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11 ORDINANCE NO. 2 An Ordinance of the Mayor and City Commission of the City of South 3 Miami, Florida authorizing a loan in a principal amount not to exceed 4 $7,900,000.00 to refund certain of the City's outstanding indebtedness, to pay 5 the Internal Revenue Service amounts owed pursuant to certain settlement 6 agreements and related costs thereof and to pay the costs of issuance of such 7 loan; approving the form of a taxable Revenue Note, Series 2011 and loan 8 agreement; authorizing certain officials of the City to take any actions 9 required and to enter into any documents necessary for the prepayment of its 10 loans with SunTrust Bank and the Florida Municipal Loan Council 11 including, if necessary, executing on behalf of the City one or more escrow 12 deposit agreements. 13 WHEREAS, the City of South Miami, Florida (the "Issuer "), jointly with the Florida 14 Municipal Loan Council ( "FMLC ") made a submission to the Internal Revenue Service ( "IRS ") 15 under the Voluntary Closing Agreement Program ( "VCAP ") to resolve issues arising in 16 connection with the financing of a parking garage in the City of South Miami from a portion of 17 the proceeds of (i) the FMLC's Revenue Bonds, Series 2002A (the "2002 FMLC Bonds "), which 18 proceeds were loaned to the Issuer pursuant to a Loan Agreement dated as of May 1, 2002 19 between the Issuer and the FMLC (the "First FMLC Loan"), and (ii) the FMLC's Revenue 20 Bonds, Series 2006 ( "2006 FMLC Bonds "), which proceeds were loaned to the Issuer pursuant to 21 a Loan Agreement dated as of December 1, 2006 between the Issuer and the FMLC (together 22 with the First FMLC Loan, the "FMLC Loans "), and the Issuer, separately but as part of the 23 same submission to the IRS, requested resolution of the same issues as to a portion of a Loan 24 Agreement between the City and SunTrust Bank (the "Bank "), dated as of April 7, 2009 (the 25 "2009 Loan "), which submission was accepted by the IRS under VCAP; and 26 WHEREAS, the IRS made a proposal (i) to the Issuer and the FMLC jointly to enter into 27 a closing agreement to resolve all issues for the 2002 FMLC Bonds and the 2006 FMLC Bonds 28 and (ii) to the Issuer to enter into a closing agreement to resolve all issues for the 2009 Loan 29 (such closing agreements referred to herein collectively as the "Closing Agreements "); and 30 WHEREAS, the Issuer, pursuant to Resolution No. 83 -11 -13397 adopted on May 26, 31 2011, accepted the IRS offer and agreed to enter into the Closing Agreements in substantially the 32 form negotiated with the IRS, contingent only on the Issuer's payment of the agreed upon 33 settlement amount and the Issuer's prepayment of the 2009 Loan and the FMLC's defeasance and 34 redemption, as applicable, of a portion of the 2002 FMLC Bonds and the 2006 FMLC Bonds 35 from funds provided by the Issuer, in the amounts prescribed by the IRS in the Closing 36 Agreements; and 37 WHEREAS, in furtherance of the Closing Agreements with the IRS, the Issuer desires to 38 issue its Taxable Revenue Note, Series 2011 (the "Note ") to provide funds to finance on a 39 taxable basis (i) the refinancing of the hereinafter defined Refinanced Loans, (ii) the payment of 40 the settlement amount owed to the IRS pursuant to the Closing Agreements and costs related 41 thereto and (iii) the payment of costs of issuance of the loan and Note; and 1 WHEREAS, after review of proposals submitted by a number of banks in response to a 2 request for proposals issued by the Issuer, the Issuer's financial advisor, First Southwest 3 Company (the "Financial Advisor ") has recommended that the Issuer award the purchase and 4 sale of the Note to SunTrust Bank (the "Bank ") with the interest rate, maturities, redemption 5 provisions and other terms established herein or in the Loan Agreement (defined below) or the 6 Note; 7 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY 8 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: 9 Section 1. Authority for this Ordinance. This Ordinance is enacted pursuant to Article 10 VIII, Section 2 of the Constitution of the State of Florida, Part 11, Chapter 166, Florida Statutes, 11 and other applicable provisions of law (collectively, the "Act "). 12 Section 2. Definitions. Words and phrases used herein in capitalized form and not 13 otherwise defined herein (including, without limitation, in the preamble hereto) shall have the 14 meanings ascribed thereto in the Loan Agreement (hereinafter defined) and, in addition, the 15 following words and phrases shall have the following meanings: 16 "Authorized Signatories" means the Mayor or Vice Mayor of the Issuer, or in their 17 absence or unavailability, the City Manager of the Issuer, and the Clerk. 18 "Clerk" shall mean the Clerk of the Issuer, or such other person as may be duly 19 authorized to act on her behalf, including, without limitation, the Deputy Clerk. 20 "Loan Amount" means not to exceed $7,900,000.00 21 Section 3. Authorization of Transaction. In order to obtain funds to (i) refinance the 22 2009 Note Loan in whole and portions of the FMLC Loans required to be refinanced in order to 23 comply with the Closing Agreement relating to the 2002 FMLC Bonds and the 2006 FMLC 24 Bonds (collectively, the "Refinanced Loans "), (ii) the payment of the settlement amount owed to 25 the IRS pursuant to the Closing Agreements and costs related thereto, and (iii) pay the costs of 26 issuance of the Note, the Issuer is authorized to obtain a taxable loan (the "Loan ") and to borrow 27 an amount not to exceed the Loan Amount from the Bank. 28 Because of prevailing and anticipated market conditions and the nature of the Loan, and 29 taking into account the advice of the Finance Financial Advisor, it is not feasible, cost - effective 30 or advantageous for the Issuer to enter into the Loan through a competitive sale, and it is in the 31 best interest of the Issuer to accept the Loan from the Bank in a principal amount not to exceed 32 the Loan Amount, at a negotiated sale upon the terms and conditions outlined herein and in the 33 Loan Agreement and the Note and as determined by the Authorized Signatories executing the 34 Loan Agreement and the Note in accordance with the terms hereof. 35 Prior to its execution and delivery of the Loan Agreement and the Note, the Issuer shall 36 have received from the Bank a disclosure statement containing the information required by 37 Section 218.385(6), Florida Statutes, and a Truth -in- Bonding Statement pursuant to Section 38 218.385(2) and (3), Florida Statutes, and no further disclosure is or shall be required by the 39 Issuer. -2- 1 Section 4. Loan Agreement and Note. The Issuer is authorized to execute a Loan 2 Agreement with the Bank in substantially the form attached hereto as Exhibit "A" (the "Loan 3 Agreement ") and to make and deliver to the Bank the Note in substantially the form attached to 4 the Loan Agreement. The forms and terms of the Loan Agreement attached hereto and the Note 5 attached to the Loan Agreement are hereby approved, and the Authorized Signatories are 6 authorized to execute and deliver the same, with such changes, insertions, omissions and filling 7 of blanks as may be approved by the Authorized Signatories, such approval to be conclusively 8 evidenced by the execution thereof by the Authorized Signatories. 