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HomeMy WebLinkAbout2009-005 Capital Improvement Revenue Note, Series 2006 - RESOLUTION NO. 2009-005 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA; PROVIDING FOR THE REFUNDING OF THE CITY'S CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2006; AUTHORIZING THE ISSUANCE OF A CAPITAL IMPROVEMENT REFUNDING REVENUE NOTE, SERIES 2009 OF THE CITY IN THE PRINCIPAL AMOUNT NOT TO EXCEED $5,000,000 TO FINANCE THE COST THEREOF; PROVIDING THAT THE SERIES 2009 NOTE SHALL BE A LIMITED OBLIGATION OF THE CITY PAYABLE FROM NON-AD VALOREM REVENUES BUDGETED AND APPROPRIATED AS PROVIDED HEREIN; DESIGNATING THE SERIES 2009 NOTE FOR CERTAIN TAX-EXEMPT OBLIGATIONS CONTAINED IN SECTION 265(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; PROVIDING FOR THE RIGHTS, SECURITIES AND REMEDIES FOR THE OWNER OF THE SERIES 2009 NOTE; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA THAT: Section 1: Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Act (as defined in Section 2 hereof) . Section 2: Definitions. The following words and phrases shall have the following meanings when used herein: "Act" means the Charter of the City of Ocoee, Florida, Chapter 166, Part II, Florida Statutes, as amended, the Issuer's home rule powers, and other applicable provisions of law. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is closed. "City Attorney" shall mean the City Attorney of the Issuer. "City Manager" shall mean the City Manager or assistant, deputy, interim or acting City Manager of the Issuer. "Clerk" shall mean the City Clerk or assistant or deputy City Clerk of the Issuer, or such other person as may be duly authorized by the City Commission of the Issuer to act on his or her behalf. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Commitment" means the proposal to purchase the Series 2009 Note, dated August 17, 2009, submitted to the Issuer by the Original Purchaser and attached hereto as Exhibit D. "Issuer" means the City of Ocoee, Florida, a municipal corporation of the State of Florida. "Finance Director" means the Finance Director of the Issuer or in her absence or inability to act, such other person as may be duly authorized to act on her behalf. "LIBOR" means (i) the rate per annum equal to the offered rate for deposits in U.S. dollars for a one (1) month period, which rate appears on that page of Bloomberg reporting service, or such similar service as determined by the Original Purchaser, that displays British Bankers' Association interest settlement rates for deposits in U.S. Dollars, as of 11:00 A.M. (London, England time) two (2) Business Days prior to the interest rate determination date; provided, that if no such offered rate appears on such page, the rate used for such Interest Period will be the per annum rate of interest determined by the Original Purchaser to be the rate at which U.S. dollar deposits for the Interest Period, are offered to the Original Purchaser in the London Inter-Bank Market as of 11:00 A.M. (London, England time), on the day which is two (2) Business Days prior to the interest rate determination date, divided by (ii) a percentage equal to 1.00 minus the maximum reserve percentages (including any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upward to the next l/100th of 1%) in effect on any day to which the Original Purchaser is subject with respect to LmOR loan pursuant to regulations issued by the Board of Governors of the Federal Reserve System with respect to eurocurrency funding (currently referred to as "eurocurrency liabilities" under Regulation D). This percentage will be adjusted automatically on and as of the effective date of any change in any reserve percentage. "Maturity Date" means October 1, 2024. "Maximum Corporate Tax Rate" shall mean 35%. "Mayor" means the Mayor of the Issuer or in his or her absence or inability to act, the Vice Mayor of the Issuer or such other person as may be duly authorized by the City Commission to act on its behalf. 2 "Non-Ad Valorem Revenues" means all revenues of the Issuer not derived from ad valorem taxation, and which are lawfully available to be used to pay debt service on the Series 2009 Note. "Original Purchaser" means SunTrust Bank, Orlando, Florida. "Owner" means the Person in whose name a Series 2009 Note shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. "Pledged Revenues" means the Non-Ad Valorem Revenues budgeted and appropriated as provided herein. "Principal Office" means, with respect to the Original Purchaser, the office located at 200 South Orange A venue, Orlando, Florida 32801, Attention: Institutional and Governmental Banking, or such other office as the Original Purchaser may designate to the Issuer in writing. "Purchase Price" means an amount equal to 100% of the principal amount of any Series 2009 Note tendered or deemed tendered pursuant to Section 7(D) hereof, plus accrued and unpaid interest thereon to the date of purchase. "Put Date" has the meaning ascribed thereto in Section 7(D) hereof. "Refunded Note" means the Issuer's Capital Improvement Revenue Note, Series 2006, to be refunded with the proceeds of the Series 2009 Note. "Refunding" means the refunding of the Refunded Note, pursuant to Sections 4 and 12 hereof. "Resolution" means this Resolution, pursuant to which the Series 2009 Note is authorized to be issued, including any supplemental resolution(s). "Series 2009 Note" means the Issuer's Capital Improvement Refunding Revenue Note, Series 2009. "State" means the State of Florida. "Variable Interest Rate" shall be as defined in Section 7(A) hereof. 