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Bank of America Loan AgreementEXHIBIT "B" BANK OF AMERICA, N.A. LOAN AGREEMENT (including applicable Notes) B-1 EXHIBIT B TO RESOLUTION LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of the Closing .... Date identified on Attachment.B and is by. and between .the City. of Miami. Beach, Flori a, a municipal corporation of the State of Florida, and its successors and assigns (the "Borrower"), and the financial institution identified on Attachment B, and its successors and assigns, as holder(s) of the hereinafter defined Notes (the "Bank"). 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 words. and terms used in this Agreement shall have the meanings as set forth in the recitals above and the following words and terms as used in this Agreement shall have the following meanings: "Advance" means. a borrowing of money .under the Notes, pursuant to Section 5.03. hereof.; "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Authorized Individual" means any one of the individuals identified on Attachment B. "Bond Counsel" means Squire Sanders & Dempsey L.L.P. or such other attorney-at-law or firm.of such attorneys having expertise in the_tegal aspects of the issuance of indebtedness by states. and political subdivisions thereof and acceptable to the Bank. "Budgeted Revenues" means, to the- extent. provided in Section 3.06 hereof, the Non-Ad Valorem Revenues. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Bank is lawfully closed. "Closing Date" means the date. so indicated in the Notes. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Costs" means, with respect to the Project, any lawful expenditure of the Borrower which meets the further requirements of this Agreement. B-1 "Essential Government Services" means the provision of public safety and general governmental services by the Borrower; the expenditures for which are set forth. as the line items entitled "General Government Expenditures" and "Public Safety Expenditures" as reflected in the City of Miami Beach Statement of Revenues, Expenditures and Changes in Fund Balances - Governmental Funds and as reported in the City's latest Comprehensive Annual Financial Report. "Event of Default" shall mean ari event of default specified in Article VI of this Agreement. "Loan" shall mean .the loan by the Bank to the Borrower contemplated hereby. "Loan Amount" is identified on Attachment B. "Non-Ad Valorem Revenues" means in any fiscal year ofthe Borrower, all revenues received by the Borrower in such fiscal year that. are not derived.from ad valorem taxation.. "Notes" means. the Borrower's PromissoryNotes inthe forms attached hereto as Attachments "A-1 "and "A-2." "Notice Address" means, As to the Borrower: As set forth on Attachment B As to the Bank: As set forth on Attachment B or to such other address as either party may have specified in writing to the other using the procedures specified in Section 7.06. "Other Bank Notes" is defined on Attachment B. "Other Banks" is defined on Attachment B.. "Principal Office" means,. with respect to the Bank, the Notice Address, or such other office as the Bank may designate to the Borrower in writing. "Project" means expenditures incurred by the Borrower with respect to any portion of the System. "State" means the State of Florida. . '.'System".means the ~tormwater management utility system owned and. operated by, the Borrower and the water. transmission and distribution system and the sewage collection and transmission system owned and operated by the Borrower. "Tax Compliance Certificate" means the Tax Compliance. Certificate to be executed and delivered concurrently with the first Advance, if any, under the Tax-Exempt Note. "Taxable Note" means the Note attached hereto as Attachment "A-2." B-2 "Tax-Exempt Note" means the Note: attached hereto as Attachment "A-1." Section 1.02 Titles and Headings. The titles and headings of the articles and sections of this Agreement have been inserted for convenience of reference only and are not to be considered apart 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. ARTICLE II REPRESENTATIONS OF BORROWER The Borrower represents and warrants to the. Bank that: Section 2.01 ~ Powers of Borrower. The Borrower is a political subdivision of the type identified on Attachment B hereto, duly organized and validly existing under the laws of the State. The Borrower has the power to borrow the amount provided for in this Agreement, to execute and deliver the Notes and this Agreement, to secure the Notes in the manner contemplated hereby and to perform and observe all the terms and conditions of the Notes and this Agreement on its part to be performed and observed. The Borrower may lawfully borrow funds hereunder in order to pay Costs of the Project. Section 2:02 Authorization of Loan. The Borrower had, has, orwill have, as the case may be, at all relevant times, full legal right, power, and authority to execute this Agreement, to make the Notes, and to carry out and consummate. all other transactions contemplated hereby, and the Borrower has complied. and will comply with all provisions of applicable law in all material matters relating to such transactions. The Borrower has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Notes to the Bank and to that end the Borrower warrants that it will take all action and will do all things which it is authorized.by iaw to take and to do in order to fulfill all covenants ~on its part to be performed and to provide for and to .assure payment of the Notes: The Notes has been duly authorized, executed, issued and delivered to the Bank and constitute legal, valid and binding obligations of the Borrower enforceable in accordance with the terms thereof and the terms hereof, and are entitled to the benefits and security of this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Notes or the execution and delivery of or the performance by the Borrower of its obligations under this Agreement and the Notes have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 -No Violation of Law or Contract. The Borrower is not in default in any material respect under any agreement or other instrument to which it is