Addendum_2_Attachment_Kiss_2010C_LA.pdf

LOAN AGREEMENT

between

CITY OF KISSIMMEE, FLORTDA

BRANCH BANKING AND TRUST COMPANY

Dated November 17,2010

Relating to

City of Kissimmee, Florida

$4,000,000

Capital Improvement Revenue Note, Series 2010C and

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No. 2

SECTTON 1. DEFINITTONS

SECTION 2. INTERPRETATION...

SECTTON 3. THE LOAN

SECTION 4. DESCRIPTION OF NOTE

SECTTON 5. EXECUTTON OF NOTE

SECTION 6. REGISTRATTON AND TRANSFER OF NOTE

SECTION 7. NOTE MUTTLATED, DESTROYED, STOLEN OR LOST...

SECTION 8. FORM OF NOTE

SECTION 9. SECURITY; NOTE NOT DEBT OF CITY; DEBT SERVICE FUND AND PROJECT

FUND

SECTION 10. COVENANTS OF THE CITY

SECTION 11. REPRESENTATTONS AND WARRANTIES

SECTION 12. CONDITIONS PRECEDENT

SECTION 13. NOTICES,

SECTION 14. EVENTS OF DEFAULT DEFINED

SECTION 15. REMEDIES

SECTION 16. NO RECOURSE

SECTION 17. PAYI\4ENTS DUE ON SAruRDAYS, SUNDAYS AND HOLIDAYS

SECTION 18. FINAL AGREEMENI AMENDMENTS, CHANGES AND MODIFICATIONS;

ASSIGNMENT

Pase

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SECTION 19.

SECTON 20.

SECTION 21.

SECTION 22.

BTNDING EFFECT DrSCFIARGE

CONSTRUCTTON; SEVERABILITY

EXECUTON IN COUNTERPARTS

APPLICABLE LAW

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This LOAN AGREEMENT is made and entered into as of November 17,2010, by and between the CITY OF KISSIMMEE, FLORIDA (the "City"), und BRANCH BANKING AND

TRUST COMPANY, a North Carolina state banking corporation, with offices in Orlando, Florida

(the "Bank").

WITNESSETH:

\,IFIEREAS, the City has determined that it will be necessary, desirable and in the best interests of the City and its inhabitants that the City undertake the Project hereinafter described and that the Project willserve essential public PurPoses of the City; and

WHEREAS, the City has determined that it will be without adequate currently available funds to pay the Project Costs, and that it will be necessary that funds be made available to the City in order to undertake the Projecf and

\ ¡FIEREAS, the City requested commitments from various lending institutions to provide the City with financing for the Project Costs; and

WHEREAS, pursuant to the Comrnitrnen! a copy of which is attached hereto as Exhibit B, the Bank has agreed to lend the City the aggregate principal amount of $4,000,000 to finance

Project Costs; and

WHEREAS, the City has determined that it is in the best interest of the healtlu safety, and welfare of the City and the inhabitants thereof that the City enter into the Covenant to secure the obligation of the City to repay the principal of and interest on the Note when due and to make the other payments, if any, required thereunder and hereunder; and

WHEREAS, the obligation of the City to repay principal of and interest on the Note and to make the other payments, lf arty, required thereunder and hereunder shall not constitute a general obligation or indebtedness of the City as a "bond" within the meaning of any provision of the

Constitution of the Statg but shall be and is hereby declared to be a speciaf limited obligation of the City, secured solely by the Covenant and the moneys actually budgeted and appropriated pursuant thereto in the manner provided herein; and

WHEREAS, the City is not and cannot be obligated to levy taxes on any property of or in the City to pay the principal of or interest on the Note or to make other payments, if any, provided for therein and hereirU and neither the Note, nor the interest thereon, nor the other payments, if any, required thereunder or hereunder shall be or constitute a lien upon the Project or uPon any other property of or in the City;

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NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Bank do hereby agree as follows:

SECTION 1. DEFINIIONS. The following terms shall have the following meanings herein, unless the text otherwise expressiy requires:

" Act" means Chapter 166, Florida Statutes, as amended, and other applicable provisions of law.

"Authorized hrvestments" means any obligations, deposit certificates, or other evidences of indebtedness legal for investment pursuant to law, to the extent not inconsistent with the terms of the investment policy of the City and applicable law.

"Bar1k" means Branch Banking and Trust Company, a North Carolina state banking corporation, with offices in Orlando, Florida.

"Bond. Counsel" means Bryant Miller Olive P.4., or such other law firm having a nationally-recognized practice in the areas of local, state, and federal law related to the debt obligations of state and local govemments.

"Business Day" means any day of the year other than a day on which the Bank or the City are lawfully closed forbusiness.

"City" means the City of Kissimmeg Florida

"City Manager" means the City Manager of the City oa in the City Manager's absence, any designee duly authorized.to execute documents or take other action, as the case may be, on the

City Manager's behalf.

"Clerk" means the City Clerk for the City or, in the Clerk's absence, any Deputy Clerk duly authorized to execute documents or take other action, as the case may be, on the Clerk's behalf.

"Closing Date" means November 17,201'0.

"Code" means the Intemal Revenue Code of 1986, as amended, and the applicable

Regulations and rulings thereunder.

