R14-023 11
1 RESOLUTION R14 -023
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
4 BOYNTON BEACH, FLORIDA, APPROVING A TRI -PARTY
5 AGREEMENT RELATED TO THE CITY OF BOYNTON BEACH,
6 i FLORIDA REVENUE BONDS (CHARTER SCHOOLS OF
7 BOYNTON BEACH) SERIES 2012; AND PROVIDING AN
8 EFFECTIVE DATE.
9
10 WHEREAS, the City of Boynton Beach, Florida is a party to an Indenture of Trust (the
11 "Indenture "), dated June 1, 2012, between the City and Regions Bank, as trustee; and
12 WHEREAS, the City Commission has been requested to approve a Tri -Party
13 Agreement pursuant to which the trustee under the Indenture will be changed from Regions
14 Bank to UMB Bank, N.A; and
15 WHEREAS, the City Commission of the City of Boynton Beach upon recommendation
16 of staff, deems it to be in the best interest of the citizens and residents of the City of Boynton
17 Beach to approve and authorize the City Manager to sign a Tri -Party Agreement with Regions
18 Bank and UMB Bank, N.A.
19 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
20 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
21 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
22 being true and correct and are hereby made a specific part of this Resolution upon adoption
23 hereof.
24 Section 2. The Multi -Party Agreement attached hereto as Exhibit A is hereby
25 approved by the City and the City Manager is authorized and directed to execute the same on
26 behalf of the City and the City Clerk is authorized and directed to attest to the same.
27
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11 Section 3. That this Resolution shall become effective immediately upon passage.
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2 PASSED AND ADOPTED this M8 day of March, 2014.
3 CITY OF BOYNTON B ACH, FLORIDA
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9 Commissioner - Mack cCray
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12 Commissio - - avid T. erker
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15 \ ommissioner - i ichael M. "i tzpatrick
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17 �i t ii _ . ■ ' r
18 Vi_ce Mayor - Joe Casello
19 ATTEST:
20
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22 lami _ II.
23 r Ja et M. Prainito, MMC
24 'ity Clerk
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TR1 -PARTY AGREEMENT
This TRI -PARTY AGREEMENT (this "Instrument "), dated as of , 2014,
by and among City of Boynton Beach, Florida (the "Issuer "), Regions Bank (the "Prior
Trustee ") and UMB Bank, N.A., a national banking association duly organized and existing
under the laws of the United States of America (the " Successor Trustee ").
WITNESSETH
WHEREAS, on June 27, 2012 the Issuer approved the Indenture of Trust (the "Indenture ")
providing for the issuance of the City of Boynton Beach, Florida Revenue Bonds (Charter
Schools of Boynton Beach) Series 2012A (the "Series 2012A Bonds) and City of Boynton
Beach, Florida Taxable Revenue Bonds (Charter Schools of Boynton Beach) Series 2012B (the
"Series 2012B Bonds ", together with the Series 2012A Bonds (the "Bonds ")); and
WHEREAS, the Prior Trustee has been acting as Trustee under the Indenture; and
WHEREAS, Section 9.3 (attached as Exhibit 1 hereof) of the Indenture provides that the Trustee
may resign by giving to the Charter School of Boynton Beach, Inc. (the "Company "), the Issuer,
the Notice Beneficial Owners and the Bondholders 90 days' written notice of such resignation;
and
WHEREAS, Section 9.3 of the Indenture further provides that in case the Trustee shall at any
time resign, a successor may be appointed by the owners or Beneficial Owners of a majority in
aggregate principal amount of the Bonds Outstanding by an instrument or concurrent instruments
signed by such owners or Beneficial Owners; and
WHEREAS, Section 9.3 of the Indenture further provides that the successor Trustee shall be
qualified under the provisions of such Section 9.3 of the Indenture; and
WHEREAS, Section 9.3 of the Indenture further provides that any successor Trustee appointed
under the Indenture shall execute, acknowledge and deliver to the Issuer and the Company an
instrument accepting such appointment hereunder, and thereupon such successor shall, without
any further act, deed or conveyance, become vested with all the estates, properties, rights,
powers and trusts of its predecessor in the trust hereunder with like effect as if originally named
as Trustee;
NOW, THEREFORE, pursuant to the Indenture and in consideration of the covenants herein
contained, it is agreed as follows (words and phrases not otherwise defined in this Instrument
having the definitions given thereto in the Indenture):
1. Pursuant to the terms of the Indenture, the Prior Trustee has notified the Issuer on August 29,
2012 that it has resigned as Trustee under the Indenture.
