2020-R-09 - Truist Bank Financing Refuse Trucks RESOLUTION NO. 2020-R-09
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF EDGEWATER, FLORIDA, AUTHORIZING THE
ISSUANCE OF THAT CERTAIN CITY OF EDGEWATER,
FLORIDA NON AD-VALOREM REVENUE NOTE, SERIES
2020, IN THE PRINCIPAL AMOUNT OF NOT TO EXCEED
$922,000, TO LEASE FINANCE THE ACQUISITION BY
THE CITY OF UP TO FOUR REFUSE TRUCKS;
AUTHORIZING THE ISSUANCE AND SALE OF THE
NOTE TO TRUIST BANK TO EVIDENCE SUCH LEASE
FINANCING; PROVIDING THAT THE NOTE SHALL BE A
LIMITED OBLIGATION OF THE CITY PAYABLE FROM
NON AD-VALOREM REVENUES OF THE CITY AS
PROVIDED HEREIN; COVENANTING TO BUDGET AND
APPROPRIATE CERTAIN NON-AD VALOREM
REVENUES AS PROVIDED HEREIN; PROVIDING FOR
THE RIGHTS, SECURITY AND REMEDIES FOR THE
OWNER OF THE NOTE; DESIGNATING THE NOTE AS A
QUALIFIED TAX-EXEMPT OBLIGATION WITHIN THE
MEANING OF THE INTERNAL REVENUE CODE;
DELEGATING AUTHORITY FOR THE MAYOR, THE
CITY MANAGER AND THE CITY CLERK TO EXECUTE
AND DELIVER CERTAIN LEASE FINANCING
DOCUMENTS AND OTHER CERTIFICATES IN
CONNECTION WITH THE LEASE FINANCING
CONTEMPLATED BY THIS RESOLUTION; MAKING
CERTAIN COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; AND PROVIDING FOR AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDGEWATER,
FLORIDA,that:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted
pursuant to the provisions of the Act(defined below).
SECTION 2. DEFINITIONS. The following terms shall have the following meanings
herein, unless otherwise expressly set forth herein:
A. "Act' means Article VIII, Section 2 of the Constitution of the State of Florida,
Chapter 166, Florida Statutes, Chapter 218, Part Il, Florida Statutes, the Charter of the City, and
other applicable provisions of law and this Resolution.
B. "Bank"means Truist Bank.
C. "City" or"Issuer"means the City of Edgewater, Florida.
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D. "Clerk" means the City Clerk of the Issuer, or in the Clerk's absence or
unavailability, a Deputy Clerk of the Issuer.
E. "Code" means the Internal Revenue Code of 1986, as amended, and any rules or
regulations promulgated thereunder.
F. "Council" means the City Council of the City of Edgewater.
G. "Fiscal Year" means the fiscal year of the Issuer ending on each September 30.
H. "Holder" or "Noteholder" means the registered owner of the Note. The Bank
shall be the initial Holder.
I. "Interest Rate Limit" means the interest rate limit under Section 215.84, Florida
Statutes.
J. "Mayor" means the Mayor of the Issuer, or in the Mayor's absence or
unavailability, the Vice Mayor, or such other person as may be duly authorized by the City
Council to act on his or her behalf.
K. "Non-Ad Valorem Revenues" means all non-ad valorem revenues of the City,
which are lawfully available to be used to pay debt service on amounts due under the Project
Documents as the same shall become due, all as more particularly set forth in Section 7 hereof.
L. "Note" means the Issuer's Non Ad-Valorem Revenue Note, Series 2020, in an
aggregate amount of not to exceed $922,000 authorized by this Resolution. The Note may be
issued in one or more series or subseries based on the terms and rates of the underlying lease
financing of the components of the Project.
M. "Paying Agent and Registrar" means such bank or trust company, within or
without the State of Florida, which may be approved by the Council prior to the issuance of the
Note, to be the agent of the Council for payment of the principal of and interest on the Note and
for maintenance of the registration books of the Council with respect to the exchange and
transfer of the Note; or, if no such bank or trust company is appointed, means the Clerk.
N. "Pledged Revenues" means, collectively: (i) all of the proceeds of the Note
pending the application thereof, and (ii) Non-Ad Valorem Revenues budgeted and appropriated
as provided in this Resolution.
O. "Project" means the acquisition and lease financing of up to four refuse trucks to
be operated by the City, including the costs of issuance of such financing.
P. "Project Documents" means this Resolution, the Note, all lease financing
documents entered into in connection with the lease financing of the Project and any and all
agreements, documents, certificates and opinions executed and delivered in connection with the
lease financing contemplated by this Resolution.
Q. "Purchase Price" means the face amount of the Note.
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R. "Resolution" means this Resolution, pursuant to which the Note is authorized to
be issued, including any supplements to or amendments of this Resolution.
S. "State" means the State of Florida.
SECTION 3. FINDINGS. It is hereby found, determined and declared as follows that:
A. The financing of the Project is in the public interest.
B. It is necessary, desirable and in the best interests of the Issuer and its inhabitants
that the Project be undertaken and that the Note be issued to fund the Project, in order to obtain
the benefits of the Project. The Project is appropriate to the needs and circumstances of, and
shall serve a public purpose by advancing the economic prosperity, the public health, or the
general welfare of the State and its people. The Issuer will be able to cope satisfactorily with the
impact of the Project and will be able to provide, or cause to be provided when needed, the
public facilities and public services that will be necessary for the operation, repair and
maintenance of the vehicles constituting the Project.
C. The Note to be issued under this Resolution does not constitute an indebtedness
within the meaning of any constitutional or statutory debt limitation or restriction and is not
subject to the provisions of any other law or charter relating to the authorization, issuance, or sale
of bonds. The Note to be issued under the provisions of this Resolution is declared to be issued
for an essential public and governmental purpose and, together with interest thereon and income
therefrom, is exempted from all taxes, except those taxes imposed by Chapter 220, Florida
statutes, on interest, income,or profits on debt obligations owned by corporations.
D. The City has received the proposal attached hereto as Exhibit"A" from the Bank
for terms related to its purchase of the Note and the City believes such proposal contains terms
that are favorable to the City. Due to the immediate need for funds, prevailing market
conditions, and the nature of the contemplated financing, it is hereby determined, based in part
on the recommendation of its financial advisor, that it is in the best interests of the public and the
City to negotiate the terms of a loan agreement with the Bank that provides the best overall terms
of finance for the City.
E. The principal of and interest on the Note shall be payable solely from the Pledged
Revenues. Neither the City, nor the State or any political subdivision thereof or governmental
authority or body therein, shall ever be required to levy ad valorem taxes to pay the principal of
and interest on the Note or any amounts due under the Project Documents and neither the Note
nor the Project Documents shall constitute a lien upon the City, or upon any properties owned by
or situated within the City except as provided herein with respect to the Pledged Revenues and as
otherwise provided in the Project Documents.
F. The City has not and does not reasonably expect to issue (including issues "on
behalf of the City, as determined under Section 265(b)(3)(E) of the Code) tax-exempt
obligations (excluding obligations of the City issued for the sole purpose of currently refunding
the outstanding amount of an existing obligation) in excess of $10,000,000 aggregate face
amount during the 2020 calendar year.
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' G. Debt service on the Note will be payable from Pledged Revenues as provided
herein. The Pledged Revenues will be sufficient to pay the principal and interest on the Note
herein authorized, as the same becomes due, and to make all deposits required by this
Resolution. No ad valorem taxing power of the Issuer will ever be exercised nor will any Holder
of the Note have the right to compel the exercise of such ad valorem taxing power to pay the
principal of or interest on the Note or to make any other payments provided for in this
Resolution, and the Note shall not constitute a lien upon any property of the Issuer, except the
Pledged Revenues and the leased vehicles constituting the Project.
H. The Bank has offered to purchase the Note at the Purchase Price, at the interest
rate set forth below, resulting in an average net interest cost rate less than the Interest Rate Limit.
The Council hereby determines that it is in the best interest of the Issuer to accept the offer of the
Bank to purchase the Note. Prior to the issuance of the Note, the Issuer shall receive from the
Bank a Purchaser's Certificate, the form of which is attached hereto as Exhibit "B" and the
Disclosure Letter containing the information required by Section 218.385(6), Florida Statutes, a
form of which is attached hereto as Exhibit"C".
I. The Note will not be a "private activity bond" as defined in Section 141 of the
Code.
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of
the acceptance of the Note authorized to be issued hereunder by the Holder, this resolution shall
be deemed to be and shall constitute a contract between the Issuer and such Holder. The
covenants and agreements herein set forth to be performed by the Council and the Issuer shall be
for the benefit,protection and security of the legal Holder of the Note.
SECTION 5. AUTHORIZATION OF NOTE AND PROJECT. For the purpose of
advancing funds to finance the costs of the Project, the Council does hereby authorize and
approve of the following:
A. the issuance of that certain "City of Edgewater, Florida Non Ad-Valorem
Revenue Note, Series 2020" of the Issuer (the "Note") in the aggregate principal amount of not
to exceed $922,000, in substantially the form of Exhibit"D" attached hereto, with such changes
and additions as the Mayor shall approve, his signature thereon constituting conclusive evidence
of such approval; and
B. the execution and delivery of the Project Documents; and
C. the application of the proceeds of the Note to lease finance the Project.
SECTION 6. DESCRIPTION OF NOTE.
A. The Note shall be issued in fully registered form, without coupons, shall be dated
as of the date of its delivery, shall be in the denomination of$922,000 and shall bear interest on
the outstanding principal balance thereof at the rate specified below. The Note shall be payable
as to principal and interest as set forth therein and shall mature on the date (the "Maturity Date")
specified in the Note, provided, that the term of the Note shall not exceed 7 years. The Note
shall be payable with respect to both principal and interest in lawful money of the United States
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of America at such address as the Holder may from time to time designate. The Note may(but is
not required to) be issued in one or more series or subseries based on the terms and rates of the
underlying lease financing of the components of the Project.
B. Interest, which shall be calculated based on a 360-day year consisting of twelve
30 day months, shall accrue on the outstanding principal balance of the Note as follows:
(i) Interest shall accrue on the outstanding principal balance of the Note at a
fixed interest rate equal to 1.80%. The Issuer shall pay all accrued but unpaid interest
under the Note annually on July 1 of each Fiscal Year while the Note remains
outstanding or on such other date specified in the Note.
(ii) The total liability of the Issuer for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable usury laws. If any interest is
received or charged by any Holder of the Note in excess of that amount, the Issuer shall
be entitled to an immediate refund of the excess.
C. The Issuer shall pay installments of principal under the Note in accordance with
the Note and the Project Documents.
D. The Issuer may prepay the Note in whole, but not in part, at anytime at a
prepayment price equal to: (i) the full principal amount due on the Note as of the date of
prepayment, plus (ii) accrued but unpaid interest through the date of prepayment. At least thirty
(30) days prior to the optional prepayment date, written notice of any such prepayment shall be
mailed, postage prepaid to the Holder at the address appearing upon the registration books of the
Issuer.
SECTION 7. COVENANT TO BUDGET AND APPROPRIATE. Subject to the
next paragraph, the City covenants and agrees to appropriate in its annual budget, by
amendment, if necessary, from Non-Ad Valorem Revenues, amounts sufficient to pay principal
of and interest on amounts due under the Note and the Project Documents as the same shall
become due. Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall
continue until such Non-Ad Valorem Revenues, in amounts sufficient to make all such required
payments shall have been budgeted, appropriated and actually paid. No lien upon or pledge of
such budgeted Non-Ad Valorem Revenues shall be in effect until such monies are budgeted and
appropriated. The City further acknowledges and agrees that the obligations of the City to
include the amount of any deficiency in payments in each of its annual budgets and to pay such
deficiencies from Non-Ad Valorem Revenues may be enforced in a court of competent
jurisdiction in accordance with the remedies set forth herein.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it require the City to levy and collect any particular Non-
Ad Valorem Revenues, nor does it give the holder of the Note a prior claim on the Non-Ad
Valorem Revenues as opposed to claims of general creditors of the City. Such covenant to
budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the prior payment
of obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereafter
4813-0216-5432 v.l SBI 7 5
entered into (including the payment of debt service on bonds, notes, and other debt instruments).
