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93-20783 Reso RESOLUTION NO. 93-20783 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE BORROWING OF $21,665,000 FROM THE GULF BREEZE, FLORIDA, LOCAL GOVERNMENT LOAN POOL PROGRAM TO FINANCE CERTAIN CAPITAL PROJECTS OF THE CITY; AUTHORIZING THE SUBMISSION OF A LOAN APPLICATION; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT IN CONNECTION THEREWITH; AUTHORIZING THE ISSUANCE OF A $21,665,000 VARIABLE RATE NOTE TO EVIDENCE THE OBLIGATION OF THE GOVERNMENTAL ENTITY TO REPAY SUCH LOAN; AUTHORIZING THE PLEDGE OF CERTAIN REVENUES OF THE GOVERNMENTAL ENTITY TO SECURE THE REPAYMENT OF THE LOAN AND THE NOTES; FIXING THE TERM AND REPAYMENT PROVISIONS THEREOF; AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the city of Miami Beach, Florida (the "Borrower") is duly authorized pursuant to the Constitution and Chapter 166, Florida statutes, as amended, and other applicable provisions of law (collectively, the "Act") to acquire and construct capital projects to finance all or a portion of parking facilities, cultural facilities, infrastructure improvements, economic development activities, tourism attractions and quality of life improvements, for the benefit of the citizens and residents of the Borrower and to borrow money to facilitate financing of the costs of such projects; and WHEREAS, the City of Gulf Breeze, Florida, has heretofore established a loan pool program (the "Program") for the purpose of financing certain capital projects of participating local governmental entities situated in the state of Florida; and WHEREAS, the Borrower has identified certain capital projects (such capital projects hereinafter collectively referred to as the "proj ect") which the Borrower wishes to finance from funds borrowed from the Program; and WHEREAS, under the provisions of the documents pursuant to which the Program was established, the Borrower must submit its application (the "Loan Application") for such funds to the Program Administrator for review and approval; and WHEREAS, the Borrower wishes to approve the form of application, identify the specific capital improvements constituting the Project and provide for the terms and security for the repayment of such funds to the Program; and WHEREAS, to evidence its obligation to repay the loan of funds from the Program (the "Loan"), the Borrower will execute and deliver a Loan Agreement (the Agreement" or "Loan Agreement) and a variable rate note (the "Governmental Unit Note"); and WHEREAS, to secure is obligation to repay the Governmental Unit Note and the Loan, the Borrower wishes to pledge as security for the Governmental Unit Note the Pledged Revenues, as defined in the Loan Agreement (the "Pledged Revenues"); and WHEREAS, the Borrower wishes to approve the form of Agreement and Governmental Unit Note and to authorize the officers and employees of the Borrower to take all action necessary to obtain the proceeds of the Loan and complete the financing of the Project in the manner contemplated by the Agreement. NOW, THEREFORE, BE IT RESOLVED, by the Mayor and City commission of the City of Miami Beach, Florida, as follows: - section 1. DEFINITIONS. Terms defined in the preambles hereof shall have the meanings set forth therein. All capitalized terms used herein which are defined in the Loan Agreement shall have the meanings assigned thereto in the Loan Agreement, unless the context affirmatively requires otherwise. section 2. declared that: FINDINGS. It is hereby found, determined and (A) The Project identified in the attached Loan Agreement constitute capital projects within the meaning of the Act, and the acquisi tion and construction of such proj ect is necessary and desirable, is in the public interest and will serve a proper public purpose. (B) It is necessary and desirable and in the public interest that the Project be constructed at the earliest possible time; however, the Borrower does not have the resources necessary to pay for such Project from currently available revenues. (C) The financing of the costs of the Project from funds borrowed from the Program is in the best interest of the public and will enable the Borrower to complete the Project in a timely manner to meet the current public need. (0) The Borrower has arranged to receive Pledged Revenues sufficient to pay the principal and interest and all other amounts payable with respect to the Loan and the Governmental Unit Note. (E) The Pledged Revenues are not pledged, encumbered or hypothecated by any resolution, agreement, indenture, ordinance or other instrument to which the Borrower is a party or by which it is bound, except as otherwise set forth in the Loan Agreement. section 3. PROJECT FINANCING AUTHORIZED. The financing of the Project, as described herein, in the manner provided in the Loan Agreement is hereby authorized and approved, in the amount set forth in the title hereof. section 4. APPROVAL OF LOAN APPLICATION. The Borrower hereby ratifies and approves the Loan Application with respect to the Program filed with the Mayor of the City of Gulf Breeze, Florida, as Administrator, and Sun Bank, National Association, as Trustee under the Program. section 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement in substantially the form attached hereto as Exhibit "A, II including the Governmental Unit Note attached thereto, with such changes, alterations and corrections as may be approved by the Mayor of the Borrower, such approval to be presumed by his or her execution thereof, is hereby approved by the Borrower, and the Borrower hereby authorized and directs said Mayor to execute, and the City Clerk of the Borrower to attest under the seal of the Borrower, the Loan Agreement and the Governmental Unit Note and to deliver to the Administrator and Sun Bank, National Association, as Trustee, the Loan Agreement and the Governmental Unit Note, all of the provision of which, when executed and delivered by the Borrower as authorized herein and by the Administrator and the Trustee duly authorized, shall be deemed to be part of this instrument as fully and to the same extent as if incorporated verbatim herein. section 6. ISSUANCE OF GOVERNMENTAL UNIT NOTE; SECURITY. The Loan shall be evidenced by the Governmental Unit Note, issued in the amount set fort in the title hereof. The Mayor of the Borrower and the City Clerk to the Borrower are hereby authorized to issue and deliver the Governmental Unit Note against receipt of 2 the proceeds of the Loan as provided in the Agreement. The Governmental unit Note shall have such terms and provisions, shall bear interest at such rates, adjusted in such manner and payable at such times, and shall mature in such amounts on such dates, all as are set forth int he Loan Agreement. Upon issuance, the Governmental unit Note shall be secured by a lien upon and pledge of the Pledged Revenues. The Borrower hereby pledges, and grants a lien upon, the Pledged Revenues, in favor of the Governmental unit Note, all in the manner set forth ih the Loan Agreement and the Governmental Unit Note. Neither the Loan nor the Governmental unit Note shall be a general obligation of the Borrower, or a pledge of its faith, credit or taxing power within the meaning of any constitutional or statutory provision or limitations, but shall be payable solely from the Pledged Revenues as provided in the Loan Agreement and Governmental unit Note. The Borrower shall not be obligated to exercise its taxing power to pay the principle of the Loan and the Governmental Unit Note, the interest thereon or other payments or costs incident thereto. seotion 7. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Loan Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the Borrower or its governing body in his individual capacity, and neither the members of the City Commission of the Borrower nor any official executing the Loan Agreement or Governmental Unit Note shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. section 8. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Loan Agreement otherwise expressly provided, nothing in this instrument or in the Loan Agreement, expressed or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Borrower, the Administrator, Financial Guaranty Insurance Company (the "Credit Facility Issuer"), the city of Gulf Breeze, Florida, and the Trustee any rights, remedy or claim, legal or equitable, under and by reason of the instrument or any provision thereof or of the Loan Agreement, this instrument and the Loan Agreement intended to be and being for the sole and exclusive benefit of the Borrower, the Administrator, the Credit Facility Issuer, the City of Gulf Breeze, Florida, and the Trustee. section 9. PREREQUISITES PERFORMED. All acts, conditions and things relating to the passage of this instrument, to the execution of the Loan Application, to the execution of the Loan Agreement and the Governmental unit Note required by the Constitution or laws of the state of Florida to happen, exist, and be performed precedent to and in the passage hereof, and precedent to the execution of the Loan Application, and precedent to the execution and delivery of the Loan Agreement and the Governmental unit Note will, upon adoption of this Resolution have happened, exist and have been performed as so required. Section 10. GENERAL AUTHORITY. The members of the City Commission of the Borrower and the Borrower's officers, attorneys, engineers or other agents or employees are hereby authorized to do all acts and things required of them by this instrument, the Loan Application, the Loan Agreement or the Governmental unit Note, or desirable or consistent with the requirements hereof or the Loan Application, the Loan Agreement or Governmental unit Note, for the full, punctual and complete performance of all the terms, covenants and agreements, contained in the Loan Application, the Loan Agreement, the Governmental Unit Note, and this instrument. Section 11. THIS INSTRUMENT CONSTITUTES A CONTRACT. The Borrower covenants and agrees that this Resolution shall constitute a contract between the Borrower and the owners from time to time of the Governmental unit Note and that all covenants and agreements set forth herein and in the Loan Agreement and the Governmental 3 Unit Note to be performed by the Borrower shall be for equal and ratable benefit and security of all owners of the Governmental unit Note. section 12. RESOLUTION TO CONSTITUTE INTERLOCAL AGREEMENT. This Resolution, together with the Loan Application, Loan Agreement and the Governmental unit Note incorporated by reference herein, shall be deemed to be an Interlocal Agreement with the city of Gulf Breeze, Florida, within the meaning of Chapter 163, Part 1, Florida statutes, and shall be filed of record in accordance with the provisions of the Florida Interlocal Cooperation Law upon acceptance of the Loan Agreement by the Administration; that is, it shall be filed with the Clerk of the Circuit Court for Santa Rosa County and the Clerk of the Circuit Court for Dade County. section 13. SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reasons whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof or of the Loan Application, Loan Agreement or Governmental unit Note. section 14. NEGOTIATED SALE NECESSARY. It is hereby found, aSyertained, determined and declared by the Borrower that negotiated borrowing under the Program is in the best interest of the Issuer and is found to be necessary on the basis of the following reasons as to which specific findings are hereby made: (1) A competitive sale of the Governmental unit Note would in all probability not produce better terms than a negotiated sale particularly in view of the time of such an offering and the current instability of the bond market. (2) The Program offers borrowing at lower rates than those which the Borrower could command in the market, since the Program is the sole source of tax-exempt funds available to the Borrower for financing the Project. section 15. AUTHORIZATION OF ALL OTHER NECESSARY ACTION. The Mayor, City Clerk, city Finance Director, and City Manager of the Borrower (individually an "Authorized Officer" of the Borrower), the City Attorney to the Borrower, the city Attorney to the City of Gulf Breeze, Florida, and Miller, Canfield, Paddock and stone & Lott, P.A. bond counsel for the City of Gulf Breeze, Florida, are designated agents of the Borrower in connection with the issuance and delivery of the Governmental unit Note and are authorized and empowered, collectively or individually, to take all actions and steps necessary to execute and deliver any and all instruments, documents or contracts on behalf of the Borrower which are necessary or desirable in connection with the execution and delivery of the Governmental unit Note or the Loan Agreement and which are not inconsistent with the terms and provisions of this resolution and other actions relating to the Governmental unit Note or the Loan Agreement heretofore taken by the Borrower. 4 section 16. REPEALING CLAUSE. thereof of the Borrower in conflict contained are, to the extent of such and repealed. All resolutions or parts with the provisions herein conflict, hereby superseded section 17. EFFECTIVE DATE. effect immediately upon its adoption. This instrument shall take Passed and adopted this 5th day of May, 1993. By: THE ATTEST: Mayor <1f~~k ~~ FORM APPROVED LEGAL DEPT. By -:::n: ;> Date a./-30 -'\3 5 . . . CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 CITY OF' MIAMI BEACH ~. TELEPHONE: (305) 873-7010 FAX: (305) 873-7712 OFFICE OF THE CITY MANAGER COMMISSION MEMORANDUM NO. 2o~-q3 f?~ May 5, 1993 To: Mayor Seymour Gelber and Members of the City Commission From: Roger M. Carlto City Manager Subject: Resolution Authorizing the Mayor to Execute the Loan Agreement to Secure the $21,665,000 Loan from the Gulf Breeze Municipal Loan Pool . Administration Recommendation The Administration recommends that the City Commission authorize the Mayor to execute the Loan Agreement (attached hereto in substantial form) to secure a $21,665,000 loan from the Gulf Breeze Loan Pool with a final maturity of January 1,2012. Backiround The Gulf Breeze Loan Pool was issued in 1985 and accordingly the funds provided by that financing are subject to the 1985 Internal Revenue Code. This Code allowed up to twenty-five percent (25%) of the funds provided to be used in projects with a private use. The 1986 changes to the Internal Revenue Code reduced this private use test to ten percent. Since the Gulf Breeze Loan Pool was originally issued in the amount of $500 million, $125 million of the Pool's funds may be used in joint venture type projects. The funds that the City of Miami Beach will borrow from the Pool will all be from this twenty-five percent private activity portion of the Pool. These funds will provide the capital resources to undertake the joint venture type parking and other projects to help eliminate the parking problems and enhance community development activities throughout the City. Analysis The Pool reflects an interest cost currently of approximately 2.5% as it is issued on a floating rate. Until such time as the City uses the money to pay project costs, the funds will earn approximately 3.5% or the City will be earning one percent annually in positive arbitrage on the loan. The City will pledge the electric franchise fee, estimated at $4,250,000 for fiscal year 1992/93, to the repayment of this loan estimated to have a debt service cost of $1,900,000. The actual dollars that will be used to repay the loan will come in whole or in part from the revenues received from the projects built with the funds. This pledge is necessary because the insurer of the debt has requested that a non-tourist related revenue source be pledged to the repayment. It is unfortunate but the bond insurers are all 1 DATE ~-'1-A 5-5-q3 AGENDA ITEM . , concerned by Hurricane Andrew and will not insure debt based on a tourist related revenue source for coastal cities in Florida. The goal of the Admini!;tration is to develop projects that will not require the utilization of the electric franchise fee which currently supports the General Fund. The pledging of General Fund revenues that are not anticipated to be used as secondary repayment sources has occurred in several other bond issues in the last five years. The first was the Dade County Convention Center Bonds in the amount of $52,245,000 where the utility taxes of approximately $8 million annually are pledged as a secondary source of payment behind the Miami Beach share of the Convention Development Tax which currently amounts to $12.5 million, even though the utility tax is currently used to support. the General Fund. Additionally, General Fund utility taxes were pledged as a secondary source on the $4,935,000 Resort Tax Refunding Bonds Series 1988. This secondary pledge was required by the bond insurer even though the Resort Tax produces revenues in excess of ten times the debt service cost of the bonds. A third bond issue in which a secondary pledge was used to support the primary revenues was the $7,000,000 Tax Increment Revenue Bonds which were used for the South Pointe project. In the event of a shortfall in the tax increment revenues, the utility tax is to be used to fund the debt service on the bonds. In all cases the secondary revenue source pledged has never been used as a source of funds for the repayment of the debt. Conclusion The fact that the funds available under this agreement may be used in their entirety for joint venture type projects because the private use test in the Internal Revenue Code of 1986 would not - apply makes it advisable for the City to secure these funds. RMC/RJN/me 2 ~ . I ., ~f&: 15945r~4022 LOAN AGREEMENT between SUN BANK, NATIONAL ASSOCIATION as Trustee THE CITY OF GULF BREEZE, FLORIDA a municipal corporation of the State of Florida and CITY OF MIAMI BEACH, FLORIDA a municipal corporation of the State of Florida City of Gulf Breeze, Florida Local Government Loan Program Series 1985C Dated as of June 1, 1993 . . ~~b: 1594sr~4023 THIS LOAN AGREEMENT, dated as of June 1. 