):
[This space intentionally blank]
19
No.R
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY
TAX INCREMENT REVENUE BOND, SERlES_
Date of
Interest Rate Maturity Date Original Issue CUSIP
% '- ,-
Registered Holder:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the Boynton Beach Community
Redevelopment Agency (the "Agency"), a public body corporate and politic created and existing
under and by virtue of the laws ofthe State of Florida, for value received, hereby promises to pay,
solely from the sources of payment hereinafter described, to the Registered Holder identified above,
or registered assigns as hereinafter provided, the Principal Amount identified above on the Maturity
Date identified above, subject to prior redemption as hereinafter provided, together with interest on
such Principal Amount from the Date of Original Issue identified above or from the most recent
interest payment date to which interest has been paid, at the Interest Rate per annum (calculated on
the basis of a 360-day year of twelve 30-day months) identified above on_ and _of each year
commencing_,_ until such Principal Amount shall have been paid or provided for.
Such Principal Amount and interest and the premium, if any, on this bond are payable
in any coin or currency of the United States of America which, on the respective dates of payment
thereof, shall be legal tender for the payment of public and private debts. Such Principal Amount and
the premium, if any, on this bond, are payable when due upon presentation and surrender hereof at
the principal office of_,_, _, as paying agent, or such other paying agent as the Agency
shall hereafter duly appoint (the "Paying Agent"). Payment of each installment of interest shall be
made to the person in whose name this bond shall be registered on the registration books of the
Agency maintained by_, _,_, as registrar, or such other registrar as the Agency shall
hereafter duly appoint (the "Registrar"), at the close of business on the date which shall be the 15th
day (whether or not a Business Day) of the calendar month next preceding each interest payment date
and shall be paid by a check or draft of the Paying Agent mailed to such Registered Holder at the
address appearing on such registration books or, in the case of a Holder of at least $500,000 principal
amount of Bonds (or of all Bonds if less than $500,000 shall be unpaid), and at the written request
and expense of such Registered Holder, by bank wire transfer for the account of such Holder. In the
event interest payable on this bond is not punctually paid or duly provided for by the Agency on such
interest payment date, payment of each installment of such defaulted interest shall be made to the
person in whose name this bond shall be registered at the close of business on a special record date
for the payment of such defaulted interest as established by notice sent by the Agency to such
Registered Holder not less than ten (10) days preceding such special record date.
20
This bond is one of an authorized issue of bonds of the Agency in the aggregate principal
amount of$_ (the "Bonds") of like date, tenor and effect, except as to maturity date, interest rate,
denomination and number, issued under the authority of and in full compliance with the Constitution
and laws of the State of Florida, particularly Chapter 163, Part III, Florida Statutes and other
applicable provisions of law (the "Act"), and a resolution duly adopted by the Board of
Commissioners of the Agency on December 6, 2004, as amended and supplemented (the
"Resolution"), and is subject to all the terms and conditions of the Resolution.
The principal of, a premium, if any, and interest on this bond are payable solely from and
secured by a pledge of the Pledged Funds, as defined in and in the manner and to the extent
described in the Resolution. It is expressly agreed by the registered Holder of this bond that the full
faith and credit of the Agency is not pledged to the payment of the principal of, premium, if any, and
interest on this bond and that the registered Holder shall never have the right to require or compel
the exercise of the ad valorem taxing power of the Agency to the payment of such principal,
premium or interest. This bond and the obligation evidenced hereby shall not constitute a lien upon
any property of the Agency, except the Pledged Funds, and shall be payable solely from the Pledged
Funds in accordance with the terms of the Resolution.
(INSERT REDEMPTION PROVISIONS)
Notice of redemption, unless waived, is to be given by the Registrar by mailing an official
redemption notice by first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to the registered holders of the Bonds to be redeemed at such
holders' addresses shown on the registration books maintained by the Registrar; provided, however,
that no defect in any such notice to any registered holder of Bonds to be redeemed nor failure to give
such notice to any such registered holder shall in any manner defeat the effectiveness of a call for
redemption as to all other registered holders of Bonds to be redeemed. Notice of redemption having
been given as aforesaid, the Bonds or portions of Bonds to be redeemed shall, on the redemption
date, become due and payable at the redemption price therein specified, and from and after such date
(unless the Agency shall default in the payment of the redemption price) such Bonds or portions of
Bonds shall cease to bear interest. Any notice of redemption prepared and mailed as provided in the
Resolution shall be conclusively presumed to have been duly given, whether or not the registered
Holder receives the notice.
This bond is transferable in accordance with the terms of the Resolution only upon the books
of the Agency kept for that purpose at the office of the Registrar upon the surrender of this bond
together with a written instrument of transfer satisfactory to the Registrar duly executed by the
Registered Holder or such Holder's attorney duly authorized in writing, and thereupon a new bond
or bonds in the same aggregate principal amount shall be issued to the transferee in exchange
therefor, and upon the payment of the charges, if any, prescribed in the Resolution. The Agency, the
Registrar and any Paying Agent shall treat the Registered Holder of this bond as the absolute owner
hereoffor all purposes, whether or not this bond shall be overdue, and shall not be affected by any
notice to the contrary. The Agency and the Registrar shall not be obligated to make any exchange
or transfer of Bonds during the fifteen (15) days next preceding the date of selection of Bonds to be
redeemed, or to make any exchange or transfer of Bonds selected for redemption.
It is hereby certified and recited that all acts, conditions and prerequisites required to exist,
to happen and to be performed precedent to and in connection with the issuance of this bond, exist,
21
have happened and have been performed, in regular and due form and time as required by the
Constitution and laws of the State of Florida applicable thereto, and that the issuance of the Bonds
does not violate any constitutional or statutory limitations or provisions.
This bond shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Registrar.
IN WITNESS WHEREOF, Boynton Beach Community Redevelopment Agency, has issued
this bond and has caused the same to be executed by the manual or facsimile signature of its Chair
as ofthe_ day of_, 20_
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By
Chair
22
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described in the within-mentioned Resolution.
DATE OF AUTHENTICATION:
By:
Registrar
23
The following abbreviations, when used in the inscription on the face of the within
bond, shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cust.)
Custodian for
under Uniform Transfers to Minors Act of_
(State)
Additional abbreviations may also be used though not in list above.
24
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
_ Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within bond and does hereby irrevocably constitute and appoint
_, as attorneys to register the transfer of the said bond on the books kept for registration thereof with
full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a member firm ofthe STAMP, SEMP
or MSP signature guaranty medallion
program.
NOnCE: The signature to this assignment
must correspond with the name of the
Registered Holder as it appears upon the face
of the within bond in every particular, without
alteration or enlargement or any change
whatever and the Social Security or other
identifying number of such assignee must be
supplied.
SECTION 2.16. The City Guarantv. The Series 2004 Bonds shall not be issued unless
the City shall have executed and delivered to the Paying Agent the Guaranty. If at any time the funds
paid to the Paying Agent by the Agency for the payment of principal of and interest on the Series
2004 Bonds shall be insufficient for such purpose, the Paying Agent shall make demand on the City
pursuant to the Guaranty for such funds. In the event the City shall make payment of principal of or
interest on the Series 2004 Bonds pursuant to the Guaranty, the City shall be subrogated to the rights
of the Holders of such Series 2004 Bonds to such payment, provided that any such rights of the City
shall be subordinate to any rights of the Insurer to the extent that the Insurer shall have made
payments pursuant to the Bond Insurance Policy. In the event the Insurer makes payment pursuant
to the Bond Insurance Policy, any amounts subsequently received by the Paying Agent pursuant to
the Guaranty shall be used to reimburse the Insurer for amounts owed to it.
[End of Article II]
25
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. Privilege of Redemption. Any Series of Bonds may be subject to
redemption prior to maturity in the manner and on such date or dates as specified hereby or by a
Supplemental Resolution adopted prior to the issuance of such Series of Bonds. The terms of this
Article III shall apply to the redemption of Bonds to the extent not modified as to such Bonds by
Supplemental Resolution.
SECTION 3.02. Selection of Bonds to be Redeemed. The Bonds shall be redeemed
only in the principal amount of $5,000 each and integral multiples thereof. For purposes of any
optional redemption of less than all of the Outstanding Bonds of a Series, the amounts of the
particular maturity or maturities to be redeemed shall be selected by the Agency. For purposes of any
redemption of less than all of the Outstanding Bonds of a single maturity, the particular Bonds or
portions of Bonds to be redeemed shall be selected by the Registrar by such method as the Registrar
shall deem fair and appropriate and which may provide for the selection for redemption of Bonds
or portions of Bonds in principal amounts of $5,000 and integral multiples thereof.
Ifless than all of the Outstanding Bonds ofa single maturity are to be redeemed, the Registrar
shall promptly notifY the Agency and Paying Agent (if the Registrar is not the Paying Agent for such
Bonds) in writing of the Bonds or portions of Bonds selected for redemption and, in the case of any
Bond selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 3.03. Notice of Redemption. Unless waived by any Holder of Bonds to be
redeemed, notice of any redemption of Bonds shall be given by the Registrar on behalf of the Agency
by mailing a copy of an official redemption notice by first class mail, postage prepaid, at least thirty
(30) days and not more than sixty (60) days prior to the date fixed for redemption to each Holder of
Bonds to be redeemed at the address of such Holder shown on the registration books maintained by
the Registrar.
