2013-015 Water and Sewer System Refunding Revenue Note, Series 2013RESOLUTION NO. 2013 -015
CITY OF OC'OEE, FLORIDA
WATER AND SEWER SYSTEM REFUNDING REVENUE .NOTE,
SERIES 2013
Adopted on October 15, 2013
TABLE OF CONTENTS
PAGE
ARTICLEI — GENERAL .............................................................................................. ..............................2
SECTION 1.01. Authority for this Supplemental Resolution ................... ..............................2
SECTION1.02. Definitions ......................................... ............................... .. ..............................2
SECTION 1.03. Resolution to Constitute Contract .................................... ..............................5
SECTION1.04. Findings ................................................................................ ..............................5
SECTION 1.05. Refunding of Refunded Bonds ..................... ............................... ..5
SECTION 1.06. Negotiated Sale ....:............................................................. ..............................6
ARTICLE II — AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF
SERIES2013 NOTE .............................................................................. ..............................6
SECTION 2.01. Authorization of the Series 2013 Note. . ......... .......................... 6
SECTION 2,02. Description of the Series 2013 Note .................................. ..............................6
SECTION 2.03. Application of Series 2013 Note Proceeds ....................... ..............................7
SECTION 2.04. Funds and Accounts Secure Owners of the Series 2.013 Note ....................8
SECTION 2.05. Execution of the Series 2013 Note ..................................... ..............................8
SECTION 2.06. Registration and Exchange of Notes; Persons `Treated as Owners. ..... ......8
SECTION 2.07. Prepayment ........................
SECTION 2.08. Form of Series 2013 Note ................................................... ..............................9
SECTION 2.09. Note Mutilated, Destroyed, Stolen or Lost ..................... ..............................9
ARTICLE III -- ESCROW AGENT, TAX MATTERS AND AC:COt.JNTING MATTERS ..................9
SECTION 3.01. Escrow Agent; Escrow Deposit Agreement ................... ..............................9
SECTION 3.02. Federal Income 'lax Covenants ........................................ .............................10
SECTION3.03. Annual Audit ...................................................................... .............................10
SECTION 3.04. Operating Budget .............................................................. .............................10
ARTICLE IV - MISCELLANEOUS
........................................................................... .............................11
SECTION4.01.
Rate Covenant ................................................................... .............................11
SECTION 4.02.
Limitation of Rights ........................................................... .............................11
SECTION 4.03.
Impairment of Contract .................................................... .............................11
SECTION4.04.
Amendment ........................................................................ .............................11
SECTION 4.05.
Event of Default Under This Supplemental Resol ution ............................11
SECTION 4.06.
Severability of Invalid Provisions. ................ - ............. ...............................
SECTION4.07.
Remedies ............................................................................. .............................11
SEC"I 4.08.
Business Days .......... ......... ..... ........ ... ............ ....... ........................................
.,12
SECTION 4.09.
Applicable Provisions of Law..... ...................... — ........ - ............................
— 12
SECTION 4.10.
Rules of Interpretation ...................................................... .............................12
SECTION4.11.
Captions .............................................................................. .............................12
SECTION 4.12.
City Commission Members of the City Exempt from Personal
L, iability ... ...............................
12
SECTION 4.13.
Authorizations .................................................................... .............................12
11
SECTION 4.1.4. Repealer
SECTION 4.15. No Third Party Beneficiaries..........
SECTION 4.16. Applicable Law and Venue............
SECTION 4.17. Waiver of Jury 'I rial .........................
SECTION 4.18. Effective Date ..... ...............................
Exhibit A Form of Series 2013 Note
Exhibit B Form of Lender's Certificate
Exhibit C Lender Proposal
Exhibit D Form of Escrow Deposit Agreement
13
13
13
13
14
ii
RESOLUTION NO. 2013 -015
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OCOEE, FLORIDA, PROVIDING FOR THE CURRENT
REFUNDING OF THE CITY'S WATER AND SEWER SYSTEM
REFUNDING AND IMPROVEMENT REVENUE BONDS, SERIES
2003; AUTHORIZING THE ISSUANCE BY THE CITY OF ITS
WATER AND SEWER SYSTEM REFUNDING REVENUE NOTE,
SERIES 2013 IN THE AGGREGATE PRINCIPAL AMOUNT OF
NOT TO EXCEED $12,500,000 TO FINANCE THE COST
THEREOF AND TO PAY THE COSTS OF ISSUANCE THE
SERIES 2013 NOTE; PLEDGING NET REVENUES OF THE
SYSTEM TO SECURE PAYMENT OF THE PRINCIPAL. OF AND
INTEREST ON SUCH SERIES 2013 NOTE ON PARITY WITH
THE CITY'S OUTSTANDING SERIES SERIES 2010 NOTE AND
SERIES 2012 NOTE; AUTHORIZING THE EXECUTION OF AN
ESCROW DEPOSIT AGREEMENT; MAKING CERTAIN
COVENANTS AND AGREEMENTS FOR THE BENEFIT OF THE
OWNERS OF THE SERIES 2013 NOTE; PROVIDING FOR
SEVERABILITY OF INVALID PROVISIONS; AUTHORIZING A
NEGOTIATED SALE AND DELEGATING THE AWARD OF
THE SALE OF THE SERIES 2013 NOTE TO STI INSTITUTIONAL
& GOVERNMENT, INC.; PROVIDING FOR THE REPEAT, OF
ANY RESOLUTIONS IN CONFLICT WITH THE PROVISIONS
OF THIS SUPPLEMENTAL RESOLUTION; PROVIDING
CERTAIN OTHER MATTERS IN CONNECTION T'HEREWIT'H;
AND PROVIDING AN EFFECTIVE DATE.
1
BE IT RESOLVED BY TI1E CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. Authority for this Supplemental Resolution. 'Phis Supplemental
Resolution is adopted pursuant to the Act.
SECTION 1.02, Definitions. When used in this Supplemental. Resolution, capitalized
terms riot otherwise defined shall be as defined in the Original Resolution (as defined below),
and the following terms .shall have the following meanings, unless the context clearly otherwise
requires.
"Act" shall mean, collectively, the Constitution of the State of Florida, the Charter of the
City, Chapter 166, Part 11, Florida Statutes, as amended, the Original Resolution and other
applicable provisions of law.
"Adjusted Rate" shall mean a per annum rate equal to (a) the Interest Rate, multiplied,
prior to the occurrence of a Determination of Taxabilit 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" shall mean the City of Ocoee, Florida.
'City Attorney" shall mean the City Attorney of the City.
'City Commission" shall mean the governing body of the City.
"City Manager" shall mean the City Manager or assistant, deputy, interim or acting City
Manager of the City.
"Default Rate" shall mean the sum of the Prime Rate plus 7% 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 2013 Note is or was includable in the gross income of the Owner of the Series 2013 Note
for federal income tax purposes; provided, that no such decree, judgment, or action will be
considered final for this purpose, however, unless the City has been given written notice and, if
it is so desired and is legally allowed, has proceeded with reasonable diligence to contest the
same, either directly or in the name of any Owner of the Series 2013 Note, and until the
conclusion of any appellate review, if sought.
"Escrow Agent" shall mean U-S. Bank National Association, having its designated
corporate trust office in Orlando, Florida, and its successors and assigns.
2
"Escrow Deposit Agreement" shall mean an agreement or agreements by and between
the City and an Escrow Agent, the purpose of which is to provide for the payment of the
Refunded Bonds. Such agreement shall be in substantially the form attached hereto as Exhibit B
and incorporated herein by reference.
"Finance Director" means the Finance Director of the City or in her absence or inability
to act, such other person as may be duly authorized to act on her behalf.
"Financial Advisor" shall mean First Southwest Company, as financial advisor to the
City.
"Interest Rate" shall be as defined in Section 2.02('A) hereof, and shall be subject to
adjustment as provided in Section 2.02(B) hereof.
"Lender" means STI Institutional & Government, Inc., a Delaware general business
corporation and its successors and /or assigns.
"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 October 1, 2033.
"Maximum Federal Corporate Tax Rate" means the maximum rate of income taxation
imposed on corporations pursuant to Section II (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 unposed 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 2013 Note is 35%.
"Original Resolution" shall mean Resolution No. 93 -02, adopted by the City Commission
of the City on February 2, 1993, as amended and supplemented from time to time.
"Owner" or "Owners" means the Person or Persons in whose name or names the Series
2013 Note shall be registered on the books of the City kept for that purpose in accordance with
provisions of this Supplemental Resolution including, initially, the Lender.
