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Resolution 94-21087 t , i t w1 e • y d ,r S_.; • RESOLUTION NUMBER 94-21087 A RESOLUTION OF THE MAYOR AND CITY COMMISSION APPROVING A LOAN IN THE AMOUNT OF $500, 000 FROM RESORT TAX FUNDS TO MOSAIC, INC. , ACCEPTING LOAN AGREEMENT, LIMITED GUARANTY AND SECURITY AGREEMENT, AND THE MOSAIC COLLECTION TO SERVE AS COLLATERAL FOR THE LOAN, AND AUTHORIZING EXECUTION OF THE AGREEMENTS BY THE MAYOR AND CITY CLERK. WHEREAS, the City of Miami Beach is supportive of the efforts by MOSAIC, Inc. , a Florida not-for-profit corporation, to renovate the facility known as Congregation Beth Jacob, located at 301 Washington Avenue, to become the permanent home of the 4410SAIC Collection; and WHEREAS, MOSAIC, Inc . has requested a loan in the amount of $500, 000 to facilitate renovations; and WHEREAS, these funds are available and may be accessed from Resort Tax funds and will be fully repaid in ,accordance with the. terms described' in the attached Loan Agreement; and WHEREAS, Limited Guaranty and Security Agreement, and the MOSAIC Collection have been determined to serve as collateral for the loan. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that : 1 . The Mayor and City Commission hereby approve a $500, 000 loan to MOSAIC, Inc . from Resort Tax funds . 2 . The Limited Guaranty and Security Agreement and MOSAIC Collection will serve as collateral for the loan. 3 . The Mayor and City Clerk are authorized to execute the attached Loan Agreement, Limited Guaranty and Security Agreement on behalf of the City of Miami Beach. PASSED AND ADOPTED this 16th day o rch, 1994 . MAYOR ATTEST: FORM APPROVED A LEGAL T. v CITY CLERK By / O Date __ �� RMC/MD:j m L 4 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. a Q 1 -*/ • TO: Mayor Seymour Gelber and DATE: March 16, 1994 Members of the City Commission FROM: Roger M.'Cant 14 City Manager • SUBJECT: APPROVAL OF LOAN IN THE AMOUNT OF $500,000 FROM RESORT TAX FUNDS TO MOSAIC, INC. • ADMINISTRATION RECOMMENDATION: The Administration . recommends approval of the $500, 000 loan and related documents including the Loan Agreement, Limited Guaranty and Security Agreement, in support of MOSAIC, Inc. to assist in renovation of the facility at 301 Washington Avenue as the permanent home for the MOSAIC Collection. BACKGROUND: In Commission Memorandum No. 531-93 dated September 22, 1993, a copy of which is attached, the request for a loan. in the amount of $500, 000 was discussed and referred to the Finance Committee for review. At the October 12, 1993 'meeting, the Finance Committee authorized the Administration to proceed to discuss this matter with representatives of MOSAIC, Inc. and develop a conceptual plan to present to the Commission on the terms and conditions of this loan. The City Attorney consulted with outside counsel in negotiation of this transaction. David Berger of the law firm of Broad and • Cassel, assisted the City on a pro bono basis. Essentially, the ' format of the transaction was changed to provide the City' s rights to assume operation of the Museum in the event of a default, and/or to assign such rights over to an operator to, in the alternative, manage the Museum for the City. The collection would become the City' s in the event of a default. • The documents before the City Commission include a Limited Guaranty from at least twenty (20) individuals approved by the City, each Guaranty providing for a .maximum payment of $2,440 in twenty (20) semi-annual payments, which would continue until the loan is paid. • 0 ANALYSIS: The loan to MOSAIC, Inc. will enable the Museum to open in a more timely manner and without adverse impact to the City as the loan from Resort Tax Funds has been secured by pledges and collateral and will be repaid with interest. AGENDA R �{- • ITEM / \ DATE 3- IL- q 1 ) P. 1 CONCLUSION: • This loan should enable the opening.of the Museum to occur no later ' than December, 1994 . Development of tourism-related facilities is an appropriate use of Resort Tax Funds . The location of this facility within the South Pointe Redevelopment Area will enhance the overall revitalization plan and will foster additional development opportunities within the area: • RMC/MD:jm t , . poiroi / , - Ms . April 19, 1994 Mill MOSAIC City of Miami Beach attn: Mr. Roger Carlton JEWISH MUSEUM City Manager OF FLORIDA City Hall . , lamud,Sarasota OFFICERS 1700 Convention Center Drive Sandra AngePresident l Malam Miami Beach, FL 33139 Norman Mce-Preident Beach Vice-President Gary P.Simon,Miami Vice-President Erwin I.Katz,Tampa Secretary Dear Roger: LewisM Kanner,Coral Gables Treasurer • DIRECTORS Claire Frenkel Ades,Pensacola Michael Allen,Miami Beach We are signing the Loan Agreement, Security Agreement and Michael Alper,er.Mi Miami a Gertrude Arta,Miami Beach Orlando Conditional Assignment of Lease, with the understanding that MurtaeArfa, iamiBeac in,Miami Myra Fart,Bay Harbor lrlands Exhibit E.(Landlord's Consent) and Schedule I (The Collection) NeFar,BayHarbormpa Russell W.Galbut,Miami Beach will be submitted as soon as we can execute them. Borten .Galbut. iamiB Beach David Hausdotff,Boca Raton Kenneth Hoffman,Miami Betsy H.Kaplan.Miami We look forward to a long-term relationship with the City of Miami Marcos H.Kaplan.N.Miami Jason C.Kravetz,Boca Ratan Beach and thank you for all that you have done to create this NonN.Ma etz,Boca Julian Meitin,Orlando . partnership. W.JamesOrovitz.Miami Joseph W.Pallot.Coral Gables Rafael A.Peaalver,Jr..Miami Abe Resnick,Miami Beach Si n c l y Susan Rosin,Sarasota Burnett Roth,Miami Beach Herman Rubin,Miami Beach Madelyn G.Saul,Miami Sylvia H.Shorstein,Jacksonville Jackie Traurig,Coral Gables Bernard M.Wall,Miami Beach Norman M. Gillen Bernard M.Winn,all,MiMiBeac hassee Miriam 7atincicy,Miami Vice-president Sylvia Ziffer,N.Miami Beach TRUSTEES I j �ad (�r�/`. JoAnn&Dr.Robert Bass,Miami Beach i' • Mikki Futenuck.Miami UGary R.Gerson,Miami Beach Marcia Ze Jane&Jerrold Goodman,Miami Beach Rater H.rraurig,Miami Executive Director Iem Robert Wien,Tr ng. Beach ADVISORY COUNCIL , Honorable Elaine Bloom Florida Rep.District 106 Tom L.Freudenheim _ Washington,D.C. Honorable Seymour Gelber - Mayor,Miami Beach Bob Graham United States Senator from Florida Rabbi Irving Lehrman Rabbi Emeritus,Temple Emanuel,Miami Beach Randy F.Nimnicht,Exec.Director Historical Museum of Southern Florida,Miami PAST PRESIDENTS W.James Orovitz,Miami(Founding President) Maynard Abrams.Delray Beach(deceased) Heldne Herskowitz,Miami Administrative Assistant Sharon Danis Yudewilz _ EXECUTIVE DIRECTOR Marcia K.Zerivitz 975-41st Street,Suite 407 Miami Beach,FL 33140-3352 . Phone(305)672-5044 Fax(305)672-5933 • LIHE'END { llR . •, ATTORNEYS AT LAW T H RU H I 6 April 15, 1994 Raul Aquila, Esq. Senior Assistant City Attorney The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Re: Loan from City of Miami Beach, Florida to MOSAIC, Inc. Dear Raul: Enclosed is an execution copy of the Loan Agreement and Security Agreement and Conditional Assignment of Lease for the loan from the City of Miami Beach to MOSAIC, INC. The form of Limited Guaranty is also included as Exhibit F to the Loan Agreement. The documents are complete except for Exhibit D to the Loan Agreement and Schedule I to the Security Agreement adNiOS CondiIC iInal Assignment of Lease both of which will be suppliedby It was a pleasure to work with you again. Regards, Sylvia S. Penneys SSP:trm Enclosure CTN\VEDMEYSS\213033.1\04/15/94 GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN&QUENTEL,P.A. 1221 BRICKELL AVENUE MIAMI, FLORIDA 33131 305-579-0500 FAX 305-579-0717 MIAMI FORT LAUDERDALE WEST PALM BEACH TALLAHASSEE NEW YORK WASHINGTON,D.C. I' a f I,t i' I 111 , , I 5t tt 7 a 1 '1. t CITY OF MIAMI BEACH, FLORIDA AND MOSAIC, INC. LOAN AGREEMENT Dated as of , 1994 61N\VEINEYS5\173461.8\81/15/94 y ` Pare April 19, 1994 OW City of Miami Beach MOSAIC attn: Mr. Roger Carlton JEWISH MUSEUM City Manager OF FLORIDA City Hall OFFICERS 1700 Convention Center Drive Sandra Angel Malamud,Sarasota President Miami Beach, FL 33139 Norman M.Gillet',Miami Beach Vice-President Gary P.Simon,Miami Vice-President Erwin L Katz,Tampa Secretary Dear Roger: Lewis M.Kanner,Coral Gables Treasurer DIRECTORS Claire Frankel Ades,Pensacola We are signing the Loan_Agreement, Security Agreement and Michael Aller,Miami Beach Jonathan Alper,Orlando Conditional Assignment of Lease, with the understanding that Gertrude Ada,Miami Beach Murray H.Dubbin,Miami Exhibit E (Landlord's Consent) and Schedule I (The Collection) Myra Farr,Bay Harbor Islands will be submitted as soon as we can execute them. Ne1Wlye Faibu, Tampa Russell W.Galbut,Miami Beach Barton S.Goldberg,Miami Beach David Hausdorff,Boca Raton • Kenneth Hoffman,Miami ' We look forward to a long-term relationship with the City of Miami BetsyH.Kaplan,Miami Marcos Alan Kerbel,N.Miami Beach and thank you for all that you have done to create this Jason C.Kravetz,Boca Raton Neil N.Malamud,Sarasota partnership. Julian Makin,Orlando W.James Orovitz,Miami Joseph W.Pallet,Coral Gables S i n c l y Rafael A.Pefialver,Jr.,Miami f Abe Resnick,Miami Beach Susan Rosin,Sarasota Burnett Roth,Miami Beach Herman Rubin,Miami Beach Madelyn G.Saul,Miami Sylvia H.Shorstein,Jacksonville Jackie Traurig,Coral Gables Norman M. Gillet Bernard M.Wall,Miami Beach Stephen R.Winn,Tallahassee • Vice-president Miriam Zatinsky,Miami � Sylvia Ziffer,N.Miami Beach j/ �I .04' iJ 4LEI t� ` TRUSTEES ` JoAnn&Dr.Robert Bass,Miami Beach Mikki Futemick,Miami Marcia Ze Gary R.Gerson,Miami Beach Executive Director Jane&Jerrold bertH.Trauag,Miami Beach Robert H.Tmuri Miami Leonard Wien,Miami Beach ADVISORY COUNCIL Honorable Elaine Bloom Florida Rep.District 106 Tom L.Freudenheim Washington,D.C. Honorable Seymour Gelber Mayor,Miami Beach Bob Graham United States Senator from Florida Rabbi Irving Lehrman Rabbi Emeritus,Temple Emanuel,Miami Beach Randy F.Nimnicht,Exec.Director Historical Museum of Southern Florida,Miami • PAST PRESIDENTS W.James Orovitz,Miami(Founding President) Maynard Abrams,Delray Beach(deceased) Helene Herskowitz,Miami Administrative Assistant • Sharon Danis Yudewitz EXECUTIVE DIRECTOR Marcia K.Zerivitz 975-41st Street,Suite 407 Miami Beach,FL 33140-3352 Phone(305)672-5044 Fax(305)672-5933 ' �f LRE [ NBER@ ATTORNEYS AT LAW ' TRAURIO April 15, 1994 • Raul Aquila, Esq. Senior Assistant City Attorney The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Re: Loan from City of Miami Beach, Florida to MOSAIC, Inc. Dear Raul: Enclosed is an execution copy of the Loan Agreement and Security Agreement and Conditional Assignment of Lease for the loan from the City of Miami Beach to MOSAIC, INC. The form of Limited Guaranty is also included as Exhibit F to the Loan Agreement. The documents are complete except for Exhibit D to the Loan Agreement and Schedule I to the Security Agreement and Conditional Assignment of Lease both of which will be supplied by MOSAIC, INC. It was a pleasure to work with you again. Regards, • Sylvia S. Penneys SSP:trm Enclosure GTH\DENIEYSS\213033.1\04/15/94 GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN&QUENTEL,P.A. 1221 BRICKELL AVENUE MIAMI, FLORIDA 33131 305-579-0500 FAX 305-579-0717 MIAMI FORT LAUDERDALE WEST PALM BEACH TALLAHASSEE NEW YORK WASHINGTON,D.C. TABLE OF CONTENTS (This Table of Contents is not: a part. of the Loan Agreement and is only for convenience. ofreferende. ) • • Page Parties 1 Preambles 1 ARTICLE I DEFINITIONS Definitions 2 ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES Section 2 . 1 Representations, Covenants and Warranties of the City 6 - - Section 2.2 Representations, Covenants and Warranties of the Borrower 6 ARTICLE III ACQUISITION AND CONSTRUCTION OF THE PROJECT Section 3.1 Agreement to Acquire, Construct, Improve and Equip the Project 9 Section 3 .2 Disbursements 10 Section 3.3 No Warranty by City 11 Section 3.4 Approvals Required for the Project 11 Section 3.5 Maintenance and Modifications of Project by Borrower 11 Section 3.6 Taxes, Other Governmental Charges and Utility Charges 12 Section 3.7 Liability Insurance Required 13. ARTICLE IV LOAN PROVISIONS Section 4. 1 Loan of Proceeds 15 Section 4.2 Amounts Payable 15 Section 4.3 Obligations of Borrower Unconditional 15 GYN\PE/NEY55\173461.0\04/15/94 ( ) y y • Page Section 4..4 Conditions Precedent to City's Obligation 16 • ARTICLE V • DAMAGE, DESTRUCTION AND CONDEMNATION • Section 5.1 Damage, Destruction and Condemnation 17 Section 5.2 Application of Net Proceeds 17 Section 5.3 Insufficiency of Net Proceeds 17 ARTICLE VI SPECIAL COVENANTS Section 6. 1 No Warranty of Condition or Suitability by City 18 Section 6.2 Access to the Project 18 Section 6. 3 Further Assurances and Corrective Instruments 18 Section 6.4 City and Borrower Representatives • 18 Section 6.5 Financial Reports 18 Section 6.6 Recording and Filing 19 Section 6.7 Other Instruments 19 Section 6.8 Notice of Litigation 19 Section 6.9 Notice of Change in Status 20 Section 6.10 Additional Covenants. 20 ARTICLE VII INDEMNIFICATION; REDEMPTION Section 7.1 Release and Indemnification Covenants 21 ARTICLE VIII i DEFAULTS AND REMEDIES Section 8.1 Defaults Defined 23 Section 8.2 Remedies on Default 24 Section 8.3 No Remedy Exclusive • 25 Section 8.4 Agreement to' Pay Attorneys' Fees . and Expenses 25 Section 8.5 No Additional Waiver Implied by One Waiver 0 25 GTh\PENNETS5\173461.9\04/15/94 ( ' r:r < I N + . i • Page • . • • • ARTICLE IX• • . . • •• • •• MISCELLANEOUS •• .Section 9.1 - Term of Agreement . . . . . . . . . . . . 26 Section 9.2 Notices . . 26 Section 9.3 Binding Effect' . . 26 • Section 9.4 Severability 26 Section 9.5 ' Amendments, Changes and Modifications 26 / , Section 9. 6 Execution in Counterparts 26 Section 9.7 Applicable Law 26 Section 9.8 Captions 26 Section 9.9 No Charge Against City Credit 26 Section 9.10 City. Not Liable 27 Section 9. 11 Limitation on Liability 27 Section 9. 12 Arbitration 27 Exhibit A - Project Description A-1 Exhibit B - Form of Requisition B-1 Exhibit C - Form of Note C-1 Exhibit D - Sources and Uses of Funds D-1 - Exhibit E - Form of Landlord's Consent E-1 Exhibit F - Form of Limited Guaranty F-1 • ot++\Pua+crsswaai.e\w/,s/� (i i i Y LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of , - 1994-- .(the "Agreement") , between the CITY OF MIAMI BEA , FLORIDA, a municipal corporation of*the State of Florida .(the 'r .ity")..and MOSAIC, INC: , • - a not-for-profit• corporation. organized and.existing •under the laws • of ,the State of Florida. (the "Borrower").; •. . • • WHEREAS, the Borrower is a not-for-profit corporation which is undertaking a project to renovate a facility known as Congregation Beth Jacob located at 301 Washington Avenue within the City limits, which facility will become a museum and permanent home for the MOSAIC collection (as further described in Exhibit "A" hereto, the "Project") ; WHEREAS, the Borrower has secured various funding sources for the Project but is in need of an additional $500, 000 to complete the Project and has requested a loan (the "Loan") from the City for such purpose; WHEREAS, the Project will create a cultural and educational center within the City limits which will be open to the public, will enhance tourism in the City and as a result will be beneficial to the residents of the City; WHEREAS, the Resort Tax (hereinafter defined) was enacted to provide revenues for the purpose of encouraging the types of activity which will result from the completion of the Project; and WHEREAS, subject to the terms and conditions hereinafter contained, the City is willing to make such Loan, but solely from the proceeds of the Resort Tax levied by the City within the City limits; NOW, THEREFORE, WITNESSETH: That the parties hereto, intending to be legally bound hereby, and for and in consideration of the premises and the mutual cov- enants hereinafter contained, do hereby covenant, agree and bind themselves as follows; provided, that the obligation of the City created by or arising out of this Agreement shall never constitute a debt or a pledge of the faith and credit or the taxing power of the City or any political subdivision or taxing district of the State of Florida but shall be payable solely out of revenues from the Resort Tax (as defined herein) , anything herein contained to the contrary by implication or otherwise notwithstanding: ennvo«e rss\va4e 1.a\w/I s/94 y`. . • • ARTICLE I DEFINITIONS •• • • The . following ..words. and ' phrases shall have the following • meanings in this Agreement: • • "Agreement" means this Loan. Agreement *dated'. as of , • 1994, between the City and the Borrower, as the same may be amended from time to time. "Borrower" means MOSAIC, INC. , a Florida not-for-profit cor- poration. "Borrower Representative" means the person or persons at the time designated to act on behalf of the Borrower by written cer- tificate furnished to the City containing the specimen signatures of such person or persons and signed on behalf of the Borrower by its President or any Vice President. Such certificate may desig- nate an alternate or alternates. "City" means the City of Miami Beach, Florida, a municipal corporation of the State of Florida. "City Representative" means the person or persons at the time designated to act on behalf of the City by written certificate furnished to the Borrower containing the specimen signatures of such person or persons and signed on behalf of the City by the Mayor or City Manager. Such certificate may designate an alternate or alternates. "Code" means the Internal Revenue Code of 1986, as amended, including, when appropriate, the statutory predecessor of the Code, and all applicable regulations thereunder whether proposed, tempo- rary or final, including regulations issued and proposed pursuant to the statutory predecessor of the Code, and, in addition, all official rulings and judicial determinations applicable to the Bonds under the Code and under the statutory predecessor of the Code and any successor provisions to those Sections or regulations. "Completion Date" means the date of completion of the acquis- ition, construction, improvements, furnishing and equipping of the Project. "Cost" with respect to the Project shall be deemed to include, • to the extent permitted by law, but not limited to: (i) all costs which the Borrower shall be required to pay under the terms of any contract or contracts for the acquisi- tion, construction, improving, or equipping of the Project; CTI\VElNEY66\173461.8\W/16/94 - f f f f f „ • \ I f f If t f • (ii) obligations of the Borrower incurred for labor and materials in connection with the acquisition, . construction, improving. or equipping of the .Project; . 0 • • • (iii) the cost of 'performance or other. bonds and any . and•all types ofinsurance that may be necessary or appropriate to • have: in effect during. the 'course. of construction of the Project; (iv) all costs of engineering and architectural ser- vices, including the costs of the Borrower for test borings, sur- veys, estimates, plans and specifications and preliminary inves- tigations therefore, and for supervising construction, as well as for the performance of all other duties required by or consequent to the proper construction of the Project; (v) with the prior consent of the City (which consent shall be granted or denied within ten (10) business days) , the cost of services of a consultant in connection with the improving and equipping of the Project; (vi) any sums required to reimburse the Borrower for advances made by the Borrower for any of the above items or for any other costs incurred which are properly chargeable to the Project. "Default" means any Default under this Agreement as specified in and defined by Section 8. 