Anything in this Resolution to the contrary notwithstanding, it is understood and agreed that all
obligations of the City hereunder shall be payable from the portion of Non-Ad Valorem
Revenues budgeted and appropriated as provided for hereunder and nothing herein shall be
deemed to pledge ad valorem tax revenues or to permit or constitute a mortgage or lien upon any
assets owned by the City and no holder of the Note nor any other person, may compel the levy of
ad valorem taxes on real or personal property within the boundaries of the City. Notwithstanding
any provisions of this Resolution or the Note to the contrary, the City shall never be obligated to
maintain or continue any of the activities of the City, which generate user service charges,
regulatory fees or any Non-Ad Valorem Revenues. Except as provided hereafter, neither this
Resolution nor the obligations of the City hereunder shall be construed as a pledge of or a lien on
all or any legally available Non-Ad Valorem Revenues of the City, but shall be payable solely as
provided herein and is subject in all respects to the provisions of Section 166.241, Florida
Statutes, and is subject, further, to the payment of services and programs which are for essential
public purposes affecting the health,welfare and safety of the inhabitants of the City.
SECTION 8. PROJECT DOCUMENTS. In addition to this Resolution and the Note,
the proposed lease financing of the Project contemplated by this Resolution shall be subject to
j the terms and provisions of the Project Documents.
I
SECTION 9. EXECUTION OF NOTE. The Council hereby authorizes and delegates
to the Mayor, the City Manager and the Clerk the authority to negotiate, execute and deliver the
Note. The Note shall be executed in the name of the Issuer by the Mayor and countersigned and
attested by the Clerk, either manually or with their facsimile signatures, and the Issuer's seal or a
facsimile thereof shall be affixed thereto or reproduced thereon. The Certificate of
Authentication of the Paying Agent and Registrar shall appear on the Note, and the Note shall
not be valid or obligatory for any purpose or be entitled to any security or benefit under this
Resolution unless such certificate shall have been duly executed on the Note. The authorized
signature for the Paying Agent and Registrar shall be either manual or in facsimile; provided,
however, that at least one of the above signatures, including the authorized signature for the
Paying Agent and Registrar, appearing on the Note shall at all times be a manual signature. In
case any one or more of the officers who shall have signed or sealed the Note shall cease to be
such officer of the Council or the Issuer before the Note so signed and sealed shall have been
actually sold and delivered, the Note may nevertheless be sold and delivered as herein provided
and may be issued as if the person who signed or sealed the Note had not ceased to hold such
office.
SECTION 10. 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 of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and
substitution for such mutilated Note, or in lieu of and substitution for the Note, if any, destroyed,
stolen or lost, and upon the Holder furnishing the Issuer proof of its ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and conditions as
the Issuer may prescribe and paying such reasonable expenses as the Issuer may incur. Any
Note so surrendered shall be canceled. If the lost, stolen or destroyed Note shall have matured or
be about to mature, instead of issuing a substitute Note, the Issuer may pay the same, upon being
indemnified as aforesaid, without surrender thereof. Any such duplicate Note issued pursuant to
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this Section shall constitute an original, additional contractual obligation on the part of the Issuer
whether or not the lost, stolen or destroyed Note be at any time found by anyone.
SECTION 11. NEGOTIABILITY. The Note shall be and have all the qualities and
incidents of a negotiable instrument under the laws of the State, and the Holder, in accepting the
Note, shall be conclusively deemed to have agreed that the Note shall be and have all of the
qualities and incidents of a negotiable instrument under the laws of the State.
SECTION 12. REGISTRATION. The Council shall, prior to the proposed date of
delivery of the Note, by resolution designate the Paying Agent and Registrar, if the Paying Agent
and Registrar will be a bank or trust company. If no such designation is made, the Clerk shall be
the Paying Agent and Registrar. The Paying Agent and Registrar shall be responsible for
maintaining the books for the registration and transfer of the Note and, if a bank or trust
company is so designated, in compliance with a written agreement to be executed between the
Issuer and such bank or trust company as Paying Agent and Registrar prior to the delivery date
of the Note. The Clerk shall initially serve as Paying Agent and Registrar.
Upon surrender to the Paying Agent and Registrar for transfer or exchange of the Note,
duly endorsed for transfer or accompanied by an assignment or written authorization for
exchange,whichever is applicable, duly executed by the Holder or its attorney duly authorized in
writing, the Paying Agent and Registrar shall deliver in the name of the Holder or the transferee
or transferees, as the case may be, a new fully registered Note for the principal amount which the
Holder is entitled to receive.
When the Note is presented for transfer, exchange or payment (if so required by the
Council or the Paying Agent and Registrar), it shall be accompanied by a written instrument or
instruments of transfer or authorization for exchange, in form and with guaranty of signature
satisfactory to the Council or the Paying Agent and Registrar, duly executed by the Holder or by
its duly authorized attorney.
The Paying Agent and Registrar or the Council may require payment from the holder or
transferee of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection with any exchange or transfer of the Note. Such charges and expenses
shall be paid before any new Note shall be delivered.
Any new Note delivered upon any transfer or exchange shall be a valid obligation of the
Issuer, evidencing the same debt as the Note surrendered, shall be secured by this Resolution and
shall be entitled to all of the security and benefits hereof.
The Council and the Paying Agent and Registrar may treat the Holder of the Note as the
absolute owner thereof for all purposes, whether or not such Note shall be overdue, and shall not
be bound by any notice to the contrary.
SECTION 13. DISPOSITION OF NOTE PAID OR REPLACED. Whenever the
Note shall be delivered to the Paying Agent and Registrar for cancellation, upon payment of the
principal amount thereof, or for replacement, transfer or exchange, it shall, after cancellation,
either be retained by the Paying Agent and Registrar for a period of time specified in writing by
the Council, or at the option of the Council, shall be destroyed by the Paying Agent and Registrar
4813-0216-5432 v.1 SB17 7
and counterparts of a certificate of destruction evidencing such destruction shall be furnished to
the Council.
SECTION 14. PAYMENT OF PRINCIPAL; PREMIUM AND INTEREST;
LIMITED OBLIGATION. The Issuer promises that it will promptly pay the principal of,
premium, if any, 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 thereof. The Note shall not be or
constitute a general obligation or indebtedness of the State or the Issuer as "bonds" within the
meaning of Article VII, Section 12 of the Constitution of Florida, but shall be payable solely
from the Pledged Revenues in accordance with the terms hereof. No holder of the Note issued
hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay
such Note;or be entitled to payment of such Note from any funds of the Issuer except from the
Pledged Revenues as described herein.
SECTION 15. AVAILABILITY OF NOTE PROCEEDS; COSTS. The Note
proceeds are available solely for the purposes provided herein and consistent with the
j requirements of Florida law, including the Act. The money received from the proceeds of the
Note shall be deposited into an account established by the Issuer with the Holder and applied to
pay the costs of the Project. Any proceeds of the Note remaining after the completion of the
Project shall be applied to pay the next available payment of principal and interest on the Note.
` SECTION 16. NOTEHOLDER NOT AFFECTED BY USE OF NOTE
PROCEEDS. The Holder of the Note shall have no responsibility for the use of the proceeds of
the sale of the Note, and the use of the Note proceeds by the Issuer shall in no way affect the
rights of such Noteholder.
SECTION 17. SALE OF NOTE. The Note is hereby awarded and sold at negotiated
sale to the Bank at the Purchase Price. The applicable officers of the Council (including the
Mayor and the Clerk) are authorized, in their discretion, to execute and deliver agreements,
certificates or documents related to the issuance of the Note, to the extent deemed necessary by
the Holder.
SECTION 18. TAX EXEMPTION; QUALIFIED TAX-EXEMPT OBLIGATION
DESIGNATION. The Issuer covenants that it (i) will not use the proceeds of the Note in any
manner which would cause the interest on the Note to be or become includable in the gross
income of the owner thereof for federal income tax purposes or cause the Note not to be a
"qualified tax-exempt obligation", (ii) will not do any act or fail to do any act which would cause
the interest on the Note to become includable in the gross income of the owner thereof for
federal income tax purposes or cause the Note not to be a"qualified tax-exempt obligation", and
(iii) will comply with all provisions of the Code necessary to maintain the exclusion of interest
on the Note from the gross income of the owner thereof for federal income tax purposes,
including, in particular, the payment of any amount required to be rebated to the United States
Treasury pursuant to the Code. The Clerk, or his designee, is authorized to make or effect any
election, selection, choice, consent, approval or waiver on behalf of the Council with respect to
the Note as the Council or the Issuer is required to make or give under the federal income tax
laws, for the purpose of assuring, enhancing or protecting favorable tax treatment or
characterization of the Note or interest thereon or assuring compliance with requirements for that
4813-0216-5432 v.I SB 17 8
purpose, reducing the burden or expense of such compliance, reducing the rebate amount or
payments of penalties thereon, or making payments in lieu thereof, or obviating such amounts or
payments, as determined by such officer, or his designee. Any action of such officer, or his
designee, in that regard shall be in writing and signed by such officer, or his designee. The
Issuer shall be responsible for determining any rebate to the United States Treasury which is
required by Section 148 of the Code. The Noteholder shall not be liable for any failure of the
Issuer to comply with Section 148 of the Code with respect to the Note.
The Council hereby designates the Note as a"qualified tax-exempt obligation" as defined
in Section 265(b)(3)(B)of the Code.
SECTION 19. REMEDIES OF NOTEHOLDER. The Noteholder shall have the
respective rights and remedies set forth in the Project Documents in the event of a default under
the Note or the Project Documents.
SECTION 20. REPORTING COVENANT. The Issuer covenants that, as long as any
amounts remain outstanding under the Note, the Issuer shall deliver to the Holder (a) a copy of
its audited financial statements for the Fiscal Year then ended no later than 270 days after the
end of each Fiscal Year.
SECTION 21. MODIFICATION AND AMENDMENT. No modification or
amendment of this Resolution or of any resolution amendatory hereof or supplemental hereto
may be made without the consent in writing of the Holder of the Note; provided, however, that
no consent of the Holder shall be required for amendments made to cure any ambiguity, formal
defect or omission in this Resolution.
SECTION 22. SEVERABILITY OF INVALID PROVISIONS. If any one or more
of the covenants, agreements or provisions of this resolution should be held contrary to any
express provision 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 separate from the
remaining covenants, agreements or provisions and in no way affect the validity of all the other
provisions of this resolution or of the Note issued hereunder.
SECTION 23. GOVERNING LAW. This Resolution and the Note and the duties and
obligations of parties hereunder and thereunder shall be governed by the laws of the State of
Florida.
SECTION 24. REGULARITY OF PROCEEDINGS; COMPLIANCE WITH
STATUTES; FURTHER ACTIONS. The adoption of this Resolution, and the issuance and
delivery of the Note has been duly authorized by the Council, and all conditions, acts and things
necessary and required by the Constitution and laws of the State of Florida or otherwise,to exist,
to have happened, or to have been performed precedent to and in connection with the execution
and delivery of the Note, and precedent to and in connection with the adoption of this
Resolution, do exist, have happened and have been performed in regular form, time and manner.
The Mayor, City Clerk, and City Manager are hereby authorized to execute any Project
4813-0216-5432 v.l SB 17 9
Documents and incur any fees and expenses related to the lease financing contemplated by this
Resolution.
SECTION 25. EFFECTIVE DATE. This resolution shall take effect immediately
upon its adoption.
ADOPTED: April 6, 2020.