Every official notice of redemption shall be filed by the Registrar with the Paying Agent and
shall be dated and shall state:
(I) the redemption date,
(2) the redemption price,
(3) if less than all Outstanding Bonds of a Series or maturity thereof are to be redeemed,
the number (and, in the case of a partial redemption of any Bond, the principal amount) of each Bond
of such Series or maturity to be redeemed,
(4) that on the redemption date the redemption price will become due and payable upon
each such Bond or portion thereof called for redemption, and that interest thereon shall cease to
accrue from and after said date, and
(5) that such Bonds to be redeemed, whether as a whole or in part, are to be surrendered
for payment of the redemption price plus accrued interest at the office of the Paying Agent.
26
A notice of redemption may be conditioned upon the availability of funds to pay the
redemption price of the Bonds to be redeemed on the redemption date or upon satisfaction of other
conditions precedent deemed desirable by the Agency, and in such event, the notice of redemption
shall expressly speciry and state that it is subject to such condition(s). In the event that a conditional
notice of redemption is given and in the event a condition precedent is not satisfied, such Bonds shall
continue to be Outstanding as if such notice had not been given. Provided, however, that in such
event the Registrar shall on behalf of the Agency mail a notice to the Holders of the Bonds subject
to such conditional notice stating that the condition to the call was not satisfied and that the Bonds
shall remain Outstanding.
Prior to any redemption date, the Agency shall deposit with the Paying Agent an amount of
money sufficient to pay the principal of, premium, if any, and interest on all the Bonds or portions
of Bonds which are to be redeemed on that date.
The failure to give any notice of redemption, or any defect therein, shall not affect the validity
of any proceedings for the redemption of any Bond with respect to which no such failure or defect
has occurred. Any notice prepared and mailed as provided in this Section shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
SECTION 3.04. Redemption of Portions of Bonds. Any Bond which is to be redeemed
only in part shall be surrendered at any place of payment specified in the notice of redemption (with
due endorsement by, or written instrument of transfer in form satisfactory to the Registrar duly
executed by, the Holder thereof or such Holder's attorney-in-fact duly authorized in writing) and the
Agency shall execute and the Registrar shall authenticate and deliver to the Holder of such Bond,
without service charge, a new Bond or Bonds, of the same interest rate and maturity, and of any
authorized denomination as requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Bonds so surrendered.
SECTION 3.05. Pavment of Redeemed Bonds. Official notice of redemption having
been given substantially as aforesaid, the Bonds or portions of Bonds to be redeemed shall, on the
redemption date, become due and payable at the redemption price therein specified, and from and
after such date (unless the Agency shall default in the payment of the redemption price) such Bonds
or portions of Bonds shall cease to bear interest. Upon surrender of such Bonds for redemption in
accordance with said notice, such Bonds shall be paid by the Registrar and/or Paying Agent at the
appropriate redemption price, plus accrued interest. Each check or other transfer of funds issued by
the Registrar and/or Paying Agent for the purpose of the payment of the redemption price of Bonds
being redeemed shall bear the CUSIP number identirying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer. Installments of interest due on or prior
to the redemption date shall be payable as herein provided for payment of interest. All Bonds which
have been redeemed shall be cancelled by the Registrar and shall not be reissued.
[End of Article III]
27
ARTICLE IV
SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF
SECTION 4.01. Bonds Not to be Indebtedness of Agencv. The Bonds shall not be or
constitute general obligations or indebtedness of the Agency within the meaning of any constitutional
or statutory provision, but shall be special obligations of the Agency, payable solely from and
secured by a pledge of the Pledged Funds in accordance with the terms of this Resolution. The
Agency may cause any Series of Bonds to be payable from and secured by a Credit Facility or a Bond
Insurance Policy not applicable to anyone or more other Series of Bonds. The Agency may, as
further provided herein, cause one or more Series of Bonds to be payable from one or more
subaccounts in the Reserve Fund, or to not be secured by any subaccount in the Reserve Fund. No
Holder of any Bond or any Credit Bank or any Insurer shall ever have the right to compel the
exercise of the ad valorem taxing power of the Agency to pay such Bond or be entitled to payment
of such Bond from any moneys of the Agency except the Pledged Funds, in the manner provided
herein.
SECTION 4.02. Security for Bonds. The payment of the principal of and interest on
the Bonds shall be secured forthwith equally and ratably by a pledge of the Pledged Funds; provided,
however, a Series of Bonds may be further secured by a Credit Facility or any Bond Insurance Policy
not applicable to anyone or more other Series of Bonds, as shall be provided by Supplemental
Resolution, in addition to the security provided herein. The Agency does hereby irrevocably pledge
the Pledged Funds in the manner provided in this Resolution to the payment of the principal of,
premium, if any, and interest on the Bonds. Provided that if the Agency is not in default in the
performance of its obligations hereunder, the Agency may use any Tax Increment Revenues in
excess of the amount necessary to be used to satisfy the Agency's obligations hereunder for any
lawful purpose of the Agency. The pledge of the Tax Increment Revenues to the Series 2004 Bonds
is on a parity with the pledge thereof to secure payment of the Parity Note. In addition, the pledge
of the Tax Increment Revenues is subordinate to the pledge and assignment thereof pursuant to the
Arches Funding Agreements.
SECTION 4.03. Funds and Accounts. The Agency covenants and agrees to establish
with one or more Authorized Depositories the following separate funds:
(I) "Project Fund" (the "Project Fund"),
(2) "Debt Service Fund" (the "Debt Service Fund"), and
(3) "Reserve Fund" (the "Reserve Fund"), and therein, a "2004 Subaccount" which shall
jointly secure all Series of Bonds, unless under the provisions of the Supplemental
Resolution(s) authorizing one or more Series of Bonds, such Series of Bonds is or are
not to be secured by a subaccount in the Reserve Fund or is or are to be separately
secured by a separate subaccount in the Reserve Fund, in which case a separate
subaccount in the Reserve Fund may secure only such Series of Bonds.
The Agency shall at any time and from time to time appoint one or more Authorized
Depositories to hold, for the benefit of the Agency and/or the Bondholders, anyone or more of the
28
funds and accounts established hereby. Such depository or depositories shall perform at the direction
of the Agency the duties of the Agency in depositing, transferring and disbursing moneys to and from
each of such funds and accounts as herein set forth, and all records of such depository in performing
such duties shall be open at all reasonable times to inspection by the Agency and its agents and
employees.
SECTION 4.04. Proiect Fund. The Agency shall establish within the Project Fund a
separate account for each Series of Bonds the proceeds of which are to be deposited in whole or in
part in the Project Fund. Moneys in each account of the Project Fund, until applied in payment of
any item of the Cost of a Project, shall be held in trust by the Agency and shall be subject to a lien
and charge in favor of the Holders of the Series of Bonds the proceeds of which were deposited in
such account and held for the further security of such Holders.
There shall be paid into the Project Fund the amounts required to be so paid by the provisions
of this Resolution or Supplemental Resolution, and there may be paid into the Project Fund, at the
option of the Agency, any moneys received for or in connection with a Project by the Agency from
any other source.
The Agency may make disbursements or payments from the account in the Project Fund to
pay the Cost of the Project for which such account was established. Promptly after the date of the
completion of a Project, and after paying or making provisions for the payment of all unpaid items
of the Cost of such Project, the Agency shall deposit in the following order of priority any balance
of moneys remaining in the applicable account of the Project Fund in (1) another account of the
Project Fund established in connection with another Series of Bonds for which the Authorized
Agency Officer has stated that there are insufficient moneys present to pay the Cost of the related
Project, (2) one or more subaccounts in the Reserve Fund, to the extent of a deficiency therein, and
(3) (i) the Debt Service Fund or (ii) such other fund or account of the Agency, including those
established hereunder, as shall be determined by the Board of Commissioners, provided the Agency
has received an opinion of Bond Counsel to the effect that such transfer to such other fund or account
shall not adversely affect the exclusion, if any, of interest on the Bonds from gross income for federal
income tax purposes.
SECTION 4.05. Debt Service Fund: Reserve Fund. (A) Subject to Sections 4.01 and
4.02 hereof, the Agency shall deposit into or credit to the Debt Service Fund amounts sufficient to
provide for the payment of principal and interest due on the Bonds as the same shall become due and
payable. Moneys in the Debt Service Fund shall be applied by the Agency to pay the principal of and
interest on the Bonds as and when the same shall become due and payable, or to reimburse a Credit
Bank for amounts drawn for such purpose, and for no other purpose. Subject to Sections 4.0 I and
4.02 hereof, the Agency shall adjust the amount on deposit in the Debt Service Fund no later than
the fifth (5th) day preceding any Interest Payment Date or principal payment date so as to provide
sufficient moneys in the Debt Service Fund to pay the debt service on the Bonds becoming due on
such Interest Payment Date or principal payment date.
(B) If for any reason there shall be a deficiency in any subaccount of the Reserve Fund,
subject to Section 4.01, 4.02 and 4.05(A) hereof, the Agency shall deposit into or credit to each
subaccount of the Reserve Fund such sum, if any, as will be sufficient to restore in not more than 12
months the funds on deposit therein to an amount equal to the Reserve Fund Requirement therefor,
including the reinstatement of any Reserve Fund Insurance Policy or Reserve Fund Letter of Credit
29
on deposit therein or the cash replacement thereof. In the event the amounts available for such
purpose shall be insufficient to make all payments required by the preceding sentence, the available
amount shall be prorated among the various subaccounts in the Reserve Fund in the same proportion
that the Reserve Fund Requirement for each subaccount bears to the total Reserve Fund Requirement
for all such subaccounts. On or prior to each principal payment date and Interest Payment Date for
the Bonds, moneys in each subaccount of the Reserve Fund shall be applied by the Agency to the
payment of the principal of and interest on the Series of Bonds to which such subaccount relates to
the extent moneys in the Debt Service Fund shall be insufficient for such purpose. Whenever upon
valuation (see Section 4.07) of any subaccount of the Reserve Fund there shall be moneys in any
subaccount ofthe Reserve Fund in excess ofthe Reserve Fund Requirement therefor, such excess
moneys shall be deposited by the Agency into the Debt Service Fund.