1 hereof. "Guarantor" means any person listed on Exhibit A to the Guaranty as such Exhibit may be amended from time to time. "Guaranty" means that certain Limited Guaranty by each of the persons listed on Exhibit A thereto, as amended from time to time by such deletions, additions or substitutions as are satisfactory to the City. "Landlord" means Congregation Beth Jacob. "Lease Agreement" means the agreement between the Borrower and • Congregation Beth Jacob, dated December 13, 1992, as amended from time to time, providing for Borrower's lease of the premises which are to be converted to a museum by Borrower. "Loan" means the loan from the City to the Borrower in the principal amount of $500,000 to finance a portion of the Cost of the Project. "Net Proceeds", when used with respect to any insurance pro- ceeds or any condemnation award, means the amount remaining after deducting all expenses (including •reasonable attorneys' fees) incurred in the collection of such proceeds or award from the gross proceeds thereof.. . -3- cM\VCNICYss\v3{61.9\a/1 s/9a . y "Note" means the promissory note dated 1994, from the Borrower to the City evidencing the rep ent obligation. of. the Loan hereunder. . . • 0 :"Permitted Encumbrances" shall mean (i) liens for taxes and . . assessments not then delinquent; (ii) any liens created under the • Security Agreement; (iii) utility, access and other easements and rights of way, restrictions and exceptions that a Borrower Repre- sentative certifies will not interfere with or impair the Project; (iii) any lien arising under the Lease Agreement in favor of Landlord; and (iv) such minor defects, irregularities, encumbrances and clouds on title as normally exist with respect to property similar in character to the Project and as do not, in the opinion of the counsel to the Borrower acceptable to the City, materially interfere with or impair the Project. "Plans and Specifications" means the plans and specifications for the Project submitted by or on behalf of the Borrower to the City from time to time. "Private Business Use" means (i) use by any Private Person except a Tax-Exempt Organization other than use as a member of the general public, or (ii) use by a Tax-Exempt Organization in an unrelated trade or business within the meaning of Section 513 (a) of the Code. "Private Person" means any person, firm, entity or individual other than a "governmental unit" within the meaning of Section 150(a) (2) of the Code. "Project" means (i) the Borrower's renovation of the facility known as Congregation Beth Jacob, located at 301 Washington Avenue, as a museum and the preparation and installation of exhibits therein, all of, which is described generally in Exhibit A hereto, and (ii) any items of machinery, equipment, or other tangible property acquired in substitution for, or as a renewal or replacement of or a modification or improvement to, the premises described in (i) above. "Project Inspector" means any person, firm or entity, accept- able to the City, in its capacity as the inspector of the Project for purposes of obtaining disbursements hereunder. "Requisition" means a written request for a disbursement, signed by a Borrower Representative and substantially in the form attached hereto as Exhibit B and satisfactorily completed as contemplated by said form. "Resort Tax" means the municipal resort tax imposed, levied and collected by the City pursuant to Chapter 67-930, Laws of Florida, Acts of 1967, as amended, and Chapter 166, Florida Statutes, as amended from time to time, and pursuant to the Miami -4- GTh\PEMIEYSS 173461..\94/t5/94 • Beach City Charter, as amended, and. Chapter 41, Article V of the Miami Beach City Code, as amended. . "Security Agreement" mea he ecurity Agreement'and Assign- . ment: of. Pledges dated as of. • , 1994, by and between Borrower and the .City. . . . "State" means the State of Florida. • "Tax-Exempt Organization" means any "501(c) (3) organization" as defined in Section 150(a) (4) of the Code or any "governmental unit" within the meaning of Section 150 (a) (2) of the Code. "Term of Agreement" means the term of this Agreement as Specified in Section 9.1 hereof. (End of Article I) -5- G7H\PEEr55\173461.8\04/15/94 N1 ARTICLE II • REPRESENTATIONS, COVENANTS AND WARRANTIES Section 2.1 Representations, Covenants and Warranties of . .the City. The City represents, covenants and warrants that: (a) The City is a political subdivision of the State of Florida. (b) The City is authorized to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder. (c) The City has been duly authorized to execute and deliver this Agreement and the Security Agreement. Section 2 .2 Representations, Covenants and Warranties of the Borrower. The Borrower represents, covenants and warrants that: (a) The Borrower is a not-for-profit corporation validly organized and existing under the laws of the State of Florida. The Borrower is not in violation of any provision of its Articles of Incorporation, as amended, has the corporate power to enter into this Agreement and the Security Agreement, • and has duly authorized the execution and delivery of this Agreement and the Security Agreement. (b) The Borrower agrees that during the Term of Agree- ment it will maintain its existence as a not-for-profit cor- poration, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another legal entity or permit one or more other legal entities to consolidate with or merge into it, without the prior written consent of the City. (c) Neither the execution and delivery of this Agree- ment and the Security Agreement nor the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof and thereof conflicts with or results in a breach of the terms, conditions, or provisions of any agreement or instrument to which the Borrower is now a party or by which the Borrower is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Borrower under the terms of any such instrument or agree- ment. (d) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, known to be pending or threatened CTNONETSS\173461.6\O4/15/94 -6- \V Y• • against or affecting the Borrower or any of its officers, nor to . the best knowledge of the - Borrower is there any basis • • . therefor, wherein an unfavorable decision, ruling, or finding would materially adversely affect the transactions contem- plated. by this Agreement and the Security. .Agreement or which would adversely affect, in any way, this Agreement and the Security •Agreement, •or any .agreement or instrument to -which the Borrower is a party, used or contemplated for use in the consummation of the transactions contemplated hereby. (e) ' - The proceeds from the Loan will be used only for payment of Costs of the Project. (f) The Borrower will use due diligence to cause the Project to be operated in accordance with the laws, rulings, regulations and ordinances of the State and the departments, agencies and political subdivisions thereof. The Borrower has obtained or will cause to be obtained all requisite approvals of the State and of other federal, state, regional and local governmental bodies for the acquisition, construction, improving and equipping of the Project. (g) The Borrower agrees that it shall use, maintain and operate, or caused to be used, maintained or operated, the Project for the welfare and benefit of the general public, without regard to race, religion, color, sex, age, sexual orientation, handicap, marital status, familial status or national origin. The Borrower agrees that it shall not use, maintain or operate, or cause to be used, maintained or operated the Project or any part thereof in a manner which is prohibited by (i) the Establishment of Religion Clause of the First Amendment to the Constitution of the United States of America and the decisions of the United States Supreme Court interpreting the same or (ii) any comparable provision of the Constitution of the State of Florida and the decisions of the Florida Supreme Court interpreting the same. (h) Reasonable Expectations. Based on current facts, estimates and circumstances, it is expected that: (i) the Completion Date will occur on or prior to January 1, 1995; (ii) work on the Project (which has commenced) will proceed with due diligence to completion; (iii) the net proceeds of the Loan are needed for the purpose of paying a part of the Cost of the acquisition, construction and installation of the Project, which together with funds available to Borrower from other sources are sufficient to complete the Project; and -7-8TPEN1ET55\173461.8\04/15/94 11\ • (iv) the sources and uses of funds for completion of the Project will be substantially in accordance with Exhibit D attached hereto. (i) Substantial Binding Obligation. Various contracts providing for the acquisition, construction and installation of the Project have been entered into and are incorporated herein. (j ) Tax-Exempt Organization. The Borrower is a Tax- Exempt Organization, and it has received a determination letter from the Internal Revenue Service to the effect that it is a Tax-Exempt Organization, which determination letter has not been adversely modified, limited or revoked. The Borrower is in compliance with all terms and conditions of that letter, the facts and circumstances which form the basis of that letter as represented to the Internal Revenue Service continue substantially to exist, and it is not aware , of any facts or circumstances that could cause a revocation of that letter. The Borrower has not taken and will not take any actions that would jeopardize its status as a tax-exempt organization. (k) Ownership of Project. Subject only to the Land- lord's rights under the Lease Agreement, all property which is to be provided by the Loan is owned, or will be owned, by the - Borrower. (1) Use of Loan Proceeds. The Borrower will use all of the proceeds of the Loan to pay, or be reimbursed for the payment of, Costs incurred in connection with the acquisition, construction, improvement and equipping of property that is used or will be used by a Tax-Exempt Organization in activities which do not constitute a Private Business Use. (m) .Changes in Use. No substantial changes will be made in the facilities comprising the Project or in the use of the Project without the prior written consent of the City. (n) Compliance with Lease. The Borrower shall comply with all covenants, agreements, promises and obligations required of the Borrower under the Lease Agreement. (o) Compliance with Other Contracts. The Borrower has received or will receive certain grants, loans, contributions or other forms of funds for acquisition, construction, improvement and equipping of the Project and shall use such funds as required pursuant to the respective grant, loan, contribution or other document providing terms and conditions for the use of such funds. (End of Article II) GTH\vcNNcrss\177161.9\01/15/94 -o YY ARTICLE III ACQUISITION AND CONSTRUCTION OF THE PROJECT Section 3.1 Agreement to Acquire, Construct, Improve and. Equip the Project. The Borrower agrees to make all contracts and do all things necessary for the acquisition, construction, improv- ing, and equipping of the Project, with or without advertising for bids, and the Borrower agrees that it will cause the Project to be constructed, improved and equipped substantially in accordance with the Plans and Specifications. The Borrower shall maintain a set of Plans and Specifications at the Project site that shall be avail- , able to the City for inspection and examination during the Bor- rower's regular business hours, or, if the City so directs, the Borrower shall file with the City a copy of the Plans and Specific- ations, and the City and the Borrower agree that the Borrower may supplement, amend and add to the Plans and Specifications, and that the Borrower shall be authorized to omit or to make substitutions for components of the Project, with the prior written approval of the City which approval shall be granted or denied within ten (10) Business Days. In the event any change, supplement, amendment, omission or substitution permitted above renders the description of the Project as set forth in Exhibit A hereto inaccurate or incom- plete in any material respect, the Borrower shall revise Exhibit A accordingly and shall mail a copy of said Exhibit A to the City. Such changes to Exhibit A shall not be deemed to be changes to this Agreement for purposes of the provisions hereof relating to Amend- ments. The Borrower will, upon demand of the City and within ninety (90) days of such demand, correct or cause to be corrected any structural defect in the Project or any substantial departure from the Plans and Specifications not approved by the City and that are not in accordance with this Section 3 . 1, and perform any action necessary to enable it to comply with the terms and conditions precedent to the City's making disbursement. The making of any disbursements shall not constitute a waiver of the City's right to require compliance with this covenant with respect to any such defects or departures from the Plans and Specifications not there- tofore discovered by, or called to the attention of the City, or with respect to the Borrower's failure to satisfy or to continue to satisfy any condition to a disbursement. The Borrower further agrees that it will acquire, construct, improve and equip the Project with all reasonable dispatch and use its best efforts to cause acquisition, construction, improvement and equipping of the Project to be completed by January 1, 1995, or as soon thereafter as may be practicable, but in no event later than May 15, 1995, delays caused by force majeure as defined in Section 8.1 hereof only excepted, written notice of such delays to be given to the City within five (5) business days of the occur- CT\nv.+erss\t73461.e\04/fs/s4 —9— Y Y rence of the cause of such delay; but if for any reason such acqui- sition, construction, improving and. equipping is not completed by said date there shall be no resulting liability on the part of the. Borrower and no diminution • in or postponement of the• payments required in. Section 4.2 • hereof to be paid by the Borrower. Section 3.2 ' Disbursements. (a) The City shall not make any disbursement hereunder unless and until: (i) the conditions in Section 4.4 shall have been satisfied; (ii) Borrower shall be in compliance with, and all payments shall be current under all provisions of the Note, the Security Agreement and this Agreement; (iii) Borrower shall have provided the City with proof of the insurance required pursuant to Section 3.7 hereof; (iv) Borrower shall have provided the City with a proper Requisition and any supporting documen- tation reasonably requested by the City. (v) the representations and warranties made here- under shall be true and correct as of the date of any disbursement with the same effect as though made on such date; (vi) Project Inspector shall have certified that in his opinion work performed to the time of a request for disbursement was completed in sub- stantial accordance with the Plans and Speci- fications; and (vii) there is no default on the part of Borrower under this Agreement, the Note or the Security Agreement and no event has occurred and is continuing which with notice or the passage of time or both would constitute a default under any thereof. (b) Notwithstanding anything to the contrary herein, the City shall withhold from amounts disbursed for Costs of the Project five percent (5%) of each such disbursement until comple- tion of the Project (the "Retainage") . The final requisition for. sums due on the Project (including the Retainage) shall be made following completion of the Project to the satisfaction of the City and the furnishing to the City: -10- CIWENIEY55\173161.8\0I/15/91 • • • (i) a certificate from Borrower's architect cer- tifying under penalty of law that the Project has been completed substantially in compliance with the Plans and Specifications; . (ii) final releases or waivers of all contractors, mechanics and materialmen that have provided . Borrower with notice, all parties referenced in prior disbursement requests, and any other actual or potential lienors of which the Borrower has actual knowledge, which releases or waivers must be acceptable to the City; (iii) a certificate from Borrower to the effect that all governmental requirements with regard to the Project have been satisfied and that direct connection has been made for all uti- lity services to the Project; and (iv) a certificate of occupancy for the Project, any required approval by the Board of Fire Underwriters or its equivalent having juris- diction over the Project, and any other approval required by any Governmental Autho- rity to the extent that any such approval is a - - condition to the lawful use and occupancy of the Project and the opening of same to the public. Section 3.3 No Warranty by City. The Borrower recognizes that since the components of the Project have been and are to be selected by it, THE CITY MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE PROJECT OR TO THE LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE BORROWER. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, THE CITY SHALL HAVE NO RESPONSIBILITY OR LIABI- LITY WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION 3.3 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY THE CITY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OF FLORIDA OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE. Section 3.4 Approvals Required for the Project. . The Bor- rower has obtained all necessary permits and approvals, if any, for the acquisition and construction of the Project, and the operation and maintenance thereof, and shall obtain all necessary permits and approvals, if any, that may hereafter become applicable to the -1 1- CYN\PENIEY55\173/61.8\94/15/94 . Project and has or shall comply with all lawful requirements of any governmental body regarding the use or condition of the Project, whether 'existing or enacted or foreseen or unforeseen ' or whether including any change in 'governmental policy.or requiring structural ' or other changes. 'to the Project and :irrespective •of the cost. of making the same. . Section 3.5 Maintenance and Modifications of Project by Borrower. The City shall not be under any obligation to operate, maintain or repair the Project. The Borrower will at its own expense (i) keep the Project in safe operating condition (ii) keep the Project in good repair and in good condition and make from time to time all necessary repairs thereto and renewals and replacements thereof, and (iii) provide adequate conditions for the preservation of Borrower's collection including but not limited to climate con- trol. The Borrower will, upon reasonable demand of the City and within thirty (30) days of such demand, repair or modify the Project in keeping with the foregoing. The Borrower shall not per- mit or suffer others to commit a nuisance in or about the Project or itself commit a nuisance in connection with its use or occupancy of the Project. The Borrower shall duly observe and, conform to all 'requirements of law and requirements of governmental authorities relative to the conduct of its business or the operation of its properties and assets which are reasonable and customary in connec- tion with a public museum. The Project shall be in substantial - - compliance with the United States Secretary of the Interior Guide- lines and the City of Miami Beach Design Guidelines as determined by the Planning, Design and Historical Preservation Division of the City. Section 3. 