3 Section 3: Findings. (A) The Issuer deems it necessary, beneficial and in its best interest to provide for the Refunding. Issuance of the Series 2009 Note to finance the Refunding satisfies a paramount public purpose (B) The estimated sum required for the Refunding will be derived from the proceeds of the sale of the Series 2009 Note. (C) Debt service on the Series 2009 Note will be payable from a covenant to budget and appropriate Non-Ad Valorem Revenues as provided herein. The Pledged Revenues will be sufficient to pay the principal and interest on the Series 2009 Note herein authorized, as the same become due, and to make all deposits required by this Resolution. (D) The Issuer has received the Commitment from the Original Purchaser to purchase the Series 2009 Note. (E) The City adopted this Resolution after a public hearing preceded by at least seven (7) days notice of the hearing and the proposed action by publication in a newspaper of general circulation in the City in accordance with the requirements of the City Charter of the City. (F) In consideration of the purchase and acceptance of the Series 2009 Note authorized to be issued hereunder by those who shall be the Owner thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owner. Section 4: Refunding of Refunded Note. The City does hereby authorize the Refunding in accordance herewith. Section 5: Negotiated Sale. Because of the characteristics of the Series 2009 Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Series 2009 Note, it is in the best interest of the Issuer to accept the Commitment of the Original Purchaser to purchase the Series 2009 Note at a private negotiated sale. The City Manager is hereby authorized to execute and deliver the Commitment to the Original Purchaser. Prior to the issuance of the Series 2009 Note, the Issuer shall receive from the Original Purchaser a Purchaser's Certificate, the form of which is attached hereto as Exhibit B and the Disclosure Letter containing the information required by Section 218.385, Florida Statutes, a form of which is attached hereto as Exhibit C. Section 6: Authorization of Series 2009 Note. Subject and pursuant to the provisions of this Resolution, the obligation of the Issuer to be known as the "City of Ocoee, Florida, Capital Improvement Refunding Revenue Note, Series 2009" is hereby authorized to be issued under 4 and secured by the Pledged Revenues pursuant to this Resolution, in the principal amount not to exceed $5,000,000 for the purpose of providing funds to pay the costs of the Refunding. Section 7: Description of Series 2009 Note. The Series 2009 Note shall be dated the date of its execution and delivery, which shall be a date agreed upon by the Issuer and the Original Purchaser, subject to the following terms: (A) Interest Rate. The Series 2009 Note shall have a variable interest rate. The variable interest rate shall be equal to 67% of the sum of LmOR plus 2.60%, per annum, provided, however, that in no event shall the variable interest rate be less than 2.10%, per annum, irrespective of the LIBOR based rate. The interest rate shall be subject to adjustment as described below, and is herein referred to as the "Variable Interest Rate", calculated on a 30/360 day basis; provided, however, that such interest rate shall in no event exceed the maximum interest rate permitted by the Act. The Variable Interest Rate shall be reset monthly on the first business day of each month for that month. (B) Adjustments of Interest Rate. If (i) the interest on the Series 2009 Note becomes includable in the gross income of the Owner for Federal income tax purposes (an "Event of Taxability") or because of the enactment of any amendments to existing law, the effect of which would adversely affect the Owner's after-tax yield, or (ii) the Series 2009 Note shall not be a "qualified tax-exempt obligation" as described in Section 265(b)(3) of the Code, then the Owner shall have the right to adjust the Variable Interest Rate in order to maintain the same after-tax yield as if the events in (i) or (ii) above had not occurred. Furthermore, in the event of a change in the Maximum Corporate Tax Rate, the Original Purchaser shall have the right to adjust the Variable Interest Rate in order to maintain the same after tax yield. This