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HomeMy WebLinkAboutR-10-03RESOLUTION NO. R -10 -03 A RESOLUTION OF THE CITY OF SEBASTIAN, FLORIDA ACCEPTING A PROPOSAL OF SUNTRUST BANK AND APPROVING THE FORM OF A LOAN AGREEMENT WITH SUNTRUST BANK; AUTHORIZING THE ISSUANCE OF A PROMISSORY NOTE PURSUANT TO SUCH LOAN AGREEMENT IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $2,500,000 TO REFINANCE PRIOR INDEBTEDNESS OF THE CITY AND TO FINANCE COSTS OF THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF CERTAIN TRANSPORTATION RELATED IMPROVEMENTS WITHIN THE CITY; AUTHORIZING THE REPAYMENT OF SUCH NOTE FROM CERTAIN GAS TAX REVENUES; DELEGATING CERTAIN AUTHORITY TO THE CITY MANAGER AND THE CITY CLERK; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE FOR THIS RESOLUTION. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SEBASTIAN, AS FOLLOWS: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Florida Constitution, Chapter 166, Florida Statutes, the Charter of the City of Sebastian, Florida and other applicable provisions of law. Section 2. Definitions. When used in this Resolution, terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement (as defined herein), unless the context clearly indicates a different meaning. "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, Section 336.025, Florida Statutes, as amended, the Charter of the City, the Interlocal Agreement and other applicable provisions of law. "Bank" shall mean SunTrust Bank of Florida, and its successors and assigns. "Bond Counsel" shall mean Nabors, Giblin Nickerson, P.A., Tampa, Florida. "City" shall mean the City of Sebastian, Florida, a municipal corporation duly organized and validly existing under the laws of the State of Florida. "City Manager" shall mean the City Manager of the City or, in his absence or unavailability, his duly authorized designee. "Clerk" shall mean the City Clerk of the City, or her or his duly authorized designee. "Council" shall mean the City Council of the City of Sebastian, Florida. "County" shall mean Indian River County, Florida. "Director of Finance" shall mean the Director of Finance of the City and, in his absence or unavailability, his duly authorized designee. "Financial Advisor" shall mean FirstSouthwest, Orlando, Florida. "Gas Tax Revenues" shall mean the moneys received by the City from the Six Cents Local Option Gas Tax pursuant to the Act. "Interlocal Agreement" shall mean the Interlocal Agreement, dated June 25, 1996, between the City and the County, relating to the Gas Tax Revenues, as amended or supplemented from time to time. "Loan" shall mean the Loan from the Bank to the City in aggregate principal amount of not to exceed $2,500,000 made in accordance with the provisions of the Loan Agreement. "Loan Agreement" shall mean the Loan Agreement to be executed between the Bank and the City, which shall be substantially in the form attached hereto as Exhibit C. "Mayor" shall mean the Mayor of the City and, in his absence or unavailability, the Vice Mayor of the City or any other member of the Council who is qualified to act on his behalf. "Pledged Funds" shall mean the Gas Tax Revenues and, until expended, proceeds of the Loan. "Prior Indebtedness" shall mean the City's Promissory Note dated as of August 27, 1998 issued to the Bank in the original principal amount of $3,268,890.00 2 "Project" shall mean the acquisition, construction and equipping of certain transportation related improvements within the City, as generally described in Exhibit A hereto and as more particularly described in the plans and specifications on file with the City, as the same may be amended or supplemented from time to time. "Series 2010 Note" shall mean the City of Sebastian, Florida Gas Tax Revenue Note (SunTrust Bank), Series 2010, as such Series 2010 Note is more particularly described in the Loan Agreement. "Six Cents Local Option Gas Tax" shall mean the first 6 cents of the local option fuel tax levied by the County and received by the City pursuant to Section 336.025(1)(a), Florida Statutes, as amended and the Interlocal Agreement. The words "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms shall refer to this Resolution. versa. Words importing the singular number include the plural number, and vice Section 3. Resolution to Constitute Contract. In consideration of the purchase and acceptance of the Series 2010 Note by the Bank, the provisions of this Resolution shall be a part of the contract of the City with the Bank, and shall be deemed to be and shall constitute a contract between the City and the Bank. The pledge made in this Resolution and the provisions, covenants and agreements herein set forth to be performed by or on behalf of the City shall be for the benefit, protection and security of the Bank. that: Section 4. Findings. It is hereby ascertained, determined and declared (A) There is currently a need for the City to acquire, construct and equip the Project and that completing the Project will be in the best interests of the City and its citizens. (B) The City has previously issued the Prior Indebtedness to finance certain transportation related improvements. (C) In order to allow the City to finance costs of the Project without increasing its current annual debt service payments and to eliminate the pledge of the City's guaranteed entitlement funds the City deems it in its best interest to refinance the Prior Indebtedness at this time. (D) The Bank has submitted its commitment letter to provide the City with a term loan in an amount not to exceed $2,500,000 to finance all or a portion 3 of the costs of the Project and to refinance the Prior Indebtedness, which commitment letter is attached hereto as Exhibit B. (E) The City hereby determines that the most cost effective and beneficial way to finance the acquisition, construction and equipping of the Project and refinance the Prior Indebtedness will be through the execution of the Loan Agreement with the Bank and the issuance of the Series 2010 Note. (F) The Series 2010 Note shall be repaid solely from the Pledged Funds in the manner and to the extent set forth therein and in the Loan Agreement. (G) Due to the potential volatility of the market for tax exempt obligations such as the Series 2010 Note and the complexity of the transactions relating to such Series 2010 Note, it is in the best interest of the City to issue the Series 2010 Note by a negotiated sale to the Bank, allowing the City to enter the market at the most advantageous time, rather than at a specified advertised date, thereby permitting the City to obtain the best possible price, terms and interest rate for the Series 2010 Note. (H) It is not reasonably anticipated that more than $30,000,000 of tax exempt obligations as defined under Section 265(b)(3) of the Internal Revenue Code of 1986, as amended, will be issued by the City during calendar year 2010. Section 5. Authorization of Project and Refinancing of Prior Indebtedness. The acquisition, construction and equipping of the Project and the refinancing of the Prior Indebtedness is hereby authorized and approved. Section 6. Acceptance of SunTrust Commitment. The City hereby accepts the commitment of the Bank to provide the City with a term loan not to exceed $2,500,000. The commitment letter of the Bank attached hereto as Exhibit B is hereby approved and accepted and the City Manager is hereby authorized and directed to execute and deliver such commitment letter to the Bank. All actions taken by the City Manager with respect to such commitment prior to the date hereof are hereby authorized and ratified. Section 7. Approval of Loan Agreement and Series 2010 Note. The City