9 Section 5. Loan Agreement and Note Not to be General Obligation or 10 Indebtedness of the Issuer. The Loan Agreement and Note and the obligations of the Issuer 11 thereunder shall not be deemed to constitute general obligations or a pledge of the faith and 12 credit of the Issuer, the State of Florida or any political subdivision thereof within the meaning of 13 any constitutional, legislative or charter provision or limitation, but shall be payable solely from 14 and secured by a lien upon and a pledge of (i) the Non -Ad Valorem Revenues actually budgeted 15 and appropriated and deposited into the Revenue Note, Series 2011 Debt Service Account, which 16 is hereby created (the "Debt Service Account "), to pay debt service payments and any other 17 amounts due and payable on or under the Loan Agreement and the Note and (ii) all funds on 18 deposit in the Debt Service Account (including any investment securities on deposit therein) and 19 all investment earnings on any such funds (collectively, the "Pledged Funds "), in the manner and 20 to the extent herein and in the Loan Agreement provided. No holder or owner of the Note shall 21 ever have the right, directly or indirectly, to require or compel the exercise of the ad valorem 22 taxing power of the Issuer or any other political subdivision of the State of Florida or taxation in 23 any form on any real or personal property for any purpose, including, without limitation, for the 24 payment of debt service with respect thereto, or to maintain or continue any activities of the 25 Issuer which generate user service charges, regulatory fees or other non -ad valorem revenues, 26 nor shall any holder or owner of the Note be entitled to payment of such principal and interest 27 from any other funds of the Issuer other than the Pledged Funds, all in the manner and to the 28 extent herein and in the Loan Agreement provided. The Loan Agreement and the Note and the 29 indebtedness evidenced thereby shall not constitute a lien upon any real or personal property of 30 the Issuer, or any part thereof, or any other tangible personal property of or in the Issuer, but 31 shall constitute_a lien only on.the Pledged Funds all in the manner and to the extent provided 32 herein and in the Loan Agreement. 33 Funds in the Debt Service Account, until applied to the payment of debt service on the 34 Note, may be invested in investments authorized by law and meeting the Issuer's written 35 investment policy and as permitted hereby, which investments shall mature no later than the date 36 on which moneys therein shall be needed to pay debt service on the Note. 37 Section 6. Pledge. The payment of the principal of and interest under the Loan 38 Agreement and the Note shall be secured forthwith equally and ratably by an irrevocable lien on 39 the Pledged Funds, all in the manner and to the extent provided herein and in the Loan 40 Agreement. The Issuer does hereby irrevocably pledge such Pledged Funds to the payment of 41 the principal of, premium, if any, and interest under the Loan Agreement and the Note. -3- 1 Section 7. Approval of Refunding and Payments under Closing Agreements. 2 The refinancing of the Refinanced Loans is hereby approved and authorized, subject to the 3 issuance of the Note for such purpose in accordance with the terns hereof. 4 There is hereby authorized the giving of notice by the Issuer, to the extent required by the 5 terms of the documents related to the Refinanced Loans, with respect to the Refinanced Loans. 6 The Authorized Signatories are each hereby authorized to take the necessary actions and to 7 execute the necessary documents to provide for the giving of such notice in accordance with the 8 terms of the applicable documents for the Refinanced Loans. Further, if after consultation with 9 the Financial Advisor and the City Attorney, it is determined to be necessary to enter into one or 10 more Escrow Deposit Agreements with FMLC and an escrow agent selected by FMLC to 11 defease either or both of the 2002 FMLC Bonds or the 2006 FMLC Bonds, the Authorized 12 Signatories are each authorized to enter into such agreements and the Issuer is authorized to pay 13 any fees and expenses related thereto. 14 The Issuer, pursuant to Resolution No. 83 -11 -13397 adopted on May 26, 2011, has 15 previously authorized the City Manager to enter into the Closing Agreements with the IRS. 16 Subject to the issuance of the Note, the Issuer hereby authorizes the payment of the amounts due 17 under the Closing Agreements and related costs thereto, including, without limitation, the 18 counsel fees of the FMLC, as may be appropriate, from proceeds of the Loan. 19 Section 8. Authorizations. The Authorized Signatories are hereby authorized to 20 execute and deliver on behalf of the Issuer the Loan Agreement and the Note as provided hereby. 21 All officials and employees of the Issuer, including, without limitation, the Authorized 22 Signatories, are authorized and empowered, collectively or individually, to take all other actions 23 and steps, and to execute all instruments, documents, and contracts on behalf of the Issuer, as 24 they shall deem necessary or desirable in connection with the completion of the Loan and the 25 carrying out of the intention of this Ordinance and the refinancing of the Refinanced Loans. The 26 City Attorney is hereby authorized to approve the form and sufficiency of the Loan Agreement, 27 Note and Escrow Deposit Agreement(s) and to take all other actions and steps necessary or 28 desirable in connection with the completion of the Loan and the carrying out of the intention of 29 this Ordinance and the refinancing of the Refinanced Loans. 30 Section 9. Separate Accounts. The moneys required to be accounted for in the Debt 31 Service Account may be deposited in a single bank or other account, and funds allocated to such 32 accounts may be invested, together with other funds of the Issuer, in a common investment pool, 33 provided that adequate accounting records are maintained to reflect and control the restricted 34 allocation of moneys on deposit therein and such investments for the various purposes of such 35 accounts. The designation and establishment of the Debt Service Account shall not be construed 36 to require the establishment of any completely independent, self-balancing funds or accounts, but 37 rather is intended solely to constitute an earmarking of certain revenues for certain purposes. 38 Section 10: Codification. The provisions of this Ordinance shall become and be made 39 part of the Code of Ordinances of the City of South Miami as amended; that the sections of this 40 Ordinance may be renumbered or re- lettered to accomplish such intention; and that the word 41 'ordinance" may be changed to "section" or other appropriate word. 42 1 Section 11. Severability. If any section, clause, sentence, or phrase of this Ordinance is 2 for any reason held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in 3 any context by a court of competent jurisdiction, this holding or finding shall not affect any other 4 provision herein or render any other provision (or such provision in any other context) invalid, 5 inoperative or unenforceable to any extent whatever. 6 Section 12. Ordinances in Conflict. All ordinances or parts of ordinances and all 7 section and parts of sections of ordinances in direct conflict herewith are hereby repealed. 8 However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, 9 that give the appearance of being in conflict when the two ordinances can be harmonized or 10 when only a portion of the ordinance in conflict needs to be repealed to harmonize the 11 ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby 12 amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed 13 to harmonize the two ordinances shall be repealed. 14 15 Section 13. Applicable Provisions of Law. This Ordinance shall be governed by and 16 construed in accordance with the laws of the State of Florida. 17 Section 14. Effective Date. This Ordinance shall become effective ten days after 18 enacted. 19 PASSED AND ENACTED this day of 2011. 20 ATTEST: APPROVED: 21 22 CITY CLERK MAYOR 23 1 st Reading — 24 2nd Reading — 25 26 READ AND APPROVED AS TO FORM: 27 28 29 Thomas F. Pepe, Esq. 30 Office of City Attorney 31 32 33 -5- COMMISSION VOTE: Mayor Stoddard: Vice Mayor Newman: Commissioner Beasley: Commissioner Palmer: Commissioner Harris: EXHIBIT "A" TO ORDINANCE FORM OF LOAN AGREEMENT LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement ") is made and entered into as of 1, 2011, and is by and between the City of South Miami, Florida, a municipal corporation of the State of Florida, and its successors and assigns (the "Issuer "), and SunTrust Bank, a Georgia banking corporation, and its successors and assigns, as holder(s) of the hereinafter defined Note (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 capitalized form 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: "Act" means Part II, Chapter 166, Florida Statutes, Article VIII, Section 2, Constitution of the State of Florida, and other applicable provisions of law. "Agreement" means this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Annual Budget" means the budget or budgets, as amended and supplemented from time to time, prepared by the Issuer for each Fiscal Year in accordance with the laws of the State of Florida. "Annual Debt Service" means, as of any particular date of calculation, the annual debt service requirement for all Debt in each such Bond Year except that with respect to any Debt for which amortization installments have been established, the amount of principal .coming_.due . on the final maturity date with respect to such Debt shall be reduced by the aggregate principal amount of such Debt that is to be redeemed or paid from amortization installments to be made in prior Bond Years. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Bank is lawfully closed. "Commission" means the City Commission of the Issuer. "Consistent Basis" means, in reference to the application of GAAP, that the accounting principles observed in the period referred to are comparable in all material respects to those applied in the preceding period, except as to any changes consented to by the Bank. "Debt" means as of any date and without duplication, all of the following to the extent that they are payable in whole or in part from any Non -Ad Valorem Revenues: (i) all obligations of the Issuer for borrowed money or evidenced by bonds, debentures, notes or other similar instruments; (ii) all obligations of the Issuer to pay the deferred purchase price of property or services, except trade accounts payable under normal trade terms and which arise in the ordinary course of business; (iii) all obligations of the Issuer as lessee under capitalized leases; and (iv) all indebtedness of other persons to the extent guaranteed by, or secured by Non -Ad Valorem Revenues of, the Issuer. 'Debt Service Account' means the Taxable Revenue Note, Series 2011 Debt Service Account established by the Ordinance from which the Issuer shall make payments of the principal of, interest on and any redemption or prepayment premiums with respect to the Loan under the Note. 'Event of Default' means an event of default specified in Article VI of this Agreement. "Fiscal Year" means the period commencing on October 1 of each year and ending on the succeeding September 30, or such other period of twelve consecutive months as may hereafter be designated, as the fiscal year of the Issuer by general law. "Loan" means the loan by the Bank to the Issuer contemplated hereby. "Loan Amount" means $7,900,000.00. "Loan Documents" means this Agreement and the Note. "Maximum Annual Debt Service" means, as of any particular date of calculation, the largest Annual Debt Service in any Bond Year. "Non -Ad Valorem Revenues" means all revenues of the Issuer derived from any source whatsoever other than ad valorem taxation on real and personal property, including, without limitation, investment income, which are legally available for the payment by the Issuer of debt service on the Note or Non - Self - Supporting Revenue Debt, including, without limitation, legally available non -ad valorem revenues derived from sources subject to a prior pledge thereof for the payment of other obligations of the Issuer and available after payment of principal and interest on such other obligations, but excluding revenues derived from the revenues of any enterprise fund of the Issuer, except to the extent that revenues derived from such sources have been deposited into the Issuer's General Fund. "Non- Self - Supporting Revenue Debt" means obligations evidencing indebtedness for borrowed money, including the Note, (i) the primary security for which is provided by a covenant of the Issuer to budget and appropriate Non -Ad Valorem Revenues of the Issuer for the payment of debt service on such obligations, or (ii) primarily secured or payable from another source of funds, but with respect to which the Issuer has also covenanted to budget and appropriate Non -Ad Valorem Revenues of the Issuer for the payment of debt service on such obligations, provided that obligations described in this clause (ii) shall only be considered Non - Self- Supporting Revenue Debt to the extent the Issuer has included in its budget (by amendment or otherwise) the payment of such Non -Ad Valorem Revenues pursuant to such covenant to pay debt service on such obligations. "Non- Self - Supporting Revenue Debt" shall expressly not include indebtedness payable from the revenues of a utility system, or any other enterprise fund of the Issuer, which are pledged to the payment of such indebtedness. "Note" means the Issuer's Revenue Note, Series 2010B in the form attached hereto as Exhibit "B." "Notice Address" means, As to the Issuer: City of South Miami Attn: City Manager 6130 Sunset Drive South Miami, Florida 33143 Email address: As to the Bank: SunTrust Bank Attn: Steve T. Leth 8699 NW 36 Street Miami, Florida 33131 Email address: steve.leth@suntrust.com or to such other address (or e -mail address for electronic communications) as either party may have specified in writing to the other using the procedures specified in Section 7.06. "Ordinance" means an Ordinance related to this Agreement and the Note enacted by the Commission on 12011. "Person" means an individual, corporation, partnership, joint venture, trust, limited liability company, unincorporated organization or other judicial entity. "Pledged Funds" means (i) the Non -Ad Valorem Revenues budgeted and appropriated and deposited into the Debt Service Account to pay debt service and other amounts due and payable on the Note and (ii) all funds on deposit in the Debt Service Account (including all investment securities on deposit therein) and all investment earnings on any such funds. "Principal Office" means, with respect to the Bank, the office located at 8699 NW 36 Street, Miami, Florida 33131, or such other office as the Bank may designate to the Issuer in writing. "Refunded Loans" means, collectively, the Issuer's Capital Improvement Promissory Note, Series 2009, a portion of the Issuer's obligations under the Loan Agreement dated as of December 1, 2006, between the Florida Municipal Loan Council and the Issuer and a portion of the Issuer's obligations under the Loan Agreement dated as of May 17, 2002, between the Florida Municipal Loan Council and the Issuer. "State" means the State of Florida. "Total General Fund Revenues" means all revenues of the Issuer, including all Non -Ad Valorem Revenues (including, without limitation, those derived from enterprise funds) and revenues derived from ad valorem taxes (other than such taxes imposed pursuant =,to rthe "raw -'and allocable solely to debt service incurred on Debt approved by such referendum). 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 a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. ARTICLE II REPRESENTATIONS OF ISSUER The Issuer represents and warrants to the Bank that: Section 2.01 Powers of Issuer. The Issuer is a municipal corporation, duly organized and validly existing under the laws of the State. The Issuer has the power under the Act to enact the Ordinance, to borrow pursuant to the Loan Documents the Loan Amount provided for in this Agreement, to execute and deliver the Loan Documents, to secure the Loan Documents in the manner contemplated hereby and to perform and observe all the terms and conditions of the Loan Documents on its part to be performed and observed. The Issuer may lawfully borrow funds hereunder in order to provide funds to refund the Refunded Loans, to pay amounts owed to the Internal Revenue Service pursuant to settlement agreements entered into by the Issuer under its Voluntary Closing Agreement Program and costs related thereto and to pay the costs of issuance of the Note. Section 2.02 Authorization of Loan. The Issuer had, has, or will have on the date of the Note and at all relevant times, full legal right, power and authority to execute and deliver the Loan Documents, to make the Note, and to carry out and consummate all other transactions contemplated hereby, and the Issuer has complied and will comply with all provisions of applicable law in all material matters relating to such transactions. The Issuer has duly authorized the borrowing of the Loan Amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank, and to that end the Issuer warrants that it will, subject to the terms hereof and of the Note, take all action and do 13 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 Bank , along with this Agreement, and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with the terms thereof and the terms hereof, and is entitled to the benefits and security of this Agreement, subject to the provisions of the bankruptcy laws of the United States of America and to other applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights, heretofore or hereinafter enacted, to the extent constitutionally applicable, and provided that its enforcement may also be subject to equitable principles that may affect remedies or other equitable relief, or to the exercise of judicial discretion in appropriate cases. 