"Parity Bonds" shall mean the Outstanding Series 2010 Note and the Outstanding Series
2012 Note, each issued under the Original Resolution.
3
"Prime Rate" shall mean the per arinum rate which 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 best rate charged to borrowing customers. SunTrust Bank may make coinmerciat
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 ether office as the Lender may designate to the City in writing.
"Proposal" means the proposal to purchase the Series 2013 Note submitted to the City by
the Lender and attached hereto as Exhibit C.
"Refunded Bonds" shall mean the City's Outstanding Water and Sewer System
Refunding and Improvement Revenue Bonds, Series 2003.
"Series 2010 Note" shall mean the City's Water and Sewer System Refunding Revenue
Note, Series 2010.
"Series 2012 Note" shall mean the City's Water and Sewer System Refunding Revenue
Note, Series 2012.
"Series 2013 Note" shall mean the City's Water and Sewer System Refunding Revenue
Note, Series 2013, herein authorized to be issued on parity with the Parity Bonds.
"State" means the State of Florida.
"Supplemental Resolution" shall mean this resolution of the City, supplementing the
Original Resolution and adopted and becoming effective in accordance with the terms of
Section 7.01 of the Original Resolution.
"Taxable Period" shall mean the period of time between (a) the date ghat interest on the
Series 2013 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 City, which
statement shall, in the absence of manifest error, be conclusive and binding on the City.
4
SECTION 1.03. Resolution to Constitute Contract. In consideration of the purchase
and acceptance of any or all of the Series 2013 Note by those who shall hold the same from time
to time, the provisions of the Original Resolution, as supplemented by this Supplemental
Resolution, shall be a part of the contract of the City with the Owners of the Series 2013 Note
and shall be deemed to be and shall constitute a contract between the City and the Owners from
time to time of the Series 2013 Note. The pledge made in the Original Resolution, as
supplemented by this Supplemental Resolution, and the provisions, covenants and agreements
herein set forth and in the Original Resolution to be performed by or on behalf of the City shall
be for the equal benefit, protection and security of the Owners of any and all of said Series 2013
Note.
SECTION 1.04. Findings. It is hereby ascertained, determined and declared that:
(A) The City owns and operates a combined Water System and Sewer System.
(B) No portion of the Pledged Funds are currently pledged or encumbered in any
manner, except with respect to the payment of the Parity Bonds and the Refunded Bonds.
(C) The City deems it necessary, beneficial and in its best interest to provide for the
refunding of the Refunded Bonds. Such refunding will be advantageous to the City and serve a
paramount public purpose because it will allow the City to realize debt service savings.
(D) The estimated SUM required for the refunding of the Refunded Bonds will be
derived from the proceeds of the sale of the Series 2013 Note, together with other legally
available funds of the City.
(E) The principal of and interest on the Series 2013 Note and all other payments
provided for in this Supplemental Resolution will be paid solely from the Pledged Funds and
shall be on parity with the Parity Bonds and the ad valorem taxing power of the City will never
be necessary or authorized to pay the principal of, premium, if any, and interest on the Series
2013 Note and the Series 2013 Note shall not constitute a lien upon any property of the City
other than the Pledged Funds.
(F) The City has received an offer from the Lender to purchase the Series 2013 Note.
(G) T'he City is adopting this Supplemental 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.
SECTION 1.05. Refunding of Refunded Bonds. The City does hereby authorize the
refunding of the Refunded Bonds in accordance herewith, Notwithstanding the provisions of
this Section 1.05 and Section 5.02(D) of the Original Resolution, prior to the issuance of the
Series 2013 Note to refund the Refunded Bonds, there shall have been obtained and filed with
the City a statement of the Financial Advisor that the issuance of the Series 2013 Note will not
5
result in an increase in the aggregate amount of principal of and interest on the Outstanding
Bonds under the Original Resolution becoming due in the current Fiscal Year and all
subsequent Fiscal Years.
SECTION 1.06. Negotiated Sale. Due to the willingness of the Lender to purchase the
Series 2013 Note at an interest rate favorable to the City, the characteristics of the Series 2013
Note, prevailing market conditions and additional savings to be realized from an expeditious
sale of the Series 2013 Note, it is hereby determined that it is in the best interest of the public
and the City to sell the Series 2013 Note through a negotiated sale (rather than through a
competitive bid) and such sale to the Lender is hereby authorized and approved upon meeting
the terms and conditions contained herein and in the Proposal, the form of which is attached
hereto as Fxhibit C. Prior to the issuance of the Series 2013 Note, the City shall receive from the
Lender a disclosure letter containing the information required by Section 218.385, Florida
Statutes. The City Manager, upon the advice of the City's Financial Advisor, Finance Director
and City Attorney, is hereby authorized to executed a commitment letter and /or rate lock
agreement with the Lender.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND REGISTRATION OF SERIES 2013 NOTE
SECTION 2.01. Authorization of the Series 2013 Note. Subject and pursuant to the
provisions of the Original Resolution and this Supplemental Resolution, an obligation of the
City to be known as "City of Ocoee, Florida, Water and Sewer System Refunding Revenue Note,
Series 2013" is hereby authorized to be issued under and secured by the Original Resolution, as
supplemented by this Supplemental Resolution, in the aggregate principal amount not to
exceed $12,500,000, for the purpose of providing funds to pay the costs of refunding the
Refunded Bonds and paying the costs of issuing the Series 2013 Note.
SECTION 2.02. Description of the Series 2013 Note. The Series 2013 Note shall be
issued in registered form, in a single denomination equal to the principal amount of the Series
2013 Note and dated the date of its execution and delivery, which shall be a date agreed upon
by the City and the Lender, subject to the following terms:
(A) Interest Rate. The Series 2013 Note shall have a fixed interest rate of 3.93 %. 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) Adju to Inter Rate. The Interest Rate on the Series 2013 Note may be
adjusted as provided below; provided, however, the Interest Rate on the Series 2013 Note shall
not exceed the maximum interest rate permitted by applicable law:
6
(1) Upon the occurrence of a Determination of Taxability and for as long as the
Series 2013 Note remains outstanding, the Interest Rate on the Series 2013 Note
shall be converted to the Taxable Rate. In addition, upon a Determination of
Taxability, the City shall pay to the Owner (i) an additional amount equal to the
difference between (A) the amount of interest actually paid on the Series 2013
Note during the Taxable Period and (B) the amount of interest that would have
been paid during the Taxable Period had the Series 2013 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) 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 20 13
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 (2), then the Owner
shall give notice of such adjustment to the City, providing sufficient evidence
supporting such Adjusted Rate calculation, which statement shall, in the absence
of manifest error, be conclusive and binding on the City. Such notice of the
Adjusted Rate from the Owner to the City 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.
(3) Upon the occurrence of an Event of Default as described in Section 6.01 of the
Original Resolution or Section 4.05 of this Supplemental Resolution, the Interest
Rate shall be adjusted to the Default Rate.
(C) In terest P �yrnentvates_. Interest on the Series 2013 Note shall be paid semi-
annually, commencing April 1, 2014, and on each April 1 and October 1 thereafter (each an
"Interest Payment Date ") until the Maturity Date, unless earlier redeemed.
(D) Principal Payment _Dates. Principal on the Series 2013 Note shall be paid
annually, conunencing October 1, 2014, and on the first (1 day of each October thereafter (each
a 'Principal Payment Date ") until the Maturity Date, unless earlier redeemed.
SECTION 2.03. Application of Series 2013 . Note Proceeds. Except as otherwise
provided in a certificate of the City delivered in connection with the issuance of the Series 2013
Note, the proceeds derived from the sale of the Series 2013 Note shall, simultaneously with the
delivery of the Series 2013 Note to the Lender, be applied by the City as follows:
(A) A sufficient amount of the Series 2013 Note proceeds shall be applied to the
payment of reasonable and necessary costs and expenses relating to the issuance and delivery of
the Series 2013 Note.
7
(B) The City hereby elects not to fund a Reserve Requirement for the Series 2.013
Note as permitted by the Original Resolution.
(C) A sum as specified by the City shall, together with other legally available funds
of the City, if any, be used to defease the Refunded Bonds by depositing such sums of money
pursuant to the Escrow Deposit Agreement so as to produce sufficient funds to make all the
payments described in such Escrow Deposit Agreement. At the time of execution of such
Escrow Deposit Agreement, the City shalt furnish to the Escrow Agent appropriate
documentation to demonstrate that the sums being deposited and the investment to be made
will be sufficient for such purposes. Simultaneously with the issuance of the Series 2013 Note,
the City shall enter into an Escrow Deposit Agreement substantially in the form attached hereto
as Exhibit D with the Escrow Agent. Such escrowed funds shall be kept separate and apart
from all other funds of the City and the moneys on deposit under the Escrow Deposit
Agreement shall be withdrawn, used and applied by the Escrow Agent solely for the purpose
set forth in the Escrow Deposit Agreement.