2. Effective as of the date hereof (the "Effective Date "), the Prior Trustee hereby assigns,
transfers, delivers and confirms to the Successor Trustee all of its rights, title, interest under
the Indenture and all of its rights, title, interests, capacities, privileges, duties and
responsibilities as Trustee under the Indenture, except as set forth in paragraph 19 hereof.
3. The Prior Trustee agrees to execute and deliver such further instruments and shall take such
further actions as the Successor Trustee or the Issuer may reasonably request so as to more
fully and certainly vest and confirm in the Successor Trustee all of the rights, title, interests,
capacities, privileges, duties and responsibilities hereby assigned, transferred, delivered and
confirmed to the Successor Trustee, including without limitation, the execution and delivery
of any instruments required to assign all liens in the name of the Successor Trustee.
4. Effective as of the Effective Date, the Successor Trustee hereby accepts its appointment as
successor Trustee under the Indenture and shall be vested with all of the rights, title, interests,
capacities, privileges, duties and responsibilities of the Trustee under the Indenture.
5. The Successor Trustee hereby represents that it is qualified and eligible under the provisions
of Section 9.3 of the Indenture to be appointed Successor Trustee and hereby accepts the
appointment as Successor Trustee and agrees that upon the signing of this Instrument it shall
become vested with all the rights, title, interest, capacities, privileges, duties and
responsibilities of the Prior Trustee with like effect as if originally named as Trustee under
the Indenture.
6. The Prior Trustee shall cause notice of the appointment of UMB Bank, N.A., as Successor
Trustee to be given to the owners of the Bonds.
7. Effective as of the Effective Date, the Successor Trustee shall serve as Trustee as set forth in
the Indenture at its corporate trust office in Kansas City, MO or such other address as may be
specified, where notices and demands to or upon the Company in respect of the Bonds may
be served.
8. The Prior Trustee hereby represents and warrants to the Successor Trustee that:
a) To the best of its knowledge no Event of Default and no event which, after notice or lapse
of time or both, would become an Event of Default has occurred and is continuing under
the Indenture except for the following:
b) No covenant or condition contained in the Indenture has been waived by the Prior Trustee
or to the best of its knowledge by the holders of the percentage in aggregate principal
amount of the Bonds required by the Indenture to effect any such waiver.
c) To the best of its knowledge, there is no action, suit or proceeding pending or threatened
against the Prior Trustee before any court or governmental authority arising out of any
action or omission by the Prior Trustee as Trustee under the Indenture.
d) The Prior Trustee has entered into no other supplement or amendment to the Indenture or
any other document executed by the Prior Trustee in connection with the Bonds.
e) As of the Effective Date, the Prior Trustee holds the balances in accounts established by
it as Trustee under the Indenture in the following amounts : $1,202,104.43. Upon written
instructions from the Successor Trustee to the Prior Trustee, the Prior Trustee will
transfer all balances to the Successor Trustee.
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f) The aggregate principal amount of Bonds outstanding as of the Effective Date is
$8 ,910,000.00.
9. Each of the parties hereto hereby represents and warrants for itself that as of the date hereof,
and the Effective Date:
a) it has power and authority to execute and deliver this Instrument and to perform its
obligations hereunder, and all such action has been duly and validly authorized by all
necessary proceedings on its part; and
b) this Instrument has been duly authorized, executed and delivered by it, and constitutes a
legal, valid and binding agreement enforceable against it in accordance with its terms,
except as the enforceability of this Instrument may be limited by bankruptcy, insolvency
or other similar laws of general application affecting the enforcement of creditor's rights
or by general principles of equity limiting the availability of equitable remedies.
10. The parties hereto agree that this Instrument does not constitute an assumption by the
Successor Trustee of any liability of the Prior Trustee arising out of any actions or inaction
by the Prior Trustee under the Indenture.
11. The parties hereto agree that as of the Effective Date, all references to the Prior Trustee as
Trustee in the Indenture shall be deemed to refer to the Successor Trustee. From and after
the Effective Date, all notices or payments which were required by the terms of the Indenture
and Bonds to be given or paid to the Prior Trustee, as Trustee, shall be given or paid to UMB
at the address below.
12. The resignation, appointment and acceptance effected hereby shall become effective as of the
opening of business on the Effective Date.
13. This Instrument shall be governed by and construed in accordance with the laws of the State
of and Florida.
14. This Instrument may be executed in any number of counterparts, each of which shall be an
original, but which counterparts, shall together constitute but one and the same instrument.
15. Nothing contained in this Instrument shall in any way affect the obligations or rights of the
Company or the Prior Trustee. This Instrument shall be binding upon and inure to the benefit
of the Company, the Prior Trustee and the Successor Trustee and their respective successors
and assigns.
