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90-QQ03/20/90 Third Draft 2/345/1 3879M/22 RESOLUTION NO. 90-QQ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF $8,369,600 IN AGGREGATE PRINCIPAL AMOUNT OF PUBLIC SERVICE TAX REVENUE BOND ANTICIPATION NOTES OF THE CITY FOR THE PURPOSE OF REFUNDING A CERTAIN JUDGMENT AGAINST THE CITY; PROVIDING THAT SUCH NOTES SHALL CONSTITUTE LIMITED OBLIGATIONS OF THE CITY, AND THAT THE PAYMENT OF THE PRINCIPAL OF AND THE INTEREST ON SUCH NOTES SHALL BE FROM THE PROCEEDS OF THE PUBLIC SERVICE TAX REVENUE BONDS OF THE CITY OR CERTAIN OTHER DESIGNATED REVENUES; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AUTHORIZING THE EXECUTION OF A COMMITMENT LETTER; AWARDING THE SALE OF THE NOTES TO SUNBANK/SOUTH FLORIDA, NATIONAL ASSOCIATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission (the "Governing Body") of the City of Boynton Beach, Florida (the "Issuer") previously adopted Resolution No. 84-TTT on September 5, 1984, as amended and supplemented (the "1984 Resolution"), pursuant to which the Issuer has issued its $4,000,000 Recreational Facilities Revenue Bonds, Series 1984 (the "1984 Bonds"); and WHEREAS, the 1984 Resolution permits the issuance of additional indebtedness secured by and payable from "Designated Revenues" (as defined in the 1984 Resolution, the "1984 Designated Revenues") subject to the terms and conditions of the 1984 Resolution; and WHEREAS, the Governing Body previously adopted Resolution No. 86-XXX on October 21, 1986, as amended, supplemented and restated by Resolution No. 86-ZZZ, adopted October 30, 1986, and Resolution No. 86-EEEE, adopted November 5, 1986 (collectively, the "1986 Resolution"), pursuant to which the Issuer has issued its $11,650,000 Public Service Tax Revenue Bonds, Series 1986 (the "1986 Bonds"); and WHEREAS, the 1986 Resolution permits the issuance of additional indebtedness secured by and payable from "Designated Revenues" (as defined in the 1986 Resolution, the °'Designated Revenues") subject to certain terms and conditions of the 1986 Resolution; and WHEREAS, a judgment (the "Refunded Debt") has been rendered against the Issuer in Case Nos. CL 86-3661 AE and CL 87-1638 AE in the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, Florida; and WHEREAS, pursuant to Resolution No. 90-PP adopted by the Governing Body on March 20, 1990 (the "Bond Resolution"), the Issuer authorized the issuance of its Public Service Tax Revenue Bonds in the aggregate principal amount of not exceeding $10,500,000 for the purpose of providing funds to pay the Refunded Debt; and WHEREAS, it is deemed necessary and advisable and in the best financial interest of the Issuer that it temporarily finance the payment of the Refunded Debt; and WHEREAS, said temporary financing shall be accomplished by the issuance of the Issuer's Public Service Tax Revenue Bond Anticipation Notes, Series 1990A and Series 1990B (the "Notes") in the aggregate principal amounts of $5,151,500 and $3 218 100 respectively; and ' ' ' WHEREAS, the Notes shall be issued in anticipation of the issuance of the Bonds; and WHEREAS, the Governing Body has determined that it is in the best interest of the Issuer to sell the Notes to SunBank/South Florida, National Association pursuant to the terms and provisions of this Resolution. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: SECTION 1. Authority. This Resolution is adopted pursuant to the Charter of the City of Boynton Beach, Florida, the Constitution of the State of Florida, including, but not limited to, Article VIII, Section 2 thereof, and other applicable provisions of law, the 1984 Resolution, the 1986 Resolution and the Bond Resolution. SECTION 2. Definitions. Words in this Resolution importing singular numbers shall include the plural number in each case and vice versa, and words importing persons shall include firms, corporations, or other entities including governments or governmental bodies. As used herein, unless the context otherwise requires: "Act" means the Charter of the Issuer, the Constitution of the State of Florida, including, but not limited to, Article VIII, Section 2, and other applicable provisions of law. "Authorized Depositary" means SunBank/South Florida, National Association, or another bank, trust company, national banking association, savings and loan association, savings bank or other banking association selected by the Issuer as a depositary with the consent of the Holder, which is authorized under Florida law to be a depositary of municipal funds and which has qualified with all applicable state and federal requirements concerning the receipt of funds of the Issuer. "Bond Resolution" means Resolution No. 90-PP of the Issuer adopted by the Governing Body on March 20, 1990, authorizing the issuance of the Bonds. "Bonds" means the City of Boynton Beach, Florida, Public Service Tax Revenue Bonds, authorized to be issued pursuant to the Bond Resolution in one or more series in the aggregate principal amount of not exceeding $10,500,000. "1984 Bonds" shall mean the Issuer's Recreational Facilities Revenue Bonds, Series 1984 issued pursuant to the 1984 Resolution in the original aggregate principal amount of $4,000,000. "1986 Bonds" shall mean the Issuer's Public Service Tax Revenue Bonds, Series 1986 issued pursuant to the 1986 Resolution in the original aggregate principal amount of $11,650,000. -2- 3879M "Clerk" means the City Clerk of the Issuer or any Deputy or Assistant Clerk. "Code" means the Internal Revenue Code of 1986, as amended, and all temporary, proposed or permanent implementing regulations promulgated thereunder or applicable thereto. "Designated Revenues" means defined in the 1986 Resolution. the "Designated Revenues" as "1984 Designated Revenues" means the "Designated Revenues" as defined in the 1984 Resolution° "Determination of Taxability" means any of the following: (a) any Holder receives a written claim or assertion from the Internal Revenue Service, including an agent's report or notice of proposed adjustment, to the effect that interest on a Note is includable in the gross income of the Holder thereof for federal income tax purposes; or (b) the delivery to the Issuer and a Holder of a written opinion of nationally recognized bond counsel to the effect that ii) such interest is included in the gross income of the Holder of the Note for federal income tax purposes under the Code or (ii) such nationally recognized bond counsel cannot render an opinion, without materially qualifying the same (which qualification must be deemed material in the reasonable opinion, of the Holder, the Issuer and their counsel after consultation), to the effect that interest on the Note is excludable from the gross income of the Holder thereof for federal income tax purposes; or (c) interest on a Note is otherwise declared or determined to be includable in the gross income of the Holder thereof for federal income tax purposes by reason of legislation, judgment of a court of competent jurisdiction, or final ruling or regulation of the Internal Revenue Service. "Event of Default" means any of the following events: (a) a failure by the Issuer to pay an installment of interest on any Note when the same shall be due and payable; (b) a failure by the Issuer to pay the principal of any Note when the same shall become due and payable at the stated maturity thereof or upon the maturity thereof by acceleration; (c) a failure by the Issuer to pay an installment of interest or principal on the 1984 Bonds or 1986 Bonds when the same shall be due and payable; -3- 3879M (d) a failure by the Issuer to perform or observe any of the covenants, agreements or conditions on the part of the Issuer contained in this Resolution or in the Notes other than an Event of Default described in (a), (b), (c), (e) or (f) hereof for a period of thirty (30) days after notification to the Issuer by the Holder of such failure; (e) an order or decree shall be entered appointing a receiver or receivers o'f the Issuer or the Designated Revenues, or any part thereof, or the filing of a petition by or against the Issuer for relief under federal bankruptcy laws or any other applicable law or Statute of the United States of America or the State of Florida which filing is not dismissed, vacated or discharged within 30 days after the filing thereof. (f) a failure by the Issuer to pay an installment of principal or interest on any "bonds" (within the meaning of Section 166.101, Florida Statutes) of the Issuer other than the 1984 Bonds, the 1986 Bonds, any industrial development revenue bonds issued pursuant to Part II, Chapter 159, Florida Statutes, or any other "conduit financing" of the Issuer, or any bonds payable from special assessments levied by the Issuer, such as bonds issued pursuant to the Chapter 170, Florida Statutes, when the same shall become due and payable. "Fiscal Year" means the period commencing on October 1 of each year and ending on the succeeding September 30, or such other consecutive 12-month period as may hereafter be designated as the fiscal year of the Issuer pursuant to general law. "Governing Body" means the City Commission of the Issuer. "Holder" shall mean the person who shall be the registered owner of any Note Outstanding under the terms of this Resolution. "Issuer" means the City of Boynton Beach, Florida. "Mayor" means the Mayor or Vice-Mayor of the Issuer or the duly appointed designee of the Mayor. "Note" or "Notes" shall mean the Public Service Tax Revenue Bond Anticipation Notes of the Issuer authorized to be issued pursuant to Section 5 hereof for the purpose of providing funds to satisfy the Refunded Debt-in anticipation of the issuance of the Bonds. "Outstanding" or "Notes Outstanding" means all Notes which have been issued pursuant to this Resolution except Notes cancelled after payment at or prior to maturity. "Refunded Debt" means the certain judgment against the Issuer entered in the Circuit Court of the Fifteenth Judicial Circuit of 14- 3879M Fl'orida, in and for Palm Beach County, Florida, in Case Nos. CL 86-3661 AE and CL 87-1638 AE. "1984 Resolution" shall mean Resolution No. 84-TTT adopted by the Governing Body of the Issuer on September 5, 1984, as amended and supplemented, authorizing the 1984 Bonds. "1986 Resolution" shall mean Resolution No. 86-XXX adopted by the Governing Body of the Issuer on October 21, 1986, as amended, supplemented and restated by Resolution No. 86-ZZZ, adopted on October 30, 1986 and Resolution No. 86-EEEE, adopted on November 5, 1986, authorizing the 1986 Bonds. SECTION 3. Findings and Determinations. ascertained, determined and declared that' It is hereby A. The Refunded Debt is a valid obligation of the Issuer. B. The Issuer has authorized the issuance of