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HomeMy WebLinkAbout2012-015 Non Ad-Valorem Taxes Refunding Revenue Note, Series 2012 RESOLUTION NO. 2012 -015 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA; PROVIDING FOR THE REFUNDING OF THE CITY'S NON -AD VALOREM REVENUE NOTE, SERIES 2007 (TAX- EXEMPT) AND NON -AD VALOREM REVENUE NOTE, SERIES 2008; AUTHORIZING THE ISSUANCE OF A NON -AD VALOREM REFUNDING REVENUE NOTE, SERIES 2012 OF THE CITY IN THE PRINCIPAL AMOUNT NOT TO EXCEED $6,400,000 TO FINANCE THE COST THEREOF AND TO PAY THE COSTS OF ISSUING THE SERIES 2012 NOTE; PROVIDING THAT THE SERIES 2012 NOTE SHALL BE A LIMITED OBLIGATION OF THE CITY PAYABLE FROM NON -AD VALOREM REVENUES BUDGETED AND APPROPRIATED AS PROVIDED HEREIN; DESIGNATING THE SERIES 2012 NOTE AS A "QUALIFIED TAX - EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265(B)(3) OF THE CODE; PROVIDING FOR THE RIGHTS, SECURITIES AND REMEDIES FOR THE OWNER OF THE SERIES 2012 NOTE AND FOR THE NEGOTIATED SALE OF SUCH NOTE WITH SUNTRUST BANK; 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, collectively, the Constitution of the State of Florida, the Charter of the City of Ocoee, Florida, Chapter 166, Part I1, Florida Statutes, as amended, the Issuer's home rule powers and other applicable provisions of law. "Adjusted BQ Rate" shall mean, upon a Loss of BQ Status, the interest rate per annum that shall provide the Owner with the same after tax yield that the Owner would have otherwise received had the Loss of BQ Status not occurred, taking into account the increased taxable income of the Owner as a result of such Loss of BQ Status. The Owner shall provide the Issuer with a written statement explaining the calculation of the Adjusted BQ Rate, which statement shall, in the absence of manifest error, be conclusive and binding on the Issuer. The Adjusted BQ Rate shall be subject to adjustment as provided in Section 7(B) hereof. "Adjusted Rate" shall mean a per annum rate equal to (a) the Interest Rate, multiplied, prior to the occurrence of a Determination of Taxability, by (b) the Margin Rate Factor. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Lender is closed. "City Attorney" shall mean the City Attorney of the issuer. "City Commission " shall mean the governing body of the Issuer. "C'ity 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. "Default Rate" shall mean the sum of the Prime Rate plus 2% per annum. "Determination of Taxability" shall mean a final decree or judgment of any federal court or a final action of the Internal Revenue Service determining that interest paid or payable on the Series 2012 Note is or was includable in the gross income of the Owner of the Series 2012 Note for federal income tax purposes; provided, that no such decree, judgment, or action will be considered final for this purpose, however, unless the issuer has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in the name of any Owner of the Series 2012 Note, and until the conclusion of any appellate review, if sought. "Issuer" or "City" 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. "Interest Rate" shall be as defined in Section 7(4) hereof, and shall be subject to adjustment as provided in Section 7(B) hereof. "Lender" means SunTrust Bank, a Georgia banking corporation. "Loss of BQ Status" shall mean a determination by the Owner that the Series 2012 Note is not a "qualified tax - exempt obligation" within the meaning of Section 265(b)(3) of the Code (or any successor provision). "Margin Rate Factor" shall mean the fraction, the numerator of which is equal to one (1) minus the Maximum Federal Corporate Tax Rate on the date of calculation, and the denominator of which is 0.65. The Margin Rate Factor shall be 0.65/0.65 or 1.0 so long as the Maximum Federal Corporate Tax Rate is 35 %, and thereafter shall increase from time to time effective as of the effective date of any decrease in the Maximum Federal Corporate Tax Rate. "Maturity Date" means February 1, 2023. 2 "Maximum Federal Corporate Tax Rate" means the maximum rate of income taxation imposed on corporations pursuant to Section 1 1(b) of the Code, determined without regard to tax rate or tax benefit make -up provisions such as the last two sentences of Section 11 (b) (1) of the Code, as in effect from time to time (or, if as a result of a change in the Code the rate of income taxation imposed on corporations shall not be applicable to the Owner, the maximum statutory rate of federal income taxation which could apply to the Owner). The Maximum Federal Corporate Tax Rate on the date of issuance of the Series 2012 Note is 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. "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 2012 Note. "Owner" means the Person in whose name a Series 2012 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. "Prime Rate" shall mean the per annum rate which the SunTrust Bank announces from time to time to be its prime rate, as in effect from time to time. SunTrust Bank's prime rate is a reference or benchmark rate, is purely discretionary and does not necessarily represent the lowest or hest rate charged to borrowing customers. SunTrust Bank may make commercial loans or other loans at rates of interest at, above or below SunTrust Bank's prime rate. Each change in SunTrust Bank's prime rate shall be effective from and including the date such change