"Commission" means the City Commission, as the govemìng body of the City'

"Commitrnent" means the Commitment of the Bank, a coPy of which is attached hereto as

Exhibit B.

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"Covenant" means the covenant of the Commission to budget and appropriate moneys needed to pay, when due, the principal of and interest on the Note and to make the other payments, if any, required to be made under the Note or this Agreement'

"Defauft" means an Event of Default as defined and described in Section 14 hereof

"Financial Advisor" means Southeastem Investment Securities, LLC., Winter Park, Florida

"Fiscal Yeat" means the period from each October L to the succeeding September 30.

"Initial Rate" means the interest rate on the Note as of the Closing Date, calculated in accordance with Schedule 1 to Exhibit A hereto.

"Loaí' mealls the loan by the Bank to the City for the puryose of financing Project Costs pursuant to the terms of this Agreement.

"Maturity Date" means the date on which all outstanding principal of the Note is due as shornrn on Exhibit A hereto.

"Non-Ad Valorem Revenues means all revenues received by the City (a) from sources other than the levy of ad valorem taxes upon property, and (b) not restricted by law so as to be unable to be applied to pay the principal of and interest on the Note and to make the other payments, 'tf ^y, required under the Note or under this Agreemenf provided, that the Non-Ad

Valorem Revenues are subject to prior liens upon all or any specific portion thereol whether now existing or hereafter arising.

"Note" means the Capital Improvement Revenue Note, Series 2010C, of the City in substantially the form attached hereto as Exhibit A, with such changes and modifications thereto as may be permitted pursuant to the Resolution" the approval thereof to be presumed by the execution and delivery of the Note by the City to the Bank.

"PayingAgent" means the City Finance Director.

"Payment Date" means the dates on which interest on the Note is payable, as shown on

Exhibit A hereto.

"Person" or words importing persons, me¿u:rs firms, associations, partnerships (including without limitation, general and limited parb:rerships), joint ventures, societies, estates, trusts, corporations, public or goverrunental bodies, other legal entities, and natural Persons.

"Prepayment Date" me¿u:ts any date of prepayment of the principal of the Loan by the City, whether in whole or in part.

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"Principal Amount" means the principal amount of the Loan outstanding at any time, as shown on Schedule 3 to Exhibit A hereto, which shall not at any time exceed Four Million Dollars and No/L00 ($4,000,000).

"Project" means the acquisition and construction of transportation infrastructure improvements within the City and related improvements as described in the proposal, plans and specifications on file or to be on file with the City.

"Project Costs" means all or a portion of the cost of undertaking the Project including, but not limited to: appraisal, engineering, legal, accounting, and fùrancial expenses; expenses for estimates of costs and of revenues; expenses for plans, specifications and surveys; fees of fiscal agents, financial advisors or consultants; administrative expenses relating solely to the Projecf reimbursement to the City for any sums heretofore expended for the foregoing PurPoses (to the extent that such reimbursement is permitted under the Code); payment of interest on the Loan prior to its maturity; and such other costs and expenses as may be necessary or incidental to the financing or refinancing of the Project.

"Register" means the books maintained by the Registrar in which are recorded the names and address of the Registered Owner of the Note.

"Registered Owner" means the person in whose name the ou¡nership of the Note is registered on the books maintained by the Registrar. The Registered Owner shall initially be the

Bank.

"Registrar" means the Person maintaining the Register. The Registrar shall initially be the

City Finance Director; any subsequent Registrar must be approved by the Bank or its authorized transferee.

"Regulations" means the Income Tax Regulations promulgated by the Ilrtemal Revenue

Service under Sections L03 and L4L through 150 of the Code.

"Resolution" means Resolution No. 33-2010, adopted by the Commission, on November 2, 2010, as amended and supplemented from time to time.

"State" means the State of Florida.

SECTION 2. INTERPRETATION. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof (a) have been negotiated in an arms-iength manner between the City and the Bank; (b) have been reviewed by counsel for the City and the Bank; (c) shall not be construed strictly in favor of or l2s 428 I 009 I 00 47 68 47.D OC v 4l against either party hereto; and (d) shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof.

SECTION 3. THE LOAN

A. Loan. The Bank hereby agrees to make and the City hereby accepts the Loan, upon the terms and conditions set forth herein.

B. Disbursement. The Loan shall be disbursed to the City by 2:00 p.m. on the Closing Date in immediately available funds.

SECTION 4. DESCRIPTION OF NOTE. The obligation of the City to repay the Loan shall be evidenced by the Note. The Note shall be dated as of the Closing Date; shall mature as to principal on the dates and in the amounts as set forth in the Note; shall be in registered form; and shall bear interest from its date until payment in full of the principal amount thereol at hrterest

Rate or Rates calculated in the marìner provided in Schedule 1 and 2 to the Note calculated on the basis of a 360-day year consisting of twelve 30-day months. The principal of the Note shall be payable in installments as shown on Attachment A to the Note. The Note may be prepaid in whole on any interest payment date prior to maturity in the manner and subject to the terms and conditions shown on Schedule 1 to the Note.

