HomeMy WebLinkAboutVI (E & E1) Financial Agreement with SunTrust to finance Stormwater Utility Project - Resolution No. 96-12, adopting Financial Agreement with SunTrust for Stormwater Utility Projects4 AGENDA 5-7-96
"CENTER OF GOOD LIVING - PRIDE OF WEST ORANGE" Item VI E & E 1
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CITY OF OCOEE
150 N. LAKESHORE DRIVE
OCOEE, FLORIDA 34761-2258
(407) 656-2322
MEMORANDUM
DATE: May 3, 1996
TO: Honorable Mayor and Board of City Commissioners
FROM: Wanda Horton, Finance Directoli=,--oij—
COMMISSIONERS
RUSTY JOHNSON
SCOTT ANDERSON
SCOTT A. GLASS
JIM GLEASON
CITY MANAGER
ELLIS SHAPIRO
RE: SunTrust Loan Agreement for Financing,of Stormwater
Utility Improvements - Phase I
As reported at the April 16, 1996 Commission meeting, SunTrust's
proposal for financing the stormwater utility improvements was -
ranked #1 of the four proposals received. SunTrust was notified
and negotiations began.
The attached loan agreement was compiled by SunTrust and reviewed
by the City Attorney, Finance Director, City's Financial Advisors
and City's Bond Counsel.
Loan Amount
Loan Date
Interest Rate
Loan Term
Security
STAFF RECOMMENDATION
$2,200,000.00
May 1, 1996
4.77%
15 years
Stormwater Revenues
No Interest Payments until 1997
Staff recommends the adoption of Resolution 96-12 and approval of
the loan agreement between the City of Ocoee and SunTrust N.A. for
the financing of Phase I of the Stormwater Utility Improvements as
adopted via Ordinance 96-03. In order to secure the interest rate
and expedite the loan closing, final changes will be provided at
the May 7th commission meeting for your discussion. .Staff further
recommends the Mayor and City Clerk be authorized to execute the
loan documents as approved by the Mayor and Board of City
Commissioners.
Draft Date 5/2/96
Loan Agreement
Dated as of May 1, 1996
By and Between
CITY OF OCOEE, FLORIDA
(the "City")
IM
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
(the "Dank")
KAR\P,LGIA GRE1502009.4
TABLE OF CONTENTS
Page
KAR\PLG1AGRE1502009.4 1
Article 1
Definition of Terms
1.1
Definitions . .......................................
1
1.2
Interpretation . .....................................
6
1.3
Titles and Headings . ................................
6
1.4
Findings
. ........................................
6
Article 2
Representations and Warranties of the Parties
2.1
Representations and Warranties of City ....................
8
2.2
Representations and Warranties of Bank . ..................
9
Article 3
The Loan and the Note
3.1
The Loan .........................................
9
3.2
The Note .........................................
9
3.3
Adjustments to Note Rate . ............................
10
3.4
Determination of Taxability . ...........................
12
3.5
Compliance with Section 215.84 ........................
12
3.6
Conditions Precedent to the Loan .........................
13
3.7
Registration of Transfer; Assignment of Rights of Bank. .......
13
3.8
Ownership of the Note . ..............................
14
3.9
Use of Proceeds of Loan ..............................
15
3.10
Reserve Fund .......................................
15
Article 4
Covenants of the City
4.1
Performance of Covenants . ............................
16
4.2
Payment of Note ....................................
16
4.3
Creation of Lien on Pledged Revenues . ...................
16
4.4
Preservation of Exclusion of Interest; etc ...................
16
4.5
Eligibility to Receive Pledged Revenues . ..................
17
4.6
Operation and Maintenance . ...........................
17
4.7
Books and Accounts . ................................
17
4.8
Disposition of System . ...............................
17
4.9
Insurance .........................................
17
4.10
No Free Service . ...................................
18
4.11
Enforcement of Collections . ...........................
18
4.12
Operating Budget . ..................................
18
4.13
No Competing System . ..............................
18.
4.14
Supervisory Personnel ................................
19
4.15
Payment of Taxes, Assessments and Other Claims. ...........
19
4.16
Levy and Collection of Stormwater Utility Fee . .............
19
KAR\PLG1AGRE1502009.4 1
4.17
Debt Service Coverage Ratio; Certain Additional Debt. ........
19
4.13
Budget and Other Financial Information . ..................
19
Article 5
Events of Default and Remedies
5.1
Events of Default . ..................................
20
5.2
Exercise of Remedies . ...............................
21
5.3
Remedies Not Exclusive . .............................
22
5.4
Waivers, Etc . .....................................
22
Article 6
Miscellaneous Provisions
6.1
Covenants of City, Etc.; Successors . .....................
22
6.2
Term of Agreement. ................................
22
6.3
Notice of Changes in Fact . ............................
22
6.4
Amendments and Supplements . .........................
22
6.5
Notices . .........................................
23
6.6
Benefits Exclusive . .................................
23
6.7
Severability . ......................................
23
6.8
Payments Due on Saturdays, Sundays and Holidays. ..........
23
6.9
Counterparts .......................................
24
6.10
Applicable Law . ...................................
24
6.11
No Personal Liability . ...............................
24
6.12
Incorporation by Reference . ...........................
24
Exhibit
Exhibit A Form of Note
KAR\RLGWGRE\502009.4 11
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), made and entered into as of May 1,
1996, by and between the CITY OF OCOEE (the "City"), a political subdivision of the State
of Florida and its successors and assigns, and SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, a national banking association, and its successors (thp,
WITNESSETH:
WHEREAS, capitalized terms used in these recitals and not otherwise defined shall have
the meanings specified in Article I of this Agreement;
WHEREAS, the City, pursuant to the provisions of the Florida Constitution; Chapter
166, Part II, of the Florida Statutes, as amended and supplemented; the Code of Ordinances
of the City; and any other applicable provisions of law (all of the foregoing, collectively, the
"Act") is authorized to borrow money and to issue notes or other obligations to finance the
costs of capital expenditures for the City's public purposes;
WHEREAS, the City desires to borrow certain sums from the Bank in order to finance
certain capital expenditures for the City's stormwater utility management system (collectively,
the "Project");
WHEREAS, the Bank has agreed to provide financial accommodations to the City in
arr amount equal to Two Million Two Hundred Thousand Dollars ($2,200,000) in the form of
a fifteen year fully amortizing term loan (the "Loan") but solely upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
set forth and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITION OF TERNIS
1.1 Definitions. Capitalized terms used in this Agreement and not otherwise defined
shall have the respective meanings as follows:
"Act" shall have the meaning assigned to that term in the preambles hereof.
"Agreement" shall mean this Loan Agreement and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Bank" shall mean SunTrust Bank, Central Florida, National Association, Orrla�do,
Florida, and its successors.
KA R\RLGWGREM02009.4
"Bond Counsel" shall mean, initially, Cobb Cole & Bell, Orlando, Florida, or any other
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.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day on which
banks in Orlando, Florida are authorized or required to be closed.
"City" shall mean the City of Ocoee, a political subdivision of the State of Florida.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the applicable
rules and regulations promulgated thereunder.
"Consulting Engineers" shall mean one or more independent, qualified and recognized
consulting engineers or firm of consulting engineers having favorable repute, skill and
experience with respect to the planning and operation of the System who shall be retained from
time to time by the City.
"Contributions in Aid of Construction" shall mean any amount or item of money,
services, or property received by the City, any portion of which is provided at no cost to the
System. which represents an addition or transfer to the capital of the System, and which is
utilized to offset the acquisition, improvement or construction costs of the System.
"Cost of Operation and Maintenance" of the System shall mean the then current
expenses, paid or accrued, in the operation, maintenance and repair of the System, as calculated
in accordance with generally accepted accounting principles, but shall not include expenses not
annually recurring, such as any reserve for renewals and replacements, extraordinary repairs
or any allowance for depreciation, any Debt Service requirement, any payments in lieu of taxes
or any indirect expenses incurred by departments of the City other than those directly
responsible for operating and maintaining the System.
"Debt Service" means principal and interest, and other debt -related costs, due in
connection with the Note and any and all subordinated debt and any other liabilities of the City
for borrowed money related to the System.
"Debt Service Coverage Ratio" shall mean the fraction of Pledged Revenues received
during the Fiscal Year divided by Debt Service for the Fiscal Year in which the greatest
amount of Loan repayments are due during the term of the Loan.
"Default Rate" shall mean the Prime Rate plus three percent (3%) provided such rate
shall not exceed the highest rate of interest allowed by applicable law.
"Determination of Taxability" shall mean the circumstance that shall be deemed to have
occurred if interest paid or payable on the Note becomes includable for federal income txx
purposes in the gross income of the Noteholder as a consequence of any act, omission of F
whatsoever, and regardless of whether the same was within or beyond the control of the City.
KARIR &AGRE1502009.4 2
A Determination of Taxability will be deemed to have occurred upon (a) the receipt by the
City or a Noteholder of an original or a copy of an Internal Revenue Service Technical Advice
Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the
Note is includable in the gross income of the Noteholder; (b) the issuance of any public or
private ruling of the Internal Revenue Service that any interest payable on the Note is
includable in the gross income of a Noteholder; or (c) receipt by the City or the Noteholder
of an opinion of Bond Counsel to the effect that any interest on the Note has become
includable in the gross income of the Noteholder for federal income tax purposes. For all
purposes of this definition, a Determination of Taxability will be deemed to occur on the date
as of which the interest on the Note is deemed includable in the gross income of the
Noteholder. A Determination of Taxability shall not occur in the event such interest is taken
into account in determining adjusted current earnings for the purpose of the alternative
minimum tax imposed on corporations.