Upon the issuance of any Series of Bonds, under the terms, limitations and conditions as
herein provided, the Agency may provide for the funding of a subaccount in the Reserve Fund in an
amount equal to the Reserve Fund Requirement, if any, for such Series.
Whenever moneys on deposit in a subaccount of the Reserve Fund, together with the
available amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding Bonds
(including principal and interest thereon) of the Series secured by such subaccount in accordance
with their terms, the funds on deposit in such subaccount may be applied to the payment of such
Series of Bonds.
Notwithstanding the foregoing provisions, with the written consent of each Insurer, if any,
of the Series of Bonds secured thereby, in lieu of the required deposits into a subaccount of the
Reserve Fund, and/or in substitution for money on deposit in a subaccount of the Reserve Fund, the
Agency may, at its sole option and discretion, cause to be deposited a Reserve Fund Insurance Policy
and/or Reserve Fund Letter of Credit in an amount equal to the difference between the Reserve Fund
Requirement applicable thereto and the sums then on deposit in such subaccount of the Reserve
Fund, if any, and, in the case of a substitution of a Reserve Fund Insurance Policy and/or Reserve
Fund Letter of Credit for money on deposit in such subaccount of the Reserve Fund, the Agency may
withdraw money from such subaccount of the Reserve Fund in excess of the Reserve Fund
Requirement and may use such money for any lawful purpose provided the Agency first obtains an
opinion of Bond Counsel that such use is permitted and will not, in and of itself, adversely affect the
exclusion from gross income of interest on any Bonds other than any Taxable Bonds. Such Reserve
Fund Insurance Policy and/or Reserve Fund Letter of Credit shall be payable to the Paying Agent for
such Series (upon the giving of notice as required thereunder) on any interest payment or redemption
date on which a deficiency exists which cannot be cured by funds in any other fund or account held
pursuant to this Resolution and available for such purpose.
Iffive (5) days prior to any date on which principal or interest is due to be paid on the Bonds,
the Agency shall determine that a deficiency exists in the amount of moneys available to pay in
accordance with the terms hereof interest and/or principal due on Bonds on such date, the Agency
shall immediately notifY (a) the issuer of the applicable Reserve Fund Insurance Policy and/or the
Issuer of the Reserve Fund Letter of Credit, and (b) the Insurer, if any, of the amount of such
deficiency and the date on which such payment is due, and shall take all action to cause such Agency
or Insurer to provide moneys sufficient to pay all amounts of principal and interest due on such date.
30
If a disbursement is made from a Reserve Fund Insurance Policy and/or Reserve Fund Letter
of Credit provided pursuant to this Section 4.05(B), the Agency shall reinstate the maximum limits
of such Reserve Fund Insurance Policy and/or Reserve Fund Letter of Credit following such
disbursement from moneys becoming available in the applicable subaccount of the Reserve Fund,
by depositing funds in the amount of the disbursement made under such instrument with the Agency
thereof. In addition, after the amount on deposit in the applicable subaccount ofthe Reserve Fund
equals the Reserve Fund Requirement therefor, the Agency shall reimburse the issuer of the Reserve
Fund Insurance Policy and/or the Issuer of the Reserve Fund Letter of Credit for interest and all
reasonable expenses incurred by such issuer in connection with the draw on such Reserve Fund
Insurance Policy or the Reserve Fund Letter of Credit, as the case may be, if the Agency is so
obligated under the terms of the Reserve Fund Insurance Policy, or Reserve Fund Letter of Credit.
The Agency may evidence its obligation to reimburse the issuer of any Reserve Fund Letter
of Credit or Reserve Fund Insurance Policy by executing and delivering to such issuer a promissory
note or other written evidence thereof, provided, however, any such note or written evidence (a) shall
not be a general obligation of the Agency the payment of which is secured by the full faith and credit
or taxing power of the Agency, and (b) shall be payable solely from moneys available in the
applicable subaccount of the Reserve Fund in accordance with the provisions of this Section 4.05(B).
SECTION 4.06. Rebate Fund. There is hereby ordered established with an authorized
depository a fund to be known as the "Rebate Fund" and therein an account to be known as the
"Series 2004 Account." If so provided by Supplemental Resolution with respect to any Series of
Bonds, the Agency may establish a separate account in the Rebate Fund. Amounts on deposit in any
account in the Rebate Fund shall be held in trust by the Agency and used solely to make required
payments to the United States Treasury (except to the extent the same may be transferred to the Debt
Service Fund) and the Bondholders shall have no right to have the same applied for debt service on
the Bonds. The Agency agrees to undertake all actions required of it pursuant to Section 5.12 hereof,
including, but not limited to:
(1) making a determination in accordance with the Code of the amount necessary to be
deposited in the Rebate Fund;
(2) depositing into the Rebate Fund from Pledged Funds or from other moneys of the
Agency legally available for such purpose the amount determined in clause (1) above;
(3) paying on the dates and in the manner required by the Code to the United States
Treasury from the Rebate Fund and any other legally available moneys of the Agency such amounts
as shall be required by the Code to be rebated to the United States Treasury; and
(4) keeping such records of the determinations made pursuant to this Section 4.06 as shall
be required by the Code, as well as evidence of the fair market value of any investments purchased
with proceeds of the Bonds of the Series of which such accounts were created.
If at any time the Agency shall determine that the amount on deposit in the Rebate Fund
exceeds the amount necessary to be on deposit therein to satisfY the foregoing covenants of the
Agency, the Agency may use all or a portion of the amount on deposit in the Rebate Fund for any
lawful purpose of the Agency.
31
SECTION 4.07. Investments. All funds and accounts hereunder shall be continuously
secured in the manner by which the deposit of public funds are authorized and required to be secured
by the laws of the State. Moneys on deposit in the Reserve Fund, Project Fund, the Rebate Fund and
the Debt Service Fund may be invested and reinvested in Authorized Investments maturing not later
than the date on which the moneys therein will be needed.
Any and all income received by the Agency from the investment of moneys in the funds and
accounts established pursuant to this Resolution shall be retained in such respective fund or account
unless otherwise required by applicable law, provided that income received by the Agency from the
investment of moneys in any subaccount of the Reserve Fund to the extent the amount therein is
greater than the Reserve Fund Requirement shall be deposited in the Debt Service Fund.
Nothing contained in this Resolution shall prevent any Authorized Investments acquired as
investments of or security for funds held under this Resolution from being issued or held in
book-entry form on the books of the Department of the Treasury of the United States.
All investments shall be valued at their fair market values. Amounts in the Reserve Fund
shall be valued on each Interest Payment Date after the payments due on the Bonds on such date
shall have been made.
SECTION 4.08. Separate Accounts. The moneys required to be accounted for in each
of the foregoing funds and accounts established herein may be deposited in a single bank account,
and funds allocated to the various funds and accounts established herein may be invested in a
common investment pool, provided that adequate accounting records are maintained to reflect and
control the restricted allocation of the moneys on deposit therein and such investments for the
various purposes of such funds and accounts as herein provided.
The designation and establishment of the various funds and accounts in and by this
Resolution shall not be construed to require the establishment of any completely independent, self-
balancing funds as such term is commonly defined and used in governmental accounting, but rather
is intended solely to constitute an earmarking of certain revenues for certain purposes and to
establish certain priorities for application of such revenues as herein provided.
[End of Article IV]
32
ARTICLE V
SUBORDINATED INDEBTEDNESS
ADDITIONAL BONDS, AND COVENANTS OF AGENCY
SECTION 5.01. Subordinated Indebtedness. The Agency will not issue any other
obligations, except under the conditions and in the manner provided herein, payable from the
Pledged Funds or voluntarily create or cause to be created any debt, lien, pledge, assignment,
encumbrance or other charge having priority to or being on a parity with the lien thereon in favor of
the Bonds and the interest thereon. The Agency may at any time or from time to time issue evidences
of indebtedness that are not Additional Bonds and that are payable in whole or in part out of the
Pledged Funds and which may be secured by a pledge of the Pledged Funds; provided, however, that
such pledge shall be, and shall be expressed to be, subordinated in all respects to the pledge of the
Pledged Funds created by this Resolution. The Agency shall have the right to covenant with the
holders from time to time of any Subordinated Indebtedness to add to the conditions, limitations and
restrictions under which any Additional Bonds may be issued pursuant to Section 5.02 hereof.
SECTION 5.02. Issuance of Additional Bonds. No Additional Bonds, payable from the
Pledged Funds on a parity with the Bonds then Outstanding pursuant to this Resolution, shall be
issued except upon the conditions and in the manner herein provided. For so long as any Series 2004
Bonds shall be Outstanding, no Variable Rate Bonds may be issued without the prior written consent
of the Insurer of the Series 2004 Bonds. The Agency may issue one or more Series of Additional
Bonds for any purpose permitted by law.
No Additional Bonds shall be issued or incurred unless the following conditions are complied
with:
(A) The Agency shall certify that it is current in all deposits into the various funds and
accounts established hereby and all payments theretofore required to have been deposited or made
by it under the provisions of this Resolution and has complied with the covenants and agreements
of this Resolution.