6 Taxes, Other Governmental Charcies and Utility Charges. (a) The Borrower shall timely pay or cause to be paid if and when the same respectively become due and payable, (i) all taxes, assessments and charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Project or any buildings, structures, improvements, machinery, equipment or other property constructed, installed or brought by the Borrower therein or thereon (including, without limiting the generality of the foregoing, any tax upon or with respect to the income or profits of the Borrower from the Project and that, if not paid, would become a lien on the Project and including ad valorem, sales and excise taxes, assessments and charges upon the Project) , (ii) all utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Project and (iii) all assessments and charges lawfully made by any governmental body or public improvements that may be secured by a lien on the Project. (b) The Borrower, after first giving written notice of its intention to do so to the City may, at its expense, and in its own name, contest in good faith any such levy, _ tax, assessment or -12- CTN\DEINEYSS\I)N61.8\M/l5/9t other charge and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such con- test and any appeal therefrom unless the Cityshall notify the Bor- rower that in the opinion of its counsel, .by nonpayment of any such items the Project or. such property or .any part thereof will be sub- ject to loss or forfeiture, in which event the Borrower at its option shall promptly pay or bond, but in no event later than the time when payment would otherwise have been required hereunder, and cause to be satisfied or discharged all such unpaid items or fur- nish, at the expense of the Borrower, other indemnity satisfactory to the City. Section 3.7 Liability Insurance Required. (a) So long as any obligation of the Borrower to make any payment hereunder shall remain, the Borrower shall keep the Project continuously insured against such risks and in such amounts, with such deductible provisions, as are satisfactory to the City and are at least as are customary, in connection with the operation of facilities of the type and size comparable to that Project, including, general public liability insurance against (i) claims for bodily injury, death or property damage occurring on, in or about the Project in amounts not less than $1, 000,000 single limit coverage with respect to bodily injury to any one person, and, with respect to property damage resulting from any one occur- - - rence, in an amount equal to or greater than all amounts due and payable hereunder from time to time and (ii) liability with respect to the Project under the worker's compensation laws of the State of Florida; provided, however, that the insurance required may be provided by blanket policies now or hereafter maintained by the Borrower. (b) The insurance policy or policies obtained in satis- faction of the requirements of subsection (a) shall name the City as Lender-insured and: (i) shall be by such insurer (or insurers) as shall be financially responsible, qualified to do business in the State of Florida, and of recognized standing; (ii) shall be in such form and shall have such provi- sions (including, without limitation, the loss payable clauses, the waiver of subrogation clause, the deductible amount, if any, and the standard mortgage endorsement clause) , as are satisfactory to the City and as are generally consi- dered standard provisions for the type of insurance involved; (iii) shall prohibit cancellation or modification by the insurer without at least 30 days' prior written notice to the City; -13- G7N\PE7NEY55\173461.8\84/15/94 • r r r t (iv) shall provide that losses thereunder shall be adjusted with the insurer by the Borrower at its expense on behalf of the insured parties, and the decision of the - Borrower as to any adjustment shall, with the consent of the City, .which consent shall not be unreasonably or untimely. withheld, be final and conclusive; (v) without limiting the generality of the foregoing, such insurance policy shall name the Borrower and the City as parties insured thereunder as the respective interests of each of such parties may appear; (vi) shall provide that the City shall not be liable for payment of any premiums and assessments. (c) At least 30 days prior to the expiration of any such policy, the Borrower shall furnish the City with evidence satisfactory to the City that the policy or certificate has been renewed or replaced or is no longer required by this Agreement. At least 10 days prior to the due date of any premium payment for any such policy, the Borrower shall furnish the City with proof of such payment. (d) In the event the Borrower shall fail to maintain, or cause to be maintained, the full insurance coverage required by this Agreement, the City may (but shall be under no obligation to) , after notice to the Borrower, contract for the required policies of insurance and pay the premiums on the same, and the Borrower agrees to reimburse the City to the extent of the amounts so advanced by them, or any of them, with interest thereon at the rate per annum equal to the maximum rate permitted by law. (End of Article III) CTPD1(YSS\173461.e\w/Is/94 -14 M\ • Y Y • ARTICLE IV LOAN PROVISIONS • Section 4.1 Loan of Proceeds. The City agrees, upon the. terms and conditions contained in this Agreement to lend 'to the Borrower an amount not to exceed $500,000 which shall be payable. solely out of available proceeds from the Resort Tax. Borrower acknowledges that the City's obligation to fund the Loan from pro- ceeds of the Resort Tax is subordinate to certain pledges and contractual obligations of the City with respect to the proceeds of the Resort Tax. Proceeds of the Loan shall be disbursed to or on behalf of the Borrower as provided in Section 3.2 hereof. Section 4.2 Amounts Payable. (a) The Borrower hereby covenants and agrees that the Loan shall bear interest and be repayable as follows: (i) during the period commencing with the first draw on Loan proceeds until the end of the 1995 calendar year, interest on the principal amount outstanding shall accrue at the rate of 4% per annum which shall be due and payable on June 30 and December 31, 1995; (ii) during the 1996 calendar year, interest on the principal amount outstanding shall accrue at the rate of 5% per annum which shall be due and payable together with a principal payment of $15,000 on each of . - June 30 and December 31, 1996; (iii) for the 1997 calendar year and in each calendar year thereafter while the Loan is outstanding, interest on the principal amount outstanding shall accrue at the rate equal to the rate published in the Wall Street Journal on the first business day of each such calendar year as the "prime rate" (but in no event to exceed 8% per annum interest) which shall be due and payable together with a principal payment of $30, 000 on each June 30 and December 31 of the years 1997 through 2003 and on each of June 30 and December 31, 2004, a principal payment of $25,000 until paid in full. Interest shall be calculated on the basis of a 360-day year and the actual number of days elapsed. The repayment obligation hereunder shall be evidenced by the Note, guaranteed by the Guaranty substantially in the form of Exhibit F hereto of each Guarantor and secured by the Security Agreement. (b) Borrower may prepay the Loan, in whole or in part, at any time without premium or penalty. Any such prepayment shall be applied against the principal payments described above in inverse order of their due dates. Section 4.3 Obligations of Borrower Unconditional. The obligations of the Borrower to make the payments required in Sec- tion 4.2 and to perform and observe the other agreements contained herein shall be absolute and unconditional and shall not be subject to any defense or any right of setoff, counterclaim or recoupment arising out of any breach by the City of any obligation to the Borrower, whether hereunder or otherwise, or out of any indeb- GTN\PEEYSS\173/61.8\04/15/94 -1 5- NI •;y tedness or liability at any time owing to the Borrower by the City, and, until such time as such payments shall have been fully paid or provision for the payment thereof shall have. been made, the Borrower (i) will not suspend or discontinue any payments provided for in Section 4.2 hereof, (ii) will perform and, observe, all other agreements contained in this Agreement and .(iii) will not terminate the Term of Agreement for any'cause including, without limiting the generality of the foregoing, failure of the Borrower to complete the acquisition, construction, improving and equipping of the Project, the occurrence of any acts or circumstances that may con- stitute failure- of consideration, (eviction or constructive evic- tion, destruction of or damage to the Project, the taking by eminent domain of title to or temporary use of any or all of the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State or any political subdivision of either thereof or any failure of the City to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement. Nothing contained in this Section shall be construed to release the City from the performance of any of the agreements on its part herein contained, and in the event the City should fail to perform any such agreement on its part, the Borrower may institute such action against the City as the Borrower may deem necessary to compel performance so long as such action does not abrogate the obligations of the Borrower contained in the . - first sentence of this Section. Section 4.4 Conditions Precedent to City's Obligation. The City shall not be obligated to disburse any Loan funds unless and until the following conditions shall have been satisfied: (a) The City shall have received: (i) the duly executed Note, (ii) the duly executed Security Agreement, (iii) a duly executed Guaranty by at least 20 Guarantors satisfactory to the City, (iv) a duly executed UCC-1 to be filed with the Florida Secretary of State and with the Dade County Recording Office, (v) Borrower's financial reports in form consistent with Section 6.5 hereof, (vi) the consent of Landlord substantially in the form of Exhibit E. (End of Article IV) -16- GlIAPEnie rss\17346 t..\w/a/.a ARTICLE V DAMAGE, DESTRUCTION AND CONDEMNATION • Section 5.1 Damage, Destruction and Condemnation. In the event that (i) the Project or any portion thereof is destroyed (in. whole or in part) or 'is damaged by fire or other casualty or (ii) title to or any interest in, or the temporary use of, the Project or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation 'acting under governmental authority, the Borrower shall remain obligated to continue to pay the amounts specified in / / Section 4.2 hereof. Section 5.2 Application of Net Proceeds. The Net Proceeds of any insurance proceeds or condemnation award resulting from any events described in Section 5. 1 hereof shall be deposited with the City to be disbursed therefrom as provided in this Agreement. All Net Proceeds so deposited shall be applied, at the option of the Borrower, to the prompt repair, restoration, modification or improvement of the Project or to the prepayment of the Loan. Such disbursements shall be made by the City only upon receipt of proper Requisitions therefor. Section 5.3 Insufficiency of Net Proceeds. If the Net Pro- ceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 5.2 hereof or if the Net Proceeds are applied to the prepayment of the Loan in part, the Borrower will nonetheless complete the work and will pay any cost in excess of the amount of the Net Proceeds, if any, applied to such repair, restoration, modification or improve- ment. The Borrower agrees that if it shall make any payments pur- suant to the provisions of this Section, the Borrower shall not be entitled to any reimbursement therefor from the City, nor shall the Borrower be entitled to any diminution of the amounts payable under Section 4.2 hereof other than with respect to prepayments made with such Net Proceeds pursuant to Section 5.2 hereof. (End of Article V) -17- GrAP E,55\V3t61.8\«/l5/94 • LIMITED GUARANTY 'THIS LIMITED GUARANTY ("Guaranty") is made as of this day • of , 1994,. severally, only, by the persons named on Exhibit • • . "A" hereto, as revised from time to time (such• persons being here- . after sometimes collectively referred .to as the "Guarantors" and each being hereafter sometimes referred •to as a "Guarantor") , in . favor of The City of* Miami Beach, Florida,...a municipal 'corporation of the State of Florida ("Lender") . • RECITALS: A. On the date hereof, Lender is making available to Borrower a loan in a principal amount not to exceed $500,000 (the "Loan") to MOSAIC, INC. , a Section 501(c) (3) Florida not-for-profit corporation ("Borrower") , pursuant to a Loan Agreement dated. the date hereof (the "Loan Agreement") , and evidenced by a Promissory Note, dated the date hereof (the "Note") . B. The Loan is secured in part by a Security Agreement dated the date hereof (the "Security Agreement") . The Loan Agreement, the Note, the Security Agreement, this Guaranty, and each of the other documents executed in connection with the Loan, as the same may hereafter be amended, are sometimes collectively referred to herein as the "Loan Documents". Principal of and interest on the Loan and all other debts, obligations and liabilities of Borrower to Lender under the Loan Documents from time to time, including the costs of collection and enforcement of the Loan Documents and including, without limitation, reasonable attorneys' fees and costs, are collectively referred to herein as the "Obligations". C. Each Guarantor will benefit from the Loan and the trans- actions relating thereto, resulting from the interest each Guarantor has, directly or indirectly, in the successful renovation of a facility to be used as a museum by Borrower (the "Project") to house its collection of memorabilia. D. Lender has stated that it will not agree to make the Loan solely upon the covenants of the Borrower under the Loan Agreement, the Security Agreement and the other Loan Documents, but will require, as further collateral and security therefor, that each of the Guarantors execute this Guaranty. E. Each Guarantor is desirous of inducing Lender to make the Loan to Borrower and is willing to pledge his credit to secure the Loan. NOW, THEREFORE, in consideration of the premises, the sum of $10.00 and other good and valuable consideration, the receipt of . which is hereby duly acknowledged, and in order to be of material GTI\PDNETSS\I98120.6\04/15/94 y Y • benefit and assistance to Borrower and in order to induce Lender to make the Loan, Guarantors agree as follows: 1. Capitalized Terms. All capitalized terms utilized • herein, unless specifically otherwise defined herein, shall have the meanings assigned to such terms in the Loan Agreement. 2. Obligations. Except as otherwise provided in Section 3 hereof, each Guarantor hereby severally, and not jointly, abso- lutely, irrevocably and unconditionally guarantees (as primary obligors and not merely as sureties) to Lender, its successors and assigns, the full and prompt payment when due, and the performance " of, the Obligations. 3. Limited Nature of Guaranty. Notwithstanding anything to the contrary contained in this Guaranty, the liability of each Guarantor shall be limited to 20 semi-annual (i.e. , each January 1 and July 1) payments of $2,440 until the Note and all Obligations under the Loan Documents are paid in full, said semi-annual payments to commence within 15 days immediately following delivery of notice from Lender.to Guarantor of a default under any of the Loan Documents; furthermore, the liability of a Guarantor for said 20 payments (1) shall be reduced by reducing the 20 semi-annual payments in inverse order of the 20 payments, for each payment of principal that Borrower has made to Lender as defined in the Note, - - and (2) shall be reduced to the extent that there are more than 20 persons executing a Limited Guaranty in favor of Lender, such that each such Guarantor's liability shall be equal to a fraction with the numerator being l•and the denominator being the number of Guar- • antors listed, from time to time, on Exhibit "A" ; provided, how- ever, that such denominator shall never be less than 20. Any Guarantor may establish an escrow arrangement satisfactory to Lender and fund same with the necessary funds to cover the payments that may be called on the guaranty of said Guarantor. 4. No Offset, Defenses, Counterclaims. Guarantors shall not be entitled to any abatement, deferment, suspension, reduction, set-off, defense or counterclaim in respect of the Obligations. The liability of the Guarantors under this Guaranty shall remain in effect regardless of any law, regulation, or decree now or hereafter in effect in any jurisdiction which might in any manner affect any of such terms or provisions or the rights of Lender with respect thereto as against Borrower and irrespective of the validity, regularity or enforceability thereof, or of any defenses or rights of setoff or counterclaims which Borrower or Guarantors may have or assert against Lender, or of any other condition, contingency or circumstance whatsoever, whether occurring prior to or after the date hereof, whether known or unknown to the Guarantors or Borrower or Lender, and whether or not any of the same may or might vary the risk or affect the rights or remedies of the Guarantors. The Obligations shall not be reduced or discharged by any modifications in the Loan Agreement, Security Agreement, the Note or the other Loan Documents, including, without limitation, CYN\VENIEYSS\190120.6\04AS/94 2 y Y changes in the terms of disbursement or repayment thereof, modifi- cations, extensions, substitutions or renewals of payment dates, release of security in whole or in part, changes in interest rate, or the advancement of additional funds by Lender in. its sole and absolute discretion for purposes related to the. Project.. 5. Guaranty of Payment: Right to Proceed Directly Against Guarantors. Except as otherwise provided in Section 2 hereof, (a) this is an irrevocable, absolute, continuing guaranty of payment and not a guaranty of collection; (b) the Guarantors waive any right to require that any action be brought against Borrower, any other Guarantor, or any other person or to require that resort be // had to any security; (c) Lender may, at its option, proceed against the Guarantors individually, or any of them, in the first instance to collect any monies the payment of which is guaranteed hereby, without first proceeding against Borrower or any other person or Guarantor, and without first resorting to any security held by it as collateral or to any other remedies, at the same or different times, as it may deem advisable; and (d) the liability of the Guarantors hereunder shall be in no way affected or impaired by an acceptance by Lender of any security for, or other guarantors upon, any indebtedness, liability or obligation of Borrower to the Lender, or by any failure, delay, neglect or omission by Lender to realize upon or protect any such indebtedness, liability or obli- gation or any Note or other instruments evidencing same or any - collateral or security therefor. 6. Consent to Extensions, Renewals and Releases. The Guarantors hereby consent that Lender from time to time, before or after any default by Borrower, with or without further notice to or assent from the Guarantors, may, without in any manner affecting the liability of Guarantors, and upon such terms and conditions as it may deem advisable: (a) extend in whole or in part (by renewal or otherwise) , modify, accelerate, change or release any indebtedness, liability or obligation or Borrower or of any other person secondarily or otherwise liable for any indebtedness, liability or obligation of Borrower, or waive any default with respect thereto; (b) sell, release, surrender, modify, impair, exchange, substitute or (if a chose or choses in action) extend the duration or the time for performance or payment of any and all property, of any nature and from whomsoever received, held by Lender as security for the payment or performance of any indebtedness, liability or obligation of Borrower to Lender; and (c) settle, adjust or compromise any claim of Lender against Borrower or any other person secondarily or otherwise liable for any indebtedness, liability or obligation of Borrower. Guarantors hereby ratify and confirm any such extension, renewal, change, release, waiver, surrender, exchange, modification, impairment, substitution, settlement, adjustment or compromise and agree that the same shall be binding upon the Guarantors, and the Guarantors hereby expressly waive any and all defenses, counterclaims or offsets which any of them might or could have by reason thereof, it 3 CTN\PEINEYSS I98128.6\04/l5/94 __ being understood that the Guarantors shall at all times be bound by this Guaranty and remain liable to Lender hereunder. 