In the case of (a) and (b) above, no Determination of Taxability shall be deemed to
occur unless the City has been given timely written notice that such a determination has been
made by the Internal Revenue Service and an opportunity to participate in and seek, at its own
expense, a final administrative determination or determination by a court of competent
jurisdiction (from which no further right of appeal exists) as to the existence of such event of
taxability; provided that the City, at its own expense, delivers to the Bank an opinion of Bond
Counsel acceptable to the Bank to the effect that such appeal or action for judicial or
administrative review is not without merit and there is a reasonable possibility that the
judgment, order, ruling or decision from which such appeal or action for judicial or
administrative review is taken will be reversed, vacated or otherwise set aside.
"Eurodollar Rate" shall mean the schedule of rates or rates as published by Bloomberg
L.P. Business News.
"Event of Default" shall mean an Event of Default as defined in Section 5.1 of this
Agreement.
"Final Maturity Date" shall mean the date on which all principal and all unpaid interest
accrued thereon shall be due and payable in full, with such date, if not sooner due to
acceleration or prepayment, to be October 1, 2011 for the Note.
"Fiscal Year" shall mean the twelve month period commencing October 1 of each year
and ending on the succeeding September 30, or such other twelve month period as the City
may designate as its "fiscal year" as permitted by law.
"Gross Revenues" or "Revenues" shall mean all income 'and earnings, including but not
limited to the Stormwater Utility Fee, received by the City or accrued to the City from the
ownership, use or operation of the System and all parts thereof, including investment income,
if any, earned on any fund or account created pursuant to this Agreement and on any fund or
account established by the City for the System, all as calculated in accordance with gene; -=r."
accepted accounting principles, but "Gross Revenues" or "Revenues" shall not include proceeds
KA RMGAG REi502009.4
from the sale or other disposition of the System or any part thereof, condemnation awards or
proceeds of insurance received with respect to the System. Notwithstanding the foregoing,
"Gross Revenues" or "Revenues" shall not include Contributions in laid of Construction.
"Loan" shall have the meaning assigned to such term in the preambles hereof.
"Maximum Corporate Tax Rate" shall mean (a) on the date of issuance of the Note, 35
% and (b) thereafter, the maximum marginal rate of income tax imposed on corporations under
Section 11 of the Code.
"Net Revenues" of the System shalt mean the Gross Revenues or Revenues, after
deduction of the Cost of Operation and Maintenance.
"Note" shall mean the Series 1996 Promissory Note.
"Noteholder" shall mean the Bank as the holder of the Note and any subsequent
registered holder of the Note.
"Note Rate" shall mean the rate of interest to be borne by the Note, which, for the Note
shall be:
(i) initially, 4.30%, to be adjusted on an annual basis as follows:
October 1, 1997 adjusted to 4.45%;
October 1, 1998 adjusted to 4.60%;
October 1, 1999 adjusted to 4.75%;
October 1, 2000 adjusted to 4.90%;
October 1, 2001 adjusted to 5.05%;
October 1, 2002 adjusted to 5.15%;
October 1, 2003 adjusted to 5.25%;
October 1, 2004 adjusted to 5.35%;
October 1, 2005 adjusted to 5.45%;
and October 1, 2006 through the Maturity Date adjusted to such rate
determined by the following formula:
five vear Eurodollar Rate + 0.75%
1.48;
subject to ,the adjustments set forth in Section 3.3 hereof upon the
occurrence of the events referred to therein;
(ii) following the occurrence and during the continuance of any Event of
Default, the Default Rate; and
(iii) following a Determination of Taxability, the Taxable Rate.
KARMGW GRE502009.4 4
"1996 Project" shall mean the Project authorized to be financed with tl:e proceeds of
the Note, consisting of constructing and acquiring certain additions, extensions and
improvements to the City's System, including but not limited to piping and the purchase of real
property for retention ponds and other drainage improvements.
"Pledged Revenues" shall mean (i) the Net Revenues of the System, and (ii) the moneys
on deposit in the Reserve Fund created pursuant to this Agreement.
"Project Costs" shall mean all costs of the System authorized to be paid to the extent
permitted under the laws of the State. It is intended that this definition be broadly construed
to encompass all costs, expenses and liabilities of the City related to the System which on the
date of this Agreement or in the future shall be permitted to be financed by the City pursuant
to the laws of the State.
"Prudent Utility Practice" shall mean, in respect of any particular utility industry, any
of the practices, methods and acts which, in the exercise of reasonable judgment, in light of
the facts, including but not limited to the practices, methods and acts engaged in or approved
by a significant portion of such utility industry prior thereto, known at the time the decision
was made, would have been expected to accomplish the desired result at the lowest reasonable
cost consistent with reliability, safety, and expedition. It is recognized that Prudent Utility
Practice is not intended to be limited to the optimum practice, method or act to the exclusion
of all others, but rather is a spectrum of possible practices, methods or acts which could have
been expected to accomplish the desired result at the lowest reasonable cost consistent with
reliability, safety and expedition.
"Qualified Independent Consultant" shall mean one or more qualified and recognized.
independent consultants, having favorable repute, skill and experience with respect to the acts
and duties of the Qualified Independent Consultant to be provided to the City, as shall from
time to time be retained by the City to perform the acts and carry out the duties herein
provided for such consultants.
"Qualified Tax -Exempt Obligation" shall mean an obligation described in Section
265(b)(3) of the Code.
"Resolution" shall mean Resolution No. 96 - adopted at a meeting of the Board of
City Commissioners on May 7, 1996 which among other things authorized and confirmed the
borrowing of the Loan and execution and delivery of this Agreement and the issuance of the
Note and such supplementary resolutions of the City as are satisfactory to the Bank.
"Series 1996 Promissory Note" shall mean the City of Ocoee, Stormwater Utility
Revenue Promissory Note, Series 1996 in the original principal amount of Two Million Two
Hundred Thousand Dollars ($2,200,000) issued by the City to the Bank on the date hereof in.
order to evidence the Loan.
KAR\RLGWGREA502009.4 5
"Reserve Fund" shall mean the Reserve Fund created and established pursuant to
Section 3.10 of this Agreement.
"Reserve Requirement" shall be the lesser of (i) the maximum debt service requirement
with respect to the Note for the then current or any future Fiscal Year, (ii) 125% of the average
annual debt service requirement for the Note or (iii) the largest amount as shall not adversely
affect the exclusion of interest on the Note from gross income for Federal income tax purposes
but in no event more than $220,000.
"Stormwater Management Utility System" or "System" shall mean the Stormwater
management utility system created and operated by the City pursuant to Chapter 150 of the
Code of Ordinances of the City, which the City is responsible for maintaining, together with
any and all improvements, extensions and additions thereto hereafter constructed or acquired,
together with all lands or interests therein, including plants, buildings, machinery, franchises,
pipes, mains, fixtures, equipment and all property, real or personal, tangible or intangible
(including agreements for the providing of such services), now or hereafter owned or used in
connection therewith.
"Stormwater Utility Fee" shall mean the fees imposed by the City upon and collected
from users of the System.
"Taxable Rate" shall mean the lower of Prime Rate plus two percent (2%) per annum,
or the maximum interest rate permitted by applicable law.
1.2 Interpretation. Unless the context clearly requires otherwise, words of
masculine gender shall be construed to include correlative words of the feminine and neuter
genders and vice versa, and words of the singular number shall be construed to include
correlative words of the plural number and vice versa. Any capitalized terms used in this
Agreement not herein defined shall have the meaning ascribed to such terms in the Resolution.
This Agreement and all the terms and provisions hereof shall be construed to effectuate the
purpose set forth herein and to sustain the validity hereof.
1.3 Titles and Headings. The titles and headings of the Articles and Sections of this
Agreement, which have been inserted for convenience of reference only and are not to be
considered a part hereof, shall not in any way modify or restrict any of the terms and
provisions hereof, and shall not be considered or given any effect in construing this Agreement
or any provision hereof or in ascertaining intent, if any question of intent should arise.
1.4 Findings. It is hereby ascertained, determined and declared that:
(a) The City now owns, operates and maintains the System and will continue
to derive revenue from rates, fees, rentals and other charges made and collected for the services.
of such System, which revenues and the other revenues pledged pursuant to the provisions
hereof are not now pledged or encumbered in any manner.
KAR\RLGW GRE1502009.4 6
(b) Due to the limited cost of the 1996 Project, security to be pledged and
the project to be constructed, it was in the City's best interest to seek proposals from local
banks and negotiate the sale of the Note thereby securing the most favorable interest rate for
the City.
(c) The City received proposals to finance the 1996 Project from four lenders:
Nationsbank, N.A. (South), Barnett Bank of Central Florida, First Union National Bank of
Florida and the Bank. The Bank, pursuant to its commitment, agreed to loan to the City
$2,200,000 for such purpose.
(d) The City determined that the Bank's proposal -provided the City with the
most favorable terms thereby permitting the City to obtain the best possible price and interest
rate for the Note. The City determined that it was in the best interest of the City to accept the
Bank's commitment and authorized the execution and delivery of the Note to the Bank,
(e) It is in the best interests of the City and the residents thereof that the City
authorize the issuance of the Note for the purpose of designing, permitting, acquiring and
constructing the 1996 Project.