(B) The Agency shall certifY that the amount of Tax Increment Revenues adjusted as
provided in Section 5.02(E) hereof for the immediately preceding Fiscal Year or any twelve (12)
consecutive months selected by the Agency of the eighteen (18) months immediately preceding the
issuance of such Additional Bonds, as the case may be, minus any payments required to be made
pursuant to the Arches Funding Agreements during such period, equals at least 1.50 times the
Maximum Debt Service Requirement for all Outstanding Bonds, the Parity Note and such Additional
Bonds then proposed to be issued, and that no Event of Default has occurred, or if an Event of
Default has occurred, that it shall have been cured.
(C) In computing the Maximum Debt Service Requirement for purposes of this Section
5.02, the interest rate on outstanding Variable Rate Bonds, and on any additional parity Variable
Rate Bonds then proposed to be issued, shall be deemed to be the greater of (i) the actual rate of
interest borne by such Variable Rate Bonds on the date of calculation and (ii) the lesser of (a) the
Maximum Interest Rate applicable thereto and (b) the average of The Bond Buver 20 Revenue Bond
Index for a period of 52 consecutive weeks selected by the Agency ending not more than sixty days
prior to the date of issuance of such Variable Rate Bonds. In addition, in connection with the
33
issuance of any Variable Rate Bonds, at the time of issuance of such Variable Rate Bonds, the
Maximum Interest Rate applicable thereto shall be established.
(D) For the purposes of this Section 5.02, the phrase "immediately preceding Fiscal Year
or any twelve (12) consecutive months selected by the Agency of the eighteen (18) months
immediately preceding the issuance of such Additional Bonds" shall be sometimes referred to as
"twelve consecutive months."
(E) If the Agency, prior to the issuance of the proposed Additional Bonds but not prior
to the beginning of such twelve consecutive months, shall have expanded the geographic boundaries
of the area from which the Tax Increment Revenues are received, the Tax Increment Revenues for
the twelve consecutive months shall be adjusted to show the Tax Increment Revenues which would
have been derived in such twelve consecutive months if such expanded boundary had been in effect
during all of such twelve consecutive months.
(F) Except as otherwise provided herein, Additional Bonds shall be deemed to have been
issued pursuant to this Resolution the same as the Outstanding Bonds, and all of the other covenants
and other provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall be for the equal benefit, protection and security of the Holders of all Bonds issued
pursuant to this Resolution; provided, however, any Supplemental Resolution authorizing the
issuance of Additional Bonds may provide that any of the covenants herein contained will not be
applicable to such Additional Bonds, provided that such provision shall not, in the opinion of Bond
Counsel, adversely affect the rights of any Bonds which shall then be Outstanding. Except as
expressly provided herein or in a Supplemental Resolution, all Bonds, regardless of the time ortimes
of their issuance, shall rank equally with respect to their lien on the Pledged Funds and their sources
and security for payment therefrom without preference of any Bonds over any other; provided,
however, that the Agency shall include a provision in any Supplemental Resolution authorizing the
issuance of Variable Rate Bonds pursuant to this Section 5.02 that in the event the principal thereof
is accelerated due to such Bonds being held by the issuer of a Credit Facility, the lien of such Bonds
on the Pledged Funds shall be subordinate in all respects to the pledge of the Pledged Funds created
by this Resolution.
(G) In the event any Additional Bonds are issued in whole or in part for the purpose of
refunding any Bonds then Outstanding, the conditions of Section 5.02(B) shall not apply, provided
that the issuance of such Additional Bonds shall not result in an increase in the aggregate amount
of principal of and interest on the Outstanding Bonds becoming due in the current Fiscal Year or any
subsequent Fiscal Years. The conditions of Section 5.02(B) hereof shall apply to Additional Bonds
issued to refund Subordinated Indebtedness and to Additional Bonds issued for refunding purposes
which cannot meet the conditions of this paragraph.
SECTION 5.03. Bond Anticipation Notes. The Agency may issue notes in anticipation
of the issuance of Bonds which shall have such terms and details and be secured in such manner, not
inconsistent with this Resolution, as shall be provided by resolution of the Agency.
SECTION 5.04. Accession of Subordinated Indebtedness to Parity Status with Bonds.
The Agency may provide for the accession of Subordinated Indebtedness to the status of complete
parity with the Bonds, if the Agency shall meet all the requirements imposed upon the issuance of
Additional Bonds by Section 5.02 hereof, assuming, for purposes of said requirements, that such
34
Subordinated Indebtedness shall be Additional Bonds. If the aforementioned conditions are satisfied,
the Subordinated Indebtedness shall be deemed to have been issued pursuant to this Resolution the
same as the Outstanding Bonds, and such Subordinated Indebtedness shall be considered Bonds for
all purposes provided in this Resolution.
SECTION 5.05. Annual Budget. The Agency shall annually prepare and adopt an
Annual Budget in accordance with applicable law. The Agency shall mail copies of such Annual
Budgets and amended Annual Budgets to any Holder who shall file an address with the Executive
Director and request in writing that copies of all such Annual Budgets be furnished to such Holder.
The Agency shall be permitted to make a reasonable charge for furnishing to any Holder such
Annual Budgets.
SECTION 5.06. Redevelopment Trust Fund: Compliance With Laws. The Agency
covenants to deposit all tax increment revenues received by it in the redevelopment trust fund as
required by the Act. The Agency covenants that at the end of each Fiscal Year, any amount in the
redevelopment trust fund that is not to be used for a purpose described in Section 163.387(7)(b) or
(d) shall be set aside in a separate escrow designated within the redevelopment trust fund and used
for a purpose described in Section 163.387(7)(c). The Agency shall comply in all respects with
applicable law, including Chapter 163, Part III, Florida Statutes, and will take all lawful action within
its power to enable and cause it to receive the tax increment revenues as provided in the Act.
SECTION 5.07. Books and Records. The Agency will keep books, records and
accounts of the receipt of the Pledged Funds in accordance with generally accepted accounting
principles, and any Credit Bank, Insurer, or Holder of any Bonds Outstanding or the duly authorized
representatives thereof shall have the right at all reasonable times to inspect all books, records and
accounts of the Agency relating thereto.
The Agency covenants that within one year after the close of each Fiscal Year it will cause
to be prepared and filed with the Executive Director and mailed to all Credit Banks, Insurers and
Holders who shall have filed their names and addresses with the Executive Director for such purpose
a statement setting forth in respect of the preceding Fiscal Year: (A) the amount of the Pledged
Funds received in the preceding Fiscal Year; (B) the total amounts deposited to the credit of each
fund and account created under the provisions of this Resolution; (C) the principal amount of all
Bonds issued, paid, purchased or redeemed; and (D) the amounts on deposit at the end of such Fiscal
Year to the credit of each such fund or account.
SECTION 5.08. Annual Audit. The Agency shall, within one year after the close of
each Fiscal Year, cause the financial statements of the Agency to be properly audited by a recognized
independent firm of certified public accountants, and shall require such accountants to complete their
report of such Annual Audit in accordance with applicable law. A copy of each Annual Audit shall
regularly be furnished to any Credit Bank, to any Insurer and to any Holder who shall have furnished
an address to the Executive Director and requested in writing that the same be furnished to such
Holder. The Agency shall be permitted to make a reasonable charge for furnishing to any Holder
such Annual Audit.
SECTION 5.09. No Impairment. The pledging of the Pledged Funds in the manner
provided herein shall not be subject to repeal, modification or impairment by any subsequent
ordinance, resolution or other proceedings of the Board of Commissioners.
35
SECTION 5.10. Covenants with Credit Banks and Insurers. The Agency may make
such covenants as it may in its sole discretion, determine to be appropriate with any Insurer, Credit
Bank or other financial institution that shall agree to insure or to provide for Bonds of anyone or
more Series credit or liquidity support that shall enhance the security or the value of such Bonds.
Such covenants may be set forth in the applicable Supplemental Resolution and shall be binding on
the Agency, the Registrar, the Paying Agent and all the Holders of Bonds the same as if such
covenants were set forth in full in this Resolution.
SECTION 5.11. Federal Income Tax Covenants; Taxable Bonds.
(A) The Agency covenants with the Holders of each Series of Bonds (other than Taxable
Bonds), that it shall not use the proceeds of such Series of Bonds in any manner which would cause
the interest on such Series of Bonds to be or become includable in the gross income of the Holder
thereof for federal income tax purposes.
(B) The Agency covenants with the Holders of each Series of Bonds (other than Taxable
Bonds) that neither the Agency nor any Person under its control or direction will knowingly make
any use of the proceeds of such Series of Bonds (or amounts deemed to be proceeds under the Code)
in any manner which would cause such Series of Bonds to be arbitrage bonds within the meaning
of Section 148 of the Code, and neither the Agency nor any such other Person shall knowingly do
any act or fail to do any act which would cause the interest on such Series of Bonds to become
includable in the gross income of the Holder thereoffor federal income tax purposes. Specifically,
without intending to limit in any way the generality of the foregoing, the Agency covenants and
agrees:
(I) to pay to the United States of America from amounts in the Rebate Fund and
from any other legally available funds, at the times required pursuant to Section 148(f) of the
Code, the excess of the amount earned on all non-purpose investments (as defined in Section
148(f)(6) of the Code) (other than investments attributed to an excess described in this
sentence) over the amount which would have been earned if such non-purpose investments
were invested at a rate equal to the yield on the Bonds, plus any income attributable to such
excess (the "Rebate Amount");
(2) to maintain and retain all records pertaining to and to be responsible for
making or causing to be made all determinations and calculations of the Rebate Amount and
required payments of the Rebate Amount as shall be necessary to comply with the Code;
(3) to refrain from using proceeds from the Bonds in a manner that would cause
the Bonds or any of them, to be classified as private activity bonds under Section 141(a) of
the Code; and
(4) to take any action that would prevent, and to refrain from taking any action
that would cause, the Bonds, or any of them, to become arbitrage bonds under Section I 03(b)
and Section 148 of the Code.