the Bonds. C. It is in the best interest of the Issuer, its citizens and taxpayers to issue the Notes in order to provide funds to satisfy a portion of the Refunded Debt. D. The Issuer is authorized under the Act to issue the Notes in anticipation of the issuance of the Bonds to provide funds to refund the Refunded Debt, and the issuance of the Notes is permitted by the 1984 Resolution and the 1986 Resolution. E. The Issuer shall use its best efforts to cause the Bonds to be issued at such time and in such amount as shall provide the Issuer with sufficient funds to pay the principal of and interest on the Notes as the same shall become due and payable. F. It is deemed necessary and desirable to pledge the Designated Revenues to the payment of the principal of and interest on the Notes to the extent set forth herein. No part of the Designated Revenues have been pledged or hypothecated except with respect to the Bonds, the 1984 Bonds, and the 1986 Bonds. The Notes shall be subordinate (i) to the 1984 Bonds as to lien on and source and security for payment from the 1984 Designated Revenues, and (ii) to the 1986 Bonds as to lien on and source and security for payment from the Designated Revenues. -5- 3879M G. The Issuer is not under this Resolution obligated to levy any ad valorem taxes to pay the principal of or interest on the Notes or any other payments required to be made pursuant to this Resolution. SECTION 4. Contract. In consideration of the acceptance of the Notes authorized to be issued hereunder by those who shall hold the same from time to time, this Resolution shall be deemed to be and shall constitute a contract between the Issuer and the Holders of the Notes. The covenants and agreements herein set forth to be performed by the Issuer shall be for the benefit, protection and security of the Holders. SECTION 5. Authority for Issuance of Notes. Subject and pursuant to the provisions hereof, two Notes to be known as "City of Boynton Beach, Florida, Public Service Tax Revenue Bond Anticipation Note, Series 1990A" (the "Series 1990A Note") and "City of Boynton Beach, Florida, Public Service Tax Revenue Bond Anticipation Note, Series 1990B" (the "Series 1990B Note") respectively, are hereby authorized to be issued in the aggregate principal amount of $8,369,600 for the purpose of paying the Refunded Debt. The Series 1990A Note shall be in the principal amount of $5,151,500 and the Series 1990B Note shall be in the principal amount of $3,218,100. SECTION 6. Terms, Redemption and Form of Note. A. The Series 1990A Note shall be numbered RA-1, and the Series 1990B Note shall be numbered RB-1. The principal of the Notes shall be payable when due upon presentation and surrender of the Notes at the office of the Clerk. Interest on the Notes shall be paid to the registered owner of the Notes identified on the registration books maintained by the Clerk at the close of business on the day (whether or not a business day) preceding the interest payment date (the "Record Date"), irrespective of any transfer or exchange of the Notes subsequent to such Record Date and prior to such interest payment date, unless the Issuer shall be in default in payment of interest due on such interest payment date. In the event of any default in payment of interest, such defaulted interest shall be payable to the person in whose name the Notes are registered at the close of business on a special record date for the payment of such defaulted interest as established by notice to the registered owners of the Notes deposited by or on behalf of the Issuer in the U.S. mails, postage prepaid, not less than one day preceding such special record date. Such notice shall be mailed to the persons in whose names -6- 3879M the Notes are registered at the close of business of the Clerk on the fifth day (whether or not a business day) preceding the date of mailing. Payments of principal of and interest on the Notes shall be payable in immediately available funds at or before noon on the due date thereof, and shall be paid by wire transfer, automatic debit, or such other means as is satisfactory to the Clerk and the Holders of the Notes. B. The registration of either Note may be transferred upon the registration books upon delivery thereof to the Clerk accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Clerk, duly executed by the Holder or the Holder's attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of such Note, along with the social security number or federal employer identification number, if any, of such transferee. In all cases of a transfer of a Note, the Issuer shall execute and the Clerk shall at the earliest practical time in accordance with the terms hereof enter the transfer of ownership in the registration books and the Issuer shall execute and the Clerk shall deliver in the name of the transferee a new fully registered Note of the same series as the Note presented fo~ transfer. The Issuer may charge the Holder for the registration of every transfer or exchange of a Note an amount sufficient to reimburse it for any tax, fee or any other governmental charge required (other than by the Issuer) to be paid with respect to the registration of such transfer, and may require that such amounts be paid before any such new Note shall be delivered. C. The Issuer may deem and treat the Holder of any Note as the absolute owner of such Note