(f) The principal of and interest on the Note and all reserve and other
payments shall be payable solely from the Pledged Revenues. The Loan will not constitute a
general debt, liability or obligation of the City or of the State of Florida or any political
subdivision thereof within the meaning of any constitutional or statutory provision. Neither the
faith and credit nor the taxing power of the City or of the State of Florida or any political
subdivision thereof is pledged to the payment of the principal of or interest on the Loan, as
evidenced by the Note, and the Noteholder shall never have the right to compel any exercise
of any ad valorem taxing power of the City or of the State of Florida or any political
subdivision thereof, directly or indirectly to enforce such payment. The Note shall not
constitute a lien upon any property of the City except upon the Pledged Revenues.
(g) The Pledged Revenues should be sufficient to pay all principal of and
interest on the Note to be issued hereunder, as the same become due, and to make all required
deposits or payments required by this Agreement.
(h) All costs of the 1996 Project incurred after the date of this Agreement
shall be reimbursed from proceeds of the Loan.
(i) The City desires to qualify the Note for the exception contained in
Section 265(b)(3) of the Code to the provisions contained in Section 265(b) of the Code which
deny financial institutions any deduction for interest expense allocable to tax-exempt
obligations acquired after August 7, 1986, and to designate the Note for the purpose of
qualifying such exception; and the City Commission does hereby find and determine that the.
aggregate face amount of all qualified tax-exempt obligations (excluding private activity bo nels,
as defined in Section 141 of the Code, other than qualified 501(c)(3) bonds, ac i.ri.
Section 145 of the Code), including the Note, issued by or on behalf of the City (and all
KAR\RI.G'',AGR N502009A 7
subordinate entities thereof) during the 1996 calendar year is not expected to exceed
$10,000,000, and that as of the date hereof, no tax-exempt obligations issued or authorized to
be issued by or on behalf of the City (and all subordinate entities thereof) during the 1996
calendar year, other than the Note, have been designated by the City for the purpose of
qualifying for such exception.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of City. The City represents and warrants to
the Bank as follows: -
(a) Existence. The City is a political subdivision of the State of Florida duly
created and validly existing under the laws of the State of Florida, with full power to enter into
this Agreement, to perform its obligations hereunder and to issue and deliver the Note to the
Bank. The making and performance of this Agreement on the part of the City and the issuance
and delivery of the Note have been duly authorized by all necessary action on the part of the
City and will not violate or conflict with the Act, Chapter 218 of the Florida Statutes, or any
agreement, indenture or other instrument by which the City or any of its material properties
is bound.
(b) Validity, Etc. Each of this Agreement, the Note and the Resolution is a
valid and binding obligation of the City enforceable against the City in accordance with its
terms, except to the extent that enforceability may be subject to valid bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or from time to time affecting the
enforcement of creditors' rights and except to the extent that the availability of certain remedies
may be precluded by general principles of equity or other applicable principal of law.
(c) No Financial Material Adverse Change. No material adverse change
in the financial condition of the City has occurred since the last audited financial statement was
prepared (for Fiscal Year 1990.
(d) Powers of City. The City has the legal power and authority to pledge the
Pledged Revenues.
(e) No Prior Pledge. The City has not heretofore pledged or otherwise
encumbered the Pledged Revenues that will be used to repay or refinance the Loan; no other
indebtedness of the City for borrowed money currently is payable out of Pledged Revenues;
no additional debt will be issued by the City which is secured by the revenue sources
referenced above except as specifically permitted pursuant to Section 4.17 hereof.
(f) Bank Qualification. The City has not issued in excess of $10,000,000
in tax-exempt debt during the 1996 calendar year nor does it expect to do so. All other actions
required of the City that would allow the Note to be a Qualified Tax-exempt Obligations
been completed.
KAMUMAGREl502009.4 8
2.2 Representations and Warranties of Bank. The Bank represents and warrants
to the City as follows:
(a) Existence, Etc. The Bank is a national banking association, duly
organized and validly existing under the laws of the United States of America, with full power
to enter into this Agreement, to perform its obligations hereunder and thereunder and to make
the Loan. The performance of this Agreement on the part of the Bank and the making of the
Loan have been duly authorized by all necessary action on the part of the Bank and will not
violate or conflict with applicable law or any material agreement, indenture or other instrument
by which. the Bank or any of its material properties is bound.
(b) Validity. This Agreement is a valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms, except to the extent that
enforceability may be subject to- valid bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or from time to time affecting the enforcement of creditors' rights (and
specifically creditors' rights as the same relate to national banks) and except to the extent that
the availability of certain remedies may be precluded by general principles of equity.
(c) Knowledge and Experience. The Bank (1) has such knowledge and
experience in financial and business matters that it is capable of evaluating the merits and risks
of making the Loan and investing in the Note, (2) has received and reviewed such financial
information concerning the City as it has needed in order to fairly evaluate the merits and risks
of making the Loan and investing in the Note; (3) is an "accredited investor" as such term is
defined in Regulation D to the Securities Act of 1933; and (4) is purchasing the Note as an
investment for its own account and not with a view toward resale to the public.
ARTICLE 3
THE LOAN AND THE NOTE
3.1 The Loan. On the date of this Agreement, the Bank shall make the Loan to the
City in the sum of Two Million Two Hundred Thousand Dollars ($2,200,000) against the
City's issuance to the Bank of the Note. The City agrees to repay the Note in accordance with
the terms of the Note and this Agreement.
3.2 The Note. The Loan shall be evidenced by this Agreement and the Note, which
shall be substantially in the form set forth as Exhibit "A" to this Agreement. The general terms
of the Note shall be as follows:
(a) Amount of Note. The Note shall be in the face amount of Two Million
Two Hundred Thousand Dollars ($2,200,000).
(b) Interest. The Note shall bear interest at the applicable Note Rate. Upon.
the occurrence of one or more of the events specified in Section 3.3 of this Agreement, the
Note Rate shall be adjusted as therein provided. Interest on the Note shall be computed on the
basis of twelve (12) thirty (30) day months (i.e., a 360 day year).
KARaL.GIAGRE\502009.4 9
(c) Payments on the Note. The repayment schedule for the Note shall be as
follows:
(i) The City shall be required to make quarterly interest payments (as
set forth on the amortization schedule attached to the Note) on each October 1, January 1,
April 1 and July 1 commencing on October 1, 1997 until the applicable Final Maturity Date.
(ii) The City shall be required to make annual principal payments (as
set forth on the amortization schedule attached to the Note) on each October 1, commencing
on October 1, 1997, until the applicable Final Maturity Date. The entire balance of principal
and accrued interest -on the Note, if not sooner paid as aforesaid shall be due and payable on
the Final Maturity Date. Installments paid as aforesaid shall be credited first to the actual
interest then due, and thereafter to principal.
(d) Prepayments. The City may, without penalty or premium, prepay the
Note, in whole or in part, out of any monies of the City legally available therefor. Each
prepayment shall be made on such date and in such principal amount as shall be specified by
the City in a written notice delivered to the Noteholder not more than fifteen (15) and not less
than five (5) days prior to the specified prepayment date. Any prepayments shall be applied
to the sums last maturing hereunder.
3.3 Adjustments to Note Rate.
(a) Adjustments to Note Rate. The dote Rate may be subject to adjustments
as described in this Section at the discretion of the Bank upon the occurrence of certain events
described herein. The Bank shall promptly notify the City in writing of any adjustments for
the Note pursuant to this Section. Such adjustments shall become effective as of the effective
date of the event causing such adjustment. Adjustments pursuant to this Section shall be
retroactive from the date of the applicable occurrence. The Bank shall certify to the City in
writing the additional amount, if any, due to the Bank as a result of an adjustment pursuant to
this Section.
(b) Particular Adjustments. Subject to the provisions of Section 3.3(a)
above, the interest rate on the Note shall be adjusted as follows:
(i) Loss of Federal Income Tax Deduction for State Income Taxes.
If the federal income tax deduction for state income taxes. paid on the interest payments
received under the Note during any period is reduced because of any change in the tax laws
or regulations and the Noteholder is then subject to payment of state income tax on the interest
on the Note, then the interest rate on the Note shall be increased during such period by an
amount equal to A x B x C x D where:
(1) A equals the fraction (expressed as a decimal) of the total
state income tax disallowed as a result of such tax law change;
1
KAWLG\AGREi502004.4
(2) (expressed as a decimal); B equals the rate of the applicable state income tax
(3) C equals the maximum federal corporate tax rate then in
effect for the Noteholder (expressed as a decimal); and
(4) D equals the interest rate on the Note (expressed as a
percentage).
(ii) Partial Taxability. If the interest payments received under the
Note during any period become partially taxable to the extent not otherwise taxable on the date
of issuance thereof because of any change in the tax laws or regulations, then the interest rate
on the Note shall be increased during such period by an amount equal to (A - B) x C where:
(1) A equals the `Taxable Rate (expressed as a percentage);
(2) B equals the interest rate on the Note (expressed as a
percentage); and
(3) C equals the fraction of the interest rate on the Note which
has become taxable as the result of such tax change (expressed as a decimal).