SECTION 2.04. Funds and Accounts Secure Owners of the Series 2013 Note. The
funds and accounts created pursuant to Section 4.04 of the Original Resolution shall be for the
equal benefit and use of the Series 2013 Note as Outstanding Additional Bonds on parity with
the Parity Bonds; provided, however, that each respective account in the Reserve Fund for the
Parity Bonds, if any, solely secures the related Parity Bonds. The deposits required in Section
4.05 of the Original Resolution shall be calculated commencing with the month in which the
Series 2013 Note is delivered to provide for such deposits to reflect the issuance of the Series
2013 Note.
SECTION 2.05. Execution of the Series 2013 Note. The Series 2013 Note shalt be
signed by, or bear the facsimile signature of, the Mayor and shall be signed by, or bear the
facsimile signature of, the Clerk and a facsimile or an original impression of the official seal of
the City shall be imprinted on the Series 2013 Note,
In case any officer whose signature or a facsimile of whose signature shall appear on any
Series 2013 Note shall cease to be such officer before the delivery of such Series 2013 Note, such
signature or such facsimile shall nevertheless be valid and sufficient for all purposes the same as
if he has remained in office until such delivery. Any Series 2013 Note may bear the facsimile
signature of or may be signed by such persons who, at the actual time of the execution of such
Series 2013 Note, shall be the proper officers to sign such Series 2013 Note although at the date
Of such Series 2013 Note such persons may not have been such officers.
SECTION 2.06. Registration and Exchange of Notes; Persons Treated as Owners. The
Series 2013 Note is initially registered to the Lender. So long as the Series 2013 Note shall
remain unpaid, the City will keep books for the registration and transfer of the Series 2013 Note.
The Series 2013 Note shall be transferable only upon such registration books; provided,
however, that the Series 2013 Note may be transferred only in whole and not in part and any
such transfer shall be made only to an "accredited investor" as such term is defined in the
8
Securities Act of 1933, as amended, and Regulation D thereunder except as otherwise provided
in the Series 2013 Note. Notwithstanding the foregoing, nothing in this Supplemental
Resolution or in the Series 2013 Note shall be construed to prohibit the Lender from assigning
all or a portion of the Series 2013 Note to an affiliate of the Lender in its sole discretion.
The Person in whose name the Series 2013 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 2013 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
2013 Note to the extent of the sum or sums so paid.
SECTION 2.07. Prepayment. The Series 2013 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 2013 Note, as provided in the Series 2013 Note, without penalty or premium upon
two (2) Business Days' prior written notice to the Owner. Any prepayment in part shall be
applied to principal due in the inverse order of maturity, or applied to principal in such other
manner as the Lender and the Issuer may mutually agree
SECTION 2.08. Form of Series 2013 Note. 'Ihe Series 2013 Note is to be in substantially
the form set forth on 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.
SECTION 2.09. Note Mutilated, Destroyed, Stolen or Lost. In case the Series 2013
Note shall become mutilated, or be destroyed, stolen or lost, the City shall issue and deliver a
o m
new Series 2013 Note of like tenor as the Series 2013 Note sutilated, destroyed, stolen or lost,
ill exchange and in substitution for such mutilated Series 2013 Note, or in lieu of and in
substitution for the Series 2013 Note destroyed, stolen or lost and upon the Owner furnishing
the City proof of ownership thereof and indemnity reasonably satisfactory to the City and
complying with such other reasonable regulations and conditions as the City may prescribe and
paying such expenses as the City may incur. The Series 2013 Note so surrendered shall be
canceled.
ARTICLE III
ESCROW AGENT, TAX MATTERS AND ACCOUNTING MATTERS
SECTION 3.01. Escrow Agent; Escrow Deposit Agreement. The City hereby
authorizes and directs the Mayor and the City Clerk to execute the Escrow Deposit Agreement
and to deliver the Escrow Deposit Agreement to U.S. Bank National Association, which is
hereby appointed as Escrow Agent thereunder. All of the provisions of the Escrow Deposit
Agreement when executed and delivered by the City as authorized herein and when duly
authorized, executed and delivered by the Escrow Agent, shall be deemed to be a part of this
Supplemental Resolution as fully and to the same extent as if incorporated verbatim herein, and
9
the Escrow Deposit Agreement shall be in substantially the form of the Escrow Deposit
Agreement attached hereto as Exhibit D with such changes, amendments, modification,
omissions and additions, including the date of such Escrow Deposit Agreement, as may be
approved by said Mayor and the City Clerk. Execution by the Mayor and the City Clerk of the
Escrow Deposit Agreement shall be deemed to be conclusive evidence of approval of such
changes. The redemption notice for the Refunded Bonds is authorized to be submitted in
accordance with the Original Resolution.
SECTION 3.02. Federal Income Tax Covenants.
(A) The City covenants with the Owners of the Series 2013 Note, that it shall not use
the proceeds of such Series 2013 Note in any manner which would cause the interest on such
Series 2013 Note to be or become includable in the gross income of the Owner thereof for
federal income tax purposes.
(B) The City covenants with the Owners of the Series 2013 Note that neither the City
nor any Person under its control or direction will make any use of the proceeds of the Series
2013 Note (or amounts deemed to be proceeds under the Code) in any manner which would
cause the Series 2013 Note to be "arbitrage bonds" within the meaning of Section 148 of the
(.'ode and neither the City nor any other Person shall do any act or fail to do any act which
would cause the interest on the Series 2013 Note to become includable in the gross income of
the Owner thereof for federal income tax purposes.
(C) The City hereby covenants with the Owners of the Series 2013 Note that it will
comply with all provisions of the Code necessary to maintain the exclusion of interest on the
Series 2013 Note from the gross income of the Owner thereof for federal income tax purposes,
including, in particular, the payment of any amount required to be rebated to the U.S. Treasury
pursuant to the Code.
SECTION 3.03. Annual Audit. Notwithstanding the provisions of Section 5.05 of t►e
Original Resolution, the City hereby covenants with the Lender that it will provide such Lender
a copy of the audited financial statements of the City (as more fully described in Section 5.05 of
the Original Resolution) not more than two hundred ten (210) days after the close of each Fiscal
Year,
SECTION 3.04. Operating Budget. Notwithstanding the provisions of Section 5.13 of
the Original Resolution, the City hereby covenants with the Lender that it will provide such
Lender a copy of the detailed budget of the estimated expenditures for the operation and
maintenance of the System (as more fully described in Section 5.13 of the Original Resolution)
(the "Operating Budget ") not more than thirty (30) days after the adoption of such Operating
Budget together with any other information the Lender may reasonably request.
10
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Rate Covenant. The City agrees to comply with the terms of the rate
covenant as set forth in Section 5.07 of the Original Resolution.
SECTION 4.02. Limitation of Rights. With the exception of any rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Supplemental
Resolution or the Series 2013 Note is intended or shall be construed to give to any Person other
than the City and the Owner any legal or equitable right, remedy or claim under or with respect
to this Supplemental Resolution or any covenants, conditions and provisions herein contained;
this Supplemental Resolution and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the City and the Owner.
SECTION 4.03. Impairment of Contract. The City covenants with the Owner of the
Series 2013 Note that it will not, without the written consent of the Owner of the Series 2013
Note, enact any ordinance or adopt any resolution which repeals, impairs or amends in any
manner adverse to the Owner the rights granted to the Owner of the Series 2013 Note
hereunder.
SECTION 4.04. Amendment. This Supplemental Resolution and Sections 5.02, 5.07 and
6.01 of the Original Resolution shall not be modified or amended in any respect subsequent to
the issuance of the Series 2013 Note except with the written consent of the Owner of the Series
2013 Note. The City will provide to the Owner of the Series 2013 Note copies of all other
amendments to the Original. Resolution.
SECTION 4.05. Event of Default Under This Supplemental Resolution. Failure by the
City to comply with the covenants, conditions, agreements and provisions contained in this
Supplemental Resolution and the Original 1esoluti01 shall constitute an Event of Default under
this Supplemental Resolution.
