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2018-30616 Resolution RESOLUTION NO. 2018-30616 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING A LOAN IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $15,000,000 FROM RAYMOND JAMES CAPITAL FUNDING, INC., TO PAY COSTS OF VEHICLES AND EQUIPMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND A PROMISSORY NOTE TO EVIDENCE THE OBLIGATION OF THE CITY TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE REPAYMENT OF THE LOAN; AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE LOAN AND THE FINANCING PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach, Florida (the "City") is duly authorized, pursuant to the Constitution of the State of Florida, Chapter 166, Part II, Florida Statutes, as amended, Chapter 159, Part VII, Florida Statutes, as amended, and the Charter of the City (collectively, the "Act"), to borrow money to finance equipment; and WHEREAS, the City is in need of financing to pay costs of vehicles and equipment (the "Financing Program"); and WHEREAS, in connection with the Financing Program, Raymond James Capital Funding, Inc. (the "Lender"), has offered to the City a loan through a line of credit in an aggregate principal amount not to exceed $15,000,000 (the "Loan"); and WHEREAS, the City has determined that it is in the best interests of the City to undertake the Financing Program through the Loan; and WHEREAS, to evidence its obligation to repay the Loan, the City will execute and deliver to the Lender a Loan Agreement (the "Loan Agreement") and a Promissory Note (the "Note"); and WHEREAS, to repay the Loan, the City wishes to covenant to budget and appropriate Non-Ad Valorem Revenues (as defined in the Loan Agreement), in accordance with and subject to the limitations contained in the Loan Agreement and the Note. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. DEFINITIONS. Terms defined in the preambles shall have the meanings set forth in such preambles. All capitalized terms used in this resolution (the "Resolution") which are defined in the Loan Agreement shall have the meanings assigned in the Loan Agreement, unless the context affirmatively requires otherwise. SECTION 2. FINDINGS. The preambles are incorporated as findings. In addition, it is found, determined and declared that: (A) The Financing Program and the Loan are permitted under the Act, are necessary and desirable, are in the public interest and will serve a proper public purpose. (B) In accordance with Section 218.385, Florida Statutes, as amended, undertaking the Financing Program on a negotiated basis through the Loan is in the best interest of the City (rather than a sale through competitive bidding) because it offers (i) borrowing at lower rates than those which the City could command in the market, and (ii) flexibility of financing which could not be obtained in a sale through competitive bidding. SECTION 3. LOAN AUTHORIZED. The Loan in an aggregate principal amount not to exceed $15,000,000 to undertake the Financing Program, as described in this Resolution and in the manner provided in the Loan Agreement, is authorized and approved. SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement, in substantially the form attached as Exhibit "A" to this Resolution, with such changes, alterations and corrections as may be approved by the City Manager of the City (the "City Manager"), after consultation with the Chief Financial Officer of the City (the "Chief Financial Officer") and the City Attorney of the City (the "City Attorney"), such approval to be presumed by the execution by the Mayor of the City (the "Mayor") of the Loan Agreement, is approved by the City. The City authorizes and directs the Mayor to execute and the City Clerk or Deputy City Clerk of the City (the "City Clerk") to attest under the seal of the City the Loan Agreement and to deliver the same to the Lender. SECTION 5. ISSUANCE OF NOTE. The Loan shall be evidenced by the Note. The Note, in substantially the form attached to the Loan Agreement, with such changes, alterations and corrections as may be approved by the City Manager, after consultation with the Chief Financial Officer and the City Attorney, such approval to be presumed by the execution by the Mayor of the Note, is approved by the City. The City authorizes and directs the Mayor to make and execute the Note and to issue and deliver the Note to the Lender. 2 O10-8681 2531/2/A M E R I CAS SECTION 6. SECURITY FOR THE LOAN. The Loan shall be payable solely from Non-Ad Valorem Revenues, in accordance with and subject to the limitations contained in the Loan Agreement and the Note. Neither the Loan nor the Note shall be a general obligation of the City, or a pledge of its faith, credit or taxing power within the meaning of any constitutional or statutory provisions or limitations, but shall be payable solely as provided in the Loan Agreement and Note. The City shall not be obligated to exercise its taxing power to pay the principal of the Loan and the Note, the related interest or other payments or costs. SECTION 7. GENERAL AUTHORITY. The City's officials, officers, attorneys, agents and employees are authorized to do all acts and things and execute and deliver any and all documents necessary by this Resolution, the Loan Agreement or the Note, or desirable or consistent with the requirements of this Resolution, the Loan Agreement or the Note, in order to obtain the Loan, accomplish the Financing Program and provide for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Loan Agreement, the Note and this Resolution, including the execution of any necessary Tax Compliance Certificate and the execution and filing of any necessary form or other document with the Internal Revenue Service with respect to any Advance under the Note. SECTION 8. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the provisions contained in this Resolution shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the Loan Agreement or the Note. SECTION 9. REPEALING CLAUSE. All resolutions or parts of such resolutions of the City in conflict with the provisions contained in this Resolution are, to the extent of such conflict, superseded and repealed. SECTION 10. EFFECTIVE DATE. This Resolution shall become effective immediately upon adoption. 