(iii) Other Changes in Tax Laws. If the tax laws or regulations are
amended to cause the interest on the Note to become taxable to the extent not otherwise taxable
on the date of issuance thereof, to be subject to a minimum tax or an alternative minimum tax
or to otherwise decrease the yield on the Note to the Noteholder (directly or indirectly, other
than a change described in (i) or (ii) above or because of a Determination of Taxability), then
the interest rate on the Note shall be adjusted to cause the yield on the Note, to equal what the
yield on the Note would have been in the absence of such change or amendment in the tax
laws or regulations. If the tax laws or regulations are amended to increase yield on the Note
to the Noteholder, then the Bank shall adjust the interest rate on the Note to cause the yield
on the Note to equal what the yield on the Note would have been in the absence of such
change or amendment in the tax laws or regulations. The interest rate on the Note may change,
at the discretion of the Bank, if the Maximum Corporate Tax changes in accordance with the
following formula:
current Old Maximum Corporate Tax Rate
Note Rate X New Maximum Corporate Tax Rate.
The interest rate on the Note may also change, at the discretion of the Bank, in the event that
the Preference Reduction Rate as set forth in Section 291(e) of the Code changes.
(c) Method of Adjustment. The above adjustments shall be cumulative, but
in no event shall the interest rate on the Note exceed the maximum rate permitted by law.
Interest on the Note and all other tax rates and interest rates are expressed as annual rates.
KAR\RLGWGREM02009.4 11
However, proper partial adjustment shall be made if the tax law change is effective after the
First day of the Noteholder's tax year or if interest on the Note does not accrue for the entire
tax year of the Noteholder. Adjustments which create a circular calculation because the interest
rate on the Note is affected by the calculation shall be carried out sequentially, increasing the
interest rate on the Note accordingly in .each successive rate on the Note, until the change on
the interest rate on the Note caused by the next successive calculation of the adjustment is de
minimis. If more than one of paragraphs numbered (i) through (iii) in Section 3.3(b) apply,
then the interest rate on the Note shall be adjusted in the order in which listed above.
(d) retroactive Adjustment. To the extent an adjustment to the interest rate
on the Note is not effected within three (3) months of the event giving rise to the adjustment,
the additional interest due as a result of such adjustment shall be paid with interest thereon
compounded monthly at the rate which is equal to the interest rate on the Note; provided,
however, in no event shall such interest rate exceed the maximum rate permitted by law.
Subject to the provisions of Section 3.3(a) hereof, all unpaid amounts determined to be owing
as a result of such calculation shall be due and payable within thirty (30) days after delivery
of written notice of the amount of such adjustment, and shall be paid to the Noteholder of
record during the period to which the adjustment relates. This obligation shall survive the
payment and cancellation of the Note.
(e) Savings Clause. In the event the maturity of the Note is accelerated or
prepaid in accordance with the provisions hereof, then such amounts that constitute payments
of 'interest, together with any costs or considerations which constitute interest under the laws
of the State of Florida, may never equal an amount which would result in payment of interest
at a rate in excess of the nonusurious interest allowed by the laws of the State of Florida or
the United States to the extent applicable, as presently in effect and to the extent an increase
is allowable by such laws; and excess interest, if any, shall be cancelled automatically as of
the date of such acceleration, or, if theretofore paid, shall be credited on the principal amount
of the Note unpaid, but such crediting shall not cure or waive any default under this
Agreement.
3.4 Determination of Taxability. If a Determination of Taxability shall occur, the
Note will bear interest from the earliest effective date on which such Determination of
Taxability is deemed to have occurred at a floating interest rate per annum equal to the Taxable
Rate. The City will also pay the holder of this Note or assigns, from Pledged Revenues, any
penalties and any interest owed by the holder of this Note due to the failure of the holder of
this Note to include interest on this Note in its gross income for federal income tax purposes
and any arrears in interest resulting from a Determination of Taxability, and any penalties in
the form of interest or otherwise shall be paid by the City on the next succeeding interest
payment date.
3.5 Compliance with Section 215.84. The City represents, warrants, and covenants
that the Note Rate, as currently calculated in accordance with Section 215.84 Florida Statutes,
is in compliance with Section 215.84, Florida Statutes.
KARNRL&AGRE502009.4 12
3.6 Conditions Precedent to the Loan. Prior to or simultaneously with tiie delivery
of the Note by the City, there shall be filed with the Bank the following, each in form and
substance reasonably acceptable to the Bank:
(a) a copy, certified by the City Clerk, of the Resolution;
(b) an opinion of counsel to the City in a form acceptable to the Bank.
(c) a fully executed counterpart of this Agreement;
(d) - an opinion of Bond Counsel (who may rely on opinion of Counsel to the
City for certain factual and procedural matters), stating that such counsel are of the opinion
that: (1) the City is a political subdivision of the State of Florida duly organized and validly
existing under the laws of the State of Florida; (2) the Resolution has been duly adopted by
the City is in full force and effect and has not been amended; (3) the issuance of the Note and
the execution of this Agreement by the City have been duly and validly authorized; (4) the
Note and this Agreement, when executed by the Bank, are valid, binding obligations of the
City enforceable against the City in accordance with their terms, subject to appropriate
qualifications for bankruptcy, insolvency or other laws affecting creditors' rights and equitable
principles; (5) assuming continuing compliance by the City with certain covenants relating to
requirements contained in the Code, under existing statutes, regulations, rulings and court
decisions, interest on the Note is excludable from gross income of the owner thereof for federal
income tax purposes; (6) the Note is a "qualified tax exempt obligation" within the meaning
of Section 265(b)(3)(B) of the Code; (7) this Agreement and the Note are exempt from Florida
documentary stamp taxes; and (8) the City has the legal power to pledge the Pledged Revenues
for payment of the Note;
(e) a copy of a completed and executed Form 8038-G to be filed with the
Internal Revenue Service by the City; and
(f) such other documents as the Bank reasonably may request (including,
without limitation, appropriate executed Florida Division of Bond Finance forms).
When the documents mentioned in clauses (a) through (f), inclusive, of this Section
shall have been filed with the Bank, and when the Note shall have been executed as required
by this Agreement, the City shall deliver the Note to or upon the order of the Bank, but only
against City's receipt of the initial proceeds of the Loan.
3.7 Registration of Transfer; Assignment of Rights of Bank. The City shall keep
at the office of the City Clerk in the City's records the registration of the Note and the
registration of transfers of the Note as provided in this Agreement. Subject to the restriction
set forth in the third paragraph of this Section, the transfer of the Note may be registered only
upon the books kept for the registration of the Note and registration of transfer thera.c ;f upon
surrender thereof to the City together with an assignment duly executed by th-'z 1=;e ;11- r_-
attorney or legal representative in the form of the assignment set forth on the form of the Note
KARIRLGW GRE\502009.4 11)
attached as Exhibit A to this Agreement; provided, however, that the Note may be transferred
only in whole and not in part. In the case of any such registration of transfer, the City shall
execute and deliver in exchange for the Note a new Note registered in the name of the
transferee. In all cases in which the Note shall be transferred hereunder, the City shall execute
and deliver at the earliest practicable time a new Note in accordance with the provisions of this
Agreement. The City may make a charge for every such registration of transfer of the Note
sufficient to reimburse it for any tax or other governmental charges required to be paid with
respect to such registration of transfer, but no other charge shall be made for registering the
transfer hereinabove granted. The Note shall be issued in fully registered form and shall be
payable in any coin or currency of the United States.
The registration of transfer of the Note on the registration books of the City shall be
deemed to effect a transfer of the rights and obligations of the Bank under this Agreement to
the transferee. Thereafter, such transferee shall be deemed to be the Bank under this Agreement
and shall be bound by all provisions of this Agreement that are binding upon the Bank. The
City and the transferor shall execute and record such instruments and take such other actions
as the City and such transferee may reasonably request in order to confirm that such transferee
has succeeded to the capacity of Bank under this Agreement.
THE NOTE MAY BE TRANSFERRED ONLY IN WHOLE AND NOT IN PART.
THE LOAN, AS EVIDENCED BY THE NOTE, HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
ANY TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF THE LOAN, AS
EVIDENCED BY THE NOTE, OR ANY PARTICIPATION THEREIN (OTHER THAN AS
SPECIFIED IN THE NEXT PARAGRAPH), SHALL BE IN EACH CASE ONLY IN A
MANNER THAT DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED,
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, OR ANY
APPLICABLE STATE SECURITIES LAWS.
In the event any Note is mutilated, lost, stolen, or destroyed, the City shall execute a
new Note of like date and denomination as that mutilated, lost, stolen or destroyed, provided
that, in the case of any mutilated Note, such mutilated Note shall first be surrendered to the
City, and in the case of any lost, stolen, or destroyed Note, there first shall be furnished to the
City evidence of such loss, theft or destruction together with an indemnity satisfactory to it.
Nothing in this Agreement or in the Note shall be construed to prohibit the Bank from
granting a participation or participations in the Note to any other bank or banks within the
SunTrust Banks, Inc. system. No such bank participant shall, however, be a registered holder
of Note or any portion thereof.
3.8 Ownership of the Note. The person in whose name the Note shall be registered
shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of
or on account of the Note shall be made only to the registered owner thereof or such owner's
legal representative. All such payments shall be valid and effectual to satisfy and discharge tht-
liability upon the Note, and interest thereon, to the extent of the sum or sums so paid.