a party or by which it may be bound, the breach of which could result in a material and adverse impact on the financial condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and under the Notes. The making and performing by the Borrower of this Agreement and the Notes will not violate any applicable provision of law, and will not result in a material breach of any of the .. B-3 terms of any agreement or instrument to whichthe Borrower is a party or by which the Borrower is bound, the breach of which could result in a material and adverse impact on the financial condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and under the Notes. Section 2.04 Pending or Threatened Liti atg ion. There are. no actions or proceedings ,.pending against .the Borrower ~r affecting, the. Borrower or, to the. knowledge of the. Borrower,., threatened,"which, either in any ease or in the aggregate; might result in any material adverse change in the financial condition of the Borrower, or which questions the validity of this Agreement or the Notes or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. Section 2.05 Financial Information. The financial information regarding the Borrower furnished to the Bank by the Borrower in connection with the Loan is accurate, and there has been no material and adverse. change in the financial condition. of the Borrower. from that presented in such inforrriation. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. For so long as any of the principal amount of or interest on the Notes is outstanding or is available to be advanced hereunder or any duty or obligation of the Borrower, hereunder or under the.. Notes .remains- unpaid or' unperformed, the Borrower covenants to the Bank as follows: (a) Payment. The Borrower shall paythe principal of and the interest on the Notes at the time and place, and in the manner and from the sources provided herein and in the Notes. (b) Use of Proceeds. Proceeds from the Notes will be used only to pay costs of the Project and.to pay closing.costs of the Loan.. (c) Notice of Defaults. The Borrower shall within ten (10) days after it acquires knowledge thereof, notify theBank in writing at its Notice Address upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Borrower of all relevant facts and the action being taken or proposed to be taken by the Borrower with respect thereto. (d), , ,:Maintenance of Existence. The Borrower will take all legal action:necessaryto maintain its existence until'all amounts due and owing from the Borrowerto the Bank under this Agreement and the Notes have been paid in full. (e) Records. The Borrower agrees that any and all records of the Borrower with respect to the Loan and the Project shall be open to inspection by the Bank or its representatives at all reasonable times at the offices the Borrower. B-4 (f) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to` have a material and adverse effect upon the financial condition of the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the Notes. (g) Insurance: The Borrower shall-maintain such liability,, casualty and other insurance as is reasonable. and prudent for: similarly situated governmental. entities of the State of Florida. (h) Compliance with Laws. The Borrower shall comply with all applicable federal, state and local laws and regulatory requirements, the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the Notes. (i) Payment of Document Taxes. In the event the Notes or this Agreement should be :subject .to the excise tax on documents or the intangble:personal property tax of the State, the Borrower shall pay such taxes or reimburse the Bank for any such taxes paid by it. (j) Financial Information. The Borrower will cause an audit to be completed of its books and accounts and shall furnish to the Bank audited year-end financial statements. of the Borrower together with a report of by an independent certified public accountant acceptable to the Bank stating without qualification unacceptable to the Bank that the audit was conducted in accordance with generally accepted auditing standards and stating that such financial statements present fairly in all material respects the financial .position of the Borrower and the results of its. operations and cash -flows for the periods covered by the -audit report; all in conformity .with generally- accepted accounting principles applied on a consistent basis. The Borrower shall adopt an annual budget as required by law. The Borrower. shall provide-the owner of the Notes with (i) a copy of its annual operating budget for each fiscal year ending after September 30, 2009 promptly upon requesttherefor by the Bank, and (ii) its audited financial statements described above and its comprehensive annual financial report (if one is prepared by the. Borrower) for each fiscal year ending on and after September 30, 2009 within 270 days after the end thereof. (k) Depository Relationship: So long as the Bank is'a qualified public depository under' Chapter 280, Florida Statutes, or so long as the Bank is not required to be a qualified public depository in order for the Borrower to lawfully deposit funds with the Bank, the Borrower shall maintain on deposit with the Bank in time ordemand deposits, or in other accounts acceptable to the Bank (for example, investment accounts in any affiliate with the Bank), at least $4;000,000.00. This requirement is in addition to any similar requirement that maybe contained in any other agreement between the Borrower and the Bank. Section 3.02 . Negafive Covenants. For so long as any of the principal amount of or interest on the Notes is outstanding or is available to be advanced hereunder or any duty or obligation of the Borrower hereunder or under the Notes remains. unpaid orunperformed, the Borrower covenants to the Bank as follows: B-5 . (a) No Pledge of Nori-Ad Valorem Revenues. Wi~thout.the.prior written consent. of the Bank, the Borrower shall not hereafter request any Advance hereunder or incur any indebtedness payable from any Non-Ad Valorem Revenues (which includes any increases in the outstanding amount under any line of credit or similar arrangement), other than any Non-Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could, but