3 010-8681-2531e2/AMERICAS PASSED AND ADOPTED this IV day of /DWW,�I'Pr 2018. Mayor Attest: �F.. .1. . i 400II%Iii . * Clerk ���, \�P <^ NOV 2 6 2016 APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION City Attorney (_pe Date 4 010 8681-253112/AMERICAS Resolutions - R7 V MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: November 14, 2018 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING A LOAN IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $15,000,000 FROM RAYMOND JAMES CAPITAL FUNDING, INC., TO PAY COSTS OF VEHICLES AND EQUIPMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND A PROMISSORY NOTE TO EVIDENCE THE OBLIGATION OF THE CITY TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE REPAYMENT OF THE LOAN; AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE LOAN AND THE FINANCING PROGRAM;AND PROVIDING FOR AN EFFECTIVE DATE. RECOMMENDATION The Administration recommends that the Mayor and City Commission adopt the Resolution. ANALYSIS The City previously had a $37.5 nullion equipment lease line of credit with SunTrust which provided short term financing for the City's equipment needs such as fleet vehicles. Under the prior line of credit, which was in place from 2008 – 2015, the City made draws in an amount required for equipment under the capital budget. When drawn, the amount would be amortized at a fixed interest rate based on a formula and was amortized as level principal and interest payments for a period of up to 10 years. The City made 21 draws under this line totaling $37.4 million, $3.1 million of which remains outstanding as of 9/30/18. The outstanding amounts mature in 2019–2025. On June 6, 2018, the Mayor and City Commission adopted a resolution accepting the recommendation of the Finance and Citywide Projects Committee from its May 18, 2018 meeting, to authorize the issuance of an RFP through the City's Financial Advisor, RBC Capital Markets ("Financial Advisor"), on behalf of the City, for an equipment line of credit in an amount not to exceed $15 million, with the selection of the lender and final tern- for the equipment line of credit subject to approval of the Mayor and City Commission. The City regularly has equipment capital needs that it wishes to finance over a multi-year period. A non-revolving equipment LOC provides a cost-effective and efficient financing mechanism for smaller, short-term loans. The draws convert to a fixed rate loan based on a formula which reflects market conditions at the time of the draw. An equipment LOC in an amount not-to-exceed $15 million over the next 2–3 years should provide sufficient funding for equipment needs during this period. The City has the legal authority to obtain a line of credit pursuant to the Constitution of the State of Florida, Chapter 166, Part II, Florida Statutes, as amended, Chapter 159, Part VII, Florida Statutes, as amended, and the Charter of the City (collectively, the "Act"), to borrow money to finance capital projects. Page 1726 of 1981 The equipment LOC will be secured by a covenant to budget and appropriate from legally available non-ad valorem revenues. In recommending the use of an equipment LOC versus other financing options, the City's CFO worked in conjunction with the City's Financial Advisor, who concurred on the appropriateness and cost-effectiveness of this type of financing. An equipment line of credit provides efficient access to funds for small and shorter-term financings to the extent that the equipment cannot be paid for with cash on hand. Pursuant to the City's Professional Services Agreement with the City's Financial Advisor dated April 24, 2017, the Financial Advisor conducted, on behalf of the City, an RFP process with banks and other lending institutions for the equipment LOC. On August 23, 2018, the Financial Advisor distributed an RFP for an Equipment Line of Credit or Equipment Master Lease on behalf of the City to over 40 financial institutions. On September 6, 2018, the City received 6 proposals for an equipment LOC or master lease from the following institutions: 1) Bank of America Public Capital Corp 2) JP Morgan Chase Bank 3) PNC Equipment Finance 4) Raymond James 5) SunTrust Equipment Finance & Leasing 6) TD Equipment Finance Summary of the proposals with indicative interest rates as of proposal submittal on September 6, 2018 are in Attachment 1. The City expects to primarily use 5 or 7 year fixed rate draws to finance vehicles. Based on the proposals received, the City determined that Raymond James had the most favorable combination of interest rate formula and documentation flexibility. The resolution and loan agreement authorize the City to establish and draw on a LOC which expires on September 30, 2021, for up to $15,000,000 for vehicles and equipment at fixed interest rates based on market conditions and the formula for the desired term at the time of draw with maturities of 5, 7 or 9 years. The draws will have level annual debt service for the selected term. CONCLUSION The Administration requests that the Mayor and City Commission of the City of Miami Beach, Florida, adopt the Resolution authorizing a loan in an aggregate principal amount not to exceed $15,000,000 from Raymond James Capital Funding, Inc., to pay costs of vehicles and equipment, authorizing the execution and delivery of a loan agreement and a promissory note, providing security for the repayment of the loan, authorizing other actions in connection with the loan and providing for an effective date. FINANCIAL INFORMATION Legislative Tracking Finance ATTACHMENTS: Description ❑ Resolution o Resolution Exhibit"A" - Loan Agreement Including Note ❑ Attachment 1: Summary of the Proposals Page 1727 of 1981 RESOLUTION NO. 2018- A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING A LOAN IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $15,000,000 FROM RAYMOND JAMES CAPITAL FUNDING, INC., TO PAY COSTS OF VEHICLES AND EQUIPMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND A PROMISSORY NOTE TO EVIDENCE THE OBLIGATION OF THE CITY TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE REPAYMENT OF THE LOAN; AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE LOAN AND THE FINANCING PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach, Florida (the "City") is duly authorized, pursuant to the Constitution of the State of Florida, Chapter 166, Part II, Florida Statutes, as amended, Chapter 159, Part VII, Florida Statutes, as amended, and the Charter of the City (collectively, the "Act"), to borrow money to finance equipment; and WHEREAS, the City is in need of financing to pay costs of vehicles and equipment (the "Financing Program"); and WHEREAS, in connection with the Financing Program, Raymond James Capital Funding, Inc. (the "Lender"), has offered to the City a loan through a line of credit in an aggregate principal amount not to exceed $15,000,000 (the "Loan"); and WHEREAS, the City has determined that it is in the best interests of the City to undertake the Financing Program through the Loan; and WHEREAS, to evidence its obligation to repay the Loan, the City will execute and deliver to the Lender a Loan Agreement (the "Loan Agreement') and a Promissory Note (the "Note"); and WHEREAS, to repay the Loan, the City wishes to covenant to budget and appropriate Non-Ad Valorem Revenues (as defined in the Loan Agreement), in accordance with and subject to the limitations contained in the Loan Agreement and the Note. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. DEFINITIONS. Terms defined in the preambles shall have the meanings set forth in such preambles. All capitalized terms used in this resolution (the "Resolution") which are Page 1728 of 1981 defined in the Loan Agreement shall have the meanings assigned in the Loan Agreement, unless the context affirmatively requires otherwise. SECTION 2. FINDINGS. The preambles are incorporated as findings. In addition, it is found, determined and declared that: (A) The Financing Program and the Loan are permitted under the Act, are necessary and desirable, are in the public interest and will serve a proper public purpose. (B) In accordance with Section 218.385, Florida Statutes, as amended, undertaking the Financing Program on a negotiated basis through the Loan is in the best interest of the City (rather than a sale through competitive bidding) because it offers (i) borrowing at lower rates than those which the City could command in the market, and (ii) flexibility of financing which could not be obtained in a sale through competitive bidding. SECTION 3. LOAN AUTHORIZED. The Loan in an aggregate principal amount not to exceed $15,000,000 to undertake the Financing Program, as described in this Resolution and in the manner provided in the Loan Agreement, is authorized and approved. SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement, in substantially the form attached as Exhibit "A" to this Resolution, with such changes, alterations and corrections as may be approved by the City Manager of the City (the "City Manager'), after consultation with the Chief Financial Officer of the City (the "Chief Financial Officer') and the City Attorney of the City (the "City Attorney"), such approval to be presumed by the execution by the Mayor of the City (the "Mayor") of the Loan Agreement, is approved by the City. The City authorizes and directs the Mayor to execute and the City Clerk or Deputy City Clerk of the City (the "City Clerk") to attest under the seal of the City the Loan Agreement and to deliver the same to the Lender. SECTION 5. ISSUANCE OF NOTE. The Loan shall be evidenced by the Note. The Note, in substantially the form attached to the Loan Agreement, with such changes, alterations and corrections as may be approved by the City Manager, after consultation with the Chief Financial Officer and the City Attorney, such approval to be presumed by the execution by the Mayor of the Note, is approved by the City. The City authorizes and directs the Mayor to make and execute the Note and to issue and deliver the Note to the Lender. 2 010-8681-2531/2/AMERICAS Page 1729 of 1981 SECTION 6. SECURITY FOR THE LOAN. The Loan shall be payable solely from Non-Ad Valorem Revenues, in accordance with and subject to the limitations contained in the Loan Agreement and the Note. Neither the Loan nor the Note shall be a general obligation of the City, or a pledge of its faith, credit or taxing power within the meaning of any constitutional or statutory provisions or limitations, but shall be payable solely as provided in the Loan Agreement and Note. The City shall not be obligated to exercise its taxing power to pay the principal of the Loan and the Note, the related interest or other payments or costs. SECTION 7. GENERAL AUTHORITY. The City's officials, officers, attorneys, agents and employees are authorized to do all acts and things and execute and deliver any and all documents necessary by this Resolution, the Loan Agreement or the Note, or desirable or consistent with the requirements of this Resolution, the Loan Agreement or the Note, in order to obtain the Loan, accomplish the Financing Program and provide for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Loan Agreement, the Note and this Resolution, including the execution of any necessary Tax Compliance Certificate and the execution and filing of any necessary form or other document with the Internal Revenue Service with respect to any Advance under the Note. SECTION 8. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the provisions contained in this Resolution shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the Loan Agreement or the Note. SECTION 9. REPEALING CLAUSE. All resolutions or parts of such resolutions of the City in conflict with the provisions contained in this Resolution are, to the extent of such conflict, superseded and repealed. SECTION 10. EFFECTIVE DATE. This Resolution shall become effective immediately upon adoption. 3 oWE6a1-2531/2/AMERICAS Page 1730 of 1981 PASSED AND ADOPTED this day of , 2018. Mayor Attest City Clerk APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION Croom ilmo Date 4 0108881.253112/AMERICAS Page 1731 of 1981 EXHIBIT "A" LOAN AGREEMENT (including Note) A-1 G013681-2531/2QMERICAS Page 1732 of 1981 LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of . 2018, and is by and between the City of Miami Beach, Florida, a municipal corporation in the State of Florida, and its successors and assigns (the "Borrower"). and Raymond James Capital Funding. Inc., and its successors and assigns, as holder(s) of the hereinafter defined Note (the"Lender"). The parties hereto, intending to he legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE 1 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 Note, pursuant to Section 5.03 hereof "Agreement" means this Loan Agreement and any and all modifications. alterations, amendments and supplements hereto made in accordance with the provisions hereof "Anti-Terrorism Laws" means any statute, treaty, law (including common law), ordinance, regulation, rule, order. opinion, release, injunction, writ, decree. or award of any Governmental Authority relating to terrorism or money laundering, including Executive Order No. 13224 and the USA Patriot Act. "Authorized Individual" means any one of the individuals identified on Attachment B. "Bond Counsel" means Squire Patton Boggs (US) LLP or such other attorney-at-law or firm of such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and political subdivisions thereof and acceptable to the Lender. "Budgeted Revenues" means the Non-Ad Valorem Revenues budgeted and appropriated pursuant to Section 3.06 hereof "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Lender is lawfully closed. "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. "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 010'8fiB1-6293/4/AMERICAS Page 1733 of 1981 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" means an Event of Default specified in Article VI of this Agreement. "Final Advance Date" means September 30, 2_021. "Governmental Authority" means the government of the United States of America or any political subdivision thereof or any governmental or quasi-governmental entity thereof, including any court, department, commission, board, bureau, agency, administration, central bank, service. district or other instrumentality of any governmental entity or other entity exercising executive. legislative,judicial, taxing. regulatory, fiscal, monetary or administrative powers or functions of • or pertaining to government. or any arbitrator. mediator or other person with authority to bind a party at law. "Loan" means the loan by the Lender to the Borrower contemplated hereby. "Loan Amount" means, in the aggregate, S 15,000,000 principal amount. "Non-Ad Valorem Revenues" means in any fiscal year of the Borrower, all revenues received by the Borrower in such fiscal year that are not derived from ad valorem taxation. "Note" means the Promissory Note in the form attached hereto as Attachment A. "Notice Address" means. As to the Borrower: As set forth on Attachment B As to the Lender: 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. "Principal Office" means, with respect to the Lender, the Notice Address, or such other • office as the Lender may designate to the Borrower in writing. "Project" means the vehicles and equipment approved by the Mayor and City Commission of the Borrower being financed by the Loan. "Resolution" means Resolution No. 2018- adopted by the Mayor and City Commission of the Borrower on November 14. 