SECTION 4.06. Severability of Invalid Provisions. If any one or more of the covenants,
agreements or provisions of this Supplemental Resolution shall be held contrary to any express
provision of law or contrary to the policy of express law, though not expressly prohibited, or
against public policy, or shall for any reason whatsoever be held invalid, or shall in any manner
adversely affect the validity of the Series 2013 Note, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from the remaining covenants,
agreements and provisions of this Supplemental Resolution and shall in no way affect the
validity of any of the other covenants, agreements or provisions hereof or of the Series 2013
Note issued hereunder.
SECTION 4.07. Remedies. The Owner of the Series 2013 Note shall have available the
remedies specified in Section 6.02 of the Original Resolution.
11
In addition to the foregoing, in case of an Event of Default hereunder or under the
Original Resolution, the Owner may declare the entire debt 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 the Series 2013 Note, all costs of
collection and enforcement thereof, including such reasonable attorneys' fees as may 'be
incurred, including on appeal or incurred in any proceeding under any bankruptcy laws as they
now or hereafter exist.
SECTION 4.08. Business Days. In any case where the due date of interest on or
principal of the Series 2013 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,
with the same force and effect as if made on the nominal date provided herein, and interest
shall cease to accrue on the date on which such payment was due if such payment is rnade on
the immediately succeeding Business Day.
SECTION 4.09. Applicable Provisions of Law. This Supplemental Resolution shall be
governed by and construed in accordance with the laws of the State.
SECTION 4.10. 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 Supplemental Resolution
and not solely to the particular portion in which any such word is used.
SECTION 4.11. Captions. The captions and headings in this Supplemental Resolution
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Supplemental Resolution.
SECTION 4.12, City Commission Members of the City Exempt from Personal
Liability. No recourse under or upon any obligation, covenant or agreement of this
Supplemental Resolution or the Series 2013 Note or for any claim based thereon or otherwise in
respect thereof, shall be had against any City Commission Members, as such, of the City, past,
present or future, either directly or through the City 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 City, as such, under or by reason of the obligations, covenants or agreements
contained in this Supplemental 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 City, as
such, are waived and released as a condition of, and as a consideration for, the execution of this
Supplemental Resolution and the issuance of the Series 2013 Note, on the part of the City.
SECTION 4.13. Authorizations. The Mayor and any member of the City Commission,
the City Manager, the City Attorney, the Finance Director, the Clerk and such other officials and
12
employees of the City as may be designated by the City are each designated as agents of the
City in connection with the issuance and delivery of the Series 2013 Note and are authorized
and empowered, collectively or individually, to take all action and steps and to execute all
instruments, a tax return, a tax certificate, all documents, and contracts on behalf of the City that
are necessary or desirable in connection with the execution and delivery of the Series 2013 Note,
and which are specifically authorized or are not inconsistent with the terms and provisions of
this Supplernei,ital Resolution.
SECTION 4.14. Repealer. All resolutions or parts thereof in conflict herewith are
hereby repealed.
SECTION 4.15. No Third Party Beneficiaries. Except such other persons as may be
expressly described in this Supplemental Resolution or in the Series 2013 Note, nothing in this
Supplemental Resolution or in the Series 2013 Note, expressed or implied, is intended or shall
be construed to confer upon any person, other than the City and the Lender or subsequent
holders, any right, remedy or claim, legal or equitable, under and by reason of this
Supplemental Resolution, or any provision thereof, or of the Series 2013 Note, all provisions
thereof being intended to be and being for the sole and exclusive benefit of the City, the Lender,
and the persons who shall from time to time be the holders.
SECTION 4.16. Applicable 1,aw and Venue. The substantive laws of the State of
Florida shall govern this Supplemental Resolution. The parties hereto submit to the jurisdiction
of Florida courts and federal courts and agree that venue for any suit concerning this
Supplemental Resolution or the Series 2013 Note shall be in Orange ("ounty, Florida and the
Middle District of Florida.
SECTION 4.17. Waiver of Jury Trial. THE CITY AND THE LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SUPPLEMENTAL
IZESOL,UTION OR THE SERIES 2013 NOTE AND ANY DOCLJMENT CONTEMPI.,A'I EL) TO
BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETi iER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL, INDUCEMENT FOR THE CITY AND THE
LENDER TO ISSUE AND PURCHASE THE SERIES 2013 NOTE.
13
SECTION 4.18. Effective Date
immediately upon its adoption.
This Supplemental Resolution shall take effect
DULY ADOPTED this 15 11, day of October, 2013.
(SEAL)
ATTEST:
Beth Eikenberry, Clerk
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE, APPROVED AS TO
FORM AND LEGALITY, THIS 15 111 DAY OF
OCTOBER.
CITY ATT NE
j. \ wdox \ docs \ chents \ 25136 \ 01 '1 \ ord i es \ 00808557.doc
CITY COMMISSION OF THE CITY OF
OCOEE, FLORIDA
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
OCTOBER 15, 2013 UNDER AGENDA ITEM
NO.
14
EXHIBIT A
FORM OF SERIES 2013 NOTE
ANY HOLDER, OTHER THAN AN AFFILIATE OF THE OWNER IDENTIFIED BELOW
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.
DATED DATE: 2013
MATURITY DATE: October 1, 2033
PRINCIPAL AM0 L-JNT:
INTEREST RATE: % (subject to adjustment as provided herein)
CITY OF OCOEE, FLORIDA
WATER AND SEWER SYSTEM REFUNDING REVENUE NOTE,
SERIES 2013
The City of Ocoee, Florida (the "City "), 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 STI Institutional & Government, Inc.
or its registered assigns (hereinafter, the "Owner "), the principal amount set forth above,
together with interest on the principal balance outstandirig hereunder from time to time at the
Interest Rate per annum set forth above (subject to adjustment as provided herein) based upon
a year of 360 days consisting of twelve 30 -day months.
This Series 2013 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 City and Resolution No.
93 -02, adopted by the City Commission of the City on February 2, 1993 (the "Original
Resolution "), as amended and supplemented from time to time, and as particularly
supplemented by Resolution No. 2013 ... .... adopted by the City Commission of the City on
October 15, 2013 (herein referred to as the "Supplemental Resolution" and, together with the
Original Resolution, the "Note Resolution "), and is subject to all the terms and conditions of the
Note Resolution. All terms, conditions and provisions of the Note Resolution, including,
without limitation, remedies in the Event of Default, are by this reference thereto incorporated
herein as a part of this Series 2013 Note. Payment of this Series 2013 Note is secured by the
Pledged Funds. Terms used herein in capitalized form and not otherwise defined herein shall
have the meanings ascribed thereto in the Note Resolution.
LEI
So long as STI Institutional & Government, Inc. is the Owner of this Series 2013 Note,
principal of and interest on this Series 2013 Note is payable in lawful money of the United States
of America to the Owner via ACH Direct Debit from an account established with SunTrust
Bank. If STI Institutional & Government, Inc. is not the registered Owner of this Series 2013
Note, principal of and interest on this Series 2013 Note is payable in lawful money of the United
States of America at such place as the Owner may designate to the City in writing.
The principal of this Series 2013 Note shall be payable in the amounts set forth in
Schedule A attached hereto, due each October "l, with an initial principal payment date of
October 1, 2014. Interest shall be payable semi - annually, with interest payments due each
April I and October 1, commencing on April 1, 2014.
In any case where the due date of interest on or principal of this Series 2013 Note is not a
Business Day, then payment of such principal or interest need riot be made on such date but
may be made on the next succeeding Business Day, with the same force and effect as if made on
the nominal date provided in the Supplemental 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 City pursuant to this Series 2013 Note shalt apply first to accrued
interest, then to other charges due the Owner, and the balance thereof shall apply to principal.
The Interest Rate on this Series 2013 Note may be adjusted as provided below; provided,
however, the Interest Rate on this Series 2013 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 2013 Note remains outstanding, the Interest Rate on this Series 2013 Note
shall be converted to the 'Taxable Rate. In addition, upon a Determination of
Taxability, the City shall pay to the Owner (i) an additional amount equal to the
difference between (A) the amount of interest actually paid on this Series 2013
Note during the Taxable Period and (B) the amount of interest that would have
been paid during the Taxable Period had this Series 2013 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) 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 2013
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 City, providing sufficient evidence
supporting such Adjusted Rate calculation, which statement shall, in the absence
A -2
of manifest error, be conclusive and binding on the City. Such notice of the
Adjusted Rate from the Owner to the City 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.
(3) Upon the occurrence of an Event of Default as described in Section 6.01 of the
Original Resolution or Section 4.05 of the Supplemental Resolution, the Interest
Rate shall be adjusted to the Default Rate.