SECTION 5. EXECUTION OF NOTE. The Note shall be executed in the name of the City by the Mayor or Vice-Mayor and countersigned and attested by the Clerk, and its corporate seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Note may be signed and sealed on behalf of the City by any person who at the actual time of the execution of such Note shall hold the appropriate office in the City, although at the date thereof the person may not have been so authorized. The Note may be executed by the facsimile signatures of the Mayor or Vice- Mayor andlor Clerþ provided that at least one of the foregoing signatures must be a manual signature.

SECTION 6. REGISTRATION AND TRANSFER OF NOTE. The Note shall be and shail have all the qualities and incidents of negotiable instruments under the Uniform Commercial Code-Investment Securities Laws of the State of Florida, and each Registered Onmer, in accepting the Note, shall be conclusively deemed to have agreed that such Note shall be and have all of the qualities and incidents of negotiable instruments thereunder.

There shall be a Registrar who shall be responsible for maintaining the Register. The person in whose name ownership of the Note is shown on the Register shall be deemed the Registered Owner thereof by the City and the Registrar, who may treat the Registered Owner as the absolute owner of the Note for all purposes, whether or not the Note shall be overdue, and any notice to the contrary shall not be binding upon the City or the Registrar.

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Ownership of the Note may be kansferred only upon the Register. Upon surrender to the

Registrar for transfer or exchange of the Note accompanied by an assignment or written authorization for exchange, whichever is applicable, duly executed by the Registered Owner or its attomey duly authorized in writing, the Registrar shall deliver in the name of the Registered

Owner or the transferee or transferees, as the case may be, a new fully registered Note of the same outstanding principal amount, principal amortization schedule, final maturity and interest rate provisions as the Note surrendered.

No kansfer of the Note shall be effective until entered on the registration books maintained by the Registrar and until the transferee (which must be an "accredited investor" within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended) shall have delivered to the Registrar an investment letter in similar form and substance to the investment letter delivered by the Bank upon the original issuance of the Note.

The Note presented for transfer, exchange, redemption or payment (if so required by the

City or the Registrar) shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the City or the

Registrar, duly executed by the Registered Owner or by its duly authorized attorney.

The City and the Registrar may charge the Registered Orrv-ner a sum sufficient to reimburse them for any expenses incurred in making any exchange or transfer after the first such exchange or transfer following the initial delivery of the Note. The Registrar or the City may also require payment from the Registered Owner or its transfetee, as the case may be, of a sum sufficient to cover taxes, fees or other govemmental charges or expenses, if any, that may be imposed in relation thereto. Such charges and expenses shall be paid before a new Note is delivered.

The new Note delivered upon any transfer or exchange shall be a valid obligation of the

City, evidenci:rg the same debt as the Note surrendered, shall be secured under this Agreemenf and shall be entitled to all of the security and benefits hereof to the same extent as the Note surrendered.

Whenever the Note shall be delivered to the Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, the Note shall be cancelled by the Registrar, and, if destroyed, a certificate of destruction evidencing such destruction shall be maintained in the records of the City.

SECTTON 7. NOTE MUTILATED, DESTROYED, STOLEN OR LOST. In case the Note shall be mutilated, or be destroyed, stolen or lost, upon the Registered Owner furnishing the

Registrar satisfactory indemnity and complying with such other reasonable regulations and conditions as the City may prescribe and paying such expenses as the City may incur, the Registrar shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in lieu of or substitution for the Note, rf aury, destroyed, stolen or lost, or in exchange and substitution for such mutilated Note, upon surrender of such mutilated Note, if any, to the l2s 428 | 009 I 00 4768 4 1. D OCv4)

Registrar and the cancellation thereof; provided however, if the Note shall have matured or be about to mafure, instead of issuing a substitute Note, the City may Pay the same, upon being indemnified as aforesaid, and if such Note be lost, stolen or destroyed, without surrender thereof.

Any Note surrendered under the terms of this Section 7 shall be cancelled by the Registrar.

Any such new Note issued pursuant to this section shall constitute an original, additional contractual obligation on the part of the City whether or no! as to the new Note, the lost, stolen or destroyed Note be at any time found by anyone, and the new Note shall be entitled to all the benefits and rights as to security for payment as the Note originally issued hereunder.

SECTION 8. FORM OF NOTE. The Note shall be in substantially the form of Exhibit A hereto, with such variations, omissions and insertions as may be necessary, desirable and authorized or permitted by this Agreement on behalf of the City and approved by the Persons executing the Note, zuch approval to be presumed by their execution thereof.

SECTTON 9. SECURITY; NOTE NOT DEBT OF CITY; DEBT SERVICE FUND AND

PROIECT FUND. There is hereby created a separate special fund to be knovrm as the "Capital

Improvement Revenue Note, Series 2010C, Debt Service Fund" (the "Debt Service Fund"). The obligation of the City to pay the principal of and interest on the Note and to make the other pa¡zments, ú any, required under the Note and this Agreemen! shall be secured forthwith solely by the Covenant and the moneys budgeted and appropriated pursuant thereto and deposited into the Debt Service Fund. The obligation to pay the principal of and interest on the Note and to make the other payments, if *y, required to be made under the Note or this Agreement shall not constitute a general obligation or indebtedness of the City, and the Registered Owner shall never have the right to compel the levy of taxes upon any property of or in the City for the payment of the principal of and interest on the Note and the other amounts, if *y, required to be made under the Note or this Agreement. The obligation to pay the Note and the other payments, tf arry, required to be made under the Note or this Agreement shall neither be secured by, nor constitute a

Iien upon, the Project or upon any other property of or in the City, but shall be secured solely by the Covenant and the moneys budgeted and appropriated pursuant thereto and deposited into the

Debt Service Fund, in the manner provided herein and in the Note.