CITY COUNCIL
>. f TY DGE ATE LORI
(SEAL)
By:
Mik Thomas, r
ATTEST:
By. �, }
Robin Matusick, City Clerk/Para gal
Approved as to form
By: (�aQL
Aaron R. Wolk-.-/
City Attorney
Doran Sims Wolfe Ciocchetti & Yoon
4813-0216-5432 v.l SB17 10
EXHIBIT A
BANK PROPOSAL
(See Attached)
A-1
4813-0216-5432 v.I SB 17
EXHIBIT B
FORM OF PURCHASER'S CERTIFICATE
This is to certify that Truist Bank (the "Purchaser") has not required the City of
Edgewater, Florida (the "Issuer") to deliver any offering document and has conducted its own
investigation, to the extent it deems satisfactory or sufficient, into matters relating to business
affairs or conditions (either financial or otherwise) of the Issuer in connection with the issuance
of its Non Ad-Valorem Revenue Note, Series 2020 dated April 8, 2020, in an aggregate principal
amount of not to exceed $922,000 (the "Note"), and no inference should be drawn that the
Purchaser, in the acceptance of said Note, is relying on Nelson Mullins Riley & Scarborough
LLP ("Note Counsel") or Doran, Sims, Wolfe, Ciocchetti & Yoon ("Issuer's Counsel") as to any
such matters. Any capitalized undefined terms used herein not otherwise defined shall have the
meaning set forth in Resolution No. 2020-R-09, adopted by the City Council of the Issuer on
April 6, 2020 (the"Resolution").
We acknowledge and understand that the Resolution is not being qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered in reliance
upon the exemption from registration under Section 3(a)(2) of the Securities Act of 1933,
Section 517.051(1), Florida Statutes, and/or Section 517.061(7), Florida Statutes, and that neither
the Issuer, Bond Counsel nor Issuer's Counsel shall have any obligation to effect any such
registration or qualification.
We are not acting as a broker or other intermediary, and are purchasing the Note as an
investment for our own account and not with a present view to a resale or other distribution to
the public. We understand that the Note may not be transferred except to a bank, savings
association, insurance company or other "accredited investor" as such term is defined in the
Securities Act of 1933, as amended, and Regulation D thereunder.
We are a bank as contemplated by Section 517.061(7), Florida Statutes. We are not
purchasing the Note for the direct or indirect promotion of any scheme or enterprise with the
intent of violating or evading any provision of Chapter 517, Florida Statutes.
DATED this 8th day of April 2020.
TRUIST BANK
By:
Name:
Its: Banking Officer
B-1
4813-0216-5432 v.1 SB17
EXHIBIT C
FORM OF DISCLOSURE LETTER
The undersigned, as purchaser, proposes to negotiate with the City of Edgewater, Florida
(the-"'Issuer=I") for the purchase of its Non Ad-Valorem Revenue Note, Series 2020 (the "Note")
in the principal amount of not to exceed $922,000. Prior to the award of the Note, the following
information is hereby furnished to the Issuer:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to be
incurred for services rendered to us (the -"Bank-'") in connection with the issuance of the Note
(such fees and expenses to be paid by the Issuer):
Bank Counsel $5,000
2. (a) No other fee, bonus or other compensation is estimated to be paid by the Bank
in connection with the issuance of the Note to any person not regularly employed or retained by
the Bank (including any -"finder-"' as defined in Section 218.386(1)(a), Florida Statutes), other
than the expenses to be incurred with respect to Bank's Counsel, as described in paragraph (1)
above.
(b) No person has entered into an understanding with the Bank, or to the knowledge of
the Bank, with the Issuer, for any paid or promised compensation or valuable consideration,
directly or indirectly, expressly or implied, to act solely as an intermediary between the Issuer
and the Bank or to exercise or attempt to exercise any influence to effect any transaction in the
purchase of the Note.
3. The amount of the underwriting spread expected to be realized by the Bank is $0.
4. The management fee to be charged by the Bank is $0.
5. Truth-in-Bonding Statement:
The Note is being issued primarily to finance the acquisition and lease financing of up to
four refuse trucks to be operated by the City of Edgewater.
Unless earlier redeemed, the Note is expected to be repaid at the end of six(6) years with
respect to the Note. Using the initial interest rate of 1.80% as the interest rate applicable to the
Note over its term,total interest paid over the life of the Note is estimated to be $60,652.30.
The Note will be payable solely from Pledged Revenues of the Issuer under and as
described in its Resolution No. 2020-R-09 adopted by the Issuer on April 6, 2020 (the
"Resolution"). See the Resolution for a definition of Pledged Revenues. Based on the above
assumptions, issuance of the Note is estimated to result in a maximum of$158,002.00 of Pledged
Revenues of the Issuer not being available to finance the services of the Issuer in any one year
during the life of the Note.
C-1
4813-0216-5432 v.1 SB17
6. The name and address of the Bank is as follows:
Truist Bank
5130 Parkway Plaza Blvd., Building No. 9
Charlotte,NC 28217
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on
behalf of the Bank this 8th day of April 2020.
TRUIST BANK
By:
Name:
Its: Banking Officer
C-2
4813-0216-5432 v.1 SB17
EXHIBIT D
FORM OF NOTE
ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER'S
CERTIFICATE IN THE FORM ATTACHED TO THE RESOLUTION (HEREIN DEFINED).
$922,000
CITY OF EDGEWATER,FLORIDA
NON AD-VALOREM REVENUE NOTE, SERIES 2020
Issue Date:April 8, 2020 Maturity Date:July 1, 2026
KNOW ALL MEN BY THESE PRESENTS that the City of Edgewater, Florida (the
"Issuer"), a political subdivision created and existing pursuant to the Constitution and the laws of
the State of Florida, for value received,promises to pay from the sources hereinafter provided, to
the order of Truist Bank or its registered assigns (hereinafter, the "Holder"), the principal sum
advanced hereunder in an amount equal to $922,000, together with interest on the outstanding
principal balance of this Note at such interest rates described below based upon a year of 360
days consisting of twelve 30-day months. Unless sooner paid in accordance with the terms of
this Note, all outstanding amounts under the Note shall be due and payable on the Maturity Date.
Principal of and interest on this Note is payable in lawful money of the United States of America
at such place as the Holder may designate to the Issuer in writing. Capitalized terms used herein
but not defined shall have the respective meanings set forth in that certain Resolution No. 2020-
R-09 duly adopted by the Issuer on April 6, 2020 as from time to time amended and
supplemented (herein referred to as the"Resolution").
Interest shall accrue on the outstanding principal balance of this Note at a fixed interest
rate equal to 1.80% (the "Initial Rate") and is subject to adjustment as set forth herein and in the
Project Documents. Principal of and interest on this Note shall be paid in accordance with the
Project Documents.
This Note is subject to optional prepayment in whole, but not in part, at anytime by the
Issuer in accordance with the terms of the Resolution. At least thirty (30) days prior to the
optional prepayment date, written notice of any such prepayment shall be mailed, postage
prepaid to the registered Holder at the address appearing upon the registration books of the
Issuer.
If any date for the payment of principal and interest hereon shall fall on a day which is
not a business day the payment due on such date shall be due on the next succeeding day which
is a business day, but the Issuer shall not receive credit for the payment until it is actually
received by the Holder.
4813-0216-5432 v.1 SB 17
All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then
to other charges due the Holder, and the balance thereof shall apply to principal.
THIS NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE
ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR
CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE
HOLDER OF THIS NOTE THAT SUCH NOTEHOLDER SHALL NEVER HAVE THE
RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING
POWER OF THE ISSUER OR TAXATION OF ANY REAL OR PERSONAL PROPERTY
THEREIN FOR THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THIS NOTE
OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION.
This Note is issued pursuant to the Act. All terms, conditions and provisions of the
Resolution, including without limitation interest rate adjustments and remedies upon the
occurrence of an event of default, are by this reference thereto incorporated herein as a part of
this Note. Payment of this Note is secured by Pledged Revenues.
This Note may be exchanged or transferred by the Holder hereof but only upon the
registration books maintained by the Issuer and in the manner provided in the Resolution.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in connection with the execution,
delivery and the issuance of this Note do exist, have happened and have been performed in due
time, form and manner as required by law, and that the issuance of this Note is in full compliance
with and does not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the City of Edgewater, Florida has caused this Note to be
executed in its name by the manual signature of its Mayor and attested by the manual signature
of its City-Clerk, and its seal to be impressed hereon, all as of this 8th day of April 2020.
Y EDGE T O
[SEAL] r`
ike Tho s, A4ay
ATTEST:
By:
Robin Matusick, City Clerk/Paralegal
4813-0216-5432 v.1 SB17
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Agreement") is dated as of April 8, 2020, and is
between CITY OF EDGEWATER, FLORIDA, a public body of the State of Florida (the
"Lessee"),and TRUIST BANK("TRUIST").
RECITALS:
The Lessee has the power to acquire such personal property as it may deem appropriate for
carrying out its governmental and proprietary functions, and to acquire such property pursuant to
lease agreements. This Agreement provides for TRUIST to make available to the Lessee the sum of
$922,000.00 to enable the Lessee to acquire the Equipment (as defined herein) by lease, and
provides for securing the Lessee's obligations under this Agreement by creating certain security
interests in favor of TRUIST .
NOW THEREFORE, for and in consideration of the mutual promises in this Agreement,
and other good and valuable consideration,the parties hereby agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context clearly requires otherwise, capitalized terms used in this Agreement and
not otherwise defined shall have the following meanings:
"Additional Payments" means any of TRUIST's reasonable and customary fees and
expenses related to the transactions contemplated by this Agreement, any of TRUIST's expenses
(including attorneys' fees) in prosecuting or defending any action or proceeding in connection with
this Agreement, any required license or permit fees, state and local sales and use or ownership taxes
or property taxes which TRUIST is required to pay as a result of this Agreement, inspection and re-
inspection fees, and any other amounts payable by the Lessee(or paid by TRUIST on the Lessee's
behalf) as a result of its covenants under this Agreement (together with interest that may accrue on
any of the above if the Lessee shall fail to pay the same,as set forth in this Agreement).
"Amount Advanced'has the meaning assigned in Section 2.02 hereof.
"Base Payments" means the rental payments payable by the Lessee pursuant to Section
3.01 hereof.
"Bond Counsel Opinion" means a written opinion (in form and substance acceptable to
TRUIST)of an attorney or firm of attorneys acceptable to TRUIST .
"Budget Officer" means the Lessee officer or official from time to time charged with
preparing the Lessee's draft budget as initially submitted to the Governing Board for its
consideration.
"Business Day" means any day on which banks in the State are not by law authorized or
required to remain closed.
"Closing Date"means the date on which this Agreement is first executed and delivered by
the parties.
"Code" means the Internal Revenue Code of 1986, as amended, including regulations,
rulings and revenue procedures promulgated thereunder or under the Internal Revenue Code of
1954, as amended, as applicable to the Lessee's obligations under this Agreement and all proposed
(including temporary) regulations which, if adopted in the form proposed, would apply to such
obligations. Reference to any specific Code provision shall be deemed to include any successor
provisions thereto.
"Equipment"has the meaning assigned in Section 2.03 hereof, and is generally expected to
include the personal property described on Exhibit A attached hereto.
"Event of Default"means one or more events of default as defined in Section 7.01 hereof.
"Event of Nonappropriation" means any failure by the Governing Board to adopt, by the
first day of any Fiscal Year, a budget for the Lessee that includes an appropriation for Required
Payments, or the Governing Board's amendment of an annual budget to remove an appropriation
for Required Payments, in each case, as contemplated by Section 3.05 hereof.
"Fiscal Year" means the Lessee's fiscal year beginning October 1 or such other fiscal year
as the Lessee may later lawfully establish.
"Governing Board" means the City Council of the City of Edgewater, Florida of the
Lessee as from time to time constituted.