1993. between SUN BANK, NATIONAL ASSOCIATION. Orlando. Florida. as Trustee for the holders of the Bonds (as defined herein), THE CITY OF GULF BREEZE, FLORIDA (the "Sponsor") acting by and through Lane Gilchrist. Mayor, as Administrator (the "Administrator") and the CITY OF MIAMI BEACH, FLORIDA, (the "Governmental Unit"), a municipal corporation duly organized and duly existing under the laws of the State of Florida, witnesseth as follows: ARTICLE I BACKGROUND AND REPRESENTATIONS SECTION 1.1 BACKGROUND. (a) The Sponsor. a municipal corporation of the State of Florida. as issuer of the Bonds hereinafter referred to. is authorized to exercise those powers conferred by Chapters 166 and 163, Florida Statutes, as amended. (b) The Sponsor has issued $100.000.000 aggregate principal amount of its Local Government Loan Program Floating Rate Demand Revenue Bonds. Series 1985 C (the "Bonds") the proceeds of which are to be used for the purpose of financing and refmancing the cost of the acquisition and installation by "Governmental Units", as hereinafter defined. of qualified Projects as described in the Indenture mentioned hereafter (the "Program"). The Bonds are issued under and are secured by the Trust Indenture dated as of December 1. 1985. as amended and restated as of July 1. 1986. as further amended and supplemented (the "Indenture") between the Sponsor and Sun Bank. National Association. Orlando, Florida. as Trustee (the ''Trustee''). (c) Pursuant to the Indenture. the Sponsor has caused the net proceeds of the Bonds to be deposited with the Trustee. to be used to make loans to Governmental Units for the financing or refinancing of the Projects. (d) Under the Indenture. the Sponsor has pledged, for the security and repayment of the Bonds, inter alia. the amounts to be received in repayment of the Loans. in the manner set forth in the Indenture. (e) For the additional security for the payment of the principal of the Bonds. the Sponsor has caused to be delivered to the Trustee a Bond Insurance Policy (the "Credit Facility") initially issued by Financial Guaranty Insurance Company (which. together with any issuer of a substitute Credit Facility. is referred. to as the "Credit Facility Issuer") pursuant to which it has agreed to make available funds for the timely payment of the principal and interest on the Bonds (the Credit Facility and any substitute Credit Facility as defmed in the Indenture hereinafter referred to as the "Credit Facility"). MCL-04/26/93 Rev-05/14/93 Rev-05/ 17/93 Rev-05/24/93 Rev-05/28-93 Rev-06/02/93 Rev-06/08/93-60 14-loanag -1- . . ~ft1594srG402 4 (f) For the purpose of providing the Bond Registrar and Paying Agent (as defined in the Indenture) with funds for the purchase at the principal amount thereof plus accrued interest on Bonds tendered to it for payment pursuant to the Indenture. and not remarketed in accordance with the provisions thereof. the Sponsor has entered into a Standby Bond Purchase and Revolving Credit Agreement dated as of April 1. 1988 (the "Liquidity Facility") with CDGB Liquidity Corporation and The Bank of Tokyo. Ltd.. New York Agency (collectively. the "Liquidity Facility Issuer") and the Trustee. pursuant to which the Liquidity Facility Issuer will agree to purchase Bonds at the principal amount thereof (up to the aggregate principal amount of Bonds outstanding). together with accrued interest. to the extent that moneys are not otherwise available therefor under the terms of the Indenture. (g) The Administrator has approved the Loan (as hereinafter defined) and has approved a commitment (the "Commitment") to make a loan in the amount of $21.665.000 (the "Loan") for the purpose of financing the cost of acquisition and construction of certain parking facilities. cultural facilities. infrastructure improvements. economic development activities. tourism attractions and quality of life improvements which will be owned by the Governmental Unit (subject to disposal of any portion of the Project in accordance with Section 1.2(h) hereof) for the benefit of its citizens and residents. which capital projects shall hereinafter sometimes be referred to collectively as the "Project". (h) As evidence of the Loan made pursuant to this Agreement. the Governmental Unit will execute and deliver a variable rate note in the principal amount of the Loan in the form attached hereto as Exhibit "A" (the "Governmental Unit Note"). As security for the Bonds. the Sponsor is assigning to the Trustee all its right. title and interest in the Governmental Unit Note and this Agreement (except for the rights reserved by the Sponsor as described in Section 3.9 hereof). Pursuant to the Indenture. the Governmental Unit Note and this Agreement may be assigned by the Trustee to the Credit Facility Issuer under the circumstances set forth therein. SECTION 1.2 REPRESENTATIONS OF THE GOVERNMENTAL UNIT. (a) The Governmental Unit is a municipal corporation of the State of Florida. with full power and legal right to enter into this Agreement and perform its obligations hereunder. and to finance the Project in the manner contemplated herein. The Governmental Unit's actions in making and performing this Agreement have been duly authorized by all necessary official action and will not violate or conflict with any applicable provision of the Constitution. or law of the State of Florida or with any ordinance. governmental rule or regulation. or with any agreement. instrument or other document by which the Governmental Unit or its funds or properties are bound. (b) The amount of the Loan. plus anticipated investment earnings thereon. does not exceed the "Cost" of the Project. (c) The proceeds of the Loan will be applied to pay the cost of the Project. Following expenditure of the Loan proceeds. the Governmental Unit will certify to the Administrator as to the use of such proceeds. (d) Immediately after the execution hereof. no Event of Default (as defined in this Loan Agreement) shall exist hereunder nor shall there exist any condition which with lapse of time. the giving of notice. or both. would constitute such an Event of Default. Rev-06j08j93-60 14-loanag -2- . . ~fb: 15g4Sr~~ 025 (e) The Governmental Unit is duly authorized and empowered under the laws of the State of Florida, particularly Chapter 166. Part II, and Chapter 163, Florida Statutes, as amended, and other applicable provisions of law, to enter into this Agreement, to issue the Governmental Unit Note and to pledge the sources hereinafter mentioned to the repayment thereof. and to apply the proceeds thereof to the payment of the Costs of the Project. (f) On May 5, 1993, the Governmental Unit duly adopted Resolution No. 93- 20783 (the "Authorizing Resolution"), authorizing the Loan, this Loan Agreement, and the Governmental Unit Note. The terms and provisions of the Authorizing Resolution are hereby incorporated by reference. (g) The Governmental Unit has not entered into any arrangement. formal or informal, to purchase any Bonds in an amount related to the Loan, and will not hereafter enter into any such arrangement or authorize any related person to the Governmental Unit to enter into any such arrangement. (h) The Project to be acquired or constructed from the proceeds of the Loan shall be owned and operated by the Governmental Unit (subject only to lease or management agreements permitted under Section 4.6(c) hereof); provided that any portion of the Project may be disposed of for ownership and use of such portion of the Project by the private sector in furtherance of the public purposes of the Project, but only upon compliance with all requirements of Florida law in connection therewith. In addition. any portion of the Project may also be disposed of by the City in its ordinary course of business, but only upon compliance with all requirements of Florida law in connection therewith. Any disposition of any portion of the Project fmanced with the proceeds of the Loan will either comply with the requirements of Section 163.380, Florida Statutes, or be disposed of at fair market value. The proceeds of any such disposition will be promptly applied either to prepay the Loan in accordance with the requirements of Section 3.4 hereof. or for deposit in the Loan Proceeds Fund (as hereinafter defined) to pay for other Costs of the Project. (i) The Governmental Unit is in compliance with all covenants and undertakings in connection with all debt obligations payable from the Pledged Revenues herein defined. or any part thereof. SECTION 1.3 SPONSOR REPRESENTATIONS AND COVENANTS. (a) The Sponsor is a municipal corporation of the State of Florida duly existing, and with full power and authority to issue the Bonds and to enter into this Agreement and to make the Loan herein contemplated. (b) By proper action the Sponsor has duly authorized the issuance and sale of the Bonds and the execution and delivery of this Agreement. In accordance with the Indenture, the Sponsor has appointed the Administrator to execute, undertake and perform the Sponsor's duties hereunder; and all actions taken by the Administrator on behalf of the Sponsor pursuant to such appointment shall be deemed to be the action of the Sponsor. (c) The Sponsor is not in default under any provision of the Indenture, and no "Event of Default" as defined therein, or event which, with the passage of time or the giving of notice or both would constitute an Event of Default, has occurred and is continuing. Rev-06/08/93-60 14-loanag -3- . . Rfk I 594SIT40Z6 (d) The Sponsor has received no notification of any investigation concerning the determination of taxability of interest on the Bonds. and has no basis to believe that any such investigation will be initiated or that any such determination could be made. (e) This Agreement. the Governmental Unit Note and the Loan do not conflict with or violate the Indenture. and will not violate or conflict with any applicable provision of the Constitution, or law of the State of Florida or with any ordinance. governmental rule or regulation. or with any agreement. instrument or other document by which the Sponsor or its funds or properties are bound and all action necessary or required by the Indenture precedent to the execution and delivery of the Loan Agreement and the performance thereof have been completed. (f) There is no pending notice of intent to prepay or redeem the Bonds under any provision of the Indenture and the Trustee has not received notice that. and the Sponsor is not aware of any facts or circumstances that would make it likely that, any substantial portion of the Bonds would be put to the Liquidity Facility Issuer for payment. (g) The funding of the Loan for the Project will not adversely affect the income tax status of the interest on the Bonds. (h) There are no Increased Costs outstanding as of the date hereof. SECTION 1.4 ADMINISTRATOR REPRESENTATIONS. The Administrator represents that he has duly authorized the execution and delivery of this Agreement. In accordance with the Indenture. the Sponsor has appointed the Administrator to execute. undertake and perform the Sponsor's duties hereunder either personally or through Government Credit Corporation. as Independent Contractor: and all actions taken by the Administrator or the Independent Contractor on behalf of the Sponsor pursuant to such appointment shall be deemed to be the action of the Sponsor. SECTION 1.5 TRUSTEE REPRESENTATIONS. (a) The Trustee represents that it is a national banking association duly existing. and with full power and authority to enter into this Agreement and perform its obligations hereunder on behalf of the holders of the Bonds. By proper action the Trustee has duly authorized the execution and delivery of this Agreement and the Indenture. (b) The Trustee represents that there is no pending notice of intent to prepay or redeem the Bonds under any provision of the Indenture and the Trustee has not received notice that. and the Sponsor is not aware of any facts or circumstances that would make it likely that, any substantial portion of the Bonds would be put to the Liquidity Facility Issuer for payment. Rev-06/08/93-60 14-loanag -4- . . ~f~: 15g45r~4027 ARTICLE n DEFINITIONS SECTION 2.1 DEFINITIONS. The capitalized terms used in this Agreement which are defined in the Indenture and in the Authorizing Resolution and not in this Loan Agreement. shall have the meanings assigned thereto in the Indenture and in the Authorizing Resolution. unless the context hereof expressly requires otherwise. In addition, the following terms shall have the meanings defmed as follows: "Additional Parity Debt" shall mean indebtedness issued under the terms. conditions and provisions of Section 4.5 hereof. "Annual Debt Service Requirement" shall mean the debt service coming due in the applicable fiscal year on the Governmental Unit Note and any Additional Parity Debt, excluding capitalized interest. In calculating the Annual Debt Service Requirement. the interest rate on any variable rate indebtedness shall be deemed to be a fIXed rate of nine and two tenths percentum (9.2%) per annum. "Average Annual Debt Service" shall mean. with respect to any Additional Parity Debt, the sum of all Annual Debt Service Requirements scheduled to become due on such indebtedness. divided by the number of years such indebtedness is scheduled to be outstanding. "Bonds" shall mean the Sponsor's Local Government Loan Program Floating Rate Demand Revenue Bonds. Series 1985C. "City" means the Governmental Unit. "Commitment" means the commitment of the Administrator to make the Loan. "Conversion Event" means any 30-day period during which the interest rate on the Loan is equal to at least 8.00%. "Costs and Expenses of the Program" shall mean the reasonable fees, charges and expenses of the Trustee. the Liquidity Facility Issuer. the Credit Facility Issuer. the Remarketing Agent. the Independent Contractor. the Registrar and Paying Agent. and the reasonable fees and expenses of the Financial Advisor. the Administrator and the Sponsor. including the reasonable fees and expenses of general or special counsel to any of the foregoing. and shall include. without limitation of the foregoing. all amounts provided in Section 3.5 hereof: provided that the annual administrative fees and charges of the Sponsor. the Administrator. the Independent Contractor and the Financial Advisor shall not in the aggregate exceed 32.5 basis points. "Cost" or "Costs" in connection with the acquisition and/or construction of any Project, means any cost incurred or estimated to be incurred by the Governmental Unit which is reasonable and necessary for carrying