This Series 2013 Note may be prepaid by the City in whole or in part at any time on or
after the date that is two (2) years after the Dated Date indicated on the first page of this Series
2013 Note, without penalty or premium upon two (2) Business Days' prior written notice to the
Owner. Any prepayment in part shall be applied to principal due in the inverse order of
maturity, or applied to principal in such other manner as the Lender and the Issuer may
mutually agree.
"THIS SERIES 2013 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 SERIES 2013 NOTE THAT SUCH SERIES 2013 NOTEHOLDER SHALL
NEVER HAVE THE RIGHT TO REQUIRE OR COMPEL THE F,XERCISE OF THE AD
VAL(_)REM '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 SERIES 2013 NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR
IN THE BOND RESOLUTION,
This Series 2013 Note may be exchanged or transferred by the Owner hereof but only
upon the registration books maintained by the City and in the manner provided in the
Supplemental 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 201.3 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 2013 Note is in full
compliance with and does not exceed or violate any constitutional or statutory limitation.
[Remainder of page intentionally left blank]
A -3
IN WITNESS WHEREOF, the City of Ocoee, Florida has caused this Series 2013 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
2013.
CI'T'Y OF OCOF,E, FLORIDA
[SEAL]
By:
S. Scott Vandergrift, Mayor
Attest:
Beth Eikenberry, City Clerk
I
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or ocher identifying number of transferee) the attached Note of the
City of Ocoee, Florida, and does hereby constitute and appoint
_ _ attorney, to transfer the said Series 2013 Note on
the books kept for registration thereof, with full power of substitution in the premises.
Date:
Bv; manual signature
T] t e:
Signature Guaranteed by
[rnember firm of the New York
Stock Exchange or a commercial
bank or a trust company.]
NOTICE: No transfer will be registered and no
new Series 2013 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 Series 2013
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.
A -5
SCHEDUL A
Period Ending
0006ber 1) Princiva_l
2014 $
2015
2016
20 17
2018
2019
2020
2021.
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
TOTAL
A -6
EXHIBIT B
FORM OF LENDER CERTIFICATE
This is to certify that STI INSTITUTIONAL & GOVERNMENT, INC. (the "Lender ") has
made a loan (the "Loan ") to the City of Ocoee, Florida (the "Issuer "). The Loan is evidenced by
the Issuer's Water and Sewer System Refunding Revenue Note, Series 2013 dated
2013 (the "Note "). The Lender acknowledges that the Loan is being made as a direct loan and
that the Issuer will not make a filing with the Municipal Securities Rulemaking Board's
Electronic Municipal Market Access repository. Any capitaliced undefined terms used herein
not otherwise defined shall have the meaning set forth in Resolution No. 93 -02 adopted by the
City Commission of the Issuer on February 2, 1993, as supplemented by Resolution No. 2013-
____ adopted by the City Commission of the Issuer on October 15, 2013 (together, 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, or as otherwise provided
in the Note. 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.
B-1
Dated this _ day of 2013.
STI INSTITUTIONAL & GOVERNMENT, INC.
Ic
Name: William C. Jones
Title: First Vice President
B -2
EXHIBIT C
LENDER PROPOSAL
STI INSTITUTIONAL & GOVERNMENT, INC.,
TERM SHEET
Borrower: City of Ocoee, Florida
150 North Lakeshore Drive
Ocoee, FL.. 34761
Lender: STI Institutional & Government. Inc.
Contact: William C. Jones
First Vice President
STI Institutional & Government, Inc.
Not- for - Profit and Government Banking
200 S. Orange Avenue, SCAB 6,h Floor
Orlando. FL 32801
Phone. 407 - 237 -5909
Facility Type: Non -Bank Qualified Loan in the form of a tax - exempt bond (the "Bond ")
issued by City of Ocoee, Florida, a qualifying governmental issuer (the
"Issuer ").
Purpose The proceeds from the Bond(s) will be used to refund the balance
outstanding on the Borrower's Series 2003 Water and Sewer System
Refunding and Improvement Revenue Bonds.
Amount. Up to $12,500,000.00
Terms. Interest shall be payable calculated on the basis of a 360 -day year semi-
annually on April 1 and October 1, commencing October 1, 2013
Principal payments shall be due annually on October 1, commencing on
October 1, 2013 The principal and interest payment shall be based on a
20 year amortization schedule, with a maximum average life of the debt
of approximately 14 years.
Fee: N/A
Security: The Series 2013 Loan and the interest thereon are payable from and
secured by a priority lien on and pledge of Net Revenues of the Water
and Sewer System, as defined in the applicable authorizing Resolution.
Interest Rate Options: Option 1: Fixed Rate (Straight 20 Year Amortization):
A fixed rate equal to 3 60 %, the offer of which rate may be held for no
longer than 7 days from the date of this letter. The interest rate is based
on a 30/360 accrual method.
C -1
Rate Lock Optio For any of the above mentioned options, a rate lock is
available for forty five (45) days from the date of this letter at an
additional cost of 8 bps.
Maturity Date: October 1, 2033
Prepayment
Alternatives: The following Prepayment Alternatives are applicable
Borrower may prepay the Bond in whole or in part at anytime upon two
Business Days' prior written notice to the Lender. Such prepayment
notice shall specify the amount of the prepayment which is to be applied
as determined by the lender in its sole discretion. In the event of a
prepayment of the Bond under this paragraph, the Borrower may be
required to pay the Lender an additional fee (a prepayment charge or
premium) determined in the manner provided below, to compensate the
Lender for all losses, costs and expenses incurred in connection with
such prepayment.
'The fee shall be equal to the present value of the difference between (1)
the amount that would have been realized by the Lender on the prepaid
amount for the remaining term of the Bond at the Federal Reserve H.15
Statistical Release rate for fixed -rate payers in interest rate swaps for a
term corresponding to the term of the Bond, interpolated to the nearest
month, if necessary, that was in effect three Business Days prior to the
origination date of the Bond and (2) the amount that would be realized by
the Lender by reinvesting such prepaid funds for the remaining term of
the Bond at the Federal Reserve H.15 Statistical Release rate for fixed -
rate payers in interest rate swaps, interpolated to the nearest month, that
was in effect three Business Days prior to the prepayment date; both
discounted at the same interest rate utilized in determining the applicable
amount in (2). Should the present value have no value or a negative
value, the Borrower may prepay at par with no additional prepayment
charge or premium Should the Federal Reserve no longer release rates
for fixed -rate payers in interest rate swaps, the Lender may substitute the
Federal Reserve H.15 Statistical Release with another similar index. The
Lender shall provide the Borrower with a written statement explaining the
calculation of the premium due, which statement shall, in absence of
manifest error, be conclusive and binding. This alternative is not
intended to, and does not, increase the interest rate payable on the
Bond.
Alternative #2 — No Prepayment Penalty The Lender will allow
prepayment after 2 years without any penalty for each of the above
mentioned interest rate options described above using the schedule
below:
Option 1) Add an additional twenty five (25) basis points to the interest
rate.
All payments shall be subject to two Business Days' prior notice to the
Lender.
The Lender will allow prepayment in whole and in part, but only if the
partial prepayment is applied as determined by Lender in its sole
C -2
discretion at par plus accrued interest and without penalty at any time
after 2 years upon two Business Days` notice to the Lender.
After -Tax Yield Maintenance
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 2013 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, then the Owner shall give notice of such
adjustment to the City, providing sufficient evidence supporting such
Adjusted Rate Calculation, which statement shall, in the absence of
manifest error, be conclusive and binding on the City. Such notice of the
Adjusted Rate from the Owner to the City 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. The interest
rates quoted herein take into consideration a marginal maximum federal
corporate tax rate of 35 %.
Upon the occurrence of a Determination of Taxability and for as long as
the Series 2013 Note remains outstanding, the Interest Rate on the
Series 2013 Note shall be converted to the Taxable Rate. In addition,
upon a Determination of Taxability, the City shall pay to the Owner (i) an
additional amount equal to the difference between (A) the amount of
interest actually paid on the Series 2013 Note during the Taxable Period
and (B) the amount of interest that would have been paid during the
Taxable Period had the Series 2013 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.
Representations and
Warranties: Usual and customary for Lender in transactions of this type.
Financial Covenants: Usual and customary for Lender in transactions of this type.
Financing Documents Financing Documents will include a loan agreement, other security
documents and applicable form of Resolution.
Legal Fees: Our proposed Lender's counsel is Michael Williams at Akerman Senterfitt
in Orlando, Florida. Fees for our counsel will be:
(a) $15,000.00 if our counsel prepares all of the documents and
provides a Bond Counsel Opinion for the transaction.
(b) $4,500.00 if our counsel closes the transaction and reviews
documentation prepared by the bond counsel or counsel to the
Borrower.