2018. "Sanctions" means economic or financial sanctions or trade embargoes imposed. administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. "State"means the State of Florida. • 2 01D4691,629 14IAMERICAS Page 1734 of 1981 "Tax Compliance Certificate" means the Tax Compliance Certificate to he executed and delivered concurrently with the first Advance under the Note. 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 he considered a part hereof, shall not in any way modify or restrict any of the tens and provisions hereof, and shall not he 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 Lender that: Section 2.01. Powers of Borrower. The Borrower is a municipal corporation in the State. 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 Note and this Agreement. to secure the Note in the manner contemplated hereby and to perform and observe all the terms and conditions of the Note and this Agreement on its part to he performed and obsen ed. 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, or will have, as the ease may be, at all relevant times. full legal right, power, and authority to execute this Agreement. to make the Note, 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 Note to the Lender and to that end the Borrower warrants that it will take all action and will do all things which it is authorized by law 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 Note. The Note has been duly authorized, executed, issued and delivered to the Lender and constitutes the legal. valid and binding obligation of the Borrower enforceable in accordance with the terms thereof and the terms hereof, and is 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 Note or the execution and delivery of or the performance by the Borrower of its obligations under this Agreement and the Note 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 Note. The making and performing by the Borrower of this Agreement and the Note will not violate any applicable provision of law, and will not result in a material breach of any of the terms of any agreement or instrument to which the Borrower is a party or by which the 3 010-8ee1a293/4IAMERICns Page 1735 of 1981 Borrower is hound. 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 Note. Section 2.04. Pending or Threatened Litigation. There are no actions or proceedings pending against the Borrower or affecting the Borrower or, to the knowledge of the Borrower. threatened, which, either in any case 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 Note or of any action taken or to he taken in connection with the transactions contemplated hereby or thereby. Section 2.05. Financial Information. The financial information regarding the Borrower furnished to the Lender 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 information. ARTICLE III COVENANTS OF THE BORROWER Section 3.01. Affirmative Covenants. For so long as any of the principal amount of or interest on the Note is outstanding or is available to be advanced hereunder or any duty or obligation of the Borrower hereunder or under the Note remains unpaid or unperformed. the Borrower covenants to the Lender as follows: (a) Payment. The Borrower shall pay the principal of and the interest on the Note at the time and place, and in the manner and from the sources provided herein and in the Note. (h) Use of Proceeds. Proceeds from the Note 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 the Lender 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 Lender 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 necessary to maintain its existence until all amounts due and owing from the Borrower to the Lender under this Agreement and the Note 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 Lender or its representatives at all reasonable times at the offices the Borrower. (t) Notice of Liabilities. The Borrower shall promptly inform the Lender in writing of any actual or potential contingent liabilities or pending or threatened litigation of any amount 4 01018661.6290,AJAMERICAS Page 1736 of 1981 that could reasonably he 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 Note. (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. (In) Compliance with Laws. The Borrower shall comply with all applicable federal. state and local laws and regulatory requirements. the violation of which could reasonably he 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 Note. (i) Payment of Document Taxes. In the event the Note or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Borrower shall pay such taxes or reimburse the Lender for any such taxes paid by it. 6) Financial Information. The Borrower will cause an audit to be completed of its books and accounts and shall furnish to the Lender audited year-end financial statements of the Borrower together with a report by an independent certified public accountant acceptable to the Lender stating without qualification unacceptable to the Lender 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 Note with (i) a copy of its annual operating budget tier each fiscal year ending after September 30, 2019 promptly upon request therefor by the Lender, 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, 2018 within 210 days after the end thereof (k) Immunity. To One fullest extent permitted by law, the Borrower will not assert any immunity it may have as a public entity under the laws of the State from lawsuits with respect to the Note and this Agreement; provided, however, that nothing contained herein shall be deemed a waiver in any respect to the Borrower's immunity with respect to tort liabilities. Section 3.02. Additional Debt Payable from Non-Ad Valorem Revenues. For so long as any of the principal amount of or interest on the Note is outstanding or is available to be advanced hereunder or any duty or obligation of the Borrower hereunder or under the Note remains unpaid or unperformed, the Borrower covenants to the Lender that, without the prior written consent of the Lender, but subject to the last sentence of Section 5.03(d) of this Agreement, 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 tine of credit or similar arrangement), other than any Non-Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles ("Enterprise Revenues"), which could, but for such future indebtedness, be lawfully used to pay principal of or interest on the Note (any and all such indebtedness payable from Non-Ad Valorem Revenues, other than Enterprise Revenues, whether now existing or incurred in the 5 010-B5816293191AMERICAS Page 1737 of 1981 future, is referred to as "Competing Debt''), unless(i) the amount of Non-Ad Valorem Revenues. other than Enterprise Revenues. if any, received by the Borrower during the tiscal 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 Mr 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°0 of the maximum amount of principal and interest