adjustment shall survive payment of the Series 2009 Note until such time as the federal statute of limitations under which the interest on the Series 2009 Note could be declared taxable under the Code shall have expired. For so long as this Series 2009 Note is owned by the Owner, the Variable Interest Rate set forth above assumes a maximum corporate tax rate of 35%. In the event of a change in the Maximum Corporate Tax Rate, so long as this Series 2009 Note is owned by the Owner, or its successors and assigns, the Owner shall have the right to adjust such Variable Interest Rate in order to maintain the same after-tax yield. (C) Interest Payment Dates. Interest on the Series 2009 Note shall be paid semi- annually, commencing April 1, 2010, and on each April 1 and October 1 thereafter (each an "Interest Payment Date") until the Maturity Date, unless earlier redeemed. (D) Put Date. On October 1, 2012 (the "Put Date"), the Original Purchaser shall have the option, exercisable in its sole discretion, to put the then outstanding principal amount of the Series 2009 Note, plus accrued but unpaid interest on the Series 2009 Note requiring the Issuer to payoff the Series 2009 Note in full on the Put Date. The Original Purchaser shall provide notice (a "Put Notice") to the Issuer not less than one hundred twenty (120) days prior to the Put Date and the Original Purchaser shall set forth the rate of interest or the formula pursuant 5 to which the rate of interest shall be set to apply to the Series 2009 Note on and after the Put Date. The Issuer shall then mutually agree with the Original Purchaser to the proposed new interest rate, or shall repay the Series 2009 Note in full on the Put Date. (E) Principal Payment Dates. Principal on the Series 2009 Note shall be paid annually, commencing October 1, 2010, and on the first (151) day of each October thereafter (each a "Principal Payment Date") until the Maturity Date, unless earlier redeemed. (F) The Series 2009 Note is to be in substantially the form set forth in Exhibit A attached hereto, together with such non-material changes as shall be approved by the Mayor, such approval to be conclusively evidenced by the execution thereof by the Mayor. The Series 2009 Note shall be executed on behalf of the Issuer with the manual or facsimile signature of the Mayor and the City Manager and the official seal of the Issuer, and be attested and countersigned with the manual or facsimile signature of the City Clerk. In case anyone or more of the officers who shall have signed or sealed the Series 2009 Note or whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before the Series 2009 Note so signed and sealed has been actually sold and delivered, such Series 2009 Note may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Series 2009 Note had not ceased to hold such office. The Series 2009 Note may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Series 2009 Note shall hold the proper office of the Issuer, although, at the date of such Series 2009 Note, such person may not have held such office or may not have been so authorized. The Issuer may adopt and use for such purposes the facsimile signatures of any such persons who shall have held such offices at any time after the date of the adoption of this Resolution, notwithstanding that either or both shall have ceased to hold such office at the time the Series 2009 Note shall be actually sold and delivered. Section 8: Registration and Exchange of Series 2009 Note; Persons Treated as Owner. The Series 2009 Note is initially registered to the Original Purchaser. So long as the Series 2009 Note shall remain unpaid, the Clerk will keep books for the registration and transfer of the Series 2009 Note. The Series 2009 Note shall be transferable only upon such registration books. The Person in whose name the Series 2009 Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on such Series 2009 Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2009 Note to the extent of the sum or sums so paid. Section 9: Payment of Principal and Interest; Limited Obligation. The Issuer promises that it will promptly pay the principal of and interest on the Series 2009 Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof. The Series 2009 Note shall not be or constitute a general obligation or indebtedness of the Issuer as a "bond" within the meaning of Article VII, Section 12 of the Constitution of 6 Florida, but shall be payable solely from the Pledged Revenues in accordance with the terms hereof. No holder of any Series 2009 Note issued hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Series 2009 Note, or be entitled to payment of such Series 2009 Note from any funds of the Issuer except from the Pledged Revenues as described herein. Section 10: Prepayment. The Series 2009 Note may be prepaid by the Issuer at any time without penalty or premium. The Issuer shall prepay the Series 2009 Note with the proceeds of