is announced as being effective. "Principal Office" means, with respect to the Lender, the office located at 200 South Orange Avenue, SOAB 6 Floor, Orlando, Florida 32801, Attention: Not for Profit and Governmental Banking, or such other office as the Lender may designate to the Issuer in writing. "Proposal" means the proposal to purchase the Series 2012 Note submitted to the Issuer by the Lender and attached hereto as Exhibit D. "Refunded Notes" means, collectively, the Series 2007 Note and the Series 2008 Note. "Refunding" means the refunding of the Refunded Notes, pursuant to Sections 4 and 12 hereof. "Resolution " means this Resolution, pursuant to which the Series 2012 Note is authorized to be issued, including any supplemental resolution(s). "Series 2007 Note" means the Issuer's Non -Ad Valorem Revenue Note, Series 2007 (Tax - Exempt). "Series 2008 Note" means the Issuer's Non -Ad Valorem Revenue Note, Series 2008. 3 "Series 2012 Note means the Issuer's Non -Ad Valorem Refunding Revenue Note, Series 2012, issued pursuant to this Resolution to finance the Refunding and to pay the costs associated with the issuance of the Series 2012 Note. "State means the State of Florida. "Taxable Period" shall mean the period of time between (a) the date that interest on the Series 2012 Note is deemed to be includable in the gross income of the Owner thereof for federal income tax purposes as a result of a Determination of Taxability, and (b) the date of the Determination of Taxability. "Taxable Rate shall mean, upon a Determination of Taxability, the interest rate per annum that shall provide the Owner with the same after tax yield that the Owner would have otherwise received had the Determination of Taxability not occurred, taking into account the increased taxable income of the Owner as a result of such Determination of Taxability. The Owner shall provide sufficient evidence supporting such rate calculation to the Issuer, which statement shall, in the absence of manifest error, be conclusive and binding on the Issuer. Section 3: Findings. (A) The Issuer deems it necessary, beneficial and in its best financial interest to provide for the Refunding. Issuance of the Series 2012 Note to finance the Refunding satisfies a paramount public purpose and will provide debt service savings to the Issuer. (B) The estimated sum required for the Refunding will be derived from the proceeds of the sale of the Series 2012 Note. (C) Debt service on the Series 2012 Note will be payable from the Pledged Revenues as provided herein. It is estimated that Non -Ad Valorem Revenues will be available, after satisfying funding requirements for obligations having an express lien on or pledge thereof and after satisfying funding requirements for essential governmental services of the Issuer, in amounts sufficient to provide for the payment of the principal of and interest on the Series 2012 Note and all other payment obligations hereunder. (D) The Issuer has received the Proposal from the Lender to purchase the Series 2012 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 Charter of the City. (F) The Issuer desires to designate the Series 2012 Note as a "qualified tax - exempt obligation" for purposes of Section 265(b)(3) of the Code. (G) In consideration of the purchase and acceptance of the Series 2012 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: Refuunding of Reif coded Notes. The City does hereby authorize the Refunding in accordance herewith. 4 Section 5: Negotiated Sale. Because of the characteristics of the Series 2012 Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Series 2012 Note, it is in the best interest of the Issuer to accept the Proposal of the Lender to purchase the Series 2012 Note through a negotiated sale. The City Manager is hereby authorized to execute and deliver the Proposal to the Lender. Prior to the issuance of the Series 2012 Note, the Issuer shall receive from the Lender a Lender'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 2012 Note. Subject and pursuant to the provisions of this Resolution, the obligation of the Issuer to be known as the '`City of Ocoee, Florida, Non -Ad Valorem Refunding Revenue Note, Series 2012" is hereby authorized to be issued under and secured by the Pledged Revenues pursuant to this Resolution, in the principal amount not to exceed $6,400,000 for the purpose of providing funds to pay the costs of the Refunding and the costs associated with the issuance of the Series 2012 Note. Section 7: Description of Series 2012 Note. The Series 2012 Note shall be issued in a single denomination equal to the principal amount of the Series 2012 Note, shall be dated the date of its execution and delivery, which shall be a date agreed upon by the Issuer and the Lender, subject to the following terms: (A) Interest Rate. The Series 2012 Note shall have a fixed interest rate of not to exceed 2.13 %. The interest rate shall be subject to adjustment as described below, and is herein referred to as the "Interest Rate," calculated on a 360 day year consisting of twelve thirty (30) day months basis; provided, however, that the Interest Rate shall in no event exceed the maximum interest rate permitted by applicable law. (B) Adjustments to Interest Rate. The Interest Rate on the Series 2012 Note may be adjusted as provided below; provided, however, the Interest Rate on the Series 2012 Note