The Agency understands that the foregoing covenants impose continuing obligations on the
Agency 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.
36
Unless otherwise specified in a Supplemental Resolution, the Agency shall designate a
certified public accountant, Bond Counsel, or other professional consultant having the skill and
expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this
Section regarding the Rebate Amount. Such calculation shall be made in the manner and at such
times as specified in the Code. The Agency shall engage and shall be responsible for paying the fees
and expenses of the Rebate Analyst.
(C) The Agency may, if it so elects, issue one or more Series of Taxable Bonds, the
interest on which is includible in the gross income of the Holder thereoffor federal income taxation
purposes, so long as each Bond of such Series states in the body thereof that interest payable thereon
is subject to federal income taxation and provided that the issuance thereof will not cause the interest
on any other Bonds theretofore issued hereunder to be or become includable in the gross income of
the Holder thereof for federal income tax purposes. The covenants set forth in subsections (A) and
(B) of this Section 5.11 shall not apply to any Taxable Bonds.
SECTION 5.12. NonDresentment of Bonds: DisDosition of Unclaimed Monev. In the
event any Bond shall not be presented for payment when the principal thereof becomes due, either
at maturity, or otherwise, if funds sufficient to pay any such Bond shall have been made available
to any Paying Agent for the benefit of the Holder thereof, all liability of the Agency to the Holder
thereof for the payment of such Bond shall forthwith cease, determine and be completely discharged,
and thereupon it shall be the duty of such Paying Agent to hold such funds, without liability for
interest thereon, for the benefit of the Holder of such Bond, who shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on the part of such Holder under this
Resolution or on, or with respect to, such Bond. Any moneys so deposited with and held by such
Paying Agent for the payment of Bonds not so claimed within seven years after the date the payment
of such Bonds shall have become due, whether at maturity or otherwise, shall be presumed
abandoned and shall be returned to the Agency, and the Agency shall comply with the provisions of
Chapter 717, Florida Statutes, or any successor thereof, in respect of such moneys.
SECTION5.B. Continuing Disclosure ComDliance. The Agency hereby covenants and
agrees that, so long as any of the Series 2004 Bonds remain outstanding, it will provide, in a manner
consistent with Rule 15c2-l2 of the Securities and Exchange Commission (the "Rule") (a) to each
nationally recognized municipal securities information repository ("NRMSlR") and to the
appropriate depository designated by the State of Florida ("SID") if any, (i) on or before one year
after each fiscal year end, financial information and operating data of the Agency, and for so long
as the City is a guarantor of the Series 2004 Bonds pursuant to the Guaranty, of the City, for such
fiscal year ofthe type included in the Official Statement for the Series 2004 Bonds, including, but
not necessarily limited to the operating data contained under the caption "SECURITY AND
SOURCES OF PAYMENT-Tax Increment Revenues and -The City Guaranty" and (ii) if not
submitted as part of the annual financial information pursuant to (i), then, when and if available,
audited financial statements of the Agency, and for so long as the City is a guarantor of the Series
2004 Bonds pursuant to the Guaranty, of the City, prepared in accordance with generally accepted
accounting principles; (b) in a timely manner, to each NRMSIR or the Municipal Securities
Rulemaking Board ("MSRB"), and to the appropriate SID, if any, written notice of the occurrence
of any of the following events with respect to the Series 2004 Bonds, if material: (i) principal and
interest payment delinquencies; (ii) non-payment related defaults; (iii) unscheduled draws on debt
service reserves reflecting financial difficulties; (iv) unscheduled draws on credit enhancements
reflecting financial difficulties; (v) adverse tax opinions, or events affecting the tax-exempt status
37
of the security; (vi) modifications to rights of security holders; (vii) any call of the Series 2004 Bonds
for redemption other than mandatory sinking fund redemptions of Term Bonds; (viii) defeasances;
(ix) release, substitution, or sale of property securing the repayment of the securities; (x) substitution
of credit or liquidity providers, or their failure to perform; (xi) rating changes; (xii) any change in
the fiscal year of the Agency; (c) in a timely manner, to each NRMSIR or the MSRB, and to the
appropriate SID, if any, written notice of a failure of the Agency to provide the financial information
described in (a)(i) above, on or before the date specified above, and (d) any other information
required to be disclosed to any person to whom it is required to be disclosed by the Rule.
Notwithstanding the provisions of the preceding paragraph, any filing under the preceding
paragraph may be made solely by transmitting such filing to the Texas Municipal Advisory Council
(the "MAC") as provided at http://www.disclosureusa.org unless the United States Securities and
Exchange Commission has withdrawn the interpretive advice in its letter to the MAC dated
September 7, 2004.
The Agency also covenants to promptly provide a copy of the above information to the
Paying Agent, each Insurer and the Original Purchaser of the Series 2004 Bonds. The Paying Agent
shall provide such information to any requesting Bondholder of the Series 2004 Bonds and any
requesting Beneficial Owners, provided that the Paying Agent shall be entitled to charge such
requesting Bondholder or Beneficial Owner an amount sufficient to reimburse the itself for costs
incurred for copying and shipping such information.
The foregoing covenants shall run to the benefit of the Series 2004 Bondholders and the
Beneficial Owners. However, failure to meet the covenants set forth in this Section 5.15 shall not
be deemed to constitute an Event of Default or a breach of any other covenant under this Resolution
or any Supplemental Resolution and the sole remedy for such a default or breach shall be as
described in the next paragraph.
The Bondholder of any Series 2004 Bond or any Beneficial Owner may either at law or in
equity, by suit, action, mandamus or other proceeding in any court or competent jurisdiction, protect
and enforce any and all rights granted or contained in this Section 5.14 and may enforce any compel
the performance of all duties required hereby to be performed by the Agency or by any officers
thereof. Notwithstanding the foregoing, the enforcement of the covenants contemplated hereby shall
not affect the validity or enforceability of the Series 2004 bonds.
Notwithstanding any other provision of this Resolution, this Section 5.14 may be amended
only as follows: (a) the amendment may only be made in connection with a change in circumstances
that arises from a change in legal requirements, change in law, or change in the identity, nature or
status of the Agency or the type of business conducted by the Agency; (b) the provisions of this
Section 5.14, as amended, would have complied with the requirements of Rule 15c2-12 of the
Securities and Exchange Commission as in effect as of the date of issuance of the Series 2004
Bonds, after taking into account any amendments or interpretations of the Rule, as well as any
change in circumstances; and (c) the amendment does not materially impair the interest of the Series
2004 Bondholders and/or Beneficial Owners as determined by an opinion of Bond Counsel delivered
to the Agency, or by approving vote of the Beneficial Owners of the Series 2004 Bonds at the time
of the amendment. In the event of any amendment hereto, the annual financial information provided
subsequent to such amendment shall explain, in narrative form, the reasons for the amendment and
the impact of the change in the type of operating data or financial information being provided by the
38
Agency. If the amendment affects the accounting principles to be followed in preparing financial
statements of the Agency, the annual financial information for the year in which the change is made
must present a comparison between the financial statements or information prepared on the basis of
the new accounting principles and those prepared on the basis of the former accounting principles.
The comparison must include a qualitative discussion of the differences in the accounting principles
and the impact of the change in the accounting principles on the presentation of the financial
information, in order to provide information to investors to enable them to evaluate the ability ofthe
Agency to meet its obligations. To the extent reasonably feasible, the comparison should also be
quantitative. A notice ofthe change in the accounting principles must be sent to each NRMSIR or
the MSRB and the appropriate SID. if any.
[End of Article V]
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.0l. Events of Default. The following events shall each constitute an Event
of Default hereunder:
(A) Default shall be made in the payment of the principal of or interest on any Bond when
due.
(B) There shall occur the dissolution or liquidation of the Agency, or the filing by the
Agency of a voluntary petition in bankruptcy, or the commission by the Agency of any act of
bankruptcy, or adjudication of the Agency as bankrupt. or assignment by the Agency for the benefit
of its creditors, or appointment of a receiver for the Agency, or the entry by the Agency into an
agreement of composition with its creditors, or the approval by a court of competent jurisdiction of
a petition applicable to the Agency in any proceeding for its reorganization instituted under the
provisions of the Federal Bankruptcy Act, as amended, or under any similar act in any jurisdiction
which may now be in effect or hereafter enacted.
(C) The Agency shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Bonds or in this Resolution on
the part of the Agency to be performed, other than Section 5.15 hereof, and such default shall
continue for a period of thirty (30) days after written notice of such default shall have been received
from any Insurer or the Holders of not less than twenty-five percent (25%) of the aggregate principal
amount of Bonds Outstanding or any Credit Bank. Notwithstanding the foregoing, the Agency shall
not be deemed in default hereunder if such default cannot be cured within such thirty (30) days, but
can be cured within a reasonable period of time, if the Agency in good faith institutes curative action
and diligently pursues such action until the default has been corrected.