The proceeds of the Note received by the City shall be deposited with the Bank, in a special fund hereby created, to be known as the "Capital Improvement Revenue Note, Series 2010C, Project Fund" (the "Project Fund"), under the management and control of the City, and used to pay Project Costs. All funds in the Project Fund which in the opinion of the City, are not immediately necessary for expenditure, may be invested in investments authoriz.edby the City, the income from which will be retained in the Project Fund and used to pay Project Costs.

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The money on deposit in the Project Fund shall be withdrawn, used and applied by the

City solely for the payment of Project Costs and purposes incidental thereto. All expenditures or disbursements from the Project Fund shall be made only upon the written approval by the appropriate officer of the City.

The foregoing provisions notwithstanding, the Debt Service Fund and the Project Fund created and established pursuant to this Loan Agreement shall constitute restricted funds for the puïposes provided herein and shall be maintained on the books of the City as separate and distinct from all other funds and accounts of the City, ir-r the manner provided in this Loan Agreement. All moneys in the Debt Service Fund shall be continuously secured in the same m¿ümer as the City deposits are required to be secured by the laws of the State.

SECTION 10. COVENANTS OF THE CITY. Until the principal of and interest on the Note shall have been paid in full. The City covenants with the Registered Owner of the Note as follows:

A. Covenant to Budget and Appropriate. The City covenants to budget and appropriate in each fiscal year such amount of Non-Ad Valorem Revenues sufficient to provide for the timely payment of the principal of and interest on the Note and any other amounts required to be paid under the Loan Agreement. The City will include in its annual budget by amendment if necessary, and as soon as practicable, such amounts of Non-Ad Valorem

Revenues as will be needed to provide for the payment of the principal of and interest on the

Note when due, and to make the other payments, if any, required to be made under the Note or the Loan Agreement. Such covenant and agreement on the part of the City 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 Non-Ad Valorem Revenues shall be in effect until such monies are budgeted and appropriated.

Such covenant to budget and appropriate does not create any lien uPon or pledge of such Non-Ad Valorem Revenues until such Non-Ad Valorem Revenues are actually budgeted and appropriated, nor does it preclude the City from pledging in the future its Non-Ad

Valorem Revenues, so long as the granting of such lien will not have the effect of impairing the obligation of the City under the Loan Agreement and the Note or of making unavailable suflicient amounts of reasonably anticipated Non-Ad Valorem Revenues required to make timely payment of the principal of and interest on the Note and other payments, if any, required to be made under the Note or the Loan Agreement. Such covenant does not require the City to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the

City. 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

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Revenues heretofore or hereafter entered into (including the payrnent of debt service on bonds and other debt instruments).

It is understood and agreed that the obligation of the City hereunder to budget and appropriate Non-Ad Valorem Revenues shall not be deemed to pledge ad valorem tax revenues or to permit or constitute a mortgage or lien upon any assets owned by the City and no holder of the Note nor any other person, may compel the levy of ad valorem taxes on real or personal property within the boundaries of the City or the use of any Proceeds of ad valorem tax revenues for any purpose. The City shall never be obligated to maintain or continue any of the activities of the City, which generate any Non-Ad Valorem Revenues. Except as provided hereafter, the obligations of the City under the Note and the Loan Agreement shall not be construed as a pledge of or a lien on all or any legally available Non-Ad Valorem Revenues of the City, but shall be payable solely as provided herein and in the Loan Agreement and are subject in all respects to the provisions of Section 1,66.241,, Florida Statutes, and are subjecf 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 City.

B. Pa)¡ment. The City will promptly pay the principal of and interest on the Note and the other payments, tf any, required to be made under the Note or this Agreement when due by wire transfer or other medium acceptable to the City and the Bank.

C. Financial Statements. As soon as available, and it a.y event not later than two hundred ten (210) days following the end of each Fiscal Year, the City witl provide the Bank with a copy of the Comprehensive Annual Financial Report of the City.

D. Annual Budget And Other hrformation. The City will prepare its annual budget in accordance with the Act, and will, as soon as the annual budget is available, but in any event not later than November 17 of each Fiscal Year, provide to the Bank a coPy of its final annual budget for such Fiscal Year. The City will also provide to the Bank such other information regarding the

City and its affairs as the Bank may reasonably request, E. Tax Compliance. Neither the City, nor any third party over whom the City has control, will make any use of the proceeds of the Note or of the Project at any time during the term of the Note which would cause the Note (1) to be (a) a "private activity bond" within the meaning of Section 103(bX1) of the Code or (b) an "arbltrage bond" within the meaning of Section 103(b)(2) of the Code or (2) not to be a "qualified tax exempt obligation" within the meaning of Section

265(bX3XB) of the Code. The City covenants throughout the term of the Note to comply with the requirements of the Code and the Regulations, as amended from time to time, and to take all actions necessary to maintain the exclusion from gross income for purposes of the Code of interest on the Note and the status of the Note as a "qualified tax exempt obligation" to the same extent as on the date of issuance of the Note.

