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HomeMy WebLinkAboutResolution 2000-15 RESOLUTION NO. 2000-15 A RESOLUTION OF THE CITY OF OCOEE, FLORIDA; AUTHORIZING THE ISSUANCE OF PROMISSORY NOTES IN THE AGGREGATE PRINCIPAL AMOUNT OF UP TO $4,000,000 TO FINANCE THE COST OF ACQUIRING CERTAIN REAL PROPERTY AND UNDERTAKING CERTAIN IMPROVEMENTS IN CONNECTION THEREWITH; PROVIDING THAT SUCH NOTES SHALL BE LIMITED OBLIGATIONS OF THE CITY PAYABLE FROM NON-AD VALOREM REVENUES BUDGETED AND APPROPRIATED AS PROVIDED HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES AND REMEDIES FOR THE OWNERS OF SUCH NOTES; 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: Section 1. Authority for this Resolution. This Resolution is enacted pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the City ofOcoee, Florida (the "Issuer"), and other applicable provisions of law. Section 2. Definitions. The following words and phrases shall have the following meanings when used herein including the exhibits attached hereto: "Act" means Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer, 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 Manager" means the duly appointed and acting City Manager of the Issuer, or any duly authorized deputy thereof. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Cost of Funds" shall mean the Prime Rate as announced from time to time, less 200 basis points. "Determination of Taxability" shall mean the circumstance that shall have occurred if interest paid or payable on the tax-exempt Note becomes includable for federal income tax purposes in the gross income of the tax-exempt Owner as a consequence of any act, omission or event whatsoever, and regardless of whether the same was within or beyond the control of the Issuer. A Determination of Taxability will be deemed to have occurred upon (a) the receipt by the Issuer or an Owner of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the tax-exempt Note is includable in the gross income of the Owner for federal income tax purposes; or (b) the issuance of any public or private ruling of the Internal Revenue Service that any interest payable on the tax-exempt Note is includable in the gross income of an Owner for federal income tax purposes; or (c) receipt by the Issuer or the Owner of the opinion of Bond Counsel to the effect that any interest on the tax-exempt Note has become includable in the gross income of the Owner for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the tax-exempt Note is deemed includable in the gross income of the Owner. A Determination of Taxability shall not occur in the event such interest is taken into account in determining adjusted current earnings for the purpose of the alternative minimum tax imposed on corporations. "Issuer" means the City of Ocoee, Florida, a municipal corporation of the State of Florida. "Mayor" means the Mayor of the Issuer, or in his or her absence or inability to act, the Mayor Pro Tern of the Issuer. "Maximum Corporate Tax Rate" shall mean (a) on the date of issuance of the Note, 35% and (b) thereafter, the maximum marginal rate of income tax imposed on corporations under Section 11 of the Code. "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 obligations or indebtedness of the Issuer. "Note" or "Notes" means the two Notes of the Issuer authorized by Section 4 hereof. "Original Purchaser" means SunTrust Bank, a Georgia corporation. "Owner" or "Owners" means the Person or Persons in whose name or names the Notes shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution, including, initially, the Original Purchaser. "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. "Preference Reduction Rate" shall mean (a) on the date of issuance of the Note, TWENTY PERCENT (20%) and (b) thereafter, the percentage reduction to be applied to the amount allowable 2 as a deduction under Chapter I of the Code with respect to any financial institution preference item (as such term is defined in Section 291(e) ofthe Code). "Prime Rate" means the interest rate (not necessarily the best or lowest rate) announced by SunTrust Bank, from time to time as its prime rate (which rate is only a benchmark, is purely discretionary, and is not necessarily the best or lowest rate charged borrowing customers or any subsidiary of SunTrust Banks), with any change in the Prime Rate to be effective on the date any such change in the Prime Rate is announced by SunTrust Bank. "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 Group, or such other office as the Original Purchaser may designate to the Issuer in writing. "Project" means the acquisition of the real property described on Exhibit B and certain governmental purpose improvements undertaken in connection therewith, as such Project components may be revised from time to time by Supplemental Resolution of the Issuer. "Resolution" means this Resolution, pursuant to which the Notes are authorized to be issued, including any Supplemental Resolution(s) adopted pursuant to Section 14 hereof. "State" means the State of Florida. "Supplemental Resolution" means any resolution amendatory or supplemental to this Resolution adopted by the Issuer in accordance with Section 12 hereof. "Taxable Rate" shall mean the Prime Rate. Section 3. Findings. (A) For the benefit of its inhabitants, the Issuer finds, determines and declares that it is necessary for the continued preservation of the health, welfare, convenience and safety of the Issuer and its inhabitants to acquire and construct the Project. Issuance of the Notes to finance the Project satisfies a paramount public purpose. (B) Debt service on the Notes will be payable from Non-Ad Valorem Revenues budgeted and appropriated as provided herein (the "Pledged Revenues"). The Pledged Revenues will be sufficient to pay the principal and interest on the Notes herein authorized, as the same become due, and to make all deposits required by this Resolution. (C) The Issuer has received an offer from the Original Purchaser to purchase the Notes. 