hereby approves the Loan from the Bank in the principal amount of not to exceed $2,500,000. The terms and provisions of the Loan Agreement in substantially the form attached hereto as Exhibit C are hereby approved, with such changes, insertions and additions as the City Manager may approve. The City hereby authorizes the City Manager to execute and deliver, and the Clerk to attest and affix the City seal to, the Loan Agreement substantially in the form attached hereto as Exhibit B, with such changes, insertions and additions as the City Manager may approve, his execution thereof being evidence of such approval. In 4 order to evidence the Loan under the Loan Agreement, it is necessary to provide for the execution of the Series 2010 Note. The City Manager and the Clerk are authorized to execute and deliver the Series 2010 Note substantially in the form attached to the Loan Agreement as Exhibit A with such changes, insertion and additions as they may approve, their execution thereof being evidence of such approval. Section 8. Designation of the Series 2010 Note as a Qualified Tax Exempt Obligation. The City hereby designates the Series 2010 Note as a "qualified tax exempt obligation" under Section 265(b)(3) of the Code. This designation is based upon the findings of the City set forth in Section 4(H) hereof and the City Manager is authorized to certify such finding upon the issuance of the Series 2010 Note. Section 9. Limited Obligation. The Series 2010 Note shall not be or constitute a general obligation or indebtedness of the City as "bonds" within the meaning of any constitutional or statutory provision, but shall be a limited and special obligation payable from the Pledged Funds as described in the Loan Agreement solely in the manner and to the extent set forth in the Loan Agreement and shall not be deemed a pledge of the faith and credit or taxing power of the City and such obligation shall not create a lien on any property whatsoever of or in the City other than the Pledged Funds. Section 10. General Authorization. The City Manager, the Mayor, the Director of Finance and the Clerk are authorized to execute and deliver such documents, instruments and contracts, whether or not expressly contemplated hereby, and the City Attorney, Bond Counsel, the Financial Advisor and other employees or agents of the City are hereby authorized and directed to do all acts and things required hereby or thereby as may be necessary for the full, punctual and complete performance of all the terms, covenants, provisions and agreements herein and therein contained, or as otherwise may be necessary or desirable to effectuate the purpose and intent of this Resolution. Section 11. Repeal of Inconsistent Documents. All ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict. Section 12. Effective Date. This Resolution shall take effect immediately upon its adoption. A motion to adopt the foregoing Resolution was made by Council Member G i 11 m o r The motion was seconded by Council Member wolf f and, upon being put to a vote, the vote was as follows: Mayor Richard H. Gillmor aye Council Member Eugene Wolff aye Vice Mayor Jim Hill aye Council Member Andrea B. Coy aye aye Council Member Don Wright [SIGNATURE PAGE TO FOLLOW] [SIGNATURE PAGE TO RESOLUTION] The Mayor thereupon declared this Resolution duly passed and adopted this 10th day of February, 2010. A TEST: CITY OF SEBASTIAN, FLORIDA cmC Deputy &+y Cleric Thr Sally A. Maio, MMC City Clerk Richard H. Gillmor, Mayor Approved as to form and legality for reliance by the City of Sebastian only: Robert A. Ginsburg, Attorne g� City Y 6 EXHIBIT A General Description of the Project The Project generally includes certain transportation related improvements, as may be amended and supplemented from time to time by the Council, upon the following roadways: Laconia Street from Tulip to Crystal Mist Periwinkle Drive from Bridge to Laconia Street South Easy Street from Sebastian Blvd. to Wimbrow Drive Schumann Drive from Englar Drive to County Line Riverfront Streets Between Indian River Drive and US #1 as follows: Harrison Street Coolidge Street Washington Street Jefferson Street Martin Avenue Cleveland Street EXHIBIT B SunTrust Bank Commitment Letter SAMUSTS" January 27, 2010 Proposal Sent Via Email Kenneth W. Killgore City of Sebastian Director of Finance 1225 Main Street Sebastian, FL 32958 John W. Winn First Vice President Re: Term Loan City of Sebastian Dear Ken Killgore: SunTrust Bank is pleased to offer this commitment for up to $2,500,000 Although the following provisions, terms and conditions are intended to be comprehensive, they are not necessarily inclusive of all the anticipated terms that will be applicable to the credit. All of such terms will be set forth in the fmal, definitive loan documents, and all such terms must be acceptable to the Bank and its counsel. This commitment, is contingent upon the accuracy of all facts, statements and financial information submitted to the Bank by the Borrower and is conditioned upon the terms outlined below no additional credit approval is require by the Bank. Borrower: City of Sebastian "City Lender: Terms: SunTrust.Bank 501 S. Flagler Drive Floor 2nd West Palm Beach, FL 33401 John W. Winn, First Vice President (561) 835 -2677 SunTrust Bank West Palm Beach, FL 33401 Tel 561.835.2677 Fax 561.835.2636 john.winn ©suntrust.com Facilities: One term loan represented by a Bond to be held by the Lender in the amount of: Amount: Series 2010: Up to $2,500,000 Purpose: To fund the payoff of the existing SunTrust obligation 0040016908, prepayment penalty, accrued interest, closing costs, and an additional $1,250,000 for various road projects total loan not to exceed $2,500,000. The credit facility shall be structured as a term loan consisting of a Series 2010 term bond maturing 12 years from the closing date. Principal and Interest shall be payable semi- annually on each March 1, and September 1, beginning March 1, 2010. Calculation of interest shall be computed on an actual/360 basis. Interest Rate: The following fixed rate loan is considered to be Bank Qualified. Security: Prepayment: Documentation Bond Opinion: Closing Costs: Series 2010: The rate shall be fixed at 4.01 SunTrust Bank will hold this rate for 30 days at no additional costs. Security for this credit facility shall be a first priority pledge of the Local Option Gas Tax No Prepayment Penalty the borrower may prepay all or any portion of the Loan at any time. Bank Counsel can prepare all documentation and provide the tax- exempt opinion for this transaction at a cost not to exceed $10,000, or review documents not to exceed $5,000. No additional fees beyond the legal fees as outlined above. Covenants and Conditions A) Borrower shall certify that financing is in compliance with any applicable ordinance governing the issuance of debt. B) All matters relating to this loan, including all instruments and documents required, are subject to the Bank's policies and procedures then in effect, applicable governmental regulations and/or statutes, and approval by the Bank and the Bank's Counsel. C) Borrower's Counsel shall submit a written opinion, in form and substance acceptable to the Bank and Bank'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. D) Borrower shall submit annual audited statements within 210 days of fiscal year end, together with an annual budget within 30 days of adoption, together with any other information the Bank may reasonably request. E) The Bank shall have the right to adjust the tax- exempt interest rate in order to maintain the same after tax yield if any amendments to existing law caused by the borrower's actions only are