any sale of the property purchased with the proceeds of the Refunded Note promptly upon receipt thereof. Section 11: Covenant to Budget and Appropriate. (A) Subject to the next paragraph, the Issuer covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues, amounts sufficient to pay the principal of and interest on the Series 2009 Note not being paid from other amounts as the same shall become due. Such covenant and agreement on the part of the Issuer to budget and appropriate such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. No lien upon or pledge of such budgeted Non-Ad Valorem Revenues shall be in effect until such monies are budgeted and appropriated. The Issuer further acknowledges and agrees that the obligations of the Issuer to include the amount of any deficiency in payments in each of its annual budgets and to pay such deficiencies from Non-Ad Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with the remedies set forth herein. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Revenues, nor does it preclude the Issuer from pledging in the future its Non-Ad Valorem Revenues, nor does it require the Issuer to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the holder of the Series 2009 Note a prior claim on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. Such covenant to budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the prior payment of obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereafter entered into (including the payment of debt service on bonds and other debt instruments). Anything in this Resolution to the contrary notwithstanding, it is understood and agreed that all obligations of the Issuer hereunder shall be payable from the portion of Non-Ad Valorem Revenues budgeted and appropriated as provided for hereunder and nothing herein shall be deemed to pledge ad valorem tax revenues or to permit or constitute a mortgage or lien upon any assets owned by the Issuer and no holder of the Series 2009 Note nor any other person, may compel the levy of ad valorem taxes on real or personal property within the boundaries of the Issuer. Notwithstanding any provisions of this Resolution or the Series 2009 Note to the contrary, the Issuer shall never be obligated to maintain or continue any of the activities of the Issuer which generate user service charges, 7 regulatory fees or any Non-Ad Valorem Revenues. Except as provided hereafter, neither this Resolution nor the obligations of the Issuer hereunder shall be construed as a pledge of or a lien on all or any legally available Non-Ad Valorem Revenues of the Issuer, but shall be payable solely as provided herein and is subject in all respects to the provisions of Section 166.241, Florida Statutes, and is subject, further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer. (B) During such time as this Series 2009 Note is outstanding which is secured by the covenant to budget and appropriate legally available Non-Ad Valorem Revenues, the Issuer agrees and covenants with the Owner not to issue debt payable from such Non-Ad Valorem Revenues unless the ratio of Non-Ad Valorem Revenues (average of actual receipts over the prior two years) to projected maximum annual debt service on debt secured by and/or payable solely from such Non-Ad Valorem Revenues exceeds 1.25:1.0 for the preceding twelve (12) months, calculated in accordance with the terms of the formula below. The Issuer agrees that, as soon as practicable upon the issuance of debt by the Issuer which is secured by its Non-Ad Valorem Revenues, it shall deliver to the Original Purchaser a certificate setting forth the calculations of the financial ratios provided in this Section 11 and certifying that it is in compliance with the provisions of this Section 11. The debt service coverage formula shall be calculated as follows: [total general fund revenues - ad valorem revenues (general fund)] - [general government expenditures (general fund) + public safety expenditures (general fund)- ad valorem revenues (general fund)] maximum annual debt service for both the existing and proposed debt Section 12. Refunding; Application of Proceeds of Series 2009 Note. Simultaneously with the issuance of the Series 2009 Note, the Refunded Note held by the Original Purchaser shall be cancelled and replaced in its entirety and refunded by the delivery of the Series 2009 Note. Upon delivery of the Series 2009 Note to the Original Purchaser, as owner of the Refunded Note, to finance the Refunding, all of the Issuer's obligations related to the Refunded Note shall be deemed satisfied. Section 13: Tax Covenant. The Issuer covenants to the Owner of the Series 2009 Note provided for in this Resolution that the Issuer will not make any use of the proceeds of the Series 2009 Note, at any time during the term of the Series 2009 Note, which, if such use had been reasonably expected on the date the Series 2009 Note was issued, would have caused such Series 2009 Note to be an "arbitrage bond" within the meaning of the Code. The Issuer will comply with the requirements of the Code and any valid and applicable rules and regulations promulgated thereunder necessary to ensure the exclusion of interest on the Series 2009 Note from the gross income of the holders thereof for purposes of federal income taxation. 