for such future indebtedness, be lawfully used to pay principal of or interest on the Notes ("Enterprise Revenues") (any and all such indebtedness payable from Non-Ad Valorem Revenues, other than Enterprise Revenues, whether now existing or incurred in the future, is referred to as "Competing Debt"),unless (i) the.amount ofNon-Ad ValoremRevenues, otherthanEnterpriseRevenues, if any,, received by the Borrower during the fiscal year of the Borrower most recently concluded prior to the date of such Advance or the incurrence of such indebtedness for which audited financial statements are available, minus the excess,: if any, of the expenditures by the Borrower for Essential Government Services for such fiscal year over the amount of ad valorem taxes (other than any ad valorem taxes levied pursuant to referendum approval by the electorate) received by the Borrower in such fiscal year, equals or exceeds 200% of the maximum amount of principal and interest scheduled to be payable on the Notes (including the amount of the Advance being requested) and all Competing Debt (including. the proposed debt) during the then current or any.. future fiscal year and (ii) an Authorized Individual ~cerfifies in writing to the Bank that to the best of his or her knowledge no event has occurred which would cause him or her. to believe that the amount ofNon- Ad Valorem Revenues, other than any Enterprise Revenues, to be received in any future fiscal year minus the excess, if any, of the expenditures by the Borrower for Essential Government Services for such fiscal year over the amount of ad valorem taxes (other than any ad valorem taxes levied pursuant to referendum approval by the electorate) received by the Borrower in such fiscal year, would be less than 200% of the amount of principal and interest scheduled to be payable on the .Notes and all Competing Debt during such fiscal year: For purposes of calculating the foregoing, if ariy indebtedness bears a rate of interest that is not fixed for the entire term of the dent (excluding any provisions that adjust the interest rate upon a change in tax law or in the tax treatment of interest on the debt or upon a default), then the interest rate on such indebtedness shall be assumed to be the highest of (i) the average rate of actual interest -borne by such indebtedness during the most recent completemonth prior to the date of issuance of such proposed indebtedness, (ii) fortax-exempt debt, The Bond Buyer Revenue Bond Index last published in the month preceding the date of issuance of such proposed indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S. Treasury obligation with a constant maturity closest to but not before. the maturity date of such indebtedness, as reported in Statistical Release H:15 of the FederalReserve. on the last day.ofthe month preceding the date of issuance of such proposed indebtedness, plus three percent, provided that if the Borrower shall have entered into an interest rate swap or interest rate cap or shall have taken any other action which has the effect of fixing or capping the interest rate on such indebtedness for the entire term thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such swap or cap, and provided further that if The Bond Buyer Revenue Bond Index or Statistical Release H.15 of the Federal Reserve is no longer available or no longer contains the necessary data, such other comparable source of comparable data as selected by the Bank shall be utilized in the foregoing ,... calculations.. ,.. , . .. , . Except as provided in Section 3.02(c), nothing in this Agreement limits the Borrower's ability to incur indebtedness payable from Enterprise Revenues. B-b (b) No Adverse Borrowings. TheBorrower shall not issue or incur any indebtedness or oliligation if such would materially~and adversely affect the ability of the Borrower to pay debt service on the Notes or any other amounts owing by the Borrower under this Agreement. (c) No Svstem Debt. The. Borrower will not incur any indebtedness (i.e., obligations created by exercise of the borrowing power of the Borrower, and not including trade payables incurred in the ordinary course of operation of the System) payable from revenues of the System ("System Debt") unless (i) at the time such System Debt is incurred the Borrower is in compliance with the terms of any ordinance, resolution or contract which limits the Borrower's ability to incur System Debt; assuming for such purpdse that in :addition to arly existing System Debt and the proposed System Debt, there is-also outstanding $60,000,000 of System Debt (of which 64% is payable from the stormwater system revenues and 36% of which is payable from water and sewer system revenues, or such other portions as maybe agreed upon in writing bythe Borrower, the Bank and the Other Banks), which is bearing interest at a rate equal to The Bond Buyer 20 Revenue Bond Index rate published most recently prior to the date such System Debt is to be incurred and which is being repaid in 20 equal annual installments due on the date one year after the date such proposed System Debt is to be incurred and each anniversary of such date,. (ii) concurrent with the incurrence of such indebtedness the: entire outstanding principal and interest of~the Notes and the. Other Bank Notes are repaid and this Agreement is terminated or (iii) the total principal and interest scheduled to be paid on all indebtedness of the System in any fiscal year of the Borrower is not greater after the incurrence of such indebtedness- than it was before the incurrence of such indebtedness. Section 3.03. Bank Fees and Expenses. The Borrower hereby agrees to pay (i) a closing fee to the Bank in the amount of $20,000.00 and (ii) the fee of counsel to the Bank in connection with the issuance of the Notes in the amount of $5,833.33,.said amounts to be due and payable upon the .issuance of the Notes... ,.: ~~ ~~ In addition, the Borrower will pay the Bank an annual fee (the Unused Facility Fee )equal to 80 basis points (0.80%) of the unfunded amount of the Loan, calculated on the basis of a 360 day year and the actual number of days elapsed; payable in arrears as of last day of each