"Lessee"means the City of Edgewater, Florida.
"Lessee Representative" means the Lessee's finance officer, investment officer or such
other person or persons at the time designated, by a written certificate in the form of Exhibit D
attached hereto furnished to TRUIST and signed on the Lessee's behalf by the presiding officer of
the Governing Board, to act on the Lessee's behalf for any purpose (or any specified purpose)
under this Agreement.
"Net Proceeds," when used with respect to any amounts derived from claims made on
account of insurance coverages required under this Agreement, any condemnation award arising out
of the condemnation of all or any portion of the Equipment, or any amounts received in lieu or in
settlement of any of the foregoing, means the amount remaining after deducting from the gross
proceeds thereof all expenses(including attorneys' fees and costs) incurred in the collection of such
proceeds, and after reimbursement to the Lessee or TRUIST for amounts previously expended to
remedy the event giving rise to such payment or proceeds.
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"Prime Rate" means the interest rate so denominated and set by Branch Banking & Trust
Company of North Carolina (whether or not such bank, or any affiliate thereof, is at any time the
counterparty to this Agreement)as its"Prime Rate,"as in effect from time to time.
"Project Costs" means all costs of the acquiring, installing and equipping of the
Equipment as determined in accordance with generally accepted accounting principles and that
will not adversely affect the exclusion from gross income for federal income tax purposes of the
designated interest component of Base Payments payable by the Lessee under this Agreement,
including (a) sums required to reimburse the Lessee or its agents for advances made for any such
costs, (b) interest during the period of the acquisition, installation and equipping of the
Equipment and for up to six months thereafter, and (c) all costs related to the financing of the
Equipment through this Agreement and all related transactions.
"Project Funds"has the meaning assigned in Section 2.02 herein.
"Required Payments"means Base Payments and Additional Payments.
"Security Property"means the Equipment and all amounts on deposit from time to time in
the Project Fund.
"State"means the State of Florida.
"UCC' means the Uniform Commercial Code or any successor law as in effect from time
to time in the State.
All references in this Agreement to designated "Sections" and other subdivisions are to
the designated sections and other subdivisions of this Agreement. The words "hereof' and
"hereunder" and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision unless the context indicates otherwise. Words importing
the singular number shall include the plural number and vice versa.
ARTICLE II
LEASE; ADVANCE; SECURITY
Section 2.01. Lease. TRUIST hereby leases to the Lessee, and the Lessee hereby leases
from TRUIST , the Equipment, for a term beginning on the Closing Date and ending upon final
payment of all Required Payments, unless this Agreement is earlier terminated as provided herein.
The Lessee shall be entitled to possession of all property constituting any portion of the Equipment
and may retain possession of all property constituting any portion of the Equipment so long as no
Event of Default is continuing under this Agreement and no Event of Nonappropriation has
occurred.
Section 2.02. Advance. TRUIST shall advance $922,000.00 (the "Amount Advanced"),
less Costs of Issuance in the amount of $ , to the Lessee by making a deposit of
$ as provided in Article IV herein, and the Lessee hereby accepts the Amount
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Advanced from TRUIST . Costs of Issance will be wired out at closing per the provided closing
instructions.
Section 2.03. RESERVED.
Section 2.04. Lessee's Limited Obligation.
(a) No provision of this Agreement shall be construed or interpreted as creating a pledge
of the Lessee's full faith, credit or taxing power within the meaning of any constitutional debt
limitation. No provision of this Agreement shall be construed or interpreted as an improper
delegation of governmental powers or as a donation or a lending of the Lessee's credit within the
meaning of the State constitution.No provision of this Agreement shall be construed to pledge or to
create a lien on any class or source of the Lessee's moneys (other than the funds held under this
Agreement), nor shall any provision of this Agreement restrict the future issuance of any of the
Lessee's bonds or obligations payable from any class or source of the Lessee's moneys (except to
the extent this Agreement restricts the incurrence of additional obligations secured by the Security
Property).
(b) Nothing in this Section is intended to impair or prohibit execution on the Security
Property if the Required Payments are not paid when due or otherwise upon the occurrence of an
Event of Default under this Agreement.
Section 2.05. Lessee's Continuing ObliEations. Except for an Event of
Nonappropriation as described in Section 3.05 hereof, the Lessee shall remain liable for full
performance of all its covenants under this Agreement (subject to the limitations described in
Section 2.04 hereof), including payment of all Required Payments, notwithstanding the occurrence
of any event or circumstances whatsoever, including any of the following:
(a) TRUIST's waiver of any right granted or remedy available to it;
(b) The forbearance or extension of time for payment or performance of any obligation
under this Agreement, whether granted to the Lessee, a subsequent owner of the Equipment or any
other person;
(c) The release of all or part of the Security Property or the release of any party who
assumes all or any part of such performance;
(d) Any act or omission by TRUIST (but this provision does not relieve TRUIST of
any of its obligations under this Agreement);
(e) The sale of all or any part of the Equipment;or
(fl Another parry's assumption of the Lessee's obligations under this Agreement.
4
ARTICLE III
LESSEE'S PAYMENT OBLIGATION AND RELATED MATTERS
Section 3.01. Rental; Purchase Option.
(a) As rental for the Equipment, the Lessee shall make Base Payments to TRUIST in
lawful money of the United States at the times and in the amounts set forth in Exhibit B attached
hereto, except as otherwise provided in this Agreement. As indicated in Exhibit B, the Base
Payments reflect the repayment of the Amount Advanced and include designated interest
components.
(b) Upon payment of all the Base Payments and all Additional Payments, the Lessee
may, at its option, purchase all of TRUIST's interest in the Equipment, on an as-is, where-is basis,
upon notice and payment to TRUIST of the sum of Ten Dollars ($10.00). This option to purchase
the Equipment is personal to the Lessee and is not assignable.
Section 3.02. Additional Payments. The Lessee shall pay all Additional Payments on a
timely basis directly to the person or entity to which such Additional Payments are owed in lawful
money of the United States.
Section 3.03. Prepayment. At its option at any time, the Lessee may prepay the
outstanding principal component of the Amount Advanced (in whole but not in part), and thereby
obtain ownership of all the Equipment free of this lease and TRUIST's security interest in the
Equipment, by paying(a) all Additional Payments then due and payable, (b) all interest accrued and
unpaid to the prepayment date, and (c) 100%of the outstanding principal component of the Amount
Advanced, in accordance with the provisions of Exhibit B attached hereto.
Section 3.04. Late Payments. If the Lessee fails to pay any Base Payment when due, the
Lessee shall pay additional interest on the principal component of the late Base Payment at an
annual rate equal to the Prime Rate from the original due date.
Section 3.05. Appropriations.
(a) The Budget Officer shall include in the initial proposal for each of the Lessee's
annual budgets the amount of all Base Payments and estimated Additional Payments coming due
during the Fiscal Year to which such budget applies. Notwithstanding that the Budget Officer
includes such an appropriation for Required Payments in a proposed budget, the Governing Board
may determine not to include such an appropriation in the Lessee's final budget for such Fiscal
Year.
(b) The Budget Officer shall deliver notification to TRUIST within 15 days after the
adoption of the annual budget if an amount equal to the Base Payments and estimated Additional
Payments coming due during the next Fiscal Year has not been appropriated by the Lessee in such
budget for such purposes.
5
(c) The actions required of the Lessee and its officers and/or officials pursuant to this
Section shall be deemed to be and shall be construed to be in fulfillment of ministerial duties, and it
shall be the duty of each and every Lessee officer and/or official to take such action and do such
things as are required by law in the performance of the official duty of such officers and/or officials
to enable the Lessee to carry out and perform the actions required pursuant to this Section and the
remainder of this Agreement to be carried out and performed by the Lessee.
(d) Subject to its right of nonappropriation, the Lessee currently believes that it can
obtain funds sufficient to pay all Required Payments when due.
(e) Notwithstanding any other provision of the Agreement to the contrary, if the Lessee
fails to appropriate funds to pay the Required Payments for the next Fiscal Year to continue leasing
of the Equipment,this Agreement shall terminate, shall create no further obligation of the Lessee as
to subsequent Fiscal Years and shall be null and void. In such Event of Nonappropriation, the
Lessee shall notify TRUIST at least twenty (20) days prior to the end of the then current Fiscal
Year. The Lessee shall not, in this sole event,be obligated to make any Required Payments beyond
the end of such Fiscal Year. The happening of such occurrence shall be conclusively presumed
from the Lessee's notification of TRUIST or TRUIST's assignee of such occurrence. In such Event
of Nonappropriation, this Agreement shall terminate on the last day of the Fiscal Year for which
appropriations were received without penalty or expense to the Lessee of any kind whatsoever.
Subsequent to such termination of this Agreement,the Lessee shall have no continuing obligation to
make Required Payments under this Agreement. No right of action or damages shall accrue to the
benefit of TRUIST or its assignee as to that portion of this Agreement which may so terminate. The
provisions of this paragraph shall remain in full force and effect notwithstanding the failure of any
party to comply with any provision of this Agreement and whether or not the Lessee is in default
under this Agreement. The Lessee agrees to surrender possession of the Equipment to TRUIST or
its assignee on the date of such termination. TRUIST shall have all the rights and remedies to take
possession of the Equipment and to sell, lease, or otherwise dispose of the Equipment as its own
property without liability to the Lessee.
Section 3.06. No Abatement. There shall be no abatement or reduction of the Required
Payments for any reason, including, but not limited to, any defense, recoupment, setoff,
counterclaim, or any claim (real or imaginary) arising out of or related to the Equipment, except as
expressly provided in this Agreement. The Lessee assumes and shall bear the entire risk of loss and
damage to the Equipment from any cause whatsoever. The Required Payments shall be made in all
events unless the Lessee's obligation to make Required Payments is terminated as otherwise
provided in this Agreement.
Section 3.07. Interest Rate and Payment Adjustment.(a)"Rate Adjustment Event'
means(i)any action by the Internal Revenue Service (including the delivery of a deficiency notice)
or any other federal court or administrative body determining, or (ii) receipt by TRUIST of an
opinion of nationally recognized bond counsel to the effect, (A)that the interest component of Base
Payments,or any portion thereof, is includable in any beneficiary's gross income for federal income
tax purposes or(B)that the Lessee's obligations under this Agreement are not"qualified tax-exempt
obligations"within the meaning of Code Section 265 (a"265 Event').
6
(b) Upon any Rate Adjustment Event, (i) the unpaid principal portion of the Amount
Advanced shall continue to be payable on dates and in amounts as set forth in Exhibit B, but(ii)the
interest components of the Base Payments shall be recalculated, at an interest rate equal to an
annualized interest rate equal to the Prime Rate plus 2% (200 basis points), to the date
(retroactively, if need be) determined pursuant to the Rate Adjustment Event to be the date interest
became includable in any beneficiary's gross income for federal income tax purposes(or in the case
of a 265 Event,retroactively to the Closing Date).
(c) The Lessee shall pay interest at such adjusted rate (subject to credit for interest
previously paid) to each affected beneficiary, notwithstanding the fact that any particular
beneficiary may not necessarily be a beneficiary to this Agreement on the date of a Rate
Adjustment Event. The Lessee shall additionally pay to all affected counterparties any interest,
penalties or other charges assessed against or payable by such beneficiary and attributable to a
Rate Adjustment Event notwithstanding the prior repayment of the entire Amount Advanced or
any transfer to another beneficiary.
ARTICLE IV
PROJECT FUNDS
Section 4.01. Proiect Fund. Pursuant to Section 2.02, on the Closing Date, TRUIST
shall deposit$891,766.00 into the Project Fund,which shall be a special account of the Lessee at
Truist Bank to be designated "2020-00009 City of Edgewater, FL Project Fund". The Project
Fund shall be held separate and apart from all other funds or accounts of the Lessee. The Project
Fund is the Lessee's property, but the Lessee may withdraw amounts on deposit in the Project
Fund only as provided herein and only for application from time to time to the payment of
Project Costs or otherwise as permitted by Section 4.03 hereof. Pending such application, such
amounts shall be subject to a lien and charge in favor of TRUIST to secure the Lessee's
obligations hereunder.