7. Waivers by Guarantors. Guarantors hereby waive: (a) notice of acceptance of this Guaranty by Lender, or of the crea- tion, renewal or accrual of any liability of Borrower, present or • future, or of the reliance of Lender upon this Guaranty (it being understood that every- indebtedness, liability and obligation of . Borrower to Lender forming a part of the Obligations shall con- clusively be presumed to have been created, contracted or incurred in reliance upon this Guaranty) ; (b) demand of payment from any person indebted in any manner on or for any of the liabilities or ' obligations hereby guaranteed; (c) presentation for payment of any instrument of Borrower or any other person, protest thereof and notice of its dishonor to any party thereto and to Guarantors; (d) any defense arising by virtue of the lack of authority, death, or disability of any Guarantor or other party, or revocation hereof by. any other party; (e) any defense based upon an election of remedies by Lender which destroys or otherwise impairs the subrogation rights of Guarantors or the right of Guarantors to proceed against Borrower for reimbursement, or both; (f) any duty on the part of Lender to disclose to Guarantors any facts which Lender may now or hereafter know about Borrower, regardless of whether Lender has reason to believe that any such facts materially increase the risk beyond that which Guarantors intend to assume or have reason to believe that such facts are unknown to Guarantors or have a rea- sonable opportunity to communicate such facts to Guarantors, it being understood and agreed that Guarantors are fully responsible for being and keeping informed of the financial condition of Borrower and of all circumstances bearing on the risk of non- payment of all obligations hereby guaranteed; and (g) notice of intent to accelerate. 8. Effect of Bankruptcy. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Obligations, as set forth herein, any prior release or discharge from the terms of the Guaranty given to Guarantors or any of them by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Lender and Guarantors that the Obligations hereunder shall not be discharged except by Guarantors' performance of all of their respective obligations hereunder and then only to the extent of such performance and except as otherwise provided herein. 9. Remedies. In the event that Guarantors shall fail to perform promptly as herein provided, Lender shall have the right (from time to time, without first requiring performance on the part of the Borrower) to require performance by the Guarantors of any Obligations, by action at law or in equity or both, and further to collect in any such action reasonable compensation for all loss, GT1APE1l EYSS\198120.6\04/15/94 4 r' �r costs, damage, injury and expense sustained or incurred by Lender as a consequence of such breach. 10. Interest and Expenses of Enforcement. Guarantors agree to pay any and all costs and expenses incurred by Lender in enforcing any rights or remedies under this Guaranty, including, without limitation, all reasonable fees and expenses of the Lender's attorneys (including paralegal fees)., regardless of whether any specific legal proceedings are commenced or initiated, if Guarantor fails to pay to Lender any amounts required of Guarantor hereunder within 15 days after demand by Lender. / / 11. Consideration. Each Guarantor acknowledges that his undertakings given hereunder are given in consideration of the making and extension of the Loan by Lender to Borrower and that Lender would not make or extend the Loan were it not for the execution and delivery of this Guaranty. 12. No Waiver. No failure on the part of Lender to pursue any remedy hereunder or under any of the Loan Agreement, the Note, the Security Agreement or any of the other Loan Documents, shall constitute a waiver on its part of the right to pursue said remedy on the basis of the same or a subsequent breach, nor shall such failure give rise to an estoppel against Lender, nor excuse any of the Guarantors from their obligations hereunder. No extension, substitution, modification, amendment or renewal of any of the Loan Agreement, the Note, the Security Agreement or any of the other Loan Documents shall serve to waive the provisions hereof or discharge the Guarantors from any obligation herein contained in whole or in part, except to the extent expressly provided by Lender in writing or as provided herein. 13. Guaranty Independent. (a) Guarantors agree that the obligations hereunder are independent of and in addition to the undertakings of the Borrower pursuant to the Loan Agreement, the Note, the Security Agreement, the other Loan Documents and any other obligations of Guarantors to Lender. A separate action may be brought to enforce the provisions hereof whether or not Borrower, or any other guarantor, is a party in any such action. Borrower and/or Guarantors and/or any other guarantor may sued together, or any of them may be sued sepa- rately without first or contemporaneously suing the other. (b) Guarantors waive any right to require Lender to (i) proceed against Borrower, (ii) proceed against or exhaust any security held from Borrower, (iii) proceed against any other Guar- antor, or (iv) pursue any remedy in Lender's power whatsoever. Guarantors waive any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower other than full pay- ment of the Borrower's indebtedness to Lender. Guarantors waive any defense they or any of them may acquire by reason of Lender's 5 ClIAPE/NEYSSU99120.6\04/15/94 y'y election of any remedy against any Guarantor or the Borrower or both, even though Guarantors' rights of subrogation may thereby be impaired' or extinguished. . 14. Subrogation. • Notwithstanding anything to the contrary contained herein, unless and until the Obligations have been paid in full: (a) each Guarantor hereby subordinates, until Lender has been paid in full, all rights he may have at law or in. equity (including, without limitation, any law subrogating said Guarantor to the rights of Lender) to seek contribution, indemnification, or any other form of reimbursement from Borrower, any other guarantor, or any other person now or hereafter primarily or secondarily liable for any obligations of Borrower to Lender, for any payment or disbursement made by such Guarantor under or in connection with this Guaranty or otherwise; (b) if any amount shall be paid to Guarantors on account of such subrogation rights at any time, such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon such indebtedness, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine; and (c) Guarantors subordinate, until Lender has been paid in full, the benefit of, and any right to participate in, any security now or hereafter held by Lender from the Borrower. 15. Representations and Warranties. Each of the Guarantors hereby severally represents and warrants the following: (a) This Guaranty constitutes the legal, valid and bind- ing obligation of Guarantor, enforceable against Guarantor in accordance with its terms. The execution, delivery and performance of this Guaranty by Guarantor has not resulted, and will not result, in a breach or default (with due notice and/or lapse of time) under any agreement or instrument to which Guarantor is a party. (b) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regula- tory body is required for the due execution, delivery and perform- ance by Guarantor of this Guaranty. (c) All financial statements, reports, papers and writ- ten data and information given to Lender by Guarantor with respect to Guarantor, if any, are accurate and correct in all material respects and complete insofar as completeness may be necessary to give Lender a true and accurate knowledge of the subject matter thereof. (d) There is not now pending against or affecting Guar- antor, nor to the knowledge of Guarantor is there threatened, any action, suit or proceeding at law or in equity or by or before any administrative agency or arbitrator of any kind or before any gov- ernmental department, commission, board, bureau, agency or instru- mentality (domestic or foreign) which, if adversely determined, 6 0WEINET55\190120.6\0{/15/9{ , would have a material adverse effect on the financial condition or operations of Guarantor or would otherwise impair his ability to perform his obligations under this Guaranty. 16. • Amendments, Etc. No amendment or waiver of any provision of this Guaranty nor consent to any departure by Guarantors there- from shall in any event be effective, unless the. same shall be. in writing and signed by Lender, and then.such waiver or consent shall be effective only in the specific instance and for the specific purpose for which such waiver or consent has been given. 17. Notices. Demand and Other Instruments. All notices, // offers, acceptances, rejections, consents, requests and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered in person, or (ii). when sent by telecopier, telex or other telegraphic means (with receipt con- firmed) , or (iii) on receipt after being sent by express mail or delivery service guaranteeing overnight delivery, provided that in each of (i) , (ii) and (iii) a copy is mailed by first class regis- tered or certified mail, postage prepaid, return receipt requested, in each case addressed as follows: If to any Guarantor: At the address for such Guarantor set forth below his signature at the end of this Guaranty. If to Lender: City of Miami Beach City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 or to such other person or address as any such party shall furnish by notice to the other parties in writing. Notices need not be given or made by an officer of either party but shall be deemed sufficiently given if made by the counsel of such party, and all of such notices shall be deemed in compliance hereof provided only that they be given in the manner specified herein. 18. Breach of Warranty. Guarantors shall be deemed to be in default of this Guaranty if any representation or warranty made by Guarantors hereunder, under any statement, instrument or certi- ficate delivered by Guarantors to Lender pursuant to the provisions hereof, or under any other agreement between Guarantors and Lender made in connection with the Loan or otherwise shall be determined by Lender to have been false or misleading in any material respect as of the date on which the same was made, and in such case, Lender Cfl\VEI,IEYSS 199120.6\04/15/94 7 r, I shall be entitled to exercise the remedies described in this Guaranty. 19. Separate Property. Each Guarantor hereby subjects Guar- , antor's separate property to this Guaranty and hereby expressly agrees that recourse may be had against such separate property for all of Guarantor's obligations hereunder, and each Guarantor does further agree that any and all of such separate property shall be subject to execution for any judgment or decree on or enforcing this Guaranty by a court of competent jurisdiction. Each Guarantor agrees that any property held by such Guarantor in joint tenancy, in a tenancy-in-common or as community property (except for his / / homestead) shall also be subject to enforcement of this Guaranty. 20. Loan Documents. Each Guarantor acknowledges that he is fully familiar with the terms, provisions and conditions of the Loan Documents and that his signature on this Guaranty shall also serve as his consent to and approval of the terms and provisions thereof, but shall not create any obligations thereunder, except as set forth herein. 21. Right to Specific Performance. Lender shall have, and may exercise, in addition to all other rights, privileges, or remedies available to under this Guaranty and by law, the specific rights and remedies, exercisable by it in its discretion, to sue for and obtain specific performance by the Guarantors of the Guarantors' covenants and agreements set forth herein, all at the cost and expense of the Guarantors. 22 . Miscellaneous. (a) This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida. (b) Time is of the essence hereof with respect to the Obligations hereunder. (c) Guarantors agree to pay any present or future stamp or documentary taxes, or any other excise or property taxes, charges or similar levies which arise from any payment made here- under or from the execution, delivery or registration of, or other- wise with respect to this Guaranty. (d) If any term, provision, covenant or condition hereof or any application thereof should be by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, pro- visions, covenants and conditions hereof, and all applications thereof not held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. (e) This Guaranty may be executed in any number of coun- terparts, each of which shall be deemed an original hereof and all 8 Gfl4PE»IEYSS\l9O12O.6\04/I5/94 of which together shall constitute but one and the same instrument. It shall not be necessary for the same counterpart of this Guaranty to be executed by all of the parties hereto in order for this Guar- • •anty to be fully and legally binding upon any party executing at . least one counterpart. Each counterpart hereof need not contain a . signature line for any Guarantor other than the Guarantor signing. such counterpart. . (f) The use of the words "herein", "hereof", "hereunder" and any other words of similar import refer to this. Guaranty as a whole and not to any particular paragraph, subparagraph or other subdivision of this Guaranty unless specifically noted otherwise in this Guaranty. (g) The title of this Guaranty and the headings of the paragraphs of this Guaranty are for convenience of reference only, and are not to be considered a part of the substance of this Guaranty, and shall not limit or expand or otherwise affect any of the terms hereof. (h) EACH OF THE GUARANTORS HEREBY KNOWINGLY VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS EXE- CUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND RELATED TO THIS TRANSACTION; THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN AND TO ACCEPT THIS GUARANTY. (i) In this Guaranty, wherever the context so requires, the neuter gender includes the masculine and/or feminine gender, the singular numbers include the plural, and the plural numbers include the singular. (j) This Guaranty creates a continuing obligation and the obligation of Guarantors hereunder shall be binding upon Guar- antors and their respective successors, heirs, representatives and assigns, and shall inure to the benefit of and be enforceable by Lender and its successors and assigns. 23. Termination of Guaranty. This Guaranty shall terminate and Guarantor shall be released from all liability hereunder on the earlier of: (a) payment by Borrower of the Obligations; or (b) pay- ment by Guarantor of all amounts required to be paid by Guarantor hereunder. 9 cm p.6rss‘is....\w/,s/v. IN WITNESS WHEREOF, Guarantors have duly executed this Guar- anty as of the day and year first above written. [Print name of Guarantor] [Signature] [Address] 10 GYN\...EYSS\190120.6\04/15/94• , yY ' I i • Acknowled ement STATE OF FLORIDA ) ) SS: COUNTY OF DATE ) a Notary Public in and I, in the State aforesaid, do hereby certify that for the said County personally known to me to be person whose name is subs n ibdoant the eckforegoing the same P eared before me this day 1 person, as his wledged instrument she, signed, and delivered the said instrument s s thereino that he or act, for the uses and purposes'i her own free and voluntary set forth. day of GIVEN under my hand and notarial seal this ► 19_. NOTARY PUBLIC, STATE OF FLORIDA ------------- (Name of Notary Public, Print, Stamp or Type as Coirmissioned) 0 Personally known to me, or ❑ Produced identification: (Type of Identification Produced) . 0 DID take an oath, or 0 DID NOT take an oath. 11 GTh\Vp«ET55\199120.6\01/t5/91 _ • y Y • f . SECURITY AGREEMENT AND CONDITIONAL ASSIGNMENT OF LEASE THIS SECURITY AGREEMENT . CO TIONAL ASSIGNMENT OF LEASE, dated as of the A9 day of , 1994, is made by MOSAIC, INC. , a Section 501(c) (3) no for-profit Florida corporation (the "Pledgor") and THE CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida (the "Secured Party") ; W I T N E S S E T H: WHEREAS, pursuant to a Loan Agreement by and between Pledgor and Secured Party, dated as of the date hereof and as evidenced by a promissory note of even date herewith (collectively, the "Loan Agreement") , Secured Party has agreed to lend the proceeds of a loan under the Loan Agreement (the "Loan") to the Pledgor, in order to enable the Pledgor to finance the "Project" (as defined in the Loan Agreement) ; and WHEREAS, as security for the payments required to be made by Pledgor under the Loan Agreement, Pledgor has agreed to grant to Secured Party a security interest in certain personal property and to a conditional assignment of Pledgor's right, title and interest in and to that certain lease agreement between Pledgor and Congregation Beth Jacob ("Landlord") , dated December 13, 1992 (the "Lease") , providing for the lease of premises at 301-317 Washington Avenue, Miami Beach, Dade County, Florida, as described in the Lease (the "Premises") which facility will be used as a museum and permanent home for the Pledgor's Collection (as defined herein- below) (the "Museum") ; NOW, THEREFORE, in consideration of the Loan by the Secured Party and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pledgor hereby agrees for the benefit of Secured Party as follows: 1. Security Interest As security for payment and performance in full of the Obliga- tions, as hereinafter defined, Pledgor hereby, grants, bargains, sells, conveys, assigns, and transfers to Secured Party a first priority security interest in all right, title, and interest of Pledgor as tenant or lessee with respect to the Premises and any amendment, modification, extension, renewal or replacement of the Lease, including without limitation, Pledgor's right of first refusal pursuant to Section 10 of the Lease, conditional upon (the "Conditional Assignment") Pledgor's default in, breach or failure to perform any one or more of ' the covenants and agreements con- tained in the Loan Agreement if such is not cured within the appli- t.M.EMETSS\L.o,n..Ta/es,9. _ ' ' cable curative period, if any, specified in the Loan Agreement, and that certain other personal property comprising Pledgor's "collec- tion" (the "Collection") and listed on Schedule I attached hereto, as amended from time to time, whether now existing or hereafter arising, together with the rights and proceeds deriving therefrom (the Conditional Assignment and the Collection and the rights and proceeds deriving therefrom being hereinafter referred to as the "Collateral") . The parties acknowledge having received a consent from the Landlord in the form of Exhibit "E" attached to the Loan Agreement. Further, if the Pledgor becomes the owner of the real property which •is the subject of the Lease, whether pursuant to the exercise of the right of first refusal or otherwise, then Pledgor agrees that the Lease shall not be merged into Pledgor's fee simple interest and Pledgor shall make, execute and deliver or cause to be made, executed and delivered, any and all instruments in the opinion of Secured Party reasonably necessary to continue and preserve the security interest of the Secured Party in the Lease. TO HAVE AND TO HOLD the Collateral, together with all rights, titles, interests, powers, privileges, and preferences pertaining or incidental thereto unto the Security Party, its legal represen- tatives, successors, and assigns, forever; subject, however, to the terms, covenants, and conditions hereinafter set forth. 