3 (D) In consideration of the purchase and acceptance of the Notes authorized to be issued hereunder by those who shall be the Owners thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owners. (E) The Issuer 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 Issuer in accordance with the requirements of the City Charter of the Issuer. Section 4. Authorization of Notes. Subject and pursuant to the provisions of this Resolution, obligations of the Issuer to be known as City of Ocoee, Florida, Non-Ad Valorem Revenue Note, Series 2000 (Tax-Exempt) and as City ofOcoee, Florida, Non-Ad Valorem Revenue Note, Series 2000 (Taxable) are hereby authorized to be issued under and secured by this Resolution, in the aggregate principal amount of up to $4,000,000, for the purpose of providing funds to pay the costs of the Project and paying the costs of issuing the Notes. Because of the characteristics of the Notes, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Notes, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Notes at a private negotiated sale. Prior to the issuance of the Notes, the Issuer shall receive from the Original Purchaser a disclosure letter containing the information required by Section 218.385, Florida Statutes. Section 5. Description of Notes. The Notes shall be dated the date oftheir execution and delivery, which shall be a date agreed upon by the Issuer and the Original Purchaser, and shall have such other terms and provisions, including the interest rates not exceeding the maximum interest rates permitted by the Act, which rate shall be a tax-exempt rate for the tax-exempt Note and shall be a taxable rate for the taxable Note, principal and interest payment dates, maturity dates, and redemption provisions as stated herein and/or in the forms of the Notes attached hereto as composite Exhibit A. The Notes are to be in substantially the form set forth on Exhibit A, attached hereto, together with such changes as shall be approved by the Mayor, such approval to be conclusively evidenced by the execution thereof by the Mayor. The Notes shall be executed on behalf of the Issuer with the manual signature of the Mayor and shall have impressed thereon the official seal of the Issuer, and be attested with the manual signature of the City Clerk, and the Mayor and City Clerk are hereby authorized to execute and attest to the Note on behalf of the Issuer. Section 6. Registration and Exchange of Notes; Persons Treated as Owners. The Notes are initially registered to the Original Purchaser. So long as the Notes shall remain unpaid, the Issuer will keep books for the registration and transfer of the Notes. The Notes shall be transferable only upon such registration books. The Person in whose name the Notes shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on such Notes 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 Notes to the extent of the sum or sums so paid. 4 Section 7. Payment of Principal and Interest; Limited Obligation. The Issuer promises that it will promptly pay the principal of and interest on the Notes at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof. The Notes shall not be or constitute general obligations or indebtedness ofthe Issuer as "bonds" within the meaning of Article VII, Section 12 of the Constitution of Florida, but shall be payable solely from the Pledged Revenues in accordance with the terms hereof. No holder of any Note issued hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Note, or be entitled to payment of such Note from any funds of the Issuer except from the Pledged Revenues as described herein. Section 8. Prepayment. The Notes shall be subject to prepayment at the option of the Issuer in whole or in part on any date at a price equal to the principal amount thereof to be prepaid, plus accrued interest to the date fixed for prepayment without premium. Section 9. Covenant to Budget and Appropriate. 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 principal of and interest on the Notes 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 holders of any 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 ofthe 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 any 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 Notes to the contrary, the Issuer shall never be obligated to maintain or continue any of the activities of the Issuer 5 which generate user service charges, regulatory fees or any Non-Ad Valorem Revenues. 