Section 4.02. Requisitions from Proiect Fund. The Lessee may withdraw funds from
the Project Fund only after authorization from TRUIST. TRUIST shall authorize the
disbursement of funds from the Project Fund only to the Lessee and only upon its receipt of one
or more written requisitions in the form set forth in Exhibit C attached hereto signed by a Lessee
Representative. The Lessee shall submit its signed requisitions in pdf format by electronic
transmission at the email address contained in the requisition form.
Upon receipt of a requisition from the Lessee, TRUIST shall undertake such review of
the matters referred to in such requisition as it shall deem appropriate, and within seven (7)
Business Days after such receipt shall notify the Lessee if it does not approve the requisition with
the reasons for its disapproval. TRUIST has no obligation to make a review and any review by
TRUIST is only for TRUIST's benefit. TRUIST shall not unreasonably withhold payment of
any requisition.
Section 4.03. Disposition of Proiect Fund Balance. (a) Promptly after the acquisition
of the Equipment, and when the Lessee has withdrawn from the Project Fund all of the funds
needed to acquire the Equipment, the Lessee shall deliver to TRUIST a written certificate of
completion executed by a Lessee Representative stating that (i) the Equipment has been
7
acquired, (ii) there are no mechanic's or other liens against the Equipment for labor or materials
furnished in connection with the acquisition of the Equipment, and (iii) no further funds will be
requisitioned from the Project Fund to pay Project Costs. TRUIST may then withdraw any
balance remaining in the Project Fund (and not required to be retained to pay Project Costs
incurred but not yet paid)and apply such amount as provided in subsection(d)of this Section.
(b) Upon the occurrence of an Event of Default, TRUIST may withdraw any balance
remaining in the Project Fund and apply such amount as provided in subsection (d) of this
Section.
(c) If(i) more than three years have elapsed from the Closing Date or (ii) at least six
months have elapsed from TRUIST's most recent receipt of a requisition for Project Costs, then
TRUIST, upon 30 days' notice from TRUIST to the Lessee, may withdraw any balance
remaining in the Project Fund and apply such amount as provided in subsection (d) of this
Section.
(d) TRUIST may apply any amounts withdrawn from the Project Fund pursuant to
this Section in the following order: (i) to the payment of any Additional Payments then due to
TRUIST under this Agreement, (ii) to the payment of any interest accrued to the Project Fund
disposition date that is then due and payable, (iii) to the payment of any principal amount then
due and payable, (iv) to the prepayment of principal and accrued interest in accordance with the
prepayment provisions of this Agreement, and (v) to the payment of future Base Payments in
inverse order of maturity; provided, however, that (1) at the option of TRUIST, TRUIST may
deliver funds held in the Project Fund to the Lessee to be applied to additional Project Costs or
future debt service payments, and(2) in no event will TRUIST apply any funds in the manner set
forth herein if it is advised in an opinion of bond counsel provided by the Lessee that such a use
of funds could adversely affect the exclusion from gross income for federal income tax purposes
of the interest component of Base Payments. Any prepayment pursuant to this Section shall not
affect any other Lessee payment obligation hereunder. TRUIST shall notify the Lessee of any
withdrawal from the Project Fund made under this Section, and in the notice shall describe its
application of the funds so withdrawn.
Section 4.04. Investment. (a) The Lessee and TRUIST agree that money in the Project
Fund will be continuously invested and reinvested in a public funds money rate savings account,
as directed by TRUIST.
(b) From and after the date that is three years from the Closing Date, the Lessee and
TRUIST agree that money in the Project Fund will not be invested at a "yield," as determined
under the Code, in excess of the"yield"on the Lessee's obligations under this Agreement,unless
the Lessee has supplied TRUIST with an opinion of bond counsel to the effect that such
investment will not adversely affect the exclusion from gross income for federal income tax
purposes to which the interest components of Base Payments would otherwise be entitled.
(c) Investment obligations acquired with money in the Project Fund shall be deemed at all
times to be part of the Project Fund. The interest accruing thereon and any profit or loss realized
upon the disposition or maturity of any such investment shall be credited to or charged against
8
the Project Fund.
(d) All earnings on moneys in the Project Fund shall be used for Project Costs or
otherwise applied in accordance with Section 4.03 hereof.
ARTICLE V
LESSEE'S COVENANTS,REPRESENTATIONS AND WARRANTIES
Section 5.01. [Reserved]
Section 5.02. Covenant as to Tax Exemption. (a) The Lessee covenants that it will not
take any action, or fail to take any action, if any such action or failure to take action would
adversely affect the exclusion from gross income for federal income taxation purposes of the
interest portion of the obligation created by this Agreement under Section 103 of the Code. In
particular, the Lessee covenants that it will not directly or indirectly use or permit the use of any
proceeds of any fund created under this Agreement, any funds of the Lessee or any property
financed or refinanced with funds provided to the Lessee under this Agreement, or otherwise
take or omit to take any action, that would cause the obligation created by this Agreement to be
an "arbitrage bond" within the meaning of Section 148(a) of the Code or a "private activity
bond" under Section 141 of the Code. The Lessee will maintain books on which will be
recorded (i) TRUIST or(ii)any assignee of the Base Payments due under this Agreement, as the
registered owner of such Base Payments. To that end, the Lessee has executed the Use of
Proceeds Certificate dated as of the date hereof (the "Use of Proceeds Certificate") and will
comply with all requirements of Section 141 and Section 148 of the Code to the extent
applicable.
(b) The Lessee hereby represents and warrants that its representations and warranties in
the Use of Proceeds Certificate with respect to its investment and use of funds provided under
this Agreement, and its use of any property financed or refinanced with funds provided under
this Agreement, are true, correct and complete.
(c) Without limiting the generality of the foregoing, the Lessee agrees that there shall be
paid from time to time all amounts required to be rebated to the United States of America
pursuant to Section 148(f) of the Code and any temporary, proposed or final Treasury
Regulations as may be applicable to the obligation created by this Agreement from time to
time. This covenant shall survive the termination of this Agreement.
(d)Notwithstanding any provision of this Section, if the Lessee shall provide to TRUIST
a Bond Counsel Opinion to the effect that any action required under this Section or the Use of
Proceeds Certificate is no longer required, or to the effect that some further action is required, to
maintain the exclusion from gross income of the interest on the obligation created by this
Agreement pursuant to Section 103 of the Code, the Lessee and TRUIST may rely conclusively
on such opinion in complying with the provisions thereof.
(e) To the extent permitted by law, the Lessee hereby designates and authorizes TRUIST
and its employees as its agents and attorneys-in-fact of the Lessee for the purpose of preparing and
filing with the IRS a form 8038 (or other form required under Section 149(e) of the Code) with
9
respect to this Agreement.
(f) The Lessee acknowledges that its personnel must be familiar with the arbitrage
rebate rules because the tax-exempt status of the interest on the Base Payments depends upon
continuing compliance with such rules. The Lessee therefore covenants to take all reasonable
action to assure that Lessee personnel responsible for the investment of and accounting for
financing proceeds comply with such rules.
(g) The Lessee represents that the aggregate face amount of all tax-exempt
obligations issued by the Lessee during the current calendar year does not, and will not, exceed
$10,000,000. The Lessee also represents that it has designated each of the Base Payments under
this Agreement as a"qualified tax-exempt obligation"for the purposes of the Code.
Section 5.03. Validity of Oreanization and Acts. The Lessee is validly organized and
existing under State law, has full power to enter into this Agreement and has duly authorized and
has obtained all required approvals and all other necessary acts required prior to the execution and
delivery of this Agreement. This Agreement is a valid, legal and binding obligation of the Lessee.
Section 5.04. Maintenance of Existence. The Lessee shall maintain its existence, shall
continue to be a local governmental unit of the State,validly organized and existing under State law,
and shall not consolidate with or merge into another local governmental unit of the State, or permit
one or more other local governmental units of the State to consolidate with or merge into it, unless
the local governmental unit thereby resulting assumes the Lessee's obligations under this
Agreement.
Section 5.05. Acquisition of Permits and Approvals. All permits,consents,approvals or
authorizations of all governmental entities and regulatory bodies, and all filings and notices required
on the Lessee's part to have been obtained or completed as of today in connection with the
authorization, execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement and the acquisition, installation and equipping of the Equipment
have been obtained and are in full force and effect, and there is no reason why any future required
permits,consents,approvals,authorizations or orders cannot be obtained as needed.
Section 5.06. No Breach of Law or Contract. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement, (a)to the best of the
Lessee's knowledge, constitutes a violation of any provision of law governing the Lessee or (b)
results in a breach of the terms,conditions or provisions of any contract, agreement or instrument or
order,rule or regulation to which the Lessee is a party or by which the Lessee is bound.
Section 5.07. No Litigation. There is no litigation or any governmental administrative
proceeding to which the Lessee (or any official thereof in an official capacity) is a party that is
pending or, to the best of the Lessee's knowledge after reasonable investigation, threatened with
respect to (a) the Lessee's organization or existence, (b) its authority to execute and deliver this
Agreement or to comply with the terms of this Agreement, (c) the validity or enforceability of this
Agreement or the transactions contemplated by this Agreement, (d) the title to office of any
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Governing Board member or any other Lessee officer or official, (e) any authority or proceedings
relating to the Lessee's execution or delivery of this Agreement, or (f) the undertaking of the
transactions contemplated by this Agreement.
Section 5.08. No Current Default or Violation. (a)The Lessee is not in violation of any
existing law, rule or regulation applicable to it, (b) the Lessee is not in default under any contract,
other agreement, order,judgment, decree or other instrument or restriction of any kind to which the
Lessee is a party or by which it is bound or to which any of its assets are subject, including this
Agreement, and (c) no event or condition has happened or existed, or is happening or existing,
under the provisions of any such instrument, including this Agreement, which constitutes or which,
with notice or lapse of time,or both,would constitute an event of default hereunder or thereunder.
Section 5.09. No Misrepresentation. No representation, covenant or warranty by the
Lessee in this Agreement is false or misleading in any material respect.
Section 5.10. Environmental Warranties.
(a) The Lessee warrants and represents to TRUIST that, to the best of the Lessee's
knowledge after thorough investigation, the Equipment is not now and has not ever been used to
generate, manufacture, refine, transport,treat, store, handle, dispose, transfer, produce or process
Hazardous Materials(defined below).
(b) The Lessee covenants that the Equipment shall be kept free of Hazardous
Materials and shall not be used to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials, except in connection with the normal
maintenance and operation of the Equipment, and the Lessee shall not cause or permit, as a result
of any intentional or unintentional act or omission on the part of the Lessee or any lessee, the
release of Hazardous Materials onto the Equipment or suffer the presence of Hazardous
Materials on the Equipment, except in connection with the normal maintenance and operation of
the Equipment.
(c) The Lessee shall comply with, and ensure compliance by all users and lessees
with, all applicable federal, State and local laws, ordinances, rules and regulations with respect to
Hazardous Materials and shall keep the Equipment free and clear of any liens imposed pursuant
to such laws, ordinances, rules and regulations. If the Lessee receives any notices from any
governmental agency or any lessee with regard to Hazardous Materials on, from or affecting the
Equipment, the Lessee shall immediately notify TRUIST. The Lessee shall conduct and
complete all investigations, studies, sampling and testing and all remedial, removal and other
actions necessary to clean up and remove all Hazardous Materials, on, from or affecting the
Equipment in accordance with all applicable federal, State and local laws, ordinances, rules,
regulations and policies and to TRUIST's satisfaction.