KARM&AGR-0502009.4 14
The registered owner of the Note is hereby granted power to transfer absolute title.
thereof by assignment thereof to a bona fide purchaser for value (present or antecedent) without
notice of prior defenses or equities or claims of ownership enforceable against such, owner's
assignor or any person in the chain of title and before the maturity of the Note; provided,
however, that the Note may be transferred only in whole and not in part and provided further,
that no transfer shall be permitted absent the City's (and the Bank's) receipt of a letter in form
and substance similar to the one delivered by the Bank pursuant to Section 218.385, Florida
Statutes from such proposed transferee. Every prior registered owner of the Note shall be
deemed to have waived and renounced all of such owner's equities or rights therein in favor
of every such bona fide purchaser, and every such bona fide purchaser shall acquire absolute
title thereto and to all rights represented thereby.
3.9 Use of Proceeds of Loan. The proceeds received by the City from the Loan
shall be used by the City solely for the acquisition and construction of the 1996 Project. The
City represents, warrants and covenants that the proceeds of the Loan will be used to finance
Project Costs.
3.10 Deserve Fund. There is hereby created and established a Reserve Fund to be
held by the City for the benefit of the Bank. The City shall deposit from the proceeds of the
Loan an amount equal to the Reserve Requirement. Until the Reserve Fund is released as
provided below, the City shall be obligated to maintain the amount on deposit in the Reserve
Fund equal to the Reserve Requirement.
Any withdrawals from the Reserve Fund shall be subsequently restored from the first
moneys available, after all required current payments for Cost of Operation and Maintenance
and all current applications and allocations to pay amounts due under the Agreement, including
all deficiencies for prior payments have been made in full. Notwithstanding the foregoing, in
case of withdrawal from the .Reserve Fund, in no event shall the City be required to deposit
into the Reserve Fund an amount greater than that amount necessary to ensure that the
difference between the Reserve Requirement and the amounts on deposit in the Reserve Fund
on the date of calculation shall be restored not later than sixty (60) months after the date of
such deficiency (assuming equal monthly payments into the Reserve Fund for such sixty (60)
month period). Moneys in the Reserve Fund shall be used only for the purpose of the payment
of principal of, or interest on the Note when the other moneys are insufficient therefor, and for
no other purpose.
Securities in the Reserve Fund shall be valued at market value annually. Deficiencies
in the amounts on deposit in the Reserve Fund resulting from a decline in market value shall
be restored no later than the succeeding interest payment date. At such time as the City has
maintained a Debt Service Coverage Ratio of at least 1.15:1.0 for two consecutive Fiscal Years,
based on a certification of the City Manager, the amounts on deposit in the Reserve Fund shall
be released by the Bank and disbursed by the City for any lawful purpose of the System which,
in the opinion of Bond Counsel, shall not impair the exclusion of the interest on the Note from
the gross income of the Noteholder.
KAR\RLGW GRL1502009.4 15
ARTICLE 4
COVENANTS OF THE CITY
4.1 Performance of Covenants. The City covenants that it will perform faithfully
at all times its covenants, undertakings and agreements contained in this Agreement and the
Note or in any proceedings of the City relating to the Loan.
4.2 Payment of Note.
(a) The City covenants that it will promptly pay the principal of and interest
on the Note at the place, on the dates and in the manner provided herein and in the Note, in
accordance with the terms thereof. In accordance with Section 4.3 hereof, the City hereby
pledges the Pledged Revenues as security for the Loan.
(b) The Loan, as evidenced by the Note, will be a special obligation of the
City secured solely by the Pledged Revenues and is payable from the Pledged Revenues and
as provided in Section 4.3 hereof. The Loan will not constitute a general debt, liability or
obligation of the City or of the State of Florida or any political subdivision thereof within the
meaning of any constitutional or statutory provision. Neither the faith and credit nor the taxing
power of the City or of the State of Florida or any political subdivision thereof is pledged to
the payment of the principal of or interest on the Loan, as evidenced by the Note, and the
Noteholder shall never have the right to compel any exercise of any ad valorem taxing power
of the City or of the State of Florida or any political subdivision thereof, directly or indirectly
to enforce such payment. The Note shall not constitute a lien upon any property of the City
except upon the Pledged Revenues.
4.3 Creation of Lien on Pledged Revenues. The City hereby creates an irrevocable
(until repayment in full of the Note) pledge and first priority lien on the Pledged Revenues in
favor of the Bank as Noteholder, and agrees that such funds shall be used to pay the debt
service on the Note in accordance herewith.
4.4 Preservation of Exclusion of Interest; etc.
(a) The City covenants that it will not knowingly take or omit to take any
action which if taken or omitted would result in the loss of the exclusion of interest on the
Note from the gross income of the Noteholder for federal income tax purposes under the Code,
as enacted and construed on the date of this Agreement, or which the City has reason to
believe would affect adversely the continued validity of such exclusion under the Code (or the
Note's "bank qualified" status under the Code), as enacted and construed on the date of this
Agreement.
(b) In order to maintain the exclusion from gross income for purposes of
federal income taxation of interest on the Note (and its "bank qualified" status), the City shall
comply with each requirement of the Code applicable to the Note.
KAR\RLG\AGRZ503009.4 16
(c) Notwithstanding any other provision of the Resolution or this Agreement
to the contrary, so long as necessary in order to maintain the exclusion from gross income of
interest on the Note for federal income tax purposes (and its "bank qualified" status), the
covenants contained in this Section shall survive the payment of the Note and the interest
thereon, including any payment or defeasance thereof.
(d) The City shall not knowingly take or permit any action or fail to take any
action which would cause the Note to be an "arbitrage bond" within the meaning of Section
148(a) of the Code.
4.5 Eligilrility to Receive Pledged Revenues. The City shall take all lawful actions
necessary or required to charge and collect and to remain eligible to receive PIedged Revenues
in an amount sufficient to satisfy all covenants hereof.
4.6 Operation and Maintenance. The City will maintain the System and all parts
thereof in good condition and will operate the same in an efficient and economical manner,
making such expenditures for equipment and for renewals, repairs and replacements as may
be proper for the economical operation and maintenance thereof.
4.7 Books and Accounts. The City shall keep proper books, records and accounts,
separate and apart from all other records and accounts, showing correct and complete entries
of all transactions of the System, and the Holder of the Note or any duly authorized agent or
agents of such Holder shall have the right at any and all reasonable times to inspect such
books, records and accounts.
4.8 Disposition of System. The City shall not sell, lease, encumber or in any
manner dispose of the System as a whole until all of the Note shall no longer be Outstanding.
4.9 Insurance. The City shall provide protection for the System both in accordance
with the requirements of all agreements, if any, to which the City may at the time be a party
with respect to joint ownership of properties by the City with others which is part of the
System, and in accordance with Prudent Utility Practice. Said protection may consist of
insurance, self insurance and indemnities. The City will keep, or cause to be kept, the works,
plants and facilities comprising the properties of the System insured, and will carry such other
insurance against fire and other risks, accidents or casualties at least to the extent and of the
kinds that insurance is usually carried by utilities operating like properties. Any insurance shall
be in the form of policies or contracts for insurance with insurers of good standing, shall be
payable to the City and may provide for such deductibles, exclusions, limitations, restrictions,
and restrictive endorsements customary in policies for similar coverage issued to entities
operating properties similar to the properties of the System. Any self insurance shall be in the
amounts, manner and of the type provided by entities operating properties similar to the
properties of the System. In the event of any loss or damage to the System covered by
insurance, the City will, with respect to each such loss, promptly repair, reconstruct or replace
the parts of the System affected by such loss or damage to the extent necessary to the proper
conduct of the operation of the business of the System in accordance with Prudent Utility
KA RaLGW GRE1502009.4 17
Practice, shall cause the proceeds of such insurance to be applied for that purpose to the extent
required therefor, and pending such application shall hold the proceeds of any insurance policy
covering such damage or loss in trust to be applied for that purpose to the extent required
therefor. Any excess insurance proceeds received by the City may be used by the City for any
lawful purpose. Notwithstanding the foregoing or any provisions of this Agreement to the
contrary, the City shall not be required to maintain insurance with respect to facilities for which
insurance shall not be available or for facilities which in accordance with Prudent Utility
Practice are not customarily insured.
4.10 No Free Service. So long the Note is outstanding, the City shall not furnish or
supply the facilities, -services and commodities of the System either free of charge or for a
nominal charge to any person, firm or corporation, public or private. The City shall take all
reasonably prudent and cost- effective actions in order to promptly enforce the payment of any
and all accounts owing to the City and delinquent, including, but not limited to, discontinuing
service or by filing suits, actions or proceedings, or by both discontinuance of service and
filing suit.
4.11 Enforcement of Collections. The City will diligently enforce and collect the
rates, fees and other charges for the services and facilities of the System and will take all
reasonably prudent steps, actions and proceedings for the enforcement and collection of such
rates, charges and fees as shall become delinquent to the full extent permitted or authorized by
law; and will maintain accurate records with respect thereof. All such fees, rates, charges and
revenues shall, as collected, be held in trust to be applied as herein provided.
4.12 Operating Budget. The City shall annually, prior to commencement of each
of its Fiscal Years, prepare and adopt a budget of the estimated expenditures for the operation
and maintenance of the System during such next succeeding Fiscal Year. The City shall mail
copies of such annual budgets (including any amendments thereto) to the Bank which shall file
its address with the City and request in writing that copies of all such budgets be furnished it
and shall make available such budgets of the System at all reasonable times to the Bank or to
anyone acting for and on behalf of the Bank. The Bank shall pay reasonable actual cost of
printing and mailing of such copies.