for the purpose of receiving payment of the principal thereof and the interest thereon. D. The Series 1990A Note shall be issued and delivered on and shall be dated March 23, 1990, shall bear interest from the date thereof, payable on the twenty-third day of each month, commencing April 23, 1990, at the rate of eight and 25/100ths percentum (8.25%) per annum, calculated on the basis of a year of 360 days, for the actual number of days elapsed, and shall mature on March 22, 1991, on which date the principal of and all unpaid interest thereon shall be due and payable. -7- 3879M E. The Series 1990B Note shall be issued and delivered on and shall be dated May 24, 1990, shall bear interest from the date thereof payable on the twenty-third day of each month, commencing June 23, 1990, at the rate of eight and 25/100ths percentum (8.25%) per annum, calculated on the basis of a year of 360 days, for the actual number of days elapsed, and shall mature on March 22, 1991, on which date the principal of and all unpaid interest thereon shall be due and payable; provided, that if the Refunded Debt is satisfied prior to issuance of the Series 1990B Note, then the Series 1990B Note shall not be issued. F. The Notes shall be executed in the name of the Issuer by the Mayor and attested to and countersigned by the Clerk and the seal of the Issuer shall be impressed on the Notes. G. In the event any Note is mutilated, lost, stolen or destroyed, in the absence of notice tS the Issuer that such Note has been acquired by a bona fide purchaser, the Issuer shall execute a new Note of like date, maturity, series, and denomination to that of the mu%ilated, lost, stolen or destroyed Note; provided that, in the case of any mutilated Note, such mutilated Note- shall first be surrendered to the Issuer, and in the case of any lost, stolen or destroyed Note, there first shall be furnished to the Issuer evidence of suCh loss, theft or destruction satisfactory to the Issuer, together with an indemnity satisfactory to the Issuer. In the event any such Note shall have matured or been called for prepayment, instead of issuing a duplicate Note, the Issuer may pay the same without surrender thereof, making such requirements as it deems fit for its protection, including the furnishing of evidence and indemnity the same as in the case of the issuance of a new Note. The Issuer may charge the owner of the Note with its reasonable fees and expenses for such service and any tax or other governmental charge (imposed by a governmental unit other than the Issuer) in connection therewith. Any such duplicate Note shall constitute an original contractual obligation on the part of the Issuer whether or not the mutilated, destroyed, stolen or lost Note be at any time found by anyone, and such duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on, and source of payment of and security for payment from, the funds pledged to the payment of the Note so mutilated, destroyed, stolen, or lost. -8- 3879M H. The Notes are subject to prepayment, in whole or in part, at the option of the Issuer at any time upon the giving of one day's prior notice (written or oral) to the Holder(s) of the Note(s) to be prepaid. Prepayments shall be applied to interest accrued and unpaid and then to principal. I. If the date for payment of the principal of, premium, if any, or interest on the Notes shall be Saturday, Sunday, or legal holiday, then the date for such payment shall be the next succeeding day which is not a Saturday, Sunday, or legal holiday and payment on such day shall have the same force and effect as if made on the nominal date of payment. J. Upon the occurrence of a Determination of Taxability the interest rate on the Notes shall automatically, and without further action of the Issuer or any Holder, and retroactive to the date interest on the Notes first became included in gross income for federal income tax purposes, be the rate of ten percentum (10%) per annum, calculated on the basis of a year of 360 days, for the actual number of days elapsed. K. Upon the occurrence of and during the continuation of an Event of Default described in clauses (a), (b), (C), (d), or (e) of the definition of "Event of Default," the interest rate on the Notes shall automatically, and without further action of the Issuer or any Holder, and retroactive to the effective date of the Event of Default, be the lesser of the maximum rate permitted by law or 15% per annum, calculated on the basis of a year of 360 days for the actual number elapsed. L. Upon the occurrence of an Event of Default described in clauses (a), (b), (c), or (e) of the definition of "Event of Default" the Holder of a Note may, with written notice to the Issuer, declare such Note to be immediately due and payable whereupon the full amount of principal of and interest on the Notes shall immediately become due and payable without further action of Holder. In addition, upon the occurrence of any Event of Default the Issuer agrees to pay, but only from sources pledged to the payment of the Notes, the Holders' costs and reasonable attorney's fees at the trial and appellate levels in the event legal action to enforce payment of the Notes is instituted against the Issuer. -9- 3879M M. The text of the Notes and the form of assignment for the Notes shall be substantially in the following form, with such omissions, insertions and