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 Issuer 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. NOTWITHSTANDING THE FOREGOING, HOWEVER, OR ANYTHING ELSE HEREIN OR IN THE NOTE TO THE CONTRARY, NEITHER THIS AGREEMENT NOR THE NOTE SHALL CONSTITUTE A GENERAL OBLIGATION OR A PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION OR LIMITATION, BUT SHALL BE PAYABLE SOLELY FROM THE PLEDGED FUNDS IN THE MANNER AND TO THE EXTENT PROVIDED HEREIN AND IN THE ORDINANCE. No holder or owner of the Note shall ever have the right, directly or indirectly, to require or compel the exercise of the ad valorem taxing power of the Issuer or any other political subdivision of the State of Florida or taxation in any form on any real or personal property for any purpose, including, without limitation, for the payment of debt service with respect thereto, or to maintain or continue any activities of the Issuer which generate user service charges, regulatory fees or other non -ad valorem revenues, nor shall any holder or owner of the Note be entitled to payment of such principal and interest from any other funds of the Issuer other than the Pledged Funds, all in the manner and to the extent herein and in the Ordinance provided. Section 2.03 No Violation of Law or Contract. The Issuer 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 Issuer or the ability of the Issuer to perform its obligations hereunder and under the Note. The making and performing by the Issuer 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 Issuer is a party or by which the Issuer is bound, the breach of which could result in a material and adverse impact on the financial condition of the Issuer or the ability of the Issuer to perform its obligations hereunder and under the Note. Section 2.04 Pending or Threatened Litigation. Except as has been disclosed to the Bank in writing, there are no actions or proceedings pending against the Issuer or affecting the Issuer or, to the knowledge of the Issuer, threatened, which, either in any case or in the aggregate, might result in any material adverse change in the financial condition of the Issuer, or 5 which questions the validity of this Agreement or the Note or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. Section 2.05 Ordinance. The Ordinance has been duly enacted by the Issuer, is in full force and effect and has not been amended, altered, repealed or revoked in any way since its date of enactment. Section 2.06 Financial Information. The financial information regarding the Issuer furnished to the Bank by the Issuer in connection with the Loan is complete and accurate, and there has been no material and adverse change in the financial condition of the Issuer from that presented in such information. Section 2.07 Financial Condition. The Financial statements (which include combined and combining statements of financial position, activities and cash flows with all supporting schedules) of the Issuer for the Fiscal Year ended as of the dates of such financial statements, copies of which have been furnished to the Bank, are correct, complete and fairly present the financial condition of the Issuer as of the date thereof, and the results of its operations for such periods. The Issuer has no material direct or contingent liabilities as of the date of this Agreement which are not provided for or reflected in such financial statements, or referred to in notes thereto. All such financial statements have been prepared in accordance with GAAP applied on a Consistent Basis maintained throughout the periods involved. There has been no material adverse change in the business, properties or conditions, financial or otherwise, of the Issuer since the dates of such financial statements. Section 2.08. No Immunity from Jurisdiction. The Issuer has no immunity from jurisdiction of any court of competent jurisdiction or from process or suit therein which could be asserted in any action to enforce the obligations of the Issuer under this Agreement or any of the other Loan Documents, or from the rendition, execution or enforcement of any judgment therein. Section 2.09 No Untrue Statements. Neither this Agreement nor any reports, schedules, certificates, agreements or instruments hereto or simultaneously with the execution of this Agreement delivered to the Bank by the Issuer in connection with the Loan contains any material misrepresentation or untrue statement of fact or omits to_ state _ any material fact necessary to make this Agreement or any such reports, schedules, certificates or instruments not misleading. The representations and warranties of the Issuer in each of the Loan Documents are true and correct in all material respects on the date hereof and are true and correct as of the date made, if earlier. Section 2.10 Changes in Law, Etc. To the Issuer's knowledge, there are no proposed or pending changes in any laws of the State or the United States of America which would have a material adverse affect on the ability of the Issuer to perform any of its obligations under any of the Loan Documents. Section 2.11 Regulation U. No part of the proceeds of the Loan made available to the Issuer will be or has been used to purchase or carry, or to reduce or retire any loan incurred to purchase or carry, any margin stocks (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any such margin stocks. The Issuer is not engaged as one of their G important activities in extending credit for the purpose of purchasing or carrying such margin stocks. In addition, no part of the proceeds of such loan will be used for the purchase of commodity future contracts (or margins therefor for short sales), or for any commodity transaction. Section 2.12 Solvency. The Issuer is now, and after giving effect to any of the other Loan Documents will be, solvent. M oil I lei 0A111 COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. For so long as any of the principal amount of or interest or any redemption or prepayment premium on the Note is outstanding or any duty or obligation of the Issuer hereunder or under the Note remains unpaid or unperformed, the Issuer covenants to the Bank as follows: (a) Pa iy Went. The Issuer shall pay the principal of and the interest or any redemption or prepayment premium on the Note and any other amounts due and payable under this Agreement at the times and place and in the manner provided herein and in the Note. (b) Use of Proceeds. Proceeds from the Note will be used only to refund the Refunded Loans (as defined in the Ordinance), to pay amounts owed to the Internal Revenue Service pursuant to settlement agreements entered into by the Issuer under the Voluntary Closing Agreement Program and costs related thereto and to pay costs of issuance of the Loan, except as otherwise expressly provided hereby. (c) Notice of Defaults. The Issuer shall within three (3) days after it acquires knowledge thereof,.notify the Bank in writing at its Notice Address (a) of any change in any material fact or circumstance represented or warranted by the Issuer in this Agreement or in connection with the issuance of the Note; (b) of the happening, occurrence, or existence of any Event of Default, (c) of any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and (d) of any litigation or governmental proceeding pending against the Issuer in excess of $100,000, and in addition shall provide the Bank, with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and the action being taken or proposed to be taken by the Issuer with respect thereto. Regardless of the date of receipt of such notice by the Bank, such date shall not in any way modify the date of occurrence of the actual Event of Default. (d) Maintenance of Existence. The Issuer will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under this Agreement and the Note have been paid in full. (e) Records. The Issuer agrees that any and all records of the Issuer with respect to the Loan shall be open to inspection by the Bank or its representatives at all reasonable times and after receipt by the Issuer of reasonable notice from the Bank at the offices the Issuer. 