SECTION 6.02. Remedies. Any Holder of Bonds issued under the provisions of this
Resolution or any trustee or receiver acting for such Bondholders may either at law or in equity, by
suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and
enforce any and all rights under the laws of the State, or granted and contained in this Resolution,
and may enforce and compel the performance of all duties required by this Resolution or by any
39
applicable statutes to be performed by the Agency or by any officer thereof. This paragraph shall not
be deemed to be a waiver by the Agency of its venue rights.
Subject to Section 6.07 hereof, upon the occurrence of an Event of Default, the Holders of
not less than a majority in aggregate principal amount of the Bonds then Outstanding may by written
notice to the Agency declare the principal of the Bonds to be immediately due and payable,
whereupon that portion of the principal of the Bonds thereby coming due and the interest thereon
accrued to the date of payment shall, without further action, become and be immediately due and
payable.
The Holder or Holders of not less than a majority in aggregate principal amount of the Bonds
then Outstanding may by a duly executed certificate in writing appoint a trustee for Holders of Bonds
issued pursuant to this Resolution with authority to represent such Bondholders in any legal
proceedings for the enforcement and protection of the rights of such Bondholders and such certificate
shall be executed by such Bondholders or their duly authorized attorneys or representatives, and shall
be filed in the office of the Executive Director. Notice of such appointment, together with evidence
ofthe requisite signatures ofthe Holders of not less than a majority in aggregate principal amount
of Bonds Outstanding and the trust instrument under which the trustee shall have agreed to serve
shall be filed with the Agency and the trustee and notice of appointment shall be given to all Holders
of Bonds in the same manner as notices of redemption are given hereunder. The Holders of not less
than a majority in aggregate principal amount of all the Bonds then Outstanding may remove the
trustee initially appointed and appoint a successor and subsequent successors at any time.
SECTION 6.03. Directions to Trustee as to Remedial Proceedings. The Holders of a
majority in principal amount of the Bonds then Outstanding (or any Insurer insuring, or any Credit
Bank providing a Credit Facility for, any then Outstanding Bonds) have the right, by an instrument
or concurrent instruments in writing executed and delivered to any trustee appointed pursuant to
Section 6.02 hereof, to direct the method and place of conducting all remedial proceedings to be
taken by any trustee hereunder, provided that such direction shall not be otherwise than in
accordance with law or the provisions hereof, and that such trustee shall have the right to decline to
follow any such direction which in the opinion of such trustee would be unjustly prejudicial to
Holders of Bonds not parties to such direction.
SECTION 6.04. Remedies Cumulative. No remedy herein conferred upon or reserved
to the Bondholders is intended to be exclusive of any other remedy or remedies, and each and every
such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute.
SECTION 6.05. Waiver of Default. No delay or omission of any Bondholder to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver of any such default, or an acquiescence therein; and every power and
remedy given by Section 6.02 of this Resolution to the Bondholders may be exercised from time to
time, and as often as may be deemed expedient.
SECTION 6.06. Application ofMonevs After Default. If an Event of Default described
in Section 6.01(A) or (B) shall happen and shall not have been remedied, the Agency or a
court-appointed trustee or receiver shall apply all Pledged Funds as follows and in the following
order:
40
(A) To the payment of the reasonable and proper charges, expenses and liabilities of the
trustee or receiver, Registrar and Paying Agent (if not the Agency) hereunder; and
(B) To the payment of the principal of, premium, if any, and interest then due on the
Bonds, as follows:
(I) Unless the principal of all the Bonds shall have become due and payable, all such
moneys shall be applied:
FIRS T: to the payment to the Persons entitled thereto of all installments of interest
then due, in the order of the maturity of such installments, and, if the amount available shall
not be sufficient to pay in full any particular installment, then to the payment ratably,
according to the amounts due on such installment, to the Persons entitled thereto, without any
discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the unpaid principal of
any of the Bonds which shall have become due at maturity or upon mandatory redemption
prior to maturity (other than Bonds called for redemption for the payment of which moneys
are held pursuant to the provisions of Section 8.01 of this Resolution), in the order of their
due dates, with interest upon such Bonds from the respective dates upon which they became
due, and, if the amount available shall not be sufficient to pay in full Bonds due on any
particular date, together with such interest, then to the payment first of such interest, ratably
according to the amount of such interest due on such date, and then to the payment of such
principal, ratably according to the amount of such principal due on such date, to the Persons
entitled thereto without any discrimination or preference; and
THIRD: to the payment of the principal of and premium, if any, of any Bonds called
for optional redemption pursuant to the provisions of this Resolution.
(2) If the principal of all the Bonds shall have become due and payable, all such moneys
shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds,
with interest thereon as aforesaid, without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over any other installment of interest, or of
any Bond over any other Bond, ratably, according to the amounts due respectively for principal and
interest, to the Persons entitled thereto without any discrimination or preference.
SECTION 6.07. Control bv Insurer or Credit Bank. Upon the occurrence and
continuance of an Event of Default, each Insurer or Credit Bank, if such Insurer or Credit Bank shall
have honored all of its commitments under its Bond Insurance Policy or its Credit Facility, as the
case may be, shall be entitled to direct and control the enforcement of all rights and remedies with
respect to the Bonds it shall insure or for which such Credit Facility is provided.
[End of Article VI]
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ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUDDlemental Resolution Without Bondholders' Consent. Except as
provided herein, subsequent to the issuance of Bonds, no amendment, revision or revocation of this
Resolution shall be enacted by the Agency. The Agency, from time to time and at any time, may
adopt such Supplemental Resolutions without the consent of the Bondholders (which Supplemental
Resolution shall thereafter form a part hereof) for any ofthe following purposes:
(A) To cure any ambiguity or formal defect or omission or to correct any inconsistent
provisions in this Resolution or to clarify any matters or questions arising hereunder.
(B) To grant to or confer upon the Bondholders any additional rights, remedies, powers,
authority or security that may lawfully be granted to or conferred upon the Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of Bonds under
the provisions of this Resolution other conditions, limitations and restrictions thereafter to be
observed.
(D) To add to the covenants and agreements of the Agency in this Resolution other
covenants and agreements thereafter to be observed by the Agency or to surrender any right or power
herein reserved to or conferred upon the Agency.
(E) To specify and determine at any time prior to the first delivery of any Series of Bonds
any matters and things relative to such Bonds which are not contrary to or inconsistent with this
Resolution as theretofore in effect, or to amend, modify or rescind any such authorization,
specification or determination.
(F) To authorize Projects or to change or modify the description of any Project.
(G) To specify and determine matters necessary or desirable for the issuance of Capital
Appreciation Bonds or Variable Rate Bonds.
(H) To authorize Additional Bonds or Subordinated Indebtedness.
(I) To maintain or obtain a rating on any Bonds, to implement or discontinue, if
necessary, a book-entry system of registration of Bonds or to preserve the tax-exempt status of
Bonds.
(J) To make amendments permitted by Section 5.13 hereof.
(K) To make any other change that, in the opinion of Bond Counsel, would not materially
adversely affect the security for the Bonds. In making such determination, Bond Counsel shall not
take into consideration any Bond Insurance Policy.
Except Supplemental Resolutions described in subsections (E), (F), (H) and (J) of this
Section 7.01 in compliance with all applicable provisions hereof, no Supplemental Resolution
42
adopted pursuant to this Article VII shall become effective unless approved by every Insurer; and
the Agency covenants and agrees to furnish to each Insurer an executed original transcript of the
Agency's proceedings with respect to the adoption of each Supplemental Resolution.
SECTION 7.02. Supplemental Resolution With Bondholders'. Insurer's and Credit
Bank's Consent. Except as otherwise provided in Section 7.03 hereof, subject only to the terms and
provisions contained in Section 5.13 hereof and in this Section 7.02, the Holder or Holders of not
less than a majority in aggregate principal amount of the Bonds then Outstanding shall have the right,
from time to time, to consent to and approve the adoption of such Supplemental Resolution or
Resolutions hereto as shall be deemed necessary or desirable by the Agency for the purpose of
supplementing, modifYing, altering, amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Resolution; provided, however, that if such modification or
amendment will, by its terms, not take effect so long as any Bonds of any specified Series or maturity
remain Outstanding, the consent of the Holders of such Bonds shall not be required and such Bonds
shall not be deemed to be Outstanding for the purpose of any calculation of Outstanding Bonds under
this Section 7.02. Any Supplemental Resolution which is adopted in accordance with the provisions
of this Section 7.02 shall also require the written consent of the Insurer of, or any Credit Bank
providing a Credit Facility for, any Bonds which are Outstanding at the time such Supplemental
Resolution shall take effect. Except with the consent of the Holders of all Bonds Outstanding so
affected by such Supplemental Resolution, no Supplemental Resolution may be approved or adopted
which shall permit or require (A) an extension of the maturity of the principal of or the payment of
the interest on any Bond issued hereunder, (B) reduction in the principal amount of any Bond or any
redemption premium or the rate of interest thereon, (C) the creation ofa lien upon or a pledge of the
Pledged Funds which adversely affects the rights granted by the Bonds or this Resolution in favor
of any Bondholders, (D) a preference or priority of any Bond or Bonds over any other Bond or
Bonds, or (E) a reduction in the aggregate principal amount of the Bonds required for consent to such
Supplemental Resolution.