(c) Borrower agrees to pay all other reasonable fees, charges, expenses
and costs in connection with the transaction.
(d) Payment by borrower of expenses described herein shall not be
contingent upon closing and legal fees on account of borrower after
documentation has started are payable regardless of whether the
transaction closes.
(e) If the loan has extraordinary negotiations, problems or does not
close before the closing date set in the commitment the legal fee will
C -3
be increased to reflect any extra work performed and Borrower
agrees to pay such fee
Governing Law and
Jurisdiction: State of Florida
Covenants and Conditions
A) All matters relating to this loan, including all instruments and documents required, are subject to
the Lender's policies and procedures in effect, applicable governmental regulations and /or
statutes, and approval by the Lender and the Lender's Counsel
B) Borrower shall submit to the Lender annual audited financial statements within 270 days of fiscal
year end and an annual budget within 30 days of adoption, together with any other information
the Lender may reasonably request.
C) Borrower shall be required to deliver a written opinion from Borrower's Counsel, in form and
substance acceptable to the Lender and Lender's Counsel, that all documents are valid, binding
and enforceable in accordance with their terms that execution and delivery of said documents
has been duly authorized, and addressing such other matters as the Lender and the Lender's
Counsel deem appropriate.
D) The provisions, terms and conditions contained herein are not inclusive of all the anticipated
terms that will be applicable to the credit and do not purport to summarize all of the conditions,
covenants, definitions, representations, warranties, that shall include but not be limited to the
waiver of jury trial, submission to jurisdiction and venue, events of default, remedies including but
not limited to acceleration and other provisions that may be contained in documents required to
consummate this financing. A payment or covenant default shall be subject to a default rate of
Prime + 7% All of such terms will be set forth in the final, definitive loan documents, and all such
terms must be acceptable to the Lender and its counsel. The Lender shall maintain the right to
transfer and assign the Bond in whole to accredited investors. Notwithstanding any terms or
conditions the Lender will have the right to assign all of the bond or loan to an affiliate of the
Lender in its sole discretion.
E) The Borrower agrees to have the principal and interest payments collected via ACH Direct Debit
from a bank account of their choice.
F) Receipt of opinion from Bond Counsel in form and substance satisfactory to the Lender, which
shall include, without limitation, opinion that the interest on the Bond is excludable from gross
income of the owners thereof for federal income tax purposes.
G) Additional Bonds Te st: In order to issue additional parity bonds or Loans secured by Pledged
Revenues, the Finance Director shall certify at the time of the issuance of the additional parity
obligations that the Pledged Revenues received by the Borrower during each of the two
preceding complete fiscal years shall have been equal to not less than 110% of the maximum
bond service requirement on the outstanding debt and any new proposed debt as of the date of
such certificate or opinion.
H) Rate Covenant: The Borrower shall to the extent permitted by law, establish, fix and maintain
such rates and collect such fees, rates or other charges for the services and facilities of the
System, and revise the same from time to time, whenever necessary, as will always provide Net
Revenues in each Fiscal Year equal to 110% of the debt service requirement on Bonds and
Loans for such fiscal year, plus (a) 100% of the required deposits into any Reserve Accounts
together with any Reserve Account Credit Facility Costs payable in such fiscal year, and (b) the
Renewal and Replacement Fund in such fiscal year.
C -4
EXHIBIT D
FORM OF ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT, dated _ 2013, by and between the
CITY OF OCOEE, FLORIDA (the "Issuer "), and U.S. Bank National Association, a national
banking association organized under the laws of the United States of America, as Escrow Agent,
and its successors and assigns (the "Escrow Agent ");
WITNESSETH:
WHEREAS, the Issuer has previously authorized and issued its Water and Sewer
System Refunding and Improvement Revenue Bonds, Series 2003 (the "Refunded Bonds "),
which will be refunded in their entirety from a portion of the proceeds of the Note (as
hereinafter defined), as to which the Total Debt Service for the Refunded Bonds (as hereinafter
defined) is set forth on Schedule A; and
WHEREAS, the Issuer has determined to provide for payment of the Total Debt Service
for the Refunded Bonds by depositing with the Escrow Agent an amount which is at least equal
to such Total Debt Service for the Refunded Bonds; and
WHEREAS, in order to obtain the funds needed for such purpose and for other
purposes, the Issuer has authorized and is, concurrently with the delivery of this Agreement,
issuing its Water and Sewer System Refunding Revenue Note, Series 2013; and
WHEREAS, the execution of this Escrow Deposit Agreement and full performance of the
provisions hereof shall defease and discharge the Issuer's obligations relating to the Refunded
Bonds;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Issuer and the Escrow Agent agree as follows:
SECTION 1. Definitions As used herein, the following terms mean:
(a) "Agreement" means this Escrow Deposit Agreement.
(b) "Escrow Account" means the account hereby created and entitled Escrow
Account established and held by the Escrow Agent pursuant to this Agreement in which cash
and investments will be held for payment of the principal, interest, and redemption premium, if
any, on the Refunded Bonds as they become due and payable.
(c) "Escrow Agent" means U.S. Bank National Association, having its designated
corporate trust office in Orlando, Florida, and its successors and assigns.
D -I
(d) "Issuer" means the City of Ocoee, Florida, and its successors and assigns.
(e) "Note" means the $_ City of Ocoee, Florida Water and Sewer System
Refunding
ding Reveue Note, Series 2013, issued under the Resolution.
(f) "Refunded Bonds" means all of the Issuer's outstanding_ Water and Sewer
System Refunding and Improvement Revenue Bonds, Series 2003.
(g) "Resolution" means Resolution No. 93 -02, adopted by the City Commission of
the Issuer on February 2, 1993, as amended and supplemented from time to time, and as
particularly supplemented by a resolution adopted by the City Commission of the Issuer on
October 15, 2013 relating to the issuance of the Note.
(h) "Total Debt Service for the Refunded Bonds" means, as of any date, the sum of
the principal of, redemption premium, if any, and interest remaining unpaid with respect to the
Refunded Bonds in accordance with Schedule A attached hereto.
SECTION 2. Dep of Funds The Issuer hereby deposits $ with the Escrow
Agent for deposit into the Escrow Account, in immediately available funds, which funds the
Escrow Agent acknowledges receipt of, to be field in irrevocable escrow by the Escrow Agent
separate and apart from other funds of the Escrow Agent and applied solely as provided in this
Agreement. $ of such funds are being derived from proceeds of the Note and
$ of such funds are being derived from other legally available funds of the Issuer.
The Issuer represents that $_ which is deposited as cash in the Escrow Account (i) is
at least equal to the Total Debt Service for the Refunded Bonds as of the date of such deposit,
and (ii) is sufficient to pay principal, interest and redemption premium, if any, on the Refunded
Bonds as they become due and payable in accordance. with Schedule A attached hereto.
SECTION 3. Use_and Irivestmeri of Funds The Escrow Agent acknowledges receipt of
the sum described in Section 2 and agrees:
(a) to hold the funds pursuant to this Agreement in irrevocable escrow during the
term of this Agreement for the sole benefit of the holders of the Refunded Bonds;
(b) to hold such funds uninvested which are derived from the proceeds of the Note
and other legally available funds of the Issuer;
SECTION 4. Pavrn of Nate an Expenses
(a) Refunded Bon ds. On , 2013 in the amounts set forth on Schedule A,
the Escrow Agent shall transfer to U.S. Bank National Association, Orlando, Florida, as the
Payuzg Agent for the Refunded Bonds (the "Paying Agent "), in immediately available funds
D -2
solely from amounts available in the Escrow Account, a sum sufficient to pay Total Debt Service
for the Refunded Bonds coming due on such date, as shown on Schedule A hereto.
(b) E The Issuer shall pay the fees and expenses of the Escrow Agent as set
forth on Schedule B attached hereto.
(c) Surplus. After making the payments from the Escrow Account described in
Subsections 4(a) and (b) above, the Escrow Agent shall retain in the Escrow Account any
remaining cash in the Escrow Account in excess of the Total Debt Service for the Refunded
Bonds until the termination of this Agreement pursuant to the terms of Section 13 hereof, and
shall then pay any remaining funds to the Issuer.
(d) P riority of P ayments. The holders of the Refunded Bonds shall have an express
first priority security interest in the funds in the Escrow Account until such funds are used and
applied as provided in this Agreement.