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. Section 10. Disbursement of and Application of Proceeds of Notes. At the time of delivery of the Notes herein authorized, certain proceeds from the sale of the Notes shall be requested in writing by the Issuer to fund the initial Project and certain proceeds may subsequently be requested in writing by the Issuer over a three year period ending on the third anniversary of the initial issuance date of the Notes to fund certain additional Project components as the Issuer needs such proceeds for the Project expenditures. The Issuer shall file a written notice with the Original Purchaser with a copy to Issuer's bond counsel of its request to receive proceeds from either the tax- exempt Note or the taxable Note, or both, including a description of the Project components to be funded with such proceeds. Bond counsel shall then deliver an opinion as to the taxable or tax- exempt nature of the use of the proceeds of the respective Note in order for the Original Purchaser to determine from which Note to fund the Issuer's request. The initial draw request by the Issuer shall be in an aggregate principal amount of at least $2,000,000 and thereafter each draw request shall be in an aggregate principal amount of at least $250,000 or the remaining amount available under the Notes. If any Issuer's draw request conflicts with Bond counsel's opinion regarding the tax-exempt status of such request, the Original Purchaser shall have no obligation to honor such draw request to the extent of such conflict. The Issuer hereby covenants that it will establish a separate account or accounts (herein collectively called the "Project Account") into which, at the time of delivery of the Note herein authorized, shall be deposited the initial proceeds from the sale of the Note to acquire the land portion ofthe Project required to assure payment in full of that portion of the cost of the Project and any costs or expenses incurred by the Issuer in connection with the issuance of the Notes, including but not limited to any legal fees and expenses. Upon delivery of such proceeds to the Issuer, Original Purchaser shall have no further obligation with respect to the use, application, accounting, investment or safeguarding of such proceeds. Moneys in the Project Account shall be secured in the manner prescribed by the Laws of the State of Florida relating to the securing of public funds. Moneys on deposit in the Project Account may be invested in any investments permitted by applicable law maturing not later than the date on which the moneys therein will be needed. The earnings from any such investment shall be retained in the Project Account. When all costs relating to the land portion of Project have been paid in full, the Issuer is permitted to use remaining funds on deposit in the Project Account to pay for additional capital improvements related to the Project or to pay debt service on the Note. 6 All moneys deposited in said Project Account shall be and constitute a trust fund created for the purposes stated, and there is hereby created a lien upon such fund in favor of the holders of the Note until the moneys thereof shall have been applied in accordance with this Resolution. Future proceeds from the Original Purchasers funded pursuant to the Note may also be deposited into the Project Account or used to reimburse the Issuer directly for Project expenditures. Section 11. Tax Covenant. The Issuer covenants to the purchasers of the tax-exempt Note provided for in this Resolution that the Issuer will not make any use of the proceeds of the tax- exempt Note at any time during the term of the tax-exempt Note which, if such use had been reasonably expected on the date the tax-exempt Note was issued, would have caused such tax- exempt Note to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended (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 tax-exempt Note from the gross income of the holders thereof for purposes of federal income taxation. Section 12. Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Notes except with the written consent of the Owner of the Notes. Section 13. 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 Notes 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 14. Note Mutilated, Destroyed, Stolen or Lost. In case a Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note oflike tenor as the 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 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 Note so surrendered shall be canceled. Section 15. Impairment of Contract. The Issuer covenants with the Owners of the Notes that it will not, without the written consent of the Owners of the Note, enact any ordinance or adopt any resolution which repeals, impairs or amends in any manner adverse to the Owners the rights granted to the Owners of the Note hereunder. Section 16. Budget and Financial Information. The Issuer shall provide the Owners of the Notes with a copy of its annual budget and such other financial information regarding the 7 Issuer as the Owners of the Notes may reasonably request. The Issuer hereby covenants that it shall promptly give written notice to the Owners of the Notes of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Notes. The Issuer shall provide the Owners of the Notes with annual financial statements and a copy of the final budget for each fiscal year of the Issuer not later than the earlier of the day 30 days after receipt by the Issuer and the day that is 210 days after the close of such fiscal year. The financial statements shall be 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 ("GAAP") as in effect from time to time, consistently applied. Section 17. Additional Debt Payable by a Covenant to Budget and Appropriate. The Issuer covenants to comply with the provisions regarding the issuance of additional debt payable from non-ad valorem revenues in accordance with the form of the Notes. Section 18. 