scheduled to he payable on the Note (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 certifies in writing to the Lender that to the best of his or her knowledge no event has occurred which would cause him or her to believe that the amount of Non-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 he payable on the Note and all Competing Debt during such fiscal year. For purposes of calculating the foregoing. (A) if any indebtedness bears a rate of interest that is not fixed for the entire term of the debt (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) to the extent applicable, the average rate of actual interest borne by such indebtedness during the most recent complete month prior to the date of issuance of such proposed indebtedness. (ii) for tax-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 1-1.1.5 of the Federal Reserve on the last day of the 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 teun thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such swap or cap up to the notional amount of such swap, and provided further that if The Bond Buyer Revenue Bond Index or Statistical Release 1-1.15 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 Lender shall be utilized in the foregoing calculations; (B) any advances under that certain Second Amended and Restated Loan Agreement dated as of July 27, 2018 by and between the Borrower and Wells Fargo Bank. National Association, as the same may be amended from time to time, or any similar other interim indebtedness incurred by the Borrower in anticipation of the incurrence of long-teen indebtedness which has 25% or more of the aggregate principal amount of such indebtedness coming due in any one year (collectively. "Interim Indebtedness") shall, if expected to he refinanced with additional indebtedness prior to maturity, be assumed to he payable over up to ten years as determined by the Borrower on a level debt service basis; and (C) with respect to all advances under any such Interim Indebtedness, the above requirements may be satisfied by a certification at the time of any advance to the extent such certification assumes that the full loan amount under such Interim Indebtedness has been borrowed at the time of such advance so long Ci mo-asai,srasa1AMEPocAS page 1738 of 1981 as the City certifies at the time of any future advances under such Interim Indebtedness that it has not, since the date of such certification, incurred any Competing Debt. Nothing in this Agreement limits the Borrower's ability to incur indebtedness payable from Enterprise Revenues. Section 3.03. Legal Fees and Expenses. The Borrower hereby agrees to pay the fee and expenses of counsel to the Lender in connection with the issuance of the Note in the amount of S , said amount to be due and payable upon the execution and delivery of this Agreement. Section 3.04. Registration and Exchange of Note. The Note is owned by the Lender. The ownership of the Note may only be transferred, and the Borrower will transfer the ownership of the Note, upon written request of the Lender 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 Note. The Lender will not transfer the Note except in compliance with all applicable laws and the Lender may only transfer the Note in whole to one transferee. Section 3.05. Note Mutilated, Destroyed, Stolen or Lost. In case the 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, 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 Lender 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 Note 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 Note solely from the Non-Ad Valorem Revenues budgeted and appropriated for such purpose as provided herein, and nothing in the Note or this 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 Note. The City pledges and grants a lien on the Budgeted Revenues to secure the City's payment obligations hereunder and under the Note. Except with respect to the Budgeted Revenues, 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 Note or for the performance of any pledge, obligation or agreement for payment undertaken by the Borrower hereunder or under the Note from any property other than the Budgeted Revenues. The Lender 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 Note or this Loan Agreement from any source other than the Budgeted Revenues. The Borrower covenants that, so long as Note shall remain unpaid or any other amounts arc owed by the Borrower under this Agreement or the Note, it will budget and 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 Note and other amounts owed under this 7 010.9ee1a293,4/AMERICAS Page 1739 of 1981 Agreement as the same shall become due. In the event that the amount previously budgeted fir such purpose is ever insufficient to pay such principal and interest on the Note 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 Note and such other amounts. Such covenants to budget and appropriate from Non-Ad Valorem Revenues shall he 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 Note and such other amounts. The Lender 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 Note. Any Non-Ad Valorem Revenues which are restricted by a contract in existence on the date hereof from being used to pay principal and interest on the Note shall not he subject to the covenant to budget and appropriate, to the extent provided therein. 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 Note shall not be subject to the covenant to budget and appropriate. Any source of Non-Ad 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 on the Note shall not be subject to the covenant to budget and appropriate. Section 3.07. Officers and Employees of the Borrower Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the Note 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 Note is solely a corporate one, limited as provided in the preceding Section 3.06, (b) that no personal liability 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 11 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 Note, 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 Note on the pan of the Borrower. 