out all works and undertakings in providing and constructing or acquiring such Project for the Governmental Unit. including the acquisition of property and the construction of the Project. the cost of necessary studies. surveys. plans and specifications. architectural. engineering. legal or other special services. including the reasonable fees and expenses of bond counsel. development, construction and reconstruction necessary or useful in connection with the construction of the Project. the reasonable cost of financing incurred by the Governmental Unit or the Sponsor in connection with the execution of the Loan Rev-06/08/93-60 14-loanag -5- ~~~: 15945fG4028 Agreement. or in the course of the acquisition and/or construction of the Project. including reimbursement to the Administrator for its out-of-pocket expenses and including capitalized interest on any Loan disbursed in stages, and the cost of such other items as may be reasonable and necessary for the acquisition and/or construction of the Project. "Electric Franchise Fees" means the monthly fees levied upon the operation of Florida Power & Light Company within the area of the Governmental Unit as such fees are collected by the Governmental Unit pursuant to Ordinance No. 82-2294 of the Governmental Unit. "Local Credit Enhancement" or "Local Letter of Credit" means a credit enhancement device acceptable in form and substance to the Credit Facility Issuer securing timely payment of principal of and interest and premium, if any, on the Governmental Unit Note. "Pledged Revenues" shall mean the Electric Franchise Fees. "Pro-Rata Share" shall mean the percentage derived by dividing the principal amount of the Governmental Unit's Loan by the sum of (1) the principal amount of all Loans outstanding funded with Bond proceeds (including any unpaid Loans to Governmental Units that may have been discharged in bankruptcy or declared void or unenforceable) plus (2) the amounts on deposit in the Project Loan Fund. "Project" means certain parking facilities, cultural facilities, infrastructure improvements, economic development activities, tourism attractions and quality of life improvements to be acquired and constructed by the City for the benefit of its citizens and residents. "Recycled Bond Proceeds" shall mean proceeds used to make Loans from the Loan Repayment Account under the Indenture. Rev-06/08/93-60 14-loanag -6- . , Wf~:15945fG4029 ARTICLE DI FINANCING THE PROJECT SECTION 3.1 MAKING OF LOAN; APPLICATION OF LOAN PROCEEDS. From the amounts on deposit in the Project Loan Fund created under the Indenture, the Governmental Unit hereby agrees to borrow and repay the sum of $21,665,000. The Loan made hereby shall be repaid in accordance with the Governmental Unit Note and Section 3.3 hereof. The Governmental Unit covenants that it shall use the proceeds of the Loan solely for the purposes described in Section 1. 1 (g) hereof and that it shall not use the proceeds of the Loan in a manner inconsistent with the representations and covenants set forth in Section 1.2 hereof. The Governmental Unit Note and the principal amount thereof and interest thereon shall not be increased or accelerated for any reason related to an acceleration or redemption of the Bonds other than as a result of an Event of Default under this Agreement. SECTION 3.2 DISBURSEMENT OF LOAN; SECURITY INTEREST IN UNDISBURSED PROCEEDS. (a) Following the execution and delivery of this Agreement and the Governmental Unit Note (the "Closing"), the Trustee shall disburse the insurance premium due to the Credit Facility Issuer, the fees and expenses of bond counsel and the amount of expenses of the Administrator to be reimbursed from the proceeds of the Loan to the Expense Account created under the Indenture. (b) The Trustee agrees to establish and create, and hereby does establish and create a separate fund for the benefit of the Governmental Unit to be known as the "Gulf Breeze Pooled Financing Loan Program Proceeds Fund" (the "Loan Proceeds Fund") which account shall be separate and distinct from all other funds and accounts of the Sponsor. The net proceeds of the Loan shall be deposited by the Trustee, immediately upon receipt thereof, into the Loan Proceeds Fund for the benefit of the Governmental Unit and applied, together with any income from investment thereof, to pay the Costs of the Project, or to pay debt service on the Governmental Unit Note. There shall also be deposited in the Loan Proceeds Fund the proceeds received by the Governmental Unit from any disposition of portions of the Project pursuant to Section 1.2(h) hereof, to the extent such proceeds are not applied to prepay the Loan. Funds shall be disbursed from the Loan Proceeds Fund pursuant to requisitions in the form described in paragraph (c), below. (c) Disbursements of the Loan from the Loan Proceeds Fund shall be made only upon the execution of a requisition signed by an Authorized Officer of the Governmental Unit (i) stating the name and address of the payee, the amount to be paid and the purpose of the payment, (ii) certifying that the amount to be paid is for the Cost of the Project and is due and payable, has not been the subject of any previous requisition and is a proper charge against the Loan Proceeds Fund pursuant to this Section 3.2, and (iii) certifying that the portion of the Costs of the Project paid from such disbursement is for property or improvements to property by the Governmental Unit, for costs incurred in connection with the closing of the Loan, or for capitalized interest as described herein. Any amounts to be disbursed from the Loan Proceeds Fund representing capitalized interest on a Loan disbursed in stages pursuant to this paragraph shall be included in each requisition and, upon approval of such requisition, shall be paid to the Trustee under the Indenture. The Governmental Rev-06/08/93-60 14-loanag -7- ~~t: , 5945f~4030 Unit agrees that. upon request of the Trustee or the Administrator. it shall supply such documentation as the Trustee. the Administrator or the Credit Facility Issuer may reasonably require to determine that the proceeds of the Loan have been applied solely to payment of the Costs of the Project. (d) Until disbursed in accordance with the provisions of this Loan Agreement. the proceeds on deposit in the Loan Proceeds Fund shall be invested and reinvested in Investment Securities. as defmed in the Indenture. Any earnings on the investment of funds on deposit in the Loan Proceeds Fund shall be credited to such Fund and shall be used to pay only the Costs of the Project, or debt service on the Loan in accordance with subsection 3.2(e) below. (e) To secure the prompt payment of the Loan and the performance by the Governmental Unit of its other obligations hereunder. the Governmental Unit. to the full extent permitted by law. hereby pledges to the Sponsor and agrees and acknowledges that the Sponsor shall have and shall continue to have a pledge of and lien upon the proceeds of the Loan and any investment income thereon on deposit in the Loan Proceeds Fund. subject to the use of such proceeds in the manner described herein. SECTION 3.3 REPAYMENT OF LOAN. The Loan to be made to the Governmental Unit for the Project shall be repaid in installments which shall correspond in time and amount to the payments of principal and interest on the Governmental Unit Note and shall bear interest at the rates. and shall be payable in immediately available Funds at the times payable on the Governmental Unit Note. as follows: (a) The principal of the Loan shall be paid in 20 installments on the dates and in the amounts shown on "Schedule I" attached to the form of the Governmental Unit Note. which is attached hereto as Exhibit "A". with all remaining principal. together with any other amounts payable in connection therewith. due on January I. 2013. or such later date as the Governmental Unit has requested and the Credit Facility Issuer shall have approved in writing. (b) The interest on and other amounts due in respect of the Loan as provided in this Agreement. shall be paid commencing on the first day of July 1. 1993. and on the first day of each month thereafter. For the purposes hereof. "interest" on the Loan shall include the amounts. if any. calculated as described in Section 3.3(c). for the applicable period. The repayment amounts due in respect of the Loan shall be an amount determined by the Financial Advisor on behalf of the Sponsor. sufficient to retire the Pro-Rata Share of Non-Asset Bonds. and an amount sufficient to provide funds. which. as described in the immediately following subsection (c). together with the Governmental Units' Pro-Rata Share of amounts in the Surplus Fund constituting income from the investment of certain funds established under the Indenture will be sufficient. to pay when due. the Governmental Unit's Pro-Rata Share of Costs and Expenses of the Program. and the Governmental Unit's Pro-Rata Share of estimated interest (including Additional Interest. if any) becoming due on the Bonds. taking into consideration the fact that such interest on all or a portion of the Bonds will vary on a weekly basis pursuant to the Indenture: provided. however, that if an acceleration of the Loan is declared pursuant to Section 5.2 hereof following the occurrence of an Event of Default hereunder. the interest rate on the Loan shall be increased to a rate per annum equal to the Prime Rate plus 2%. Said interest rate shall be based upon a year equal to 365/366 days for actual days elapsed and shall change when said Prime Rate shall change. Notwithstanding anything otherwise contained in this Agreement, Rev-06/08/93-60 14-loanag -8- ~t~: 15945r~4031 the interest rate on the Loan shall not exceed twenty-five percent (25%) per annum (exclusive of amounts charged for Costs and Expenses of the Program which are not charges for the use or forbearance of money), or such higher rate as may from time to time be permitted under applicable law and approved by the Credit Facility Issuer (the "Maximum Rate"); provided. that. in the event the imposition of such Maximum Rate shall ever cause the amount payable on the Governmental Unit Note to be less than the amount of interest which would otherwise be computed pursuant to this Section 3.3. the Governmental Unit Note shall thereafter bear interest at the Maximum Rate until the earlier of (1) the final maturity of the Governmental Unit Note or (2) such time as the total amount of interest paid on the Governmental Unit Note shall at such rate equal the amount of interest which would have been payable on the Governmental Unit Note pursuant to this Section 3.3 without regard to any Maximum Rate. In calculating the amount of the Governmental Unit's payment in respect to the principal amount of the Non-Asset Bonds existing on the date hereof. it shall be assumed that such existing Non-Asset Bonds will be amortized in accordance with Schedule Y attached hereto. In calculating the amount of the Governmental Unit's payment in respect of the principal amount of any Non-Asset Bonds arising after the date hereof. the Governmental Unit's Pro-Rata Share of such Non-Asset Bonds shall be amortized and paid in equal monthly installments over the lesser of 60 months or the remaining life of the Loan. with any balance being due upon final payment or prepayment of the Loan. For purposes of determining the Governmental Unit's payment in respect of Non-Asset Bonds. it shall be assumed that any unpaid Loans which may have been discharged in bankruptcy or declared void or unenforceable continue to remain outstanding until all amounts which would have been due in respect thereof in accordance with their terms have been deposited with the 1Iustee hereunder. (c) The Financial Advisor. on behalf of the Sponsor shall determine not less often than each June 1 and December 1 the rate of interest on the Loan. and the Pro- Rata Share of the Costs and Expenses of the Program and the Non-Asset Bonds allocable to the period for which such payment is to be in effect, and shall notify the 1Iustee and the Administrator of such determination. The Administrator shall compute the amount of each Govemmental Unit's monthly payment and shall notify the Trustee. the Credit Facility Issuer and the Governmental Unit, at least ten days prior to the first day of the month in which the new payment amount is to become effective. of the period (not exceeding six months) for which such payment amount is to be in effect, the amount of each interest payment which the Governmental Unit is required to make during such period and the computations used to determine such payment. However. if at any time the 1Iustee determines that such payment amount, together with other funds available therefor, does not provide sufficient funds to pay the interest becoming due on the Bonds (including Additional Interest, if any), the Non-Asset Bonds. and the other Costs and Expenses of the Program allocable to the period for which such payment is to be in effect, the 1Iustee shall so notify the Administrator and the Financial Advisor. The Financial Advisor. on behalf of the Sponsor shall increase the payment amount on the Loan then in effect by an amount sufficient to cure the Governmental Unit's Pro- Rata Share of such deficiency by giving notice thereof to the Administrator. The Administrator shall recompute the amount of the Governmental Unit's monthly payments and shall give the Govemmental Unit notice of a revised interest rate and the computations used to determine such payment at least ten days prior to the date such revised interest rate is to become effective, stating the period (not exceeding six months) for which such revised interest rate is or additional payments are to be in effect, and the amount of each interest payment which the Governmental Unit is required to make during such period. The Rev-06j08j93-60 14-loanag -9- ~~t: 15945r~4 032 Administrator shall send to the Trustee and the Credit Facility Issuer duplicate copies of each statement to the Governmental Unit specifying the total payment due from the Governmental Unit for principal and interest on the Loan. the respective amounts of principal and interest included in such total payment. and the amount of any fees and expenses billed to the Governmental Unit on a monthly basis pursuant to Section 3.5 hereof. The Sponsor agrees that all investment income on the Loan Reserve Fund and the Debt Service Reserve Fund remaining and available after all required payments under the Indenture shall be applied in determining the amount payable hereunder; the amortization of existing Non-Asset Bonds shall be only in accordance with the attached Schedule "Y" and the principal amount of any new Non-Asset Bonds shall be amortized only in equal monthly installments over the lesser of sixty months or the remaining life of the Loans. The Sponsor has reserved the right to determine the extent to which investment income on the other funds established under the Indenture (including any income from the Project Loan Fund) may be applied in determining the amount payable hereunder; provided that no Governmental Unit shall receive any preferential allocation of such income. Notwithstanding any other provision contained in this Agreement or in the Governmental Unit Note. all computations of the interest rates on Loans and any other amounts due under this Agreement or the Governmental Unit Note shall be made assuming that full principal and interest and other required payments will be received in respect of each Loan. whether or not such Loan is in default; it being the intention of the Sponsor that the Governmental Unit shall not bear any financial obligation arising because of a default in any Loan to any other party. (d) As provided in the Governmental Unit Note. in addition to the above payments of principal and interest on the Loan and the additional payments provided for herein. any payment of principal and interest on the Loan which is received later than its due date, shall bear interest at the rate of interest on the Loan, but not less than a rate equal to the lesser of the Maximum Rate or the Prime Rate plus 2% per annum from the due date to the date of payment. (e) Notwithstanding any other provisions contained in this Agreement. the Governmental Unit's maximum payment obligations with respect to the Non-Asset Bonds existing