16. All fees paid to the Prior Trustee in advance but unearned for the period from and after the
Effective Date shall be credited to any current fees owed the Prior Trustee with balance, if
any, remitted to the Charter Schools of Boynton Beach. Thereafter, all fees payable
pursuant to Section 9.2 (attached as Exhibit 2 hereof) of the Indenture on and after the
Effective Date shall henceforth be invoiced by and paid to the Successor Trustee at such
address and account as shall hereafter be provided by the Successor Trustee.
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17. Nothing contained in this Instrument shall in any way affect the obligations of the Company
to the Prior Trustee under the Indenture or any lien created thereunder.
18. Notices. All notices, whether faxed or mailed will be deemed received when sent pursuant to
the following instructions:
TO THE PRIOR TRUSTEE:
Regions Bank
Corporate Trust Services
10245 Centurion Parkway, 2 " Floor
Jacksonville, FL 32256
Attention: Vladimir Munoz
Ph# 904 -565 -7970
Fx# 904 -564 -8558
TO THE SUCCESSOR TRUSTEE:
UMB Bank, N.A.
Corporate Trust & Escrow Services Div.
1010 Grand Boulevard, 4th floor
Kansas City, MO 64106
Attention: Doug Hare
Ph # 816- 860 -3006
Fx # 816 - 860 -3029
TO THE ISSUER:
City of Boynton Beach, Florida
100 E. Boynton Beach Blvd
Boynton Beach, FL 33425 -0310
ATTN: Lori LaVerriere, City Manager
Ph# 561- 742 -6010
Fx# 561- 742 -6011
TO THE COMPANY:
Charter Schools of Boynton Beach, Inc.
1425 Gateway Blvd.
Boynton Beach, FL 33426
ATTN: Pamela Owens
Ph# 561- 374 -8989
Fx# 561- 374 -8997
4
19 Deliveries by Prior Trustee. On or before the Effective Date, the Prior Trustee shall deliver
to the Successor and the Company Trustee the following:
A copy of the original transcript of the transaction concerning the issuance of the
Bonds
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed
and attested b their duly authorized officers, all as of the date and year first above written.
‘1" � Y , .
City of Boynton Beach, Florida, as Issuer
FA B y: 4', i;, ,4 x
a;,: , A Tithe.
Att. N.r` -� - ` , triA, - L
ahoy Iv c, , lerk
Approi • as to Form:
k (I , Regions Bank, as Prior Trustee
< a r 1 J/
Ci • Attorn i i
By.
Title: Vice President and Trust Officer
Attest:
UMB Bank, N.A. , as Successor Trustee
By:
Title:
Attest:
Charter Schools of Boyton Beach, Inc..
as Company
By.
Title:
Attest:
5
19. Deliveries by Prior Trustee. On or before the Effective Date, the Prior Trustee shall deliver
to the Successor and the Company Trustee the following:
A copy of the original transcript of the transaction concerning the issuance of the
Bonds
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed
and attested by their duly authorized officers, all as of the date and year first above written.
City of Boynton Beach, Florida, as Issuer
By
Title:
Attest:
City Clerk
Regions Bank, as Prior Trustee
By:
Title: Vice President and Trust Officer
Attest:
UMB Bank, N.A. , as Successor Trustee
By
Title: Sfr.. b r
Attest:
Charter Schools of Boyton Beach, Inc.,
as Company 7
By
Title: ;.'N /C=l` ri4iliveirlc c F(cv72
Attest:
ektirEr-teatiCon a(C..
5
19. Deliveries by Prior Trustee. On or before the Effective Date. the Prior Trustee shall deliver
to the Successor and the Company Trustee the following:
A copy of the original transcript of the transaction concerning the issuance of the
Bonds
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed
and attested by their duly authorized officers. all as of the date and year first above written.
City of Boynton Beach. Florida. as Issuer
By:
Title:
Attest:
City Clerk
Regions Bank, as Prior Trustee
By:
Title: Vice President and Trust Officer
Attest:
UMB Bank, N.A.. as Successor Trustee
By:
Title: .r...: O ,-
Attest:
Charter Schools of Boyton Beach, Inc.,
as Company
By:
Title:
Attest:
5
19. Deliveries by Prior Trustee. On or before the Effective Date, the Prior Trustee shall deliver
to the Successor and the Company Trustee the following:
A copy of the original transcript of the transaction concerning the issuance of the
Bonds
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed
and attested by their duly authorized officers, all as of the date and year first above written.