SECTION 11. REPRESENTATIONS AND WARRANIES. The City represents and warrants to the Bank that:

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A. Organization. The City is a municipal corporation and a political subdivision, duly organized and existing under the laws of the State of Florida and eligible to issue obligations which qualify under Section 103(a) of the Code.

B. Authorization of Agreement and Note. The City has the power and has taken ali necessary action to authorize the execution and delivery ol and the performance by the City of its obligations under, this Agreement and the Note in accordance with their respective terms. This

Agreement and the Note have been duly executed and delivered by the City.

C. No Conflict; No Litigation. The terms of the Note and of this Agreement do not conflict with or constifute a violation of the terms of any judgmenf decree, indenture, loan agreemen! debt instrumen! or other agreement to which the City is a parÇ or by which the City is bound. There is no litigation pending, or, to the best knowledge of the City, threatened, which seeks to restrain or enjoin the execution and delivery of the Note or this Agreement, the making by the City of the Covenant or the performance by the City of its obligations thereunder, or the collection and application of the Non-Ad Valorem Revenues, D. Non-Ad Valorem Revenues. The City currently receives the Non-Ad Valorem

Revenues and is legatly entitled to covenant to budget and appropriate from such Non-Ad

Valorem Revenues amounts necessary to pay the principal of and interest on the Note and to make the other payments, t|^y, required under the Note and this Agreement when due. The Non-Ad

Valorem Revenues are estimated to be sufficient to pay the principal of and interest on the Note and to make the other payments, if. arry, required under the Note or this Agreement and to make all other payments required to be made from Non-Ad Valorem Revenues as the same becomes due. The City will take all lawful action necessary to enable the City to continue to receive the Non-

Ad Valorem Revenues in at least the amounts necessary to pay principal and interest on the Note and to make the other payments, ú arry, required under the Note or this Agreement to the extent not paid from some other source and to make all other payments required to be made from Non-

Ad Valorem Revenues; provided that the City shall not be required to maintain any specific program or provide any particular services that may be a source of Non-Ad Valorem Revenues.

The City may issue bonds, notes, or other obLigations secured by a lien uPon or pledge of all or any specified source or portion of the Non-Ad Valorem Revenues prior in status to the obligation of the

City to make the payments under the Covenant, provided that the City does not, thereby, impair its ability to pay the principal of and interest on the Note and to make the other payments, lf arry, required under the Note or this Agreement.

E. Financial Statements. The Consolidated Annual Financial Report of the City for the

Fiscal Year ended September 30, 2009, receipt of which is acknowledged by the Bank, was prepared in accordance with generally accepted accounting principles and presents fairly the financial condition of the City as of such date and the results of its operations for the period then ended. Since such date, there has been no material adverse change in the financial condition, 125 428 I 009 I 00 47 68 41.D oC v 4l revenues (including, without limitation, the Non-Ad Valorem Revenues), properties or operations of the City except as disclosed to the Bank in writing at or prior to the date hereof.

F. Compliance With Laws and Regulations. The City is the owner of insurable title to the sites on which the Project is to be located. The City is in substantial compliance with all environmental laws and regulations related to the Project and the Project sites.

SECTION 12. CONDITIONS PRECEDENT. The obligation of the Bank to make the Loan is subject to the satisfaction of each of the following conditions precedent on or before the Closing

Date:

A. Action. The Bank shall have received a copy of the Resolution, certified as complete and correct as of the Closing Date, together with an executed Agreement, the executed Note and the customary closing certificates and opinions in form and substance reasonably satisfactory to the Bank and its counsel.

B, Incumbenc]¡ of Officers. The Bank shall have received an incumbency certificate of the City in respect of each of the officers who is authorized to sign this Agreement the Note, and the related financing documents on behalf of the City'

C. Opinion of Citv Attomey. The Bank shall have received a written opinion of the

City Attomey in form and substance satisfactory to the Bank addressing matters relating to (1) the existence of the City; (2) the due adoption of the Resolution; (3) the due authorization and execution and enforceabiiity of this Agreement and the Note and the related financing documents;

and (a) the absence of litigation against the City relating to its existence or Powers, the proceedings for the authorization and issuance of the Note, the agreeing to, and the performance of its obligations under, the Covenant, and the collection of the Non-Ad Valorem Revenues.

D. Opinion of Bond Counsel. The Bank shall have received an approving opinion of

Bond Counsel or, altematively, a letter from Bond Counsel authorizing the Bank to rely on the approving opinion of Bond Counsel delivered to the City in respect to the Note to the same extent as if such opinion were addressed to the Bank. The opinion, in form and substance satisfactory to the Bank, shal| at a minimum, address the status of interest on the Note under the provisions of

Section L03 of the Code and the status of the Note under Section 265(bX3XB) of the Code.

E. Representations and Warranties: No Default. The representations and warranties made by the City herein shall be true and correct in all material respects on and as of the Closing

Date, as if made on and as of such date; no Default shall have occurred and be continuing as of the

Closing Date or will result from the consummation of the Loan; and the Bank shall have received a certificate from the City to the foregoing effect.