7 (f) Financial Statements and Budget. The Issuer will cause an audit to be completed of its books and accounts and shall furnish electronically to the Bank audited year -end financial statements of the Issuer, including a balance sheet as of the end of such Fiscal Year and related statements of revenues, expenses and changes in net assets, certified by an independent certified public accountant to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer 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 Issuer shall send to the Bank the Issuer's audited financial statements for each Fiscal Year ending on or after September 30, 2011, within 270 days after the end thereof, and shall provide the Bank with a copy of its annual budget within thirty (30) days after approval thereof by the Board, together with any other information the Bank may reasonably request. (The documents required by the preceding sentence may be delivered electronically.) (g) Insurance. The Issuer shall maintain such liability, casualty and other insurance as, or shall self - insure in a manner as is reasonable and prudent for similarly situated governmental entities of the State of Florida. (h) Compliance with Laws. The Issuer 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 Issuer or upon the ability of the Issuer 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 of the State, the Issuer shall promptly upon receipt of the Bank's written demand for same, pay such taxes or reimburse the Bank for any such taxes paid by it. 0) Payment of Obligations. The Issuer will pay when due all of its obligations and liabilities, except where the same (other than judgments) are being contested in good faith by appropriate proceedings diligently prosecuted and appropriate reserves for the accrual of same satisfactory to the Bank are maintained. (k) Observe all Laws. The Issuer will conform to and duly observe all laws, regulations and other valid requirements of any governmental or regulatory authority with respect to this Agreement and the Notes. (1) Payment of Expenses. The Issuer shall pay the following: (a) upon demand for all reasonable out -of- pocket expenses (including reasonable attorneys' and paralegals' fees and legal expenses) incurred by the Bank in connection with the negotiation of any amendment or restructuring, whether or not consummated, of any of the Loan Documents made at the request of the Issuer, and (b) in the event of the occurrence of any Event of Default, the Bank shall be entitled to recover from the Issuer, whether suit be brought or not, all reasonable costs, expenses and reasonable attorneys' fees and paralegals' fees incurred by the Bank in connection therewith, including those on appeal or in administrative or bankruptcy proceedings. (m) Accountine. The Issuer will keep proper books of record and account in which full, true and correct entries shall be made of its transactions in accordance with the GAAP applied on a Consistence Basis with those applied in the preparation of the financial statements described above. (n) Auditors. The Issuer shall immediately notify the Bank upon any change of the Issuer's independent public accountants, and such further information as the Bank may reasonably request concerning the resignation, refusal to stand for reappointment after completion of the current audit of dismissal of such accountants. (o) Direct Debt. The interest payments on the Loan shall be collected via ACH Direct Debit from an account with the Bank. (p) Additional Information Instruments and Assurances. The Issuer shall provide the Bank with such other information respecting the business, properties, condition or operations, financial or otherwise, of the Issuer or as the Bank may from time to time reasonably request. The Issuer shall execute and deliver to the Bank all such documents and instruments, and do all such acts and things, as may be necessary or required by the Bank to enable the Bank to exercise and enforce its rights under this Agreement, and to realize thereof, and record and file and re- record and re -file all such documents and instruments, at such time or times, in such manner and at such place or places, all as may be necessary or required by the Bank to validate preserve and protect the position of the Bank under this Agreement and the Note. Section 3.02 Negative Covenants. For so long as any of the principal amount of or interest on the Note is outstanding or any duty or obligation of the Issuer hereunder or under the Note remains unpaid or unperformed, the Issuer covenants to the Bank as follows: (a) No Adverse Borrowings. The Issuer shall not issue or incur any indebtedness or obligation if such would materially and adversely affect the ability of the Issuer to timely pay debt service on the Note or any other amounts owing by the Issuer under this Agreement. (b) Anti - Dilution. Except with respect to Non - Self - Supporting Revenue Debt issued to refund existing Non - Self - Supporting Revenue Debt- where the aggregate debt service of the refunding Non - Self - Supporting Revenue Debt will not be greater than that for the Non -Self- Supporting Revenue Debt being refunded, the Issuer may incur additional Non-Self-Supporting Revenue Debt only if, as set forth in a certificate of the Mayor, the Vice Mayor or the City Manager executed prior to the issuance thereof (x) the amount of Non -Ad Valorem Revenues for the Fiscal Year most recently concluded prior to the proposed incurrence of the Debt for which audited financial statements are available less the amount resulting from dividing such Non -Ad Valorem Revenues by Total General Fund Revenues for such Fiscal Year and multiplying that amount by the (Cost of Essential Services) for such Fiscal Year, equals or exceed 1.25 times the Annual Debt Service in each future Bond Year on all outstanding Debt and the Debt proposed to be issued, and (y) the average amount of Non -Ad Valorem Revenues for the two Fiscal Years for which audited financial statements are available most recently concluded prior to the proposed incurrence of the Debt equal or exceed 2.00 times the Maximum Annual Debt Service in all future Bond Years on all outstanding Debt and the Debt proposed to be issued. E For purposes of calculating the foregoing, if any Debt bears a rate of interest that is not fixed for the entire tern 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 Debt shall be assumed to be the higher of (x) the average rate of actual interest borne by such Debt during the most recent complete month prior to the date of calculation, (y) (i) for Debt the interest on which is excluded from gross income of the holders thereof for federal tax purposes, The Bond Buyer Revenue Bond Index last published in the month preceding the date of calculation plus one percent, or (ii) for Debt the interest on which is not excluded from the gross income of the holders thereof for federal tax purposes, the yield on a U.S. Treasury obligation with a constant maturity closest to but not before the maturity date of such Debt, as reported in Statistical Release 1115 of the Federal Reserve on the last day of the month preceding the date of issuance of such proposed Debt, plus three percent; provided, however, that if the Issuer 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 Debt for the entire tern 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 I I.