(d) "Hazardous Materials" means any explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos or any
materials containing asbestos, or any other substance or material as defined by any federal, State
or local environmental law, ordinance, rule or regulation including, without limitation, the
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Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. sections 9601 et seg.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. sections 1801 et sue.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. sections 9601 et seq.), and the regulations adopted and publications promulgated pursuant
thereto.
(e) To the extent permitted by law, the Lessee shall indemnify and hold TRUIST
harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities,
costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or
experts' fees and expenses) of every kind and nature suffered by or asserted against TRUIST as a
direct or indirect result of any warranty or representation made by the Lessee in subsections (a)
through (c) above being false or untrue in any material respect, or (ii) any requirement under any
law, regulation or ordinance, local, State or federal, which requires the elimination or removal of
any hazardous materials, substances, wastes or other environmentally regulated substances by
TRUIST or the Lessee or any transferee or assignee TRUIST or the Lessee.
(f) The Lessee's obligations under this Section shall continue in full force and effect
notwithstanding full payment of the Required Payments or execution on the security interests
created under this Agreement.
Section 5.11. Further Instruments. Upon TRUIST's request, the Lessee shall execute,
acknowledge and deliver such further instruments reasonably necessary or desired by TRUIST to
carry out the purposes of this Agreement or any other document related to the transactions
contemplated by this Agreement,and subject to the liens and security interests hereof and thereof all
or any part of the Security Property intended to be given or conveyed hereunder or thereunder,
whether now given or conveyed or acquired and conveyed subsequent to the date of this
Agreement.
Section 5.12. TRUIST's Advances for Performance of Lessee's Obli ations. If the
Lessee fails to perform any of its obligations under this Agreement, TRUIST is hereby authorized,
but not obligated,to perform such obligation or cause it to be performed. All expenditures incurred
by TRUIST (including any advancement of funds for payment of taxes, insurance premiums or
other costs of maintaining the Equipment, and any associated legal or other expenses,together with
interest at the Prime Rate), shall be secured as Additional Payments under this Agreement. The
Lessee promises to pay all such amounts to TRUIST immediately upon demand.
Section 5.13. Equipment Will Be Used and Useful. The acquisition, installation and
equipping of the Equipment is necessary and expedient for the Lessee, and will perform essential
functions of the Lessee appropriate for units of local government. The Lessee has an immediate
need for, and expects to make immediate use of, all of the Equipment, and does not expect such
need or use to diminish in any material respect during the term of the Agreement. The Equipment
will not be used in any private business or put to any private business use.
Section 5.14. Financial Information.
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(a) The Lessee shall send to TRUIST a copy of the Lessee's audited financial
statements for each Fiscal Year within 30 days of the Lessee's acceptance of such statements,but in
any event within 270 days of the completion of such Fiscal Year.
(b) The Lessee shall furnish TRUIST, at such reasonable times as TRUIST shall
request, all other financial information(including,without limitation, the Lessee's annual budget as
submitted or approved)as TRUIST may reasonably request. The Lessee shall permit TRUIST or its
agents and representatives to inspect the Lessee's books and records and make extracts therefrom.
Section 5.15. Taxes and Other Governmental Char es. The Lessee shall pay, as
Additional Payments, the full amount of all taxes, assessments and other governmental charges
lawfully made by any governmental body during the term of this Agreement. With respect to
special assessments or other governmental charges which may be lawfully paid in installments over
a period of years, the Lessee shall be obligated to provide for Additional Payments only for such
installments as are required to be paid during the Agreement term. The Lessee shall not allow any
liens for taxes, assessments or governmental charges with respect to the Equipment or any portion
thereof to become delinquent(including,without limitation,any taxes levied upon the Equipment or
any portion thereof which, if not paid, will become a charge on any interest in the Equipment,
including TRUIST's interest,or the rentals and revenues derived therefrom or hereunder).
Section 5.16. Lessee's Insurance.
(a) The Lessee shall, at its own expense, acquire, carry and maintain broad-form
extended coverage property damage insurance with respect to all Equipment in an amount equal to
the actual cash value of the Equipment. Such property damage insurance shall include TRUIST as
loss payee. Any Net Proceeds of the insurance required by this subsection (a) shall be payable as
provided in Section 6.15 hereof.
(b) The Lessee shall, at its own expense, acquire, carry and maintain comprehensive
general liability insurance (and auto liability insurance, if applicable) in accordance with State
statute or as customarily held by similar entities in the State.
(c) The Lessee shall also maintain workers' compensation insurance issued by a
responsible carrier authorized under State law to insure the Lessee against liability for compensation
under applicable State law as in effect from time to time.
(d) All insurance shall be maintained with generally recognized responsible insurers in
accordance with State law and may carry reasonable deductible or risk-retention amounts.
(e) TRUIST shall not be responsible for the sufficiency or adequacy of any required
insurance and shall be fully protected in accepting payment on account of such insurance or any
adjustment,compromise or settlement of any loss agreed to by TRUIST.
(g) Upon request by TRUIST, the Lessee shall deliver to TRUIST a certificate stating
that the risk coverages required by this Agreement are in effect, and stating the carriers, policy
numbers,coverage limits and deductible or risk-retention amounts for all such coverages.
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ARTICLE VI
THE EQUIPMENT
Section 6.01. Acquisition, Installation and Equipping. The Lessee shall comply with
all provisions of law applicable to the acquisition of the Equipment, accept all portions of the
Equipment when properly delivered, provide for the proper installation and equipping thereof
and thereafter promptly place each such portion in service.
Section 6.02. Changes in Location. The Lessee shall promptly inform TRUIST if any
component of the Equipment shall be moved from the location designated for such Equipment at
the time of its acquisition.
Section 6.03. Acquisition and Installation within Funds Available. The Lessee
represents that, based upon its examination of the plans and specifications for the Equipment,
estimated installation costs and the Equipment's anticipated configuration, the Equipment can be
acquired and installed for a total price within the total amount of funds to be available therefor in the
Project Fund, income anticipated to be derived from the investment thereof and other funds
previously identified and designated for such purposes. If the total amount available for such
purposes in the Project Fund shall be insufficient to pay the entire cost of acquiring and installing
the Equipment, the Lessee promises to pay any such excess costs, with no resulting reduction or
offset in the amounts otherwise payable by the Lessee under this Agreement.
Section 6.04. Disclaimer of Warranties. The Lessee agrees that TRUIST has not
designed the Equipment, that TRUIST has not supplied any plans or specifications with respect
thereto and that TRUIST(a) is not a manufacturer of, nor a dealer in, any of the component parts of
the Equipment or similar equipment, (b) has not made any recommendation, given any advice nor
taken any other action with respect to (i) the choice of any supplier, vendor or designer of, or any
other contractor with respect to, the Equipment or any component part thereof or any property or
rights relating thereto, or (ii) any action taken or to be taken with respect to the Equipment or any
component part thereof or any property or rights relating thereto at any stage of the acquisition,
installation and equipping thereof, (c) has not, at any time, had physical possession of the
Equipment or any component part thereof or made any inspection thereof or of any property or
rights relating thereto, and (d) has not made any warranty or other representation, express or
implied,that the Equipment or any component part thereof or any property or rights relating thereto
(i) will not result in or cause injury or damage to persons or property, (ii) has been or will be
properly designed,or will accomplish the results which the Lessee intends therefor, or(iii) is safe in
any manner or respect.
TRUIST MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION
OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR ANY
COMPONENT PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OR REPRESENTATION WITH RESPECT TO THE MERCHANTABILITY OR THE FITNESS
OR SUITABILITY THEREOF FOR ANY PURPOSE, and further including the design or
condition thereof; the safety, quality or capacity thereof; compliance thereof with the requirements
of any law, rule, specification or contract pertaining thereto; any latent defect; the Equipment's
14
ability to perform any function;that the Amount Advanced will be sufficient to pay all costs of the
acquisition and installation of the Equipment; or any other characteristic of the Equipment; it being
agreed that the Lessee is to bear all risks relating to the Equipment, the installation thereof and the
transactions contemplated by this Agreement, and the Lessee hereby waives the benefits of any and
all implied warranties and representations of TRUIST.
The provisions of this Section shall survive the Agreement's termination.
Section 6.05. Rieht of Entry and Inspection. TRUIST and its representatives and agents
shall have the right to enter upon the Lessee's property and inspect the Equipment from time to
time,and the Lessee shall cause any vendor, contractor or sub-contractor to cooperate with TRUIST
and its representatives and agents during such inspections.
No right of inspection or approval granted in this Section shall be deemed to impose upon
TRUIST any duty or obligation whatsoever to undertake any inspection or to make any approval.
No inspection made or approval given by TRUIST shall be deemed to impose upon TRUIST any
duty or obligation whatsoever to identify or correct any defects in the Equipment or to notify any
person with respect thereto, and no liability shall be imposed upon TRUIST, and no warranties
(either express or implied) are made by TRUIST as to the quality or fitness of any improvement,
any such inspection and approval being made solely for TRUIST's benefit.
Section 6.06. Compliance with Requirements.
(a) The Lessee shall cause the Equipment to be installed in a careful manner and in
compliance with all applicable legal requirements.
(b) The Lessee shall observe and comply promptly with all current and future
requirements relating to the Equipment's use or condition imposed by(i)any judicial, governmental
or regulatory body having jurisdiction over the Equipment or any portion thereof or (ii) any
insurance company writing a policy covering the Equipment or any portion thereof, whether or not
any such requirement shall necessitate structural changes or improvements or interfere with the use
or enjoyment of the Equipment.
(c) The Lessee shall obtain and maintain in effect all licenses and permits required for
the Equipment's operation.
(d) The Lessee shall in no event use the Equipment or any part thereof, nor allow the
same to be used, for any unlawful purpose, or suffer any act to be done or any condition to exist
with respect to the Equipment or any part thereof, nor any article to be brought thereon,which may
be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance,
public or private, or which may make void or voidable any insurance then in force with respect
thereto.
Section 6.07. Use and Operation. The Lessee shall use and operate the Equipment and
related property for its reasonably intended use or purpose and for no other purpose unless required
15
by law. The Lessee shall be solely responsible for the Equipment's operation, and shall not contract
with any other person or entity for the Equipment's operation.
Section 6.08. Maintenance and Repairs;Additions.
(a) The Lessee shall keep the Equipment in good order and repair(reasonable wear and
tear excepted) and in good operating condition, shall not commit or permit any waste or any other
thing to occur whereby the value or usefulness of the Equipment might be impaired, and shall make
from time to time all necessary or appropriate repairs,replacements and renewals.
(b) The Lessee may, also at its own expense, make from time to time any additions,
modifications or improvements to the Equipment that it may deem desirable for its governmental or
proprietary purposes and that do not materially impair the effective use, nor materially decrease the
value or substantially alter the intended use, of the Equipment. The Lessee shall do, or cause to be
done, all such things as may be required by law in order fully to protect the security of and all
TRUIST's rights under this Agreement.
(c) Any and all additions to or replacements of the Equipment and all parts thereof shall
constitute accessions to the Equipment and shall be subject to all the terms and conditions of this
Agreement and included in the"Equipment"for the purposes of this Agreement.
(d) Notwithstanding the provisions of subsection (c) of this Section, however, the
Lessee may, from time to time in its sole discretion and at its own expense, install machinery,
equipment and other tangible property in or on the Equipment. All such property shall remain the
Lessee's sole property in which TRUIST shall have no interest; provided, however, that any such
property which becomes permanently affixed to the Equipment shall be subject to the lien and
security interest arising under this Agreement if TRUIST shall reasonably determine that the
Equipment would be damaged or impaired by the removal of such machinery, equipment or other
tangible property.
Section 6.09. Security. The Lessee shall take all reasonable steps necessary to safeguard
the Equipment against theft. The security afforded the Equipment shall at all times be equal to or
better than the security afforded the Lessee's personal property that is not subject to this Agreement.