4.13 No Competing System. To the extent permitted by law, the City will not grant
a franchise for the operation of any competing stormwater utility system or systems within the
area served by the System as of the date of issuance of the Note until the Loan, together with
the interest thereon, and premium, if any, have been paid in full. Notwithstanding the
foregoing, the City shall not be required to duplicate services being provided by private or
public utilities in the area being served by such private or public utilities on the date of
issuance of the Note. In addition, the City shall not be prohibited from allowing other private
or public utilities to provide services within the area being served by the System as of the date
of issuance of the Note, if the City shall not be providing such service in such area on that
date. Nothing herein shall be deemed to constitute the approval of the City for any private or
public utility (other than the System) to provide any services within the boundaries of the City
KAR\RLGWGR0502009.4 is
or within the area being served by the System as of the date of issuance of the Note or within
any other area of the City.
4.14 Supervisory Personnel. The City in operating the System will employ or
designate as manager one or more of its qualified employees who have demonstrated ability
and experience in operating similar facilities..
4.15 Payment of Taxes, Assessments and Other Claims. The City shall from time
to time duly pay and discharge, or cause to be paid and discharged, all taxes, assessments and
other governmental charges, or payments in lieu thereof, lawfully imposed upon the properties
constituting the System or the Gross Revenues when the same shall become due, as well as all
lawful claims for labor and materials and supplies which, if not paid, might become a lien or
charge upon such properties or any part thereof, or upon the Gross Revenues or which might
in any way impair the security of the Note, except assessments, charges or claims which the
City shall in good faith contest by proper legal proceedings.
4.16 Levy and Collection of Stormwater Utility Fee. The City covenants that it
will not impair or adversely affect the power and right of the City to receive the Stormwater
Utility Fees. The City will proceed diligently to perform legally and effectively all steps
required on its part in the levy and collection of the Stormwater Utility Fees and shall exercise
all legally available remedies to enforce such collections now or hereafter available under State
law. Furthermore, the pledging of the Net Revenues in the manner provided herein shall not
be subject to repeal, modification or impairment by any subsequent ordinance or other
proceeding of the City while the Loan is Outstanding.
4.17 Debt Service Coverage Ratio; Certain Additional Debt.
(a) Debt Service Coverage Ratio. The City shall maintain at all times
while the Loan is outstanding a Debt Service Coverage Ratio of at least 1.15:1.0.
(b) Additional Debt. For so long as the Loan is outstanding, the City shall
not issue any additional parity obligations secured by a lien on the Pledged Revenues equal to
the lien created by this Agreement without the prior written consent of the Bank ; or issue any
Subordinated Indebtedness unless after giving effect to the issuance of such Subordinated
Indebtedness, the City's Debt Service Coverage Ratio is at least 1.25:1.0.
4.18 Budget and Other Financial Information. The City shall:
(a) Within two hundred and ten (210) days following the end of each Fiscal
Year of the City, provide the Bank with a copy of the City's audited financial statements for
the preceding Fiscal Year specifically breaking out the Pledged Revenues; and
(b) Provide the Bank with a copy of its resolution adopting its �`s,
within thirty (30) days of the adoption of the same, a completed budget. I.-.00
KARTLGW GRE1502009.4 19
completion of the same, and such other financial information regarding the City as the Bank
may reasonably request.
ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default. Each of the following is hereby declared an "Event of
Default":
(a) payment of the principal of the Loan shall not be made when the same
shall become due and payable;
(b) payment of any installment of interest on the Loan shall not be made
when the same shall become due and payable; or
(c) the City shall default in the due and punctual performance of any other
of the covenants, conditions, agreements and provisions contained in the Note or in this
Agreement on the part of the City to be performed, and such default shall continue for thirty
(30) days after written notice specifying such default and requiring same to be remedied shall
have been given to the City by the Bank; provided, however, that if, in the reasonable
judgment of the Bank, the City shall proceed to take such curative action which, if begun and
prosecuted with due diligence, cannot be completed within a period of thirty (30) days, then
such period shall be increased to such extent as shall be necessary to enable the City to
diligently complete such curative action; or
(d) the City defaults in the due and punctual payment of any other obligation
or evidence of indebtedness which is secured in whole or in part by a pledge of Pledged
Revenues; or
(e) any representation or warranty of the City contained in this Agreement
or in any certificate or other closing document executed and delivered by the City in
connection with the closing of this Loan shall prove to have been untrue in any material
respect when executed and delivered, thereby adversely impairing the security for the Note; or
(f) any proceedings are instituted with the consent or acquiescence of the
City, for the purpose of effecting a compromise between the City and its creditors or for the
purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now
or hereinafter enacted; or
(g) the City admits in writing its inability to pay its debts generally as they
become due, or files a petition in bankruptcy or makes an assignment for the benefit of its
creditors or consents to the appointment of a receiver or trustee for itself or shall file a petition
or answer seeking reorganization or any arrangement under the federal bankruptcy laws or at y
other applicable law or statute of the United States of America or any state thereof,>r
KARMMAGRE1502009.4 20
(h) the City is adiudged insolvent by a court of competent jurisdiction or is
adjudged bankrupt on a petition of bankruptcy filed against the City, or an order, judgment or
decree is entered by any court of competent jurisdiction appointing, without the consent of the
City, a receiver or trustee of the City or of the whole or any part of its property and any of the
aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed
within sixty (60) days from the date of entry thereof, or
(i) if, under the provisions of any law for the relief or aid of debtors, any
court of competent jurisdiction shall assume custody or control of the City or of the whole or
any substantial part of its property and such custody or control shall not be terminated within
ninety (90) days from the date of assumption of such custody or control; or
0) any law that creates the Pledged Revenues is either repealed, declared
unconstitutional, or otherwise modified in a manner which is materially adverse to Bank's
security hereunder.
5.2 Exercise of Remedies. Upon the occurrence and during the continuance of an
Event of Default, the Noteholder may, by a notice in writing to the City, declare the principal
of the Note (if not then due and payable) to be immediately due and payable, and upon such
declaration, the same shall be immediately due and payable, anything contained in the Note or
this Agreement to the contrary notwithstanding. Upon the occurrence and during the
continuance of an Event of Default, the Noteholder may proceed to protect and enforce its
rights under the laws of the State of Florida or under this Agreement by such suits, actions or
special proceedings in equity or at law, or by proceedings in the office of any board or officer
having jurisdiction, either for the specific performance of any covenant or agreement contained
herein or in aid or execution of any power herein granted or for the enforcement of any proper
legal or equitable remedy, as the Noteholder shall deem most effective to protect and enforce
such rights. Without limiting the generality of the foregoing, the Noteholder shall have the right
to bring a mandamus action to require the City to perform its obligations under Article IV of
this Agreement.
In the enforcement of any remedy under this Agreement, to the extent permitted by law,
the Noteholder shall be entitled to sue for, enforce payment of and receive any and all amounts
then or during any default becoming, and at any time remaining, due from the City for
principal, interest or otherwise under any of the provisions of this Agreement or of the Note
then unpaid, with interest on overdue payments of principal and interest (to the extent
permitted by law) at the Default Rate, together with any and all costs and expenses of
collection and of all proceedings hereunder and under the Note (including, without limitation,
reasonable attorneys' and paralegal's fees in all proceedings, including administrative, appellate
and bankruptcy proceedings), but payable from the Pledged Revenues, without prejudice to any
other right or remedy of the Noteholder, and to recover and enforce any judgment or decree
against the City, but solely as provided herein and in the Note, for any portion of such amounts
remaining unpaid and interest, costs, and expenses as above provided, and to collect (but only
from the Pledged Revenues) in any manner provided by law, the monies adjudged or decree'
to be payable.
KAR\RLG' AGR -M502009.4 21
5.3 Remedies Not Exclusive. No remedy herein conferred upon or reserved to the
Noteholder is intended to be exclusive of any other remedy or remedies herein provided, and
each and every such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder.
5.4 Waivers, Etc. No delay or omission of the Noteholder 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 any acquiescence therein; and every power and remedy
given by this Agreement to the Noteholder may be exercised from time to time and as often
as may be deemed expedient.
The Noteholder may waive any default which in its opinion shall have been remedied
before the entry of final judgment or decree in any suit, action or proceeding instituted by it
under the provisions of this Agreement or before the completion of the enforcement of any
other remedy under this Agreement, but no such waiver shall be effective unless in writing and
no such waiver shall extend to or affect any other existing or any subsequent default or defaults
or impair any rights or remedies consequent thereon.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Covenants of City, Etc.; Successors. All of the covenants, stipulations,
obligations and agreements contained in this Agreement shall be deemed to be covenants,
stipulations, obligations and agreements of the City to the full extent authorized or permitted
by law, and all such covenants, stipulations, obligations and agreements shall be binding upon
the successor or successors thereof from time to time, and upon any officer, board,
commission, authority, agency or instrumentality to whom or to which any power or duty
affecting such covenants, stipulations, obligations and agreements shall be transferred by or in
accordance with law.
6.2 Term of Agreement. This Agreement shall be in full force and effect from the
date hereof until the Note and all other sums payable to the Bank hereunder have been paid
in full and those provisions that deal with retroactive cost increases for the Bank in related to
the tax exempt status of the Note shall survive the termination of this Agreement.