on the date hereof shall not exceed the Governmental Unit's Pro Rata Share of such Non-Asset Bonds; provided however that these amounts may be increased in the event of an Event of Default by the Governmental Unit pursuant to the terms of this Agreement. SECTION 3.4 PREPAYMENT OF LOAN. (a) So long as the Loan is a Variable Rate Loan, the Governmental Unit may on the first Business Day of any month and, upon not less than 129 days prior written notice to the Sponsor, the Administrator and the Trustee, prepay the outstanding principal of the Loan or portion thereof made pursuant to this Agreement. (b) Any such prepayment in whole shall be made in an amount equal to the sum of (A) accrued and unpaid interest on the Loan as of the date of such notice and (B) the product obtained by multiplying (i) the outstanding principal amount of the Loan to be prepaid by (ii) the quotient obtained by dividing (y) the principal amount of the Bonds then Outstanding by (x) the amount of Program Assets held by the Trustee, provided that the quotient shall not be less than 1.0. In no event, however, shall the prepayment amount for such prepayment in whole be less than the prtncipal amount of the Loan then Outstanding plus accrued interest due in respect of the Loan. Rev-06/08/93-60 14-loanag -10- , ' ~[~: I ::945r~4033 In the case of a partial prepayment of any Loan. the amount of any such prepayment which shall be applied to the reduction of the outstanding principal balance of the Loan shall be reduced by an amount equal to the sum of (A) the amount of interest which accrues on the Loan from the date of its deposit with the Trustee until the first Business Day which is not earlier than 124 days thereafter (the "Prepayment Effective Date"). and (B) the difference between (1) the product obtained by multiplying (i) the outstanding principal amount of the Loan to be prepaid (as reduced by the amount described in clause (A) of this sentence) by (ii) the quotient obtained by dividing (y) the principal amount of the Bonds then Outstanding by (xl the amount of Program Assets on the Prepayment Effective Date. provided that the quotient shall not be less than 1.0 and (2) the outstanding principal amount of the Loan to be prepaid (as reduced by the amount described in clause (A) of this sentence). (c) Notwithstanding the foregoing limitation in this Section 3.4. the Governmental Unit may prepay the Loan in full on the first of any month. upon 30 days written notice furnished to the Issuer. the Trustee. the Credit Facility Issuer and the Administrator. provided such notice is accompanied by a Preference Opinion with respect to such prepayment of the Loan. Upon receipt of such notice and Preference Opinion. the Administrator shall notify the Governmental Unit of the amount required to prepay the Loan in full not less than seven days prior to such redemption date. In the event the Governmental Unit. having given such notice does not prepay its Loan in full in immediately available funds by 10:00 A.M. on such redemption date. the Governmental Unit shall reimburse the Sponsor, the Remarketing Agent and the Trustee for all reasonable expenses incurred in connection therewith. (d) In determining the amount and effect of any prepayments under this Section 3.4. Program Assets shall include any unpaid Loans that may have been discharged in bankruptcy or declared void or unenforceable. In the event that this Loan is converted to a Fixed Rate at the request of the Governmental Unit. the amount of any prepayment shall also include any amounts necessary to pay prepayment premiums. if any. to the holders of the Bonds in connection with a redemption thereof from the proceeds of the prepayment. (e) The Loan shall be subject to mandatory prepayment in whole or in part. upon written demand by the Trustee. (but only at the direction of the Sponsor) at any time. to the extent that the sum of all Loans to other Governmental Units from the proceeds of the Bonds. plus all amounts in the Project Loan Fund. are less than the Outstanding balance of the Loan. Any such prepayment shall be made within 90 days of receipt by the Governmental Unit of demand therefor by the Trustee. Such prepayment shall be effective as provided in subsection (b) or (c) of this Section 3.4. The Sponsor and the Administrator agree to use their best efforts to assure that moneys deposited in the Project Loan Fund from time to time which are not yet reloaned remain in the Project Loan Fund as long as possible. subject to the consent of the Credit Facility Issuer and compliance with the temporary period and arbitrage rules of Section 103 of the Code. SECTION 3.5 ADMINISTRATIVE EXPENSES. (a) In determining the Pro-Rata Share of payments of Costs and Expenses of the Program. in respect of the Loan which the Governmental Unit shall pay in each month. subject to the limitations contained in the last sentence of Section 3.3(c), there shall be included an amount determined by the Administrator on behalf of the Sponsor to be sufficient to pay when due only the following items allocable to the period for which such payment is to be in effect: Rev-06j08j93-60 14-loanag -11- . ' ~ff: I ~945f~4034 (1) the annual fees and other amounts. if any. charged for or due (i) in the case of Variable Rate Loans. under any Additional Credit Facility (including additional surety bond premiums. if any); and (ii) under the Liquidity Facility; (2) the annual administrative fees and the expenses of the Sponsor. the Financial Advisor. the Administrator. the Independent Contractor. the Trustee. the Bond Registrar and Paying Agent and any other Paying Agent or Agents; (3) the annual fee of the Remarketing Agent; (4) any amounts payable pursuant to the Indenture as Increased Costs; and (5) cost of issuance of the Bonds allocable to the Loan as Non-Asset Bonds. as provided in Section 3.3(b). The Administrator. on behalf of the Sponsor. shall determine such amount (concurrently with the detennination of the interest payments on the Loan pursuant to Section 3.3(c) hereof) and shall notify the Governmental Unit at least ten days prior to the first day of the period for which the new payment schedule is to become effective. of the period (not exceeding six months) for which such payment schedule is to be in effect. the amount of each payment which the Governmental Unit is required to make during such period. and how such amounts were computed. However. if at any time the Administrator determines that such payments together with the payments for such purposes payable by all other Governmental Units computed in accordance with Section 3.1 hereof. will not provide sufficient funds to pay the amounts described in clauses (1) through (5) above. the Administrator. on behalf of the Sponsor. shall revise the schedule of payments then in effect by giving the Governmental Unit notice of revised schedule of payments. at least ten days prior to the date such revised payment schedule is to become effective. stating the period and how such amounts were computed (not exceeding six months) for which such payment schedule is to be in effect and the amount of each payment which the Governmental Unit is required to make during such period. Nothing herein shall pennit the Costs and Expenses of the Program related to defaulted Loans to be allocated to the other Loans. it being the intent that such costs are to be borne by the Governmental Unit responsible for such default. The Governmental Unit's obligations under this paragraph shall be subject to the limitations contained in the last sentence of Section 3.3(c). In addition. there shall be no double counting of amounts under Section 3.3(c) and under this Section 3.5 (a). (b) The Governmental Unit shall pay its Pro-Rata Share of the amounts described in paragraph (a) above to the Trustee. as the Sponsor's assignee of this Agreement; except upon notice to the Governmental Unit as otherwise provided in Section 3.9 hereof. SECTION 3.6 SPECIAL OBLIGATION OF GOVERNMENTAL UNIT. (a) Each Credit Issuer may share with any other Credit Issuer any information given to any of them by the Govemmental Unit. including without limitation fmancial statements. and may also share such information with any participant of such Credit Issuer. and any fmancial institution which is being solicited to become a participant of any Credit Issuer. To the extent necessary to pennit the foregoing. the Governmental Unit hereby waives any privilege or right to confidentiality. whether arising under statute or otherwise. it may have which would otherwise prohibit the foregoing sharing of informa~on. Rev-06j08j93-60 14-loanag -12- . ' ~~~: lS94SfG4035 (b) The Governmental Unit Note shall be secured by a lien upon and pledge of the Pledged Revenues. The Pledged Revenues are hereby pledged to secure repayment of the Governmental Unit Note, as set forth in the Authorizing Resolution. The Governmental Unit hereby represents and warrants that the pledge of the Pledged Revenues to secure the Governmental Unit Note is valid, binding and enforceable and that the Pledged Revenues are not, as of the date hereof, otherwise subject to any pledge, encumbrances or lien. The Governmental Unit covenants that it will not cause or permit to exist any pledge of or lien upon the Pledged Revenues other than the pledge benefitting the Governmental Unit Note, except for any Additional Parity Bonds or obligations secured by a lien subordinate to the lien of the Governmental Unit Note which may be issued in the manner permitted hereunder. (c) The Loan and the Governmental Unit Note, and all payments due with respect thereto or under this Loan Agreement, shall be a special obligation of the Governmental Unit, payable solely from the Pledged Revenues as herein provided. The Loan and the Governmental Unit Note do not constitute a general indebtedness of the Governmental Unit, or a pledge of the faith, credit or taxing power thereof within the meaning of any constitutional or statutory provision or limitation. Neither the State of Florida nor any political subdivision thereof nor the Governmental Unit shall be obligated (1) to exercise its ad valorem taxing power or any other taxing power in any form on any real or personal property in the territory of the Govemmental Unit to pay the principal of the Loan and the Governmental Unit Note, the interest thereon or other payments or costs incident thereto or under this Loan Agreement, or (2) to pay the same from any other funds of the Governmental Unit except from the Pledged Revenues, all in the manner provided herein. The acceptance of the Governmental Unit Note by the holder from time to time thereof shall be deemed an agreement between the Governmental Unit and such holder that the Governmental Unit Note and the indebtedness evidenced thereby shall not constitute a lien upon any property of the Governmental Unit, but shall constitute a lien only on the Pledged Revenues, in the manner herein provided. (d) Subject to the provisions of the Florida Constitution, nothing herein contained shall preclude the Governmental Unit from using any legally available funds, in addition to the Pledged Revenues herein provided, which may come into its possession, including but not limited to the proceeds of the Loan, contributions or grants, for the purpose of payment of principal of and interest on the Loan, but the Governmental Unit shall have no obligation to use any such funds except the Pledged Revenues for such purpose. SECTION 3.7 BENEFIT OF BONDHOLDERS AND ENHANCEMENT PROVIDER; COOPERATION BETWEEN PARTIES. This Agreement is executed in part to induce the purchase by others of the Bonds, the issuance by the Credit Facility Issuer of the Credit Facility, the issuance of Local Credit Enhancement, if any, and the execution and delivery by the Liquidity Facility Issuer of the Liquidity Facility and, accordingly, all covenants, agreements and representations on the part of the Governmental Unit and the Sponsor, as set forth in this Agreement, are hereby declared to be for the benefit of the holders from time to time of the Bonds, and for the benefit of each such Credit Issuer. SECTION 3.8 BONDS NOT TO BECOME ARBITRAGE BONDS. The Governmental Unit hereby covenants to the Sponsor and the holders of the Bonds that, notwithstanding any other provision of this Agreement or any other Rev-06/08/93-60 14-loanag -13- ~ft: 15945f~4036 instrument. it will neither make nor cause to be made any investment or other use of the proceeds of the Loan which would cause the Bonds to be "arbitrage bonds" under Section 103 of the Internal Revenue Code of 1954, as amended, and the regulations issued thereunder, and that it will comply with the requirements of such Section and regulations throughout the term of the Bonds, in accordance with directions received by the Governmental Unit at the time the Loan is made, or such other specific written directions of the Sponsor as the Governmental Unit may receive so that no investment of the proceeds of the Loan would cause the Bonds to be "Arbitrage Bonds". SECTION 3.9 ASSIGNMENT OF SPONSOR'S RIGHTS. (a) As the source of payment for the Bonds, the Sponsor will assign to the Trustee all the Sponsor's rights under the Governmental Unit Note and this Agreement (except for the rights of the Sponsor, the Trustee, the Administrator and the Independent Contractor, if applicable to receive payment of administrative expenses, reports and indemnity against claims, and the Sponsor's, Trustee's and Administrator's rights to enforce remedies pursuant to Section 3.5, 4.1, 4.2 and 5.4 hereof). The Governmental Unit will make all payments required under Sections 3.3, 3.4, 3.5 and 5.3 hereof directly to the Trustee without defense or setoff by reason of any dispute between the Governmental Unit and the Sponsor. (b) The Indenture requires that the Credit Facility provide for payment of the principal of and interest on the Bonds when due if other moneys available under the Indenture are insufficient therefor, and that rights to the payment of any principal and/ or interest paid by the Credit Facility Issuer shall be assigned to the Credit Facility Issuer. Under certain circumstances provided in the Indenture, this Agreement and the Governmental Unit Note may be assigned to a Credit Issuer or the issuer of a Local Letter of Credit. SECTION 3.10 REVENUE FUND. COVENANT REGARDING PLEDGED REVENUES; (a) The Governmental Unit hereby covenants to take all lawful action necessary or required to collect and receive the Pledged Revenues. The Governmental Unit further covenants that it has full power to pledge the Pledged Revenues to the payment of the principal and interest and other amounts becoming due on the Governmental Unit Note. (b) There is hereby created and established the City of Miami Beach Gulf Breeze Loan Program Revenue Fund (the "Revenue Fund"). All Pledged Revenues received by the Governmental Unit shall be deposited into the Revenue Fund and held solely for the benefit of the holder of the Governmental Unit Note as provided in this Section 3.10(b). The Revenue Fund shall constitute a trust fund for the purposes herein provided and shall be kept separate and distinct from all other funds of the Governmental Unit and used only for the purposes and in the manner herein provided. Moneys on deposit in the Revenue Fund shall be invested in obligations in which the Project Loan Fund may be invested under the Indenture or as otherwise may be permitted by the Credit Facility Issuer, and all investment earnings shall be retained therein and used for the purposes thereof. Pledged Revenues shall be applied and allocated on the 15th day of each month (i) frrst. to a separate fund, which is hereby created and designated the City of Miami Beach Gulf Breeze Loan Program Sinking Fund (hereinafter called "Sinking Fund") commencing June 15, 1993, in such amounts sufficient to pay the principal of and interest and other amounts to becoming Rev-06/08/93-60 14-loanag -14- , ' ~f[: 15945r~4037 due on the Governmental Unit Note on the first day of the following month. (ii) on a parity with the payments under the foregoing clause (i). to all payments in respect of any Additional Parity Debt issued pursuant to the provisions hereof. (iii) next. to the payment of any junior lien obligations issued pursuant to the provisions hereof. and (iv) thereafter, to the Governmental Unit for