March, June, September and December, commencing June 30, 2009, and on the date on which this Agreement terminates. Section 3.04. Rea%stration and Exchan eg_ of Notes• Persons Treated as Banks. The Notes are owned by the Bank. Tlie ownership of the Notes .may only be transferred, and the Borrower will transfer the ownership of the Notes, upon written request of the Bank specifying the name, address and taxpayer identification number of the transferee, and the Borrower will keep a record setting forth the identification of the owner of the Notes. The Bank will not transfer the Notes except in compliance with all applicable laws and the Bank may only transfer both Notes to the same transferee and at the same time.. Section 3.05. Notes Mutilated Destroyed. Stolen or Lost.: In case a Note shall become. mutilated, or be destroyed, stolen or.lost, the Borrower shall issue and deliver a new Note having the same terms as the Note mutilated; destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the B-7 Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably satisfactory to .the Borrower and paying such. expenses as the Borrower may incur. Section 3.06. Payment of Principal and Interest• Limited Obligation. The Borrower promises that it will promptly pay the principal of and interest on the Notes at the place, on the dates and in the manner provided therein, provided that the Borrower may be compelled to pay the principal of and interest on the Notes. solely from the Non-Ad Valorem Revenues budgeted and appropriated for such purpose as provided herein, and nothing in the Notes or this Loan Agreement shall be construed as pledging any other funds or assets of the Borrower to such payment. Nothing herein shall, however, prevent the Borrower .from .using: any lawfully available funds to pay its obligations hereunder and under the Notes. The covenant to budget and appropriate, does not create a-lien upon or pledge of the Non-Ad Valorem Revenues. The Borrower is not and shall not be liable for the payment of the principal of and interest on the Notes or for the performance of any pledge, obligation or agreement for payment undertaken by the Borrower hereunder or under the Notes from any property other than the Budgeted Revenues. The Bank shall not have any right to resort to legal or equitable action to require or compel the Borrower to make any payment required by the Notes or this Loan Agreement from any source other than the Budgeted Revenues. The Borrower covenants that; so long as Notes shall remain unpaid or arty other amounts are owed by the Borrower under this Agreement or the Notes, it will appropriate in its annual budget, by amendment, if required, from the Non-Ad Valorem Revenues, amounts sufficient to pay the principal of and interest on the Notes and other amounts owed under this Agreement as the same shall become due. In the event that the amount previously budgeted for such purpose is ever insufficient to pay such principal and interest on the Notes and other amounts owed under this Agreement, the Borrower covenants to take immediate action to amend its budget so as to budget and appropriate an amount. from the Non-Ad Valorem Revenues sufficient to pay such debt service on the Notes .and such other amounts.. Sueh covenants ao .budget and appropriate from Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such Non-Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay such debt service on the Notes and such other amounts. The Bank and the Borrower acknowledge the existence of Section 166.241, Florida Statutes, which prescribes the budgetary process of the Borrower and which prohibits any expenditure or contractual obligation therefor from being made or incurred except in pursuance of budgeted appropriations. Notwithstanding any provisions of this Agreement to the:contrary, the Borrower shall not be obligated to maintain or continue .any of the. activities' of the. Borrower which generate Non-Ad Valorem Revenues. In addition,. in any fiscal year of the Borrower, the Borrower may pay or make provision for payment of the expenses of providing Essential Government Services of the Borrower due or coming due in such fiscal year from Non-Ad Valorem Revenues prior to being required to use any Non-Ad valorem Revenues to pay amounts due hereunder and under the Notes. Any Non-Ad Valorem Revenues which are restricted by a contract in existence on the date hereoffrom being used topay principal and interest on the Notes shall not be subject to the covenant to budget and appropriate. Any Non-Ad Valorem Revenues which are prohibited by a general or special law of the State in existence on the date hereof from being used to pay principal and interest on the Notes shall not be subject to the covenant to budget and appropriate. Any source of Non-Ad B-8 Valorem Revenues which is created after the date hereof and which is prohibited by a general or special law of the State from being used to pay principal-and interest an the Notes shall not be subject to the covenant to budget and appropriate. Section 3.07 Officers and Employees of the Borrower Exempt from Personal Liabilitv. No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the Notes or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against any officer (which includes elected and appointed officials), agent or employee, as such, of the Borrower past, present or future, it being expressly understood (a) that the obligation of the Borrower under this Agreement and under the Notes is solely a corporate one, limited as provided in the preceding Section,3..06, (b)ahat no personal liabiliry:whatsoever shall attach to, or.is or shall:be incurred by, the officers, agents, or employees,. as such, of the Borrower, or any of them, under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom, and (c) that any and all such personal liability of, and any and all such rights and claims against, every such officer, agent, or employee; as such, of the Borrower under or by reason of the obligations, covenants or agreements contained in this Agreement and under the Notes, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Agreement and the issuance of the Notes on the part of the