Section 6.10. Utilities. The Lessee shall pay all charges for utility services furnished to or
used on or in connection with the Equipment, as may be applicable dependent upon the type of
equipment.
Section 6.11. Risk of Loss. The Lessee shall bear all risk of loss to the Equipment.
Section 6.12. Condemnation. The Lessee shall immediately notify TRUIST if any
governmental authority shall institute, or shall notify the Lessee of any intent to institute, any action
or proceeding for the taking of, or damages to, all or any part of the Equipment or any interest
therein under the power of eminent domain,or if there shall be any damage to the Equipment due to
governmental action,but not resulting in a taking of any portion of the Equipment. The Lessee shall
file and prosecute its claims for any such awards or payments in good faith and with due diligence
16
and cause the same to be collected and paid over to TRUIST, and to the extent permitted by law
hereby irrevocably authorizes and empowers TRUIST, in the Lessee's name or otherwise,to collect
and receipt for any such award or payment and to file and prosecute such claims. If the Lessee
receives any Net Proceeds arising from any such action,the Lessee shall apply such Net Proceeds as
provided in Section 6.15.
Section 6.13. Title. Title to the Equipment and any and all additions, repairs,
replacements or modifications thereto shall at all times be in the Lessee, subject to the lien of this
Agreement. Upon the Lessee's payment in full of all Required Payments, TRUIST, at the Lessee's
expense and request, shall cancel this Agreement.
Section 6.14. No Encumbrance.Mortgaee or Pledge of Equipment.
(a) The Lessee shall not directly or indirectly create, incur, assume or suffer to exist any
mortgage, pledge, lien (including mechanics' and materialmen's liens), charge, encumbrance or
other claim in the nature of a lien on or with respect to the Equipment. The Lessee shall promptly,
at its own expense, take such action as may be duly necessary to discharge any such mortgage,
pledge, lien, charge, encumbrance or claim not excepted above which it shall have created, incurred
or suffered to exist.
(b) The Lessee shall reimburse TRUIST for any expense incurred by TRUIST to
discharge or remove any such mortgage, pledge, lien, security interest, encumbrance or claim, with
interest thereon at the Prime Rate.
Section 6.15. Damage and Destruction;Use of Net Proceeds.
(a) The Lessee shall promptly notify TRUIST if (i) the Equipment or any portion
thereof is stolen or is destroyed or damaged by fire or other casualty, (ii) a material defect in the
installation of the Equipment shall become apparent,or(iii)title to or the use of all or any portion of
the Equipment shall be lost by reason of a defect in title. Each notice shall describe generally the
nature and extent of such damage, destruction or taking.
(b) The Lessee shall apply the Net Proceeds, (i) to the prompt completion, repair or
restoration of the Equipment, (and pay any costs in excess of Net Proceeds, if necessary), or (ii)
together with other available funds as may be necessary, to the prepayment of all outstanding
Required Payments pursuant to Section 3.03. The Lessee shall promptly report to TRUIST
regarding the use of Net Proceeds.
(c) Any repair, restoration,modification, improvement or replacement paid for in whole
or in part out of Net Proceeds shall be the Lessee's property and shall be part of the Equipment.
ARTICLE VII
DEFAULTS AND REMEDIES; TERMINATION
Section 7.01. Events of Default. An"Event of Defaulf'is any of the following:
17
(a) Except as provided in Section 7.04 hereof, the Lessee's failing to make any Base
Payment when due.
(b) The Lessee's breaching or failing to perform or observe any term, condition or
covenant of this Agreement on its part to be observed or performed, other than as provided in
subsection(a)of this Section, including payment of any Additional Payment, for a period of 15 days
after written notice specifying such failure and requesting that it be remedied shall have been given
to the Lessee by TRUIST, unless TRUIST shall agree in writing to an extension of such time prior
to its expiration.
(c) The institution of proceedings under any bankruptcy, insolvency, reorganization or
similar law by or against the Lessee as a debtor, or the appointment of a receiver, custodian or
similar officer for the Lessee or any of its property, and the failure of such proceedings or
appointments to be vacated or fully stayed within 30 days after the institution or occurrence thereof.
(d) Any warranty, representation or statement made by the Lessee in this Agreement is
found to be incorrect or misleading in any material respect on the Closing Date (or, if later, on the
date made).
(e) Any lien, charge or encumbrance prior to the security interest created under Section
2.03 hereof, or affecting the validity of the Agreement, is found to exist, or proceedings are
instituted against the Lessee to enforce any lien, charge or encumbrance against the Equipment and
such lien, charge or encumbrance would be prior to the lien of this Agreement.
Section 7.02. Remedies on Default. Upon the continuation of any Event of Default,
TRUIST may, without any further demand or notice, exercise any one or more of the following
remedies:
(a) Declare the unpaid principal components of the Base Payments immediately due and
payable;
(b) Proceed by appropriate court action to enforce the Lessee's performance of the
applicable covenants of this Agreement or to recover for the breach thereof;
(c) As provided in Article IV hereof, pay over any balance remaining in the Project
Funds to be applied against outstanding Base Payments in any manner TRUIST may reasonably
deem appropriate;and
(d) Avail itself of all available remedies under this Agreement, including execution as
provided in Section 7.03 hereof, and,to the extent permitted by law, recovery of attorneys' fees and
other expenses.
Section 7.03. Execution on Personal Property. Upon the continuation of any Event of
Default and in addition to all other remedies granted in this Agreement, TRUIST shall have all the
rights and remedies of a secured party under the UCC and may proceed to execute upon the
Security Property.
18
Section 7.04. Consequences of Nonappropriation. Upon an Event of Nonappropriation,
the Lessee shall have no further obligation to pay Base Payments beyond the end of the Fiscal Year
for which amounts have been appropriated for Base Payments. This Agreement shall terminate on
the last day of the Fiscal Year for which amounts have been appropriated for Base Payments
without any penalty to the Lessee whatsoever. The Lessee agrees to peaceably surrender possession
the Equipment to TRUIST or its assignees on the first day of the Fiscal Year to which the Event of
Nonappropriation applies, packed for shipment in accordance with manufacturer specifications and
freight prepaid and insured to any location in the continental United States as designated by
TRUIST.
In addition, upon the occurrence of any Event of Nonappropriation, TRUIST may, without
any further demand or notice, take action with respect to the Lessee and the Equipment as
contemplated in Section 7.05 hereof.
Section 7.05. Possession of Equipment. Upon the continuation of an Event of Default or
the occurrence of an Event of Nonappropriation, the Lessee shall immediately lose the right to
possess,use and enjoy the Equipment(but may remain in possession of the Equipment as a lessee at
will of TRUIST), and thereupon the Lessee(a) shall pay monthly in advance to TRUIST a fair and
reasonable rental value for the use and possession of the Equipment (in an amount TRUIST shall
determine in its reasonable judgment), and(b)upon TRUIST's demand, shall deliver possession of
the Equipment to TRUIST or, at TRUIST's direction, to any purchaser of the Equipment after an
execution sale.
In addition, upon the continuation of any Event of Default or the occurrence of an Event of
Nonappropriation, TRUIST, to the extent permitted by law, is hereby authorized to (i) take
possession of the Equipment, with or without legal action, (ii) lease the Equipment, (iii) collect all
rents and profits therefrom, with or without taking possession of the Equipment, and (iv) after
deducting all costs of collection and administration expenses, apply the net rents and profits first to
the payment of necessary maintenance and insurance costs, and then to the Lessee's account and in
reduction of the Lessee's corresponding Required Payments in such fashion as TRUIST shall
reasonably deem appropriate. TRUIST shall be liable to account only for rents and profits it
actually receives.
Section 7.06. No Remedy Exclusive; Delay Not Waiver. All remedies under this
Agreement are cumulative and may be exercised concurrently or separately. The exercise of any
one remedy shall not be deemed an election of such remedy or preclude the exercise of any other
remedy. If any Event of Default shall occur and thereafter be waived by TRUIST,such waiver shall
be limited to the particular breach so waived and shall not be deemed a waiver of any other breach
under this Agreement.
Section 7.07. Payment of Costs and Attorney's Fees. If TRUIST employs an attorney to
assist in the enforcement or collection of Required Payments,or if TRUIST voluntarily or otherwise
shall become a party to any suit or legal proceeding (including a proceeding conducted under any
state or federal bankruptcy or insolvency statute)to protect the Equipment,to protect the lien of this
Agreement, to enforce collection of the Required Payments or to enforce compliance by the Lessee
19
with any of the provisions of this Agreement, the Lessee, to the extent permitted by law, agrees to
pay reasonable attorneys' fees and all of the costs that may reasonably be incurred (whether or not
any suit or proceeding is commenced), and such fees and costs (together with interest at the Prime
Rate)shall be secured as Required Payments.
ARTICLE VIII
WIRE TRANSFER REQUIREMENTS
In order to prevent unauthorized or fraudulent wire transfers through cyber fraud and
other means, TRUIST and the Lessee hereby agree to the provisions of this Article VIII.
Section 8.01. Wire Transfer Requirements. In the event a wire transfer is made by
TRUIST to disburse funds as contemplated by this Agreement (a "Disbursement'), said wire
transfer shall be delivered as directed in a written "Disbursement Authorization" provided to
TRUIST by a representative of the Lessee, subject to the terms and conditions set forth in this
Article. For the purposes of this Article, a representative of the Lessee shall include employees
and elected and/or appointed officials of the Lessee, bond counsel,the Lessee's legal counsel or
the Lessee's financial advisor.
Section 8.02. Verification Procedures. Prior to making any Disbursement pursuant to
a Disbursement Authorization not delivered to TRUIST in person by a representative of the
Lessee, TRUIST shall verify such Disbursement Authorization verbally via telephone
communication with a representative of the Lessee. The Lessee shall ensure that a representative
of the Lessee will provide such verification to TRUIST. The Lessee shall not disclose, or allow
to be disclosed, such TRUIST verification procedures to any third party unless there is a
legitimate business need to make such disclosure or such disclosure is required by law, and the
Lessee accepts the risk of such third-party knowledge of the security procedures. If the Lessee
has reason to believe that a security procedure has been obtained by or disclosed to an
unauthorized person or learns of any unauthorized transfer or of any discrepancy in a transfer
request,then the Lessee shall notify TRUIST immediately.
Section 8.03. Payee Identification. The Lessee is solely responsible for accurately
identifying the wire transfer information contained in the Disbursement Authorization delivered
to TRUIST by a representative of the Lessee, including but not limited to the bank name and its
ABA number, beneficiary's account name and account number and beneficiary's physical
address, together with other information requested by TRUIST (collectively, "Remittance
Instructions'). If the Remittance Instructions describe a beneficiary inconsistently by name and
account number, the Lessee acknowledges that TRUIST may make payment on the basis of the
account number alone, that TRUIST is not obligated to detect such errors, and that the Lessee
assumes the risk of any loss resulting therefrom.
Section 8.04. Duty to Reconcile Written Confirmation. Upon request from a
representative of the Lessee, TRUIST shall use its best efforts to send a representative of the
Lessee written confirmation of the Disbursement in the form of a reference number, beneficiary
name and wire amount. A representative of the Lessee shall promptly review and reconcile the
written confirmation of the Disbursement sent by TRUIST, and shall report to TRUIST in
20
writing, promptly, but in no event later than ten (10) Business Days after the date of such written
confirmation, any unauthorized, erroneous, unreceived or improperly executed payment.
TRUIST and the Lessee agree that ten (10) Business Days is a reasonable time for the detection
and reporting to TRUIST of such information. After that time, all items on the written
confirmation will be considered correct and the Lessee will be precluded from recovering from
TRUIST if such wire transfer identified in the written confirmation was actually made by
TRUIST. For the avoidance of doubt, any such writings can be provided electronically.
Section 8.05. Unauthorized Payments. Notwithstanding any other provision herein, if
a Disbursement has been verified by a representative of the Lessee pursuant to Section 8.02, it
shall be binding on the Lessee if TRUIST acted in good faith in making such Disbursement.