8 01086816293/4IAMERICAS Page 1740 of 1981 Section 3.0S. Business Days. In any case where the due date of interest on or principal of the Note is nota 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 Lender. Section 3.09. Tax Representations, Warranties and Covenants of the Borrower. The Borrower agrees to comply with the provisions of the Tax Compliance Certificate. ARTICLE IV CONDITIONS OF LENDING The obligations of the Lender to lend hereunder are subject to the following conditions precedent: Section 4.01. Representations and Warranties. The representations and warranties set forth in this Agreement and the Note 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 he in compliance with all the terms and provisions set forth in this Agreement and the Note on its part to he 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 Lender shall have received the following supporting documents, all of which shall he satisfactory in form and substance to the Lender (such satisfaction to be evidenced by the purchase of the Note by the Lender): (a) The opinion of the City Attorney of the Borrower regarding the due authorization, execution, delivery, validity and enforceability of this Agreement and the Note; (b) The opinion of Bond Counsel regarding the validity and enforceability of the Agreement and the Note and the exemption of the Note from certain taxes imposed under the laws of the State; (c) Executed originals or copies. as applicable, of this Agreement, the Note and the Resolution; and , (d) Such additional supporting documents as the Lender may reasonably request. ARTICLE V FUNDING THE LOAN Section 5.01. The Loan. The Lender hereby agrees to loan to the Borrower the amount of up to the Loan Amount to be evidenced by the Note to provide funds to finance the Costs of the Project upon the terms and conditions set forth in this Agreement and the Note. The 9 010.8681-629314IAMERICAS Page 1741 of 1981 Borrower agrees to repay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth in this Agreement and the Note. Section 5.02. Description and Payment Terms of the Note. To evidence the Loan, the Borrower shall issue and deliver to the Lender the Note in the form attached hereto as Attachment A. Section 5.03. Advances on Note. (a) Until the Final Advance Date, the Borrower may borrow from time to time up to the Loan Amount by requesting Advances hereunder. Each Advance shall he for at least S500,000, provided that the initial Advance may be for a lesser amount but shall be no less than S50,000. and no more than one Advance may be requested in any month. Amounts advanced and repaid may not be re-advanced. (b) The Lender shall not be obligated to Advance any funds unless (i) no Event of Default has occurred and is continuing and the representations and warranties of the Borrower contained herein are true and correct, and (ii) the Borrower delivers to the Lender 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 repayment period for such Advance, the date on which such Advance is to be made(which shall be not less than five Business Days after the date such request is received by the Lender) and stating that no Event of Default has occurred and is continuing and the representations and warranties of the Borrower contained herein are true and correct as of such date. The Lender will not fund any Advance unless the conditions set forth in (i) and (ii) above are satisfied, provided that the Lender may in its sole discretion waive any or all such conditions. Advance requests received after 10:00 a.m. shall be deemed to have been received on the next Business Day. (c) No Advance will be requested by the Borrower on the Note and the Lender will have no obligation to fund any such Advance, unless the Borrower and the Lender have on or prior to the date of such Advance received an opinion of Bond Counsel to the effect that the interest on the Note 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 Note, and including calculations demonstrating such compliance. Notwithstanding anything to the contrary contained in this Agreement, the requirements of Section 3.02 of this Agreement with respect to all Advances may be satisfied by a certification delivered to the Lender at the time of any Advance to the extent such certification assumes that the full Loan Amount has been borrowed under such Advance so long as the City certifies at the time of any future Advances that it has not, since the date of such certification, incurred any Competing Debt. (e) On or prior to the date of each Advance, the Lender will deliver to the Borrower a schedule containing the monthly principal and interest payments due with respect to such Advance. which schedule shall be conclusive absent manifest error. to 010.8681629314/AMERICAS Page 1742 of 1981 ARTICLE VI EVENTS OF DEFAULT Section 6.01. General. An "Event of Default" shall he deemed to have occurred under this Agreement if: (a) The Borrower shall fail to make any payment of(i) the principal of or interest on the Loan when the same shall become due and payable, or (ii) any other amount payable hereunder when the same shall be due and payable and such failure shall continue for a period of twenty(20)days; or (h) The Borrower does not comply with Section 3.01(c), (d), (e), (1) or (j) or Section 3.02; or (c) The Borrower shall default in the performance of or compliance with any term or covenant contained in this Agreement and the Note, other than a tern 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 Lender, or (ii) the Lender 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 tins Agreement or the Note shall prove to have been false or incorrect in any material respect , on 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 (() The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Borrower, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Borrower, a receiver or trustee of the Borrower or of the whole or any part of its property, and if the 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 shall file 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 other obligation for the payment of money to the Lender or any other subsidiary or affiliate of any bank holding company of which the Lender 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 II 0108601-6293/4IAMERICA0 Page 1743 of 1981 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:or (j) a debt moratorium, debt restructuring. debt adjustment or comparable restriction is imposed on the repayment when due and payable of the principal of or interest on any debt of the Borrower by the Borrower or any Governmental Authority with appropriate jurisdiction: or (k) any material provision of this Agreement, the Note or the Resolution shall at any time for any reason cease to be valid and binding on the Borrower as a result of any legislative or administrative action by a Governmental Authority with competent jurisdiction or shall be declared in a final non-appealable judgment by any court with competent jurisdiction to be null and void, invalid, or unenforceable. or the validity or enforceability thereof shall be publicly contested by the Borrower. Section 6.02. Effect of Event of Default. Except as otherwise provided in the Note, immediately and without notice, upon the occurrence of any Event of Default, the Lender may declare all obligations of the Borrower under this Agreement and the Note to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable. In addition, and regardless whether such declaration is or is not made, all amounts due and payable hereunder and the Note shall bear interest at the Default Rate (as defined in the Note) and the Lender may terminate its commitment to make Advances hereunder and may also seek enforcement of and exercise all remedies available to it under any applicable law. ARTICLE VII MISCELLANEOUS • Section 7.01. No Waiver; Cumulative Remedies. No failure or delay on the part of the Lender in exercising any right, power, remedy hereunder or under the Note shall operate as a waiver of the Lender'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 and not exclusive of any remedies provided by law or in equity. Section 7.02. Amendments. Changes or Modifications to the Agreement. This Agreement and the Note shall not be amended, changed or modified except in writing signed by the Lender and the Borrower. The Borrower agrees to pay all of the Lender's costs and reasonable attorneys' fees incurred in modifying and/or amending this Agreement at the Borrower's request or behest. Section 7.03. Counterparts. This Agreement may he executed in any number of counterparts, each of which, when so executed and delivered, shall he 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. 