any lawful purpose of the Governmental Unit. The designation and establishment of the Revenue Fund and the Sinking Fund pursuant to this Section 3.10 shall not be construed to require the establishment of any completely independent. self-balancing fund as such term is commonly defined and used in governmental accounting. but rather is intended solely to constitute an earmarking of certain revenues of the Governmental Unit for certain purposes and to establish certain priorities for application of such revenues as herein provided. SECTION 3.11 ALTERNATE SECURITY FOR GOVERNMENTAL UNIT NOTE. The Governmental Unit reserves the right to secure the Governmental Unit Note with a Local Credit Enhancement acceptable in form and substance to the Credit Facility Issuer and the Administrator. and upon furnishing such Local Credit Enhancement or other security. the pledge of and lien upon the Pledged Revenues in favor of the Governmental Unit Note shall be released and discharged. in the manner and to the extent specified by the Credit Facility Issuer in writing. In addition. the Governmental Unit may defease the lien of this Loan Agreement upon the Pledged Revenues at any time provided it first provides the following to the Trustee and to the Credit Facility Issuer: (a) Evidence that the Governmental Unit shall have paid. or shall have made provision for payment of. all amounts payable under this Loan Agreement. For purposes of the preceding sentence. deposit of direct obligations of the United States of America which are not subject to redemption prior to maturity at the option of the obligor (or. with the written approval of the Credit Facility Issuer. deposit of any other securities or investments which may be authorized by law from time to time and sufficient under such law to effect such a defeasance) in irrevocable trust with a banking institution or trust company. for the sole benefit of the Sponsor. the principal of and interest on which will be sufficient to pay when due all payments under this Loan Agreement. shall be considered "provision for payment". (b) An opinion of nationally recognized bond counsel acceptable to the Sponsor and to the Credit Facility Issuer to the effect that (i) the lien of the Loan Agreement upon the Pledged Revenues has been defeased and (ii) the transaction resulting in such defeasance does not adversely affect the exemption from taxation of the interest on the Bonds. (c) Verification by an independent certified public accountant of sufficiency of amounts deposited in escrow pursuant to paragraph (a). SECTION 3.12 INTERLOCAL AGREEMENT. This Loan Agreement. together with the Governmental Unit Note incorporated by reference herein. shall be deemed to be an Interlocal Agreement with the Sponsor within the meaning of Chapter 163. Part I. Florida Statutes. and shall be f1led of record in accordance with the provisions of the Florida Intergovernmental Cooperation Law; that is. it shall be f1led with the Clerk of the Circuit Court for Santa Rosa County, Orange County and Dade County. SECTION 3.13 OBLIGATION FOR PROGRAM EXPENSES. Any provision of this agreement to the contrary notwithstanding. the Governmental Unit shall not be obligated to make any Loan payments in respect of any amounts described in Section Rev-06j08j93-60 l4-loanag -15- , . ~f~: I 5945rr4038 3.3(c) or 3.5 hereof accruing subsequent to the date on which the Loan is repaid in full. SECTION 3.14 RESERVED. SECTION 3.15 CONVERSION TO FIXED RATE MODE. Upon the written request of the Govemmental Unit, the Sponsor and the Trustee shall take all action necessary to obtain the required Favorable Opinion of the Bond Counsel and to convert the Loan or a portion thereof and an appropriate amount of the Bonds to the Fixed Rate Mode. as provided in the Indenture. The Sponsor shall not convert Bonds from the Fixed Rate Mode to another Mode in amounts exceeding the outstanding principal amount of Fixed Rate Loans and the reserves therefor without the written consent of the Governmental Unit and the Credit Facility Issuer. Unless otherwise waived by the Credit Facility Issuer. not later than 60 days after the occurrence of a Conversion Event, the Governmental Unit, the Sponsor and the Trustee shall take all action necessary to obtain the required Favorable Opinion of Bond Counsel. and to convert the Loan and a proportionate share of the Bonds. relating to the Loan. to a fIxed rate of interest. The Credit Facility Issuer shall receive immediate notification. in the form of a report acceptable to it from the Sponsor's Financial Advisor, of any the occurrence of a Conversion Event. The Financial Advisor's report shall specify the fIXed interest rate for the Bonds and the Loan taking into account that the interest rate on the Loan shall be sufficient to cover the new fIXed rate on the Bonds as well as a proportionate share of expenses and non-asset bonds relating to the Bonds. Additionally. a proportionate share of the reserve fund on the Bonds shall be segregated to secure solely the Bonds which were converted to a fIXed interest rate relating to the Loan. Upon any such conversion of the Bonds to the Fixed Rate Mode. the Sponsor. the Governmental Unit shall enter into an appropriate supplement to this Loan Agreement to provide for repayment of the Loan in accordance with such conversion. SECTION 3.16 SPONSOR INDEMNITY. The Sponsor hereby agrees to indemnify the Governmental Unit for any loss or damages which they may incur as a result of the negligence or willful misconduct of the Sponsor which causes the interest on the Bonds to become subject to federal income taxation: provided that any liability of the Sponsor therefor shall be a limited and special obligation of the Sponsor, payable solely from the surplus funds under the Trust Estate available therefor. junior and subordinate to the payment of all other amounts required to be paid from such funds in accordance with the Indenture. SECTION 3.17 NOTICE OF REMARKETING FAILURE. The Trustee will promptly furnish the Govemmental Unit with written notice of the Remarketing Agent's failure to Remarket any Bonds. resulting in a drawing upon the Uquidity Facility. within two Business Days of the date of receipt of notice thereof by the Trustee. Rev-06/08/93-60 14-loanag -16- . . Wff: 15945r~403g ARTICLE IV COVENANTS OF THE GOVERNMENTAL UNIT SECTION 4.1 REPORTS AND OPINIONS; INSPECTIONS. (a) Until all amounts due under this Agreement have been paid in full. the Governmental Unit shall deliver to the Sponsor. the Trustee and the Credit Issuers. within thirty days after the Governmental Unit's receipt thereof. an annual report prepared in accordance with generally accepted accounting principles applicable to the Governmental Unit, and certified by an independent certified public accountant (or accounting firm) reasonably satisfactory to the Sponsor. which shall include a balance sheet and income statement for the prior fiscal year in reasonable detail. and be accompanied by a certificate of the Governmental Unit stating that no Event of Default hereunder has occurred and is continuing. (b) The Governmental Unit shall deliver to the Sponsor. the Credit Facility Issuer and the Trustee. not later than the 135th but not earlier than the 128th day following (i) in the case of a Loan secured by a Local Letter of Credit. the date of each Loan Payment pursuant to the terms of this Agreement (whether by prepayment or regularly scheduled payment) or (ii) as to Loans not so secured. upon the fmal payment upon the Loan. a certificate of the Governmental Unit. or other evidence in form and substance satisfactory to the Trustee. to the effect that, during the period ending 128 days following such payment, no bankruptcy. insolvency or similar proceeding has been commenced by or against the Governmental Unit and that no other event has occurred which would have constituted an Event of Default under Section 5.1 (f) of this Agreement (except such as has been vacated. dismissed or discharged by an order which is not subject to further appeal). Notwithstanding the payment in full of the Loan. the Governmental Unit shall pay any charges incurred by the Sponsor or the Trustee in connection with any payment under the Credit Facility by reason of the Governmental Unit's failure to deliver such certificate or evidence on a timely basis. In addition. notwithstanding the payment in full of the Loan. the Governmental Unit shall pay to any Substitute Credit Facility Issuer an amount. if any, equal to the Credit Issuer Rate per annum on the amount which was disbursed under the Credit Facility by reason of any payment of the Governmental Unit's Loan payment to the holders of the Bonds being deemed a Preference Payment (as defmed in the Indenture). for the period between the disbursement of such amount under the Credit Facility and the repayment of such amount by the Governmental Unit. (c) The Governmental Unit agrees to permit the Sponsor. the Trustee and the Credit Issuers to examine. visit and inspect. at any reasonable time. the Project, and the Governmental Unit's facilities. and any accounts. books and records. including its receipts. disbursements, contracts. investments and any other matters relating thereto and to its fmancial standing. to the extent the same reasonably relate to the Pledged Revenues and the Loan and to supply such reports and information as the Sponsor. the Trustee or the Credit Issuers may reasonably require. SECTION 4.2 IMMUNITY OF SPONSOR. In the exercise of the powers of the Sponsor and its members. officers. employees and agents under the Indenture or this Agreement including (without limiting the foregoing) the application of moneys and the investment of funds. the Sponsor shall not be accountable to the Governmental Unit for any action taken or omitted with respect to the Project or this Agreement by it or its members. officers. employees and agents in good faith and Rev-06/08/93-60 14-loanag -17- ~~t: I 594Srr4040 believed by it or them to be authorized or within the discretion or rights or powers conferred under this Agreement. The Sponsor and its members, officers, employees and agents shall be protected in its or their acting upon any paper or documents believed by it or them to be genuine, and it or they may conclusively rely upon the advice of counsel and may (but need not) require further evidence of any fact or matter before taking any action. No recourse shall be had by the Governmental Unit for any claims based on the Indenture or this Agreement against any member, officer, employee or agent of the Sponsor alleging personal liability on the part of such person unless such claims are based upon the bad faith, fraud or deceit of such person. To the extent permitted by law the Governmental Unit shall indemnify the Sponsor and any of its members, officers. employees or agents and save them harmless against any liability intended to be precluded by this Section resulting from the breach of this agreement by the Governmental Unit. SECTION 4.3 COMPLIANCE WITH LAWS. With respect to the Project and any additions. alterations. or improvements thereto, the Governmental Unit will at all times comply with all applicable requirements of Federal and state laws and with all applicable lawful requirements of any agency, board, or commission created under the laws of the State of Florida or of any other duly constituted public authority: provided. however. that the Governmental Unit shall be deemed in compliance with this Section 4.3 so long as it is contesting in good faith any such requirement by appropriate legal proceedings. SECTION 4.4 ISSUANCE OF OTHER OBLIGATIONS PAYABLE FROM PLEDGED REVENUES. So long as the Governmental Unit Note remains Outstanding and unpaid, the Governmental Unit will not issue or consent to the issuance of any other obligations payable from the Pledged Revenues or any portion thereof. nor voluntarily create any debt, lien, pledge. assignment, encumbrance or other charge, having priority to or being on a parity with the lien of the Governmental Unit Note and the interest thereon. upon the Pledged Revenues, except under the conditions and in the manner provided in this Agreement. Any obligations issued by the Governmental Unit in addition to the Governmental Unit Note or other indebtedness authorized by Section 4.5 hereof, payable from the Pledged Revenues. shall contain an express statement that such obligations are junior and subordinate in all respects to the Governmental Unit Note, as to lien on and source and security for payment from the Pledged Revenues: provided. however. that the Governmental Unit may also grant to the provider of a Local Credit Enhancement for the Governmental Unit Note or any provider of Local Credit Enhancement with respect to any Additional Parity Debt, a lien upon the Pledged Revenues commensurate with the lien granted in respect of such Additional Parity Debt, to the extent that the scheduled debt service on the reimbursement obligation under any such Local Credit Enhancement does not exceed the debt service due hereunder. as appropriate. without regard to the debt service on such Additional Parity Debt, as the case may be. SECTION 4.5 ISSUANCE OF ADDITIONAL PARITY DEBT. After the issuance of the Governmental Unit Note. the Governmental Unit will not incur Additional Parity Debt, except as set forth below: (1) There shall have been obtained and f1led with the Governmental Unit a certificate of an independent certified public accountant of suitable experience and responsibility: (a) stating that the books and records of the Governmental Unit relating to the collection and receipt of Pledged Revenues have been audited by him: (b) setting forth the amount of Pledged Revenues. as defmed herein. received by the Governmental Unit for any twelve consecutive months within the eighteen months Rev-06j08j93-60 14-loanag -18- ~~~: \ 5945r~404'1 immediately preceding the date of delivery of such Additional Parity Debt with respect to which the certificate is made: (c) stating that the Pledged Revenues. received by the Governmental Unit for such twelve month period equals at least 1.50 times the Average Annual Debt Service on (i) the Governmental Unit Note and all Additional Parity Debt, if any. then outstanding. and (ii) the Additional Parity Debt with respect to which the certificate is made. (2) The Governmental Unit shall not be in default in performing any of the covenants and obligations assumed hereunder. and all payments herein required to have been made into the accounts and funds. as provided hereunder. shall have been made to the full extent required. (3) No Additional Parity Debt bearing interest at a variable rate shall be issued while any portion of the Governmental Unit Note shall remain outstanding without the prior written consent of the Credit Facility Issuer. SECTION 4.6 ADDITIONAL COVENANTS. (A) PERMIITED USE. The Governmental Unit will comply with the covenants and representations set forth in Section 1.2 hereof in connection with its ownership and operation of the Project. The Governmental Unit covenants and agrees that the entire amount of Loan proceeds will be expended only to pay the costs of closing the Loan and to pay for an amount of Project Costs which does not exceed the Projects Costs allocable to construction and acquisition of facilities owned by the Governmental Unit as part of the Project: provided. however. that Loan Proceeds may be used to acquire property to be disposed of for ownership and use by the private sector in furtherance of the public purposes of the Project if (i) the proceeds of such disposition will be applied as provided in Section 1. 