City of Boynton Beach, Florida, as Issuer
By:
Title:
Attest:
City Clerk
Regions Bank, as Prior Trustee
By:
Title: Vice President and lefficer
Attest:
UMB Bank, N.A. , as Successor Trustee
By:
Title:
Attest:
Charter Schools of Boyton Beach, Inc.,
as Company
By:
Title:
Attest:
5
EXHIBIT 1
Section 9.3 of Trust Indenture
(n) In the event there occurs a conflict of interest arising as the result of the Trustee's
acting as Trustee or in fiduciary capacity with respect to other Indebtedness of the Company, the
Trustee shall appoint a Co- Trustee with respect to the Bonds.
(o) The Trustee shall forward the annual audit and reports of the Company, received
pursuant to Section 8.3 of the Loan Agreement. to the Notice Beneficial Owners within 10 days
of receipt from the Company.
(p) The Trustee shall forward the financial statements and reports and the annual
budget of the Company, received pursuant to Section 8.4 of the Loan Agreement, to the Notice
Beneficial Owners within 10 days of receipt from the Company.
Section 9.2 Fee and Expenses of Trustee. The Trustee shall be entitled to payment
and reimbursement for its reasonable fees for its services rendered hereunder as and when the
same become due and all expenses reasonably and necessarily made or incurred by the Trustee in
connection with such services as and when the same become due as provided in Section 5.1 or
the Loan Agreement. The Trustee shall not be entitled to payment of any expenses it incurs
related to such resignation upon its resignation as Trustee hereunder. The Trustee shall have a
lien on the Trust Estate prior to the lien securing the Bonds for all fees and expenses of the
Trustee provided in this Indenture.
Notwithstanding any provision in this Indenture or the Loan Agreement to the contrary,
any reference or covenant set forth in this Indenture or the Loan Agreement for the payment or
remuneration of (a) the reasonable fees, compensation, charges or remuneration of the Trustee,
or the like. shall be deemed to reference and include Trustee's fees and extraordinary Trustee's
fees including reasonable default fees of Trustee upon the occurrence of an Event of Default
incurred as a result of the administration of the duties of the Trustee hereunder, and
(b) reasonable expenses, costs, out -of- pocket costs, or other reimbursable charges, or the like,
shall be deemed to reference and include reasonable attorney's fees, fees and expenses of
independent contractors or agents incurred in the course of the administration of the duties of the
Trustee hereunder. and other customary and reimbursable expenditures.
Section 9.3 Resignation or Replacement of Trustee. The Trustee may resign by
giving to the Company, the City, the Notice Beneficial Owners and the Bondholders 90 days'
written notice of such resignation, provided, however that no such resignation shall become
effective until a successor has been appointed and has accepted the duties of Trustee. The
present or any future Trustee may be removed at any time by an instrument in writing executed
by the owners or Beneficial Owners of a majority in principal amount of Outstanding Bonds;
provided, however. that no such removal shall become effective until a successor has been
appointed and has accepted the duties of Trustee hereunder.
In case the Trustee shall at any time resign or be removed or otherwise become incapable
of acting. a successor may be appointed by the owners or Beneficial Owners of a majority in
aggregate principal amount of the Bonds Outstanding by an instrument or concurrent instruments
signed by such owners or Beneficial Owners, or their attorneys -in -fact duly appointed; provided
that the Company may appoint a temporary successor until a new successor shall be appointed
by the owners or Beneficial Owners as herein authorized. The Company upon making such
56
temporary appointment shall forthwith give notice thereof to the Bondholders. the Notice
Beneficial Owners, and to the Company, which notice may be given concurrently with the notice
of resignation given by any resigning Trustee. Any temporary successor so appointed by the
Company shall immediately and without further act be superseded by a successor appointed in
the manner above provided by the owners or Beneficial Owners of a majority in aggregate
principal amount of the Bonds Outstanding.
Every successor shall always be a bank or trust company (or a subsidiary thereof) in good
standing. qualified to act hereunder, and having a combined capital, surplus and undivided
profits of not less than $50,000,000. A successor appointed hereunder shall execute,
acknowledge and deliver to the City and the Company an instrument accepting such appointment
hereunder, and thereupon such successor shall. without any further act, deed or conveyance,
become vested with all the estates, properties, rights, powers and trusts of its predecessor in the
trust hereunder with like effect as if originally named as Trustee herein; but the Trustee retiring
shall. nevertheless, on the written demand of its successor. execute and deliver an instrument
conveying and transferring to such successor, upon the trusts herein expressed. all the estates,
properties, rights, powers and trusts of the predecessor, who shall duly assign. transfer and
deliver to the successor all properties and monies held by it under this Indenture. Should any
instrument in writing from the Company be reasonably required by any successor for such
vesting and confirming, the Company shall execute, acknowledge and deliver the said deeds,
conveyances and instruments on the request of such successor.