If at any time the Agency shall determine that it is necessary or desirable to adopt any
Supplemental Resolution pursuant to this Section 7.02, the Executive Director shall cause the
Registrar to give notice of the proposed adoption of such Supplemental Resolution and the form of
consent to such adoption to be mailed, postage prepaid, to all Bondholders at their addresses as they
appear on the registration books and to all Insurers of, and Credit Banks providing a Credit Facility
for, Bonds Outstanding. Such notice shall briefly set forth the nature of the proposed Supplemental
Resolution and shall state that copies thereof are on file at the offices ofthe Executive Director and
the Registrar for inspection by all Bondholders. The Agency shall not, however, be subject to any
liability to any Bondholder by reason of its failure to cause the notice required by this Section 7.02
to be mailed and any such failure shall not affect the validity of such Supplemental Resolution when
consented to and approved as provided in this Section 7.02.
Whenever the Agency shall deliver to the Executive Director an instrument or instruments
in writing purporting to be executed by the Holders of not less than the required percentage in
aggregate principal amount of the Bonds then Outstanding, which instrument or instruments shall
refer to the proposed Supplemental Resolution described in such notice and shall specifically consent
to and approve the adoption thereof in substantially the form ofthe copy thereof referred to in such
notice, thereupon, but not otherwise, the Agency may adopt such Supplemental Resolution in
substantially such form, without liability or responsibility to any Holder of any Bond, whether or not
such Holder shall have consented thereto.
43
If the Holders of not less than the required percentage in aggregate principal amount of the
Bonds Outstanding at the time ofthe adoption of such Supplemental Resolution shall have consented
to and approved the adoption thereof as herein provided, no Holder of any Bond shall have any right
to object to the adoption of such Supplemental Resolution, or to object to any of the terms and
provisions contained therein or the operation thereof, or in any manner to question the propriety of
the adoption thereof, or to enjoin or restrain the Agency from adopting the same or from taking any
action pursuant to the provisions thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of this Section
7.02, this Resolution shall be deemed to be modified and amended in accordance therewith, and the
respective rights, duties and obligations under this Resolution of the Agency and all Holders of
Bonds then Outstanding shall thereafter be determined, exercised and enforced in all respects under
the provisions of this Resolution as so modified and amended.
SECTION 7.03. Amendment with Consent of Insurer and/or Credit Bank Only. If all
of a Series of Bonds Outstanding hereunder are insured or secured as to payment of principal and
interest by an Insurer or Insurers and/or by a Credit Facility provided by a Credit Bank or Credit
Banks, and the Insurer or Insurers and/or the Credit Bank or Credit Banks, as applicable, are not in
default, the Agency may enact one or more Supplemental Resolutions amending all or any part of
Articles I, IV, V, VI and VIII hereof with the written consent of said Insurer or Insurers and/or said
Credit Bank or Credit Banks, as applicable, and the acknowledgment by said Insurer or Insurers
and/or said Credit Bank or Credit Banks that its Bond Insurance Policy or its Credit Facility, as the
case may be, will remain in full force and effect. The consent of the Holders of any Bonds shall not
be necessary. The foregoing right of amendment, however, does not apply to any amendment to
Section 5.11 hereof with respect to the exclusion, if applicable, of interest on said Bonds from the
gross income of the Holders thereoffor federal income tax purposes nor may any such amendment
deprive the Holders of any Bond of right to payment of the Bonds from, and their lien on, the
Pledged Funds and any additional security pledged hereunder. Upon filing with the Executive
Director of evidence of such consent of the Insurer or Insurers and/or the Credit Bank or Credit
Banks as aforesaid, the Agency may adopt such Supplemental Resolution. After the adoption by the
Agency of such Supplemental Resolution, notice thereof shall be mailed in the same manner as
notice of an amendment under Section 7.02 hereof.
SECTION 7.04. Required Opinion of Bond Counsel. The Agency shall not adopt a
Supplemental Resolution unless the Agency shall have received an opinion of Bond Counsel to the
effect that such action is permitted hereunder and will not impair the exclusion of the interest on any
Bonds (other than Taxable Bonds) from gross income for federal income tax purposes.
[End of Article VII]
44
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Defeasance. If the Agency shall payor cause to be paid or there shall
otherwise be paid to the Holders of all Bonds the principal, premium, if any, and interest due or to
become due thereon, at the times and in the manner stipulated therein and in this Resolution, then
the pledge of the Pledged Funds and any additional security pledged hereunder, and all covenants,
agreements and other obligations of the Agency to the Bondholders, shall thereupon cease, terminate
and become void and be discharged and satisfied. In such event, the Paying Agents shall pay over
or deliver to the Agency all money or securities held by them pursuant to the Resolution which are
not required for the payment or redemption of Bonds not theretofore surrendered for such payment
or redemption.
Any Bonds or interest installments appertaining thereto, whether at or prior to the maturity
or redemption date of such Bonds, shall be deemed to have been paid within the meaning of this
Section 8.01, and the pledge of the Pledged Funds and any additional security pledged hereunder,
and all covenants, agreements and other obligations of the Agency to the Bondholders of such Bonds
shall thereupon cease, terminate and become void and be discharged and satisfied, if(A) in case any
such Bonds are to be redeemed prior to the maturity thereof, there shall have been taken all action
necessary to irrevocably call such Bonds for redemption and notice of such redemption shall have
been duly given or irrevocable provision shall have been made for the giving of such notice, and (B)
there shall have been deposited in irrevocable trust with a banking institution or trust company by
or on behalf of the Agency either moneys in an amount which shall be sufficient, or non-callable
Defeasance Obligations the principal of and the interest on which when due will provide moneys
which, together with the moneys, if any, deposited with such bank or trust company at the same time
shall be sufficient, to pay the principal of, premium, if any, and interest due and to become due on
said Bonds on and prior to the redemption date or maturity date thereof, as the case may be. Neither
the Defeasance Obligations nor any moneys so deposited with such bank or trust company nor any
moneys received by such bank or trust company on account of principal of, premium, if any, or
interest on said Defeasance Obligations shall be withdrawn or used for any purpose other than, and
all such moneys shall be held in trust for and be applied to, the payment, when due, of the principal
of and, premium, if any, of the Bonds for the payment or redemption of which they were deposited
and the interest accruing thereon to the date of maturity or redemption thereof; provided, however,
the Agency may substitute new Defeasance Obligations and moneys for the deposited Defeasance
Obligations and moneys if the new Defeasance Obligations and moneys are sufficient to pay the
principal of, premium, if any, and interest on such Bonds, and any trust agreement governing the
deposit of such Defeasance Obligations and moneys may provide for the investment of moneys
unclaimed by Bondholders and for the payment to the Agency of such unclaimed moneys and the
investment earnings thereon. For purposes of determining whether Variable Rate Bonds shall be
deemed to have been paid prior to the maturity or the redemption date thereof, as the case may be,
by the deposit of moneys, or specified Defeasance Obligations and moneys, if any, in accordance
with this Section 8.01, the interest to come due on such Variable Rate Bonds on or prior to the
maturity or redemption date thereof, as the case may be, shall be calculated at the Maximum Interest
Rate; provided, however, that if on any date, as a result of such Variable Rate Bonds having borne
interest at less than the Maximum Interest Rate for any period, the total amount of moneys and
specified Defeasance Obligations on deposit for the payment ofinterest on such Variable Rate Bonds
is in excess of the total amount which would have been required to be deposited on such date in
45
respect of such Variable Rate Bonds in order to satisfy this Section 8.01, such excess shall be paid
to the Agency free and clear of any trust, lien, pledge or assignment securing the Bonds or otherwise
existing under this Resolution.
In the event the Bonds for which moneys are to be deposited for the payment thereof in
accordance with this Section 8.01 are not by their terms subject to redemption within the next
succeeding sixty (60) days, the Agency shall cause the Registrar to mail a notice to the Holders of
such Bonds that the deposit required by this Section 8.01 of moneys or Defeasance Obligations has
been made and said Bonds are deemed to be paid in accordance with the provisions of this Section
8.01 and stating such maturity or redemption date upon which moneys are to be available for the
payment of the principal of, premiwn, ifany, and interest on said Bonds, provided, however, that a
failure to mail such notice shall not prevent the defeasance of such Bonds.
Nothing herein shall be deemed to require the Agency to call any of the Outstanding Bonds
for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Agency in determining whether to exercise any such option for early
redemption, but the Agency may waive these rights by Supplemental Resolution.
In the event that the principal of, premiwn, if any, and interest due on the Bonds or any
portion thereof shall be paid by an Insurer or Insurers, a Credit Bank or Credit Banks and/or the
issuer of a Reserve Fund Letter of Credit or Reserve Fund Insurance Policy and such Insurer, Credit
Bank and/or Agency shall not have been reimbursed by the Agency, such Bonds or any portion
thereof shall remain Outstanding, shall not be defeased and shall not be considered paid by the
Agency, and the pledge of the Pledged Funds and any additional security pledged hereunder, and all
covenants, agreements and other obligations of the Agency to the Bondholders shall continue to exist
and such Insurer or Insurers, such Credit Bank or Credit Banks and such issuer shall be subrogated
to the rights of such Bondholders.
SECTION 8.02. Capital Appreciation Bonds. For the purposes of (A) receiving
payment of the redemption price if a Capital Appreciation Bond is redeemed prior to maturity, or
(B) receiving payment of a Capital Appreciation Bond upon an Event of Default, or (C) computing
the amount of Bonds held by the Holder of a Capital Appreciation Bond for purposes of any notice,
consent, request or demand pursuant to this Resolution for any purpose whatsoever, the principal
amount of a Capital Appreciation Bond shall be deemed to be its Accreted Value.