2 (h) hereof and (ii) there is delivered to the Sponsor. the Trustee. bond counsel to the Sponsor and the Credit Facility Issuer an opinion of the City Attorney to the Governmental Unit that such use of the loan proceeds is in accordance with Florida law. The Governmental Unit hereby certifies that (1) the Costs of the construction and acquisition of the Project are not less than the net proceeds of the Loan deposited in the Loan Proceeds Fund. together with any investment income thereon: (2) the amounts in the Loan Proceeds Fund will only be used to pay Project Costs at least equal to such Costs and (3) such Costs have not been paid from any other sources. (B) RECEIPr OF FUNDS. The Governmental Unit hereby covenants and agrees not to reduce the rate of the Electric Franchise Fees below the current levels while any portion of the Governmental Unit Note shall remain outstanding without the prior written consent of the Credit Facility Issuer. The Governmental Unit will take all action legally available to it to insure the receipt of Pledged Revenues. and will take no action which will impair or adversely affect its receipt of the Pledged Revenues. The Governmental Unit does further covenant and agree that so long as any portion of the Governmental Unit Note or any other payment under this Loan Agreement is outstanding and unpaid. or payment thereof has not been duly provided for. it will not repeal the ordinances granting the franchises described in the definition of Pledged Revenues set forth in Section 2.1 of this Loan Agreement and levying said Pledged Revenues. and will not amend or modify said ordinances in any manner (i) so as to reduce the rate or amount of Pledged Revenues levied thereunder: or (ii) so as to increase the exemption from payment of said Pledged Revenues: (ill) so as to impair or Rev-06/08/93-60 14-loanag -19- 06/,09/93, .14: 27 e9049320677 JEFF , IaJ 004/004 ~~t: /5945Pb4042 adversely affect the obligations of the franchisee or of their legal representatives. successors or assigns. to pay. or the power or obligation of the Governmental Unit to levy and collect. said Pledged Revenues; in such a manner as to impair or adversely affect in any manner the pledge of such Pledged Revenues made herein. or the rights of the holder of the Governmental Unit Note issued pursuant to this Loan Agreement. (C) The Governmental Unit may from time to time permit the Project or portions thereof to be leased to or managed by any private entity upon such terms as it may deem appropriate for periods not to exceed 30 years. provided that any such lease or management agreement may be renewed after expiration of 30 years if such renewal is at fair market value. The Governmental Unit shall not otherwise allow the Project to be used in the trade or business of any private person. unless disposed of in accordance with Section 1.2(h) and 4.6(A) hereof. Rev-06/08/93-60 14-1oanag -20- wn: 1 5945rr4043 ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.1 EVENTS OF DEFAULT. Each of the following events is hereby defmed as, and declared to be and shall constitute. an "Event of Default": (a) failure by the Governmental Unit to make any payment required to be made pursuant to Section 3.3(a) or (b) hereof on or before the date the same is due provided notice of such amount has been given as provided herein; or (b) failure by the Govemmental Unit to make any payment required to be made pursuant to any other provision hereof within 30 days after the same is due and notice thereof has been furnished to the Governmental Unit; or (c) with the exceptions of those covenants set forth in Section 3.3 hereof. failure by the Governmental Unit to perform any other covenant. condition or agreement on its part to be observed or performed under this Agreement for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to the Governmental Unit by the Sponsor, the Credit Facility Issuer or the Trustee: provided. however. that if such failure cannot reasonably be corrected within such 30 day period. upon approval of the Credit Facility Issuer (which shall be granted if the Credit Facility Issuer reasonably believes the failure can be cured within 180 days). the Governmental Unit shall not be deemed to have committed an Event of Default under this paragraph if it commences to cure such failure within such 30 day period and thereafter pursues the curing thereof with diligence; or (d) if any of the representations. warranties or certifications of the Governmental Unit under Section 1.2 hereof or otherwise made or delivered in connection herewith shall prove to be false or misleading in any material respect; or (e) (1) the Govemmental Unit shall make an assignment for the benefit of creditors; (2) the Governmental Unit shall apply for or seek. the appointment of a receiver. custodian. trustee. examiner. liquidator or similar official for it or any substantial part of its property; (3) the Govemmental Unit shall fail to file an answer or other pleading denying the material allegations of any proceeding filed against it seeking to have the Governmental Unit adjudicated as bankrupt or insolvent. or seeking dissolution. winding up. liquidation. reorganization, arrangement. adjustment or composition of the Governmental Unit or its debts under any law relating to bankruptcy or insolvency; (4) the Governmental Unit shall take any action to authorize or effect any of the actions set forth in Sections 5.l(e)(l) or (2); (5) the Governmental Unit shall fail to contest in good faith any appointment or proceeding described in Sections 5.1(e) or 5.1(f); or (6) the Governmental Unit shall be determined by the Govemor of the State to be in a state of fmancial emergency as defined in Section 218.503. Florida Statutes. as amended. or any successor statute thereto; or (f) (1) the Govemmental Unit shall be adjudicated a bankrupt or become subject to an order for relief under federal bankruptcy law; (2) the Governmental Unit shall institute any proceedings seeking an order for relief under federal bankruptcy law or seeking to be adjudicated a bankrupt or insolvent. or seeking dissolution. winding up. liquidation. reorganization. arrangement. adjustment or composition of it or its debts under any law relating to bankruptcy or insolvency; or (3) without the Rev-06j08j93-60 14-loanag -21- ~~~: I 5945rt4044 application, approval or consent of the Governmental Unit, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Governmental Unit, or a proceeding described in Section 5. 1 (e)(3) shall be instituted against the Governmental Unit and stich appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 90 consecutive days: the mere declaration by the Governmental Unit of a state of financial emergency under Section 218.503. Florida Statutes, as amended. shall not. in and of itself. constitute a default under this Section 5.1(f): or (g) if a Local Letter of Credit has been provided with respect to the Loan. the failure of the Governmental Unit to provide a replacement for any such Local Letter of Credit. which replacement has been approved in writing by the Credit Facility Issuer, by the 15th day prior to the expiration or non-renewal of the existing Local Letter of Credit. SECTION 5.2 ACCELERATION. If an Event of Default as defmed in Section 5. 1 (a), (b). (e) or (f) hereof shall have occurred. or upon the lOth day prior to the expiration. termination, or non-renewal of a Local Letter pursuant to Section 5.1(g) hereof. the Loan, and all other sums which the Governmental Unit is obligated to pay under this Agreement shall. upon direction of the Credit Facility Issuer. become due and payable immediately, and the Commitment shall terminate, without further notice to the Governmental Unit. If any other Event of Default shall have occurred, the Trustee (as the Sponsor's assignee. or any assignee of the Trustee or Co-Trustee, as may be the case) shall, but only upon direction of the Credit Facility Issuer, by notice in writing to the Governmental Unit. declare the Loan and all other sums which the Governmental Unit is obligated to pay hereunder to be due and payable immediately. and terminate the Commitment. Upon any such acceleration whether automatically or by declaration. anything in this Agreement contained to the contrary notwithstanding, there shall become immediately due and payable. in addition to any other amounts then due from the Governmental Unit hereunder. the sum of: (i) the outstanding principal of the Loan: (ii) accrued and unpaid interest on the Loan: and (iii) all amounts which would be payable in excess of the sum of: (x) the unpaid principal balance of the Governmental Unit Note plus (y) accrued and unpaid interest thereon. in the event the Governmental Unit Note had been prepaid in accordance with Section 3.4(b) hereof on the date of acceleration pursuant to this Section 5.2. provided that there shall be no double counting of amounts due hereunder and under such Sections. SECTION 5.3 PAYMENT OF LOAN ON DEFAULT; SmT THEREFOR. (a) The Governmental Unit covenants that. in case an Event of Default shall occur in the payment of any sum payable by the Governmental Unit under Section 3.3 of this Agreement as and when the same shall become due and payable. whether at maturity or by acceleration or otherwise. then. upon demand of the Sponsor, the Credit Facility Issuer or the Trustee. but only upon direction of the Credit Facility Issuer. the Governmental Unit will pay to the Trustee (or its assignee) an amount equal to the sum of: (i) the amount described in Section 5.2 hereof: and (ii) such further amount as shall be sufficient to cover the costs and expenses of collection. including a reasonable compensation to the Sponsor. the Trustee, their agents. attorneys and counsel. (b) In case the Governmental Unit shall fail forthwith to pay such amounts upon such demand. the Sponsor or the Trustee (or its assignee) shall be entitled and empowered but only upon direction of the Credit Facility Issuer, to institute any Rev-06j08j93-60 14-loanag -22- ~fb: I 5945rr4045 actions or proceedings at law or in equity for the collection of the sums so due and unpaid. and may prosecute any such action or proceeding to judgment or fmal decree. and may enforce any such judgment or fmal decree against the Governmental Unit and collect in the manner provided by law. (c) In case any proceedings shall be pending for the bankruptcy or for the reorganization of the Governmental Unit under the Federal bankruptcy laws or any other applicable law. or in case a receiver or trustee shall have been appointed for the property of the Governmental Unit, or in case any other similar judicial proceedings shall be pending relating to the Governmental Unit or to the creditors or property of the Governmental Unit. the Trustee (or its assignee) shall be entitled and empowered. to the extent permitted by law. by intervention in such proceedings or otherwise. to file and prove a claim or claims for the whole amount of the Loan made to the Governmental Unit pursuant to this Agreement and for interest owing and unpaid in respect thereof and to file such proofs of claim and other papers or documents as may be necessary or advisable in order to prosecute the claims of the Trustee (or its assignee) in any such judicial proceedings relating to the Governmental Unit. its creditors. or its property. and to collect and receive any moneys or other property payable or deliverable on any such claims. and to distribute the same after the deduction of its charges and expenses. Any receiver. assignee or trustee in bankruptcy or reorganization is hereby authorized to make such payments to the Trustee (or its assignee). and to pay to the Trustee (or its assignee) any amount it requires for compensation and expenses. including reasonable counsel fees it has incurred up to the date of such distribution in connection with the Loan. SECTION 5.4 OTHER REMEDIES. (a) Whenever any Event of Default hereunder shall have occurred and be continuing. whether or not all sums which the Governmental Unit is obligated to pay under this Agreement shall have been declared to be immediately due and payable pursuant to this Agreement, the Sponsor or the Trustee (or its assignee) shall. but only if directed by the Credit Facility Issuer. take whatever action at law or in equity as may appear necessary or desirable to collect the amounts payable by the Governmental Unit hereunder. then due and thereafter to become due. or to enforce performance and observance of any obligation, agreement or covenant of the Governmental Unit under this Agreement. including the application of any undisbursed Loan proceeds to the reduction of the outstanding balance of such Loan. (b) Whenever any Event of Default hereunder shall have occurred and be continuing. before or after declaring an acceleration pursuant to Section 5.2 hereof. the Sponsor or the Trustee (or its assignee) may. but shall not be obligated to. perform for the account of the Governmental Unit any covenant or obligation in the performance of which the Governmental Unit is in default, in which event the Governmental Unit shall immediately reimburse the Sponsor or the Trustee (or its assignee). as the case may be. upon demand for all expenses incurred by the Sponsor or the Trustee (or its assignee). as the case may be. in the course of such performance. including reasonable counsel fees. with interest from the date of such expenditure at the Prime Rate of the Liquidity Facility Issuer then in effect. (c) No action taken pursuant to this Section 5.4 shall relieve the Governmental Unit from its obligations pursuant to Sections 3.3. 3.5 and 5.3 hereof. all of which shall survive any such action. The Sponsor or the Trustee (or its assignee) may. and upon direction of the Credit Facility Issuer. shall take whatever action at law or in equity as may appear necessary and desirable to collect the amounts then due Rev-06j08/93-60 14-loanag -23- ~[r I 5945rG4046 and thereafter to become due from the Governmental Unit, or to enforce the performance and observance of any obligation. agreement or covenant of the Governmental Unit hereunder. (d) Except as to the Sponsor's rights to indemnity and reports from the Governmental Unit hereunder. the Sponsor's right to enforce the remedies described in this Section 5.4 shall not be exclusive. and the Credit Issuers and the Trustee shall also have the right to enforce these remedies. SECTION 5.5 CUMULATIVE RIGHTS. No remedy conferred upon or reserved to the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee) by this Agreement 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 or by statute. No waiver by the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee) of any breach by the Governmental Unit of any of its obligations. agreements or covenants hereunder shall be deemed a waiver of any subsequent breach. or a waiver of any other obligation. agreement or covenant, and no delay or failure by the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee) to exercise any right or power shall impair any such right or power or shall be construed to be a waiver thereof. but any such right and power may be exercised by the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee) from time to time and as often as may be deemed expedient. SECTION 5.6 DISCONTINUANCE OF PROCEEDINGS. In case the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee) shall have proceeded to enforce any right under this Agreement and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Sponsor. the Credit Facility Issuer or the Trustee (or its assignee). then and in every such case the Governmental Unit. the Sponsor. the Credit Facility Issuer and the Trustee (or its assignee) shall be restored respectively to their several positions and rights hereunder. and all rights. remedies and powers of the Governmental Unit, the Sponsor, the Credit Facility Issuer and the Trustee (or its assignee) shall continue as though no such proceeding had been taken. subject to any such adverse determination. SECTION 5.7 NOTICE OF DEFAULT. The Governmental Unit shall give the Trustee. the Credit Facility Issuer. the Liquidity Facility Issuer. each Local Credit Enhancement Issuer or provider of any Local Letter of Credit and the Sponsor. a prompt written notice of any condition or occurrence which constitutes an Event of Default under Section 5.1 hereof immediately upon becoming aware of the existence thereof. Rev-06 / 08/93-60 14-loanag -24- ~kt: \ 5945r~4047 ARTICLE VI MISCELLANEOUS SECTION 6.1 UMITATION OF LlABD.JTY. In the event of any default by the Sponsor hereunder. the liability of the Sponsor or the Credit Facility Issuer to the Governmental Unit shall be enforceable only out of its interest under this Agreement and there shall be no other recourse for damages by the Governmental Unit against the Sponsor. the Credit Facility Issuer. its officers. members. agents and employees. or against any of the property now or hereafter owned by it or them. Notwithstanding any other provisions of this Agreement to the contrary. in the event of any default by the Governmental