variations as may be necessary or desirable and as may be approved and made by the officials of the Issuer executing the same, such execution to be conclusive eVidence of such approval. -10- 3879M No. R -1 [Form of Note] UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF BOYNTON BEACH, FLORIDA PUBLIC SERVICE TAX REVENUE BOND ANTICIPATION NOTE SERIES 1990_ REGISTERED OWNER: PRINCIPAL AMOUNT: City of Boynton Beach, Florida (hereinafter called the "Issuer"), for value received, hereby promises to pay to the registered owner identified above, or to registered assigns or legal representatives, to the extent and from the sources pledged therefor, as described herein, on March 22, 1991 (or earlier as hereinafter provided), the principal amount of $ , upon presentation and surrender hereof at the office of the Clerk of the Issuer (the "Clerk"), and to pay, to the extent and from the sources herein described, interest on the principal sum from the date hereof, or from the most recent interest payment date to which interest has been paid, at the rate of 8.25% per annum, computed on the basis of a year of 360 days for the actual number of days elapsed, until payment of the principal sum, such interest being payable monthly on the twenty-third day of each month commencing on 23, 1990. Interest will be paid to the registered owner hereof identified on the registration books of the Issuer at the close of business on the day (whether or not a business day) preceding the interest payment date (the "Record Date"), irrespective of any transfer or exchange of this Note subsequent to such Record Date and prior to Such interest payment date, unless the Issuer shall be in default in payment of interest due on such interest payment date. In the event of any default in the payment of interest, such defaulted interest shall be payable to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest as established by notice deposited by the Issuer in the U. S. mails, postage prepaid, to the registered owner of this Note not less than one (i) day preceding such special record date. Such notice shall be mailed to the person in whose name this Note is registered at the close of 'business on the fifth (Sth) day (whether or not a business day) preceding the date of mailing. Payments of principal of and interest on this Note shall be payable in immediately available funds at or before noon on the due date thereof, and shall be paid by wire transfer, automatic debit, or such other means as is satisfactory to the Clerk and the Holder of this Note. -11- 3879M This Note is issued in anticipation of the authorized but unissued public service tax revenue bonds of the Issuer {the "Bonds") authorized to be issued by a resolution duly adopted on March 20, 1990 by the City Commission of the Issuer for the purpose of providing funds to satisfy a judgment rendered against the Issuer, pursuant to the authority of and in full compliance with the Constitution and laws of the State of Florida, including particularly Article VIII, Section 2, the Charter° of the Issuer, and other applicable provisions of law, and Resolution No. adopted by the Issuer on March 20, 1990 (the "Resolution"). This Note is subject to all the terms and conditions of the Resolution, and capitalized terms not otherwise defined herein shall have the same meanings ascribed to them in the Resolution. This Note may be prepaid at the option of the Issuer at any time in whole or in part, upon one day's prior notice by the Issuer to the Holder hereof. Prepayments shall be applied to accrued and unpaid interest and then to principal. Upon the occurrence of a Determination of Taxability the interest rate on this Note shall automatically, and without further action of the Issuer or any Holder, and retroactive to the date interest on this Note first became included in the gross income of the Holder for federal income ta~ purposes, be the rate of ten percentum (10%) per annum, calculated on the basis of s year of 360 days, for the ac%ual number of days elapsed. Upon the occurrence of and during the continuation of an Event of Default described in clauses (a), (b), (c), (d), or (e) of the definition of "Event of Default" in the Resolution, the interest rate on this Note shall automatically, and without further action of the Issuer or any Holder, and retroactive to the effective date of the Event of Default, be the lesser of the maximum rate permitted by law or 15% per annum, calculated on the basis of a year of 360 days for the actual number elapsed. Upon the occurrence of an Event of Default described in clauses (a), (b), (c), or (e) of the definition of "Event of Default" in the Resolution, the Holder may, with written notice to the Issuer, declare this Note to be immediately due and payable whereupon the full amount of principal of and interest on this Note shall immediately become due and payable without further action of Holder. To the extent legally permissible, the Issuer hereby, and the Holders of this Note from time to time by their acceptance hereof thereby, waive the right to a jury trial in any suit, action or proceeding brought by the Issuer against the Holders, or vice versa, in connection with the Resolution, this Note and any agreement contemplated to be executed in conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or written), or other actions of the Issuer or the Holder in