8 Section 14: Bank Oualified. The Issuer hereby designates the Series 2009 Note as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code. The Issuer and any subordinate entities of the Issuer and any issuer of "tax-exempt" debt that issues" on behalf of" the Issuer do not reasonably expect during the calendar year 2009 to issue more than $30,000,000 of "tax-exempt" obligations including the Series 2009 Note, exclusive of any private activity bonds as defined in Section 141(a) of the Code (other than qualified 501(c)(3) bonds as defined in Section 145 of the Code). Section 15: Payment of Costs of Issuance. The Finance Director is hereby authorized to pay the costs of issuance of the Series 2009 Note from legally available revenues of the Issuer. Section 16: Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Series 2009 Note except with the written consent of the Owner of the Series 2009 Note. Section 17: Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series 2009 Note is intended or shall be construed to give to any Person other than the Issuer and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Owner. Section 18: Series 2009 Note Mutilated, Destroyed, Stolen or Lost. In case the Series 2009 Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Series 2009 Note of like tenor as the Series 2009 Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Series 2009 Note destroyed, stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably satisfactory to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Series 2009 Note so surrendered shall be canceled. Section 19: Impairment of Contract. The Issuer covenants with the Owner of the Series 2009 Note that it will not, without the written consent of the Owner of the Series 2009 Note, enact any ordinance or adopt any resolution which repeals, impairs or amends this Resolution or the Series 2009 Note in any manner adverse to the Owner the rights granted to the Owner of the Series 2009 Note hereunder. Section 20: Budget and Financial Information. The Issuer shall provide the Owner of the Series 2009 Note with a copy of its annual budget within thirty (30) days of its adoption and such other financial information regarding the Issuer as the Owner of the Series 2009 Note may reasonably request. The Issuer hereby covenants that it shall promptly give written notice to 9 the Owner of the Series 2009 Note of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Series 2009 Note. The Issuer shall provide the Owner of the Series 2009 Note with annual financial statements for each fiscal year of the Issuer not later than two hundred ten (210) days after the close of such fiscal year, prepared in accordance with applicable law and generally accepted accounting principles and audited by an independent certified public accountant. All accounting terms not specifically defined or specified herein shall have the meanings attributed to such terms under generally accepted accounting principles as in effect from time to time, consistently applied. Section 21: Events of Default; Remedies of Noteholder. The following shall constitute "Events of Default": (i) if the Issuer fails to pay any payment of principal of or interest on any Note as the same becomes due and payable; (ii) if the Issuer defaults in the performance or observance of any covenant or agreement contained in this Resolution or the Series 2009 Note (other than set forth in (i) above) and fails to cure the same within thirty (30) days; or (iii) filing of a petition by or against the Issuer relating to bankruptcy, reorganization, arrangement or readjustment of debt of the Issuer or for any other relief relating to the Issuer under the United States Bankruptcy Code, as amended, or any other insolvency act or law now or hereafter existing, or the involuntary appointment of a receiver or trustee for the Issuer, and the continuance of any such event for 90 days undismissed or undischarged. Section 22: Additional Debt Secured by Covenant to Budget and Appropriate. During such time as the Series 2009 Note is outstanding hereunder, the Issuer agrees that, as soon as practicable upon the issuance of debt by the Issuer which is secured by its Non-Ad Valorem Revenues, it shall deliver to the Owner a certificate setting forth the calculations of the financial ratio provided in subsection B of Section 11 hereof certifying that it is in compliance to the Original Purchaser. Section 23: Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 24: Business Days. In any case where the due date of interest on or principal of a Series 2009 Note is not a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owner. Section 25: Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 26: Rules of Interpretation. Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as 10 originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 27: Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. Section 28: Members of the City Commission of the Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution or the Series 2009 Note or for any claim based thereon or otherwise in respect thereof, shall be had against any past, present or future Mayor or any member of the City Commission of the Issuer, either directly or through the Issuer, it being expressly understood: (a) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the Mayor and the members of the City Commission of the Issuer, as such, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, or the Exhibits attached hereto, and (b) that any and all such personal liability, either at common law or in equity or by constitution, statute, or the city's charter of, and any and all such rights and claims against, the Mayor and every such member of the City Commission of the Issuer, as such, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Series 2009 Note, on the part of the Issuer. Section 29: Authorizations. The Mayor and any member of the City Commission, the City Manager, the City Attorney, the City Clerk and such other officials and employees of the Issuer as may be designated by the Issuer are each designated as agents of the Issuer in connection with the issuance and delivery of the Series 2009 Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Issuer that are necessary or desirable in connection with the execution and delivery of the Series 2009 Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 30: Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 31: No Third Party Ben~ficiaries. Except such other persons as may be expressly described in this Resolution or in the Series 2009 Note, nothing in this Resolution or in the Series 2009 Note, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer and the Owner, any right, remedy or claim, legal or equitable, under and by reason of this Resolution or of the Series 2009 Note, or any provisions thereof, all provisions thereof being intended to be and being for the sole and exclusive benefit of the Issuer and the persons who shall from time to time be the holders. 11 Section 32: Effective Date. This resolution shall become immediately effective upon its passage and adoption. PASSED AND RESOLVED at the regular meeting of the City Commission held in the City of Ocoee, Florida, on the 15th day of September, 2009. ~~!) f. ~. - /v..-r I, '7 S. Scott Vandergrift ~ Mayor ATTEST: ~sU~ BetnEikenberry Clerk Approved as to form and legality for the use and reliance of the City of Ocoee, Florida, only. (?Jl/Ut:1 Paul Rosenthal City Attorney j: \ wdox\ docs\ clients \25136 \ 004 \ ordres\ 00374939.doc 12 EXHIBIT A [FORM OF SERIES 2009 NOTE] ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER'S CERTIFICATE IN THE FORM ATTACHED TO THE RESOLUTION (HEREIN DEFINED) CERTIFYING, AMONG OTHER THINGS, THAT SUCH HOLDER IS AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF 1933, AS AMENDED, AND REGULATION D THEREUNDER. October 1, 2009 $5,000,000 CITY OF OCOEE, FLORIDA CAPITAL IMPROVEMENT REFUNDING REVENUE NOTE, SERIES 2009 Maturity Date: October 1, 2024 Interest Rate: Variable (subject to adjustment as described herein) KNOW ALL MEN BY THESE PRESENTS that the City of Ocoee, Florida (the "Issuer"), a municipal corporation created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of SunTrust Bank, or registered assigns (hereinafter, the "Owner"), the principal sum of $5,000,000 on the dates as hereinafter described, together with interest on the principal balance outstanding from time to time at the Variable Interest Rate (which is described herein). This Series 2009 Note shall have a final maturity date of October 1, 2024 (the "Maturity Date"). This Series 2009 Note shall initially have a variable interest rate per annum equal to 67% of the sum of LmOR plus 2.60 (subject to adjustment as described below, the "Variable Interest Rate"), calculated on a 30/360 day basis, provided, however, that such interest rate shall in no event exceed the maximum interest rate permitted by the Act and shall in no event be a rate of less than 2.10%, per annum. The Variable Interest Rate shall be reset monthly at the rate as of the first business day of the month for that month. Principal of and interest on this Series 2009 Note is payable in lawful money of the United States of America at such place as the Owner may designate to the Issuer in writing. If (i) the interest on the Series 2009 Note becomes includable in the gross income of the Owner for Federal income tax purposes (an "Event of Taxability") or because of the enactment of any amendments to existing law, the effect of which would