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. For the purpose of calculating the foregoing, "balloon indebtedness" (as defined in the immediately succeeding sentence) shall be assumed to amortize over a period not to exceed 20 years in substantially equal annual payments at the interest rate set forth in the instrument evidencing such Debt if the interest rate is fixed and, if the interest rate is not fixed, at the rate calculated pursuant to the immediately preceding sentence and any put or tender rights of a lender with respect to any Debt shall be ignored and such Debt shall be assumed to mature as otherwise provided in the instrument evidencing such Debt. 'Balloon indebtedness" is any Debt twenty percent (20 %) or more of the principal amount of which comes due in any single Fiscal Year. (c) Additional Debt. In addition to the restrictions set forth in paragraphs (a) and (b) above, Additional Debt shall only be issued if the Issuer shall not be in default in performing any of the covenants and obligations assumed under the Loan Documents, and all payments herein required to have been made into the accounts and funds, as provided herein, shall have been made to the full extent required. Section 3.03 Registration and Exchange of Note. The Note shall initially be owned by the Bank. The ownership of the Note may only be transferred, other than transfers to assignees or successors of the Bank, and the Issuer will transfer the ownership of the Note, upon written request of the Bank to the Issuer specifying the name, address and taxpayer identification number of the transferee, and the Issuer will keep and maintain at all times a record setting forth the identification of the owner of the Note. The Person in whose name the Note shall be registered shall be deemed and regarded the absolute owner thereof for all purposes, and payment of principal and interest on such Note shall be made only to or upon the written order of such Person. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. The Issuer shall maintain books of registration in connection with the Note. 10 Section 3.04 Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new 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 Bank furnishing the Issuer proof of ownership thereof, an affidavit of lost or stolen instrument and indemnity reasonably satisfactory to the Issuer and paying such expenses as the Issuer may reasonably incur in connection therewith. Section 3.05 Payment of Principal and Interest; Limited Obligation. The Issuer 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 according to the true intent and meaning hereof and of the Note, provided that the Issuer may be compelled to pay the principal of and interest on with respect to the Note solely from the Pledged Funds, and nothing in the Note, this Agreement or the Ordinance shall be construed as pledging any other funds or assets of the Issuer to such payment or as authorizing such payment to be made from any other source. The Issuer is not and shall not be liable for the payment of the principal of and interest on the Note with respect to or for the performance of any pledge, obligation or agreement for payment undertaken by the Issuer hereunder, under the Note or under the Ordinance from any property other than the Pledged Funds. The Bank shall not have any right to resort to legal or equitable action to require or compel the Issuer to make any payment required by the Note or this Agreement from any source other than the Pledged Funds. Section 3.06 Covenant to Budget and Appropriate. The Issuer hereby covenants and agrees, to the extent permitted by and in accordance with applicable law and budgetary processes, to prepare, approve and appropriate in its Annual Budget for each Fiscal Year, by amendment if necessary, and to deposit to the credit of the Debt Service Account in a timely manner as needed to pay debt service on the Note, Non -Ad Valorem Revenues of the Issuer in an amount which is equal to the debt service with respect to the Note for the applicable Fiscal Year and such other amounts payable under this Agreement and the Note. Such covenant and agreement on the part of the Issuer to budget and appropriate sufficient amounts of Non -Ad Valorem Revenues shall be cumulative, and shall continue until such Non -Ad Valorem Revenues in amounts sufficient to make all required payments hereunder and under the Note as and when due, including any delinquent, payments, shall have been budgeted, appropriated and actually paid into the Debt Service Account; provided, however, that such covenant shall not constitute a lien, either legal or equitable, on any of the Issuer's Non -Ad Valorem Revenues or other revenues, nor shall it preclude the Issuer from pledging in the future any of its Non -Ad Valorem Revenues or other revenues to other obligations, nor shall it give the holder or owner of the Note a prior claim on the Non -Ad Valorem Revenues. Anything herein to the contrary notwithstanding, all obligations of the Issuer hereunder shall be secured only by the Non -Ad Valorem Revenues actually budgeted and appropriated and deposited into the Debt Service Account, as provided for herein. The Issuer is prohibited by law from expending moneys not appropriated or in excess of its current budgeted revenues and surpluses. The obligation of the Issuer to budget, appropriate and make payments hereunder from its Non -Ad Valorem Revenues is subject to the availability of Non -Ad Valorem Revenues after satisfying funding requirements for obligations having an express lien on or pledge of such revenues and after satisfying funding requirements for essential governmental services of the Issuer. Notwithstanding the foregoing or anything herein to the contrary, the Issuer has not covenanted to maintain any service or program now provided or maintained by the Issuer which generates Non -Ad Valorem Revenues. 11 If at any point in time during a Fiscal Year of the Issuer, the Issuer determines that the Non -Ad Valorem Revenues are insufficient to satisfy the Issuer's obligation to budget, appropriate and make payments under this Section 3.06 and to satisfy the Issuer's obligations to pay under any Non Self- Supporting Revenue Debt, then the Issuer shall, from such point, budget, appropriate and make payments from the available Non -Ad Valorem Revenues pro -rata among the Note and such other Non Self - Supporting Revenue Debt. Section 3.07 Pledge. The payment of the principal of and interest on the Note and any other amounts due and payable under this Agreement and the Note shall be secured by an irrevocable lien on the Pledged Funds, all in the manner and to the extent provided herein and in the Ordinance. The Issuer does hereby pledge such Pledged Funds to the principal of and interest on the Note and for all other payments provided for herein. Section 3.08 Debt Service Account. The Issuer shall apply all moneys on deposit in the Debt Service Account to the timely payment of the principal of and interest on the Note and any other amounts due and payable under this Agreement and the Note. Funds in the Debt Service Account may be invested in investments permitted by law and meeting the requirements of the Issuer's written investment policy and that mature not later than the dates that such funds will be needed for the purposes of such accounts. Section 3.09 Officers and Employees of the Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Agreement or the Note or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against any officer, agent or employee, as such, of the Issuer, past, present or future, it being expressly understood (a) that the obligation of the Issuer under this Agreement and under the Note is solely a corporate one, limited as provided herein, (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 Issuer, 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 Issuer 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 part of the Issuer. Section 3.10 Business Days. In any case where the due date of interest on or principal of the Note is not a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Bank. Section 3.11 Taxable Note. Interest on the Note shall not be excluded from gross income of the holders and owners of the Note for federal income tax purposes. Section 3.12 Application of Proceeds of the Note. The net proceeds of the Note (after amounts withheld by the Bank to pay the fees of its counsel ($7,500.00)) shall be applied as follows: 12 (1) $ shall be withheld by the Bank for the repayment of the 2009 Loan (as defined in the Ordinance). (2) $ shall be transferred by the Bank to FMLC for the repayment of the FMLC Loans (as defined in the Ordinance). (3) The remainder of the proceeds of the Note shall be transferred to the Issuer and used to pay the amounts due and owing by the Issuer to the Internal Revenue Service pursuant to the settlement agreements entered into by the Issuer and the costs related thereto and the costs of issuance of the Loan and the remainder after paying the aforementioned costs shall be deposited into the Debt Service Account for payment of principal and interest next coming due on the Note. ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Representations and Warranties. The representations and warranties of the Issuer set forth in this Agreement and the Note are true and correct on and as of the date hereof. Section 4.02 No Default. On the date hereof, the Issuer shall be in compliance with all the terms and provisions set forth in this Agreement and the Note on its part to be observed or performed, and no Event of Default or 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 supporting documents, all of which shall be satisfactory in form and substance to the Bank (such satisfaction to be evidenced by the purchase of the Note by the Bank): (a) The opinion of the attorney for the Issuer and /or Squire, Sanders & Dempsey (US) LLP, regarding the due authorization, execution, delivery, validity and enforceability of the Ordinance authorizing this Agreement and the Note, and such other items as the Bank shall reasonably request; (b) A certified copy of the Ordinance; and (c) 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 lend to the Issuer the Loan Amount to provide funds for the purposes described herein upon the terms and conditions set forth in this 13 Agreement. The Issuer 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 obligation of the Issuer to repay the Loan, the Issuer shall make and deliver to the Bank the Note in the form attached hereto as Exhibit "A." Prepayment of principal may be made only as provided in the Note and the rate of interest on the Note, including any adjustments thereto, shall be as provided in the Note. ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An 'Event of Default" shall be deemed to have occurred under this Agreement if. (a) The Issuer shall fail to make any payment of the principal of, premium, if any, or interest on the Loan when the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) The Issuer shall default in the performance of or compliance with any term or covenant contained in this Agreement or the Note, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with in this Section 6.01, which default or non - compliance shall continue and not be cured within thirty (30) days after (i) written notice thereof to the Issuer 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 (c) Any representation or warranty made in writing by or on behalf of the Issuer in this Agreement or the Note shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Issuer 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 (e) The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by the Issuer, or an order, judgment or decree is entered by any court' of competent jurisdiction appointing, without the consent of the Issuer, a receiver or trustee of the Issuer 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 (f) The Issuer 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 14 (g) The Issuer shall be in default in the payment of principal or interest (giving effect to any applicable grace periods) of any obligation under any other agreement evidencing or securing any other indebtedness of the Issuer to the Bank; or (h) If the validity or enforceability of the Loan Documents shall be contested by the Issuer; or if the Issuer shall deny that it has any or further liability or obligations hereunder or thereunder; or (i) The Issuer shall declare or submit a resolution to declare a state of financial urgency under Chapter 447, Florida Statutes; or 0) A judgment or order shall be rendered against the Issuer for the payment of money in excess of $100,000 which is not covered by insurance and such judgment or order shall continue unsatisfied or unstayed for a period of more than 30 days. Section 6.02 Effect of Event of Default. Immediately and without notice, upon the occurrence of any Event of Default, the Bank may declare all obligations of the Issuer 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. Upon the occurrence of any Event of Default, the Bank may seek enforcement of and exercise all remedies available to it under any applicable law. All payments made on the Note, after an Event of Default, shall be first applied to accrued interest then to any reasonable costs or expenses, including reasonable legal fees and expenses, that the Bank may have incurred in protecting or exercising its rights under the Loan Documents and the balance thereof shall apply to the principal sum due. ARTICLE 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 Note 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 and not exclusive of any remedies provided by law or in equity. Section 7.02 Amendments, Changes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified except in writing signed by the Bank and the Issuer. The Issuer agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in modifying and/or amending this Agreement at the Issuer's request or behest. 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. 15 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 Issuer in connection herewith shall be in full force and effect from the date hereof and shall continue in effect until as long as the Note is 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 teleeopy, electronic telephone line facsimile transmission, e -mail 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 Issuer and the Bank waive any objection either might otherwise have to venue in any judicial proceeding brought in connection herewith lying in Miami -Dade County, Florida. Section 7.08 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Issuer 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. Section 7.10 Attorneys Fees. To the extent legally permissible and subject to Section 6.02 hereof, the Issuer and the Bank 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 reasonable 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. 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 16 or instruments and shall cooperate with one another in all respects for the purpose of carrying out the transactions contemplated by this Agreement. Section 7.13 Waiver of Jury. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE NOTE AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES T6 ENTER INTO THIS AGREEMENT. Section 7.14 Dodd -Frank Act. The Issuer acknowledges and agrees that (i) the transaction contemplated by this Agreement is an arm's length, commercial transaction between the Issuer and the Bank in which the Bank is acting solely as a principal and is not acting as a municipal advisor, financial advisor or fiduciary to the Issuer; (ii) the Bank has not assumed any advisory or fiduciary responsibility to the Issuer with respect to the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether the Bank has provided other services or is currently providing other services to the Issuer on other matters); (iii) the only obligations the Bank has to the Issuer with respect to the transaction contemplated hereby expressly are set forth in this Agreement; and (iv) the Issuer has consulted its own legal, accounting, tax, financial and other advisors, as applicable, to the extent it has deemed appropriate. Section 7.15 Patriot Act. The Bank hereby notifies the Issuer that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107 -56 signed into law October 26, 2001), the Bank may be required to obtain, verify and record information that identifies the Issuer, which information includes the name and address of the Issuer and other information that will allow the Bank to identify the Issuer in accordance with the Act. The Issuer is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. [Signature page follows] 17 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the date of first set forth above. I:W11186 Us Clerk of the City of South Miami, Florida READ AND APPROVED AS TO FORM AND SUFFICIENCY: C City Attorney #10482566_v2 CITY OF SOUTH MIAMI, FLORIDA By:_ Title: SUNTRUST BANK Title: EXHIBIT "A" FORM OF NOTE TAXABLE REVENUE NOTE, SERIES 2011 CITY OF SOUTH MIAMI, FLORIDA (the "Issuer "), a municipal corporation of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay, but solely from the sources hereinafter provided, to the order of SunTrust Bank or registered assigns (together with any other registered owner of this Note, hereinafter, the "Bank "), the principal sum of No /100 Dollars ($ ) or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the Interest Rate (defined below) (subject to adjustment as hereinafter provided), calculated based upon actual days elapsed in a year of 360 days consisting of twelve 30 -day months, such amounts to be payable as provided herein. This Note is issued pursuant to a Ordinance No. of the Issuer enacted on 2011 (the "Ordinance ") and in conjunction with a Loan Agreement, dated as of 1, 2011, between the Issuer and the Bank (the "Loan Agreement ") and is subject to all the terms and conditions of the Loan Agreement. All terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto, or referenced, in the Loan Agreement. In addition, the following terms shall have the meanings set forth below: "Change in Law" means the occurrence, after the date of this Note, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd -Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directive thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or, pursuant to the accord commonly referred to as 'Basel III," by the United States or foreign regulatory authorities, shall in each case be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued. "Governmental Authority" shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "Interest Rate" means a per annum rate equal to 4.55 %, and subject to adjustment in accordance with the terms set forth herein. Principal of and interest on this Taxable Revenue Note, Series 2011 (the "Note ") are payable in immediately available funds constituting lawful money of the United States of America at the Principal Office or such other place as the Bank may designate in writing to the Issuer. The Issuer shall pay the Bank interest on the outstanding principal balance of this Note in arrears, on each April 1 and October 1, commencing October 1, 2011. The principal amount of this Note shall be payable in annual installments in the amounts and on the dates set forth on Schedule A hereto, commencing on October 1, 2012, and with the final principal installment payable October 1, 2026. If any date for the payment of principal or interest is not a Business Day, such payment shall be due on the next succeeding Business Day. All payments by the Issuer 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; provided, however, in an Event of Default, payment shall be applied in accordance with Section 6.02 of the Loan Agreement. If, after the date of this Note, the Bank shall have reasonably determined that a Change in Law shall have occurred that has or would have the effect of reducing the rate of return on the Bank's capital, on this Note or otherwise, as a consequence of its ownership of this Note to a level below that which the Bank could have achieved but for such adoption, change or compliance (taking into consideration the Bank's policies with respect to capital adequacy) by an amount deemed by the Bank to be material, then from time to time, promptly upon demand by the Bank, the Issuer shall, and hereby agrees to, pay the Bank such additional amount or amounts as will compensate the Bank for such reduction, provided that at such time the Bank shall generally be assessing such amounts on a non - discriminatory basis against borrowers having loans similar to the loan hereunder. A certificate of the Bank claiming compensation under this paragraph and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. In determining any such amount, the Bank may use any reasonable averaging and attribution methods. The Bank shall notify the Issuer in writing of any adjustments pursuant to this paragraph. Payments of principal or interest hereunder not paid within ten (10) days of the due date shall be subject to a late payment charge of two percent (2 %) of the amount of the late payment and any amount not paid within thirty (30) days of when due shall bear interest at a rate equal to the Interest Rate otherwise due hereunder plus four percent (4 %) per annum until paid, but in no event shall the rate of interest payable hereunder exceed the maximum lawful rate. Notwithstanding any provision of this paragraph or any other provision hereof to the contrary, in no event shall the Interest Rate on this Note exceed the maximum rate permitted by law. The principal amount of this Note may be prepaid in whole or in part at any time at the option of the Issuer upon three (3) Business Days' prior written notice by the Issuer to the Bank specifying the amount of the prepayment which is to be applied, such prepayment to be in an amount equal to the principal amount to be prepaid plus accrued interest thereon to the date of prepayment and with a redemption premium equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the loan at the Federal Reserve 1115 Statistical Release rate for fixed -rate payers in interest rate swaps for a term corresponding to the term of this Note, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the origination date of this Note and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the loan at the Federal Reserve H.15 Statistical Release rate for MC fixed -rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Days prior to the loan repayment date; both discounted at the same interest rate utilized in determining the applicable month in clause (2) above. Should the present value have no value or a negative value, the Issuer may repay with no additional fee. Should the Federal Reserve no longer release rates for fixed -rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the Issuer with a written statement explaining the calculation of the premium due, which statement shall, in absence of manifest error, be conclusive and binding. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. This Note is payable solely from the Pledged Funds to the extent provided in the Loan Agreement and subject to the pledge of the Pledged Funds as more specifically provided in the Ordinance and the Loan Agreement. Notwithstanding any other provision of this Note, the Issuer 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 as provided in the Loan Agreement and the Ordinance. NOTWITHSTANDING ANYTHING HEREIN OR IN THE LOAN AGREEMENT OR THE ORDINANCE TO THE CONTRARY, THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT AND THE ORDINANCE. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. All terms, conditions and provisions of the Loan Agreement are by this reference thereto incorporated herein as a part of this Note. 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 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. [Remainder of page intentionally left blank] ME IN WITNESS WHEREOF, the Issuer has caused this Note to be executed in its name as of the date hereinafter set forth. The date of this Note is 2011. (SEAL) ATTEST: t CITY OF SOUTH MIAMI, FLORIDA By:_ Name: Title: Clerk of the City of South Miami, Florida READ AND APPROVED AS TO FORM AND SUFFICIENCY: By: City Attorney ME SCHEDULE A Payment Date (October 1) 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 TOTAL Principal Amount