12 o1oE681L29a4/AMERICAS Page 1744 of 1981 Section 7.04. Severability. If any clause, provision or section of this Agreement shall he 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 he 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 Note 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. it' 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 or the Southern District of Florida, and applicable appellate courts. Section 7.08. Binding Effect; Assignment. This Agreement shall he 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 Lender. 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. Section 7.10. Attorneys Fees. To the extent legally permissible. the Borrower and the Lender agree that in any suit, action or proceeding brought in connection with this Agreement or the Note (including any appeal(s)), the prevailing party shall be entitled to recover costs and attorneys' fees from the other party. Section 7.11. Entire Agreement. Except as otherwise expressly provided, this Agreement and the Note embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. Attachments A, B and C hereto are a part hereof. Section 7.12. Further Assurances. The parties to this Agreement will 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. 13 010-8681-6293/4/AMERICAS Page 1745 of 1981 Section 7.13. Waiver of Jury Trial. This Section 7.13 concerts the resolution of any controversies or claims between the Borrower and the Lender. whether arising in contract, tort or by statute, that arise out of or relate to this Agreement or the Note(collectively a "Claim"). The parties irrevocably and voluntarily waive any right 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 Ageement. Section 7.14. Patriot Act. The Lender 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 intbmiation that will allow the Lender to identify the Borrower in accordance with the USA Patriot Act. The Borrower, and to its knowledge, its officers and employees are in compliance with Anti-Terrorism Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Person. None of the Borrower or. to its knowledge, any of its officers or employees is a Sanctioned Person. No Advance or use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Terrorism Law or applicable Sanctions. 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: Dan Gelber Tide: Mayor Attest By: Name: Rafael E. Granado Title: City Clerk RAYMOND JAMES CAPITAL FUNDING, INC. APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION By: ' n (_ rV '3tt g Name: ►- b` Title: City Attorney 7„o DW V� 14 010-8081.6993/4/AMERICAS Page 1746 of 1981 ATTACHMENT A PROMISSORY NOTE KNOW' ALL MEN BY THESE PRESENTS that the undersigned maker (the "Borrower'), a municipal corporation created and existing pursuant to the Constitution and the laws of the State of Florida. for value received. promises to pay from the sources hereinafter provided. to the order of Raymond James Capital Funding. Inc., or registered assigns (hereinafter, the "Lender"), the principal sum of 515,000,000 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 (hereinafter defined) (subject to adjustment as hereinafter provided)based upon a year of twelve 30-day months. 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 Lender may designate to the Borrower. The"Applicable Rate" is; (I) For Advances (as defined in the Loan Agreement hereinafter defined) payable by the Borrower over sixty (60) months, the 3-year constant maturity U.S. Treasury Index multiplied by 75.50% plus 0.72%; (2) For Advances payable by the Borrower over eighty-four (84) months, the 5-year constant maturity U.S. Treasury Index multiplied by 75.50°o plus 0.71%; and (3) For Advances payable by the Borrower over one hundred eight (103) months, the 7-year constant maturity U.S. Treasury Index multiplied by 75.50% plus 0.94%. The determination of the Applicable Rate by the Lender shall he conclusive absent manifest error. The Borrower shall pay the Lender the principal of and interest on each Advance in equal monthly installments on the first Business Day (as defined in the Loan Agreement) of each month, commencing on the month immediately succeeding such Advance, as set forth in a !' schedule provided by the Lender to the Borrower on or prior to the date of such Advance, and the entire unpaid principal balance thereof, together with all accrued and unpaid interest thereon, on the final payment date for such Advance set forth in such schedule. The schedule prepared by the Lender shall he conclusive absent manifest error. All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges due the Lender, and the balance thereof shall apply to the principal sum due. A-I 919-8681.639314/AMERICAS Page 1747 of 1981 As used in this Note, (I) "Code' means the Internal Revenue Code of 1986. as amended, and ally Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. (2) "Determination of Taxability"means 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 Lender 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) "Taxable Rate" means a rate equal to the U.S. Treasury Index times that percentage which after the Determination of Taxability will result in the same federal after-tax yield to the Lender as before said Determination of Taxability. (4) "U.S. Treasury Index" means the applicable constant maturity United States Treasury Bond rate as reported on the United States Department of the Treasury Daily Treasury Yield Curve Table website (haps:. www.Ire:aurv.�Lov resoure- centerdata-quart-center'interect-rates' 'aues:TextView.asoxi'data !yield) (i) with respect to any Advance, five Business Days prior to the applicable Advance, and (ii) with respect to the Taxable Rate, on the date of computation of the Taxable Rate. In the event a Determination of Taxability shall have occurred, the rate of interest on this Note shall be increased to the Taxable Rate, effective retroactively to the date on which the interest payable on this Note is includable for federal income tax purposes in the gross income of the Lender. In addition. the Lender shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States of America by the Lender as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall he paid by the Borrower within sixty (60) days following the Determination of Taxability and demand by the Lender. In the alternative, in the event that interest on this Note during any period becomes partially taxable as a result of a Determination of Taxability applicable to less than all of this Note, then the interest rate on this Note shall he increased during such period by an amount equal to: (A-B) x C where: (A) "A"equals the Taxable Rate(expressed as a percentage); (B) "B" equals the interest rate on this Note(expressed as a percentage); and (C) "C" equals the portion of this Note the interest on which has become taxable as the result of such tax change(expressed as a decimal). In addition, the Lender shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that arc required to be paid to the United States of America by the Lender as a result of such Determination of Taxability. All such additional interest, A-2 o10 11o81-6293/4/AMERICA$ Page 1748 of 1981 additions to tax, penalties and interest shall be paid by the Borrower within sixty (60) days following the Determination of Taxability and demand by the Lender. In the event that the maximum effective federal corporate tax rate (the "Maximum Corporate Tax Rate") during any period with respect to which interest shall be accruing on this Note on a tax-exempt basis, decreases from the Maximum Corporate Tax Rate then in effect, the interest rate on this Note shall be adjusted to the product obtained by multiplying the Applicable Rate then in effect by a fraction equal to (I-A divided by I-B). where A equals the Maximum Corporate Tax Rate in effect as of the date of adjustment and B equals the Maximum Corporate Tax Rate in effect on the date of the original issuance of this Note(21%). So long as any portion of the principal amount of this Note or interest hereon remains unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any federal or Florida public body or governmental agency which changes the basis of taxation of interest on this Note or causes a reduction in yield on this Note (other than by reason of a change described above) to the Lender, including without limitation the imposition of any excise tax or surcharge thereon. or (b) if, as result of action by any federal or Florida public body or governmental agency, any payment is required to be made by, or any federal, Florida state or Florida local income tax deduction is denied to, the Lender (other than by reason of a change described above or by reason of any action or failure to act on the part of the Lender), by reason of the ownership of this Note, the Borrower shall reimburse the Lender within five (5) days after receipt by the Borrower of written demand for such payment. and, to the extent permitted by law. the Borrower agrees to indemnify the Lender against any loss, cost, charge or expense with respect to any such change. The determination of the after-tax yield calculation shall he calculated by the Lender, and such calculation, in the absence of manifest error. shall be binding on the Borrower and the Lender. The portion of the principal of and interest on this Note allocable to any Advance may be prepaid at the option of the Borrower in whole, but not in part. at any time on or atter the first anniversary date of such Advance, without prepayment premium or penalty, upon thirty (30) days prior written notice by the Borrower to the Lender. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Lender 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 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. Any amount payable to the Lender hereunder which is not paid when due shall bear interest at the Default Rate. For purposes of this Note, "Default Rate" means the Prime Rate plus 4%. The Default Rate shall be determined as of the day immediately following the date on which any amount payable to the Lender hereunder is not paid when due. A-3 0168681-6299/4/AMERICAS Page 1749 of 1981 Anything provided herein or in this Note to the contrary notwithstanding, in no event shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum Rate until such time as interest shall accrue on this Note in an amount (the"Excess Interest') that would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon the final maturity date of this Note, in consideration for the limitation of the rate of interest otherwise payable on this Note, the Borrower shall pay, to the extent permitted by law, to the • Lender a fee equal to the amount of the unpaid amount of all unpaid deferred Excess Interest. "Maximum Rate" means the maximum rate of interest permitted for non-rated governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from time to time. 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 PRINCIPAL 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 Lender(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 Lender hereunder, provided that the outstanding principal amount at any time under this Note shall not exceed the principal sum set forth in the first paragraph hereof Amounts advanced and repaid may not be re-advanced. All terms, conditions and provisions of Resolution No. 2018- adopted by the Mayor and City Commission of the Borrower and the 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 Loan Agreement. 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 properly other than the Budgeted Revenues. This Note may be 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 A-4 010-66814293141AMER1CAS Page 1750 of 1981 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 . 2018. CITY OF MIAMI BEACH. FLORIDA By: Name: Dan Gelber Title: Mayor • • A-5 010-6661-6293/4/AMERICAS Page 1751 of 1981 ATTACHMENT I. Authorized Individual(s): John Woodruff, Chief Financial Officer Allison R. Williams, Deputy Finance Director 2. Notice Address of Borrower: City of Miami Beach, Florida 1700 Convention Center Drive 3`a Floor Miami Beach, Florida 33139 Attention: Chief Financial Officer 3. Notice Address of Lender: Raymond James Capital Funding, Inc. 710 Carillon Parkway .. St. Petersburg, Florida 33716 Attention: B-I 010-8681.6293141AMERICAS Page 1752 of 1981 ATTACHMENT C REQUEST FOR ADVANCE Date: To: Raymond James Capital Funding, Inc. From: City of Miami Beach, Florida Amount of Advance: S 60-month Repayment / 84-month Repayment / I08-month Repayment Date of Advance: Purpose of Advance(description and amount): - S - S - S The above-named Borrower requests an Advance under the Loan Agreement dated as of 2018 (the "Loan Agreement") and the Promissory Note dated , 2018 in the amount set forth above. The representations and warranties of the Borrower contained in the Loan Agreement arc true and correct as of the date hereof and no Event of Default has occurred and is continuing. Attached hereto are the showings, if any, required by Section 5.03 of the Loan Agreement. including the opinion(s) of Bond Counsel required thereunder. Proceeds of the Advance should be wired as follows: CITY OF MIAMI BEACH, FLORIDA By: Name: Title: C-I 01O-86B1d293/41AMERICAS Page 1753 of 1981 2 2 ;i92g , © , ` Da5TgE n62g23- 6482 2rP128D2n2- \ 7 \: / r ) () , f; : i ) \ o § w / - _ ) >2° 0 g ' SarDUr) apMf% 42 ° - 2 -2flaDF H evfl /\ / \\ \ \ z /-n -N . \ \ / ) \ Og 42 2cn ;\ a } x - 9 -// \ / = / a2 : t » EDz nJJg\ \ s ab § \; \ » sS � : 6 \ 5/ \\ /\ \ / \ /q } /\ \ c \ d \ / ) 9 \ \ } i \ t ; _ - !!! i ! - . d / / > Q G / o \ \{ { a \ /G\ / 61 \ } / \jC \ \g / /\ / « _ » 0r ! / ; 2t I-I // / , ° _ - / \ s / sx \ \ \ / Q CO/\ \/ 6.df / om _ aO \ 9188 : =1 re \ \ \ / t , , , , ! ) ) E{{\ ) } w b. ) ! 0 ! ) ` ` ^ ) \ / \ / 'rigd Ed D © : a /; a / / \ \ or to o 0 / « _ c / ) ! ; ; a ,! ! ! , l - ; i , } \ / i \ � \ � / \ /\ // ) \ EL \ . ! , ! ! ; ! \ ! , / \ \ , ° =