connection herewith. -12- 3879M This Note is not a general obligation of the Issuer within the meaning of Article VII, Section 12 of the Constitution of the State of Florida or a pledge of the full faith and credit of the Issuer, but is payable exclusively from and is secured by a first lien upon and pledge of the proceeds o'f the sale of the Bonds. The principal of and interest on this Note is further payable from proceeds received by the Issuer from certain non-ad valorem tax revenue sources, particularly certain Public Service Tax revenues (the "Designated Revenues"). The lien on and right to payment of this Note from the Designated Revenues is subject to the lien thereon and right to payment therefrom in favor of the 1984 Bonds and 1986 Bonds as further described in the Resolution. Reference is made to the Resolution for the provisions, among others, relating to the terms, lien and security for the Note, the rights and remedies of the Holder of this Note, and the extent of and limitations on the Issuer's rights, duties and obligations, to all of which provisions the registered owner hereof assents by acceptance hereof. This Note is and has all the qualities and incidents of an investment security under the Uniform Commercial Code-Investment Securities Law of the State of Florida. The registration of this Note may be transferred upon the registration books of the Issuer upon delivery hereof to the principal office of the Clerk accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Clerkl duly executed by the owner of this Note or by such owner's attorney-in-fact or legal representative, containing written instructions as to the details of transfer of this Note, along with the social security number or federal employer identification number, if any, of such transferee. In all cases of a transfer of this Note, the Clerk shall at the earliest practical time in accordance with the provisions of the Resolution enter the transfer of ownership in the registration books and shall deliver in the name of the new transferee a new Note. The Issuer may charge the owner of this Note for the registration of every transfer or exchange of %his Note an amount sufficient to reimburse it for any tax, fee or any other governmental charges required (other than by the Issuer) to be paid with respect to the registration of such transfer, and may require that such amounts be paid before any such new Note shall be delivered. If the date for payment of the principal of or interest on this Note shall be a Saturday, Sunday or legal holidays then the date for such payment Shall be the next succeeding day which is not a Saturday, Sunday or legal holiday, and payment on such day shall have the same force and effect as if made on the nominal date of payment. -13- 3879M It is hereby certified and recited that this Note is authorized by and is issued in conformity with the requirements of the Constitution and statutes of the State of Florida, that all acts, conditions and prerequisites required to exist, to happen, and to be performed precedent to the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida applicable hereto, and that the issuance of this Note does not violate any constitutional or statutory limitation or provision. IN WITNESS WHEREOF, the City of Boynton Beach, Florida, has issued this Note and has caused the same to be signed by its Mayor and attested and countersigned by its Clerk with their manual signatures, and its seal to be impressed hereon, all as of the day of , 1990. (SEAL) CITY OF BOYNTON BEACH, FLORIDA By: Mayor ATTESTED AND COUNTERSIGNED: By: City Clerk -14- 3879M [Form of Assignment for Note] ASSIGNMENT FOR VALUE "Transferor"), RECEIVED, the undersigned (the hereby sells, assigns and transfers unto (the "Transferee") PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints as attorney to register the transfer of the within Note on the books kept for registration and registration of transfer thereof, with full power of substitution in the premises. -~ Date: Signature Guaranteed: NOTICE: Signature(s) must guaranteed by a member firm of the New York Stock Exchange or a member firm of any other recognized national securities exchange or a commercial bank or a trust company. NOTICE: No transfer will be registered and no new Note will be issued in the name of the Transferee, unless the signature(s) to this assignment correspond(s) with the name as it appears upon the face of the within Nolte in every particular, without alteration or enlarge- ment or any change whatever and the Social Security or Federal Employer Identification Number, if any, of the Transferee, is applied. [End of Form of Note] -15- 3879M SECTION 7. Application of Series 1990A Note Proceeds. The $5,151,500 proceeds received from the sale of the Series 1990A Note shall be applied by the Issuer as follows: Payment of a Portion of the Refunded Debt Payment of Cost of Issuance Deposit to Note Payment Fund (hereinafter established) $4,708,945 $25,500 $417,055 SECTION 8. Application of Series 1990B Proceeds. The $3,218,100 proceeds received from the sale of the Series 1990B Note shall be applied by the Issuer as follows: Payment of a Portion of the Refunded Debt Payment of Cost of Issuanc____e Deposit to Note Payment Fund (hereinafter established) $3,000,000 $ -0- $218,100 SECTION 9. Note Payment Fund. The Issuer hereby orders established with an Authorized Depositary a separate account to be known as the "City of Boynton Beach, Florida, Public Service Tax Revenue Bond Anticipation Notes Payment Fund" (the "Note Payment Fund") into which shall be deposited proceeds of the sale of the Notes in the following amount: Series 1990A Note Series 1990B Note $417,055 $218,100 Withdrawals from the Note Payment Fund shall be made to or at the direction of the Issuer and, except as provided in Section 10 hereof, only for purposes of paying principal and interest on the Notes as the same shall become due and payable. Money in the Note Payment Fund shall be continuously secured in the manner prescribed by the laws of the State of Florida relating to the securing of public funds. Moneys on deposit in the Note Payment Fund may be invested at the direction of the Issuer in investments permitted by the Act, the earnings from any such investments to be retained in the Note Payment Fund. When all amounts to be paid from the Note Payment Fund have been paid in full, any funds remaining in the Note Payment Fund shall be applied as determined by subsequent resolution of the Issuer and the Note Payment Fund shall be closed. Ail moneys deposited in the Note Payment Fund shall be and constitute a trust fund created for the purposes stated herein, and there is hereby created a lien upon the Note Payment Fund in -16- 3879M favor of the Holders of the Notes until the moneys ther>ein have been applied in accordance with this instrument. SECTION 10. Pledqe of Desiqnated Revenues. Upon the occurrence of an Event of Default, the~, pursuant to the authority of Section 507 of the 1986 Resolution, the Issuer shall thereafter on each Deposit Day (as defined in the 1986 Resolution) deposit to the credit of the General Account (as defined in the 1986 Resolution) the balance of the amount on deposit in the Designated Revenue Account (as defined in the 1986 Resolution) after making the payments and deposits under clauses (a) and (b) of Section 503 of the 1986 Resolution, in such amounts as shall be sufficient to pay principal of and interest on the Notes. Pursuant to the authority of Section 507 (ii) of the 1986 Resolution, immediately upon deposit of funds to the General Account pursuant to the 1986 Resolution, the Issuer shall without further authorization transfer all such moneys to the Note Payment Fund established hereunder until the Notes shall have been paid in full. If the Notes are not paid when due the Holders of the Notes shall have a lien on and pledge of all amounts as shall be deposited to the General Account, provided that until the occurrence of an Event of Default, amounts in the General Account may be applied for any lawful purpose of the Issuer and shall not be encumbered by the lien on and pledge of such amounts as provided in this Resolution. The Issuer hereby covenants that until the Notes are paid it shall not issue any other obligations payable from the Designated Revenues, with the exception of the Bonds or other obligations of the Issuer issued for the purpose of paying the Notes. The Issuer hereby covenants that upon the occurrence of an Event of Default described in clause (a), (b), (c) or (f) of the definition of "Event of Default," the Issuer will designate one or more other non-ad valorem revenue source(s) lawfully available for such purpose which shall thereafter be subject to a lien and pledge to secure payment of the Notes and which shall be in an amount sufficient to cause the Designated Revenues, together with such pledged revenues, to be sufficient to pay the principal of and interest on the Notes. SECTION 11. Compliance with Tax Requirements. The Issuer hereby covenants and agrees, for the benefit of the owners from time to time of the Notes, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest on the Notes from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the Issuer covenants and agrees: (1) to pay to the United States of America from, to the extent legally available, -17- 3879M the funds and sources of revenues pledged to the payment of the Notes, 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 Notes, 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 Notes in a manner that would cause the Notes to be classified as private activity bonds under Section 14I(a) of the Code; and (4) to refrain from taking any action that would cause the Notes to become arbitrage bonds under Section 103(b) and Section 148 of the Code. The Issuer understands that the foregoing covenants impose continuing obligations on the Issuer to comply with the requirements of Section 103 and Part EV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. SECTION 12. Issuance of Bonds. The Issuer does hereby covenant and agree that it will pay and retire all of the principal of and any unpaid interest on the Notes from the first proceeds of the Bonds when the same have been sold and delivered to the extent that such principal and interest has not been paid from any other moneys of the Issuer which are lawfully used for such purpose. The Issuer will use its best efforts to cause the Bonds to be issued in such time and in such amount as shall provide funds sufficient to satisfy the principal and interest requirements of the Notes. SECTION 13. Sale of the Notes. The Notes are hereby awarded and sold to SunBank/South Florida, National Association in accordance with the terms and