Unit hereunder. the liability of the Governmental Unit shall be enforceable only out of the Pledged Revenues. and there shall be no other recourse for damages by the Sponsor or the Credit Facility Issuer against the Governmental Unit. its officers. members. agents and employees. SECTION 6.2 NO PERSONAL RECOURSE. Neither any member nor any officer. employee or agent of the Governmental Unit nor any person executing the Loan Agreement or Governmental Unit Note shall be personally liable on the Loan or the Bonds or this Agreement by reason of the issuance thereof. SECTION 6.3 NOTICES. Notice hereunder shall be effective upon receipt and shall be given by certified mail. return receipt requested. to: As to the Sponsor: City Manager City of Gulf Breeze P.O. Box 640 Gulf Breeze. Florida 32561 As to the Trustee: Sun Bank. National Association 225 E. Robinson Street. Suite 350 Orlando. Florida 32801 Attn: Corporate Trust As to the Governmental Unit: City of Miami Beach. Florida 1700 Convention Center Dr. Miami Beach. Florida 33139 Attn: Director of Finance As to the Credit FaclUty Issuer: Financial Guaranty Insurance Company 115 Broadway New York. New York 10006 Attn: General Counsel Rev-06/08/93-60 14-loanag -25- Wf[: IS945fG4 048 As to the Liquidity FaciUty Issuer: CaGB Uquidity Facility Blount Building 3 West Garden Street Pensacola. Florida 32501 The Bank of Tokyo. Ltd.. New York Agency 100 Broadway New York. New York 10005 SECTION 6.4 ILLEGAL OR INVALID PROVISIONS DISREGARDED. In case any provision of this Agreement shall for any reason be held invalid. illegal or unenforceable in any respect. this Agreement shall be construed as if such provision had never been contained herein. SECTION 6.5 APPUCABLE LAW. This Agreement shall be deemed to be a contract made in Florida and govemed by Florida law. SECTION 6.6 ASSIGNMENTS. The Governmental Unit shall not assign this Agreement or any interest of the Governmental Unit herein. either in whole or in part. The Administrator on behalf of the Sponsor hereby assigns this Agreement and the Governmental Unit Note attached hereto to the Trustee as provided in Section 3.9 hereof. Except as provided in Section 3.9 hereof this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. SECTION 6.7 AMENDMENTS. This Agreement may not be amended except by an instrument in writing signed by the parties and with the consent of each provider of a Local Letter of Credit. if any. and the Credit Facility Issuer. and. if such amendment occurs after the issuance of the Bonds. with consent of the Trustee if required by Section 8.03 of the Indenture. SECTION 6.8 TERM OF AGREEMENT. This Agreement and the respective obligations of the parties hereto shall be in full force and effect from the date hereof until the principal of and all interest on the Loan shall have been paid in full and the Governmental Unit shall have complied with Section 4.1 (b) hereof. SECTION 6.9 HEADINGS. The captions or headings in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any provision hereof. SECTION 6.10 ENTIRE AGREEMENT. This Agreement is the entire final agreement between the respective parties with respect to the Loan. This Loan Agreement incorporates provisions of the Indenture only to the extent expressly set forth in the Loan Agreement. and this Agreement shall supersede all other agreements either written or oral between such parties with respect to the Loan. Rev-06/08/93-60 14-loanag -26- ~~t: IS945ru4049 CITY OF GULF BREEZE, FLORIDA ~~' ~ ~L--" ~ yo . City of G Breeze. Administrator WITNESS: JDk J1d;.-W 7I1MjC;V Y~uJ -' Rev-06/02/93-6014-1oanag -27- ~ff: 15g45r~4050 . .,', -' . (~~),".+7~iff:h".\ :.... ~.. ~:-"""......_> . "//.. . ! .~.::. ~... ~"'-.-."" .,tt. . A ..- rn-1i...." ,./,., '~'J '.:~<:. )(::~... ..r.. ,:.:-" ... O"'k' '.(''1 '._, '~\~~.;.;' .~~~.\C. ~ l\ "Jr'I '. I.l k .. ...... : CD . .~ ei:' '0 : . ("" .j,' <<r< /.. ~ 0 .. '..) I '" ',' )r;'.':'t'~\'" , ' . . ',' : 1-., ; .~_ ..A". --.-">t:)::'X':-~':," J" ~,"~'#Il ~~ , "" .' -'.'" y. ..'... ~ . \" '/....::,. '. 'ci'.;,?)' ..t..); "",,9/ !;:...':.......;... y.,0. "I"t .':' IT , J ~ , . . FORM APPROVED LE~. Lq., By "--~ ~ Date t//; 0 / l13 / . Rev-06 /08/93-60 l4-loanag By: ~ -28- Wf[:15g45r~4051 l.I- Ii);.. .s.l'..,..",. '. ,,"~ , ; (', ."-'" .. ,,,',/" .fA ..c.'. ....:J .' .~ tJ3' .. 'P), . ::E '''~ ~,~ \'~.\i:~ ",~'..;? / -. -,.....-.. .. "'''''' fit 11 'It \ "\ .., ,", SUN BANK, NATIONAL ASSOCIATION Trustee By~ ,(J.,vd . tant Vice President Attest: ~:'---j)~td~ ~ ~bd~~ ~ce President Rev-OS /28-93-60 14-loanag -29- Wff: 15g4Sr~4052 STATE OF FLORIDA COUNTY OF SANTA ROSA I, Elizabeth J. Partln~on, a Notary Public in and for the said County in the State aforesaid, do hereby certify that Lane Gilchrist, personally known to me to be the same person whose is Mayor of the City of Gulf Breeze. Florida. and Administrator of the City's Local Government Loan ProiUam Floating Rate Demand Revenue Bonds. Series 1985 C. subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that he, being thereunto duly authorized, signed in the presence of two subscribing witnesses and delivered the said instrument as the free and voluntary act of said City and as his own free and voluntary act, for the uses and purposes therein set forth and took an oath. ~ Given under my hand and notarial seal this &a.ay of June, 1993. (SEAL) gg~~e- o .RY PUi3L':.:, sr.l\iE OF F~ IDA My commission expires July 29, 1996 My Comm1s~ton1iEnti~o. c c 2 1 8 6 6 6 Name: Elizabeth J. Partington Address: 77 Baybridge Gulf Breeze, FL 32561 Rev-06/02/93-60 14-loanag Wfb:IS945rr4053 STATE OF FLORIDA COUNTY OF DADE I, Elizabeth J. Partin~ton, a Notary Public' and for the sai 0 in the State a~ ~ that and ersonally kno to me to be the same persons whose titles are, respectively, as Mayor of the City 0 Miami Beach. Florida. and City Clerk of the City of Miami Beach. Florida. subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they, being thereunto duly authorized, signed and delivered the said instrument as the free and voluntary act of said City and as their own free and voluntary act, for the uses and purposes therein set forth and took an oath. Given under my hand and notarial seal this 10th day of June, 1993. (SEAL) No Pub 'c ELlZABEl H . ARTINGTON NOTARY PUBLIC. STATE OF FL01R~'~~ My Commissionr-.B:mis[11ission expires July 29, 6 6 CommisSion l<lu. C02 1 ~ 6 Name: Elizabeth J. Partington Address: 77 Baybridge Gulf Breeze, FL 32561 , STATE OF Florida ~n: I 5945fG4054 COUNTY OF Orange I. Kippy L. Smith . a Notary Public in and for the said County in the State aforesaid. do hereby certifY that Janet Davis and Linda L. Schuchman . personally known to me to be the same persons whose names are. respectively as Asst. Vice presidenand Vice President of Snn Brink r N. A . subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they. being thereunto duly authorized. signed. sealed with the seal of said Sun Bank. and delivered the said instrument as the free and voluntary act of said Sun Bank and as their own free and voluntary act. for the uses and purposes therein set forth and took an oath. Given under June. 1993 my hand .1993. and notarial seal this 10th day of (SEAL) .......... ....~~y~ l ~<7':\ OFFICIAL SEAD :-r"J): KIPPYL.SMITH . iI 'C.~ : M . '. ':. 0$'-. . Y Commission Ex"ires .It ~ l-iVI'''- ~...... ,~ ...7'~oi~LO'<''V.. Se,lt. 23, 1996 · .. C ...... omm. No. CC 230359 My Commission Ends: q )~fi Lt I Name: Kippy L. Smith Address: 225 East Robinson St., Suite 350 Orlando, Florida 32801 Rev-OS /28-93-60 14-loanag ~k~: 15945ff4055 EXHIBIT A UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF MIAMI BEACH GOVERNMENTAL UNIT NOTE For value received. the City of Miami Beach. Florida (the "City"). a municipal corporation. organized and existing under the laws of the State of Florida. hereby promises to pay to the Trustee under the Indenture (as hereafter defined) as assignee of the Sponsor (as hereafter defmed). or to the Credit Facility Issuer. as its assignee. solely from the Pledged Revenues hereafter mentioned. the principal sum of Twenty One Million Six Hundred and Sixty Five Thousand Dollars ($21.665.000). and to pay. solely from such sources. interest thereon from the date hereof. as follows: (a) The principal hereof shall be paid in 20 installments on the dates and in the amounts shown on "Schedule I" attached hereto; and the entire unpaid principal balance hereof. together with accrued interest hereon as provided below. shall be due and payable in full as set forth on said "Schedule I"; and (b) Interest on the unpaid principal balance hereof shall be paid on the first day of July. 1993. and on the first day of each month thereafter. at a rate determined from time to time by the Financial Advisor as defmed in. and determined in accordance with the terms of the Loan Agreement of even date herewith (the "Loan Agreement") between and among the City of Gulf Breeze. Florida (the "Sponsor"). the City and Sun Bank. N.A. as Trustee. the provisions of which are incorporated herein by reference; provided. however. that if an acceleration of the Loan made pursuant to the Loan Agreement is declared following the occurrence of an Event of Default under the Loan Agreement. the interest rate hereon shall be increased to a rate per annum equal to the Prime Rate (as defined in the Loan Agreement) plus 2%. Said rate shall be based upon a 365/366 day year for the actual days elapsed and shall change when and as said Prime Rate shall change. Notwithstanding anything otherwise contained in this Note. the interest rate on this Note (excluding any amounts which do not represent charges for the use or forbearance of money) shall not exceed twenty-five percent (25%) per annum or such higher rate as may from time to time be permitted under applicable law; provided. that. in the event the imposition of such Maximum Rate shall ever cause the amount payable on this Note to be less than the amount of interest which would otherwise be computed pursuant to the Loan Agreement. this Note shall thereafter bear interest at the Maximum Rate until the earlier of (1) the final maturity of this Note or (2) such time as the total amount of interest paid on this Note shall at such rate equal the amount of interest which would have been payable on this Note pursuant to Section 3.3 of the Loan Agreement without regard to any Maximum Rate. The interest rate on this Note may be converted to a fIXed rate under certain circumstances described in the Loan Agreement. in which event the interest rate on this Note will be determined in accordance with the terms of the Loan Agreement. In addition to the above payments of principal and interest. late payments of any amount due under this Note will bear interest at a rate per annum equal to the interest rate described in (b) above. but not less than a rate equal to the lesser of the Maximum Rate or the Prime Rate plus 2% per annum from the due date to the date of Rev-06/08/93-60 14-loanag -30- 8fr lS945ff:4 056 payment. The payments described in paragraph (b) above will include an amount determined by the Administrator to be sufficient to pay certain fees described in and determined in accordance with Section 3.5(a) of the Loan Agreement. All payments made hereunder shall be applied in accordance with the terms of the Loan Agreement. The principal hereof and interest hereon shall be paid to the 1iustee as Assignee of the Sponsor (or to the Credit Facility Issuer. as its assignee) at such place as it may designate in writing. This Note evidences a loan made to the Governmental Unit pursuant to the Loan Agreement, to finance the Governmental Unit's cost of acquisition and construction of the Project described in the Loan Agreement (the "Project") and the City has executed this Note to evidence all payments due under said Loan Agreement. Such loan is being made by the Sponsor. from the proceeds of its Local Government Loan Program Floating Rate Demand Revenue Bonds. Series 1985C (the "Bonds"), The Bonds are issued under a 1iust Indenture dated as of December 1. 1985. as amended and restated as of July 1. 1986. as further amended and supplemented (the "Indenture") between the Sponsor and Sun Bank. N.A.. as 1iustee. The obligations of the City hereunder are limited. special obligations payable solely from the Pledged Revenues in the manner set forth in the Loan Agreement. This Note may be paid prior to maturity in the manner and with the premium. if any specified in Section 3.4 of the Loan Agreement. This Note is subject to mandatory prepayment under certain circumstances as provided in the Loan Agreement. This Note. and all payments due on this Note do not constitute a general indebtedness of the City. or a pledge of the faith. credit or taxing power thereof within the meaning of any constitutional or statutory provision or limitation. Neither the State of Florida nor any political subdivision thereof nor the City shall be obligated (1) to exercise any ad valorem taxing power or any other taxing power in any form on any real or personal property in the City to pay the principal of this Note. the interest thereon or other payments or costs incident thereto or under the Loan Agreement. or (2) to pay the same from any other funds of the City except from the Pledged Revenues. all in the manner provided in the Loan Agreement. The issuance of this Note shall not directly or indirectly or contingently obligate the City to levy or to pledge any form of taxation whatever therefor or to make any appropriation for its payment. The acceptance of this Note by the holder from time to time hereof shall be deemed an agreement between the City and such holder that this Note and the indebtedness evidenced hereby shall not constitute a lien upon any property of the City. but shall constitute a lien only on the Pledged Revenues. in the manner provided in the Loan Agreement. The City shall be in default hereunder upon the occurrence of any Event of Default described in the Loan Agreement which is not corrected within the applicable period therein specified. if any. and after the giving of any required notice. In the event of such default hereunder. the holder hereof shall have any and all rights and remedies available to it under the Loan Agreement. No failure of the holder hereof to exercise any right hereunder shall be construed as a waiver of the right to exercise the same or any other right at any other time. The Trustee shall have the right to assign this Note to the Credit Facility Issuer in accordance with the terms of the Loan Agreement. The Trustee agrees to give the Rev-06j08j93-60 14-loanag -31- ~ft 1594Sr~40S7 City prompt written notice of any such assignment. The terms and conditions of the Loan Agreement are made a part of this Note as fully as if set forth in full herein. Except as otherwise provided herein. all capitalized terms used herein which are defined in the Loan Agreement shall have the meanings set forth in the Loan Agreement. Rev-06/08/93-60 14-1oanag -32- Wf~: I 5945fG4058 IN WITNESS WHEREOF. the City of Miami Beach Florida. has issued this Governmental Unit Note and has caused the same to be manually signed by the Mayor of the City of Miami Beach. Florida. and the corporate seal of the City of Miami Beach. Florida. to be affixed. impressed, lithographed or reproduced hereon, and attested by the City Clerk of the City of Miami Beach. Florida, all as of this lOth day of June. 1993. (SEAL OF TIlE CI1Y) ATTEST: CITY OF MIAMI BEACH, FLORIDA By: City Clerk By: Mayor City of Miami Beach Rev-06/08/93-60 14-loanag -33- . Wfb: 15g45r~4 059 "Schedule r' City of Miami Beach, Florida Governmental Unit Note Gulf Breeze VRDS Series C DEBT SERVICE SCHEDULE DATE PRINCIPAL 7/1/1994 7/1/1995 7/1/1996 7/1/1997 7/1/1998 7/1/1999 7/1/2000 7/1/2001 7/1/2002 7/1/2003 7/1/2004 7/1/2005 7/1/2006 7/1/2007 7/1/2008 7/1/2009 7/1/2010 7/1/2011 7/1/2012 7/1/2013 TOTAL $400,000 450,000 500,000 500,000 600,000 600,000 700,000 800,000 800,000 900,000 1, 100,000 1, 100,000 1,200,000 1,300,000 1,400,000 1,550,000 1, 700,000 1,800,000 2,000,000 2.265.000 $21,665,000 Rev-06/08/93-60 14-1oanag -34- -9f;- ~mreOI -v 1 09-f;6 /80/ 90-A;>M r, . J"!,!f1",r!f'"",~ I .' . a~ ",.,,,, II'" . i . NIAnH J.3I1WH " I!' . OII.A 0ICWt t J "'WO'" "AlNnO) iO"O 10 ( _1GIG:MI1~QlM/J HI _10:)_ . ....11, 00.0$ 00.000'9~$ 00'000'9~$ 96-Inf'-10 Lf; 00'000'9~$ 00'000'9~$ 00'000'09$ 