Section 8.06. Recordation. TRUIST may record any telephone conversation between
TRUIST and a representative of the Lessee in order to reduce the risk of unauthorized or
erroneous transfers. TRUIST may retain such recordings for as long as TRUIST may deem
necessary.
Section 8.07. RESERVED
Section 8.08. Applicable Law. All wire transfer orders are governed by Article 4A of
the UCC, except as any provisions thereof that may be and are modified by the terms hereof. If
any part of the applicable wire transfer order involves the use of the Fedwire, the rights and
obligations of TRUIST and the Lessee regarding that wire transfer order are governed by
Regulation J of the Federal Reserve Board.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices.
(a) Any communication required or permitted by this Agreement must be in writing.
(b) Any communication under this Agreement shall be sufficiently given and deemed
given when delivered by hand, on the date shown on a certified mail receipt, or delivery receipt
from a national commercial package delivery service or five days after being mailed by first-class
mail,postage prepaid, if addressed as follows:
(i) If to the Lessee, to City of Edgewater, Attention: City Manager, PO Box
100, Edgewater, Florida 32132;or
(ii) If to TRUIST, to Truist Bank, 5130 Parkway Plaza Boulevard, Charlotte,
North Carolina 28217,Attention: Governmental Finance.
(c) Any addressee may designate additional or different addresses for communications
by notice given under this Section to each of the others.
21
Section 9.02. No Assignments by Lessee. The Lessee shall not sell or assign any interest
in this Agreement.
Section 9.03. Assignments by TRUIST. TRUIST may, at any time and from time to
time, assign all or any part of its interest in the Security Property or this Agreement, including,
without limitation, TRUIST's rights to receive Required Payments. Any assignment made by
TRUIST or any subsequent assignee shall not purport to convey any greater interest or rights than
those held by TRUIST pursuant to this Agreement.
The Lessee agrees that this Agreement may become part of a pool of obligations at
TRUIST's or its assignee's option. TRUIST or its assignees may assign or reassign all or any part
of this Agreement, including the assignment or reassignment of any partial interest through the use
of certificates evidencing participation interests in this Agreement. Notwithstanding the foregoing,
no assignment or reassignment of TRUIST's interest in the Equipment or this Agreement shall be
effective unless and until the Lessee shall receive a duplicate original counterpart of the document
by which such assignment or reassignment is made disclosing the name and address of each such
assignee.
The Lessee further agrees that TRUIST's interest in this Agreement may be assigned in
whole or in part upon terms which provide in effect that the assignor or assignee will act as a
collection and paying agent for any holders of certificates of participation in this Agreement,
provided the Lessee receives a copy of such agency contract and such collection and paying agent
covenants and agrees to maintain for the full remaining term of this Agreement a written record of
each assignment and reassignment of such certificates of participation.
The Lessee agrees to execute any document reasonably required in connection with any
assignment. Any assignor must provide notice of any assignment to the Lessee, and the Lessee
shall keep a complete and accurate record of all assignments as required by the Code. After the
giving of any such notice, the Lessee shall thereafter make all payments in accordance with the
notice to the assignee named therein and shall, if so requested, acknowledge such assignment in
writing, but such acknowledgment shall in no way be deemed necessary to make the assignment
effective.
Section 9.04. Amendments. No term or provision of this Agreement may be amended,
modified or waived without the prior written consent of the Lessee and TRUIST.
Section 9.05. Governing Law. The Lessee and TRUIST intend that Florida State law
shall govern this Agreement.
Section 9.06. Liability of Officers and Agents. No officer, agent or employee of the
Lessee shall be subject to any personal liability or accountability by reason of the execution of this
Agreement or any other documents related to the transactions contemplated by this Agreement.
Such officers or agents shall be deemed to execute such documents in their official capacities only,
and not in their individual capacities. This Section shall not relieve an officer,agent or employee of
the Lessee from the performance of any official duty provided by law.
22
Section 9.07. Severability. If any provision of this Agreement shall be determined to be
unenforceable,that shall not affect any other provision of this Agreement.
Section 9.08. Non-Business Days. If the date for making any payment or the last day for
performance of any act or the exercising of any right shall not be a Business Day, such payment
shall be made or act performed or right exercised on or before the next preceding Business Day.
Section 9.09. Entire Agreement. This Agreement constitutes the Lessee's entire
agreement with respect to the general subject matter covered by this Agreement.
Section 9.10. Binding Effect. Subject to the specific provisions of this Agreement, and in
particular, Section 9.03 hereof, this Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties and their respective successors and assigns.
[Remainder of Page Left Blank]
23
IN WITNESS WHEREOF, the parties have duly signed, sealed and delivered this
Agreement by duly authorized officers,all as of the date first above written.
_ (SEAL}
ATTEST -,C � F ED�GE' f1jOMDA
BY
Printe f Y )�;,
Printed Name:l .� tiu_
Title: GIYy Cam? Title: `��'L►
TRUIST BANK
By.
Printed Name:Trina Britt
Title: Assistant Vice President
Lease Agreement dated April 8, 2020, between the City of Edgewater, Florida, and
Truist Bank
24
EXHIBIT A -- PROJECT AND EQUIPMENT DESCRIPTION
Four(4)Refuse Trucks; all as may be more particularly described in documentation submitted
with requisitions pursuant to Article IV herein.
A-1
EXHIBIT B--PAYMENT SCHEDULE
City of Edgewater,FL Customer No.9909000243 NAICS 921140
Four(4)Refuse Trucks Note No.00009
Dated Date 4/8/2020
Delivery
Date 4/8/2020
Period Annual Debt
Ending Principal Coupon Interest Debt Service Service Bond Balance Total Bond Value
4/8/2020 922,000 922,000
7/l/2020 33,000 1.800% 3,826.30 36,826.30 36,826.30 889,000 889,000
l/l/2021 8,001.00 8,001.00 889,000 889,000
7/1/2021 142,000 1.800% 8,001.00 150,001.00 158,002.00 747,000 747,000
l/l/2022 6,723.00 6,723.00 747,000 747,000
7/l/2022 144,000 1.800% 6,723.00 150,723.00 157,446.00 603,000 603,000
l/l/2023 5,427.00 5,427.00 603,000 603,000
7/l/2023 147,000 1.800% 5,427.00 152,427.00 157,854.00 456,000 456,000
l/l/2024 4,104.00 4,104.00 456,000 456,000
7/l/2024 149,000 1.800% 4,104.00 153,104.00 157,208.00 307,000 307,000
l/l/2025 2,763.00 2,763.00 307,000 307,000
7/l/2025 152,000 1.800% 2,763.00 154,763.00 157,526.00 155,000 155,000
l/l/2026 1,395.00 1,395.00 155,000 155,000
7/l/2026 155,000 1.800% 1,395.00 156,395.00 157,790.00
922,000 60,652.30 982,652.30 982 652.30
B-1
EXHIBIT C-—FORM OF PROJECT FUND REQUISITION
[TO BE PREPARED ON LESSEE'S LETTERHEAD FOR SUBMISSION]
PROJECT FUND REQUISITION
[Date]
Email requisitions to: GFProjectfunds@bbandt.com
Requisition Team
Truist Bank
Direct Dial: (252)296-0452 or(252)296-0653
RE: Request for disbursement of funds from the Project Fund related to Contract No.
9909000243-00009 with the City of Edgewater, dated April 8, 2020
To Whom It May Concern,
Pursuant to the terms and conditions of the Lease Agreement dated as of April 8, 2020 (the
"Agreement") between City of Edgewater (the "Lessee") and Truist Bank, the Lessee requests
the disbursement of funds from the Project Fund established under the Agreement for the
following Project Costs:
This is requisition number from the Project Fund.
Disbursements will be to the City of Edgewater.
Amount: $
Attach copies of Certificates of Origin or Titles and applicable vendor invoices when submitting.
Project Description: Refuse Vehicles
Location of Equipment/Project:
To receive funds via wire transfer please include:
ABA Routing Number:
Account Number:
Physical address of Lessee: City of Edgewater, [Address],Attention:
The Lessee makes this requisition pursuant to the following representations:
1. The Lessee has appropriated in its current fiscal year funds sufficient to pay the Base
Payments and estimated Additional Payments due in the current Fiscal Year.
C-1
2. The purpose of this disbursement is for partial payment of the cost of the Project
provided for under the Agreement referenced above.
3. The requested disbursement has not been subject to any previous requisition.
4. No notice of any lien, right to lien or attachment upon, or claim affecting the right to
receive payment of, any of the moneys payable herein to any of the persons, firms or
corporations named herein has been received, or if any notice of any such lien,
attachment or claim has been received, such lien, attachment or claim has been released
or discharged or will be released or discharged upon payment of this requisition.
5. This requisition contains no items representing payment on account of any percentage
entitled to be retained on the date of this requisition.
6. No Event of Default is continuing under the Agreement, and no event or condition is
existing which, with notice or lapse of time or both,would become an Event of Default.
7. The Lessee shall allow TRUIST to deliver and file, or cause to be filed, any Uniform
Commercial Code financing statements with respect to the Project or portion of the
Project that TRUIST may request to evidence its security interest.
8. The Lessee has in place insurance on this portion of the Project that complies with the
insurance provisions of the Agreement.
9. Each amount requested for payment in this requisition either (a) represents a
reimbursement to the Lessee for a Project Cost expenditure previously made, and such
reimbursement complies with the provisions of the Code (generally, an issuer may
reimburse a prior expenditure out of tax-exempt bond proceeds if (i) the issuer has
declared its "official intent" to reimburse the expenditure no later than 60 days after the
date the expenditure is paid and(ii)the expenditure is being reimbursed no later than the
end of the permitted "reimbursement period" of at least 18 months, and at most 3 years,
from the date the expenditure was paid), or(b)will be used by the Lessee promptly upon
the receipt of funds from TRUIST to make payments for Project Costs to third parties
described in this requisition.
Capitalized terms used in this requisition have the meanings ascribed in the Agreement.
C-2
Attached is evidence that the amounts shown in this requisition are properly payable at
this time, such as bills, receipts, invoices, architects' payment certifications or other appropriate
documents.
IF REQUEST IS FINAL REQUEST, CHECK HERE ❑.
City of Edgewater
By:
Printed Name:
Title:
C-3
CERTIFICATE DESIGNATING LESSEE
REPRESENTATIVES AND OFFICIAL CUSTODIAN
In accordance with the terms of the Lease Purchase Agreement dated April 8, 2020 (the
"Contract")between the City of Edgewater,Florida(the"Lessee")and Truist Bank("Truist"),the
Lessee designates the persons listed below as Lessee Representatives authorized to sign
requisitions to withdraw funds from the Project Fund account (as such terms are defined in the
Contract).
Printed Name: Signature`le 4,fi
'
s,dle
The Lessee designates the person listed below an Official Custodian for the purposes of
the Federal Deposit Insurance Corporation. The person listed below is an officer, employee or
agent of the Lessee who has plenary authority,including control,over funds owned by the Lessee.
Control of public funds includes possession of,as well as the authority to establish,accounts in an
insured depository institution and to make deposits, withdrawals and disbursements. The Official
Custodian on the account is considered the insured depositor.
Printed Name: Sign a Last 4 Numbers of Date of
SSNI: Birth:
Upon written notification o ruist, the Lessee may update (a) Lessee Representatives to
sign requisitions, or(b)the Official Custodian.
CITY OF GEWATER,FLORIDA
i
Name: 4^E I
Title: C—rV Pry
*The Official Custodian must provide a copy of his/her driver's license.
1 The last 4 digits of the official custodian's social security number will be used only to differentiate
the official custodian from other Truist account holders with the same name.
1
4836-4356-5241 Y.I
differentiate the official custodian from other Truist account holders with the same name.
D-2