F. Other Documents. The Bank shall have received such other documents, certificates and opinions as the Bank or its counsel shall have reasonably requested.

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SECTION 13. NOTICES. All notices, certificates or other corrìrmrnications hereunder shall be sufficiently given and shall be deemed given when hand delivered delivered by telecopier, mailed by registered or certified mail, postage prepaid, or delivered by courier service to the parties at the following addresses:

City: City of Kissimmee, Florida 101 North Church Street

Kissimmee, Florida 327 42-1,608

Attention: Mike Steigerwald, City Manager

Bank: Branch Banking and Trust Company

51.30 Parkway Plaza Blvd.

Building 9 Charlotte, North Carolina 28217

Attention : Account Administrationfl\4unicip al

Any of the above parties may,by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications sha-Il be sent.

Communication via telecopier shall be confirmed by delivery by hand, mail, or courier, of an original promptly after such communication by telecopier.

SECTION 14. EVENTS OF DEFAULT DEFINED. The following shall be "Events of Default" under this Agreement, and the terms "Default" and "Events of Defaulf' shall mean (except where the context clearly indicates otherwise) any one or more of the following events:

A. failure by the City to make any payment of principal of or interest on the Note within three (3) days of the applicable Payment Date or the Maturity Date;

B. failure by the City to abide by the terms of the Covenant by failing to include in its annual budget and to appropriate at the times necessary the amounts required to pay the principal of and interest on the Note when due;

C. failure by the City to observe and perform any other covenant, condition or agreement on its part to be observed or performed under this Agreement for a period of thirty (30) days after written notice of such failure shall have been delivered to the City by the Bank, unless the Bank shall agree in writing to an extension of such time;

D. the making of any warranty, representation or other statement by the City or by * officer or agent of the City in this Agreement or in any instrument fumished in compliance with or in reference to this Agreement which is false or misleading in any material adverse respect; .

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1.2

E. the filing of a petition against the City under any bankruptcy, reorganization, aïrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, if an order for relief is entered under such petition or such petition is not dismissed within sixty (60) days of such filing;

F. the fiting by the City of a voluntary petition in bankruptcy or seeking relief under any provision of any bankruptry, reorganizatron, arrangemen! insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effecf or the consent by the City to the filing of any petition against it under such iaw;

G. the admission by the City of its insolvency or bankruptcy or its inability to pay its debts as they become due or that it is generally not paying its debts as such debts become due, ot the City's becoming insolvent or bankrupt or making an assignment for the benefit of creditors, or the appointment by court order of a custodian (including without limitation a receiver, liquidator or trustee) of the City or any of its property taking possession thereof and such order remaining in effect or such possession continuing for more than sixty (60) days;

H. payment default by the City with respect to any obligations secured by all or any portion of the Non-Ad Valorem Revenues or a Determination of Taxability, as defined in the Note.

SECTION 15. REMEDIES. If an Event of Default has occurred and is continuing hereunder or under the Note, the Bank may sue to protect and enforce any and all rights, including the right to specific performance, existing under the laws of the State of Florida, of the United

States of America, or granted and contained in the Note or in this Agreement and to enforce and compel the performance of all duties required by the Note and this Agreement or by *y appticable laws to be performed by the City, the Commission or by ^y officer thereol and may take all steps to enforce the Note and this Agreement to the full extent permitted or authorized by the laws of the State of Florida or the United States of America. The City and the Bank waive the right to a trial by j*y of any and all claims made between them related to and arising out of this

Agreement, the Commitrnent, the Resolution and the Note, whether now existing or arising in the future, including, without lirnitation, any and all claims, and intervener's claims, whether arising from or related to the negotiation, execution and performance of the tansactions to which the

Commitment relates.

SECION 16. NO RECOURSE. No recourse shall be had for the payment of the principal of and interest on the Note or for any claim based on the Note or on this Agreement against any present or former member of the Commissiory any officer or official of the City, or any Person executing the Note.

SECTTON 17. PAYMENTS DUE ON SAruRDAYS, SUNDAYS AND HOLIDAYS. ITT ANY case where the date for making any payment, or the last date for performance of any act or the exercise of any righ¡ as provided in this Agreemenf shall be other than a Business Day, then such payment or performance shall be made on the succeeding Business Day with the same force and

125 428 I 009 I 00 47 6 84 1. DOC v4 ) effect as if done on the nominal date provided in this Agreemenf provided that interest on any monetary obligation hereunder shall accrue at the applicable rate to and including the date of such payment.

SECTION 18. FINAL AGREEMENT; AMENDMENTS, CHANGES AND

MODIFICATIONS; ASSIGNMENT. Each party hereto represents and agrees that (A) this agreement represents the final agreement between the parties with respect to the Loan, (B) there are no unwritten oral agreements between the parties with respect to the Loan, and (C) the terms of this agreement may not be contradicted by evidence of any prior, contempor¿Ìneous, or subsequent oral agreements or understandings of the parties. This Agreement may be amended orrly in writing signed by both parties hereto. This Agreement may notbe assigned by either Parry hereto without the written consent of the other party.