Borrower. Section 3.08. Business Days In any case where the due date of interest on or principal of the Notes is not a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next. succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Bank. Section 3.09. Tax Representations Warranties and Covenants of the Borrower. The Borrower agrees to comply with the provisions of the Tax Compliance Certificate, if one is ever executed. , ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4:01. , RepresentationsandWarranties~. The representationsand warranties set. forth in this Agreement and the Notes are'and shall be true and correct on and as of the date hereof. Section 4.02 No Default. On the date hereof the Borrower shall be incompliance with all the terms and provisions set forth in this Agreement and the Notes on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03: Supporting Documents. On or. prior to the .date' hereof, the Bank shall have received the following support'ing' .documents, all of which shall be satisfactory in form and substance to the Bank (such satisfaction to be evidenced by the purchase of the Notes by the Bank): B-9 (a) The opinion of the attorney for the Borrower, regarding the due authorization, execution, delivery, validity and enforceability of this Agreement and the Notes; (b) Such additional supporting documents as the Bank may reasonably request. ARTICLE V FUNDING THE LOAN Section 5.01 The Loan. The Bank hereby agrees to Loan to the Borrower the amount of up to the Loan Amount to be evidenced by the Notes, to provide-funds to finance. the Costs of the Project upon the terms and conditions set forth in this.Agreemerit. The Borrower: agrees to relay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth in this Agreement and the Notes. Section 5.02 Descri ton and Payment Terrns of the Notes. To evidence the Loan, the Borrower shall issue and deliver to the Bank the Notes in the forms attached hereto as Exhibit A. Section 5.03. Advances on Notes. (a) The Borrower may borrow from time to time up to the Loan Amount by requesting Advances hereunder. Each Advance shall be for at least $100,000, provided that the initial Advance on the Tax-Exempt Note shall be for at least. $50,000, and no more than one Advance may be requested in any month. Amounts advanced and repaid on the Notes maybe re-advanced, provided that (i) cumulative Advances on the Tax-Exempt Note may not exceed $40,000,000 and (ii) after cumulative Advances of the Tax-Exempt Note equal $20,000,000, no further Advance will be requested by the Borrower.thereonnnr will the Bank have any obligation to fund any such Advance, unless the Borrower and the Banl~:ha~e on;or prior to the,date of uch Advance received an opinion of Bond Counsel to the effect that taking into account the fact that cumulative advances will exceed $20,000,000, the interest on the Tax-Exempt Note will remain excluded from gross income for federal income tax purposes and-the Note is riot an item of tax preference under Section 57 of the Code. (b) The Bank shall not be obligated to Advance any funds unless (i) no Event of Default has occurred and is continuing, (ii) the Borrower delivers to the,Bank a written request for such Advance in the form of Attachment C, executed by an Authorized Individual, indicating the amount of the Advance requested,. the date on.which such Advance is to be made (which shall be not less than two Business Days after the date such request is received by the Bank) and stating that the representations and warranties of the Borrower contained herein are true and correct as of such date and (iii) the Borrower has simultaneously requested an advance from each payee of any ofthe Other Bank Notes in an aggregate amount equal to the Advance requested hereunder. The Bank will not fund any Advance unless the conditions set forth in (i), (ii) and (iii) above are satisfied, provided that the Bank may in its sole discretion waive any or all such conditions if, and only if, the Bank has received the-prior written.consent of each payee under the Other Bank Notes. B-10 (c) No Advance will be requested by the Borrower on the Tax-Exempt Note, and the Bank will have no obligation to fund any such Advance, unless the Borrower and the Bank have on or prior to the date of such Advance received an opinion of Bond Counsel to the effect that the interest on the Tax-ExemptNote is excluded from gross income.for federal income tax purposes and. the Note is not an item of tax preference under Section 57 of the Code. (d) No Advance will be made unless the request for Advance is accompanied by a certification signed by an Authorized Individual indicating that the Borrower has satisfied the requirements of this Agreement. and of any and all other agreement(s) binding upon the Borrower that limit or condition the Borrower's ability to incur indebtedness such as the Notes, and including calculations demonstrating such compliance. As of the date of this Agreement, the Borrower is also .bound by covenants contained in loan agreements; dated Augusf :26,..19.94, with.Sunshine State Governmental Finance Commission and August I; 2001, with City of Gulf Breeze, Florida and SunTrust Bank. ARTICLE VI EVENTS OF DEFAULT Section 6.01 General.. An "Event of Default" shall bedeemed to-have occurred under this Agreement if: (a) The Borrower shall fail to make any payment of the principal of or interest on the Loan when the same shall become due and payable; or (b) The Borrower does not comply with Section 3.01(c), (d), (e), (f), (j) or (k); or (c) The Borrower shall. default in the performance of or compliance with any Germ or covenant contained in this Agreement.and the Notes, other. than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) written notice thereof to the Borrower by the Bank,. or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement, whichever is earlier; or (d) Any representation or warranty made in writing.by or on behalf of the Borrower in this Agreement or the Notes shall prove to have been false or incorrect in any material respecton the date made or reaffirmed; or (e) The Borrower admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or (f) The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is . adjudged a .bankrupt on, ~ .petition in bankruptcy filed. by or against the Borroy~er, or an order; judgment or decree is entered by any court of competent jurisdiction appointing, without the consent B-11 of the Borrower, a receiver or trustee of the Borrower or of the whole or any part of its property, and ifthe aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) 'The Borrower shawl Elie a` petition or answer .seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State; or (h) The Borrower shall default in the due and punctual payment or performance of covenants related to any of the Other Bank Notes or any obligation for the payment of money to the Bank or any other subsidiary or affiliate of any bank holding company of which the Bank is a subsidiary; or (i) The Borrower shall default in the due and punctual payment of any Competing Debt or an event of default exists with respect to any Competing Debt which results in the acceleration of the time for payment of such debt. or entitles the holder of such Competing Debt to accelerate the time for payment of such debt. Section 6.02 Effect of Event of Default. Except. as: otherwise .provided in the. Notes,. immediately. and without notice, upon .the occurrence of any Event of Default; the Bank may declare all obligations of the Borrower under this Agreement and the Notes to be immediately due and payable without further action of any kind and upon such declaration the Notes and the interest accrued thereon shall become immediately due and payable. In addition, and regardless whether such declaration is or is not made, the Bank may also seek enforcement of and exercise all remedies available to it under any applicable law. A1~tTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder or under the Notes shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies- herein and therein provided are cumulative acid riot exclusive of any reredies-provided by law or iri equity. Section 7.02 Amendments Chafes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified except in writing signed by the Bank and the Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in modifying and/or amending this Agreement at the Borrower's request or behest. None of this Section 7.02, Section 5.03 (b) and Section 7.14 hereof maybe amended except with the prior written consent of the Other Banks B-12 Section 7.03 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 7.04 Severability: If any clause; provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section 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 7.05 Term of Agreement. Except as otherwise specified, in this Agreement, this . Agreement.and all representations,, warranties, covenants and.agreements contained herein or made in writing by the Borrower in: connection herewith shall be in full force .and effect from the date hereof and shall continue in effect as long as the Notes are outstanding. Section 7.06 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method .(provided customary evidence of receipt is obtained); the day after it is sent, if. sent by overnight common carrier service; and five days after it 'is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to the Notice Address. Section 7.07 Applicable Law; Venue. This Agreement shall be construed pursuant to and governed by the substantive laws of the State. The parties waive any objection to venue in any judicial proceeding brought in connection herewith lying in Miami-Dade County, Florida. Section 7.08 Bindin Eg ffect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Borrower shall have no rights to assign any of its rights or obligations hereunder without the prior written consent of the Bank. Section 7.09 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder except as otherwise provided in Section 7.14 hereof. __ Section 7.10 Attorneys' Fees. , To the extent legally permissible, the Borrower and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement or the Notes (including any appeal(s)), the prevailing party shall be entitled to recover costs and attorneys' fees from the other party. Section 7.11 Entire A~eement. Except as otherwise expressly provided, this Agreement and the Notes embody the entire ,agreement and understanding between the parties hereto and B-13 supersede all prior agreements and understandings relating to the subject matterhereof. Attachments A, B and C hereto are a part hereof. Section 7.12 Further Assurances. The parties to this Agreementwill execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements. or instruments and shall. cooperate with one another in all respects for .the .purpose 'of out the transactions contemplated by this Agreement. Section 7.13 Waiver of Jury Trial. This Section 7.13 concerns the resolution of any controversies or claims between the Borrower and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to this Agreement or the Notes (collectively a "Claim"). The parties irrevocably and voluntarily waive anyright they may have to a trial by jury in respect of any Claim. This provision is a material inducement for the parties entering into this Agreement. Section 7.14 The Other Banks. The Borrower~and both of the Other Banks have entered into Loan Agreements (the "Other Agreements"), of even date herewith, whereby both of the Other Banks have extended the City lines of credit in the amount of $20,000,000.00. In the event that any amount is owed to the Bank hereunder and such amount is then due and payable, and an amount is also owed to either or both of the Other Banks under the Other Agreements which amount is then due and payable, then the City and the Bank will cooperate with each.other and with the Other Banks.to ensure that any partial payment made by the City to the Bank and the Other Banks will be shared by the Bank and the-Other Banks pro=rata based upon the relative amounts then due to each. In the event that any amount is owed to the Other Banks and such amount is then due and payable but no amount is then due and payable to the Bank hereunder, the City and the Bank will cooperate with each other and with the Other Banks to ensure that any payment made by the City will