provisions of this Resolution. The Issuer is hereby authorized to execute the Commitment Letter between the Issuer and SunBank/South Florida, National Association -18- 3879M (the "Bank"), pursuant to which, among other matters, the Bank commits to purchase the Notes in accordance with the provisions thereof and hereof. SECTION 14. Modification. or Amendment. This Resolution may be modified and amended by the Issuer from time to time prior to the issuance of the Notes. Thereafter, no modification or amendment of this Resolution may be made without the consent in writing of the Holder. The Issuer hereby covenants with the Holders of the Notes that it will not, without the written consent of the Holders, enact any ordinance or resolution which repeals, impairs or amends in any manner this Resolution or otherwise adversely affects any rights of such Holders with respect to payment and source of security of the Notes, except as provided herein. SECTION 15. Severability. If any one or more of the covenants, agreements or provisions of this Resolution shall be held contrary to any express provisions 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 separate from the remaining covenants, agreements or provisions of this Resolution or of the Notes issued hereunder. SECTION 16. No Third Party Beneficiaries. Except as herein otherwise expressly provided, nothing in this Resolution expressed or implied is intended or shall be construed to confer upon any person, firm or corporation other than the parties hereto and the owners and holders of the Notes issued under and secured by this Resolution, any right, remedy or claim, legal or equitable, under or by reason of this Resolution or any provision hereof, this Resolution and all its provisions being intended to be and being for the sole and exclusive benefit of the parties hereto and the owners and holders from time to time of the Notes issued hereunder. SECTION 17. Controllinq Law; Members of Governinq Body of Issuer Not Liable. All covenants, stipulations, obligations and agreements of the Issuer contained in this Resolution shall be deemed to be covenants, stipulations, obligations and agreements of the Issuer to the full extent authorized by the Act. No covenant, stipulation, obligation or agreement contained herein shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future member, agent or employee of the Governing Body or the Issuer in his or her individual capacity, and neither the members of the Governing Body nor any official executing the Notes or this Resolution or .shall be subject to any personal liability or accountability by reason of the issuance of the Notes. -19- 3879M SECTION 18. Waiver of Jury Trial. To the extent legally permissible, the Issuer hereby, and the Holders of the Notes from time to time by their acceptance thereof thereby, waive the right to a jury trial in any suit, action or proceeding brought by the Issuer against the Holders, or vice versa, in connection with this Resolution or the Notes, and any agreement contempleted to be executed in conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or written), or other actions of the Issuer or the Holder in connection herewith. SECTION 19. Indemnification. To the extent legally permissible, the Issuer agrees that if any suit, action or proceeding shall be brought in any manner challenging the legality of the adoption of this Resolution or the consummation of the transactions contemplated hereby, including the issuance of the Notes, the Issuer shall indemnify and hold the Holder of the Notes, for so long as the Holder of the Notes shall be SunBank/South Florida, National Association, harmless from any and all liability incurred in connection with such suit, action or proceeding, including reasonable attorneys' fees and expenses, excepting any liability ajudicated to have been caused by the Holder's own negligence or willfull misconduct, and further provided that such indemnification shall be limited to lawfully. available revenues of the Issuer derived from sources other than ad-valorem taxation. SECTION 20. Authorizations. The members of the Governing Body, and all other appropriate officers, employees and agents of the Issuer, are hereby authorized and directed to do all acts and things required of them by this Resolution or as shall be desirable or consistant with the requirements hereof, for the full, punctual and complete performance of all terms, covenants and agreements contained in the Notes and this Resolution. SECTION 21. Financial Information. The Issuer shall provide the Holders of the Notes, for so long as a Holder shall be SunBank/South Florida, National Association, with a copy of the Issuer's annual audited financial statements within ten days after the preparation of such statements, but in no event later than one hundred twenty (120) days after the end of the preceeding Fiscal Year of the Issuer. For so long as SunBank/South Florida, National Association is the Holder of the Notes, or either of them, the Issuer shall also provide the Holders with such other financial information concerning the Issuer as the Holders shall reasonably request° -20- 3879M SECTION 22. Effective Date. This effective immediately upon its adoption. Resolution shall be PASSED AND ADOPTED this 20th day of March, 1990. ( SEAL ) ATTEST: ~:/ /{/~/ ~ Xttorn~ CITY Ot By: Commi~ion~'/ / ~ -21- 3879M