SECTION 19. BINDING EFFECT; DISCHARGE. To the extent provided herein, this

Agreement shall be binding upon the City and the Bank and shall inure to the benefit of the City and the Bank and their respective successors and assigns. This Agreement shall be discharged and neither the City nor the Bank shall have any further obligations hereunder under the Note when the City shall have paid the principal of and interest on the Note in full and shall have paid in full all other amounts, if any, due under the Note or this Agreement.

SECTION 20. CONSTRUCTION; SEVERABILITY. The provisions of this Agreement shall be construed so as to give effect to the intent of the parties heretg as expressed in the preambles, and to all of the provisions of this Agreement and of the Note. In the event any provision of this

Agreement or the Note shall be held invalid or unenforceable by *y court of competent jurisdictiorç such holding shall not invalidate or render ineffective or unenforceable any other provision hereof or thereof.

SECTION 21. EXECUION IN COUNTERPARTS. This Agreement may be simultaneously executed in counterparts, each of which shall be an original and both of which shall constitute but one and the same instrument.

SECTION 22. APPLICABLE LAW. This Agreement shall be govemed by and construed in accordance with the laws of the State.

125 428 I 009 I 0047684 1 . DOCv4) '1.4

IN MTNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

(sEAr.) CITY OF KISSIMMEE, FLORIDA

ATTEST:

City Clerk

APPROVED AS TO FORM AND

City

BRANCH BANKING AND TRUST

COMPANY

Mayor

Assistant Vice President

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125 428 I 009 I 00 47 68 4t,D OCv 4l

1.5

EXHIBIT A

FORM OF NOTE

No. R-1 $4,000,000

CITY OF KISSIMMEE, FLORTDA

CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2O1OC

RATE OF INTEREST MATURITY DATES

October f. in the Years Shown on Attachment A Hereto

DATE OF ISSUE

See Schedule 1 November 17,2010

REGISTERED OWNER: Branch Banking and Trust Company

PRINCIPAL AMORIZATION: As shown on Attachment A to Schedule L hereto

PRINCIPAL AMOUNT: Four Million Dollars ($4,000,000)

KNOW ALL MEN BY THESE PRESENTS, that the City of Kissimmee, Florida (the "City"), for value received, hereby promises to pay to the Registered Oi¡mer designated above, or registered assigns, solely from the special funds hereinafter mentioned, on the Maturity Dates specified above, a portion of the principal balance outstanding on the most recent date, as shown on Schedule 1- hereto, in the amounts shown on Attachment A to Schedule L hereto, with the final installment of principal and interest being payable, upon presentation and surrender hereof at the office of the City Finance Director, as Registrar and Paying Agent on October 1.,2030, and to pay solely from such funds interest on the Principal Amount outstanding from time to time from the date of this Note or from the most recent date to which interest has been paid, whidrever is applicable, until payment of such Principal Amount, at the Rate of Írterest calculated in the manner set forth on Sdredule 1 attached hereto, subject to adjustment as set forth on Schedule 2 hereto, such interest being payable semi-arurually on April 1, 2011 and on each October 1 and April 1 thereafter (an "ftrterest Payment Date") until maturi$,by check or draft mailed on or before the

Interest Payment Date to the Registered Owner at such Ownels address as it appears on the registration books of the City kept by the Registrar; provided, that such payment may at the written request and expens e, if any, of such Registered Owner be by wire hansfer or other medium acceptable to the City and to such Registered Owner. The principal of and interest on this Note are payable in lawful money of the United States of America.

This Note is issued to finance the costs of the acquisition and construction of transportation infrastructure improvements within the City and related improvements (the

"Project"), under the authority of and in fuIl compliance with the Constitution and Statutes of the

State of Florida, including particularly Chapter 166, Florida Statutes, and other applicable

|]54281 009 / 0047684 L DOCv4 ) provisions of law, and Resolution No. 33-2010, duly adopted by the City Commission on

November 2, 2O7O (the "Resolution"), and a Loan Agreement between the City and Branch

Banking and Trust Company, Charlotte, North Carolina, Florida, dated November 17,2010 (the

"Agreement"), to which reference should be made to ascertain those terms and conditions.

This Note is payable from and secured solely by the covenant of the City (the "Covenant), contained in Section 104 of the Agreemen! to annually budget and appropriate and pay to the

Registered Owner hereof the portion of the Principal Amount maturing on each Maturity Date and the interest payable on this Note on each Lrterest Payment Date, all in the manner provided irU and subject to the terms and conditions ol the Resolution and the Agreement.

The principal of and interest on this Note shall not constitute a general obligation or indebtedness of the City, and the Registered Owner shall never have the right to require or compel the levy of taxes on any property of or in the City for the payment of the principal of and interest on this Note. The principal of and interest on this Note shall not be secured by a lien upon the

Project, or upon any other property of or in the City, but shall be secured solely by the Covenant and the moneys budgeted and appropriated pursuant thereto, in the manner provided herein and in the Agreement. Reference is made to the Agreement for the provisions relating to the security for payment of this Note and the duties and obligations of the City hereunder.

This Note may be transferred or assigned by the Registered Owner to any financial institution or other accredited investor as defined in, in the manner provided in, and subject to the limitations contained in the Agreement. Otherwise, this Note may not be t¡ansferred or assigned by the Registered Or,r'ner without the prior written consent of the City.