SECTION 5. Reinvestment The Escrow Agent shall have no power or duty to invest
any funds held under this Agreement or to sell, transfer or otherwise dispose of or make
substitutions of the cash,
SECTION 6. Redemption o Acceleration o f M The Issuer will not accelerate the
maturity of, or exercise any option to redeem before maturity, any Refunded Bonds, except as
set forth on Schedule A attached hereto.
SECTION 7. Indem nitv. To the extent permitted by law and without waiving sovereign
immunity, the Issuer hereby assumes liability for, and hereby agrees to indemnify, protect, save
and keep harmless, the Escrow Agent and its respective successors, assigns, agents and
servants, from and against arty and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs, expenses and disbursements (including reasonable legal fees and
disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or
asserted against at any time, the Escrow Agent (whether or not also indemnified against the
same by the Issuer or any other person under any other agreement or instrument) and in any
way relating to or arising out of the execution and delivery of this Agreement and performance
by the Escrow Agent of its duties hereunder, including without limitation, the establishment of
the Escrow Account established hereunder, the acceptance of the funds and securities deposited
therein, and any payment, transfer or other application of funds or securities by the Escrow
Agent in accordance with the provisions of this Agreement; provided, however, that the Issuer
shall not be required to indemnify the Escrow Agent against its own negligence or willful
misconduct. In no event shall the Issuer be liable to any person by reason of the transactions
contemplated hereby other than to the Escrow Agent as set forth in this Section. The
indemnities contained in this Section shall survive the termination of this Agreement. The
Escrow Agent shall not be liable for any deficiencies in the amounts necessary to pay the Total
Debt Service for the Refunded Bonds.
D -3
SECTION 8. R Agent The Escrow Agent and its respective
successors, assigns, agents and servants shall not be held to any personal liability whatsoever,
in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement,
the establishment of the Escrow Account, the acceptance of the funds deposited therein, or for
any payment, transfer or other application of moneys or securities by the Escrow Agent in
accordance with the provisions of this Agreement or by reason of any non - negligent or non -
willful act, omission or error of the Escrow Agent made in good faith in the conduct of its
duties. The Escrow Agent shall, however, be responsible for its negligent or willful failure to
comply with its duties required hereunder, and its negligent or willful acts, omissions or errors
hereunder. The duties and obligations of the Escrow Agent shall be determined by the express
provisions of this Agreement, and no implied duties or obligations shall be read into this
Agreement against the Escrow Agent. The Escrow Agent may consult with counsel, who may
or may not be counsel to the Issuer, at the Issuer's expense, and in reliance upon the opinion of
such counsel, shall have full and complete authorization and protection in respect of any action
taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow
Agent shall deem it necessary or desirable that a matter be proved or established prior to
taking, suffering or omitting any action under this Agreement, such matter may be deemed to
be conclusively established by a certificate signed by an authorized officer of the Issuer.
`The Escrow Agent shall be protected in acting upon any notice, request, consent,
certificate, letter or other paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons.
SECTION 9. Resignation of_ Escrow = gen t. The Escrow Agent may resign and thereby
become discharged from the duties and obligations hereby created, by notice in writing given to
the Issuer, any rating agency then providing a rating on either the Refunded Bonds or the Note,
and the Paying Agent for the Refunded Bonds not less than sixty (60) days before such
resignation shall take effect. Such resignation shall not take effect until the appointment of a
new Escrow Agent hereunder.
SECTION 10. Removal of Escr Agent
(a) The Escrow Agent may be removed at any time by an instrument or concurrent
instruments in writing, executed by the holders of not less than fifty -one percentum (51 %) in
aggregate principat amount of the Refunded Bonds then outstanding, such instruments to be
filed with the Issuer, and notice in writing given by such holders to the original purchaser or
purchasers of the Note and published by the Issuer once in a newspaper of general circulation
in the territorial limits of the Issuer, and in a daily newspaper or financial journal of general
circulation in the City of New York, New York, not less than sixty (60) days before such removal
is to take effect as stated in said instrurent or instruments. A photographic copy of any
instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the
Issuer to the Escrow Agent.
D -4
(b) The Escrow Agent may also be removed at any time for any breach of trust or for
acting or proceeding in violation of, or for failing to act or proceed in accordance with, any
provisions of this Agreement with respect to the duties and obligations of the Escrow Agent by
any court of competent jurisdiction upon the application of the Issuer or the holders of not less
than five percentum (5°%) in aggregate principal amount of the Note then outstanding, or the
holders of not less than five percentum (5 %) in aggregate principal amount of the Refunded
Bonds then outstanding.
(c) The Escrow Agent may not be removed until a successor Escrow Agent has been
appointed in the manner set forth Herein.
SECTION 11. Successor Escrowy Agent.
(a) If, at any time hereafter, the Escrow Agent shall resign, be removed, be dissolved
or otherwise become incapable of acting, or shall be taken over by any governmental official,
agency, department or board, the position of Escrow Agent shall thereupon become vacant. If
the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any
other reason, the Issuer shall immediately appoint an Escrow Agent to fill such vacancy and,
upon such appointment, all assets held hereunder shall be transferred to such successor. The
Issuer shall either (i) publish notice of any such appointment made by it once in each week for
four (4) successive weeks in a newspaper of general circulation published in the territorial limits
of the Issuer and in a daily newspaper or financial journal of general circulation in the City of
New York, New York, or (ii) mail a notice of any such appointment made by it to the holders of
the Refunded Bonds within thirty (30) days after such appointment.
(b) At any time within one year after such vacancy shall have occurred, the holders
of a majority in principal amount of the Note then outstanding or a majority in principal
amount of the Refunded Bonds then outstanding, by an instrument or concurrent instruments
in writing, executed by either group of such bondholders and filed with the governing body of
the Issuer, may appoint a successor Escrow Agent, which shall supersede any Escrow Agent
theretofore appointed by the Issuer. Photographic copies of each such instrument shall be
delivered promptly by the Issuer, to the predecessor Escrow Agent and to the Escrow Agent so
appointed by the Bondholders. In the case of conflicting appointments made by the
Bondholders under this paragraph, the first effective appointment made during the one year
period shall govern.
(c) If no appointment of a successor Escrow Agent shall be made pursuant to the
foregoing provisions of this Section, the holder of any Refunded Bonds then outstanding, or any
retiring Escrow Agent, may apply to any court of competent jurisdiction to appoint a successor
Escrow Agent. Such court may thereupon, after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Escrow Agent.
D -5
(d) Any corporation or association into which the Escrow Agent may be converted
or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate
trust business and assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or transfer to which
it is a party, ipso facto, shall be and become successor Escrow Agent hereunder and vested with
all the trust, powers, discretions, immunities, priviteges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further act, deed or
conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding,
provided such successor shall have reported total capital and surplus in excess of $15,000,000,
provided that such successor Escrow Agent assumes in writing all the trust, duties and
responsibilities of the Escrow Agent hereunder.
SECTION 12. rayin ent_to_Escrow Agent Ilse Escrow Agent hereby acknowledges that
it has agreed to accept compensation under the Agreement pursuant to the terms of Schedule B
attached hereto for services to be performed by the Escrow Agent pursuant to this Agreement,
plus out -of- pocket expenses to be reimbursed at cost from legally available funds of the Issuer.
The Escrow Agent shall not be compensated from amounts on deposit in the Escrow Account,
and the Escrow Agent shall have no lien or claim against funds in the Escrow Account for
payment of obligations due it under this Section.
SECTION 13, Term. This Agreement shall commence upon its execution and delivery
and shall terminate when the Refunded Bonds have been paid and discharged in accordance
with the proceedings authorizing the Refunded Bonds, except as provided in Section 7.
SECTION 14. Severabili. If any one or more of the covenants or agreements provided
in this Agreement on the part of the Issuer or the Escrow Agent to be performed should be
determined by a court of competent jurisdiction to be contrary to law, notice of such event shall
be sent to the municipal bond insurer(s) for the Refunded Bonds, if any, as well as Moody's
Investors Service, Inc., Fitch, Inc. and Standard & Poor's Ratings Services (but only to the extent
such agencies have a rating outstanding on any of the Refunded Bonds), and while such
covenant or agreements herein contained shall be null and void, they shall in no way affect the
validity of the remaining provisions of this Agreement.
SEC`1'ION 15. Amendments to this Agr eement . This Agreement is made for the benefit
of the Issuer and the holders from time to time of the Refunded Bonds and the Note and it shall
not be repealed, revoked, altered or amended in whole or in part without the written consent of
all Holders of Refunded Bonds, the Escrow Agent and the Issuer; provided, however, that the
Issuer and the Escrow Agent may, without the consent of, or notice to, such holders, enter into
such agreements supplemental to this Agreement as shall not adversely affect the rights of such
holders and as shall not be inconsistent with the terms and provisions of this Agreement, for
any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
D -6
(b) to grant to, or confer upon, the Escrow Agent, for the benefit of the holders of the
Mote and the Refunded Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and
(c) to subject to this Agreement additional funds, securities or properties.