enacted which would adversely affect the Bank's after tax yield including any "determination of taxability" as will be defined in the loan documentation. F) The Borrower shall comply with and agree to such other covenants, terms, and conditions that may be reasonably required by the Bank and its counsel and are customary in tax- exempt financings of this nature. These covenants would include, but are not to be limited to, covenants regarding compliance with laws and regulation, remedies in the event of default and bond counsel's opinion regarding the tax exempt and "bank qualified" nature of the facility. BORROWER ACCEPTS THE PROPOSAL AS RENDERED: 0) The "Bank- Qualified" interest rate quoted herein assumes the obligation is a "qualified tax- exempt obligation" as defined in Section 265(b)(3) of the Internal Revenue Service Code. If the borrowings hereunder are deemed to be taxable or "Non -Bank Qualified" tax exempt obligations caused by the Borrower's actions only, then the rate shalt be adjusted to provide the Bank with the same after tax yield. Acceptance of Proposal: The Borrower must signify its acceptance of this proposal no later than February 16th, 2010 on the acknowledgment below. This executed proposal shall remain valid for 30 days unless otherwise extended by the Bank. After you have had a chance to review the following information, please contact John Winn at (561) 835-2677 with any questions. SunTrust greatly appreciates the opportunity to provide this financing commitment to the City for the above referenced financing, and eagerly awaits your response. Sincerely, John W. Winn Institutional Governmental Banking Group SunTrust Bank Date EXHIBIT C Form of Loan Agreement LOAN AGREEMENT BETWEEN CITY OF SEBASTIAN, FLORIDA AND SUNTRUST BANK Dated as of February 17, 2010 TABLE OF CONTENTS ARTICLE I DEFINITION OF TERMS SECTION 1.01. DEFINITIONS 2 SECTION 1.02. INTERPRETATION 5 SECTION 1.03. TITLES AND HEADINGS 5 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR SERIES 2010 NOTE SECTION 2.01. REPRESENTATIONS BY THE CITY 6 SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BANK 7 SECTION 2.03. TAX COVENANT 7 SECTION 2.04. SERIES 2010 NOTE NOT TO BE INDEBTEDNESS OF THE CITY OR STATE 7 SECTION 2.05. SECURITY. 7 SECTION 2.06. PAYMENT COVENANT 8 SECTION 2.07. NO IMPAIRMENT; RECEIPT OF GAS TAX REVENUES 8 SECTION 2.08. ISSUANCE OF ADDITIONAL INDEBTEDNESS 8 ARTICLE III DESCRIPTION OF SERIES 2010 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2010 NOTE. 10 SECTION 3.02. OPTIONAL PREPAYMENT 11 SECTION 3.03. ADJUSTMENTS TO INTEREST RATES 11 ARTICLE IV CONDITIONS FOR ISSUANCE OF THE SERIES 2010 NOTE SECTION 4.01. CONDITIONS FOR ISSUANCE 13 ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT 15 SECTION 5.02. REMEDIES 15 i Pale SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT 17 SECTION 6.02. COUNTERPARTS 17 SECTION 6.03. SEVERABILITY 17 SECTION 6.04. TERM OF AGREEMENT 17 SECTION 6.05. NOTICE OF CHANGES IN FACT 17 SECTION 6.06. NOTICES 17 SECTION 6.07. NO THIRD -PARTY BENEFICIARIES 17 SECTION 6.08. APPLICABLE LAW 18 SECTION 6.09. WAIVER OF JURY TRIAL 18 SECTION 6.10. INCORPORATION BY REFERENCE 18 SCHEDULE 1 EXHIBIT A EXHIBIT B ARTICLE VI MISCELLANEOUS DEBT SERVICE SCHEDULE FORM OF SERIES 2010 NOTE GENERAL DESCRIPTION OF THE PROJECT ii This LOAN AGREEMENT (the "Agreement is made and entered into as of February 17, 2010, by and between CITY OF SEBASTIAN, FLORIDA, a municipal corporation duly organized and validly existing under the laws of the State of Florida, and its successors and assigns (the "City and SUNTRUST BANK, a Georgia banking corporation authorized to do business in the State of Florida, and its successors and assigns (the "Bank"); WITNESSETH: WHEREAS, the City is authorized by provisions of the Florida Constitution, Chapter 166, Florida Statutes, the Charter of the City and other applicable provisions of law to, among other things, acquire, construct, equip, own, sell, lease, operate and maintain various capital improvements and public facilities to promote the health, welfare and economic prosperity of the residents of the City and to borrow money to finance and refinance the acquisition, construction, equipping and maintenance of such capital improvements and public facilities; and WHEREAS, the City finds it necessary and in the best interests of the City to fmance all or a portion of the costs relating to the acquisition, construction and equipping of certain transportation related improvements, as generally described herein and more particularly described and identified in the plans and specifications on file with the City and all incidental costs relating thereto and as the same may be modified from time to time (collectively, the "Project and WHEREAS, the City has previously issued its Promissory Note in the principal amount of $3,268,890 on August 27, 1998 (the "Prior Indebtedness the proceeds of which were applied to finance certain roadway improvements; and WHEREAS, the City deems it in its best interest to refinance the Prior Indebtedness at this time; and WHEREAS, the Bank is willing to make a term loan to the City, and the City is willing to incur such loan, pursuant to the terms and provisions of this Agreement in an aggregate principal amount of $2,462,000 to fmance costs of the Project and refmance the Prior Indebtedness. NOW, THEREFORE, THIS AGREEMENT WITNESSETH: That the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS SECTION 1.01. DEFINITIONS. The terms defined in this Article I shall, for all purposes of this Agreement, have the meanings in this Article I specified, unless the context clearly otherwise requires. "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, Section 336.025, Florida Statutes, as amended, the Charter of the City, the Interlocal Agreement, and other applicable provisions of law. "Additional Indebtedness" shall mean any indebtedness incurred by the City after the date of this Agreement secured by or payable from, in whole or in part, any portion of the Gas Tax Revenues. "Agreement" shall mean this Loan Agreement, including any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Bank" shall mean SunTrust Bank and its successors and assigns. "Bond Counsel" shall mean Nabors, Giblin Nickerson, P.A., Tampa, Florida or any other attorney at law or firm of attorneys, of nationally recognized standing in matters pertaining to the federal tax exemption of interest on obligations issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America. "Business Day" shall mean any day other than a Saturday, Sunday or a day on which offices of the Bank in the State are authorized or required to be closed. "City" shall mean the City of Sebastian, Florida, a municipal corporation duly organized and validly existing under the laws of the State of Florida. "City Manager" shall mean the City Manager of the City or, in his or her absence or unavailability, his or her duly authorized designee. "Clerk" shall mean the City Clerk of the City, or any duly authorized Deputy City Clerk of the City. "Code" shall mean the Internal Revenue Code of 1986, as amended, and applicable rules and regulations. "Council" shall mean the City Council of the City of Sebastian, Florida. 2 "County" shall mean Indian River County, Florida. "Debt" shall mean any outstanding indebtedness of the City secured by or payable from, in whole or in part, any portion of the Gas Tax Revenues. "Default Rate" shall mean a fixed rate of interest equal to 12.00% per annum. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the Series 2010 Note becoming includable for federal income tax purposes in the gross income of the Bank as a consequence of any act, omission or event whatsoever and regardless of whether the same was within or beyond the control of the City. A Determination of Taxability will be deemed to have occurred upon (a) the receipt by the City or the Bank of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency or other official correspondence from the Internal Revenue Service which concludes that any interest payable on the Series 2010 Note is includable in the gross income of the Bank; (b) the issuance of any public or private ruling of the Internal Revenue Service that any interest payable on the Series 2010 Note is includable in the gross income of the Bank; or (c) receipt by the City or the Bank of an opinion of Bond Counsel that any interest on the Series 2010 Note has become includable in the gross income of the Bank for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the Series 2010 Note is first deemed includable in the gross income of the Bank. A Determination of Taxability shall not occur in the event such interest is taken into account in determining adjusted current earnings for the purpose of the alternative minimum income tax imposed on corporations. "Director of Finance" shall mean the Director of Finance of the City or, in his or her absence or unavailability, his or her duly authorized designee. "Final Maturity Date" shall mean December 1, 2021. "Financial Advisor" shall mean FirstSouthwest, Orlando, Florida, or any other fmancial advisory firm or company of nationally recognized standing in matters pertaining to public fmance. "Fiscal Year" shall mean the 12 -month period commencing on October 1 of any year and ending on September 30 of the immediately succeeding year. "Gas Tax Revenues" shall mean the moneys received by the City from the Six Cents Local Option Gas Tax pursuant to the Act. "Interest Rate" shall mean a fixed rate of interest equal to 4.01% per annum. Upon a determination of non "qualified tax- exempt obligation" status or a Determination of Taxability, the Interest Rate is subject to adjustment pursuant to Section 3.03 hereof. 3 "Interlocal Agreement" shall mean the Interlocal Agreement, dated June 25, 1996, between the City and the County, relating to the Gas Tax Revenues, as amended or supplemented from time to time. "Loan" shall mean the loan from the Bank to the City in the aggregate principal amount of $2,462,000 made in accordance with the provisions of this Agreement. "Maximum Annual Debt Service" shall mean the maximum annual debt service to come due during any Fiscal Year of the City on the outstanding Series 2010 Note, all other outstanding Debt and any proposed Additional Indebtedness. With respect to any outstanding variable rate Debt, the interest rate used to determine Maximum Annual Debt Service shall be the actual interest rate in effect on such Debt at the time of calculation plus 100 basis points or, in the event no rate is then in effect, 6.00% per annum. "Mayor" shall mean the Mayor or, in his or her absence or unavailability, his or her duly authorized designee. "Pledged Funds" shall mean all of the Gas Tax Revenues and, until expended, proceeds of the Loan. "Project" shall mean certain transportation related improvements within the City to be funded with proceeds of the Loan, as generally described in Exhibit B hereto and more particularly described in the plans and specifications on file with the City, as the same may be amended and supplemented from time to time. "Resolution" shall mean Resolution No. R -10 -03 adopted by the Council on February 10, 2010, which among other things authorized the execution and delivery of this Agreement and the issuance of the Series 2010 Note. "Series 2010 Note" shall mean the City of Sebastian, Florida Gas Tax Revenue Note (SunTrust Bank), Series 2010, as more particularly described in this Agreement, which Note evidences the Loan. The form of the Series 2010 Note is attached hereto as Exhibit A. "Six Cents Local Option Gas Tax" shall mean the first 6 -cents of the local option fuel tax levied by the County and received by the City pursuant to Section 336.025(1)(a), Florida Statutes, as amended, and the Interlocal Agreement. "State" shall mean the State of Florida. "Taxable Rate" shall mean, upon a Determination of Taxability, the interest rate per annum that shall provide the Bank with the same after tax yield that the Bank would have otherwise received had the Determination of Taxability not occurred taking into account the increased taxable income of the Bank as a result of such Determination of Taxability. "Tax Certificate" shall mean the Certificate as to Arbitrage and certain Other Tax Matters to be executed by the City in connection with the issuance of the Series 2010 Note, as such Certificate may be amended from time to time. SECTION 1.02. 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. Any capitalized terms used in this Agreement not herein defined shall have the meaning ascribed to such terms in the Resolution. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the articles and sections of this Agreement, which have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. 5 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR SERIES 2010 NOTE SECTION 2.01. REPRESENTATIONS BY THE CITY. The City represents, warrants and covenants that: (a) The City is a municipal corporation duly organized and validly existing under the laws of the State. Pursuant to the Resolution, the City has duly authorized the execution and delivery of this Agreement, the performance by the City of all of its obligations hereunder and thereunder, and the issuance of the Series 2010 Note in the aggregate principal amount of $2,462,000. (b) The City has complied with all of the provisions of the Constitution and laws of the State, including the Act and all local ordinances governing the issuance of debt, and has full power and authority to enter into and consummate all transactions contemplated by this Agreement and the Series 2010 Note, and to perform all of its obligations hereunder and under the Series 2010 Note and, to the best knowledge of the City, the transactions contemplated hereby do not conflict with the terms of any statute, order, rule, regulation, judgment, decree, agreement, instrument or commitment to which the City is a party or by which the City is bound. (c) The City is duly authorized and entitled to issue the Series 2010 Note and enter into this Agreement and, when issued in accordance with the terms of this Agreement, the Series 2010 Note and this Agreement will each constitute legal, valid and binding obligations of the City enforceable in accordance with their respective terms, subject as to enforceability to bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. (d) There are no actions, suits or proceedings pending or, to the best knowledge of the City, threatened against or affecting the City, at law or in equity, or before or by any governmental authority, that, if adversely determined, would materially impair the ability of the City to perform the City's obligations under this Agreement or the Series 2010 Note. (e) Within 210 days after the close of each Fiscal Year the City shall provide the Bank with a copy of the annual audited financial statements of the City prepared by a certified public accountant. The City shall also provide the annual budget of the City each year within 30 days of the fmal adoption of each such budget. With reasonable promptness the City shall provide such other data and information as may be requested by the Bank from time to time. 6 SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BANK. The Bank hereby represents, warrants and agrees that it is a Georgia banking corporation authorized to execute and deliver this Agreement and to perform its obligations hereunder, and such execution and delivery will not constitute a violation of its charter, articles of incorporation or bylaws. Pursuant to the terms and provisions of this Agreement, the Bank agrees to provide a term loan to the City as evidenced hereby and by the Series 2010 Note for the purpose of (i) financing costs of the Project, (ii) refinancing the Prior Indebtedness, and (iii) paying costs relating to the issuance of the Series 2010 Note. SECTION 2.03. TAX COVENANT. (a) In order to maintain the exclusion from gross income for purposes of Federal income taxation of interest on the Series 2010 Note, the City shall comply with each requirement of the Code applicable to the Series 2010 Note. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate as a source of guidance for achieving compliance with the Code. (b) The City shall make any and all rebate payments required to be made to the United States Department of the Treasury in connection with the Series 2010 Note pursuant to Section 148(0 of the Code. (c) So long as necessary in order to maintain the exclusion from gross income of interest on the Series 2010 Note for Federal income tax purposes, the covenants contained in this Section shall survive the payment of the Series 2010 Note and the interest thereon, including any payment or defeasance thereof. (d) The City shall not take or permit any action or fail to take any action which would cause the Series 2010 Note to be an "arbitrage bond" within the meaning of Section 148(a) of the Code. SECTION 2.04. SERIES 2010 NOTE NOT TO BE INDEBTEDNESS OF THE CITY OR STATE. The Series 2010 Note, when delivered by the City pursuant to the terms of this Agreement, shall not be or constitute an indebtedness of the City, the State of Florida or any political subdivision or agency thereof, within the meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be payable solely as herein provided. The Bank shall never have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form on any property therein to pay the Series 2010 Note or the interest thereon. The Series 2010 Note is a special and limited obligation secured by and payable as to principal and interest from the Pledged Funds. SECTION 2.05. SECURITY. The Series 2010 Note shall be secured by and payable from the Pledged Funds. The City does hereby irrevocably pledge the Pledged 7 Funds to the payment of the principal of and interest on the Series 2010 Note in accordance with the provisions of this Agreement. SECTION 2.06. PAYMENT COVENANT. The City covenants that it shall duly and punctually pay from the Pledged Funds the principal of and interest on the Series 2010 Note at the dates and place and in the manner provided herein and in the Series 2010 Note according to the true intent and meaning thereof and all other amounts due under this Agreement. SECTION 2.07. NO IMPAIRMENT; RECEIPT OF GAS TAX REVENUES. The pledging of the Pledged Funds in the manner provided herein shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution, agreement or other proceedings of the City. The City covenants to do all things necessary on its part to maintain its eligibility to receive the full amount of Gas Tax Revenues which are required by the Act including the diligent enforcement of the Interlocal Agreement. The City hereby agrees to provide the holder of the Series 2010 Note with copies of any amendment, modification or extension of the Interlocal Agreement. The City shall not enter into any amendment to the Interlocal Agreement which would adversely affect the Bank's rights hereunder without the prior written consent of the Bank. The City shall not use the proceeds of the Series 2010 Note in any manner that could jeopardize the City's continued entitlement to the Gas Tax Revenues. SECTION 2.08. ISSUANCE OF ADDITIONAL INDEBTEDNESS. No Additional Indebtedness payable on a senior basis with respect to the Series 2010 Note shall be issued without the written consent of the Bank. No Additional Indebtedness payable on a parity with the Series 2010 Note shall be issued by the City except upon the conditions and in the manner provided in this Section 2.08. No such Additional Indebtedness shall be issued unless (1) no Event of Default (as specified in Section 5.01 hereof) shall have occurred and be continuing hereunder, and (2) the following conditions are complied with: (a) Except as otherwise provided in Section 2.08(b) hereof, there shall have been obtained and filed with the City and the Bank a certificate of the Director of Finance: (1) stating that he or she has examined the books and records of the City relating to the Gas Tax Revenues which have been received by the City; (2) setting forth the amount of such Gas Tax Revenues received by the City during the immediately preceding Fiscal Year (the "Testing Period and (3) stating that the amount of such Gas Tax Revenues received during the Testing Period equals at least 1.30 times the Maximum Annual Debt Service on all Debt then outstanding and the Additional Indebtedness with respect to which such statement is made. Such certificate by the Director of Finance may be partially based upon a certification of certain matters related to the calculation of the Maximum Annual Debt Service by the Financial Advisor. 8 (b) In the event any Additional Indebtedness secured by or payable from the Gas Tax Revenues is issued or incurred for the purpose of refunding or refinancing any Debt, the conditions of Section 2.08(a) hereof shall not apply, provided that the issuance or incurrence of such Additional Indebtedness (1) is applied to pay the entire outstanding amount of the Series 2010 Note in full, or (2) shall not result in an increase in the aggregate annual debt service for all outstanding Debt in any Fiscal Year. (c) In the event the City, by an amendment to this Agreement, extends the pledge of the Gas Tax Revenues created pursuant to this Agreement to include additional gas or fuel tax and such additional gas or fuel tax was not in effect during all or a portion of the Testing Period, then for the purposes of determining whether there are sufficient Gas Tax Revenues to meet the coverage test specified in Section 2.08(a) hereof, the Director of Finance shall adjust the amount of Gas Tax Revenues which were received during the Testing Period to take into account the additional amount of Gas Tax Revenues such additional gas or fuel tax would have generated if it had been in effect for the Testing Period; provided, however, that such adjustment shall only be made if the additional gas or fuel tax is in effect on the date the statement of the Director of Finance referred to in Section 2.08(a) hereof is made and such additional gas or fuel tax will remain in effect at least until the fmal maturity of the Series 2010 Note (including the proposed Additional Indebtedness) at the time of issuance of the Additional Indebtedness. (d) In the event the City shall enter into any agreement relating to, or any amendment of, the Interlocal Agreement adjusting the City's proportionate share of Gas Tax Revenues and such new proportionate share of Gas Tax Revenues was not in effect during all or a portion of the Testing Period, then for the purpose of determining whether there are sufficient Gas Tax Revenues to meet the coverage test specified in Section 2.08(a) hereof, the Director of Finance shall adjust the amount of Gas Tax Revenues which were received during the Testing Period to reflect the amount of Gas Tax Revenues the City would have received over such Testing Period had the City's share of Gas Tax