It is hereby certified and recited that all acts, conditions and things required by the

Constitution and laws of the State of Florida to be performed, to exist and to happen precedent to and in connection with the issuance of this Note, have been performed, exist and have happened in regular and due form and time as so required.

125 428 I 009 I 00 47 6847.DOCv 4l

By:

IN WITNESS WHEREOF, the City of Kissimmee, Florida, has caused this Note to be executed by its Mayor or Vice-Mayor, and countersigned and attested by the City Clerþ either manually or with their facsimile signatures, and its seal or a facsimile thereof to be afhxed, impressed, imprinted lithographed or reproduced hereon, all as of the Date of Issue.

(sEAL) CITY OF KISSIMMEE, FLORIDA

Mayor

COUNTERSIGNED AND ATTESTED:

City C1erk

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-J õJ l2s 428 | 009 I 00 47 68 47.D OCv 4l

SCHEDULES TO

CITY OF KISSIMMEE, FLORIDA

CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2O1OC

Schedule L

Schedule 2

Terms of Note, Principal Amortization Schedule, Prepayment Provisions

Adjustment to Interest Rate l2s 428 I 009 I 00 47 68 47.D O Cv 4)

SCHEDULE 1

TERMS OF NOTE

DEFINITIONS: For purposes of this Schedule 1 and the Note, the following definitions shall apply. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Loan Agreement.

" Amortization Schedule" means the schedule showing the amount of principal of and interest on this Note coming due on each Maturity Date and Interest Payment Date, as shown in this Schedule 1".

"Bank-Qualified" means the Note has been designated by the City pursuant to, and is a

"qualified tax exempt obligation" undeï the provisions ol Section 265(bX3XB) of the Internal

Revenue Code of 1986, as amended, "Closing Date" means November 17,2010

"Fixed Rate" means an Interest Rate that does not flucfuate over time and is subject to adjustment in the manner set forth in Schedule 2 hereto'

"Non-Bank Qualified" me¿ms the Note has not been designated by the City pursuant to or is not a "qualified tax exempt obligation" under, the provisions ol Section 265(bX3XB) of the

Code.

"Non-Bank Qualified Rate" means the applicable rate negotiated between the Registered

Owner and the City upon the determination that the Note is Non-Bank Qualified.

"Prepayment Date" means the date of prepayment by the City of all or any portion of the principal balance of the Note.

"Rate of Interest" means the annual interest rate, calculated on the basis of a 301360 ð'ay basis, of 2.69% for a period up to but not including October 1., 2022, at which time the Bank will have the ability to reset the interest rate based on current market conditions at the time of the reset for the balance of the term of the Note, being the years October 1,2022 through October L, 2030.

INTEREST PAYMENT DATES: April L and October L, commencing April 'l',201.L

PRINCIPAL PAYMENT DATES: October L, in the years 2013 through 2030, inclusive.

AMORTIZATION SCHEDULE. SCC ATTACHMENT A HERETO

PREPAYMENT PROVISIONS: The Note may be prepaid in whole but not in part on any

Interest Payment Date prior to October '1., 2022, at the price of the principal amount prepaid, plus accrued interest to the date of prepayment, together with a PrePayment premium of.1% of

SCHEDULE 1-1

the principal amount thereol and on October '1,2022, and thereafter at the price of the principal amount prepaid, plus accrued interest to the date of prepayment.

SCHEDULEI-2

ATTACHMENT A

PRINCIPAL AMORTIZATION SCHEDULE

CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2O1OC

MAruRITY DATE (ocToBER 1)

MAruRITY

AMOUNT ($)

201.4

201.5

20L6

201.8

2021.

Total

$ 160,000

165,000

170,000

L75,000

L85,000

190,000

200,000

205,000

2L0,000

220,000

230,000

240,000

250,000

260,000

270,000

280,000

290,000

300,000

$4,000,000 l2s 428 I 009 I o0 47 68 41.Do Cv 4)

ATTACHMENT A TO SCHEDULE 1

SCHEDULE 2

ADIUSTMENTS TO INTEREST RATE IN CERTAIN EVENTS

If (i) the interest on this Note becomes includable in the gross income of the Registered Owner for Federal income tax purposes (an "Event of Taxability") because of any amendments to existing law which would adversely affect the Owner's after-tax yield, or (ii) this Note shall not be "a quaiified tax exempt obligation" as defined in Section 265(bX3) of the I¡rtemal Revenue Code of 1986, as amended

(the "Code"), then the Owner shall have the right to adjust the interest rate in order to maintain the same after-tax yield as if the events in (i) or (ii) had not occurred. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired.

For so long as this Note is owned by the initial Registered Owner, the interest rate set forth above assumes a maximum corporate tax rate of 35%. In the event of a change in the maximum corporate tax rate, so long as this Note is owned by the Registered Owner, or its successors and assigns, the Registered Owner shall have the right to adjust such interest rate in order to maintain the same after-tax yield.

For so long as this Note is owned by the initial Registered Ownet, the Registered Owner shall have the right to adjust the tax-exempt interest rate in order to maintain the same after tax yield if any amend.ments to existing law are enacted which would adversely affect the…