The notices herein provided for, to be given to the Bondholders, shall be given by
mailing a copy of such notices by first class mail to the Bondholders at their addresses as the
same shall last appear upon the registration books. The notices herein provided for, to be given
to the Notice Beneficial Owners, shall be given by confirmed facsimile to the facsimile numbers
provided to the Trustee. The notice herein provided for to be given to the City, the Company and
the retiring Trustee, shall be given in accordance with Section 11.7 hereof.
The instruments evidencing the resignation or removal of the Trustee and the
appointment of a successor hereunder, together with all other instruments provided for in this
Section, shall be filed and /or recorded by the successor Trustee in each recording office where
this Indenture shall have been filed and /or recorded.
Section 9.4 Conversion, Consolidation or Merger of Trustee. Any bank or trust
company into which the Trustee or its successor may be converted or merged, or with which it
may be consolidated, or to which it may sell or transfer its trust business as a whole shall be the
successor of the Trustee under this Indenture with the same rights, powers, duties and obligations
and subject to the same restrictions, limitations and liabilities as its predecessor, all without the
execution or filing of any papers or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. in case any of the Bonds to be issued hereunder
shall have been authenticated, but not delivered, any successor Trustee may adopt the certificate
of any predecessor Trustee, and deliver the same as authenticated; and, in case any of such
Bonds shall not have been authenticated, any successor Trustee may authenticate such Bonds in
the name of such successor Trustee.
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EXHIBIT 2
Section 9.2 of Trust Indenture
(n) In the event there occurs a conflict of interest arising as the result of the Trustee's
acting as Trustee or in fiduciary capacity with respect to other Indebtedness of the Company, the
Trustee shall appoint a Co- Trustee with respect to the Bonds.
(o) The Trustee shall forward the annual audit and reports of the Company, received
pursuant to Section 8.3 of the Loan Agreement. to the Notice Beneficial Owners within 10 days
of receipt from the Company.
(p) The Trustee shall forward the financial statements and reports and the annual
budget of the Company, received pursuant to Section 8.4 of the Loan Agreement, to the Notice
Beneficial Owners within 10 days of receipt from the Company.
Section 9.2 Fee and Expenses of Trustee. The Trustee shall be entitled to payment
and reimbursement for its reasonable fees for its services rendered hereunder as and when the
same become due and all expenses reasonably and necessarily made or incurred by the Trustee in
connection with such services as and when the same become due as provided in Section 5.1 of
the Loan Agreement. The Trustee shall not be entitled to payment of any expenses it incurs
related to such resignation upon its resignation as Trustee hereunder. The Trustee shall have a
lien on the Trust Estate prior to the lien securing the Bonds for all fees and expenses of the
Trustee provided in this Indenture.
Notwithstanding any provision in this Indenture or the Loan Agreement to the contrary,
any reference or covenant set forth in this Indenture or the Loan Agreement for the payment or
remuneration of (a) the reasonable fees. compensation, charges or remuneration of the Trustee,
or the like, shall be deemed to reference and include Trustee's fees and extraordinary Trustee's
fees including reasonable default fees of Trustee upon the occurrence of an Event of Default
incurred as a result of the administration of the duties of the Trustee hereunder, and
(b) reasonable expenses, costs, out -of- pocket costs, or other reimbursable charges. or the like,
shall be deemed to reference and include reasonable attorney's fees, fees and expenses of
independent contractors or agents incurred in the course of the administration of the duties of the
Trustee hereunder, and other customary and reimbursable expenditures.
Section 9.3 Resignation or Replacement of Trustee. The Trustee may resign by
giving to the Company, the City, the Notice Beneficial Owners and the Bondholders 90 days'
written notice of such resignation, provided, however that no such resignation shall become
effective until a successor has been appointed and has accepted the duties of Trustee. The
present or any future Trustee may be removed at any time by an instrument in writing executed
by the owners or Beneficial Owners of a majority in principal amount of Outstanding Bonds:
provided, however, that no such removal shall become effective until a successor has been
appointed and has accepted the duties of Trustee hereunder.
In case the Trustee shall at any time resign or be removed or otherwise become incapable
of acting, a successor may be appointed by the owners or Beneficial Owners of a majority in
aggregate principal amount of the Bonds Outstanding by an instrument or concurrent instruments
signed by such owners or Beneficial Owners, or their attorneys -in -fact duly appointed; provided
that the Company may appoint a temporary successor until a new successor shall be appointed
by the owners or Beneficial Owners as herein authorized. The Company upon making such
56