The Escrow Agent shall, at its option, be entitled to request, at the Issuer's expense, and
rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal
bonds acceptable to the Issuer with respect to compliance with this Section, including the
extent, if any, to which any change, modification, addition or elimination affects the rights of
the holders of the Refunded Bonds or that any instrument executed hereunder complies with
the conditions and provisions of this Section. Prior written notice of such amendments,
together with proposed copies of such amendments, shall be provided to Moody's Investors
Service, Inc., Fitch, Inc., and Standard & Poor's Ratings Services (but only to the extent such
agencies at that time have a rating outstanding on any of the Refunded Bonds).
SECTION 16. Counte rparts. This Agreement may be executed in several counterparts,
all or any of which shall be regarded for all purposes as one original and shall constitute and be
but one and the same instrument:.
SECTION 17, Governing Law, This Agreement shall be governed by and construed
under the laws of the State of Florida.
[Remainder of page intentionally left blank]
D -7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers and their corporate seals to be hereunto affixed and attested as
of the date first above written.
(SEAL)
AT"I FST:
By: - - -- -
Name: Beth Eikenberry
Title: Clerk
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE, APPROVED
AS'I'O FORM AND LEGALITY:
SHUFFIELD, LOWMAN & WILSON, P.A.
By:
Name: Scott Cookson
"I "itle: City Attorney
CITY OF OCOF.E, FLORIDA
By:
Naive:
Title:
S. Scott Vandergrift
Mayor
[Issuer's Signature Page to Escrow Deposit Agreement]
D -8
U.S. BANK NATIONAL ASSOCIATION, as
Escrow Agent
By:
Name:
Title:
[Escrow Agent's Signature Page to Escrow Deposit Agreement]
D -9
SCHEDULE A
TOTAL, DEBT SERVICE
M1tU ri ty Interest
( Octobe r 1 Pritic?al Rate
Period Ending Interest Trine al Redeemed Total
SCI IEDULE B
PAYMENTS'T'O BE MADE TO ESCROW AGENT
One time LIP- front fee of $ at closing.
CLOSING DOCUMENT 10/17/13 COPY
ANY HOLDER, OTHER THAN AN AFFILIATE OF THE OWNER IDENTIFIED BELOW,
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.
DATED DATE: October 17, 2013
MATURITY DATE: October 1, 2033
PRINCIPAL AMOUNT: $12,222,000
INTEREST RATE: 3.93% (subject to adjustment as provided herein)
CITY OF OCOEE, FLORIDA
WATER AND SEWER SYSTEM REFUNDING REVENUE NOTE,
SERIES 2013
The City of Ocoee, Florida (the "City "), 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 STI Institutional & Government, Inc.
or its registered assigns (hereinafter, the "Owner "), the principal amount set forth above,
together with interest on the principal balance outstanding hereunder from time to time at the
Interest Rate per annum set forth above (subject to adjustment as provided herein) based upon
a year of 360 days consisting of twelve 30 -day months.
This Series 2013 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 City and Resolution No.
93 -02, adopted by the City Commission of the City on February 2, 1993 (the "Original
Resolution "), as supplemented from time to time, and as particularly supplemented by
Resolution No. 2013 -015, adopted by the City Commission of the City on October 15, 2013
(herein referred to as the "Supplemental Resolution" and, together with the Original Resolution,
the "Note Resolution "), and is subject to all the terms and conditions of the Note Resolution. All
terms, conditions and provisions of the Note Resolution, including, without limitation,
remedies in the Event of Default, are by this reference thereto incorporated herein as a part of
this Series 2013 Note. Payment of this Series 2013 Note is secured by the Pledged Funds. Terms
used herein in capitalized form and not otherwise defined herein shall have the meanings
ascribed thereto in the Note Resolution.
So long as STI Institutional & Government, Inc. is the Owner of this Series 2013 Note,
principal of and interest on this Series 2013 Note is payable in lawful money of the United States
of America to the Owner via ACH Direct Debit from an account established with SunTrust
Page 1 of 6
COPY
Bank. If STI Institutional & Government, Inc. is not the registered Owner of this Series 2013
Note, principal of and interest on this Series 2013 Note is payable in lawful money of the United
States of America at such place as the Owner.may designate to the City in writing.
The principal of this Series 2013 Note shall be payable in the amounts set forth in
Schedule A attached hereto, due each October 1, with an initial principal payment date of
October 1, 2014. Interest shall be payable semi - annually, with interest payments due each
April 1 and October 1, commencing on April 1, 2014.
In any case where the due date of interest on or principal of this Series 2013 Note is not a
Business Day, then payment of such principal or interest need not be made on such date as to
such payment but may be made on the next succeeding Business Day, with the same force and
effect as if made on the nominal date provided in the Supplemental Resolution, and interest
shall cease to accrue as to such payment on the date on which such payment was due if such
payment is made on the immediately succeeding Business Day.
All payments by the City pursuant to this Series 2013 Note shall apply first to accrued
interest, then to other charges due the Owner, and the balance thereof shall apply to principal.
The Interest Rate on this Series 2013 Note may be adjusted as provided below; provided,
however, the Interest Rate on this Series 2013 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 2013 Note remains outstanding, the Interest Rate on this Series 2013 Note
shall be converted to the Taxable Rate. In addition, upon a Determination of
Taxability, the City shall pay to the Owner (i) an additional amount equal to the
difference between (A) the amount of interest actually paid on this Series 2013
Note during the Taxable Period and (B) the amount of interest that would have
been paid during the Taxable Period had this Series 2013 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) 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 2013
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 (2), then the Owner
shall give notice of such adjustment to the City, providing sufficient evidence
supporting such Adjusted Rate calculation, which statement shall, in the absence
of manifest error, be conclusive and binding on the City. Such notice of the
Adjusted Rate from the Owner to the City shall state the date the Adjusted Rate
Page 2 of 6
COPY
will take effect, which shall be an Interest Payment Date that is at least thirty (30)
days from the date of such notice.
(3) Upon the occurrence of an Event of Default as described in Section 6.01 of the
Original Resolution or Section 4.05 of the Supplemental Resolution, the Interest
Rate shall be adjusted to the Default Rate.
This Series 2013 Note may be prepaid by the City in whole or in part at any time on or
after the date that is two (2) years after the Dated Date indicated on the first page of this Series
2013 Note, without penalty or premium upon two (2) Business Days' prior written notice to the
Owner. Any prepayment in part shall be applied to principal due in the inverse order of
maturity, or applied to principal in such other manner as the Lender and the Issuer may
mutually agree.
THIS SERIES 2013 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 SERIES 2013 NOTE THAT SUCH SERIES 2013 NOTEHOLDER SHALL
NEVER HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF THE AD
VALOREM TAXING POWER OF THE CITY OR TAXATION OF ANY REAL OR PERSONAL
PROPERTY THEREIN FOR THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON
THIS SERIES 2013 NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR
IN THE BOND RESOLUTION.
This Series 2013 Note may be exchanged or transferred by the Owner hereof but only
upon the registration books maintained by the City and in the manner provided in the
Supplemental 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 2013 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 2013 Note is in full
compliance with and does not exceed or violate any constitutional or statutory limitation.
[Remainder of page intentionally left blank]
Page 3 of 6
C®Fy
IN WITNESS WHEREOF, the City of Ocoee, Florida has caused this Series 2013 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 17t" day of October, 2013.
CITY OF OCOEE, FLORIDA
[SEAL]
By:
S. Scott Vandergrift, Mayor
Attest:
1
Beth Eikenberry, City Clerk
Page 4 of 6
C- �1P�
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 Series 2013 Note on
the books kept for registration thereof, with full power of substitution in the premises.
Date:
By: (manual signature)
Title:
Signature Guaranteed by
(member firm of the New York
Stock Exchange or a commercial
bank or a trust company.]
NOTICE: No transfer will be registered and no
new Series 2013 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 Series 2013
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.
Page 5 of 6
SCHEDULE A
(October 1)
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
TOTAL
Principal
$250,000
233,000
244,000
254,000
265,000
275,000
285,000
299,000
308,000
322,000
336,000
345,000
359,000
1,072,000
1,112,000
1,156,000
1,202,000
1,252,000
1,300,000
1,353,000
12 222 000
Page 6 of 6