2 . Obligations Secured This Security Agreement and Conditional Assignment of Lease (hereinafter, the "Agreement") is given for the purpose of providing security for the following (collectively, the "Obligations") : (a)' The payment and performance of any and all liabilities of the Pledgor under the Loan Agreement, as the same may be further modified, amended, renewed, or extended from time to time; (b) The payment of all sums becoming due and payable to Secured Party under the provisions of this Agreement, as the same may be modified, amended, renewed, or extended from time to time; and (c) The performance and discharge of each and every obligation, covenant and agreement of Pledgor contained herein. 3. Representations and Warranties Pledgor represents and warrants to Secured Party as follows: - 2 a7MPO.i ss%Ia.lO.Ta/15/w r r 1• r r rY r , r 1 rr r r • r•' ' r (a) That the Collateral is free from any lien, security or encumbrance, except the .security interest granted hereby. Pledgor will defend Secured Party against any claims and .demands of other persons at any time claiming the Collateral or any interest in it; (b) That this Agreement is in all respects legal, valid and binding according to its terms and shall grant to Secured Party a direct, valid and enforceable first priority security interest in the Collateral; (c) That Pledgor has the full and unrestricted right and authority to pledge, deliver, assign, and transfer the Collateral to Secured Party as provided herein; (d) That there are no actions, suits or proceedings pending, or, to the knowledge of Pledgor threatened against or affecting it at law or in equity, or before or by any governmental authority, except actions, suits and proceedings which, if adversely deter- mined, would not substantially impair the security interest of Secured Party, the value of the Collateral, the ability of the Pledgor to perform the Obligations, or the ability of Pledgor to perform each and every one of its duties hereunder; and to Pledgor's knowledge, it is not in default with respect to any order, writ, injunction, decree or demand of any court or any governmental authority; (e) That Pledgor has no knowledge of any violations or notices of violations of any federal law applicable to Pledgor, including the federal securities laws, or any order or requirement of any State or any municipal department or other governmental authority having jurisdiction affecting the Collateral; and (f) That the Pledgor is (i) a Section 501(c) (3) not- for-profit corporation duly organized, existing and in good standing under the laws of the State of Florida, and (ii) it has the corporate power, authority and legal right to carry on the business now being conducted by it. 4. Preservation of the Value of Collateral Pending the full payment and satisfaction of the Obligations, Pledgor covenants and agrees as follows: (a) Pledgor shall keep the Collateral free from all security interests and other encumbrances except for the security interest granted herein; (b) Except as provided in the Loan Agreement, Pledgor shall not sell, transfer, convey, encumber, or otherwise dispose of the Collateral or any interest herein; G.hPY�\1.39Io.S\O4/I/4 - 3 - • ' V 4. , 1 (c) Pledgor shall pay all taxes, assessments, and other charges of any nature which may be properly .levied or assessed against the Collateral or any part thereof; and (d) Pledgor shall provide to the City on each payment- date required under the Loan Agreement a revised Schedule I. . (e) Pledgor shall diligently and in good faith, use its best ' efforts to protect the value of the Collateral and to prevent any action from being taken which would or could, in the exercise of its reasonable' business judgment, jeopardize or diminish the security afforded to Secured Party by this Agreement or diminish the value of the Collateral. 5. Agency Pledgor hereby irrevocably appoints Secured Party as the authorized agent and attorney-in-fact of Pledgor to execute all instruments of assignment or further assurances in favor of Secured Party or its nominee as may be necessary or desirable to which it is entitled by reason of the Lease and otherwise to enforce directly any and all rights of Pledgor under or with respect to the Collateral, except that Secured Party agrees not to exercise such right and agency so long as no Event of Default has occurred here- under. The Landlord may rely on the authorization and agency con- tained in this Section 5 recognizing the rights of Secured Party under, or with respect to, the Lease. Pledgor acknowledges and agrees that Secured Party shall be under no obligation whatsoever to take any affirmative action with respect to the Collateral or pursuant to this Agreement. 6. Events of Default The happening of any of the following events or conditions shall constitute an Event of Default hereunder: (a) The occurrence of any Event of Default which under the Loan Agreement is not cured within any applicable grace or cure period; or (b) Any warranties or representations made by Pledgor herein shall prove to be materially false or materially misleading; or (c) Pledgor shall (except as provided in the Loan Agreement) , without the prior written consent of the Secured Party sell, transfer,• convey, assign, or encumber all or any part of the legal or equitable title to the Collateral, or any part of, or interest in, the Collateral; or - 4 - cm\vv«crss\ a • (d) Pledgor shall fail to duly keep, observe, or perform any other covenant, condition, or agreement contained in this Agreement and such failure shall remain uncured for a period of thirty (30) days after written notice of such failure• from Secured Party. 7. Remedies Upon Default Upon the occurrence of any Event of Default, Secured Party may (i) take such actions and advance such sums on behalf of Pledgor as Secured Party may deem reasonably necessary to protect the security of Secured Party hereunder, (ii) sell the Collateral or any part thereof upon such terms and in such manner as Secured Party may reasonably choose, (iii) on its own behalf or though a nominee, foreclose on the Conditional Assignment, (iv) on its own behalf or through a nominee, operate the Museum, or (v) exercise any other remedies available at law, in equity, or by agreement. All advances made.by Secured Party for the protection of the Collateral, and all expenses incurred by Secured Party in enforcing and protecting the rights of Secured Party hereunder, shall be secured hereby and shall be immediately repaid by Pledgor to Secured Party upon demand, with interest thereon at the maximum rate permitted by law. Secured Party shall, at all times during the term hereof, have the rights and remedies of a secured party under the Uniform Commercial Code of the State of Florida. Secured Party will give Pledgor reasonable notice of the time at which any disposition of the Collateral is to be made. The requirements of reasonable notice shall be met if the notice is mailed, postage prepaid, to Pledgor's address set forth in Paragraph 12 of this Agreement, at least five (5) days before the time of the disposition. Secured Party shall act as the authorized agent and attorney-in-fact of Pledgor in disposing of all or any part of the Collateral and in that capacity is authorized to take such action on behalf of Pledgor as will further such a disposition, including, without limitation, the provision of any necessary endorsement or signature. The proceeds of any such disposition shall be applied first to the payment of expenses incurred by Secured Party in connection with the exercise of its rights under this Agreement, including, without limitation, advances to protect the security of the Secured Party hereunder and expenses of any such disposition and of all proceedings in connec- tion therewith, including reasonable attorneys' fees actually incurred, then to the payment of accrued interest and late charges on the Obligations, then to the payment of the principal balance of the Obligations, and finally, the remainder, if any, shall be paid to Pledgor. Any purchaser (including, without limitation, Secured Party) at a disposition conducted by Secured Party pursuant to the terms of this Agreement shall hold the property acquired free from any claim or right on the part of Pledgor, and Pledgor hereby waives any right of redemption, stay, or appraisal under present or future law. - 5 - cIMPO.E.55\1S3910.5\a/a 5/94 8. Proceedings by Secured Party Secured Party shall have the power (a) to institute and main- tain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or any violation of this Agreement, (b) to preserve or protect its interest in the Collateral, and in the profits and revenues arising therefrom, and (c) to restrain the enforcement of or compliance with any legislation or any other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such enactment, rule or order would impair the security hereunder or be prejudicial to the interest of Secured Party; provided, however, Secured Party shall not institute or maintain any such suits or proceedings against parties other than Pledgor unless and until Secured Party shall first have made upon Pledgor such request to do so as shall then be reasonable under the circumstances, and Pledgor shall have there- upon failed either to institute and maintain such suit or otherwise to cure or correct any such acts or circumstances. Pledgor shall pay or reimburse Secured Party for all reasonable attorneys' fees, costs, and expenses incurred by Secured Party in any proceeding involving the Collateral or in any action, legal proceeding or dispute of any kind in which Secured Party is made a party, or appears as a party, plaintiff, or defendant, affecting the security interest established hereby; and any such amounts paid by Secured Party shall be added to the indebtedness secured by this Agreement. 9. Further Assurances At any time, and from time to time, upon request by Secured Party, Pledgor shall make, execute and deliver or cause to be made, executed and delivered, to Secured Party, any and all other further instruments, certificates, financing statements and other.documents as may, in the opinion of Secured Party, be reasonably necessary or desirable in order to effectuate, complete or perfect or to continue and preserve the security interest of Secured Party in the Collateral. Upon any failure by Pledgor to do so, Secured Party may make, execute and record any and all such instruments, certificates and documents for and in the name of Pledgor, and Pledgor hereby irrevocably appoints Secured Party the agent and attorney-in-fact of Pledgor to do so. 10. No Waiver Secured Party shall not be deemed to have waived any of Secured Party's rights under this Agreement unless the waiver is in - 6 - Gn1\vo9Ct SS\183910.5\01/15/94 I I 1 1 I I writing and signed by Secured Party. No delay or omission on the part of Secured Party in exercising any right shall operate as a waiver of such right or any other right. A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion. 11. Remedies Not Exclusive No right, power or remedy conferred upon or reserved by Secured Party by this Agreement is intended to be exclusive of any other right, power or remedy, but each and every right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder, or now or hereafter existing at law or in equity or by statute. 12. Notices Any and all notices, elections, demands, requests and responses hereto permitted or required to be given under this Agreement shall be in writing, signed by or on behalf of the party giving the same, and shall be deemed to have been properly given or served and shall be effective upon being personally delivered or upon being deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, to the other party at the address of such other party set forth below or at such other address as such other party may designate by notice specifically designated as a notice of change of address and given in accordance herewith; provided, however, that the time period in which a response to any such notice, election, demand or request must be given shall commence on the date of receipt thereof; and provided further that no notice of change of address shall be effective until the date of receipt thereof. Personal, delivery to a party or to any officer, partner, agent or employee of such party at said address shall constitute receipt. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been received shall also constitute receipt. Any such notice, demand, or request shall be addressed as follows: Pledgor: MOSAIC, INC. 975 41st Street, Suite 407 Miami Beach, Florida 33140 Attention: Executive Director with a copy to: Gary Simon, Esq. 6465 SW 110th Street Miami, Florida 33156 - 7 - .mvo.cns\1.3010.s\04/15/9{ 1 Secured Party: City of Miami Beach City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City Attorney City of Miami Beach City Hall 1708 Convention Center Drive Miami Beach, Florida 33139 13. Successors and Assigns This Agreement and all rights and liabilities under it and in the indebtedness secured by it and the Collateral described in it shall inure to the benefit of Secured Party, its successors and assigns and shall be binding upon Pledgor and Pledgor's heirs, executors, administrators, successors and permitted assigns. 14. Termination This Agreement shall terminate immediately upon the full payment, performance, and discharge of all of the Obligations. 15. Invalidity of Any Provision If any provision of this Agreement is held to be unenforceable or invalid, then such unenforceable or invalid provision shall be deemed deleted or amended, as necessary, but such unenforceability or invalidity shall not render unenforceable or impair the remainder of this Agreement, it being the intention of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies of each state in which such enforcement is sought. - 8 .TW\ven[ns\1.]919.5\••/15/94 1• • 1 16. Execution in Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. 17. Governing Law; Amendments This Agreement and all rights, obligations and indebtedness arising hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Florida. This Agreement may not be amended or modified except in a writing signed by each of the parties hereto. 18. Time of Essence Time is of the essence in the performance of Pledgor's obligations hereunder. IN WITNESS WHEREOF, this Agreement has been duly executed and sealed as of the date and year first above written. PLEDGOR: MOSAIC, INC. r By: -4j14(----- Title: ✓c-ev a A - Attest:744;40A- "' Title: r4cr . S.�rei.r,/' y [Corporate Seal] / - 9 - cmpowcYSS 1.39t..S\4/15/94 , APPROVED P SECURED PARTY: THE CI ' OF MIAMI B: : , FLORIDA lir /1 ' By: A AIL.. ./ (SEAL) Attest: Ca` Richard .Brown City Clerk APPROVED BY THE CITY ATTORNEY AS TO FORM AP' ' 1 VED FORM AND LEGAL SUFFICIENCY: 1_,. ..,„ iEPI. ,.; /w By: Date ///#✓i-' Title: - 10 - .04,..nss\1.].I..5\a/I sN, • t SCHEDULE I THE COLLECTION Loaned Description or Owned LIMITED GUARANTY THIS LIMITED GUARANTY ("Guaranty") is made as of this day of , 1994, severally only, by the persons named on Exhibit "A" hereto, as revised from time to time (such persons being here- after sometimes collectively referred to as the "Guarantors" and each being hereafter sometimes referred to as a "Guarantor") , in favor of The City of Miami Beach, Florida, a municipal corporation of the State of Florida ("Lender") . RECITALS: A. On the date hereof, Lender is making available to Borrower a loan in a principal amount not to exceed $500,000 (the "Loan") to MOSAIC, INC. , a Section 501(c) (3) Florida not-for-profit corporation ("Borrower") , pursuant to a Loan Agreement dated the date hereof (the "Loan Agreement") , and evidenced by a Promissory Note, dated the date hereof (the "Note") . B. The Loan is secured in part by a Security Agreement dated the date hereof (the "Security Agreement") . The Loan Agreement, the Note, the Security Agreement, this Guaranty, and each of the other documents executed in connection with the Loan, as the same may hereafter be amended, are sometimes collectively referred to herein as the "Loan Documents". Principal of and interest on the Loan and all other debts, obligations and liabilities of Borrower to Lender under the Loan Documents from time to time, including the costs of collection and enforcement of the Loan Documents and including, without limitation, reasonable attorneys' fees and costs, are collectively referred to herein as the "Obligations". C. Each Guarantor will benefit from the Loan and the trans- actions relating thereto, resulting from the interest each Guarantor has, directly or indirectly, in the successful renovation of a facility to be used as a museum by Borrower (the "Project") to house its collection of memorabilia. D. Lender has stated that it will not agree to make the Loan solely upon the covenants of the Borrower under the Loan Agreement, the Security Agreement and the other Loan Documents, but will require, as further collateral and security therefor, that each of the Guarantors execute this Guaranty. E. Each Guarantor is desirous of inducing Lender to make the Loan to Borrower and is willing to pledge his credit to secure the Loan. NOW, THEREFORE, in consideration of the premises, the sum of $10. 00 and other good and valuable consideration, the receipt of which is hereby duly acknowledged., and in order to be of material ClINPO. yss\tsuio.6\04/15/9. benefit and assistance to Borrower and in order to induce Lender to make the Loan, Guarantors agree as follows: i. Capitalized Terms. All capitalized terms utilized herein, unless specifically otherwise defined herein, shall have the meanings assigned to such terms in the Loan Agreement. 2. Obligations. Except as otherwise provided in Section 3 hereof, each Guarantor hereby severally, and not jointly, abso- lutely, irrevocably and unconditionally guarantees (as primary obligors and not merely as sureties) to Lender, its successors and assigns, the full and prompt payment when due, and the performance of, the Obligations. 3. Limited Nature of Guaranty_. Notwithstanding anything to the contrary contained in this Guaranty, the liability of each Guarantor shall be limited to 20 semi-annual (i.e. , each January 1 and July 1) payments of $2,440 until the Note and all Obligations under the Loan Documents are paid in full, said semi-annual payments to commence within 15 days immediately following delivery of notice from Lender to Guarantor of a default under any of the Loan Documents; furthermore, the liability of a Guarantor for said 20 payments (1) shall be reduced by reducing the 20 semi-annual payments in inverse order of the 20 payments, for each payment of principal that Borrower has made to Lender as defined in the Note, and (2) shall be reduced to the extent that there are more than 20 persons executing a Limited Guaranty in favor of Lender, such that each such Guarantor's liability shall be equal to a fraction with the numerator being 1 and the denominator being the number of Guar- antors listed, from time to time, on Exhibit "A" ; provided, how- ever, that such denominator shall never be less than 20. Any Guarantor may establish an escrow arrangement satisfactory to Lender and fund same with the necessary funds to cover the payments that may be called on the guaranty of said Guarantor. 