Revenues been distributed based on its new proportionate share. [Remainder of page intentionally left blank] 9 ARTICLE III DESCRIPTION OF SERIES 2010 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2010 NOTE. (a) The City hereby authorizes the issuance and delivery of the Series 2010 Note to the Bank which Note shall be in an amount equal to TWO MILLION FOUR HUNDRED SIXTY TWO THOUSAND DOLLARS ($2,462,000) and shall be designated as the "City of Sebastian, Florida Gas Tax Revenue Note (SunTrust Bank), Series 2010." The text of the Series 2010 Note shall be substantially in the form attached hereto as Exhibit A, with such omissions, insertions and variations as may be necessary and desirable to reflect the particular terms of the Series 2010 Note. The provisions of the form of the Series 2010 Note are hereby incorporated in this Agreement. (b) The Series 2010 Note shall be dated the date of its delivery. The Series 2010 Note shall be executed in the name of the City by the manual signature of the City Manager and the official seal of the City shall be affixed thereto and attested by the manual signature of the Clerk. In case any one or more of the officers, who shall have signed or sealed the Series 2010 Note, shall cease to be such officer of the City before the Series 2010 Note so signed and sealed shall have been actually delivered, such Series 2010 Note may nevertheless be delivered as herein provided and may be issued as if the person who signed or sealed such Series 2010 Note had not ceased to hold such office. (c) The Series 2010 Note shall bear interest from its date of issuance at the Interest Rate (calculated on the basis of a 360 -day year for the actual number of days elapsed) as the same may be adjusted pursuant to Section 3.03 hereof. Interest on the Series 2010 Note shall be payable semi annually on June 1 and December 1 of each year, commencing June 1, 2010 (each an "Interest Payment Date so long as the Series 2010 Note remains outstanding hereunder. Principal of the Series 2010 Note shall be payable semi annually on June 1 and December 1 of each year, commencing June 1, 2010 (each a "Principal Payment Date" and together with the Interest Payment Date, a "Payment Date through and including the Final Maturity Date. The scheduled principal payments are set forth in Schedule 1 attached hereto. (d) All payments of principal of and interest on the Series 2010 Note shall be payable in any coin or currency of the United States which, at the time of payment, is legal tender for the payment of public and private debts and shall be made to the Bank (i) in immediately available funds, (ii) by delivering to the Bank no later than the applicable Payment Date a check or draft of the City, or (iii) in such other manner as the City and the Bank shall agree upon in writing. If any Payment Date is not a Business Day, the corresponding payment shall be due on the next succeeding Business Day, but interest shall be due and payable through the date payment is received. 10 (e) There will be no ongoing Bank fees for the Loan made hereunder. Except as otherwise provided herein, the Bank shall pay for all of its costs relating to servicing the term loan. The City shall pay the legal review fee of the Bank relating to the initial issuance of the Series 2010 Note in an amount not to exceed $5,000.00. SECTION 3.02. OPTIONAL PREPAYMENT. (a) The Series 2010 Note may be prepaid, without penalty or premium, at any time prior to the Final Maturity Date, at the option of the City, from any moneys legally available therefor, upon notice as provided herein, in whole, or in part, on any date, by paying to the Bank the unpaid principal amount of the Series 2010 Note, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. (b) Any prepayment shall be made on such Payment Date as shall be specified by the City in a written notice provided to the Bank not less than five (5) days prior thereto by first class mail. Notice having been given as aforesaid, the outstanding principal of the Series 2010 Note shall become due and payable on the date of prepayment stated in such notice, together with the interest accrued and unpaid to the date of prepayment on the principal amount then being paid. If on the date of prepayment moneys for the payment of the principal amount to be prepaid on the Series 2010 Note, together with the accrued interest to the date of prepayment on such principal amount, shall have been paid to the Bank as above provided, then from and after the date of prepayment, interest on such prepaid principal amount of the Series 2010 Note shall cease to accrue. If said money shall not have been so paid on the date of prepayment, such principal amount of the Series 2010 Note shall continue to bear interest until payment thereof at the Interest Rate. (c) In the event any portion of the Series 2010 Note is optionally prepaid pursuant to this Section 3.02, the amount so prepaid shall be applied as a credit against the principal amount due on the then latest scheduled Payment Date. The Bank shall make appropriate notations in its records indicating the amount and date of any such prepayment and shall promptly transmit an acknowledgment to the City indicating the amount and date of such prepayment. SECTION 3.03. ADJUSTMENTS TO INTEREST RATES. (a) If for any reason it shall be determined that any portion of the Series 2010 Note is not a "qualified tax- exempt obligation" within the meaning of Section 265(b)(3) of the Code, then the Interest Rate thereon shall be increased to such rate as shall provide the Bank with the same rate of return that the Bank would have otherwise received on the such amounts taking into account the diminished deductibility of interest expense of the Bank under Section 265 of the Code as a result of the non "qualified tax- exempt obligation" status of the Series 2010 Note; provided, however, such increased rate shall never exceed the maximum rate allowable by law. Upon the written request of the City, the Bank shall provide the City with sufficient evidence supporting any such increase. 11 (b) In the event of a Determination of Taxability, the Interest Rate shall be immediately increased (effective retroactively to the date of the Determination of Taxability) to the Taxable Rate; provided, however, such increased rate shall never exceed the maximum rate allowable by law. [Remainder of page intentionally left blank] 12 ARTICLE IV CONDITIONS FOR ISSUANCE OF THE SERIES 2010 NOTE (i) A fully executed Tax Certificate; SECTION 4.01. CONDITIONS FOR ISSUANCE. (a) In connection with the issuance of the Series 2010 Note, the Bank shall not be obligated to purchase the Series 2010 Note pursuant to this Agreement unless at or prior to the issuance thereof the City delivers to the Bank the following items in form and substance acceptable to the Bank: (ii) A copy of a completed and executed Form 8038 -G to be filed with the Internal Revenue Service; (iii) An opinion of Bond Counsel in form and substance to the effect that (A) the Series 2010 Note has been duly authorized by the City and is an enforceable obligation in accordance with its terms (enforceability of it may be subject to standard bankruptcy exceptions and the like), (B) interest on the Series 2010 Note shall be excluded from gross income for federal income tax purposes and will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code, and (C) the Series 2010 Note has been duly designated as a "qualified tax- exempt obligation" under Section 265(b)(3) of the Code; (iv) An opinion of the City Attorney of the City in a form and substance acceptable to the City and the Bank; and (v) Such additional