6.3 Notice of Changes in Fact. Promptly after the City becomes aware of the same,
the City will notify the Bank of (a) any changes in any material fact or circumstance
represented or warranted by the City in this Agreement or in connection with the issuance of
the Note, and (b) any default under this Agreement, specifying in each case the nature thereof
and what action the City has taken, is taking and/or proposes to take with respect thereto.
6.4 Amendments and Supplements. This Agreement may be amended or
supplemented from time to time only by a writing duly executed by each of the City and the
Noteholder.
KARTLG\AGREU02009.4 22
6.5 Notices. Any notice, demand, direction, request or other instrument authorized
or required by this Agreement to be given to or filed with the City or the Bank, shall be
deemed to have been sufficiently given or filed for all purposes of this Agreement if and when
sent by certified mail, return receipt requested:
(a) As to the City:
City of Ocoee, Florida
150 North Lakeshore Drive
Ocoee, Florida 34761-2258
Attention: Finance Manager
(b) As to the Bank:
SunTrust Bank, Central Florida, National Association
200 South Orange Avenue
Orlando, Florida 32801
Attention: Institutional and Governmental Banking
Either party may, by notice sent to the other, designate a different or additional address to
which notices under this Agreement are to be sent.
6.6 Benefits Exclusive. Except as herein otherwise expressly provided, nothing in
this Agreement, expressed or implied, is intended or shall be construed* to confer upon any
person, firm or corporation, other than the City and the Noteholder, any right, remedy or claim,
legal or equitable, under or by reason of this Agreement or any provision hereof, this
Agreement and all its provisions being intended to be and being for the sole and exclusive
benefit of the City and the Noteholder.
6.7 Severability. In case any one or more of the provisions of this Agreement, any
amendment or supplement hereto or of the Note shall for any reason be held to be illegal or
invalid, such illegality or invalidity shall not affect any other provision of this Agreement, any
amendment or supplement hereto or the Note, but this Agreement, any amendment or
supplement hereto and the Note shall be construed and enforced at the time as if such illegal
or invalid provisions had not been contained therein, nor shall such illegality or invalidity or
any application thereof affect any legal and valid application thereof from time to time. In case
any covenant, stipulation, obligation or agreement contained in the Note or in this Agreement
shall for any reason be held - to be in violation of law, then such covenant, stipulation,
obligation or agreement shall be deemed to be the covenant, stipulation, obligation or
agreement of the City to the full extent from time to time permitted by law.
6.8 Payments Due on Saturdays, Sundays and Holidays. In any case where the
date of maturity of interest on or principal of the Note or the date fixed for prepayment of the
Note shall be a Saturday, Sunday or a day on which the Bank is required, or authorized or not
prohibited, by law (including executive orders) to close and is closed, then payment of such
interest or principal shall be made on the next succeeding day on which the Bank is open for
business with the same force and effect as if paid on the date of maturity or the date fixed for
KA R\RLGW G RO502009.4
23
prepayment, and no interest on any such principal amount shall accrue for the period after such
date of maturity or such date fixed for prepayment.
6.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall be an original; but such counterparts shall
together constitute but one and the same Agreement, and, in making proof of this Agreement,
it shall not be necessary to produce or account for more than one such counterpart.
6.10 Applicable Lady. This Agreement shall be governed exclusively by and
construed in accordance with the applicable laws of the State of Florida.
6.11 No Personal Liability. Notwithstanding anything to the contrary contained
herein or in the Note, or in any other instrument or document executed by or on behalf of the
City in connection herewith, no stipulation, covenant, agreement or obligation contained herein
or therein shall be deemed or construed to be a stipulation, covenant, agreement or obligation
of any present or future member of the City Commission, officer, employee or agent of the
City, officer, employee or agent of a successor to the City, in any such person's individual
capacity, and no such person, in his or her individual capacity, shall be liable personally for
any breach or non -observance of or for any failure to perform, fulfill or comply with any such
stipulations, covenants, agreements or obligations, nor shall any recourse be had for the
payment of the principal of or interest on the Note or for any claim based thereon or on any
such stipulation, covenant, agreement or obligation, against any such person, in his or her
individual capacity, either directly or through the City or any successor to the City, under any
rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty
or otherwise and all such liability of any such person, in his or her individual capacity, is
hereby expressly waived and released.
6.12 Incorporation by Reference. All of the terms and obligations of the Resolution
and the Exhibits hereto are hereby incorporated herein by reference as if all of the foregoing
were fully set forth in this Agreement. All recitals appearing at the beginning of this
Agreement are hereby incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth herein.
"CITY"
BOARD OF CITY COMMISSIONERS
THE CITY OF OCOEE, FLORIDA
Mayor
[SEAL]
Attest:
KARMGIAGREl502009.4 24
City Clerk
SUNTRUST BANK, CENTRAL PLORTDA,
NATIONAL ASSOCIATION
IN
KAR\RLG\AGRE502009.4 25
Edward Stull, Jr.,
Vice President
EXHIBIT "A-1"
FORM OF NOTE
No. R-
$2,200,000.00
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF ORANGE
CITY OF OCOEE
STORMWATER UTILITY REVENUE PROMISSORY NOTE; SERIES 1996
MATURITY DATE: October 1, 2011 DATED DATE: May 8, 1996
Registered Owner: SunTrust Bank, Central Florida, National Association
Principal Amount: Two Million Two Hundred Thousand Dollars
KNOW ALL MEN BY THESE PRESENTS that the City of Ocoee, Florida (hereinafter
called the "City") for value received, hereby promises to pay to the order of the Registered
Owner identified above or registered assigns, as herein provided, principal payment dates
described in EXHIBIT A attached hereto from the revenues hereinafter mentioned, the
Principal Amount identified above in any coin or currency of the United States of America
which on the date of payment thereof is legal tender for the payment of public and private
debts, and to pay, solely from said sources, to the Registered Owner hereof by wire transfer
or check transmitted to the Registered Owner at his address as it appears on the Note
registration books of the City as it appears on the 15th day of the calendar month preceding
the applicable interest payment date, interest on said Principal Amount at the Interest Rate per
annum described herein on each January 1, April 1, July 1, and October 1 commencing
October 1, 1997 from the interest payment date to which interest has been provided for or, in
the case of interest to be paid October 1, 1997 from May 8, 1996.
The Interest Rate borne by this Note shall be:
(i) initially, 4.30%, to be adjusted on an annual basis as follows:
October 1, 1997 adjusted to 4.45%;
October 1, 1998 adjusted to 4.60%;
October 1, 1999 adjusted to 4.75%;
October 1, 2000 adjusted to 4.90%;
October 1, 2001 adjusted to 5.05%;
October 1, 2002 adjusted to 5.15%;
October 1, 2003 adjusted to 5.25%;
October 1, 2004 adjusted to 5.35%;
October' 1, 2005 adjusted to 5.45%;
KARMG\AGRE1502009.4 A- I
and October 1, 2006 through the Maturity Date adjusted to such rate
determined by the following formula:
five vear Eurodollar ' Rate + 0.75%
1.48;
subject to the adjustments set forth in the Agreement upon the occurrence
of the events referred to therein;
(ii) following the occurrence and during the continuance of any Event of
Default, the Default Rate; and
(iii) following a Determination of Taxability, the Taxable Rate.
The Note shall be subject to redemption prior to its maturity at the option of the City,
in whole or in part on any date, without premium at the option of the City as provided in the
Agreement.
Notice of such redemption shall be given in the manner required by the Agreement
described below.
This Note is authorized in the aggregate principal amount of $2,2.00,000, issued to
acquire, construct, improve and erect certain capital improvements, all in full compliance with
the Constitution and Statutes of the State of Florida, including particularly Chapter 166, Part
II, Florida Statutes, and Resolution No. duly adopted by the City on May 7, 1996, as
supplemented (hereinafter collectively called the "Resolution') and is subject to all the terms
and conditions of such Resolution and the Agreement. All capitalized undefined terms used
herein shall have the meaning set forth in the Agreement.
This Note is payable solely from and secured by a pledge of the Net Revenues of the
System levied and collected by the City, and the moneys in the Reserve Fund pursuant to the
Agreement (collectively, the "Pledged Revenues") in the manner provided in the Agreement.
Reference is made to the Agreement for more complete definition and description of the
System and the Pledged Revenues.
This Note does not constitute a general indebtedness of the City within the meaning of
any constitutional, statutory or charter provision or limitation, and it is expressly agreed by the
Holder of this Note that such Noteholder shall never have the right to require or compel the
exercise of the ad valorem taxing power of the City or taxation of any real or personal property
therein for the payment of the principal of and interest on this Note or the making of any
reserve or other payments provided for in the Agreement.
It is further agreed between the City and the Holder of this Note that this Note and the
indebtedness evidenced thereby shall not constitute a lien upon the System, or any part thereof',
KAR\RLG AGRE1502009.4 A-2
or on any other property of or in the City, but shall constitute a lien only on the Pledged
Revenues all in the manner provided in the Agreement.