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 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 ofthe 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. Upon the occurrence and during the continuation of any Event of Default, the Owner of the Notes may, in addition to any other remedies set forth in this Resolution or either 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 of Florida, 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 19. 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 20. Business Days. In any case where the due date of interest on or principal of the Notes 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. 8 Section 21. Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 22. 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 23. 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 24. City Commission Members ofthe Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement ofthis Resolution or the Notes or for any claim based thereon or otherwise in respect thereof, shall be had against any City Commission Members of the Issuer, as such, of the Issuer, past, present or future, 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 City Commission Members of the Issuer, as such, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (b) that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such City Commission Member 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 Notes, on the part of the Issuer. Section 25. 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 Notes 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 Notes, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 26. Bank Qualified. The Issuer hereby designates the tax-exempt Note as "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 2000 to issue more than $10,000,000 of "tax-exempt" obligations including the tax-exempt 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). 9 Section 27. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 28. No Third Party Beneficiaries. Except such other persons as may be expressly described in this Resolution or in the Notes, nothing in this Resolution or in the Notes, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer and the holders, any right, remedy or claim, legal or equitable, under and by reason of this Resolution, or any provision thereof, or of the Notes, 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] 10 Section 29. Effective Date. This Resolution shall be in full force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED by the City Commission of the City ofOcoee, Florida, on this 7th day of November, 2000. ATTEST: APPROVED: CITY OF OCOEE, FLORIDA By: Name: J Title: By: Name: S. Scott Vandergrift Title: Mayor FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, APPROVED AS TO FORM AND LEGALITY, THIS 7TH DAY OF NOVEMBER, 2000. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING AS HELD ON NOVEMBER 7,2000 UNDER AGENDA ITEM NO. 'ilI. h '1 FOLEY & ~NER By: ~r~ Name: Paul Rosenthal I Title: City Attorney AND BY: BRYANT, MILLER AND OLIVE, P.A. By ~ ~'J)~ Name: Grace E. Dunlap Title: Bond Counsel 11 EXHIBIT A FORM OF PROMISSORY NOTE (Tax-Exempt) ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER'S CERTIFICATE 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. November 2000 Maturity: December 1, 2010 $2,700,000 CITY OF OCOEE, FLORIDA NON-AD VALOREM REVENUE NOTE, SERIES 2000 (TAX-EXEMPT) 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 $2,700,000, together with interest on the principal balance outstanding hereunder from time to time at the rate per annum of _% (as the same may be adjusted) based upon a year of 360 days for the actual number of days elapsed. The interest rate on this Note also may be adjusted as hereinafter provided. In order to protect the Owner's taxable equivalent yield on the Note, the interest rate may be adjusted by the Owner at its discretion as of the effective date of any change in the Maximum Corporate Tax Rate or in the Preference Reduction Rate. In addition, if it should be determined that the Note is not a Qualified Tax-Exempt Obligation as of the date of issuance thereof or if the Note at any time subsequent to the date of issuance thereof no longer qualify as a Qualified Tax-Exempt Obligation, the interest rate shall be adjusted as of the date of issuance of the Note or as of such subsequent date, as appropriate, on the basis of the new Preference Reduction Rate. In no event shall the interest rate as so adjusted exceed the Taxable Rate. Subadjustments to the interest shall be made in accordance with the following formula: H=G x [A x (l-C)l + rD x C x Fl [A x )1-B)] + [D x B x E] Where: "A" is the Taxable Rate on 1, 2000; "B" is the Maximum Corporate Tax Rate on the date of issuance ofthe Note (i.e., 35%); A-I "c" is the Maximum Corporate Tax Rate at the time of the change; "D" is the Cost of Funds on the date of the adjustment; "E" is the Preference Reduction Rate on the date of issuance of the Note (i.e., 20%); "F" is the Preference Reduction Rate at the time of the change; "G" is the interest rate prior to adjustment; and "H" is the adjusted interest rate rounded to the fourth (4th) decimal place. The adjustments to the interest rate shall not apply to any Owner other than a bank. If the Note is transferred by the Owner to any entity other than a bank, the interest adjustment provisions set forth in this Paragraph shall be deemed deleted from this Note and the rights ofthe Owner and any non-bank transferee to any further payments on account of any interest adjustment theretofore completed shall terminate on the date of transfer. Notwithstanding the