certificates, instruments, opinions and other documents as the Bank, Bond Counsel, or the City Attorney may deem necessary or appropriate. (b) The City shall apply the proceeds of the Series 2010 Note to refund the Prior Indebtedness and to fmance or refinance, or reimburse itself for prior expenditures incurred for, the costs of the Project, which shall include, but not be limited to: (i) The costs of architectural and engineering services related to the Project, including, without limitation, the costs of preparation of studies, surveys, reports, tests, plans and specifications; (ii) The costs of legal, accounting, marketing and other special services related to the Project; 13 (iii) Costs and fees incurred in connection with the issuance of the Series 2010 Note; (iv) Fees and charges incurred in connection with applications to federal, state and local governmental agencies for any requisite approval or permits regarding the acquisition and construction of the Project; (v) Costs incurred in connection with the acquisition of the sites for the Project, including any necessary rights -of -way, easements or other interests in real or personal property; (vi) Costs incurred in connection with the acquisition, construction, improvement or extension of the buildings, structures and facilities comprising the Project; (vii) Costs incurred in connection with the acquisition and installation of any machines, equipment, fixtures, appurtenances or personal property of any kind or nature, which are to comprise a part of the Project; (viii) Interest on the Series 2010 Note accruing prior to the completion date of the Project; and (ix) To the extent permitted by law, other costs and expenses relating to the Project which are incurred for the purpose of providing for the Project, including the administrative and maintenance costs associated with the management of the Project, and other facilities functionally related and subordinate thereto. [Remainder of page intentionally left blank] 14 ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The City shall fail to make timely payment of principal or interest then due with respect to the Series 2010 Note; (b) the City shall fail to make timely payment of principal or interest then due with respect to any other indebtedness of the City which is secured by the Gas Tax Revenues; (c) Any representation or warranty of the City contained in Article II of this Agreement shall prove to be untrue in any material respect; (d) Any covenant of the City contained in this Agreement shall be breached or violated for a period of thirty (30) days after the City's notice of such breach or violation, unless the Bank shall agree in writing, in its sole discretion, to an extension of such time prior to its expiration; (e) There shall occur the dissolution or liquidation of the City, or the filing by the City of a voluntary petition in bankruptcy, or the commission by the City of any act of bankruptcy, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of its creditors, or appointment of a receiver for the City, or the entry by the City into an agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceeding for its reorganization instituted under the provisions of the Federal Bankruptcy Act, as amended, or under any similar act in any jurisdiction which may now be in effect or hereafter amended. SECTION 5.02. REMEDIES. If any event of default shall have occurred and be continuing, the Bank or any trustee or receiver acting for the Bank may either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under the Laws of the State of Florida, or granted and contained in this Agreement, and may enforce and compel the performance of all duties required by this Agreement or by any applicable statutes to be performed by the City or by any officer thereof. No remedy herein conferred upon or reserved to the Bank is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. In addition, upon the occurrence of an Event of Default described in Section 5.01(e) above, 15 the principal of and interest on the Series 2010 Note shall be immediately due and payable. Further, upon the occurrence of an Event of Default described in Section 5.01(a) or (b) above and which has not been remedied within ten (10) days of the applicable scheduled payment date, the Bank may declare the entire amount of the then outstanding Series 2010 Note and all accrued interest thereon to be immediately due and payable. Upon the occurrence of any other Event of Default which has not been remedied within thirty (30) days notice to the City by the Bank, the Bank may declare the entire amount of the then outstanding Series 2010 Note and all accrued interest thereon to be immediately due and payable. Any amount due hereunder not paid within ten (10) days of the applicable due date shall bear interest at the Default Rate. In addition, the Bank shall be reimbursed for its reasonable legal fees and costs incurred on account of an Event of Default. Notwithstanding anything in this Section 5.02 to the contrary, the Bank agrees not to accelerate the Series 2010 Note on account of non payment and the Default Rate shall not apply if said non payment is as a result of and during the occurrence of a natural, technological, or civil emergency that causes damage of sufficient severity and magnitude to result in a declaration of a state of emergency by the County, the Governor of the State, or the President of the United States. 16 ARTICLE VI MISCELLANEOUS SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT. This Agreement shall not be amended, changed or modified without the prior written consent of the Bank and the City. SECTION 6.02. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. SECTION 6.03. SEVERABILITY. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such provisions or sections shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. SECTION 6.04. TERM OF AGREEMENT. This Agreement shall be in full force and effect from the date hereof and shall continue in effect as long as the Series 2010 Note is outstanding. SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the City becomes aware of the same, the City will notify the Bank of (a) any change in any material fact or circumstance represented or warranted by the City in this Agreement or in connection with the issuance of the Series 2010 Note, and (b) any default or event which, with notice or lapse of time or both, could become a default under this Agreement, specifying in each case the nature thereof and what action the City has taken, is taking and/or proposed to take with respect thereto. SECTION 6.06. NOTICES. Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally or sent registered or certified mail, postage prepaid, to the City, City of Sebastian, Florida, 1225 Main Street, Sebastian, Florida 32958, and to SunTrust Bank, 501 S. Flagler Drive, 2 Floor, West Palm Beach, Florida 33401, or at such other address as shall be furnished in writing by any such party to the other, and shall be deemed to have been given as of the date so delivered or deposited in the United States mail. SECTION 6.07. NO THIRD -PARTY BENEFICIARIES. This Agreement is for the benefit of the City and the Bank and their respective successors and assigns, and there shall be no third -party beneficiary with respect thereto. 17 SECTION 6.08. APPLICABLE LAW. The substantive laws of the State of Florida shall govern this Agreement. SECTION 6.09. WAIVER OF JURY TRIAL. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any proceedings relating to this Agreement on the Series 2010 Note. SECTION 6.10. INCORPORATION BY REFERENCE. All of the terms and obligations of the Resolution are hereby incorporated herein by reference as if said Resolution was fully set forth in this Agreement and the Series 2010 Note. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first set forth herein. (SEAL) ATTEST: B 1/0 C 1 -rV1- .1 y Clerk/Deputy City Clerk CITY OF SE ASTIAN, FLORIDA B a SUNTRUST BANK inner, City Manager 18 John W. Winn, First Vice W. Winn, First Vice President PRINCIPAL PAYMENT SCHEDULE Date Principal 06/01/2010 48,000.00 12/01/2010 83,000.00 06/01/2011 85,000.00 12/01/2011 87,000.00 06/01/2012 89,000.00 12/01/2012 90,000.00 06/01/2013 92,000.00 12/01/2013 94,000.00 06/01/2014 96,000.00 12/01/2014 98,000.00 06/01/2015 100,000.00 12/01/2015 102, 000.00 06/01/2016 104, 000.00 12/01/2016 106, 000.00 06/01 /2017 108,000.00 12/01/2017 111, 000.00 06/01/2018 113 000.00 12/01/2018 115,000.00 06/01/2019 117,000.00 12/01/2019 120,000.00 06/01/2020 122,000.00 12/01/2020 125,000.00 06/01/2021 127,000.00 12/01/2021 130,000.00 Schedule 1 Interest Rate 4.01% EXHIBIT A UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF SEBASTIAN, FLORIDA GAS TAX REVENUE NOTE (SUNTRUST BANK), SERIES 2010 Date of Issuance February 17, 2010 A -1 Final Maturity Date December 1, 2021 $2,462,000 CITY OF SEBASTIAN, FLORIDA (the "City for value received, hereby promises to pay, from the Pledged Funds described in the within mentioned Agreement, to the order of SunTrust Bank, or its successors or assigns (the "Bank"), the principal sum of TWO MILLION FOUR HUNDRED SIXTY TWO THOUSAND DOLLARS ($2,462,000) pursuant to that certain Loan Agreement by and between SunTrust Bank and the City, dated as of February 17, 2010 (the "Agreement and to pay interest on such the outstanding principal amount hereof from the Date of Issuance set forth above, or from the most recent date to which interest has been paid, at the Interest Rate per annum identified above (subject to adjustment as provided in the Agreement) on June 1 and December 1 of each year, commencing on June 1, 2010, so long as any amount under this Note remains outstanding. Principal of this Note shall be payable on June 1 and December 1 of each year, commencing on June 1, 2010, through and including the Final Maturity Date identified above. The principal repayment schedule for this Note is set forth on Appendix I attached hereto. The principal and interest on this Note is payable in any coin or currency of the United States of America which, at the time of payment, is legal tender for the payment of public and private debts. This Note is issued under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, Section 336.025, Florida Statues, as amended, the Charter of the City, the Interlocal Agreement and other applicable provisions of law (the "Act and pursuant to Resolution No. R -10 -03 duly adopted by the City on February 10, 2010 (the "Resolution as such Resolution may be amended and supplemented from time to time, and is subject to all terms and conditions of the Resolution and the Agreement. Any term used in this Note and not otherwise defined shall have the meaning ascribed to such term in the Agreement. This Note is being issued to finance costs of the acquisition, construction and equipping of certain roadway improvements within the City and to refmance the Prior Indebtedness of the City. This Note is secured by and shall be payable from the Pledged Funds to the extent and as described in the Agreement. This Note shall bear interest at the Interest Rate identified above on the basis of a 360 -day year for the actual number of days elapsed. Such Interest Rate is subject to adjustment as provided in Section 3.03 of the Agreement. Any amount due hereunder not paid within ten (10) days of the applicable due date shall bear interest at the Default Rate (as defined in the Agreement), except as otherwise provided in the Agreement. Notwithstanding any provision in this Note to the contrary, in no event shall the interest contracted for, charged or received in connection with this Note (including any other costs or considerations that constitute interest under the laws of the State of Florida which are contracted for, charged or received) exceed the maximum rate of interest allowed under the State of Florida as presently in effect. All payments made by the City hereon shall apply first to accrued interest, and then to the principal amount then due on this Note. The City may prepay this Note, without penalty or premium, as a whole, or in part, on any date, by paying to the Bank the outstanding principal amount thereof, together with the unpaid interest accrued on the amount of principal to be prepaid to the date of such prepayment. Each prepayment of the Note shall be made on such Payment Date as shall be specified by the City in a written notice delivered to the Bank not less than five (5) days prior thereto, all in accordance with the provisions of the Agreement. All of the prepayment provisions contained in Section 3.02 of the Agreement shall apply with respect to this Note. The City has designated this Note as a "qualified tax- exempt obligation" under Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. This Note, when delivered by the City pursuant to the terms of the Agreement and the Resolution, shall not be or constitute an indebtedness of the City or of the State of Florida, within the meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be payable from and secured solely by the Pledged Funds, as provided in the Agreement and the Resolution. The Bank shall never have the right to compel the exercise of the ad valorem taxing power of the City or the State, or taxation in any form of any property therein to pay the Note or the interest thereon. This Note shall be and have all the qualities and incidents of a negotiable instrument under the commercial laws and the Uniform Commercial Code of the State of Florida, subject to any provisions for registration and transfer contained in the A -2 Agreement. So long as any of this Note shall remain outstanding, the City shall maintain and keep books for the registration and transfer of this Note. IN WITNESS WHEREOF, the City caused this Note to be signed by the manual signature of the City Manager, and the seal of the City to be affixed hereto or imprinted or reproduced hereon, and attested by the manual signature of the City Clerk, and this Note to be dated the Date of Issuance set forth above. (SEAL) Attest: By: City Clerk CITY OF SEBASTIAN, FLORIDA By: Al Minner, City Manager Principal Repayment Schedule for the CITY OF SEBASTIAN, FLORIDA GAS TAX REVENUE NOTE (SUNTRUST BANK), SERIES 2010 Date Principal 06/01/2010 48,000.00 12/01/2010 83,000.00 06/01/2011 85,000.00 12/01/2011 87,000.00 06/01/2012 89,000.00 12/01/2012 90,000.00 06/01/2013 92,000.00 12/01/2013 94,000.00 06/01/2014 96,000.00 12/01/2014 98,000.00 06/01/2015 100,000.00 12/01/2015 102,000.00 06/01/2016 104,000.00 12/01/2016 106,000.00 06/01/2017 108,000.00 12/01/2017 111, 000.00 06/01/2018 113,000.00 12/01/2018 115,000.00 06/01/2019 117,000.00 12/01/2019 120,000.00 06/01/2020 122,000.00 12/01/2020 125,000.00 06/01/2021 127,000.00 12/01/2021 130,000.00 Appendix I GENERAL DESCRIPTION OF THE PROJECT EXHIBIT B The Project generally includes certain transportation related improvements, as may be amended and supplemented from time to time by the Council, upon the following roadways: Laconia Street from Tulip to Crystal Mist Periwinkle Drive from Bridge to Laconia Street South Easy Street from Sebastian Blvd. to Wimbrow Drive Schumann Drive from Englar Drive to County Line Riverfront Streets Between Indian River Drive and US #1 as follows: Harrison Street Coolidge Street Washington Street Jefferson Street Martin Avenue Cleveland Street