The City has covenanted, in the Agreement, to fix, establish, revise from time to time
whenever necessary, maintain and collect always such fees, rates, rentals and other charges for
the use of the products, services and facilities of the System which will always provide Net
Revenues in each year sufficient to pay one hundred fifteen percent (115%) of the Debt Service
requirement as the same shall become due in such year. Such rates, fees, rentals or other
charges shall not be reduced so as to render them insufficient to provide revenues for the
purposes provided therefor by the Agreement. The City has entered into certain further
covenants with the Holders of the Note of this issue for the terms of which reference is made
to the Agreement.
It is certified that this Note is authorized by and is issued in conformity with the
requirements of the Constitution and Statutes of the State of Florida.
The transfer of this Note is registrable by the Noteholder hereof in person or by his
attorney or legal representative at the office of the Registrar but only in the manner and subject
to the conditions provided in the Resolution and upon surrender and cancellation of this Note.
This Note shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Resolution until it shall have been authenticated by the execution
by the Registrar of the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the City of Ocoee, Florida, has issued this Note and has
caused the same to be signed by its Mayor and countersigned and attested to by its Clerk (the
signatures of the Mayor and the Clerk being authorized to be facsimiles of such officers'
signatures), and its seal or facsimile thereof to be affixed, impressed, imprinted, lithographed
or reproduced hereon, all as of the day of 1996.
CITY OF OCOEE, FLORIDA
(SEAL)
(manual or facsimile)
Mayor
ATTESTED AND COUNTERSIGNED:
_(manual or facsimile)
Clerk
KAR\RL&AGRE1502009.4 A-31
CERTIFICATE OF AUTHENTICA"PION
This Note is one of the Notes issued under the provisions of the within mentioned
Resolution.
Date of Authentication:
Registrar, as Authenticating Agent
By: (manual signature)
Authorized Officer
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of transferee)
the attached bond of the City of Ocoee, Florida, and does hereby constitute and appoint ,
attorney, to transfer the said Note on the books kept for Registration thereof, with full power
of substitution in the premises.
Date
Signature Guaranteed by
[member firm of
the New York Stock Exchange or a
commercial bank or a trust company.]
By:_
Title:
NOTICE: No transfer will be registered
and no new Note will be issued in the
name of the Transferee, unless the
signature to this assignment corresponds
with the name as it appears upon the face
of the within Note in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
Federal Employer Identification Number of
the Transferee is supplied.
[END OF FORM OF NOTE]
KARMG\AGR.a502009.4 A-4
EXHIBIT A
NOTE PAYMENT SCHEDULE
KARMMAGREM03009.3 A-5
RESOLUTION 96-12
A RESOLUTION AUTHORIZING THE EXECUTION AND
DELIVERY OF A LOAN AGREEMENT AND PROMISSORY NOTE
AND THE BORROWING OF $2,200,000 TO FINANCE THE COST
OF ACQUISITION OF EQUIPMENT AND LAND AND
CONSTRUCTION OF AND IMPROVEMENTS TO CERTAIN
STORMWATER UTILITY CAPITAL IMPROVEMENTS; PLEDGING
THE STORMWATER MANAGEMENT UTILITY FEES OF THE
CITY TO SECURE PAYMENT OF THE PROMISSORY NOTE;
MAKING CERTAIN COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; PROVIDING FOR THE RIGHTS,
SECURITY 'AND REMEDIES OF THE HOLDERS THEREOF;
AUTHORIZING A NEGOTIATED SALE OF SAID PROMISSORY
NOTE; AND PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION THE CITY OF OCOEE,
FLORIDA:
ARTICLE 1
DEFINITIONS, AUTHORITY AND FINDINGS;
RESOLUTION CONSTITUTES CONTRACT
SECTION 1.1 Definitions. Unless otherwise defined herein, capitalized terms
shall have the meaning as set forth in the Loan Agreement, defined herein. In addition to the
words and terms elsewhere defined in this Resolution and the Loan Agreement, the following
words and terms as used in this Resolution shall have the following meanings unless the
context or use indicates another or different meaning or intent:
"Act" shall mean the Code of Ordinances of the City of Ocoee, Part II of Chapter 166,
Florida Statutes, as amended, and other applicable provisions of law.
"Bank" shall mean SunTrust Bank, Central Florida, National Association.
"Clerk" shall mean the City Clerk or acting City Clerk of the City.
"City" shall mean the City of Ocoee, Florida.
"Loan Agreement" shall mean the Loan Agreement by and between the City and the
Bank dated as of May 1, 1996.
"Note" shall mean the City's Stormwater Utility Revenue Promissory Note, Series 1996
issued pursuant to the Loan Agreement.
"Resolution" shall mean this Resolution as the same may from time to 67- c,, `. 5. _ r. _ , F,r
and supplemented in accordance with the terms hereof which authorized the execution and
delivery of the Loan Agreement and the Note.
Words importing the singular number shall include the plural number in each case and
vice versa, and words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter gender and vice versa.
SECTION 1.2 Authority for Resolution. This Resolution is adopted pursuant
to the provisions of the; Act. The City has ascertained and hereby determined that adoption of
this Resolution is necessary to carry out the powers, purposes and duties expressly provided
in the Act, that each and every matter and thing as to which provision is made herein is
necessary in order to carry out and effectuate the purposes of the City in accordance with the
Act and that the powers herein exercised are in each case exercised in accordance with the
provisions of the Act and in furtherance of the purposes of the City.
SECTION 1.3 Authorization of Loan Agreement. The City hereby authorizes
and directs the Mayor and the Clerk to execute the Loan Agreement and to deliver the Loan
Agreement to the Bank. All of the provisions of the Loan Agreement when executed and
delivered by the City as authorized herein, shall be deemed to be a part of this resolution as
fully and to the same extent as if incorporated verbatim herein, and the Loan Agreement shall
be in substantially the form of the Loan Agreement attached hereto as Exhibit A with such
changes, amendments, modifications, omissions and additions, including the date of such Loan
Agreement, as may be approved by said Mayor and the Clerk. Execution by the Mayor and
the Clerk of the Loan Agreement shall be deemed to be conclusive evidence of approval of
such changes.
SECTION 1.4 Sale of Note. The sale of the Note to the Bank pursuant to terms
and provisions of this Resolution and the Loan Agreement is hereby approved. Delivery of
the Note shall be made to the Bank or its designee upon payment therefor in accordance with
the terms of sale.
SECTION 1.5 Truth -in -Bonding Statement. The City is proposing to issue
$2,200,000 of debt or obligation for the purpose of constructing the 1996 Project. This debt
or obligation is expected to be repaid over a period of fifteen (15) years. At a forecasted
interest rate of 4.77%, and assuming, only for purposes of making this statement, that the
interest rate on the Note is adjusted on October 1, 2006 to 5.060,4o the total interest paid over
the life of the debt or obligation is expected to be $1,01,810.
The source of repayment or security for this proposal is the City's existing Stormwater
Utility Fees. Authorizing this debt or obligation will result in approximately $216,000 of the
City's Stormwater Utility Fees not being available to finance the other services of the City each
year for fifteen (15) years.
SECTION 1.6 Designation of Note. For the purpose of qualifying the Note for
the exception contained in Section 265(b)(3) of the Code, the City hereby designates the Note
as a Qualified Tax -Exempt Obligation.
SECTION 1.7 Authority of Officers. In the event that the office of any officer
of the City mentioned in this Resolution shall be abolished or any two or more of such offices
shall be merged or consolidated, or in the event of a vacancy in any such office by reason of
death, resignation, removal from office or otherwise, or in the event any such officer shall
become incapable of performing the duties of his office by reason of sickness, absence from
the City or otherwise, all powers conferred and all obligations and duties imposed upon such
officer shall be performed by the officer succeeding to the principal functions thereof or by the
officer upon whom such powers, obligations and duties shall be imposed by law.
SECTION 1.8 Benefits Exclusive. Except as herein otherwise expressly
provided, nothing in this Resolution express or implied is intended or shall be construed to
confer upon any person, firm or corporation other than the City and the Holder of the Note
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 City and
the Holder from time to time of the Note issued hereunder.
SECTION 1.9 Severability. In case any one or more of the provisions of this
Resolution or of the Note issued hereunder shall for any reason be held to be illegal or invalid,
such illegality or invalidity shall not affect any other provision of this Resolution, or of the
Note, but this Resolution and the Note shall be construed and enforced as if such illegal or
invalid provision had not been contained therein. The Note is issued and this Resolution is
adopted with the intent that the laws of the State shall govern their construction.
SECTION 1.10 General Authorization. The officers and agents of the City are
hereby authorized and directed to do all the acts and things required of them by the Loan
Agreement and this Resolution for the full, punctual and complete performance of all of the
terms, covenants, provisions and agreements contained in the Loan Agreement, the Note and
this Resolution binding upon the City.
SECTION 1.11 Repeal. All Resolutions of the City, or parts thereof, which are
in conflict or inconsistent with any provision of this Resolution are hereby repealed and
declared to be inapplicable, and the provisions of this Resolution shall be and remain
controlling.
SECTION 1.12 Headings, etc. Any heading preceding the texts of _the several
articles and Sections hereof, and the table of contents hereto shall be solely for convenience
of reference and shall not constitute a part of this Resolution, nor shall they affect its meaning,
construction or effect.
SECTION 1.13 Effective Date. This Resolution shall take effect immediately
upon its adoption.
ADOPTED this 7th day of May, 1996.
Mayor of the City of Ocoee, Florida
[SEAL]
Attest:
Clerk
EXHIBIT A
Form of Loan Agreement