shall not exceed the maximum interest rate permitted by applicable law: (1) Upon the occurrence of a Determination of Taxability and for as long as the Series 2012 Note remains outstanding, the Interest Rate on the Series 2012 Note shall be converted to the Taxable Rate. In addition, upon a Determination of Taxability, the Issuer shall pay to the Owner (i) an additional amount equal to the difference between (A) the amount of interest actually paid on the Series 2012 Note during the Taxable Period and (B) the amount of interest that would have been paid during the Taxable Period had the Series 2012 Note borne interest at the Taxable Rate, and (ii) an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the Code) owed by the Owner as a result of the Determination of Taxability. (2) So long as no Determination of Taxability shall have occurred, upon the occurrence of a Loss of BQ Status and for as long as the Series 2012 Note remains outstanding, the Interest Rate on the Series 2012 Note shall be converted to the Adjusted BQ Rate. In addition, upon a Loss of BQ Status, the Issuer shall pay to the Owner (i) an additional amount equal to the difference between (A) the amount of interest actually paid on the Series 2012 Note during the period of time from the date of issuance of the Series 2012 Note and the next succeeding interest payment date, and (B) the amount of interest that would have been paid during the period in clause (A) had the Series 2012 Note borne interest at the Adjusted BQ Rate, and 5 (ii) an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the Code) owed by the Owner as a result of the Loss of BQ Status. (3) If the Maximum Federal Corporate Tax Rate decreases, the Owner shall have the right to adjust (increase) the interest Rate otherwise borne by the Series 2012 Note to the Adjusted Rate. If the Owner elects to exercise its right to adjust the Interest Rate to the Adjusted Rate pursuant to this paragraph (3), then the Owner shall give notice of such adjustment to the Issuer, providing sufficient evidence supporting such Adjusted Rate calculation, which statement shall, in the absence of manifest error, be conclusive and binding on the issuer. Such notice of the Adjusted Rate from the Owner to the Issuer shall state the date the Adjusted Rate will take effect, which shall be an interest Payment Date that is at least thirty (30) days from the date of such notice. (4) Upon the occurrence of an Event of Default as described in Section 22 hereof, the Interest Rate shall be adjusted to the Default Rate. (C) Interest Payment Dates. Interest on the Series 2012 Note shall be paid semi - annually, commencing February 1, 2013, and on each February 1 and August 1 thereafter (each an "Interest Payment Date ") until the Maturity Date, unless earlier redeemed. (D) Principal Payment Dates. Principal on the Series 2012 Note shall be paid annually, commencing February I, 2013, and on the first (1") day of each February thereafter (each a '`Principal Payment Date ") until the Maturity Date, unless earlier redeemed. (E) Form of Series 2012 Note. The Series 2012 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, following review by the City Manager, Finance Director and City Attorney, such approval to be conclusively evidenced by the execution thereof by the Mayor. The Series 2012 Note shall be executed on behalf of the Issuer with the manual or facsimile signature of the Mayor and the official seal of the Issuer, and be attested and countersigned with the manual or facsimile signature of the Clerk and approved as to form by the City Attorney. In case any one or more of the officers who shall have signed or sealed the Series 2012 Note or whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before the Series 2012 Note so signed and sealed has been actually sold and delivered, such Series 2012 Note may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Series 2012 Note had not ceased to hold such office. The Series 2012 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 2012 Note shall hold the proper office of the Issuer, although, at the date of such Series 2012 Note, such person may not have held such office or may not have been so authorized. The Issuer niay 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 2012 Note shall be actually sold and delivered. Section 8: Registration and Exchange of Series 2012 Note; Persons Treated as Owner. The Series 2012 Note is initially registered to the Lender. So long as the Series 2012 Note shall remain unpaid, the Clerk will keep books for the registration and transfer of the Series 2012 Note. The Series 2012 Note shall be transferable only upon such registration books; provided, however, that the Series 2012 Note may be transferred only in whole and not in part and any such transfer shall be made only to 6 an "accredited investor" as such term is defined in the Securities Act of 1933, as amended, and Regulation D thereunder. Notwithstanding the foregoing, nothing in this Resolution or in the Series 2012 Note shall be construed to prohibit the Lender from granting a participation or participations in the Series 2012 Note to any other bank or banks affiliated with the Lender or any subsidiary thereof. The Person in whose name the Series 2012 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 2012 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 2012 Note to