SECTION 8.03. General Authoritv. The members of the Board of Commissioners and
the Agency's officers, attorneys and other agents and employees are hereby authorized to do all acts
and things required of them by this Resolution or desirable or consistent with the requirements
hereof for the full, punctual and complete performance of all of the terms, covenants and agreements
contained in the Bonds and this Resolution, and they are hereby authorized to execute and deliver
all docwnents which shall be required by Bond Counselor the initial purchasers of the Bonds to
effectuate the sale of the Bonds to said initial purchasers.
SECTION 8.04. No Personal Liabilitv. No representation, statement, covenant,
warranty, stipulation, obligation or agreement herein contained, or contained in the Bonds, or in any
certificate or other instrument to be executed on behalf of the Agency in connection with the
issuance of the Bonds, shall be deemed to be a representation, statement, covenant, warranty,
stipulation, obligation or agreement of any member of the Board of Commissioners, officer,
46
employee or agent of the Agency in his or her individual capacity, and none of the foregoing persons
nor any officer of the Agency executing the Bonds or any certificate or other instrument to be
executed in connection with the issuance of the Bonds, shall be liable personally thereon or be
subject to any personal liability or accountability by reason of the execution or delivery thereof.
SECTION 8.05. No Third Party Beneficiaries. Except such other Persons as may be
expressly described herein or in the Bonds, nothing in this Resolution, or in the Bonds, expressed
or implied, is intended or shall be construed to confer upon any Person other than the Agency, any
Insurer, any Credit Bank and the Holders any right, remedy or claim, legal or equitable, under and
by reason of this Resolution or any provision hereof, or of the Bonds, all provision hereof and thereof
being intended to be and being for the sole and exclusive benefit of the Agency, any Insurer, any
Credit Bank and the Persons who shall from time to time be the Holders.
SECTION 8.06. Sale of Bonds. The Bonds shall be issued and sold at public or private
sale at one time or in installments from time to time and at such price or prices as shall be consistent
with the provisions of the Act, the requirements ofthis Resolution and other applicable provisions
of law.
SECTION 8.07. Severability of Invalid Provisions. If anyone or more of the covenants,
agreements or provisions of this Resolution shall 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 separable from the remaining covenants, agreements and
provisions of this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 8.08. ReDeal ofInconsistent Resolutions. All resolutions or parts thereof in
conflict herewith are hereby superseded and repealed to the extent of such conflict.
SECTION 8.09. Table of Contents and Headings not Part Hereof. The Table of
Contents preceding the body of this Resolution and the headings preceding the several articles and
sections hereof shall be solely for convenience of reference and shall not constitute a part of this
Resolution or affect its meaning, construction or effect.
SECTION 8.10. Holidavs: Time. In any case where the date of maturity of interest on
or principal of the Bonds or the date fixed for redemption of any Bonds is not a Business Day, then
payment of principal, premium, if any, or interest need not be made on such date but may be made
on the next succeeding Business Day, with the same force and effect as if made on the date of
maturity or the date fixed for redemption. All references to specified times of day shall be deemed
to refer to the then prevailing time within the jurisdiction of the Agency.
47
SECTION 8.11. Effective Date. This Resolution shall become effective immediately
upon its passage.
PASSED AND ADOPTED THIS 6th DAY OF DECEMBER, 2004.
BOYNTONBEACHCO~TY ~
REDEVELOPMENT AGENCY
By: Q<...... . . d-./~
cy
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:¿ = _ ~.::;;ð --::. -
Agency Attorney
..
48
EXHIBIT A
Terms of the Series 2004 Bonds
(a) Dated Date:
(b) Amounts, Maturities, Interest Payment Dates and Interest Rates:
Maturity
Amount ( J) Interest Rate
$ %
(c) Optional Redemption. The Series 2004 Bonds maturing prior to I, _
are not subject to optional redemption prior to maturity. The Series 2004 Bonds maturing on or
after I,_ are subject to redemption prior to maturity, at the option of the Agency,
from any funds legally available for such purpose, on or after I, _, in whole or in
part on any date, and if in part in any order of maturity selected by the Agency, and by lot within a
maturity if less than an entire maturity is to be redeemed, at the redemption prices (expressed as
percentages of the principal amount of the Series 2004 Bonds to be redeemed) set forth in the table
below, plus accrued interest to the redemption date:
Redemption Dates Redemption
(Inclusive ) Prices
I, _ through '- %
I, _ through '- %
,- and thereafter %
(d) Mandatorv Redemption. The Series 2004 Bonds maturing on l,_(the
"_ Term Bonds") are subject to mandatory redemption in part, on I, _, and on
each thereafter in the years and in the amounts set forth below (except for the final
amount due at maturity, which shall not be a redemption), at a price equal to 100% of the principal
amount of the Series 2004 Bonds being redeemed, plus accrued interest to the redemption date:
A-I
TERM BONDS
Year Amount
$
(Maturity)
The Series 2004 Bonds maturing on I,_(the" Term Bonds") are
subject to mandatory redemption in part, on I. _, and on each _ _ thereafter
in the years and in the amounts set forth below (except for the final amount due at maturity, which
shall not be a redemption), at a price equal to 100% of the principal amountofthe Series 2004 Bonds
being redeemed, plus accrued interest to the redemption date:
TERM BONDS
Year Amount
$
(Maturity)
Ifpriorto any I the Agency shall purchase for cancellation or redeem _ Term
Bonds or _ Terms Bonds in excess of the aggregate mandatory redemption requirement for such
_ Term Bonds or _ Terms Bonds to but not including such _, such excess of
Term Bonds so purchased or redeemed and not previously applied as a credit pursuant to this
paragraph shall be credited over such of the remaining mandatory redemption dates for such_
Term Bonds as the Agency shall determine, and shall reduce the amount of _ Term Bonds or
_ Terms Bonds otherwise subject to redemption and due, respectively, on such date(s). Provided,
however, that no such excess shall be credited to the amount of _ Term Bonds or _ Terms
Bonds subject to mandatory redemption on a particular 1 after the selection of -
Term Bonds or Terms Bonds to be redeemed on such date has been made.
-
A-2
The above-terms of the Boynton Beach Community Redevelopment Agency Tax Increment
Revenue Bonds, Series 2004 are hereby approved pursuant to Resolution No. of the
Agency.
Boynton Beach Community Redevelopment Agency
By:
Its
Date:
A-3
EXHIBIT B
Guaranty Agreement
The City of Boynton Beach, Florida (the "City") makes this Guaranty Agreement (this
"Guaranty"), dated December ~ , 2004, as follows:
1. Guaranty. The City hereby guarantees the full and prompt payment when due, whether by
acceleration or otherwise, of the principal of and interest on the Boynton Beach Community
Redevelopment Agency Tax Increment Revenue Bonds, Series 2004, issued of even date herewith
in the principal amount of $
2. Governing Law. The City further agrees that this Guaranty shall be governed by and
construed in accordance with the laws of the State of Florida and is performable in the State of
Florida.
3. Definitions. Terms used herein and not otherwise defined herein have the meanings ascribed
thereto in Resolution No. _ (the "Resolution"), adopted December 6, 2004, by the Boynton Beach
Community Redevelopment Agency (the "Agency").
4. Termination. This Guaranty may not be amended or terminated by the City for so long as the
Series 2004 Bonds are Outstanding.
5. Financial and Other Information. The City agrees to furnish the Agency with such
information regarding the City as may be requested by the Agency in order to enable the Agency to
comply with its obligations pursuant to Section 5.13 of the Resolution.
6. Guarantor Duties. For so long as Section I hereof is in effect, upon receipt of telephonic
notice, such notice subsequently confirmed in writing by registered or certified mail, or upon receipt
of written notice by registered or certified mail, by the City from the Paying Agent that a debt service
payment required to have been made by the Agency has not been made, the City on the due date of
such payment or within one business day after receipt of notice of such nonpayment, whichever is
later, will pay to the Paying Agent funds sufficient for the payment of any such guaranteed amounts
which are then due, less any amount held by the Paying Agent for the payment of such guaranteed
amounts and legally available therefor. The City acknowledges and agrees to the provisions ofthe
Resolution, including but not limited to Section 2.16 thereof.
7. Limited Obligation. Notwithstanding any other provision of this Guaranty, the City is not and
shall not be liable for the payment of any amount hereunder or for the performance of any obligation
or agreement hereunder from any source other than the "Non-Ad Valorem Revenues" appropriated
for such purpose in the manner and to the extent described in this Section 7. The term "Non-Ad
Valorem Revenues" means all revenues of the City derived from any source other than the exercise
of the ad valorem taxing power of the City, but only to the extent the same may lawfully be used to
make payments hereunder. No person or entity shall have any right to resort to legal or equitable
action or revenues to require or compel the City to make any payment hereunder from any source
other than such Non-Ad Valorem Revenues.
The City covenants that should it be required to make any payment hereunder it will appropriate in
its annual budget, by amendment, if required, from Non-Ad Valorem Revenues, amounts sufficient
to make such payment. In the event that the amount previously budgeted for such purpose at any
time is insufficient to make any payment required to be made hereunder, the City covenants to take
immediate action to amend its budget so as to budget and appropriate an amount from Non-Ad
Valorem Revenues sufficient to make such payment. Such covenant to budget and appropriate from
Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such
Non-Ad Valorem Revenues sufficient to make all required payments have been budgeted,
appropriated and used to make payments required to be made hereunder.
8. Enforcement. This Guaranty may be enforced by the Paying Agent, the Insurer or any
Bondholder, each of which is a beneficiary of the provisions hereof.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed as of the _
day of December, 2004.
CITY OF BOYNTON BEACH, FLORIDA
By:
Its City Manager
G:\023451J6cralguarallly (2).wpd 2