4. No Offset, Defenses, Counterclaims. Guarantors shall not be entitled to any abatement, deferment, suspension, reduction, set-off, defense or counterclaim in respect of the Obligations. The liability of the Guarantors under this Guaranty shall remain in effect regardless of any law, regulation, or decree now or hereafter in effect in any jurisdiction which might in any manner affect any of such terms or provisions or the rights of Lender with respect thereto as against Borrower and irrespective of the validity, regularity or enforceability thereof, or of any defenses or rights of setoff or counterclaims which Borrower or Guarantors may have or assert against Lender, or of any other condition, contingency or circumstance whatsoever, whether occurring prior to or after the date hereof, whether known or unknown to the Guarantors or Borrower or Lender, and whether or not any of the same may or might vary the risk or affect the rights or remedies of the Guarantors. The Obligations shall not be reduced or discharged by any modifications in the Loan Agreement, Security Agreement, the Note or the other Loan Documents, including, without limitation, 2 �x\•oM[ns\ts.im.a\w/t s/v. 1 5' .y changes in the terms of disbursement or repayment thereof, modifi- cations, extensions, substitutions or renewals of payment dates, release of security in whole or in part, changes in interest rate, or the advancement of additional funds by Lender in its sole and absolute discretion for purposes related to the Project. 5. Guaranty of Payment: Right to Proceed Directly Against Guarantors. Except as otherwise provided in Section 2 hereof, (a) this is an irrevocable, absolute, continuing guaranty of payment and not a guaranty of collection; (b) the Guarantors waive any right to require that any action be brought against Borrower, any other Guarantor, or any other person or to require that resort be had to any security; (c) Lender may, at its option, proceed against the Guarantors individually, or any of them, in the first instance to collect any monies the payment of which is guaranteed hereby, without first proceeding against Borrower or any other person or Guarantor, and without first resorting to any security held by it as collateral or to any other remedies, at the same or different times, as it may deem advisable; and (d) the liability of the Guarantors hereunder shall be in no way affected or impaired by an acceptance by Lender of any security for, or other guarantors upon, any indebtedness, liability or obligation of Borrower to the Lender, or by any failure, delay, neglect or omission by Lender to realize upon or protect any such indebtedness, liability or obli- gation or any Note or other instruments evidencing same or any collateral or security therefor. 6. Consent to Extensions, Renewals and Releases. The Guarantors hereby consent that Lender from time to time, before or after any default by Borrower, with or without further notice to or assent from the Guarantors, may, without in any manner affecting the liability of Guarantors, and upon such terms and conditions as it may deem advisable: (a) extend in whole or in part (by renewal or otherwise) , modify, accelerate, change or release any indebtedness, liability or obligation or Borrower or of any other person secondarily or otherwise liable for any indebtedness, liability or obligation of Borrower, or waive any default with respect thereto; (b) sell, release, surrender, modify, impair, exchange, substitute or (if a chose or choses in action) extend the duration or the time for performance or payment of any and all property, of any nature and from whomsoever received, held by Lender as security for the payment or performance of any indebtedness, liability or obligation of Borrower to Lender; and (c) settle, adjust or compromise any claim of Lender against Borrower or any other person secondarily or otherwise liable for any indebtedness, liability or obligation of Borrower. Guarantors hereby ratify and confirm any such extension, renewal, change, release, waiver, surrender, exchange, modification, impairment, substitution, settlement, adjustment or compromise and agree that the same shall be binding upon the Guarantors, and the Guarantors hereby expressly waive any and all defenses, counterclaims or offsets which any of them might or could have by reason thereof, it 3 GTH\PON YSS\19.12G.6\O4/15/94 -- • ` • i i 4% ' • • being understood that the Guarantors shall at all times be bound by this Guaranty and remain liable to Lender hereunder. 7. Waivers by Guarantors. Guarantors hereby waive: (a) notice of acceptance of this Guaranty by Lender, or of the crea- tion, renewal or accrual of any liability of Borrower, present or future, or of the reliance of Lender upon this Guaranty (it being understood that every indebtedness, liability and obligation of Borrower to Lender forming a part of the Obligations shall con- clusively be presumed to have been created, contracted or incurred in reliance. upon this Guaranty) ; (b) demand of payment from any person indebted in any manner on or for any of the liabilities or obligations hereby guaranteed; (c) presentation for payment of any instrument of Borrower or any other person, protest thereof and notice of its dishonor to any party thereto and to Guarantors; (d) any defense arising by virtue of the lack of authority, death, or disability of any Guarantor or other party, or revocation hereof by any other party; (e) any defense based upon an election of remedies by Lender which destroys or otherwise impairs the subrogation rights of Guarantors or the right of Guarantors to proceed against Borrower for reimbursement, or both; (f) any duty on the part of Lender to disclose to Guarantors any facts which Lender may now or hereafter know about Borrower, regardless of whether Lender has reason to believe that any such facts materially increase the risk beyond that which Guarantors intend to assume or have reason to believe that such facts are unknown to Guarantors or have a rea- sonable opportunity to communicate such facts to Guarantors, it being understood and agreed that Guarantors are fully responsible for being and keeping informed of the financial condition of Borrower and of all circumstances bearing on the risk of non- payment of all obligations hereby guaranteed; and (g) notice of intent to accelerate. 8. Effect of Bankruptcy_. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by Lender in satisfaction of the Obligations, as set forth herein, any prior release or discharge from the terms of the Guaranty given to Guarantors or any of them by Lender shall be without effect, and this Guaranty shall remain in full force and effect. It is the intention of Lender and Guarantors that the Obligations hereunder shall not be discharged except by Guarantors' performance of all of their respective obligations hereunder and then only to the extent of such performance and except as otherwise provided herein. 9. Remedies. In the event that Guarantors shall fail to perform promptly as herein provided, Lender shall have the right (from time to time, without first requiring performance on the part of the Borrower) to require performance by the Guarantors of any Obligations, by action at law or in equity or both, and further to collect in any such action reasonable compensation for all loss, 4 Cfl4pD..E'13S\19.120.E\01/IS/94 .;• lI ' • costs, damage, injury and expense sustained or incurred by Lender as a consequence of such breach. 10. Interest and Expenses of Enforcement. Guarantors agree to pay any and all costs and expenses incurred by Lender in enforcing any rights or remedies under this Guaranty, including, without limitation, all reasonable fees and expenses of the Lender's attorneys (including paralegal fees) , regardless of whether any specific legal proceedings are commenced or initiated, if Guarantor fails to pay to Lender any amounts required of Guarantor hereunder within 15 days after demand by Lender. 11. Consideration. Each Guarantor acknowledges that his undertakings given hereunder are given in consideration of the making and extension of the Loan by Lender to Borrower and that Lender would not make or extend the Loan were it not for the execution and delivery of this Guaranty. 12. No Waiver. No failure on the part of Lender to pursue any remedy hereunder or under any of the Loan Agreement, the Note, the Security Agreement or any of the other Loan Documents, shall constitute a waiver on its part of the right to pursue said remedy on the basis of the same or a subsequent breach, nor shall such failure give rise to an estoppel against Lender, nor excuse any of the Guarantors from their obligations hereunder. No extension, substitution, modification, amendment or renewal of any of the Loan Agreement, the Note, the Security Agreement or any of the other Loan Documents shall serve to waive the provisions hereof or discharge the Guarantors from any obligation herein contained in. whole or in part, except to the extent expressly provided by Lender in writing or as provided herein. 13. Guaranty Independent. (a) Guarantors agree that the obligations hereunder are independent of and in addition to the undertakings of the Borrower pursuant to the Loan Agreement, the Note, the Security Agreement, the other Loan Documents and any other obligations of Guarantors to Lender. A separate action may be brought to enforce the provisions hereof whether or not Borrower, or any other guarantor, is a party in any such action. Borrower and/or Guarantors and/or any other guarantor may be sued together, or any of them may be sued sepa- rately without first or contemporaneously suing the other. (b) Guarantors waive any right to require Lender to (i) proceed against Borrower, (ii) proceed against or exhaust any security held from Borrower, (iii) proceed against any other Guar- antor, or (iv) pursue any remedy in Lender's power whatsoever. Guarantors waive any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower other than full pay- ment of the Borrower's indebtedness to Lender. Guarantors waive any defense they or any of them may acquire by reason of Lender's 5 C IM V flME ns t 96 t20.6\04/15/94 . election of any remedy against any Guarantor or the Borrower or both, even though Guarantors' rights of subrogation may thereby be impaired or extinguished. 14. Subroaation. Notwithstanding anything to the contrary contained herein, unless and until the Obligations have been paid in full: (a) each Guarantor hereby subordinates, until Lender has been paid in full, all rights he may have at law or in equity (including, without limitation, any law subrogating said Guarantor to the rights of Lender) to seek contribution, indemnification, or any other form of reimbursement from Borrower, any other guarantor, or any other person now or hereafter primarily or secondarily liable for any obligations of Borrower to Lender, for any payment or disbursement made by such Guarantor under or in connection with this Guaranty or otherwise; (b) if any amount shall be paid to Guarantors on account of such subrogation rights at any time, such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon such indebtedness, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine; and (c) Guarantors subordinate, until Lender has been paid in full, the benefit of, and any right to participate in, any security now or hereafter held by Lender from the Borrower. 15. Representations and Warranties. Each of the Guarantors hereby severally represents and warrants the following: (a) This Guaranty constitutes the legal, valid and bind- ing obligation of Guarantor, enforceable against Guarantor in accordance with its terms. The execution, delivery and performance of this Guaranty by Guarantor has not resulted, and will not result, in a breach or default (with due notice and/or lapse of time) under any agreement or instrument to which Guarantor is a party. (b) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regula- tory body is required for the due execution, delivery and perform- ance by Guarantor of this Guaranty. (c) All financial statements, reports, papers and writ- ten data and information given to Lender by Guarantor with respect to Guarantor, if any, are accurate and correct in all material respects and complete insofar as completeness may be necessary to give Lender a true and accurate knowledge of the subject matter thereof. (d) There is not now pending against or affecting Guar- antor, nor to the knowledge of Guarantor is there threatened, any action, suit or proceeding at law or in equity or by or before any administrative agency or arbitrator of any kind or before any gov- ernmental department, commission, board, bureau, agency or instru- mentality (domestic or foreign) which, if adversely determined, 6 9fl\PD. YS5\199120.6\a/l6/94 tr would have a material adverse effect on the financial condition or operations of Guarantor or would otherwise impair his ability to perform his obligations under this Guaranty. 16. Amendments, Etc. No amendment or waiver of any provision of this Guaranty nor consent to any departure by Guarantors there- from shall in any event be effective unless the same shall be in writing and signed by Lender, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which such waiver or consent has been given. 17. Notices, Demand and Other Instruments. All notices, offers, acceptances, rejections, consents, requests and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered in person, or (ii) when sent by telecopier, telex or other telegraphic means (with receipt con- firmed) , or (iii) on receipt after being sent by express mail or delivery service guaranteeing overnight delivery, provided that in each of (i) , (ii) and (iii) a copy is mailed by first class regis- tered or certified mail, postage prepaid, return receipt requested, in each case addressed as follows: If to any Guarantor: At the address for such Guarantor set forth below his signature at the end of this Guaranty. If to Lender: City of Miami Beach City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 or to such other person. or address as any such party shall furnish by notice to the other parties in writing. Notices need not be given or made by an officer, of either party but shall be deemed sufficiently given if made by the counsel of such party, and all of such notices shall be deemed in compliance hereof provided only that they be given in the manner specified herein. 18. Breach of Warranty. Guarantors shall be deemed to be in default of this Guaranty if any representation or warranty made by Guarantors hereunder, under any statement, instrument or certi- ficate delivered by Guarantors to Lender pursuant to the provisions hereof, or under any other agreement between Guarantors and Lender made in connection with the Loan or otherwise shall be determined by Lender to have been false or misleading in any material respect as of the date on which the same was made, and in such case, Lender 7 G1N\V O,E f 53\196120.6\04/15/94 6 4 •1 I shall be entitled to exercise .the remedies described in this Guaranty. 19. Separate Property. Each Guarantor hereby subjects Guar- antor's separate property to this Guaranty and hereby expressly agrees that recourse may be had against such separate property for all of Guarantor's obligations hereunder, and each Guarantor does further agree that any and all of such separate property shall be subject to execution for any judgment or decree on or enforcing this Guaranty by a court of competent jurisdiction. Each Guarantor agrees that any property held by such Guarantor in joint tenancy, in a tenancy-in-common or as community property (except for his homestead) shall also be subject to enforcement of this Guaranty. 20. Loan Documents. Each Guarantor acknowledges that he is fully familiar with the terms, provisions and conditions of the Loan Documents and that his signature on this Guaranty shall also serve as his consent to and approval of the terms and provisions thereof, but shall not create any obligations thereunder, except as set forth herein. 21. Right to Specific Performance. Lender shall have, and may exercise, in addition to all other rights, privileges, or remedies available to under this Guaranty and by law, the specific rights and remedies, exercisable by it in its discretion, to sue for and obtain specific performance by the Guarantors of the Guarantors' covenants and agreements set forth herein, all at the cost and expense of the Guarantors. 22. Miscellaneous. (a) This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida. (b) Time is of the essence hereof with respect to the Obligations hereunder. (c) Guarantors agree to pay any present or future stamp or documentary taxes, or any other excise or property taxes, charges or similar levies which arise from any payment made here- under or from the execution, delivery or registration of, or other- wise with respect to this Guaranty. (d) If any term, provision, covenant or condition hereof or any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, pro- visions, covenants and conditions hereof, and all applications thereof not held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. (e) This Guaranty may be executed in any number of coun- terparts, each of which shall be deemed an original hereof and all 8 C114PD.IETSS\196120.6\04/15/94 _ f f ', �' ' 1 , i '• as • of which together shall constitute but one and the same instrument. It shall not be necessary for the same counterpart of this Guaranty to be executed by all of the parties hereto in order for this Guar- anty to be fully and legally binding upon any party executing at least one counterpart. Each counterpart hereof need not contain a signature line for any Guarantor other than the Guarantor signing such counterpart. (f) The use of the words "herein", "hereof", "hereunder" and any other words of similar import refer to this Guaranty as a whole and not to any particular paragraph, subparagraph or other subdivision of this Guaranty unless specifically noted otherwise in this Guaranty. (g) The title of this Guaranty and the headings of the) paragraphs of this Guaranty are for convenience of reference only, and are not to be considered a part of the substance of this Guaranty, and shall not limit or expand or otherwise affect any of the terms hereof. (h) EACH OF THE GUARANTORS HEREBY KNOWINGLY VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS EXE- CUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND RELATED TO THIS TRANSACTION; THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN AND TO ACCEPT THIS GUARANTY. (i) In this Guaranty, wherever the context so requires, the neuter gender includes the masculine and/or feminine gender, the singular numbers include the plural, and the plural numbers include the singular. (j) This Guaranty creates a continuing obligation and the obligation of Guarantors hereunder shall be binding upon Guar- antors and their respective successors, heirs, representatives and assigns, and shall inure to the benefit of and be enforceable by Lender and its successors and assigns. 23. Termination of Guaranty. This Guaranty shall terminate and Guarantor shall be released from all liability hereunder on the earlier of: (a) payment by Borrower of the Obligations; or (b) pay- ment by Guarantor of all amounts required to be paid by Guarantor hereunder. 9 • 1 IN WITNESS WHEREOF, Guarantors have duly executed this Guar- anty as of the day and year first above written. [Print name of Guarantor] [Signature] [Address] 10 0711\PO.E754\19.120.f\04/15/94 4 4 . 