foregoing, the Original Purchaser shall have the right to any additional interest that it would have been entitled to receive for any period during which it held the Note if it should be determined that the Note was not Qualified Tax-Exempt Obligations from the date of issuance thereof. If a Determination of Taxability shall occur, the Note will bear interest from the earliest effective date on which such Determination of Taxability is deemed to have occurred at a floating interest rate per annum equal to the Taxable Rate. The Issuer will also pay the holder of the Note or assigns any penalties and any interest owed by the holder of the Note due to the failure of the holder of the Note to include interest on the Note in its gross income for federal income tax purposes and any arrears in interest resulting from a Determination of Taxability, and any penalties in the form of interest or otherwise shall be paid by the Commission on the next succeeding interest payment date. Principal of and interest on this Note is payable in lawful money of the United States of I America at such place as the Owner may designate to the Issuer in writing. The principal of and interest on this Note shall be payable in the amounts set forth in Schedule A, as supplemented and amended form time to time upon a draw on this Note, attached hereto due and payable on the 1 st day of each month, with interest payments commencing on June 1, 2001 and the initial principal payment December 1,2004. If any date for the payment of principal and interest hereon shall fall on a day which is not a Business Day (as defined in the Resolution (hereinafter defined)) 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. A-2 All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to principal. This Note shall be subject to optional prepayment in whole or in part on any date. Prepayments of principal shall be applied to the scheduled payments of principal in the inverse order of their due dates. During such time as this 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 Non-Ad Valorem Revenues (average of actual receipts over the prior two years) must cover projected maximum annual debt service on debt secured by and/or payable solely from such Non-Ad Valorem Revenues by at least 1.25x for the preceding twelve (12) months, calculated in accordance with the terms of the formula below. The Borrower agrees that, as soon as practicable upon the issuance of debt by the Borrower 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 and certifying that it is in compliance with the provisions of this section. The debt service coverage formula shall be calculated as follows: [Total General Fund Revenues + Operating Transfers In - Ad Valorem Revenues (General Fund)] - [General Government Expenditures (General Fund) + plus Public Safety Expenditures (General Fund) - Ad Valorem Revenues (General Fund)l Maximum Annual Debt Service for Both the Existing and Proposed Debt In case of an Event of Default (as defined in the hereinafter defined Resolution), the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such reasonable legal fees and expenses as may be incurred, including on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist. Upon the occurrence of and during the continuation of an Event of Default, the interest rate on this Note shall be increased to the lesser of 25% per annum or the maximum rate permitted by law. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE HOLDER OF THIS NOTE THAT SUCH NOTEHOLDER SHALL NEVER HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF THE AD V ALOREM TAXING POWER OF THE CITY OR A-3 TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN FOR THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THIS NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION. This 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 a Resolution duly enacted by the Issuer on November 7,2000, as from time to time amended and supplemented (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 Note. Payment of the Note is secured by a covenant to budget and appropriate Non-Ad Valorem Revenues of the Issuer. Terms I used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This 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 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 Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. THE ISSUER, AND THE OWNER, BY ACCEPTANCE OF THIS NOTE, AGREE TO WAIVE TRAIL BY JURY IN ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS. IN WITNESS WHEREOF, the City ofOcoee, Florida has caused this 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 this _ day of ,2000. CITY OF OCOEE, FLORIDA , [SEAL] By: Mayor Attest: City Clerk A-4 FORM OF PROMISSORY NOTE (Taxable) ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER'S CERTIFICATE 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. November _,2000 Maturity: December 1,2010 $1,300,000 CITY OF OCOEE, FLORIDA NON-AD VALOREM REVENUE NOTE, SERIES 2000 (TAXABLE) 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 $1 ,300,000, together with interest on the principal balance outstanding hereunder from time to time at the rate per annum of _% (as the same may be adjusted) based upon a year of 360 days for the actual number of days elapsed. The interest rate on this Note also may be adjusted as hereinafter provided. In order to protect the Owner's taxable equivalent yield on the Note, the interest rate may be adjusted by the Owner at its discretion as of the effective date of any change in the