the extent of the sum or sums so paid. Section 9: Payment of Principal and Interea7; Limited Obligation. The Issuer promises that it will promptly pay the principal of and interest on the Series 2012 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 2012 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 the State of Florida, but shall be payable solely from the Pledged Revenues in accordance with the terms hereof. No holder of the Series 2012 Note issued hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Series 2012 Note, or be entitled to payment of such Series 2012 Note from any funds of the Issuer except from the Pledged Revenues as described herein. Section 10: Prepayment. The Series 2012 Note may be prepaid by the Issuer in whole or in part at any time on or after the date that is two (2) years after the date of issuance of the Series 2012 Note, as provided in the Series 2012 Note, without penalty or premium upon two (2) Business Days' prior written notice to the Owner. 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 2012 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 2012 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 7 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 2012 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 2012 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, 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 2012 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 Owner 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)1 Maximum Annual Debt Service for both the Existing and Proposed Debt Payable from Non -Ad Valorem Revenues For purposes of calculating the foregoing, if any non - self - supporting revenue debt bears a rate of interest that is not fixed for the entire term of the non - self - supporting revenue debt (excluding any provisions that adjust the interest rate upon a change in tax law or in the tax treatment of interest on the debt or upon a default), then the interest rate on such non - self - supporting revenue debt shall be assumed to be the highest of (x) the average rate of actual interest borne by such non-self-supporting revenue debt during the most recent complete month prior to the date of calculation, (y) for tax - exempt non -self supporting revenue debt, The Bond Buyer Revenue Bond 30 -Year index last published in the month preceding the date of calculation plus one percent, or (z) for taxable non - self - supporting revenue debt, the yield on a U.S. Treasury obligation with a constant maturity closest to but not before the maturity date of such non - self - supporting revenue debt, as reported in Statistical Release H.15 of the Federal Reserve on the last day of the month preceding the date of issuance of such proposed non - self - supporting revenue debt, plus three percent, provided that if the issuer shall have entered into an interest rate swap or interest rate cap or shall have taken any other action which has the effect of fixing or capping the interest rate on such non - self - supporting revenue debt for the entire term thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such swap or cap, and provided further that if The Bond Buyer Revenue Bond 30 -Year Index or Statistical Release H.15 of the Federal Reserve is no longer available or no longer contains the necessary data, such other comparable source of comparable data as selected by the Owner shall be utilized in the foregoing calculations. For the purpose of calculating the foregoing" "balloon indebtedness "" (as defined in the immediately succeeding sentence) 8 shall be assumed to amortize over 20 years in substantially equal annual payments at its fixed interest rate and, if the interest rate is not fixed, at the rate calculated pursuant to the immediately preceding sentence. "Balloon indebtedness" is any non - self - supporting revenue debt, twenty percent (20 %) or more of the principal amount of which comes due in any single Fiscal Year. In addition, with respect to debt service on any debt which is subject to an interest rate swap or hedge agreement shall be deemed to be the net hedge payments payable by the Issuer under such agreement. As used above, the term "non -self- supporting revenue debt "' shall not include any debt payable from revenues of a utility. Section 12. Refunding; Application of Proceeds of Series 2012 Note. Simultaneously with the issuance of the Series 2012 Note, the Refunded Notes held by the Lender shall be cancelled and replaced in their entirety and refunded by the delivery of the Series 2012 Note. Upon delivery of the Series 2012 Note to the Lender, as owner of the Refunded Notes, to finance the Refunding, all of the issuer's obligations related to the Refunded Notes shall be deemed satisfied. Section 13: Tax Covenant. The Issuer covenants to the Owner of the Series 2012 Note provided for in this Resolution that the Issuer will not make any use of the proceeds of the Series 2012 Note, at any time during the term of the Series 2012 Note, which, if such use had been reasonably expected on the date the Series 2012 Note was issued, would have caused such Series 2012 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 2012 Note from the gross income of the holders thereof for purposes of federal income taxation. Section 14: Bank Qualified. The City hereby designates the Series 2012 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 