1 l e Acknowledgement STATE OF FLORIDA ) SS: COUNTY OF DATE ) I , a Notary Public in and for the said County in the State aforesaid, do hereby certify that personally known to me to be the same person whose name is subscribed to the foregoing instrument appeared before me this day in person and acknowledged that he or she, signed, and delivered the said instrument as his or her own free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this day of 19_. NOTARY PUBLIC, STATE OF FLORIDA (Name of Notary Public, Print, Stamp or Type as Commissioned) ❑ Personally known to me, or ❑ Produced identification: (Type of Identification Produced) ❑ DID take an oath, or ❑ DID NOT take an oath. 11 CIMPEMETS5\190120.6\04/15/94 ARTICLE VI SPECIAL COVENANTS • Section 6.1 No Warranty of Condition or Suitability by City. THE CITY MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PROJECT OR THE CONDITION THEREOF, OR THAT THE PROJECT WILL BE SUITABLE FOR THE PURPOSES OR NEEDS OF THE BORROWER. THE CITY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE BOR- ROWER WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE PROJECT. THE CITY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION OR WORKMANSHIP OF ANY ' PART OF THE PROJECT OR ITS SUITABILITY FOR THE BORROWER'S PURPOSES. Section 6.2 Access to the Project. The Borrower agrees that the City and its duly authorized agents, attorneys, experts, engi- neers, accountants and representatives shall have the right but shall not be required to inspect the Project at all reasonable times and on reasonable notice. The City and its duly authorized agents shall also be permitted, at all reasonable times and with reasonable notice, to examine the books and records of the Borrower with respect to the Project. Section 6.3 Further Assurances and Corrective Instruments. The City and the Borrower agree that they will, from time to time, -- execute, acknowledge and deliver, or cause to be executed, acknow- ledged and delivered, such supplements hereto and such further instruments as may reasonably be required for carrying out the expressed intention of this Agreement. Section 6.4 City and Borrower Representatives. Whenever under the provisions of this Agreement the approval of the City or the Borrower is required or the City or the Borrower is required to take some action at the request of the other, such approval or such request shall be given for the City by a City Representative and for the Borrower by a Borrower Representative. Section 6.5 Financial Reports. So long as any obligations of the Borrower for payments due hereunder remain outstanding, the Borrower shall furnish or cause to be furnished to the City the following information: (a) Within ninety (90) days after the close of each fiscal year of the Borrower, complete audited financial statements of the Borrower, including a balance sheet of the Borrower as of the end of such fiscal year and statements of income and surplus of the Borrower for such fiscal year, prepared in accordance with generally accepted accounting principles consistently applied, in reasonable detail and certified and prepared by independent cer- tified public accountants of recognized standing. GmH17.IECSS\173461..\a/15/94 -1 8- \. , (b) Upon request, copies of all such regular or peri- odic reports, which are available for public inspection which the Borrower may be required to file with any federal or state depart- ment, bureau, commission,- or agency. (c) Within one hundred twenty (120) days after' the end of each fiscal year, a certificate of a Borrower Representative stating whether the Borrower is in compliance with all covenants and agreements made by the Borrower in this Agreement. Section 6•.6 Recording and Filing. The Borrower shall take all actions that at the time and from time to time may be necessary / / (or may be necessary in the opinion of counsel to the City, after notice to counsel to the Borrower) to perfect, preserve, protect and secure the interests of the City in and to this Agreement, including, without limitation, the filing of all security agree- ments and financing and continuation statements that may be re- quired under the Florida Uniform Commercial Code and the record- ation of this Agreement, if required. Section 6.7 Other Instruments. The Borrower covenants that, upon request, it will cause an opinion of counsel to be filed with the City not more than 60 days nor less than 30 days before the fifth anniversary date of the date hereof, and during the same period in each year thereafter until payment in full of the amounts due hereunder shall have been made, to the effect that all finan- cing statements, continuation statements, notices and other instru- ments required by applicable law have been recorded or filed or rerecorded or refiled in such manner and in such places required by law in order fully to preserve and protect the rights of the City in the amounts payable to or for the account of the City under this Agreement as against creditors of, or purchasers for value from, the City or the Borrower. The Borrower and the City shall execute and deliver all instruments and shall furnish all information and evidence deemed necessary or advisable by such counsel in order to enable it to render such opinion. Section 6.8 Notice of Litigation. So long as any obliga- tions of the Borrower for payments due hereunder remain outstand- ing, the Borrower shall furnish or cause to be furnished to the City within five (5) business days of the Borrower' s knowledge thereof notice of any action, suit, proceeding, inquiry or inves- tigation, at law or in equity, before or by any court, public board or body, known to be pending or threatened against or affecting the Borrower or any of its officers, wherein an unfavorable decision, ruling, or finding would materially adversely affect the trans- actions contemplated by this Agreement or the Security Agreement or which would adversely affect, in any way, this Agreement or the Security Agreement, or any agreement or instrument to which the Borrower is a party, used or contemplated for use in the consum- mation of the transactions contemplated hereby. CINWEr«erss\173461.e\04/15/94 -19- y Y Section 6.9 Notice of Change in Status. So long as any obligations .of the Borrower for payments due hereunder remain outstanding, the Borrower shall furnish or cause to be furnished to • the City within five (5) business *days of the Borrower's knowledge thereof•notice of a revocation of its determination letter from the Internal Revenue Service to the effect that . it is a Tax-Exempt Organization or of any facts or circumstances that could cause a revocation of that letter. Section 6.10 Additional Covenants. (a) During the term of this Agreement, the Borrower shall not incur or permit to exist any liens, encumbrances or adverse claims on the Project, except as provided herein as Per- mitted Encumbrances. (b) During the term of this Agreement, the Borrower agrees not to change the general nature of its business without the prior written consent of the City. (c) During the term of this Agreement, the Borrower shall comply with all state and federal law as it pertains to its business nature in connection with the Project. (d) During the term of this Agreement, the Project • .. will not be sold or disposed of, in whole or in part, without the prior written consent of the City. (End of Article VI) -2 0- GTl\PEPNEYY5S\V 3461.8\a/I5/94 YY ARTICLE VII INDEMNIFICATION; REDEMPTION Section 7.1' Release and Indemnification Covenants. (a) The Borrower shall and hereby agrees to indemnify and save the City harmless against and from all claims by or on behalf of any person, firm, corporation or other legal entity arising from the conduct or management of, or from any work or thing done on, the Project, including without limitation, (i) any condition of the Project, (ii) any breach or default on the part of the Borrower in the performance of any of its obligations. under this Agreement, (iii) any act or negligence of the Borrower or of any of its agents, contractors, servants, employees or licensees or (iv) any act or negligence of any assignee or lessee of the Bor- rower, or of any agents, contractors, servants, employees or licen- sees of any assignee or lessee of the Borrower. The Borrower shall indemnify and save the City harmless from any such claim arising as aforesaid, or in connection with any action or proceeding brought thereon, and upon notice from the City the Borrower shall defend it in any such action or proceeding. (b) Notwithstanding the fact that it is the intention of the parties hereto that, other than the making of the Loan here- under, the City shall not incur any pecuniary liability by reason of the terms of this Agreement or the undertakings required of the City hereunder, by reason of the performance of any act requested of the City by the Borrower, including all claims, liabilities or losses arising in connection with the violation of any statutes or regulations pertaining to the foregoing; nevertheless, if the City should incur any such pecuniary liability, then in such event the Borrower shall indemnify and hold the City harmless against all claims, demands or causes of action whatsoever, by or on behalf of any person, firm or corporation or other legal entity arising out of the same and all costs and expenses incurred in connection with any such claim or in connection with any action or proceeding brought thereon, and upon notice from the City, the Borrower shall defend the City in any such action or proceeding. All references to the City in this Section 7.1 shall be deemed to include its com- missioners, officials, employees, and agents. (c) The Borrower agrees to indemnify the City, its com- missioners, officials, employees and agents against all claims arising out of the acquisition or operation of the Project and to pay or bond or discharge and indemnify and hold harmless the City, its commissioners, officials, employees and agents from and against (a) any lien or charge upon payments by the Borrower, to or for the account of the City hereunder, and (b) any taxes, assessments, impositions and other charges of any federal, state or municipal government or political body in respect of the Project. If any such claim is asserted, or any such lien or charge upon payments or any v such taxes, assessments, impositions or other charges are sought to be imposed, the City will give prompt notice to the Borrower, and the Borrower shall pay the same or bond and assume the defense thereof, with full power to contest, litigate, compromise or settle the same in its sole discretion. (d) The Borrower shall at all times protect and hold the City, its commissioners, officials, employees and agents harm- less against any claims or liability resulting from any loss or damage to property or any injury to or death of any person that may be occasioned by any cause whatsoever pertaining to the Project or the use thereof, such indemnification to include reasonable ex- / / penses and attorneys' fees incurred by the City, its commissioners,. officials, employees and agents in connection therewith, provided that such indemnity shall be effective only to the extent of any loss that may be sustained by the City, its commissioners, offi- cials, employees and agents in excess of the net proceeds received by it or them from any insurance carried with respect to such loss and provided further that the benefits of this. Section 7.1 shall not inure to any person other than the City, its commissioners, officials, employees and agents. (End of Article VII) -22- CMV17NEYSS\173461.8\a/15/94 ,f i Y ARTICLE VIII DEFAULTS AND REMEDIES Section 8.1 Defaults Defined. The following shall be "Defaults" under this Agreement and the term "Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: (a) Failure by the Borrower to pay as and when due and payable any amount required to be paid under subsection (a) of Section 4.2 hereof, within 15 days after demand therefor from the City. (b) Failure by the Borrower to observe and perform any covenant, condition or agreement on its part to be observed or per- formed, other than as referred to in Section 8.1(a) hereof, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied shall have been given to the Borrower by the City, unless the City shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the City will not unreasonably withhold their consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until such failure is corrected but in no event longer than 90 days. (c) The dissolution or liquidation of the Borrower, except as authorized by Section 2.2 hereof, or the voluntary initiation by the Borrower of any proceeding under any federal or state law relating to bankruptcy, insolvency, arrangement, reorganization, readjustment of debt or any other form of debtor relief, or the initiation against the Borrower of any such proceed- ing which shall remain undismissed for sixty (60) days, or failure by the Borrower to promptly have discharged any execution, garnish- ment or attachment of such consequence as would impair the ability of the Borrower to carry on its operations at the Project, or assignment by the Borrower for the benefit of creditors, or the entry by the Borrower into an agreement of composition with its creditors or the failure generally by the Borrower to pay its debts as they become due. (d) There shall occur an "Event of Default" as such term is defined in the Security Agreement. (e) Termination of the Lease Agreement resulting from a default by Borrower; The provisions of subsection (b) of this Section are subject to the following limitation: if by reason of force majeure the Borrower is unable in whole or in part to carry out any of its engvcrnerss�vas.�.a�w/�s/s -23- agreements contained herein (other than its obligations contained in Article IV hereof) , the Borrower shall not be deemed in Default during the continuance of such inability. Borrower shall notify the City in writing within five (5) days of an event of force majeure resulting in such inability. The term "force majeure" as used herein shall mean, without limitation, the following: acts of God; strikes or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or of the State or of any of their depart- ments, agencies or officials, or of any civil or military autho- rity; insurrections; riots; landslides; earthquakes; hurricanes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission pipes or canals; and any other cause or event not reasonably within the control of the Borrower. The Bor- rower agrees, however, to remedy with all reasonable dispatch the cause or causes preventing the Borrower from carrying out its agreement; provided that the settlement of strikes and other indus- trial disturbances shall be entirely within the discretion of the Borrower and the Borrower shall not be required to settle strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of the Borrower unfavorable to the Borrower. Section 8.2 Remedies on Default. Whenever any Default referred to in Section 8.1 hereof shall have happened and be con-. tinuing, the City may take one or any combination of the following remedial steps: (a) by written notice to the Borrower, declare an amount equal to all amounts then due and payable hereunder, whether by acceleration of maturity or otherwise, to be immediately due and payable as liquidated damages under this Agreement and not as a penalty, whereupon the same shall become immediately due and pay- able; (b) have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts, data and income tax and other tax or informational returns of the Bor- rower during regular business hours of the Borrower if reasonably necessary in the opinion of the City; (c) withhold any payments, advances or reimbursements from Loan proceeds otherwise payable to or upon the order of the Borrower; (d) enforcing any remedy provided under the Security Agreement including, without limitation, enforcing any liens granted thereunder; or (e) replace the Borrower as operator and manager of the Project with an operator and manager of the City's choice; 9711\VElNET55\173461.9\04/15/94 -2 4- (f) take whatever action at law or in equity may appear necessary or desirable to collect the amounts then due and there- after to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Borrower under this Agreement. In the enforcement of remedies provided in this Section 8.2, the City may treat all reasonable expenses of enforcement, includ- ing without limitation, legal, accounting, advertising expenses, and any expenses incurred pursuant to Section 8.2 (e) to operate and manage the Project, as amounts then due and payable under Section 4.2 hereof. Section 8.3 No Remedy Exclusive. No remedy herein con- ferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than such notice as may be required in this Article. Section 8.4 Agreement to Pay Attorneys' Fees and Expenses. In the event the Borrower should default under any of the provi- sions of this Agreement and the City should employ attorneys or incur other expenses for the collection of payments required here- under or the enforcement of performance or observance of any obli- gation or agreement on the part of the Borrower herein contained . the Borrower agrees that it will on demand therefor pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. Section 8.5 No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. [End of Article VIII] -2 5- C711\PEINET55\I73461.8\84/I5/94 ARTICLE IX MISCELLANEOUS Section 9.1 Term of Agreement. This Agreement shall remain in full force and effect from the date hereof to and including such time as Borrower shall have made all payments required under this Agreement. Section 9.2 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage ,/ prepaid, addressed as follows: if to the City, to City of Miami Beach, City Hall, 1708 Convention Center Drive, Miami Beach, Florida 33139; Attention: City Manager; or if to the Borrower, to MOSAIC, INC. , 975 41st Street, Suite 407, Miami Beach, Florida 33140, Attention: Executive Director. The City and the Borrower may, by written notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 9.3 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the City and the Borrower, and their respective successors and assigns, subject, however, to the limitations contained in Section 2 .2 (b) hereof. Section 9.4 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 9.5 Amendments, Changes and Modifications. Except as otherwise herein expressly provided, this Agreement may not be effectively amended, changed, modified, altered or terminated with- out the written consent. of the Borrower and the City. Section 9.6 Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and. the same instrument. Section 9.7 Applicable Law. This Agreement shall be gov- erned by and construed in accordance with the laws of the State. Section 9.8 Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Agreement. Section 9.9 No Charge Against City Credit. No provision hereof shall be construed to impose a charge against the general -26- WENNerss\vw w s1.e\ /1s/v4 e credit of the City or any personal or pecuniary liability upon any commissioner, official, employee or agent of the City. Section. 9.10 City Not Liable. Notwithstanding any other pro- vision of this Agreement, (a) the City shall not be liable to the Borrower or any other person for any failure of the City to take action under this Agreement unless the City (i) is requested in writing by an appropriate person to take such action, (ii) is assured of payment of or reimbursement for any expenses in such action and (iii). is afforded a reasonable period under the circum- stances to take such action, and (b) neither the City nor any com- missioner of the City or any other commissioner, official, employee // or agent of the City shall be liable to the Borrower or any other person for any action taken by the City or by its commissioners, officials, employees or agents, or for any failure to take action under this Agreement, except that the City agrees to take, or refrain from, any action required by an injunction and to comply with a final judgment for specific performance, except insofar as such judgment is stayed by a court of competent jurisdiction. In acting under this Agreement, the City may conclusively rely on the advice of its counsel. Section 9.11 Limitation on Liability. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of any unpaid sums to Borrower pursuant to this Agreement. Borrower hereby expresses its willingness to enter into this Agreement with Borrower's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the amount to be disbursed to Borrower pursuant to this Agreement, less the amount of any funds actually paid by the City to Borrower pursuant to this Agreement. - Accordingly, and notwithstanding any other term or condition of this Agreement, Borrower hereby agrees that the City shall not be liable to the Borrower for damages in an amount in excess of the amount to be disbursed pursuant to this Agreement, which amount shall be reduced by the amount actually paid by the City to Bor- rower pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non- performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Florida Statutes, Section 768.28. Section 9. 12 Arbitration. Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration cnh\PDIcrss\I73461.sew/15/94 -2 7 Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach thereof, including any controversy or claim relating to the right to specific performance shall be ,/ settled by litigation and not arbitration. (End of Article IX) -28- G111\PONEYSS\173461.8\04/15/94 IN WITNESS WHEREOF, the City and the Borrower have caused this Agreement to be executed in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by' their duly authorized officers, all as of the date first above written. (SEAL) . . CIT O' 'MIAMI BEA Ilk FLOR oA B : A� Al Attest: Y _ tle: % By; `a ✓l a_- City Clerk Approved by 'ty Attorney as to Form and 'eg Suffici ncy: By: Title: !�'� (SEAL) . MOSAIC, I C. P Attest: B : ` k.J. Title: By: `/ [a2 Gc Q- a i�J� alg.w .. •S- f etary FO'M AP' 'OVED L ' , PT. :, _ ii.,,,,.........„: . a, Date // 74K etx\P nrerss\ a4.I..\a/i s/v4 —29— Y Y EXHIBIT "A" • PROJECT DESCRIPTION • The Project•will consist of: - . • • Renovation of a facility located at 301 Washington Avenue, Miami Beach, Florida, for use as a museum, including the repair and/or upgrade of plumbing, electrical, and air conditioning sys- tems; roofing and window repairs; interior and exterior repainting; improvements enabling handicap accessibility; restoration of archi- tectural features; addition of storage, conference rooms, gall- eries, gift shop, and parking lot; equipping with fire alarm, fire protection and security systems, and electrical branch circuitry; furnishings, including audio visual equipment and museum display equipment; and museum display and installation. A-1 GTH\PEINET55\173461.8\04/15/94 EXHIBIT FORM OF REQUISITION . . City of Miami Beach, Florida 1700 Convention Center Drive . . Miami Beach, Florida 33139 . Attention: . Requisition No. Amount Requested: $ Total Disbursements to Date: $ 1. Each obligation for. which a disbursement is hereby requested is described in reasonable detail in Exhibit "A" hereto together with the name and address of the person, firm or corpor- ation to whom payment is due. 2 . The bills, invoices or statements of account for each obligation referenced 'in Exhibit "A" are attached hereto as Exhibit "Bn . 3. The Borrower hereby certifies that: (a) each obligation mentioned in Exhibit "A" has been properly incurred, is a proper charge against the Loan pro- ceeds and has not been the basis of any previous disbursement; (b) no part of the disbursement requested hereby will be used to pay for materials not yet incorporated into the Pro- ject or for services not yet performed in connection therewith other than deposits required for the cost of materials or retainers required for the performance of services; (c) 1000 of the amount of such disbursement requested hereby will be used for (i) costs incurred in connection with the acquisition, construction, improvement and equipping of property that is used or will be used by a Tax-Exempt Organ- ization in activities which do not constitute a Private Busi- ness Use and (ii) for payment of amounts which are, for fed- eral income tax purposes, chargeable to the project's capital account or would be so chargeable either with a proper elec- tion by the Borrower or but for a proper election by the Borrower to deduct such amounts; (d) there is no default on the part of Borrower under this Agreement, the Note or the Security Agreement and no event has occurred and is continuing which with notice or the B-1 GTHWEN YSS\i734st.e\O4/15/94 ' 1 I II I I `/II 1 IIII I passage of time or both would constitute a default under any thereof; and (e) the amount of undisbursed funds available under the Agreement together with. amounts available to Borrower from other sources are adequate .to complete the Project and to : release or discharge any lien on the Project. 4. All capitalized terms herein shall have m an'ngs signed to them in the Loan Agreement dated as of 1994, between the City of Miami Beach, Florida and MO AIC, INC. • This day of , 199_. MOSAIC, INC. By: Borrower Representative B_CTX\PEEV55\173461..\O4/15/94 IN y r . EXHIBIT C FORM OF NOTE • • . MOSAIC, INC. PROMISSORY NOTE • • MOSAIC, INC. , a not-for-profit corporation organized and existing under the laws of the State of Florida (the "Borrower") , for value received, hereby promises to pay to the order of the City of Miami Beach, Florida (the "City") , the principal sum of Five Hundred Thousand Dollars ($500,000.00) or such lesser principal amount as has been advanced by the City to the Borrower pursuant to the Agreement (as hereinafter defined) , together with interest on the unpaid principal balance thereof from the date hereof until fully and finally paid, together with all taxes and other amounts levied or assessed on this Note or the debt evidenced hereby against the holder hereof. The principal of and interest on amounts due under this Note shall be payable as follows: (i) during the period commencing with the first draw on Loan proceeds until the end of the 1995 calendar year, interest on the principal amount outstanding shall accrue at the rate of 4% per annum which shall be due and payable on June 30 and December 31, 1995; (ii) during the 1996 calendar year, interest on the principal amount outstanding shall accrue at the rate of 5% per annum which shall be due and payable together with a principal payment of $15,000 on each of June 30 and December 31, 1996; (iii) for the 1997 calendar year and in each calendar year thereafter while the Loan is outstanding, interest on the principal amount outstanding shall accrue at the rate equal to the rate published in the Wall Street Journal on the first business day of each such calendar year as the "prime rate" (but in no event to exceed 8% per annum interest) which shall be due and payable together with a principal payment of $30,000 on each June 30 and December 31 of the years 1997 through 2003 and on each of June 30 and December 31, 2004, a principal payment of $25,000 until paid in full. Interest shall be calculated on the basis of a 360-day year and the actual number of days elapsed. This Note has bee xe ted under and pursuant to a Loan Agreement dated as of 1994, between the City and the Borrower (the "Agreem t . This Note is issued to evidence the obligation of the Borrower under the Agreement to repay the loan made by the City and other payments of any kind required to be paid by the Borrower under the Agreement. This Note is subject to the optional. prepayment in the manner set forth in the Agreement. Subject to the provisions of the Agreement, payments hereon are to be made at City Hall, 1700 Convention Center Drive, Miami C-1 cnnv[t«crss\v 1.e\w/1s/9t ' ' Y Beach, Florida, in an amount which will equal the amount payable as principal of and interest on the principal amount outstanding under the Agreement by 5:00 p.m. on such due. date. Subject to the provisions of the Agreement, the Borrower shall make payments on this Note on the dates and 'in.the: amounts speci- fied herein. Upon the occurrence .of an Event 'of. Default; as defined in the Agreement, an amount equal to all amounts • due and • payable under this Note may be declared immediately due and payable • as provided in the Agreement. Upon any such declaration the Borrower shall pay such amount and all costs, disbursements, expenses and reasonable counsel fees and expenses of the holder of this Note in seeking to enforce its rights under the Agreement. THE BORROWER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDG- MENT REMEDY WHICH THE HOLDER HEREOF MAY DESIRE TO USE. The Borrower further (1) waives diligence, demand, presentment for payment, notice of nonpayment, protest and notice of protest, notice of any renewals or extension of this Note, and all rights under any statute of limitations, (2) agrees that the time for payment of this Note may be changed and extended at the sole discretion of the holder thereof without impairing its liability hereon, and (3) consents to the release of all or any part of the security for the payment thereof at the discretion of the holder thereof or the release of any party liable for this obligation without affecting the liability of the other parties hereto. Any delay on the part of the holder thereof in exercising any right hereunder shall not operate as a waiver of any such right, and any waiver granted with respect to one default shall not operate as a waiver in the event of any subsequent default. IN WITNESS WHEREOF, MOSAIC, INC. has caused this Note to be executed in its name as of , 1994. MOSAIC, INC. (SEAL) By: Its: • • C-2 CIH\PEEYS5\173461..\04/15/94 N1 SCHEDULE OF PRINCIPAL ADVANCES AND PAYMENTS Amount Principal Initials of • . • Date Advanced Payment Note Holder • • cTVDN \1N EYssT61.e\o4/1s/94 C-3 x\ • Y 4 . 1 . EXHIBIT D SOURCES AND USES OF FUNDS MOSAIC: Jewish Museum of Florida Summary Capital Project Budget Amount Source Phase I 87,500. HUD/Comm. Dev. CMB Roof Air Conditioning Partial Electrical Misc. Demolition Phase II 75,500. Private Mezzanine Work CMB Dade County Phase III 117,500. State of Florida Repair Stained Glass Windows Dade County Rough Plumbing Private Handicap Ramp, etc. Basement Work Phase IV 197,000. CMB Restore Entrance Doors State of FL Interior Painting Private Interior Plastering Quarry Tile Steps Restore Light Fixtures Misc. Interior Work Phase V 354,172. CMB First Floor Work Restore Oak Floor Additional Plaster Work Partitions Security System Insulate Roof Misc. Interior Items Phase VI 72,000. CMB Exterior Work Parking Lot - Landscaping D-1 - MOSAIC JEWISH MUSEUM OF FLORIDA - CAPITAL PROJECT BUDGET -2/2- /2-4/94 - FUNDS ALREADY SPENT Amount Amount • Source Donated Spent Items Completed HUD Community Development Block Grant $64,099 $54,743 Split Electric Service (Total of$75,000, less Upgrade Electric Service $10,900.91 (see page 2) Provide new Main Air Conditioning Miscellaneous Demolition • Hurricane Insurance $12,500 $21,856 Roofing • SUBTOTAL_ $76,599 $76,599 Current Available Funds - Earmarked Amount Amount 0 &P Cont Item • Source Donated Estimated Items To be Done Quan Uni Item Cost Subtotal P20% P 5% Tot HUD Community Development • - Block Grant $10,901 $10,901 Secondary NC purchase &delivery, $12,418 Exterior duct re-insulation Q State of Florida S60,000 $8,996 Repair 34 exterior window frames(single hung) 714 LF $10.00 $7,140 $1,428 $428 $8,996 $5,967 Repair 37 exterior window frames (fixed) 592 LF $8.00 $4,736 $947 $284 $5,967 $2,903 Repair 8 exterior window frames (at dome) 192 LF $12.00 $2,304 $461 $138 $2,903 $1,613 Repair 10 interior window frames @ Mezzanine (fixe 160 LF $8.00 $1,280 $256 $77 $1,613 $2,520 Pressure Clean Exterior 8000 SF $0.25 $2,000 $400 $120 $2,520 $2,016 Repair damaged stucco (10% of total) 800 SF , $2.00 $1,600 $320 $96 $2,016 $14,565 Repair Friezes 420 SF $27.52 $11,559 $2,312 $694 $14,565 $5,040 Paint Exterior 8000 SF $0.50 $4,000 $800 $240 $5,040 S6,300 Rough plumbing (after basement demo) 1 LS $5,000.00 $5,000 $1,000 $300 $6,300 $10,080 Rough Electrical (after basement demo) 1 LS $8,000.00 $8,000 $1,600 $480 $10,080 County $17,500 $3,938 Handicap Ramp @ Rear of Building 6.25 CY $500.00 $3,125 $625 $188 $3,938 _ $1,814 Handicap Rail @ Rear of Building 24 LF $60.00 $1,440 $288 $86 $1,814 $5,040 Handicap Bathroom (after rough plumbing is done) 1 LS $4,000.00 $4,000 $800 $240 $5,040 $6,708 ADA work, hardware, strobes, signage, stairs railing 1 LS $5,324.00 $5,324 $1,065 $319 $6,708 $0 Chairlift SUBTOTAL $88,401 $88,401 4 I • MOSAIC JEWISH MUSEUM OF FLORIDA - CAPITAL PROJECT BUDGET 2/24/94 - Current Available Funds - Not Earmarked --- Amount Source Donated Estimated Items To be Done Private-JNB $25,000 City of Miami Beach $25,000 County-Winn $10,000 County-Kaplan $18,000 0 & P Cont Item EXTERIOR WORK(to be done prior to paint) Quan Uni Item Cost Subtotal 020% 0 5% Total $2,520 Repair hardware-Entry Door 1 LS $2,000.00 $2,000 $400 $120 $2,520 $4,410 New lintel &double service doors @ rear • 1 LS $3,500.00 $3,500 $700 $210 $4,410 $3,938 New service ramp @ rear 6.25 CY $500.00 $3,125 $625 $188 $3,938 MEZZANINE WORK $3,780 Install new a/c, w/walls, drs, ductwork, registers, et 1 LS $3,000.00 $3,000 S600 S180 $3,780 $630 Remove stairs 1 LS $500.00 $500 $100 $30 $630 $1,890 Relocate benches 1 LS $1,500.00 $1,500 $300 $90 $1,890 $4,116 Level floor-new joists 1.45 MB $2,250.00 $3,267 $653 $196 $4,116 $12,600 Level floor-new wood strip floor 1000 SF $10.00 $10,000 $2,000 $600 $12,600 $252 Remove ceiling 1000 SF $0.20 $200 $40 $12 $252 $945 Insulate roofl 1000 SF $0.75 $750 $150 $45 $945 a $3,780 New furring &ceiling 1000 SF $3.00 $3,000 $600 $180 $3,780 $4,410 Finish electric & light fixtures 1 LS $3,500.00 $3,500 $700 $210 $4,410 S18,547 Glass partitions 736 SF $20.00 $14,720 S2,944 $883 $18,547 $662 Repair interior plaster 350.SF $1.50 $525 $105 $32 $662 $2,419 New millwork 32 LF $60.00 $1,920 $384 $115 $2,419 5321 Interior paint 510 SF $0.50 $255 $51 $15 $321 $6,300 Office Furniture 1 LS $5,000.00 $5,000 $1,000 $300 $6,300 $3,246 Glass Wall treatment 736 SF $3.50 $2,576 $515 $155 $3,246 $700 Area Carpet 11.1 SY $50.00 $556 $111 $33 $700 SUBTOTAL $78,000 $75,466 2 MOSAIC JEWISH MUSEUM OF FLORIDA - CAPITAL PROJECT BUDGET I, 2/24/94 Future Funds - Earmarked • Amount to Amount 0 & P Cont Item Source be Donated Estimated Items To be Done Quan Uni Item Cost Subtotal P20% Ca) 5% To a State of Fl-Approv $20,000 $20,000 EARMARKED FOR: Interior Paint State of Fl-Applied $176,740 EARMARKED FOR MISCELLANEOUS ITEMS: $15,000 Clean & restore copper dome $5,000 Strip &restore front mahogany doors (interior &exterior) $76,000 Repair&paint windows interior frames Paint Exterior window frames $33,740 Bulletproof stained glass windows $11,000 Repair/replace quarry tile @ front stairs $9,000 New ceramic tile @ bathrooms to match existing $8,000 Repair/replace plaster @ interior windows $4,000 Decorative exterior paint $7,000 restore/replace light fixtures $8,000 not yet identified Prepare window frames for bulletproof glass - Repair rear wood doors Repair wood &hardware @ rear doors SUBTOTAL $196,740 $196,740 3 MOSAIC JEWISH MUSEUM OF FLORIDA - CAPITAL PROJECT BUDGET - , - 2/24/94 • Future Funds - Not Earmarked " _ Amount to Amount 0 & P Cont Item Source be Donated Estimated Items To be Done Quan Uni Item Cost Subtotal P20% to 5% Total ' Private Funds $463,260 EXTERIOR WORK $252 Remove exis ing awning suppo 1® 200.00 200 49 12 252 6,615 Res ore new en ry rat ing 50® 105.00 .MP-4.• 1,050 15 6,615 7,5.0 Main signage ME® 6,000.00 6,001 1,200 3.0 87,5.0 20,41 New Si.ewa s 3.00® 4.50 piiK IIiI 3,240 972 $20,412 ,26: New curs &gu'er 150® 12.00 IT:1101911 360 108 ,26-8- $28,350 Par ing o I® 22,500.00 22,500 4,500 ,350 28,350 6,300 New an•scaping 111 5,000.00 5,000 Mil 8300 86,300 BASEMENT WORK 4,095 Demo n- of e s, wa s, oor ® 83,25 8.00 $ 224 .50 10,362 New oor 1028 493 $T0,362 3,042 New pa i ions 568® 4.25 2,414 4:3 _ 145 3,042 - IMINNEIMI •,072 New of e ix ures 6 EA 1,200.00 7,200 1,440 432 9,072 2,520 New E ec nc Fix ures I ® 2,000.00 2,000 400 120 $2,5 0 3,528 • • 11124T1!&F1 E1N TTh L, -•I Mg 741-1-611F611 1® 2,800.00 2,800 560 1.8 3,528 945 ILEI 1 ® 750.00 750 150 4 945 2,520 New of e pa I Ions, accessories 113A 2,000.00 - $70.0 400 120 2,520 3,780 New •oars 6 EA 500.00 $3,000 8600 $180 $3,780 FIRST FLOOR WORK 52,0 8 Repair rep ace woo• oor 413014111 10.00 F.A I. :,2.0 2,478 52,038 1,058 Rep ace woo. •ases 280® 3.00 840 168 850 1,958 40,320 Repair pas er wa s :000® 4.00 ••l 6,400 1,920 40,320 1,071 New pa i ions 200® 4.25 850 $[70 51 1,071 12,600 New E ec nc Fix ures 1 ® 18,000.00 10,000 2,000 •00 1 600- • 9,450 New ire a arm 1 ® 7,500.00 7,500 II. ,599 450 9,450 12,600 New secure y sys em I® 10,•00.00 10,000 Iry CIA 600 12,600 1,:9. New •oors 3 EA 500.00 iimmili 300 90 $1,890 mileiati New s i•ing g ass •oors 1 ps ,500.00 wI•T] 500 150 3,150 3,276 Repair rep ace cove ig s 260 pa10.00 .. :1II•] 520 156 3,276 3,326 Remove cei ing 4400® 0.60 2,640 528 158 3,326 5,544 Insu a e roo 440014A 1.09 4,400 880 264 5,544 21,067 New urring &cei ing 4400® 3.80 pErawil 3,344 1,003 21,067 :,190 Po is Bema mar• e I® 6,500.00 iwilii 1,300 390 8,1.0 6,300 Con erence room urni ure 1® 5,000.00 F -w •1• 300 6,300 10,156 (r•77• ••i �ITTIIlr�►1•Ti. 62 130.00 8,060 1J I I 4384 10,156 6,300 Res ore Benc es 10 EA 500.00 5,000 W IIII9 300 6,300 : 3 G ass Wa rea men 198 SF 3.50 693 1 9 42 873 $56,000 NE &Contractor fee $35,000 Furnishings I _ S5,000 Surveys,tests, miscellaneous $10,000 Major Gifts Wall $48,963 Contingency @ 4.5% -. -F on•a A s Counci 103,0.0 103,009 Museum •isp ay & ins a a ion 1® 81,746.00 81,746 16,34• 4005 ST03,000 - Private Ma c ing 100,000 $100,•9 9 Museum •isp ay & ins • a ion 1 LS •,3.5.00 79,365 15 3 $4,762 $100,000 SUBTOTAL $666,260 $668,794 4 Y GRAND TOTAL $1,106,000 $1,106,000 EXHIBIT E FORM OF LANDLORD'S CONSENT •[Beth Jacob Congregation Letterhead] , . 1994 City of Miami Beach, Florida 1700 Convention Center Drive Miami Beach, Florida 33139 Re: Lease Agreement dated December 13, 1992 between MOSAIC, INC. , as Tenant, and Congregation Beth Jacob, as Landlord, leasing the property located at 301-317 Washington Avenue, Miami Beach, Florida generally described as Lots 9, 10 and 11, Block 7, OCEAN BEACH, Plat Book 2, Page 39, Dade County, Florida (as further described in the Lease Agreement) Gentlemen: We understand you have made or will make a loan to MOSAIC, INC. in connection with a museum operation to be located on the premises which is currently under construction. Congregation Beth Jacob, the landlord and owner of the subject property under the lease, hereby confirms to you that we agree to allow you, your nominees and successors in interest to continue to utilize the premises for a museum operation pursuant to the lease if you succeed to the rights of MOSAIC, INC. Also, we agree not to dis- turb your use and occupancy of the premises, or that of your nominees or successors in interest, provided you or your nominees or successors agree to comply with MOSAIC's obligations under the lease while you occupy the premises. Finally, we agree to give you notice of any default by MOSAIC, INC. and the opportunity to cure the default within 30 days after the delivery of that notice or, within a reasonable time, if the cure cannot be made within 30 days provided you diligently pursue the cure through completion. We understand you are relying on this letter in connection with the loan to MOSAIC, INC. Very truly yours, CONGREGATION BETH JACOB By: Title: CTN\PEPNEYSA173461.6\04/15/94 E-1 r I ' • •a ' 6 4 ' • e • , • • • EXHIBIT F • FORM OF LIMITED GUARANTY • • • • CTN\PEINEYSS\V]461.9\O4/l5/94 F—1 y Y