adversely affect the Owner's Exhibit A-I after-tax yield, or (ii) the Series 2009 Note shall not be a "qualified tax-exempt obligation" as described in Section 265(b )(3) of the Code, then the Owner shall have the right to adjust the Variable Interest Rate in order to maintain the same after-tax yield as if the events in (i) or (ii) above had not occurred. This adjustment shall survive payment of this Series 2009 Note until such time as the federal statute of limitations under which the interest on this Series 2009 Note could be declared taxable under the Internal Revenue Code of 1986, as amended, shall have expired. For so long as this Series 2009 Note is owned by the Owner, the Interest Rate set forth above assumes a maximum corporate tax rate of 35%. In the event of a change in the maximum corporate tax rate, so long as this Series 2009 Note is owned by the Owner, or its successors and assigns, the Owner shall have the right to adjust such Interest Rate in order to maintain the same after-tax yield. Interest on this Series 2009 Note shall be paid semi-annually, commencing April 1, 2010, and each April 1 and October 1 thereafter until the Maturity Date, unless earlier redeemed. Principal on the Series 2009 Note shall be paid annually, in the amounts provided in Schedule I hereof, commencing October 1, 2010, and on the first (151) day of each October thereafter until the Maturity Date, unless earlier redeemed. On October 1,2012 (the "Put Date"), the Owner shall have the option, exercisable in its sole discretion, to put the then outstanding principal amount of the Series 2009 Note, plus accrued but unpaid interest on the Series 2009 Note requiring the Issuer to payoff the Series 2009 Note in full on the Put Date. The Owner shall provide notice (a "Put Notice") to the Issuer not less than one hundred twenty (120) days prior to the Put Date and the Owner shall set forth the rate of interest or the formula pursuant to which the rate of interest shall be set to apply to the Series 2009 Note on and after the Put Date. The Issuer shall then mutually agree with the Owner to the proposed new interest rate, or shall repay the Series 2009 Note in full on the Put Date. The Series 2009 Note may be prepaid by the Issuer at any time without penalty or premium. If any date for the payment of principal and interest hereon shall fall on a day which is not a Business Day, the payment due on such date shall be due on the next succeeding day which is a Business Day, but the Issuer shall not receive credit for the payment until it is actually received by the Owner. All payments by the Issuer pursuant to this Series 2009 Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to principaL THIS SERIES 2009 NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE Exhibit A-2 HOLDER OF THIS SERIES 2009 NOTE THAT SUCH NOTEHOLDER SHALL NEVER HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE ISSUER OR TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN FOR THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THIS SERIES 2009 NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION. This Series 2009 Note is issued pursuant to Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer and Resolution No. duly adopted by the Issuer on September 15, 2009, as amended and supplemented from time to time (herein referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution. All terms, conditions and provisions of the Resolution including, without limitation, remedies in the event of default are by this reference thereto incorporated herein as a part of this Series 2009 Note. Payment of the Series 2009 Note is secured by a covenant to budget and appropriate Non-Ad Valorem Revenues of the Issuer. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This Series 2009 Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Series 2009 Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Series 2009 Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. [Remainder of this Page Intentionally Left Blank] Exhibit A-3 IN WITNESS WHEREOF, the City of Ocoee, Florida has caused this Series 2009 Note to be executed in its name by the manual signature of its Mayor and attested by the manual signature of its City Clerk, and its seal to be impressed hereon, all as of this _ day of -----' 2009. CITY OF OCOEE, FLORIDA [SEAL] ATTEST: Mayor City Clerk APPROVED AS TO FORM: City Attorney Exhibit A-4 Schedule I Exhibit A-5 EXHIBIT B FORM OF PURCHASER'S CERTIFICATE This is to certify that SunTrust Bank (the "Purchaser") has not required the City of Ocoee, Florida (the "Issuer") to deliver any offering document and has conducted its own investigation, to the extent it deems satisfactory or sufficient, into matters relating to business affairs or conditions (either financial or otherwise) of the Issuer in connection with the issuance of an amount not to exceed $5,000,000 City of Ocoee, Florida, Capital Improvement Refunding Revenue Note, Series 2009 (the "Series 2009 Note"), and no inference should be drawn that the Purchaser, in the acceptance of said Series 2009 Note, is relying on Bryant Miller Olive P.A. ("Note Counsel") or Foley & Lardner LLP ("City Attorney") as to any such matters other than the legal opinions rendered by Note Counsel and by the City Attorney, respectively. Any capitalized undefined terms used herein not otherwise defined shall have the meaning set forth in Resolution No. _ adopted by the City Commission of the Issuer on September 15, 2009 (the "Resolution"). We acknowledge and understand that the Resolution is not being qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered in reliance upon the exemption from registration under Section 3(a)(2) of the Securities Act of 1933, Section 517.051(1), Florida Statutes, and/or Section 517.061(7), Florida Statutes, and that neither the Issuer, Note Counsel nor the City Attorney shall have any obligation to effect any such registration or qualification. We are not acting as a broker or other intermediary, and are purchasing the Series 2009 Note as an investment for our own account and not with a present view to a resale or other distribution to the public. We understand that the Series 2009 Note may not be transferred except to an "accredited investor" as described below in accordance with the restrictions set forth in the Series 2009 Note. We are a bank, trust company, savings institution, insurance company, dealer, investment company, pension or profit-sharing trust, or qualified institutional buyer as contemplated by Section 517.061(7), Florida Statutes. We are not purchasing the Series 2009 Note for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading any provision of Chapter 517, Florida Statutes. We are an "accredited investor" as such term is defined in the Securities Act of 1933, as amended, and Regulation D thereunder. DATED this _ day of ----J 2009. SUNTRUST BANK By: Name: William C. Jones Title: First Vice President Exhibit B-1 EXHIBIT C FORM OF DISCLOSURE LETTER The undersigned, as purchaser, proposes to negotiate with the City of Ocoee, Florida (the "Issuer") for the private purchase of its City of Ocoee, Florida, Capital Improvement Refunding Revenue Note, Series 2009 (the "Series 2009 Note") in the principal amount not to exceed $5,000,000. Prior to the award of the Series 2009 Note, the following information is hereby furnished to the Issuer: 1. Set forth is an itemized list of the nature and estimated amounts of expenses to be incurred for services rendered to us (the "Bank") in connection with the issuance of the Series 2009 Note (such fees and expenses to be paid by the Issuer): Broad & Cassel Bank Counsel Fees -- $3,500 2. (a) No fee, bonus or other compensation is estimated to be paid by the Bank in connection with the issuance of the Series 2009 Note to any person not regularly employed or retained by the Bank (including any "finder" as defined in Section 218.386(1)(a), Florida Statutes). (b) No person has entered into an understanding with the Bank, or to the knowledge of the Bank, with the Issuer, for any paid or promised compensation or valuable consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the Issuer and the Bank or to exercise or attempt to exercise any influence to effect any transaction in the purchase of the Series 2009 Note. 3. The amount of the underwriting spread expected to be realized by the Bank is $0. 4. The management fee to be charged by the Bank is $0. 5. Truth-in-Bonding Statement: The Series 2009 Note is being issued primarily to reimburse and finance the cost of refunding the Issuer's Capital Improvement Revenue Note, Series 2006. Unless earlier redeemed, the Series 2009 Note is expected to be repaid by October 1, 2024 and the Series 2009 Note bears interest at a variable interest rate of 67% of the sum of LmOR plus 2.60 per annum, which for purposes hereof is assumed to be a fixed rate of _ %, therefore the total interest paid over the life of the Series 2009 Note is estimated to be $ The Series 2009 Note will be payable solely from a covenant to budget and appropriate Non- Ad Valorem Revenues of the Issuer sufficient to make such payments, appropriated and deposited Exhibit C-1 as described in Resolution No. _ of the Issuer adopted on September 15, 2009 (the "Resolution"). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. Issuance of the Series 2009 Note is estimated to result in a maximum of approximately $ of revenues of the Issuer not being available to finance the services of the Issuer in anyone year during the life of the Series 2009 Note. 6. The name and address of the Bank is as follows: SunTrust Bank 200 South Orange A venue, MC 2064 Orlando, Florida 32802 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter on behalf of the Bank this _ day of ---' 2009. SUNTRUST BANK By: Name: Title: William C. Jones First Vice President Exhibit C-2 EXHIBIT D COMMITMENT Exhibit D-1