96-unf'-10 9f; 00'000'09$ 00.000'9~$ 00'000'9L$ 96-ABW-I0 9f; 00'000'9L$ 00.000'9~$ 00'000'001$ 96-.IdY-I0 vf; 00'000'001 $ 00.000'9~$ 00'000'9~1$ 96-.IBW-I0 f;f; 00.000'9~1$ 00.000'9~$ 00'000'091$ 96-q;>d-l0 ~f; 00.000'091 $ 00.000'9~$ 00'000'9L 1$ 96-tref'-10 If; 00.000'9L 1$ 00'000'9~$ OO'OOO'OO~$ 96-;);>Q-I0 Of; OO'OOO'OO~$ 00'000'9~$ 00'000'9~~$ 96-AON-I0 6~ 00.000'9~~$ 00.000'9~$ 00'000'09~$ 96-lOO-I0 8~ 00.000'09~$ 00.000'9~$ 00'000'9L~$ 96-d;>S-10 L~ 00.000'9L~$ 00'000'9~$ OO'OOO'OOf;$ 96-~nY-I0 9~ OO.OOO'OOf;$ 00'000'9~$ 00'000'9~f;$ 96-Inf'-10 9~ 00'000'9~f;$ 00.000'9~$ 00'000'09f;$ 96-unf'-10 v~ 00.000'09f;$ 00'000'9~$ 00'000'9Lf;$ 96-ABW-I0 f;~ 00'000'9Lf;$ 00'000'9~$ OO.OOO'OOv$ 96-.IdY-I0 ~~ OO'OOO'OOv$ 00'000'9~$ 00'000'9~v$ 96-.IBW-I0 I~ 00'000'9~v$ 00'000'9~$ 00.000'09v$ 96-Q;>d-IO O~ 00'000'09v$ 00'000'9~$ 00.000'9Lv$ 96-tref'-IO 61 00'000'9Lv$ 00'000'9~$ 00.000'009$ v6-;);>Q-IO SI 00'000'009$ 00'000'9~$ 00'000'9~9$ v6-AON-IO LI 00'000'9~9$ 00'000'9~$ 00.000'099$ v6-lOO-IO 91 00'000'099$ 00'000'9~$ 00.000'9L9$ v6-d;>S-IO 91 00'000'9L9$ 00'000'9~$ 00'000'009$ v6-~nY-IO vI 00'000'009$ 00.000'9~$ 00'000'9~9$ v6-Inf'-IO f;I 00'000'9~9$ 00.000'9~$ 00'000'099$ v6-unf'-IO ~I 00'000'099$ 00'000'9~$ 00'000'9L9$ v6-ABW-IO 11 00'000'9L9$ 00.000'9~$ OO'OOO'OOL$ v6-.IdY-IO 01 OO.OOO'OOL$ 00'000'9~$ 00'000'9~L$ v6-.IBW-IO 6 00.000'9~l$ 00.000'9~$ 00'000'09L$ v6-Qad-l0 8 00'000'09L$ 00'000'9~$ 00'000'9LL$ v6-tref'-IO L 00.bOO'9LL$ 00'000'9~$ OO'OOO'OOS$ f;6-;)aQ -10 9 OO"OOO'OOS$ 00'000'9~$ 00.000'9~S$ f;6-AON-IO 9 00'000'9~8$ 00'000'9~$ 00.000'098$ f;6-lOO-IO v 00'000'098$ 00'000'9~$ 00.000'9L8$ f;6-daS-IO f; 00'000'9LS$ 00.000'9~$ 00'000'006$ f;6-~nY-I 0 ~ 00'000'006$ 00.000'9~$ 00'000'9~6$ f;6-Inf'-IO 1 ~UJUJBUI~ ;>lBQ SJlU. ~UJpu'BlSlno alBQ s,avN la~.IB~ p;>zp.Iomv S,avN spUOS: lassy-uoN A 3'1nQmI:>s 090'v~JSv6S I :}jM . . . , , , ~fb: , 594Sr~40 17 RESOLUTION NO. 93-20783 ~ RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE BORROWING OF $21,665,000 FROM THE GULF BREEZE, FLORIDA, LOCAL GOVERNMENT LOAN POOL PROGRAM TO FINANCE CERTAIN CAPITAL PROJECTS OF THE CITY; AUTHORIZING THE SUBMISSION OF A LOAN ArPLICATION; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT IN CONNECTION THEREWITH; AUTHORIZING THE ISSUANCE OF A $21,665,000 VARIABLE RATE NOTE TO EVIDENCE THE OBLIGATION OF THE GOVERNMENTAL ENTITY TO REPAY SUCH LOAN; AUTHORIZING THE PLEDGE OF CERTAIN REVENUES OF. THE GOVERNMENTAL ENTITY TO SECURE THE REPAYMENT OF THE LOAN AND THE NOTES; FIXING THE TERM AND REPAYMENT PROVISIONS THEREOF; AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami Beach, Florida (the "Borrower") is duly authorized pursuant to the Constitution and Chapter 166, Florida statutes, as amended, and other applicable provisions of law (collectively, the "Act") to acquire and construct capital projects to finance all or a portion of parking facilities, cultural facilities, infrastructure improvements, ecor.omic development activities, tourism attractions and quality of life improvements, for the benefit of the citizens and residents of the Borrower and to borrow money to facilitate financing of the costs of such projects; and WHEREAS, the City of Gulf Breeze, Florida, has heretofore established a loan pool program (the "Program") for the purpose of financing certain capital projects of participating local governmental entities situated in the state of Florida; and WHEREAS, the Borrower has identified certain capital projects (such capital projects hereinafter collectively referred to as the "Project") which the Borrower wishes to finance from funds borrowed from the Program; and WHEREAS, under the provisions of the documents pursuant to which the Program was established, the Borrower must submit its application (the "Loan AtJPlication") for such funds 'co th.e Program Administrator for review and approval; and WHEREAS, the Borrower wishes to approve the form of application, identify the specific capi'cal improvements constituting the Project and provide for the terms and security for the repayment of such funds to the Program; and WHEREAS, to evidence its obligation to repay thE: loan of funds from the Program (the "Loan"), the Borrower will execute and deliver a Loan Agreement (the Agreement" or "Loan Agreement) and a variable rate note (the "Governmental Unit Note"); and WHEREAS, to secure is obligatior. to repay the Governmental Unit Note and the Loan, the Borrower wishes to pledge as security for the Governmental Unit Note the Pledged Revenues, as defined in the Loan Agreement (the "Pledged Revenues"); and WHEREAS, the Borrower wishes to approve the form of Agreement and Govt.,:rnmental Unit Note and to authorize the officers and employees of the Borrower to take all action necessary to obtain the proceeds of the Loan and complete the financing of the projec~; in the manner contemplated by the Agreement. NOW, THEREFORE, BE IT RESOLVED, by the Mayor and city Commission of the City of Miami Beac~, Florida, as follows: co ..... .. M ..... ..... ..... :z: ::::l '"") M ~ ~ ..... 0- ~ 0- 'l"4 0- N " M 0- ~ I t{I, S 11 , ., ~ft: I 5945rG40 18 section 1. DEFINITIONS. Terms defined in the preambles hereof shall have the meanings set forth therein. All capitalized terms used herein which are defined in the Loan Agreement shall have the meanings assigned thereto in the Loan Agreement, unless the context affirmatively requires otherwise. section 2. declared that: FINDINGS. It is hereby found, determined and (A) The Project identified in the attached Loan Agreement constitute capital projects within the meaning of the Act, and the acquisi tion and construction of such proj ect is necessary and desirable, is in the public interest and will serve a proper public purpose. (B) It is necessary and desirable and in the public interest that the Project be constructed at the earliest possible time; however, the Borrower does not have the resources necessary to pay for such project from currently available revenues. (C) The financing of the costs of the Project from funds borrowed from the Program is in the best interest of the public and will enable the Borrower to complete the Project in a timely manner to meet the current public need. (D) The Borrower has arranged to receive Pledged Revenues sufficient to pay the principal and interest and all other amounts payable with respect to the Loan and the Governmental Unit Note. (E) The Pledged Revenues are not pledged, encumbered or hypothecated by any resolution, agreement, indenture, ordinance or other instrument to which the Borrower is a party or by which it is bound, except as otherwise set forth in the Loan Agreement. section 3. PROJECT FINANCING AUTHORIZED. The financing of the Project, as described herein, in the manner provided in the Loan Agreement is hereby authorized and approved, in the amount set forth in the title hereof. section 4. APPROVAL OF LOAN APPLICATION. The Borrower hereby ratifies and approves the Loan Application with respect to the Program filed with the Mayor of the City of Gulf Breeze, Florida, as Administrator, and Sun Bank, National Association, as Trustee under the Program. section 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement in substantially the form attached hereto as Exhibit itA," including the Governmental Unit Note attached thereto, with such changes, alterations and corrections as may be approved by the Mayor of the Borrower, such approval to be presumed by his or her execution thereof, is hereby approved by the Borrower, and the Borrower hereby authorized and directs said Mayor to execute, and the city Clerk of the Borrower to attest under the seal of the Borrower, the Loan Agreement and the Governmental Unit Note and to deliver to the Administrator and Sun Bank, National Association, as Trustee, the Loan Agreement and the Governmental Unit Note, all of the provision of which, when executed and delivered by the Borrower as authorized herein and by the Administrator and the Trustee duly authorized, shall be deemed to be part of this instrument as fully and to the same extent as if incorporated verbatim herein. section 6. ISSUANCE OF GOVERNMENTAL UNIT NOTE; SECURITY. The Loan shall be evidenced by the Governmental Unit Note, issued in the amount set fort in the title hereof. The Mayor of the Borrower and the city Clerk to the Borrower are hereby authorized to issue and deliver the Governmental Unit Note against receipt of 2 11 " '" ~ft 15945r~40 19 the proceeds of the Loan as provided. in the Agreement. The Governmental Unit Note shall have such terms and provisions, shall bear interest at such rates, adjusted in such manner and payable at such times, and shall mature in such amounts on such dates, all as are set forth int he Loan Agreement. Upon issuance, the Governmental Unit Note shall be secured by a lien upon and pledge of the Pledged Revenues. The Borrower hereby pledges, and grants a lien upon, the Pledged Revenues, in favor of the Governmental unit Note, all in the manner set forth in the Loan Agreement and the Governmental unit Note. Neither the Loan nor the Governmental unit Note shall be a general obligation of the Borrower, or a pledge of its faith, credit or taxing power within the meaning of any constitutional or statutory provision or limitations, but shall be payable solely from the Pledged Revenues as provided in the Loan Agreement and Governmental unit Note. The Borrower shall not be obligated to exercise its taxing power to pay the principle of the Loan and the Governmental unit Note, the interest thereon or other payments or costs incident thereto. section 7. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Loan Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the Borrower or its governing body in his individual capacity, and neither the members of the city commission of the Borrower nor any official executing the Loan Agreement or Governmental Unit Note shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. section 8. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Loan Agreement otherwise expressly provided, nothing in this instrument or in the Loan Agreement, expressed or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Borrower, the Administrator, Financial Guaranty Insurance Company (the "Credit Facility Issuer"), the city of Gulf Breeze, Florida, and the Trustee any rights, remedy or claim, legal or equitable, under and by reason of the instrument or any provision thereof or of the Loan Agreement, this instrument and the Loan Agreement intended to be and being for the sole and exclusive benefit of the Borrower, the Administrator, the Credit Facility Issuer, the City of Gulf Breeze, Florida, and the Trustee. section 9. PREREQUISITES PERFORMED. All acts, conditions and things relating to the passage of this instrument, to the execution of the Loan Application, to the execution of the Loan Agreement and the Governmental Unit Note required by the Constitution or laws of the state of Florida to happen, exist, and be performed precedent to and in the passage hereof, and precedent to the execution of the Loan Application, and precedent to the execution and delivery of the Loan Agreement and the Governmental Unit Note will, upon adoption of this Resolution have happened, exist and have been performed as so required. section 10. GENERAL AUTHORITY. The members of the City Commission of the Borrower and the Borrowerls officers, attorneys, engineers or other agents or employees are hereby authorized to do all acts and things required of them by this instrument, the Loan Application, the Loan Agreement or the Governmental Unit Note, or desirable or consistent with the requirements hereof or the Loan Application, the Loan Agreement or Governmental Unit Note, for the full, punctual and complete performance of all the terms, covenants and agreements, contained in the Loan ~pplication, the Loan Agreement, t~e Governmental Unit Note, and this instrument. section 11. THIS INSTRUMENT CONSTITUTES A CONTRACT. The Borrower covenants and agrees that this Resolution shall constitute a contract between the Borrower and the owners from time to time of the Governmental Unit Note and that all covenants and agreements set forth herein and in the Loan Agreement and the Governmental 3 . , "to I .. ~ff: r 5g4Sf~4020 unit Note to be performed by the Borrower shall be for equal and ratable benefit and security of all owners of the Governmental Unit Note. Section 12. RESOLUTION TO CONSTITUTE INTERLOCAL AGREEMENT. This Resolution, together with the Loan Application, Loan Agreement and the Governmental Unit Note incorporated by reference herein, shall be deemed to be an Interlocal Agreement with the city of Gulf Breeze, Florida, within the meaning of Chapter 163, Part 1, Florida statutes, and shall be filed of record in accordance with the provisions of the Florida Interlocal cooperation Law upon acceptance of the Loan Agreement by the Administration; that is, it shall be filed with the Clerk of the Circuit Court for Santa Rosa County and the Clerk of the Circuit Court for Dade County. section 13. SEVERABILITY OF INVALID PROVISIONS. I f anyone or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reasons whatsoever be held invalid, then such covenants, agreements or provisions shall .be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof or of the Loan Application, Loan Agreement or Governmental unit Note. section 14. NEGOTIATED SALE NECESSARY. It is hereby found, as~ertained, determined and declared by the Borrower that negotiated borrowing under the Program is in the best interest of the Issuer and is found to be necessary on the basis of the following reasons as to which specific findings are hereby made: (1) A competitive sale of the Governmental unit Note would in all probability not produce better terms than a negotiated sale particularly in view of the time of such an offering and the current instability of the bond market. (2) The Program offers borrowing at lower rates than those which the Borrower could command in the market, since the Program is the sole source of tax-exempt funds available to the Borrower for financing the project. section 15. AUTHORIZATION OF ALL OTHER NECESSARY ACTION. The Mayor, City Clerk, City Finance Director, and City Manager of the Borrower (individually an "Authorized Officer" of the Borrower), the city Attorney to the Borrower, the city Attorney to the City of Gulf Breeze, Florida, and Miller, Canfield, Paddock and Stone & Lott, P.A. bond counsel for the city of Gulf Breeze, Florida, are designated agents of the Borrower in connection with the issuance and delivery of the Governmental unit Note and are authorized and empowered, collectively or individually, to take all actions and steps necessary to execute and deliver any and all instruments, documents or contracts on behal f of the Borrower which are necessary or desirable in connection with the execution and delivery of the Governmental unit Note or the Loan Agreement and which are not inconsistent with the terms and provisions of this resolution and other actions relating to the Governmental unit Note or the Loan Agreement heretofore taken by the Borrower. 4 '" ~ . '" . , . . ~k~: 1594sr~4021 section 16. REPEALING CLAUSE. thereof of the Borrower in conflict contained are, to the extent of such and repealed. All resolutions or parts w{th the provisions herein conflict, hereby superseded section 17. EFFECTIVE DATE. effect immediately upon its adoption. Passed and adopted this ~ day of May, 1993. This instrument shall take By: THB ATTEST: ~vtaJ. ~~ city Clerk ~,~, ~;~{): ' .. '~',.'. . .h"'!''''t/;':- \''"ll~''''''", Date ~ . ....:.~~..."fl1/ .... , ~". f_,:. I':~,,", _ ~.-:~ ,'_.. , ~~i~;~f~.?;';' '.O1 .... <"'\'.. \ , ,r("j::Jp-_l '~;\". ( ..~. .~. '.' ni'; . :.<4 '..... ',r','. ~~,....>;.;.,.. . \ . J~" J.o . '" , ;l ,IJI!. ~... . ') . :':-?:~,~~ '0; ,,,:;, ;', _ '1"\ , :.J- ~ ). i'i.'v~':/\ "iQ; " "'Ji>~I.A~;' .",;.:: ., >'. ,..:~:;:~'ttAr. "f."..FLnRfDA <'~)I ;;.COU~ .'ql: DADE: "'. ,.'/ ~,s~RtOHARD E. BROWN, City Clerk of the ""City of Miami Beach, Florida, do hereby certify that the above and foregoing is a true and cor- rect copy of the original thereof on file in this office. FORM APPROVED LEGAL DEPT. By -rc ;> &/- 30 -')3 WITNESS, my hand and the seal of said City thisflZ-day of~ A.D, 19 ~ RICHARD E. BROWN City Clerk of the City of Miami Beach, Florida ~A./~~/A') uJ~ By: Deputy 5