Maximum Corporate Tax Rate or in the Preference Reduction Rate. In no event shall the interest rate as so adjusted exceed the Taxable Rate. Subadjustments to the interest shall be made in accordance with the following formula: H=G x rA x (1-C)l + rD x C x Fl [A x )1-B)] + [D x B x E] I Where: "A" is the Taxable Rate on 1, 2000; "B" is the Maximum Corporate Tax Rate on the date of issuance of the Note (i.e., 35%); "c" is the Maximum Corporate Tax Rate at the time of the change; "D" is the Cost of Funds on the date of the adjustment; "E" is the Preference Reduction Rate on the date of issuance of the Note (i.e., 20%); A-5 "F" is the Preference Reduction Rate at the time of the change; "G" is the interest rate prior to adjustment; and "H" is the adjusted interest rate rounded to the fourth (4th) decimal place. The adjustments to the interest rate shall not apply to any Owner other than a bank. If the Note is transferred by the Owner to any entity other than a bank, the interest adjustment provisions set forth in this Paragraph shall be deemed deleted from this Note and the rights of the Owner and any non-bank transferee to any further payments on account of any interest adjustment theretofore completed shall terminate on the date of transfer. Principal of and interest on this 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. The principal of and interest on this Note shall be payable in the amounts set forth in Schedule A, as supplemented and amended from time to time upon a draw on this Note, attached hereto due and payable on the 1 st day of each month, with interest payments commencing on June 1,2001 and the initial principal payment December 1,2004. If any date for the payment of principal and interest hereon shall fall on a day which is not a Business Day (as defined in the Resolution (hereinafter defined)) 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 Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to principal. This Note shall be subject to optional prepayment in whole or in part on any date. Prepayments of principal shall be applied to the scheduled payments of principal in the inverse order of their due dates. I During such time as this 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 Non-Ad Valorem Revenues (average of actual receipts over the prior two years) must cover projected maximum annual debt service on debt secured by and/or payable solely from such Non-Ad Valorem Revenues by at least 1.25x for the preceding twelve (12) months, calculated in accordance with the terms of the formula below. The Borrower agrees that, as soon as practicable upon the issuance of debt by the Borrower 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 and certifying that it is in compliance with the provisions of this section. A-6 The debt service coverage formula shall be calculated as follows: [Total General Fund Revenues + Operating Transfers In - Ad Valorem Revenues (General Fund)] - [General Government Expenditures (General Fund) + plus Public Safety Expenditures (General Fund) - Ad Valorem Revenues (General Fund)l Maximum Annual Debt Service for Both the Existing and Proposed Debt In case of an Event of Default (as defined in the hereinafter defined Resolution), the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such reasonable legal fees and expenses as may be incurred, including on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist. Upon the occurrence of and during the continuation of an Event of Default, the interest rate on this Note shall be increased to the lesser of 25% per annum or the maximum rate permitted by law. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSL Y AGREED BY THE HOLDER OF THIS NOTE THAT SUCH NOTEHOLDER SHALL NEVER HA VE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY OR TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN FOR THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THIS NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION. This 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 a Resolution duly enacted by the Issuer on November, 2000, as from time to time amended and supplemented (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 Note. Payment of the 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 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. A-7 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 Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance ofthis Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. THE ISSUER, AND THE OWNER, BY ACCEPTANCE OF THIS NOTE, AGREE TO WAIVE TRAIL BY JURY IN ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS. IN WITNESS WHEREOF, the City ofOcoee, Florida has caused this 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 this _ day of , 2000. CITY OF OCOEE, FLORIDA [SEAL] By: Mayor Attest: City Clerk A-8 EXHIBIT B PROJECT DESCRIPTION The Project consists of the acquisition of certain land off Lake Apopka as more fully described legally in detail on materials on file with the Issuer's Clerk, of 358 approximate gross acres, together with certain improvements thereto including both on site and off site improvements, including the construction of any extension of public roadways to serve the Project property, the building and equipping of a fire station thereon, the addition of a city parks and recreation area thereto, and the building and equipping of a public safety complex, and the addition of land to be acquired for access to the property. J :\BondsI43 23\BondRes2. wpd November 10, 2000 B-1