2012 to issue more than $10,000,000 of "tax- exempt" obligations, including the Series 2012 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 cif Costs of Issuance. The Finance Director is hereby authorized to pay the costs of issuance of the Series 2012 Note from a portion of the proceeds from the sale of the Series 2012 Note. Section 16: Autlrori.:ation Regarding Debit for Debt Service Payments. The Finance Director shall provide for the payment of debt service on the Note through an auto debit from the Issuer's account with the Lender. Section 17: Ame This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Series 2012 Note except with the written consent of the Owner of the Series 2012 Note. Section 18: 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 2012 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. 9 Section 19: Series 2012 Note Mutilated, Destroyed, Stolen or Lost. in case the Series 2012 Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Series 2012 Note of like tenor as the Series 2012 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 2012 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 2012 Note so surrendered shall be canceled. Section 20: Impairment of Contract. The Issuer covenants with the Owner of the Series 2012 Note that it will not, without the written consent of the Owner of the Series 2012 Note, enact any ordinance or adopt any resolution which repeals or impairs this Resolution or the Series 2012 Note in any manner adverse to the Owner the rights granted to the Owner of the Series 2012 Note hereunder. Section 21: Budget and Financial Information. The Issuer shall provide the Owner of the Series 2012 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 2012 Note may reasonably request. The issuer shall provide the Owner of the Series 2012 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 22: Events of Default; Remedies of Owner. The following shall constitute "Events of Default ": (i) if the issuer fails to pay any payment of principal of or interest on the Series 2012 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 2012 Note (other than set forth in (i) above) and fails to cure the same within thirty (30) days; (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; or (iv) the Issuer 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. Upon the occurrence and during the continuation of any Event of Default, the Owner of the Series 2012 Note may, in addition to any other remedies set forth in this Resolution or Series 2012 Note, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State, or granted or contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the Issuer or by any officer thereof. Section 23: Notice of an Event of Default. The Issuer shall, within five (5) days after it acquires knowledge thereof, provide the Owner with written notice of the occurrence of an Event of Default under the Series 2012 Note or this Resolution. 10 Section 24: Additional Debi Secured by Covenant to Budget and Appropriate. During such time as the Series 2012 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 Owner and that the Issuer is not in default of any of the provisions, covenants and agreements herein. Section 25: Severahility. 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 26: Business Days. In any case where the due date of interest on or principal of a Series 2012 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 27: Applicable Provision' of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 28: 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 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 29: 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 30: 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 2012 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 2012 Note, on the part of the Issuer. Section 31: Authorisations. The Mayor and any member of the City Commission, the City Manager, the Finance Director, 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 2012 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 11 Series 2012 Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 32: Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 33: No Third Party Beneficiaries. Except such other persons as may be expressly described in this Resolution or in the Series 2012 Note, nothing in this Resolution or in the Series 2012 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 2012 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. [Remainder of page intentionally left blank] 12 Section 34: 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 6 day of November, 2012. S. Scott Vandergrift Mayor ATTEST: Beth Eikenberry r ' Clerk l Approved as to form and legality for the use and reliance of the City of Ocoee, Florida, only. Sq Ip.A. ott Coo • n ity Attorn: j: \wdoa \docs \cl Tents \25136 \009 \ordres \00704779.doc 13 EXHIBIT A IFORM OF SERIES 2012 NOTE] ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A LENDER'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. Dated Date: November 2012 $ CITY OF OCOEE, FLORIDA NON -AD VALOREM REFUNDING REVENUE NOTE, SERIES 2012 Maturity Date: February 1, 2023 Interest Rate: (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 its registered assigns (hereinafter, the "Owner "), the principal sum of $ , on the dates as hereinafter described, together with interest on the principal balance outstanding from time to time at the Interest Rate (subject to adjustment as herein provided). This Series 2012 Note shall have a final maturity date of February 1, 2023 (the "Maturity Date "). This Series 2012 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. 2012 - duly adopted by the Issuer on November 6, 2012, 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 2012 Note. Payment of this Series 2012 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 2012 Note shall initially have a fixed interest rate per annum equal to %, which Interest Rate shall be subject to adjustment as provided herein and in the Resolution, calculated on a 360 day year consisting of twelve thirty (30) day months basis. The Interest Rate on this Series 2012 Note may be adjusted as provided below; provided, however, the Interest Rate on this Series 2012 Note shall not exceed the maximum interest rate permitted by applicable law: (1) Upon the occurrence of a Determination of Taxability and for as long as this Series 2012 Note remains outstanding, the Interest Rate on this Series 2012 Note shall be converted to Exhibit A -1 the Taxable Rate. hi addition, upon a Determination of Taxability, the Issuer shall pay to the Owner (i) an additional amount equal to the difference between (A) the amount of interest actually paid on the Series 2012 Note during the Taxable Period and (B) the amount of interest that would have been paid during the Taxable Period had the Series 2012 Note borne interest at the Taxable Rate, and (ii) an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the Code) owed by the Owner as a result of the Determination of Taxability. (2) So long as no Determination of Taxability shall have occurred, upon the occurrence of a Loss of BQ Status and for as long as the Series 2012 Note remains outstanding, the Interest Rate on the Series 2012 Note shall be converted to the Adjusted BQ Rate. In addition, upon a Loss of BQ Status, the Issuer shall pay to the Owner (i) an additional amount equal to the difference between (A) the amount of interest actually paid on the Series 2012 Note during the period of time from the date of issuance of the Series 2012 Note and the next succeeding interest payment date, and (B) the amount of interest that would have been paid during the period in clause (A) had the Series 2012 Note borne interest at the Adjusted BQ Rate, and (ii) an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the Code) owed by the Owner as a result of the Loss of BQ Status. (3) If the Maximum Federal Corporate Tax Rate decreases, the Owner shall have the right to adjust (increase) the Interest Rate otherwise borne by this Series 2012 Note to the Adjusted Rate. If the Owner elects to exercise its right to adjust the Interest Rate to the Adjusted Rate pursuant to this paragraph (3), then the Owner shall give notice of such adjustment to the Issuer, providing sufficient evidence supporting such Adjusted Rate calculation, which statement shall, in the absence of manifest error, be conclusive and binding on the Issuer. Such notice of the Adjusted Rate from the Owner to the Issuer shall state the date the Adjusted Rate will take effect, which shall be an Interest Payment Date that is at least thirty (30) days from the date of such notice. (4) Upon the occurrence of an Event of Default as described in the Resolution, the Interest Rate shall be adjusted to the Default Rate. Principal of and interest on this Series 2012 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. Interest on this Series 2012 Note shall be paid semi - annually, commencing February 1, 2013, and each February 1 and August 1 thereafter until the Maturity Date, unless earlier redeemed. Principal on this Series 2012 Note shall be paid annually, in the amounts provided in Schedide I hereof, commencing February 1, 2013, and on the first (1 day of each February thereafter until the Maturity Date, unless earlier redeemed. This Series 2012 Note may he prepaid by the Issuer in whole or in part at any time on or after , 2014 without penalty or premium upon two (2) Business Days' prior written notice to the Owner. 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 Exhibit A -2 Day, with the same force and effect as if made on the nominal date provided in the Resolution and interest shall cease to accrue on the date on which such payment was due, if such payment is made on the immediately succeeding Business Day. All payments by the Issuer pursuant to this Series 2012 Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to principal. THIS SERIES 2012 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 HOLDER OF THIS SERIES 2012 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 2012 NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION. This Series 2012 Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the planner 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 2012 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 2012 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 2012 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 , 2012. CITY OF OCOEE, FLORIDA [SEAL] ATTEST: Mayor City Clerk APPROVED AS TO FORM: City Attorney Exhibit A -4 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 Note 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: By: (manual signature) NOTICE: No transfer will be registered and no new Title: 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 every particular, without alteration or enlargement or any change whatever and the Social Security or Federal Employer Identification Number of the Transferee is supplied. Signature Guaranteed by [member firm of the New York Stock Exchange or a commercial bank or a trust company.] Exhibit A -5 EXHIBIT B FORM OF LENDER'S CERTIFICATE This is to certify that SUNTRUST BANK (the "Lender ") has made a loan (the "Loan ") to the City of Ocoee, Florida (the "Issuer "). The Loan is evidenced by the Issuer's Non -Ad Valorem Refunding Revenue Note, Series 2012 dated , 2012 (the "Note "). The Lender acknowledges that the Loan is being made as a direct loan and not through the purchase of a municipal security and that the Issuer will not make a filing with the Municipal Securities Rulemaking Board's Electronic Municipal Market Access repository. Any capitalized undefined terms used herein not otherwise defined shall have the meaning set forth in a resolution adopted by the City Commission of the Issuer on November 6, 2012 (the "Resolution "). The Lender 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 Loan and no inference should be drawn that the Lender, in the acceptance of said Note, is relying on Note Counsel or Issuer's Counsel as to any such matters other than the legal opinion rendered by Note Counsel, Bryant Miller Olive P.A., and by Issuer's Counsel, Shuffield, Lowman & Wilson, P.A. We acknowledge that no CUSIP numbers or credit ratings have been obtained with respect to the Note. We further acknowledge that we are making the Loan for our own account, we do not currently intend to syndicate the Loan, and we will take no action to cause the Note to be characterized as a security. We are not acting as a broker or other intermediary and are funding the Loan with our own capital and for our own account and not with a present view to a resale or other distribution to the public. The Note will only be sold to an Accredited Investor as such term is defined in the Securities Act of 1933, as amended, and Regulation D. We are a bank as contemplated by Section 517.061(7), Florida Statutes. We are not purchasing the 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. This Certificate is furnished by us as Lender based solely on our knowledge on the day hereof and is solely for the benefit of the Issuer and may not be relied upon by, or published or communicated to, any other person without our express written consent. We disclaim any obligation to supplement this letter to reflect any facts or circumstances that may hereafter come to our attention. Dated this day of , 2012. SUNTRUST BANK By: Name: William C. Jones Title: First Vice President Exhibit B -1 EXHIBIT C FORM OF DISCLOSURE LETTER The undersigned, SunTrust Bank, as Lender (the "Lender "), proposes to negotiate with the City of Ocoee, Florida (the "issuer ") for the private purchase of its City of Ocoee, Florida, Non -Ad Valorem Refunding Revenue Note, Series 2012 (the "Series 2012 Note ") in the principal amount of $ . Prior to the award of the Series 2012 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 Lender in connection with the issuance of the Series 2012 Note (such fees and expenses to be paid by the Issuer): Holland & Knight LLP Lender Counsel Fees -- $ 2. (a) No other fee, bonus or other compensation is estimated to be paid by the Lender in connection with the issuance of the Series 2012 Note to any person not regularly employed or retained by the Lender (including any "finder" as defined in Section 218.386(1)(a), Florida Statutes), except as specifically enumerated as expenses to be incurred by the Lender, as set forth in paragraph (1) above. (b) No person has entered into an understanding with the Lender, or to the knowledge of the Lender, 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 Lender or to exercise or attempt to exercise any influence to effect any transaction in the purchase of the Series 2012 Note. 3. The amount of the underwriting spread expected to be realized by the Lender is $0. 4. The management fee to be charged by the Lender is $0. 5. Truth -in- Bonding Statement: The Series 2012 Note is being issued primarily to refund the Issuer's outstanding Non -Ad Valorem Revenue Note, Series 2007 (Tax - Exempt) and Non -Ad Valorem Revenue Note, Series 2008. Unless earlier redeemed, the Series 2012 Note is expected to be repaid by February 1, 2023 at a fixed interest rate of %, with the estimated total interest paid over the life of the Series 2012 Note being The Series 2012 Note will be payable solely from Pledged Revenues as defined in a resolution adopted by Resolution No. 2012- adopted by the City Commission of the Issuer on November 6, 2012 (the "Resolution "). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. issuance of the Series 2012 Note is estimated to result in an average of approximately $ annual of revenues of the Issuer not being available to finance other services of the Issuer during the life of the Series 2012 Note. 6. The name and address of the Lender is as follows: SunTrust Bank Exhibit C -1 200 South Orange Avenue, SOAB6 Sixth Floor Orlando, Florida 32802 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter on behalf of the Lender this day of , 2012. SUNTRUST BANK By: Name: William C. Jones Title: First Vice President Exhibit C -2