first be paid to the Other Banks to the extent of the amount then due to it. The Other Banks are third-party beneficiaries of this Section 7.14 and of Sections 7.02 and 5.03(b) hereof. Section 7.15 Patriot Act. The Bank hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Bank to identify the Borrower in accordance with such Act. B-14 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the date of first set forth above. CITY OF MIAMI BEACH, FLORIDA ... By Name: Matti Herrera Bower Title: Mayor Attest BY: Name: Robert E. Parcher Title: City Clerk BANK OF AMERICA, N.A. By: Name: Ho11yL. Kuhlman. Title: Senior Vice President _ B-15 ATTACHMENT A-1 TO LOAN- AGREEMENT TAX-EXEMPT PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the undersignedmaker (the "Borrower"),apolitical subdivision created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A., or registered assigns (hereinafter, the 'Bank"), the principal sum of $20,000,000.00 or such lesser amount as shall be outstanding hereunder, together. with interest on the principal balance.outstanding at the rate per annum equal to the Applicable Rate (as hereinafter defined) (subject to adjustment as hereinafter provided) based upon a year of 360 days for the actual number of days elapsed. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Bank may designate to the Borrower. Subject to adjustment as hereinprovided, the Applicable Rate is the greater of (i) 2.00% and (ii) the sum of 1.55% plus the LIBOR Rate (hereinafter defined). The $orrower shall pay the Bank the entire unpaid principalbalance hereof, together with all accrued and unpaid interest hereon, on November 18, 2010 (the "Maturity Date"). All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges due the Bank, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code.of 1986,.as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto; (2) "Determination of Taxability" shall mean interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Bank for federal income tax purposes under the Code, which determination or declaration has become final and not subject to further contest or appeal under applicable law. (3) "LIBOR :Rate" is a fluctuating rate of interest equal to the British Bankers Association LIBOR Rate ("BBALIBOR"), as.published by Reuters (orother commercially available source providing quotations of BBA LIBOR. as selected by the Bank from time to time) as determined for each banking day at approximately 11:00 a.m. London time two (2) London Banking Days prior to the date in question, for I7.S. Dollar deposits (for delivery on the first day of such interest period) with a one month term. If such rate is not available at such time for any reason, then the rate for that interest period will be determined by such alternate method as reasonably selected by the Bank as being comparable to BBA LIBOR. A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. Interest will accrue on any day which is not a Business Day at the rate in effect on the immediately preceding Business Day. Upon the occurrence of a Determination of Taxability, the Applicable Rate shall be adjusted to a rate equal to the greater of (i) 3.00% and (ii) the sum of 2.30% plus the LIBOR Rate (the "Adjusted Interest Rate"), as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Borrower shall on the next interest payment date (or if this Note shall have matured, within 30 days after demand by the Bank) hereon pay to the Bank an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to such next interest payment date, and (B) the actual interest paid by Exhibit B-.Attachment A-I-Page 1 .. the Borrower on this Note from the Accrual:Date to.such next~interest payment date; and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Bank and/or former Bank arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. 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. The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or in part at any time without prepayment premium or penalty... Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Borrower shall also be obligated to pay (but only from the Budgeted Revenues) as part of the indebtedness evidenced by this Note,. all costs of collection and enforcement hereof, including such fees as maybe incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the- automatic stay. If any payment hereunder is not made within fifteen (TS) days after it is. due, tFieri the Borrower shall also be obligated to pay as apart of the indebtedness evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment shall be due and payable immediately. Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of an Event of Default, irrespective of a declaration of maturity. The Borrower to the extent permitted by law hereby waives presentment, demand, protest and notice .of dishonor. ` THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCIl'AL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Nate. is issued; in conjunction with a Loan Agreement, dated of even, date herewith between the Borrower and the Bank. (the "Loan Agreement) and is subject to all the terms and conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request Advances from time to time from the Bank hereunder, provided that the outstanding principal amount at any time under this Note and under the Taxable Promissory Note, dated of even date herewith and made by the Borrower payable to the Bank shall not exceed $20,000,000, and provided that amounts borrowed and repaid may be re-borrowed hereunder as provided in the Loan Agreement. All terms, conditions and provisions.of the Resolution and Loan Agreement are by this reference thereto incorporated herein as:a.part of this.Note. Terms used herein in capitalized .form and not otherwise defined herein shall have the`meanings ascribed thereto in the Resolution. This Note is payablesolely from and is secured by a lien upon and pledge of the "Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Borrower is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Budgeted Revenues. Exhibit B-.Attachment A-1-Page 2 This Note-maybe exchanged or transferred but. only. as provided in the Loan Agreement. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of the date hereinafter set forth. The date of this Promissory Note is May 18, 2009, CITY OF MIAMI BEACH, FLORIDA By: Name: Matti Herrera Bower Title: Mayor Exhibit B- Attachment A-1-Page 3 ATTACHMENT A-2 TO LOAN AGREEMENT TAXABLE PROMISSORY NOTB KNOW ALL MEN BY THESE PRESENTS thatthe undersignedmaker (the "Borrower"),apolitical subdivision created and existing pursuant to the: Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A., or registered assigns (hereinafter, the "Bank"), the principal sum of $20,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate per annum equal to the Applicable Rate (as .hereinafter defined) based upon a year of 360 days for the actual number of days elapsed. . Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such, place as the Bank may designate to the Borrower. The Applicable Rate is the greater of (i) 3.00% and (ii) the sum of 2.30% plus the LIBOR Rate (hereinafter defined). The Borrower shall pay the Bank the entire unpaid principalbalance hereof, together with all accrued and unpaid interest hereon, on Nov.ember :1$; 2010 (the "Maturity Date"). All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges due the Bank, and the balance thereof shall apply to the principal sum due. "LIBOR Rate" is a fluctuating rate of interest equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as selected by the Bank from time to time) as determined for each banking day at approximately 11:00 a.m. London time two (2) London $anking Days prior to the date in question, for U. S. Dollar deposits .(for delivery on the.first day of such interest period)..with a one month term: If such rate is not available at such time for any reason, theri the rate for_that interest period will be determined by such alternate method as reasonably selected by the Bank as being comparable to BBA LIBOR. A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. Interest will accrue on any day which is not a Business Day at the rate in effect on the immediately preceding Business Day. The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or in part at any time without prepayment premium or penalty. .Upon the.occurrence.of an'Event of. Default (as, defined in the.-Loan Agreement) then the. Bank may . . declare the entire debtthenremaining unpaid hereunder immediately-due`and payable; and iri any such default and acceleration, the Borrower shall also be obligated to pay (but only from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within fifteen (15) days after it is due, then the Borrower shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment shall be due and payable immediately: . Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of an Event of Default described in the preceding paragraph, irrespective of a declaration of maturity. Exhibit B- Attachment A-2-Page. l The Borrower to the extent permitted bylaw hereby waives presentment, demand, protest and notice of dishonor. . THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR. ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCII'AL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued in conjunction with a Loan Agreement, dated of even date herewith between the Borrower;and the Bank (the "Loan Agreerrient".j and is subject to all the terms and conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request Advances from time to time from the Bank hereunder, provided that the outstanding principal amount at any time under this Note and under the Tax-Exempt Promissory Note, -dated of even ,date ,herewith and made by the Borrower payable to the Bank shall not exceed the principal amount set forth in the first paragraph hereof, and provided that amounts borrowed and repaid maybe re-borrowed hereunder. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined hereinshall have the meanings ascribed thereto in the Resolution.. This Note is payable solely from and is secured by a lien upon and pledge of the "Budgeted Revenues as described in the Loan Agreement: Notwithstanding any other provision of this Note, the Borrower is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Budgeted Revenues. This Note maybe exchanged or transferred but only as provided in the Loan Agreement. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist; happen and be performed precedent to and in the execution, delivery and the issuance of thisNote do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of the date hereinafter set forth. The date of this:Prolnissory. Note is May 18.,.2009. CITY OF MIAMI BEACH, FLORIDA Rv: Name: Matti Herrera Bower Title: Mayor Exhibit B- Attachment A-2-Page 2 ATTACHMENT. B . to .. LOAN AGREEMENT 1.Name of Borrower: City of Miami Beach, Florida. 2. Name of Bank: Bank of America, N.A. 3. Type of Political Subdivision:.IVlunicipality. 4. Authorized Individual(s): 5. Notice Address of Borrower: 6. Notice Address of Bank: Bank of America, N.A. 9000 Southaide Boulevard Building 100 Jacksonville, Florida 32256 7. Loan Amount:$20,000,000.00. 8. Closing Date: May 18, 2009. 9. Other Bank Notes: The $20,000,000 promissory notes (taxable and tax-exempt) dated the same date as the Notes, made by the `Borrower; and payable to the Other Banks. 10. Other Banks: Wachovia Bank, National Association and SunTrust Bank. ATTACHMENT C REQUEST FOR ADVANCE Date: To: Bank of America, N.A. .From: City of 1Vliami Beach, Florida , . Date of Loan Agreement and Promissory Note: Amount of Advance on Tax-Exempt Note: Amount of Advance on Taxable Note: Date of Advance: Purpose of Advance (check all that apply and complete amount): Wastewater $ Potable Water $ Stormwater $ The above-named Borrower requests an Advance under. the Loan Agreement and Promissory Note identified above in the amount set forth above,. and requests that said funds be deposited in the Borrower's account with the Bank maintained for such purpose pursuant to such Loan Agreement. The representations and warranties of the Borrower contained in the Loan Agreement are true and correct as of the date hereof. Attached hereto are the showings, if any, required by Section 5.03 of the Loan Agreement. Proceeds' of the Advance should be wired as follows:, CITY OF MIAMI BEACH, FLORIDA By: Name: Title: