HomeMy WebLinkAbout2000-23966 RESO
RESOLUTION NO. 2000-23966
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT
EXCEEDING $30,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
GENERAL OBLIGATION BONDS TO PAY THE COSTS OF CERTAIN
PROJECTS AS DESCRIBED HEREIN AND CERTAIN COSTS OF
ISSUANCE, BY BORROWING FUNDS FROM THE GULF BREEZE,
FLORIDA, LOCAL GOVERNMENT LOAN POOL PROGRAM PURSUANT
TO TWO LOANS THEREUNDER; AUTHORIZING THE EXECUTION AND
DELIVERY OF LOAN AGREEMENTS; AUTHORIZING THE EXECUTION
AND DELIVERY OF FIXED RATE NOTES TO EVIDENCE THE
OBLIGATION OF THE CITY TO REPAY SUCH LOANS; PROVIDING
SECURITY FOR THE REPAYMENT OF THE LOANS AND THE NOTES;
DELEGATING CERTAIN MATTERS TO THE MAYOR; AUTHORIZING
THE EXECUTION AND DELIVERY OF CONTINUING DISCLOSURE
CERTIFICATES; AUTHORIZING OTHER MATTERS PERTAINING TO THE
LOANS AND THE FINANCING PROGRAM; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on September 17,1999, the Mayor and City Commission (collectively, the
"Commission") of the City of Miami Beach, Florida (the "City") adopted Resolution No. 99-
23299 calling for a special election on November 2, 1999 to submit to the electorate ofthe City a
bond referendum to decide whether the City should be authorized to issue not exceeding
$9,720,000 in principal amount of general obligation bonds (the "Fire Safety General
Obligations") to renovate, expand and improve fire stations and related facilities located in the
City and acquire and equip fire trucks (the "Fire Safety Projects"); and
WHEREAS, on September 17, 1999, the Commission also adopted Resolution No. 99-
23300 calling for a special election on November 2, 1999 to submit to the electorate ofthe City a
bond referendum to decide whether the City should be authorized to issue not exceeding
$24,830,000 in principal amount of general obligation bonds (the "Parks and Beaches General
Obligations") to improve recreational facilities and equipment, access, security and related
maintenance facilities for parks and beaches located in the City (the "Parks and Beaches
Projects"); and
WHEREAS, on September 17, 1999, the Commission further adopted Resolution No. 99-
23301 calling for a special election on November 2, 1999 to submit to the electorate of the City a
bond referendum to decide wither the City should be authorized to issue not exceeding
$57,915,000 in principal amount of general obligation bonds (the "Neighborhood General
Obligations" and, together with the Fire Safety General Obligations and the Parks and Beaches
General Obligations, the "General Obligations") to improve neighborhood infrastructure in the
City, consisting of streetscapes and traffic calming measures, shoreline stabilization and related
maintenance facilities (together with the Fire Safety Projects and the Parks and Beaches Projects,
the "Project"); and
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WHEREAS, at such special elections on November 2, 1999, the issuance of the General
Obligations was approved by the electorate of the City in accordance with the applicable laws of
the State of Florida (the "State"); and
WHEREAS, pursuant to the Constitution and laws of the State, including, without
limitation, Article VII, Section 12 of the Constitution, Chapter 166, Florida Statutes, as amended,
and the City of Miami Beach Charter (collectively, the "Act"), the City is duly authorized to
issued the General Obligations; and
WHEREAS, the City has determined that it is in the best interest of the City to proceed at
this time with the issuance of not exceeding $30,000,000 in aggregate principal amount of the
General Obligations (the "Series 2000 General Obligations") consisting of (i) not exceeding
$9,030,000 in principal amount of the Fire Safety General Obligations, (ii) not exceeding
$9,230,000 in principal amount of the Parks and Beaches General Obligations, and (iii) not
exceeding $11,740,000 in principal amount of the Neighborhood General Obligations, to pay the
costs of a portion of the Project and certain costs of issuance (the "Financing Program"); and
WHEREAS, the City of Gulf Breeze, Florida (the "Sponsor"), has established a loan pool
program (the "Program") for the purpose of financing and refinancing certain projects of
participating local governmental entities situated in the State; and
WHEREAS, the City has determined that it is financially beneficial to issue the Series
2000 General Obligations by borrowing funds from the Program pursuant to two loans to be
made by the Sponsor to the City thereunder (each a "Loan" and collectively, the "Loans"); and
WHEREAS, the City wishes to provide for certain of the terms of the Loans and to
delegate certain terms and other matters in connection with the Loans to the Mayor of the City,
or in his absence, the Vice Mayor of the City (collectively, the "Mayor"); and
WHEREAS, to evidence its obligation to repay the Loans, the City will execute and
deliver with respect to each Loan a Loan Agreement (each a "Loan Agreement" and collectively,
the "Loan Agreements") and a fixed rate note (each a "Governmental Unit Note" and
collectively, the "Governmental Unit Notes"); and
WHEREAS, to repay the Loans, the City wishes to (i) pledge its full faith, credit and
taxing power with respect to the payment of the principal of and interest thereon, and (ii)
covenant to budget and appropriate Non-Ad Valorem Revenues with respect to the payment of
Additional Loan Charges (as said terms are defined in the Loan Agreements), all in accordance
with and subject to the limitations contained in the Loan Agreements and the Governmental Unit
Notes; and
WHEREAS, the City wishes to approve the forms of Loan Agreements, Governmental
Unit Notes and Participating Governmental Unit Continuing Disclosure Certificates to be
executed and delivered by the City in connection with the Loans (each a "Continuing Disclosure
Certificate" and collectively, the "Continuing Disclosure Certificates");
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NOW, THEREFORE, BE IT DUL Y RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. DEFINITIONS.
Terms defined in the preambles shall have the meanings set forth in such preambles. All
capitalized terms used in this Resolution which are defined in the Loan Agreements shall have
the meanings assigned in the Loan Agreements, unless the context affirmatively requires
otherwise.
SECTION 2. FINDINGS.
The preambles are incorporated as findings. In addition, it is found, determined and
declared that:
(A) The issuance of the Series 2000 General Obligations and the Financing
Program are permitted under the Act, are necessary and desirable, are in the public interest and
will serve a proper public purpose.
(B) The issuance of the Series 2000 General Obligations by borrowing funds
from the Program pursuant to the Loans will enable the City to complete the Financing Program
in a financially beneficial and timely manner.
(C) In accordance with Section 218.385, Florida Statutes, as amended, a
negotiated borrowing under the Program is in the best interest of the City (rather than a sale
through competitive bidding) because the Program offers (i) borrowing at lower costs than those
which the City could command in the market and (ii) flexibility of financing which could not be
obtained in a sale through competitive bidding.
SECTION 3. SERIES 2000 GENERAL OBLIGATIONS AND LOANS
AUTHORIZED.
The issuance of the Series 2000 General Obligations in an aggregate principal amount of
not exceeding $30,000,000 to finance the Financing Program by borrowing funds from the
Program pursuant to the Loans, all as described in this Resolution and in the manner provided in
the Loan Agreements, is hereby authorized and approved. The Series 2000 General Obligations
shall consist of (i) not exceeding $9,030,000 in principal amount of the Fire Safety General
Obligations, (ii) not exceeding $9,230,000 in principal amount of the Parks and Beaches General
Obligations, and (iii) not exceeding $11,740,000 in principal amount of the Neighborhood
General Obligations. Each Loan shall represent the issuance of such Series 2000 General
Obligations, shall be in such principal amount, shall bear interest at such rate and payable at such
times, shall mature and be subject to prepayment on such dates and in such amounts and shall
have such other terms as shall be approved by the Mayor, after consultation with the Finance
Director of the City (the "Finance Director"), and set forth in the respective Loan Agreement and
Governmental Unit Note.
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SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN
AGREEMENTS.
The Loan Agreements, in substantially the forms attached as Exhibit "A" to this
Resolution, with such changes, alterations and corrections as may be approved by the Mayor,
after consultation with the Finance Director and the City Attorney of the City (the "City
Attorney"), such approval to be presumed by the execution by the Mayor of the Loan
Agreements, are approved by the City. The City authorizes and directs the Mayor to execute and
the City Clerk or Deputy City Clerk of the City (collectively, the "City Clerk") to attest under the
seal of the City the Loan Agreements and to deliver the same to the Administrator and SunTrust
Bank, as Trustee.
SECTION 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF
GOVERNMENTAL UNIT NOTES.
Each Loan shall be evidenced by a Governmental Unit Note issued in an amount equal to
the principal amount of such Loan. The Governmental Unit Notes, in substantially the forms
attached to the Loan Agreements, in Exhibit "A" to this Resolution, with such changes,
alterations and corrections as may be approved by the Mayor, after consultation with the Finance
Director and the City Attorney, such approval to be presumed by the execution by the Mayor of
the Governmental Unit Notes, are approved by the City. The City authorizes and directs the
Mayor to execute and the City Clerk to attest under the seal of the City the Governmental Unit
Notes and to issue and deliver the Governmental Unit Notes.
SECTION 6. SECURITY FOR THE LOANS.
A. In each Fiscal year while the Governmental Unit Notes are outstanding, there
shall be assessed, levied and collected a tax, without limitation as to rate or amount, on all
taxable property within the corporate limits of the City (excluding exemptions as provided by
applicable law), in addition to all other taxes, sufficient in amount to pay the principal of and
interest on the Governmental Unit Notes as the same shall become due. The tax assessed, levied
and collected for the security and payment of the principal of and interest on the Governmental
Unit Notes shall be assessed, levied and collected in the same manner and at the same time as
other taxes are assessed, levied and collected and the proceeds of said tax shall be applied solely
to the payment of the principal of and interest on the Governmental Unit Notes. On or before
each interest or principal payment date for the Governmental Unit Notes, the City shall pay to
the Trustee an amount sufficient to pay the principal of and interest on the Governmental Unit
Notes then due and payable. The full faith, credit and taxing power of the City are hereby
irrevocably pledged to the punctual payment of the principal of and interest on the Governmental
Unit Notes as the same shall become due and payable.
B. The Additional Loan Charges shall be special and limited obligations of the City
payable solely from Non-Ad Valorem Revenues, in accordance with and subject to the
limitations contained in the Loan Agreements and the Governmental Unit Notes. The City shall
not be obligated to exercise its taxing power to pay Additional Loan Charges.˜
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SECTION 7. CONTINUING DISCLOSURE CERTIFICATES.
The Continuing Disclosure Certificates, in substantially the forms attached as Exhibit "B"
to this Resolution, with such changes, alterations and corrections as may be approved by the
Finance Director, after consultation with the City Attorney, such approval to be presumed by the
execution by the Finance Director of the Continuing Disclosure Certificates, are approved by the
City. The City authorizes and directs the Finance Director to execute and deliver the Continuing
Disclosure Certificates.
SECTION 8. NO PERSONAL LIABILITY.
No covenant, stipulation, obligation or agreement contained in this Resolution or in the
Loan Agreements, the Governmental Unit Notes or the Continuing Disclosure Certificates shall
be deemed to be a covenant, stipulation, obligation or agreement of any member, official, officer,
agent or employee of the City or the Commission in its individual capacity, and neither the
members of the Commission nor any officials or officers executing the Loan Agreements, the
Governmental Unit Notes or the Continuing Disclosure Certificates shall be liable personally or
be subject to any personal liability or accountability.
SECTION 9. NO THIRD PARTY BENEFICIARIES.
Except as provided in this Resolution or in the Loan Agreements, the Governmental Unit
Notes or the Continuing Disclosure Certificates otherwise expressly provided, nothing in this
Resolution or in such documents, expressed or implied, is intended or shall be construed to
confer upon any person, firm or corporation other than the City, the Administrator, Financial
Guaranty Insurance Company (the "Credit Facility Issuer"), the Sponsor, the Trustee and, with
respect to the Continuing Disclosure Certificates, the other parties described in said document,
any rights, remedy or claim, legal or equitable, under and by reason of this Resolution or such
documents, this Resolution and such documents intended to be and being for the sole and
exclusive benefit of the City, the Administrator, the Credit Facility Issuer, the Sponsor, the
Trustee and, with respect to the Continuing Disclosure Certificates, the other parties described in
said document.
SECTION 10. PREREQUISITES PERFORMED.
All acts, conditions and things relating to the adoption of this Resolution or to the
execution and delivery of the Loan Agreements, the Governmental Unit Notes and the
Continuing Disclosure Certificates required by the Constitution or laws of the State to happen,
exist and be performed precedent to and in the adoption of this Resolution, and precedent to the
execution and delivery of the Loan Agreements, the Governmental Unit Notes and the
Continuing Disclosure Certificates will have happened, exist and have been performed as so
required.
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SECTION 11. GENERAL AUTHORITY.
The City's officials, officers, attorneys, agents and employees are authorized to do all
acts and things and execute and deliver any and all documents necessary by this Resolution, the
Loan Agreements, the Governmental Unit Notes or the Continuing Disclosure Certificates, or
desirable or consistent with the requirements of this Resolution, the Loan Agreements, the
Governmental Unit Notes or the Continuing Disclosure Certificates, in order to obtain the Loan,
accomplish the Financing Program and provide for the full, punctual and complete performance
of all the terms, covenants and agreements contained in the Loan Agreements, the Governmental
Unit Notes, the Continuing Disclosure Certificates and this Resolution.
SECTION 12. RESOLUTION CONSTITUTES A CONTRACT.
The City covenants and agrees that this Resolution shall constitute a contract between the
City and the owners from time to time of the Governmental Unit Notes and that all covenants
and agreements set forth in this Resolution and in the Loan Agreement and the Governmental
Unit Notes to be performed by the City shall be for the equal and ratable benefit and security of
all owners ofthe Governmental Unit Notes.
SECTION 13. RESOLUTION TO CONSTITUTE INTERLOCAL AGREEMENT.
This Resolution, together with the Loan Agreements and the Governmental Unit Notes,
shall be deemed to be an Interlocal Agreement with the Sponsor, within the meaning of Chapter
163, Part I, Florida Statutes, as amended, and shall be filed of record, in accordance with the
provisions of said Chapter 163, Part I, Florida Statutes, as amended, upon acceptance of the Loan
Agreements by the Administrator; 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 Miami-Dade County.
SECTION 14. SEVERABILITY OF INV AUD PROVISIONS.
If anyone or more of the covenants, agreements or provisions contained in this
Resolution shall be held contrary to any express provisions of law or contrary to the policy of
express law, though not expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void
and shall be deemed separable from the remaining covenants, agreements or provisions and shall
in no way affect the validity of any of the other provisions of this Resolution or of the Loan
Agreements, the Governmental Unit Notes or the Continuing Disclosure Certificates.
SECTION 15. REPEALING CLAUSE.
All resolutions or parts of such resolutions of the City in conflict with the provisions
contained in this Resolution are, to the extent of such conflict, superseded and repealed.
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SECTION 16. EFFECTIVE DATE.
This Resolution shall become effective immediately upon adoption.
PASSED AND ADOPTED this 23rd day of June
,2000.
ff
Mayor
Attest:
~lA 6 f cf{ i0J"---
City Clerk
APPROVED AS TO
FORM & LANGUAGE
"FOR EXECUTION
/fA/ JkfnOj,fj~ l'l/b/(j1)
~ Date
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\,cI.mlaml-beach.n.u8
TO:
FROM:
SUBJECT:
COMMISSION MEMORANDUM NO. 4-1SI---()c)
Mayor Neisen O. Kasdin and DATE: June 23, 2000
Members of the City Commission
Lawrence A. ~evY ~
City Manager
A RESOLUTI N OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF
NOT EXCEEDING $30,000,000 IN AGGREGA TE PRINCIPAL AMOUNT OF
GENERAL OBLIGATION BONDS TO PAY THE COSTS OF CERTAIN
PROJECTS AS DESCRIBED HEREIN AND CERTAIN COSTS OF
ISSUANCE, BY BORROWING FUNDS FROM THE GULF BREEZE,
FLORIDA, LOCAL GOVERNMENT LOAN POOL PROGRAM PURSUANT
TO TWO LOANS THEREUNDER; AUTHORIZING THE EXECUTION AND
DELIVERY OF LOAN AGREEMENTS; AUTHORIZING THE EXECUTION
AND DELIVERY OF FIXED RATE NOTES TO EVIDENCE THE
OBLIGATION OF THE CITY TO REPAY SUCH LOANS; PROVIDING
SECURITY FOR THE REPAYMENT OF THE LOANS AND THE NOTES;
DELEGA TING CERTAIN MATTERS TO THE MAYOR; AUTHORIZING
THE EXECUTION AND DELIVERY OF CONTINUING DISCLOSURE
CERTIFICATES; AUTHORIZING OTHER MATTERS PERTAINING TO
THE LOANS AND THE FINANCING PROGRAM; AND PROVIDING FOR
AN EFFECTIVE DATE.
ADMINISTRA TION RECOMMENDATION:
Adopt the Resolution.
ANALYSIS:
On November 2, 1999, the electorate of the City of Miami Beach approved the issuance of
$92,465,000 of general obligation bonds, consisting of (i) $9,720,000 for acquisition offire trucks,
and renovation, expansion and improvements to fire stations and related facilities, (ii) $57,915,000
for improvements to neighborhood infrastructure, and (iii) $24,830,000 for improvements to parks
and beaches.
On January 12,2000, the Mayor and City Commission approved a Resolution which declared their
official intent to issue General Obligation Bonds (the "Bonds") in an aggregate principal amount of
$92,465,000, in one or more series, and that a portion of the proceeds of which will, to the extent
permissible, be used to reimburse the City for funds advanced by it for expenses incurred and to be
incurred with respect to the Project.
Agenda Item ~
I
G-~3--DD
Date
On April 12, 2000 the Finance and Citywide Projects Committee approved the Administration's
recommendation to issue the first $30 million of the Bonds by borrowing funds from the Gulf Breeze,
Florida, Local Government Loan Pool Program ("Gulf Breeze Loan Pool ") and directed the Finance
Director to pursue this loan.
It is recommended that the Mayor and City Commission approve the issuance of the first $30 million
of the Bonds by borrowing funds from the Gulf Breeze Loan Pool. The Gulf Breeze Loan Pool has
proposed to provide 20 year fixed rate financing to the City and to pay for all issuance costs except
for the review by the City's Bond Counsel. The issuance costs include: the Gulf Breeze bond
counsel fees and expenses, the underwriters fees, the FGIC bond insurance premium, the Gulf Breeze
tax counsel fees, the Gulf Breeze disclosure counsel, printing costs, rating agency fees, and trustee
fees. By borrowing from the Gulf Breeze Loan Pool, the City will save these costs and as a result,
a greater portion of the authorized funding will be available for the Projects.
Specifically, the loans will fund projects and costs as follows: $9,030,000 for acquisition of fire
trucks, and renovation, expansion and improvements to fire stations and related facilities; $9,230,000
for improvements to recreational and maintenance facilities for parks and beaches and $11, 740,000
for improvements to neighborhood infrastructure and related maintenance facilities. The Gulf Breeze
Loan Pool will provide the funding for these loans by converting a portion of their outstanding
Floating Rate Demand Revenue Bonds Series 1985 B and Series 1985 E to Fixed Rate Revenue
Bonds. The Loan Agreement and Continuing Disclosure Certificate relating to each borrowing is
included as an exhibit to the attached Resolution.
The loans will be repaid through the assessment, levy and collection of ad valorem tax on all taxable
property within the City and the full faith, credit and taxing power of the City will be pledged to the
payment of the principal and interest of the loans. Any additional costs and expenses of the Program
which may arise will be paid from non-ad valorem revenues.
L~
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EXHIBIT "A"
LOAN AGREEMENTS
(including Governmental Unit Notes)
A-I
LOAN AGREEMENT
dated as of June 1, 2000
Among
CITY OF GULF BREEZE, FLORIDA
(the "Sponsor")
and
SUNTRUSTBANK,ORLANDO,FLORIDA
(the "Trustee")
and
CITY OF MIAMI BEACH, FLORIDA
(the "Govemmental Unit")
relating to:
CITY OF GULF BREEZE, FLORIDA
LOCAL GOVERNMENT LOAN PROGRAM, SERIES 1985 B
(CITY OF MIAMI BEACH PROJECT)
MCL-05/ 17/00
Rev-05/25/00
Rev: 05/30/00
Rev 06/13/00
Rev: 06/15/00-6439-1a
I
ARTICLE I............................................... ...................................................................................................................1
TABLE OF CONTENTS
SECTION 1.1
SECTION 1.2
SECTION 1.3
SECTION 1.4
SECTION 1.5
BACKGROUND ... ..... ..... .......... ........ ................................................... .................................... ......... 1
REPRESENTATIONS OF THE GOVERNMENTAL UNIT. ..................................................................... 2
SPONSOR REPRESENTATIONS AND COVENANTS............................................................................ 5
ADMINISTRATOR REPRESENTATIONS. ................................................................................. .......... 6
TRUSTEE REPRESENTATIONS. .......................................................................................... .............. 6
SECTION 2.1
AR TI CLE II ................................................................................................................................................................ 7
DEFINITIONS. ................................................................................................................. ...... .......... 7
AR TI CLE III ............................................................................................................................................................ 10
SECTION 3.1
SECTION 3.2
SECTION 3.3
SECTION 3.4
SECTION 3.5
SECTION 3.6
SECTION 3.7
SECTION 3.8
SECTION 3.9
SECTION 3.10
SECTION 3.11
SECTION 3.12
MAKING OF LOAN; ApPLICATION OF LOAN PROCEEDS. ............................................................. 10
DISBURSEMENT OF LOAN; SECURITY INTEREST IN UNDISBURSED PROCEEDS. ........................... 10
REPAYMENT OF LOAN. ............................................................................................................... 11
PREPAYMENT OF LOAN. ................ .......................................................... .................................... 13
RESERVE BONDS. .................................................. ................... ................................................... 14
GENERAL OBLIGATION OF GOVERNMENTAL UNIT TO PAY PRINCIPAL AND
INTEREST; SPECIAL OBLIGATION TO PAY ADDITIONAL LOAN CHARGES. ................................... 15
BENEFIT OF BONDHOLDERS AND ENHANCEMENT PROVIDER; COOPERATION
BETWEEN PARTIES. ..................................................................................................................... 18
BONDS NOT To BECOME ARBITRAGE BONDS. ............................................................................ 18
ASSIGNMENT OF SPONSOR'S RIGHTS. ......................................................................................... 18
COVENANT REGARDING PLEDGED FUNDS; REVENUE FUND; SINKING FUND. ............................. 19
AL TERNA TE SECURITY FOR GOVERNMENTAL UNIT NOTE. ......................................................... 20
INTERLOCAL AGREEMENT. ......................................................................................................... 20
AR TI CLE IV ............................................................................................................................................................. 22
SECTION 4.1
SECTION 4.2
SECTION 4.3
SECTION 4.4
SECTION 4.5
REpORTS AND OPINIONS; INSPECTIONS. ..................................................................................... 22
IMMUNITY OF SPONSOR. ............................................................................................................. 23
COMPLIANCE WITH LA WS. .......................................................................................................... 23
RESERVED. .................................................................................................................................. 23
RESERVED. .................................................................................................................................. 23
ARTICLE V .............................................................................................................................................................. 24
SECTION 5.1
SECTION 5.2
SECTION 5.3
SECTION 5.4
SECTION 5.5
SECTION 5.6
SECTION 5.7
EVENTS OF DEF A UL T. ................................................................................................................. 24
No ACCELERATION. .................................................................................................................... 25
PAYMENT OF LOAN ON DEFAULT; SUIT THEREFOR.................................................................... 25
OTHER REMEDIES................................................................................................................ ........ 26
CUMULATIVE RIGHTS. ....................................................................................................... ...... .... 27
DISCONTINUANCE OF PROCEEDS. ........................................................................................ ....... 27
NOTICE OF DEFAULT. ....................................................................................... ....................... ... 27
AR TI CLE VI ............................................................................................................................................................. 28
SECTION 6.1
SECTION 6.2
SECTION 6.3
SECTION 6.4
SECTION 6.5
SECTION 6.6
SECTION 6.7
SECTION 6.8
SECTION 6.9
SECTION 6.10
MCL-05/17/00
Rev-05/25/00
Rev: 05/30/00
Rev 06/13/00
Rev: 06/15/00-6439-la
LIMITATION OF LIABILITY. .........................................................................................................28
No PERSONAL RECOURSE. ................................................................................................ .......... 28
NOTICES. .................... .... ........................................................................... .................................. 28
ILLEGAL OR INVALID PROVISIONS DISREGARDED. .....................................................................29
ApPLICABLE LAW. ......... ......... ....... .................. ... ....................... ........................................ .......... 29
ASSIGNMENTS. ............................................ ... ....................................................................... ...... 29
AMENDMENTS. ............................................................................................................................ 29
TERM OF AGREEMENT. ............................................................................................................... 30
HEADINGS. ............. ....... .................................................. ................... ......................................... 30
NOTICE OF EXPECTATION OF OBLIGATION TO MAKE CERTAIN PAyMENTS................................. 30
SECTION 6.11
SECTION 6.12
ENTIRE AGREEMENT. . ..... ... ... ... ..... ............. .......................................................... ........... .... .... .... 30
LIMITATION OF INVESTMENT EARNINGS CREDIT. ....................................................................... 30
EXHIBIT A ............................................................................................................................................................... 37
SCHEDULE "I" .................. ...................................................................................................................................... 42
MCL-05/17/00
Rev-05/25/00
Rev: 05/30/00
Rev 06/13/00
Rev: 06/1S/00-6439-1a
-11-
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of June 1, 2000, between SUNTRUST
BANK, ORLANDO, FLORIDA, as Trustee (the "Trustee") for the holders of the Bonds
(as defmed 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 "Govemmental 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 Govemment Loan Program Floating Rate Demand Revenue Bonds, Series 1985
B (the "Bonds") the proceeds of which are to be used for the purpose of fmancing and
refmancing the cost of the acquisition and installation by "Govemmental Units", as
hereinafter defmed, 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 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
Govemmental Units for the fmancing or refmancing 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 defined in the Indenture hereinafter referred to as the
"Credit Facility").e
MCL-05/ 17/00
Rev-05/25/00
Rev: 05/30/00
Rev 06/13/00
Rev: 06/15/00-6439-la
(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
December 1, 1991, with Credit Locale de France, New York Agency (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
$ for the purposes of financing the cost of acquisition and construction of
certain capital improvements for the Govemmental Unit (the "Project") and paying the
costs associated therewith, which shall hereinafter be referred to collectively as the
"Financing Program."
(h) As evidence of the Loan made pursuant to this Loan Agreement, the
Govemmental Unit will execute and deliver a fixed rate note in the principal amount of
the Loan in the form attached hereto as Exhibit "A" (the "Govemmental Unit Note").
As security for the Bonds, the Sponsor is assigning to the Trustee all its right, title and
interest in the Govemmental Unit Note and this Loan Agreement (except for the rights
reserved by the Sponsor as described in Section 3.9 hereof). Pursuant to the
Indenture, the Govemmental Unit Note and this Loan Agreement may be assigned by
the Trustee to the Credit Facility Issuer under the circumstances set forth therein.
(i) The amount of Bonds required by the Indenture to be converted to the
Fixed Rate Mode has been converted (the "Converted Bonds") to a Fixed Rate Mode for
Fixed Rate Periods as required by the Indenture.
U) The proceeds of the Loan shall be applied as provided herein to
accomplish the Financing Program.
SECTION 1.2
REPRESENTATIONS OF THE GoVERNMENTAL UNIT.
(a) The Govemmental Unit is a municipal corporation of the State of Florida,
with full power and legal right to enter into this Loan Agreement and perform its
obligations hereunder, and to fmance the Financing Program in the manner
contemplated herein. The Govemmental Unit's actions in making and performing this
Loan 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, govemmental rule or regulation, or with any
agreement, instrument or other document by which the Govemmental 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 Financing Program.
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(c) The proceeds of the Loan will be applied to pay the cost of the Financing
Program. 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 defmed 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.
(e) On September 17, 1999, the Mayor and City Commission of the
Governmental Unit (the "Commission") adopted resolutions calling for referendums
relating to the issuance of (i) not to exceed $57,915,000 of the Governmental Unit's
general obligation bonds for improvements to neighborhood infrastructure (the
"Neighborhood G.O.'s"), (ii) not to exceed $24,830,000 of the Governmental Unit's
general obligation bonds for improvements to parks and beaches (the "Parks G.O.'s")
and (iii) not to exceed $9,720,000 of the Governmental Unit's general obligation bonds
for improvements to fire stations and related facilities and to acquire and equip fire
trucks (the "Fire Safety G.O.'s" and together with the Neighborhood G.O.'s and the
Parks G.O.'s, the "G.O.'s"). An election was held on November 2, 1999 at which the
issuance of the G.O.'s was approved by the electorate of the Governmental Unit (the
"Referendum Approvals").
(f) The Governmental Unit has decided to issue at this time (i)
$ principal amount of the Neighborhood G.O.'s, (ii) $
principal amount of the Parks G.O.'s, and (iii) $ principal amount of
the Fire Safety G.O.'s by entering into the Loan and delivering and executing the
Governmental Unit Note. Simultaneously with the Loan, the Governmental Unit will
enter into a loan agreement (the "Series E Loan Agreement") and issue its Series
1985E Governmental Unit Note for an additional $_ aggregate principal amount of
the G.O.'s, to be funded from the proceeds of the Sponsor's Floating Rate Demand
Revenue Bonds, Series 1985E (the "Series E Loan").
(g) The Governmental Unit is duly authorized and empowered to issue the
Governmental Unit Note, (i) the payment of principal and interest on which is a valid
and enforceable general obligation of the Governmental Unit, and (ii) all payments in
respect of which, other than amounts payable as principal and interest (the
"Additional Loan Charges", as hereinafter defined), are a valid and enforceable special
and limited obligation of the Governmental Unit, payable solely from the Non-Ad
Valorem Revenues in the manner hereinafter provided. The Governmental Unit is
further authorized to pledge the sources hereinafter mentioned to the repayment
thereof in the manner hereinafter provided, and to apply the proceeds thereof to the
payment of the Costs of the Financing Program. The Governmental Unit Note is being
issued pursuant to the Referendum Approvals, the Authorizing Resolution herein
defined and the Constitution and laws of the State of Florida, including, without
limitation, Article VII, Section 12 of the Constitution, Chapter 166, Florida Statutes, as
amended and the City of Miami Beach Charter, as amended.
(h) On June _, 2000, the Governmental Unit duly adopted Resolution _
(the "Authorizing Resolution"), authorizing the Loan, this Loan Agreement and the
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Governmental Unit Note. The terms and provisions of the Authorizing Resolution are
hereby incorporated by reference.
(i) 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.
(j) The Governmental Unit is in compliance with all covenants and
undertakings in connection with the Project.
(k) The Project shall be owned and operated by the Governmental Unit
(subject only to lease or management agreements permitted under Section 4.6(C)
hereof). In addition, any portion of the Project may also be disposed of by the
Governmental Unit in its ordinary course of business, but only upon compliance with
all requirements of Florida law in connection therewith and receipt by the Trustee of a
Favorable Opinion of Bond Counsel. 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 defmed) to pay for other Costs of the Project.
(1) To date, no other bonds, notes or other obligations have been issued
under the authority of, or pursuant to, the Referendum Approvals; and the Pledged
Funds are not pledged or encumbered in any manner, except as provided in this Loan
Agreement and in the Series E Loan Agreement. The Governmental Unit is, and will
be, immediately following the Closing of the Loan hereunder, in full compliance with
all restrictions and covenants and agreements under which it may be obligated,
affecting its right and ability to incur the obligation to pay the Additional Loan
Charges from the Non-Ad Valorem Revenues, and to secure the same, all in the
manner provided herein.
(m) The Governmental Unit is issuing the Governmental Unit Note for the
purpose of implementing the Referendum Approvals and financing the Financing
Program.
(n) All acts, conditions and things required to happen, exist and be
performed, precedent to and in the issuance of the Governmental Unit Note and this
Loan Agreement, have happened, exist, and have been performed in due time, form
and manner as required by the Constitution and laws of the State of Florida applicable
thereto; the total indebtedness of the Governmental Unit, including the Governmental
Unit Note and this Loan Agreement, does not exceed any constitutional, statutory or
charter limitation; and provision has been duly made for the levy and collection of a
direct annual tax, without limitation as to rate or amount, upon all taxable property
within the Governmental Unit (excluding exemptions as provided by law) sufficient to
pay the principal of and interest on the Loan and the Governmental Unit Note as the
same shall become due, which tax shall be levied and collected at the same time, and
in the same manner, as other ad valorem taxes of the Governmental Unit are
assessed, levied and collected. For the prompt payment of the principal of and
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interest, on the Governmental Unit Note and this Loan, the full faith, credit and taxing
power of the Governmental Unit are irrevocably pledged; provided that such pledge of
the full faith, credit and taxing power shall not extend to the payment hereunder of
the Additional Loan Charges. The obligation of the Governmental Unit to pay the
Additional Loan Charges is a special, limited obligation of the Governmental Unit,
payable solely from the Non-Ad Valorem Revenues as herein provided.
SECTION 1.3
SPONSOR REPRESENTATIONS AND COVENANTS.
(a) The Sponsor hereby represents:
(i) The Sponsor is a municipal corporation of the State of Florida duly
existing with full power and authority to issue the Bonds and to enter into this Loan
Agreement and to make the Loan herein contemplated.
(ii) By proper action the Sponsor has duly authorized the issuance
and sale of the Bonds and the execution and delivery of this Loan 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.
(ill) The Sponsor is not m default under any provision of the
Indenture, and no "Event of Default" as defmed 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.
(iv) 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.
(v) This Loan 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, 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 this Loan Agreement and the performance thereof, by the Sponsor, have been
completed.
(vi) 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.
(vii) The Sponsor will make no other Loans funded with proceeds of the
Bonds without obtaining a Favorable Opinion of Bond Counsel.
(viii) The funding of the Loan for the Project will not adversely affect the
income tax status of the interest on the Bonds.
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(ix) There are no Increased Costs outstanding as of the date hereof.
(x) There are currently no outstanding Non-Asset Bonds.
(b) The Sponsor covenants to require all Govemmental Units to whom Loans
are hereafter made to become liable for a Pro-Rata Share of the Non-Asset Bonds and
Costs and Expenses of the Program then outstanding or thereafter arising.
SECTION 1.4
ADMINISTRATOR REpRESENTATIONS.
The Administrator represents that he has duly authorized the execution and
delivery of this Loan 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 Govemment 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.
The Trustee represents that it is a state bank organized under the laws of
Georgia duly existing, and with full power and authority to enter into this Loan
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 Loan Agreement and the Indenture.
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ARTICLE n
DEFINITIONS
SECTION 2.1
DEFINITIONS.
The capitalized terms used in this Loan Agreement which are defmed 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 defined as follows:
"Additional Loan Charges" shall mean all amounts payable by the
Governmental Unit hereunder or under the Governmental Unit Note other than
amounts which constitute principal or interest on the Loan, including, without
limitation, the Reserve Payments and Costs and Expenses of the Program, as provided
in Section 3.3(c) hereof.
"Administrative Expenses" shall mean the portion of the Costs and Expenses
of the Program allocable to the fees of the Administrator, the Independent Contractor
and the Issuer.
"Bonds" shall mean the Sponsor's Local Government Loan Program Floating
Rate Demand Revenue Bonds, Series 1985 B.
"City" means the Governmental Unit.
"Commitment" means the commitment of the Administrator as defmed and
described in Section 1.1 hereof.
"Cost" or "Costs" in connection with the Financing Program, 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 for the
acquisition and 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 this Loan
Agreement, including reimbursement to the Administrator for its out-of-pocket
expenses, and the cost of such other items as may be reasonable and necessary for
the acquisition and/ or construction of the Project.
"Costs and Expenses of the Program" shall mean the reasonable fees, charges
and expenses of the Trustee, and the reasonable expenses of the Sponsor, the Registrar
and Paying Agent, and the Independent Contractor, including the reasonable fees and
expenses of general or special counsel to any of the foregoing or to the Financial Advisor
or the Administrator; provided that the annual administrative fees and charges of the
Sponsor, the Administrator, the Independent Contractor and the Financial Advisor, for
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their services hereunder, exclusive of out-of-pocket expenses and disbursements and
reasonable counsel fees and expenses, shall not be charged to the Governmental Unit.
Further, it is agreed that except for Reserve Payments, as defined herein, and subject to
the provisions of Section 6.12 hereof, the Governmental Unit shall have no liability for
Costs and Expenses of the Program attributable to the fees, charges and expenses of the
Liquidity Facility Issuer and the Remarketing Agent, and no portion of such fees,
charges and expenses of the Liquidity Facility Issuer and the Remarketing Agent shall
be included as Costs and Expenses of the Program for purposes of computing any
payments due from the Governmental Unit on the Loan or the Governmental Unit Note.
The Administrative Expenses of the Program shall be payable solely from earnings on
funds in the Reserve Account under the Indenture and other funds held by the Trustee
for the benefit of the Program, and the Governmental Unit shall never have any liability
therefor under any circumstances.
"Fiscal Year" shall mean the period commencing on October 1 and continuing
to and including the next succeeding September 30 or such other annual period as
may be prescribed by law or by the Governmental Unit in accordance with law.
"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.
"Loan Year" shall mean an annual period commencing on December 2 of each
year and ending on the following December 1.
"Non-Ad Valorem Revenues" shall mean all general fund revenues of the
Governmental Unit derived from any source other than ad valorem taxation on real or
personal property which are legally available to make the payments required under
this Loan Agreement.
"Pledged Funds" shall mean the Revenue Fund and the Sinking Fund created
pursuant to Section 3.10(b) hereof.
"Pledged Revenues" shall mean the portion of the Non-Ad Valorem Revenues
deposited in the Revenue Fund created pursuant to Section 3.10(b) hereof, provided,
however, that prior to deposit of such moneys by the Governmental Unit in to the
Revenue Fund, such moneys shall not constitute "Pledged Revenues".
"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" shall mean the capital improvements to be constructed and/or
acquired by the Governmental Unit in furtherance of the Referendum Approvals.
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"Reserve Payment" shall mean, for any period of calculation: (a) the
Governmental Unit's Pro-Rata Share of principal payments required to be made in
respect of Non-Asset Bonds hereafter arising under the Indenture; (b) the Pro-Rata
Share of interest expense and other Costs and Expenses of the Program (other than
Administrative Expenses) allocable to the Reserve Bonds or incurred pursuant to
Section 3.5(a) hereof; and (c) the Liquidation Shortfall as provided in Section 3.5(b) of
this Loan Agreement. The Governmental Unit shall not be entitled to a reduction of or
credit toward the amount of such fees and expenses that the Governmental Unit shall
be obligated to pay, pursuant to Section 3.3 hereof and Section 404 of the Indenture,
in respect of any investment earnings received on the funds held under the Indenture
provided that the net earnings on the Reserve Bonds (after payment of interest on and
the Costs and Expenses of the Program, including Administrative Expenses relating to
the Reserve Bonds) shall be applied to pay Costs and Expenses of the Program prior to
computing the amount of such Costs and Expenses for which the Governmental Unit
will have responsibility for payment of its Pro-Rata Share. The computation of the
Reserve Payment of the Governmental Unit shall be made assuming full payments will
be timely received in respect of each Loan whether or not the payments thereunder are
actually made or may be discharged in bankruptcy or declared void or unenforceable
for any reason, it being the intention of the parties that no Governmental Unit shall
bear any [mancial obligation arising because of the invalidity of or a default in any
Loan of another Governmental Unit. In calculating the amount of the Governmental
Unit's Reserve 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 semiannual installments over the
lesser of sixty (60) months or the remaining life of the Loan. For purposes of
determining the Governmental Unit's Reserve Payment, 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 Trustee hereunder.
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ARTICLE III
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 Govemmental Unit hereby agrees to borrow and repay the sum of
$ The Loan made hereby shall be repaid in accordance with the
Govemmental Unit Note and Section 3.3 hereof. The Govemmental Unit covenants
that it shall use the proceeds of the Loan solely for the purposes described in Section
1.2(k) 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.
SECTION 3.2 DISBURSEMENT OF LoAN; SECURITY INTEREST IN
UNDISBURSED PROCEEDS.
(a) Following the execution and delivery of this Loan Agreement and the
Governmental Unit Note (the "Closing"), the Trustee shall disburse from moneys other
than proceeds of the Loan 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 to the Expense Account created under the Indenture.
(b) The Governmental Unit agrees to establish and create, and hereby does
establish and create a separate fund of the Governmental Unit to be lmown as the
"Gulf Breeze Pooled Financing Loan Program Series B Loan Proceeds Fund" (the "Loan
Proceeds Fund") which account shall be separate and distinct from all other funds and
accounts of the Governmental Unit. The net proceeds of the Loan shall be disbursed
by the Trustee to the Governmental Unit at closing, and shall be deposited by the
Governmental Unit, immediately upon receipt thereof, into the Loan Proceeds Fund
and applied, together with any income from investment thereof, to pay the Costs of the
Project in accordance with the Referendum Approvals. There shall also be deposited
in the Loan Proceeds Fund the proceeds received by the Govemmental Unit from any
disposition of portions of the Project pursuant to Section 1.2(k) hereof, to the extent
such proceeds are not applied to prepay the Loan.
(c) The Governmental 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 and of the
Financing Program.
(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 Trust Indenture. Any earnings
on the investment of funds on deposit in the Loan Proceeds Fund shall be credited to
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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 Financing Program 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 interest of the Loan shall be paid in semi-annual installments on the
dates, at the rates and in the amounts shown on "Schedule I" attached to the form of
the Governmental Unit Note, which is attached hereto as Exhibit "A". Principal on the
Loan shall be payable in annual installments on the dates and in the amounts shown
on such "Schedule I." In the event the full amount of the Governmental Unit Note is
not disbursed, the payments of principal due thereunder shall be reduced ratably to
reflect such reduction in the principal amount due thereunder, and a new Schedule I
will be calculated by the Administrator. The [mal payments on the Governmental Unit
Note must be made three (3) business days prior to September 1, 2020 with
immediately available funds.
(b) As provided in the Governmental Unit Note, in addition to the above
payments of principal and interest on the Loan, any payment required to be made with
respect to the Loan which is received later than its due date, shall bear interest from
such due date at a rate per annum equal to the higher of the interest on the
Govemmental Unit Note or the Prime Rate, plus two per centum per annum (the
"Default Rate"). Notwithstanding anything otherwise contained in this Loan
Agreement, the interest rate on the Loan and all other amounts payable hereunder
which are treated as interest under applicable laws shall not exceed the maximum
rate per annum permitted by law (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 [mal maturity of the
Govemmental Unit Note or (2) such time as the total amount of interest paid on the
Govemmental 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. All payments made hereunder shall be applied
first to the payment of the Additional Loan Charges, and then to payment of accrued
interest on the unpaid balance hereof at the aforesaid rate, and then to the reduction
of principal hereunder; provided, however, that under no circumstances shall
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Additional Loan Charges be paid from ad valorem taxes levied for the payment of
principal and interest on the Loan.
(c) The Governmental Unit shall also pay all Reserve Payments and its Pro-
Rata share of the Costs and Expenses of the Program. At the Closing, the Costs and
Expenses of the Program currently payable (exclusive of Reserve Payments) consist of
the fees of the Trustee. The Financial Advisor, on behalf of the Sponsor, shall
determine not less often than each January 1 and July 1 the estimated Reserve
Payments, if any, and the Pro-Rata Share of the Costs and Expenses of the Program
allocable to the period for which such payment is to be in effect and shall notify the
Trustee and the Administrator of such determination. The Administrator shall
compute the amount of the Governmental Unit's payment in respect of such amounts
and shall notify the Trustee, the Credit Facility Issuer and the Governmental Unit, of
the amount thereof. Reserve Payments under clauses (a) and (c) of the definition of
"Reserve Payments" shall be billed to the Governmental Unit and shall be due within
thirty (30) days of receipt of such notice. The remaining components of the Reserve
Payment and the Governmental Unit's Pro-Rata Share of the Costs and Expenses of
the Program, shall be payable by the Governmental Unit in semiannual installments
for the next ensuing semiannual period. The Financial Advisor shall notify the
Governmental Unit at least ten (10) 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 (6)
months) for which such payment amount is to be in effect, the amount of each
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 Trustee
determines that such payment amount, together with other funds available therefor,
does not provide sufficient funds to pay the Governmental Unit's Pro-Rata Share of the
Costs and Expenses of the Program allocable to the period for which such payment is
to be in effect, and the Governmental Unit's Reserve Payment, if any, the Trustee 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 any deficiency in the payment of the Governmental Unit's
Reserve Payment, its interest payment and its Pro-Rata Share of the Costs and
Expenses of the Program by giving notice thereof to the Administrator. The
Administrator shall recompute the amount of the Governmental Unit's semiannual
payments and shall give the Governmental Unit notice of a revised payment and the
computations used to determine such payment at least ten (10) days prior to the date
such revised payment is to become effective, stating the period (not exceeding six (6)
months) for which such revised additional payments are to be in effect, and the
amount of each payment which the Governmental Unit is required to make during
such period. The 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, which shall specify the respective
amounts of principal and interest due, the Reserve Payment amount, and the amount
of any fees and expenses billed to the Governmental Unit on a semiannual basis
pursuant to Section 3.5 hereof.
(d) As set forth in the Indenture, eamings and other moneys in the Payment
Account in the Loan Reserve Fund shall be applied for the purposes set forth in
Section 5.07 of the Indenture, including, where provided therein, to or for the benefit
of the Governmental Unit. Notwithstanding any other provision contained in this Loan
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Agreement or in the Governmental Unit Note, all cornputations of the Reserve
Payments and any other amounts due under this Loan 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 except as provided in the
proviso at the end of Section 3.3(1) hereof, the Governmental Unit shall not bear any
fmancial obligation arising because of a default in any Loan to any other party.
Notwithstanding any provision of the Indenture or this Loan Agreement to the
contrary, the Governmental Unit shall not be obligated to pay any portion of the costs
of the Liquidity Facility or Remarketing Agent for the Bonds; provided, however, that
in computing any amount to be included in the payments required of the
Governmental Unit for the interest on the Reserve Bonds, earnings on moneys in the
Reserve Account shall first be applied to pay such costs of the Liquidity Facility and
the Remarketing in respect of the Reserve Bonds, and only the remaining interest
earnings on such monies shall be credited toward the interest on the Reserve Bonds in
accordance with the Indenture in computing the Reserve Payment of the
Governmental Unit.
(e) Reserved
(f) Notwithstanding anything herein to the contrary, the Costs and
Expenses of the Program and the Reserve Payment shall not include any amounts
attributable to the default of any other Governmental Unit, and the Governmental Unit
Note and the principal amount thereof and interest thereon shall not be increased for
any reason related to a redemption of the Bonds other than as a result of an Event of
Default under this Loan Agreement; provided that the Governmental Unit's Reserve
Payment and Pro Rata Share of the Costs and Expenses of the Program may be
affected by reductions in the investment income on the Debt Service Reserve Fund and
Loan Reserve Fund as consequence of the redemption of Bonds.
SECTION 3.4
PREPAYMENT OF LoAN.
(a) The Governmental Unit shall be entitled to prepay the Loan in whole or
in part on any date upon which the Bonds converted to a Long Fixed Rate in
connection with this Loan may be redeemed or converted to another mode at the
option of the Sponsor or may be called for mandatory tender by the Sponsor, upon not
less than one hundred twenty-nine (129) days prior written notice to the Sponsor, the
Administrator and the Trustee.
(b) Any such prepayment in whole shall be made with the effect provided in
Section 4.04 of the Indenture, it being understood that all prepayments must be made
not less than one hundred twenty-nine (129) days in advance of any application
thereof, unless the Indenture shall otherwise permit. The prepayment shall be in an
amount equal to the sum of (A) accrued and unpaid interest on the Loan as of the date
on which redemption or tender of the Bonds can occur following processing 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
(as defmed in the Indenture) 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
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prepayment in whole be less than the principal amount of the Loan then Outstanding
plus accrued interest and any unpaid Reserve Payment amount due in respect of the
Loan.
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 one hundred twenty-nine (129)
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 (x) 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).
Notwithstanding anything herein to the contrary, the one hundred twenty-nine
(129) day periods mentioned in paragraphs (a) and (b) hereof may run concurrently.
The Governmental Unit shall receive credit for any income from investment of the
amount of any such prepayment. Any computation of the prepayment amount under
this Section 3.4(b) shall be made assuming all payments are made by Participating
Governmental Units, as provided in Section 3.3(d) hereof.
(c) The amount of any prepayment shall also include any amounts
necessary to pay prepayment premiums, if any, to the holders of the Converted Bonds
in connection with a redemption thereof from the proceeds of the prepayment.
(d) In determining the amount and effect of any prepayments under this
Section 3.4, Program Assets shall include any unpaid Loans, including any unpaid
Loans that may have been discharged in bankruptcy or declared void or
unenforceable.
SECTION 3.5
REsERVE BONDS.
(a) The Governmental Unit hereby agrees and acknowledges that a principal
amount of Bonds, initially bearing interest in the Fixed Rate Mode, equal to the
Governmental Unit's Pro-Rata Share of the sum of the Debt Service Reserve Fund
Requirement and the Loan Reserve Fund Requirement (the "Reserve Bonds") are
allocable to the Loan and with respect to which the Program incurs costs and
expenses. A like amount of moneys on deposit in the Debt Service Reserve Fund and
the Loan Reserve Fund are to be invested in compliance with Section 6.02 of the
Indenture. The Governmental Unit hereby acknowledges that pursuant to the
Indenture, the amount of funds which may be used to pay Bonds or which may result
in a Liquidation Shortfall is not limited to the amount of the Reserve Bonds, and that
the full amount of the Debt Service Reserve Fund and the Loan Reserve Fund may be
used as provided in the Indenture, including, among other things for payment of
Bonds in the event of a default by the Governmental Unit.
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(b) In the event that a default of the Governmental Unit results in the
liquidation of investments in the Debt Service Reserve Fund or Loan Reserve Fund, the
Governmental Unit will pay the "Liquidation Shortfall." "Liquidation Shortfall" shall
mean the loss, if any, incurred by the Issuer as a result of such a liquidation versus
the amount which would have been realized if such investments would have been sold
at a price (exclusive of investment earnings thereon) equal to their purchase price.
In the event that for any other reason permitted under the Indenture (other
than a default by another Governmental Unit) a draw upon the Loan Reserve Fund or
the Debt Service Reserve Fund results in a liquidation of the investments therein, the
Governmental Unit agrees to pay the Governmental Unit's Pro-Rata Share of the
Liquidation Shortfall as a component of the Reserve Payment following such
liquidation. No charges for the Liquidity Facility or Remarketing Agent in respect of
the Reserve Bonds shall be borne by the Governmental Unit; however upon any
determination by the Administrator that the investment earnings on the investment of
funds allocable to the proceeds of the Reserve Bonds is projected to be insufficient to
pay the interest on the Reserve Bonds (after first applying such earnings to pay the
charges for the Liquidity Facility and the Remarketing Agent in respect of the Reserve
Bonds), the Governmental Unit shall pay, as a component of the Reserve Payment
such amounts as determined by the Administrator under Subsections 3.3(c) and (d)
hereof. The Governmental Unit's obligations under this paragraph shall be subject to
the limitations in Section 3.3(f).
SECTION 3.6 GENERAL OBLIGATION OF GoVERNMENTAL UNIT TO PAY
PRINCIPAL AND INTEREST; SPECIAL OBLIGATION TO PAY ADDITIONAL LoAN CHARGES.
(a) Each Credit Facility Issuer may share with any other Credit Facility
Issuer any information given to any of them by the Governmental Unit, including
without limitation financial statements, and may also share such information with any
participant of such Credit Facility Issuer, and any [mancial institution which is being
solicited to become a participant of any Credit Facility Issuer. To the extent necessary
to permit 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 information.
(b) The payment of the principal of and interest on the Governmental Unit
Note shall be secured by a pledge of the full faith, credit and taxing power of the
Governmental Unit, and the payment of the Additional Loan Charges shall be secured
by a first lien on and pledge of the Pledged Revenues. In addition, the Sinking Fund
and the amounts on deposit therein are hereby irrevocably pledged to the payment of
the principal and interest on the Loan and the Governmental Unit Note. The Pledged
Funds are hereby irrevocably pledged to secure repayment of the Governmental Unit
Note, as set forth herein. The Governmental Unit hereby represents and warrants that
the pledge of the Pledged Funds and the Pledged Revenues to secure the Governmental
Unit Note and the Loan as set forth herein is valid, binding and enforceable and that
the Pledged Funds and the Pledged Revenues are not, as of the date hereof, otherwise
subject to any pledge, encumbrances or lien, except as have been heretofore disclosed
to and expressly approved by the Credit Facility Issuer in writing. The Governmental
Unit covenants that it will not cause or permit to exist any pledge of or lien upon the
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Pledged Funds and the Pledged Revenues, other than the pledge benefiting the
Governmental Unit Note or the Series 1985E Governmental Unit Note.
(c) Subject to Section 3.6(e), prior to each of its Fiscal Years, the
Governmental Unit shall establish a budget for such fiscal year which allocates a
sufficient sum to provide amounts to pay all amounts reasonably anticipated to be
payable with respect to the Governmental Unit Note and the Loan. In the event that
the budgeted amounts prove insufficient to make said payments, the Governmental
Unit shall as soon as practicable (but in any event prior to the expiration of ninety
days from such event) but subject to Section 3.6(e), amend its budget so as to assure
that sufficient amounts in the Pledged Funds are available to at all times make said
payments.
(d) In each year while any of such principal and interest on the
Governmental Unit Note are outstanding there shall be levied and collected a tax,
without limitation as to rate or amount, on all taxable property within the
Governmental Unit (excluding exemptions as provided by law), sufficient in amount to
pay into the Sinking Fund the amounts due for principal and interest on the Loan and
the Governmental Unit Note as the same shall become due. The proceeds of such tax
shall be deposited into the Sinking Fund to pay the principal of and interest on the
Governmental Unit Note and the Loan as the same shall become due, after deducting
therefrom any other funds of the Governmental Unit which may be available for such
payment and which shall actually be so applied. Such tax shall be assessed, levied
and collected in the same manner and at the same time as other ad valorem taxes are
assessed, levied and collected.
(e) Notwithstanding anything herein to the contrary, but subject to the
provisions of this Section 3.6(e), the Governmental Unit hereby acknowledges and
agrees to budget and appropriate, by amendment, if necessary, from Non-Ad Valorem
Revenues lawfully available in each Fiscal Year, and deposit into the Revenue Fund
amounts sufficient to pay all Additional Loan Charges, including without limitation,
the Reserve Payments and the amounts due in respect of Costs and Expenses of the
Program. The Governmental Unit hereby covenants that in the event sufficient
amounts, exclusive of the amounts held for the payment of principal and interest on
the Governmental Unit Note and the Loan, have not been applied to pay such
amounts, it will, to the extent permitted by law and subject to this Section 3.6(e), in
each year in which any Additional Loan Charges may be due and payable in
accordance with this agreement, budget and appropriate, by amendment, if required,
from legally available Non-Ad Valorem Revenues, the sums required for payment of
such amounts, and apply the same to the payment thereof.
Such covenant and agreement on the part of the Governmental Unit to budget
and appropriate such amounts of legally available Non-Ad Valorem Revenues shall be
cumulative, and shall continue until such legally available Non-Ad Valorem Revenues
in amounts sufficient to pay the Additional Loan Charges provided for herein in
respect of the Governmental Unit Note have been budgeted, appropriated and actually
paid to the Trustee.
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Notwithstanding the foregoing covenant of the Governmental Unit, the
Governmental Unit does not covenant to maintain any services or programs, now
provided or maintained by the Governmental Unit, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or
pledge of such Non-Ad Valorem Revenues, nor does it preclude the Governmental Unit
from pledging in the future its Non-Ad Valorem Revenues, nor does it require the
Governmental Unit to levy and collect any particular Non-Ad Valorem Revenues, nor
does it give the Trustee a prior claim on the Non-Ad Valorem Revenues as opposed to
claims of general creditors of the Governmental Unit. Such covenant to budget and
appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or
hereinafter entered into (including the payment of debt service on bonds and other
debt instruments). However, the covenant to budget and appropriate in its general
annual budget for the purposes and in the manner stated herein shall have the effect
of making available in the manner described herein Non-Ad Valorem Revenues and
placing on the Governmental Unit a positive duty to budget and appropriate, by
amendment, if necessary, amounts sufficient to meet its obligations hereunder;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida
Statutes, which provides, in part, that the governing body of each municipality make
appropriations for each Fiscal Year which, in anyone year, shall not exceed the
amount to be received from taxation or other revenue sources; and subject further, to
the payment of services and programs which are for essential public purposes
affecting the health, welfare and safety of the inhabitants of the Governmental Unit or
which are legally mandated by applicable law.
(f) The Loan and the Governmental Unit Note, and all payments due with
respect thereto or under this Loan Agreement as principal and interest, shall be
general obligations of the Governmental Unit, and secured by the full faith, credit and
taxing power of the Governmental Unit and a direct ad valorem tax shall be assessed,
levied and collected, without limitation as to rate or amount, on all taxable property
within the corporate limits of the Governmental Unit (excluding exemptions as
provided by applicable law) as herein provided. The faith, credit and taxing power of
the Governmental Unit have been irrevocably pledged to the punctual payment of the
principal of and interest on the Governmental Unit Note as the same shall become due
and payable.
(g) The obligation to pay the Additional Loan Charges shall be payable solely
from the Non-Ad Valorem Revenues as 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 obligation to pay
such Additional Loan Charges shall not constitute a lien upon any property of the
Governmental Unit, but shall constitute a lien only on the Pledged Funds, in the
manner herein provided.
(h) 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 Non-Ad Valorem Revenues, the Pledged Revenues and
Pledged Funds herein provided, which may come into its possession, including but not
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limited to the proceeds of the Loan, contributions or grants, for the purpose of
payment of the Loan, but the Governmental Unit shall have no obligation to use any
such funds except, to the extent provided herein, the Non-Ad Valorem Revenues for
payment of the Additional Loan Charges.
SECTION 3.7 BENEFIT OF BONDHOLDERS AND ENHANCEMENT PROVIDER;
COOPERATION BETWEEN PARTIES.
This Loan 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 Loan 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
Facility Issuer.
SECTION 3.8
BONDS NOT To BECOME ARBITRAGE BONDS.
The Governmental Unit shall take no action which would cause the interest on
the Bonds to lose the exemption from federal income tax under Section 103 of the
Internal Revenue Code of 1954, as amended, and in effect prior to the enactment of
the Tax Reform Act of 1986, and the regulations issued thereunder (collectively, the
"1954 Code"), as such exemption is carried forward in the exclusion of such interest
from gross income for federal income tax purposes under the Internal Revenue Code of
1986, as amended.
Except as provided in this Loan Agreement, the Governmental Unit hereby
covenants to the Sponsor and the holders of the Bonds that 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 1954 Code,
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" or otherwise adversely affect the tax-exempt status of
the 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 Loan
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.
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(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 Loan
Agreement and the Governmental Unit Note may be assigned to a Credit Facility Issuer
or the issuer of a Local Letter of Credit.
SECTION 3.10
SINKING FuND.
COVENANT REGARDING PLEDGED FuNDS; REVENUE FuND;
(a) The Governmental Unit hereby covenants to take all lawful action
necessary or required to collect and receive, and to deposit to the Sinking Fund,
amounts sufficient to pay the principal of and interest on the Governmental Unit Note
and the Loan. In addition, but subject to Section 3.6(e) hereof, the Governmental Unit
shall take alllawful action necessary or required to collect and receive and budget and
appropriate Non-Ad Valorem Revenues, for deposit to the Revenue Fund, in amounts
sufficient to provide an amount of Pledged Revenues to pay the Additional Loan
Charges as the same become due. The Governmental Unit further covenants that it
has full power to pledge the Pledged Funds and the Pledged Revenues as provided in
this Loan Agreement to the payment of the principal and interest and other amounts
becoming due on the Governmental Unit Note and the Loan.
(b) There is created and established under the Series E Loan Agreement the
Miami Beach, Florida, Gulf Breeze Loan Program Revenue Fund (the "Revenue Fund").
All amounts payable by the Governmental Unit hereunder other than amounts
required to be deposited directly into the Sinking Fund pursuant to Section 3.6(d)
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). Commencing on
July 15, 2000, and on the 15th day of each month thereafter, but subject to Section
3.6(e) hereof, the Governmental Unit shall deposit to the Revenue Fund, from Non-Ad
Valorem Revenues or any other sources legally available to the Governmental Unit for
such purposes, amounts sufficient to pay all Additional Loan Charges, including,
without limitation, Reserve Payments and the payments in respect of the Costs and
Expenses of the Program, if any then due. 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. Moneys in the Revenue
Fund, shall be applied and allocated to pay all amounts due hereunder or under the
Series E Loan Agreement as the same become due, other than amounts paid from the
Sinking Fund. A separate fund is created under the Series E Loan Agreement and
designated the Miami Beach, Florida, Gulf Breeze Loan Program Sinking Fund
(hereinafter called "Sinking Fund"). Fifteen days prior to each date upon which
principal or interest shall be due on the Governmental Unit Note, there shall be
deposited into the Sinking Fund amounts sufficient to pay (a) all of the interest on the
Governmental Unit Note and the Series E Governmental Unit Note becoming due on
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such date, and (b) the principal of the Governmental Unit Note and the Series E
Governmental Unit Note becoming due, if any, on such date. 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. Moneys in the
Sinking Fund shall be applied on each date on which principal or interest is payable
on the Loan, to make such payment. Moneys in the Revenue Fund shall be applied to
make all payments not paid from the Sinking Fund, when due under any provisions
hereof.
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 provisions of Sections 3.6 and 3.10 hereof and the
pledge of and lien upon the Pledged Funds and 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 release the provisions of Sections 3.6 hereof and defease the lien of this Loan
Agreement upon the Pledged Funds and 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 this Loan
Agreement upon the Pledged Funds and 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
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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 Clerks of the Circuit Court for Santa Rosa
County and Miami-Dade County.
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ARTICLE IV
COVENANTS OF THE GOVERNMENTAL UNIT
SECTION 4.1
REpORTS AND OPINIONS; INSPECTIONS.
(a) Until all amounts due under this Loan Agreement have been paid in full,
the Governmental Unit shall deliver to the Sponsor, the Trustee and the Credit Facility
Issuers, within thirty (30) 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 hereunder.
(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 Loan Agreement (whether by prepayment
or regularly scheduled payment) or (ii) as to Loans not so secured, upon the fInal
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 one hundred twenty-nine (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 Loan 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 anlount, if any, equal to the Credit Facility 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 defined 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 Facility Issuers to examine, visit and inspect, at any reasonable time, the
Project, 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 financial standing, to the extent the same reasonably relate
to the Loan and to supply such reports and information as the Sponsor, the Trustee or
the Credit Facility Issuers may reasonably require.
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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 Loan Agreement including (without
limiting the foregoing) the application of moneys and the investment of funds, the
Sponsor shall not be accountable to the Govemmental Unit for any action taken or
omitted with respect to the Financing Program or this Loan Agreement by it or its
members, officers, employees and agents in good faith and believed by it or them to be
authorized or within the discretion or rights or powers conferred under this Loan
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 Govemmental Unit for any claims based on the
Indenture or this Loan 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, gross negligence, fraud or deceit of such person. To the
extent permitted by law the Govemmental 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
Loan Agreement by the Govemmental Unit.
SECTION 4.3
COMPLIANCE WITH LAWS.
With respect to the Project and any additions, alterations or improvements
thereto, the Govemmental 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
RESERVED.
SECTION 4.5
RESERVED.
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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 Governmental Unit to make any payment required to be
made pursuant to any other provision hereof within thirty (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 Loan Agreement for a
period of thirty (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 thirty (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 one hundred eighty (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 thirty (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 by the
Governmental Unit in connection herewith shall prove to be false or misleading in any
material respect; or
(e) (1) the Governmental 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 Governmental 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; or (4) the Governmental Unit shall take any action to
authorize or effect any of the actions set forth in Sections 5.1(e)(l) or (2); or
(f) (1) the Governmental Unit shall be adjudicated a bankrupt or become
subject to an order for relief under federal bankruptcy law; (2) the Governmental Unit
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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
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 such appointment continues undischarged or such proceeding
continues undismissed or un stayed for a period of ninety (90) consecutive days; the
mere declaration by the Governmental Unit of a state of fmancial 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 fifteenth (15th) day prior to the expiration or non-renewal of the existing Local
Letter of Credit.
SECTION 5.2
No ACCELERATION.
The payment obligations of the Borrower under this Loan Agreement and the
Governmental Unit Note are not subject to acceleration.
SECTION 5.3
PAYMENT OF LoAN ON DEFAULT; SUIT 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 Loan Agreement as and when the same shall become due and payable, 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, subject to the
provisions of Section 3.6 hereof, to the Trustee (or its assignee) an amount equal to
the sum of: (i) amounts which the Governmental Unit is obligated to pay under this
Loan Agreement 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, subject to the
provisions of Section 3.6 hereof, to institute any 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 final decree, and may enforce any such judgment
or final 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
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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 me
and prove a claim or claims for the whole amount of the Loan made to the
Governmental Unit pursuant to this Loan 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, 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 Loan 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, 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, subject to Section 3.6 hereof, 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
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
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in this Section 5.4 shall not be exclusive, and the Credit Facility 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 Loan Agreernent 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 Loan
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 Govemmental 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 PROCEEDS.
In case the Sponsor, the Credit Facility Issuer or the Trustee (or its assignee)
shall have proceeded to enforce any right under this Loan 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.e
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1
LIMITATION OF LIABILITY.
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 the moneys available under the Indenture 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 Loan Agreement to the contrary, in
the event of any default by the Governmental Unit hereunder, the liability of the
Governmental Unit to pay amounts under the Governmental Unit Note and hereunder
shall be enforceable only out of the sources provided hereunder 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 this Loan Agreement or Governmental Unit Note shall
be personally liable on the Loan or the Bonds or this Loan 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, Florida
P.O. Box 640
Gulf Breeze, Florida 32561
As to the Trustee:
SunTrust Bank
225 E. Robinson Street, Suite 250
Orlando, Florida 32801
Attn: Corporate Trust Division
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As to the Govemmental Unit:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Finance Director
CC: City Attorney
As to the Credit Facility Issuer:
Financial Guaranty Insurance Company
115 Broadway
New York, New York 10006
Attn: General Counsel
As to the Liquidity Facility Issuer:
Credit Locale de France
New York Agency
9 West 57th Street, 36th Floor
New York, New York 10019
Attn: General Manager
SECTION 6.4
ILLEGAL OR INvALID PROVISIONS DISREGARDED.
In case any provision of this Loan Agreement shall for any reason be held
invalid, illegal or unenforceable in any respect, this Loan Agreement shall be
construed as if such provision had never been contained herein.
SECTION 6.5
APPLICABLE LAW.
This Loan Agreement shall be deemed to be a contract made in Florida and
governed by Florida law.
SECTION 6.6
ASSIGNMENTS.
The Governmental Unit shall not assign this Loan 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 Loan 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 Loan 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 Loan 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
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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 Loan 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 Loan Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of any
provision hereof.
SECTION 6.10
PAYMENTS.
NOTICE OF ExPECTATION OF OBLIGATION TO MAKE CERTAIN
The Administrator shall promptly notify the Governmental Unit by telephone,
followed by written notice, whenever earnings are reasonably expected to result in the
Governmental Unit's obligation to make a Reserve Payment.
SECTION 6.11
ENTIRE AGREEMENT.
This Loan Agreement is the entire fmal 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 this Loan Agreement, and this Loan
Agreement shall supersede all other agreements either written or oral between such
parties with respect to the Loan.
SECTION 6.12
LIMITATION OF INvEsTMENT EARNINGS CREDIT.
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. The Governmental Unit will not receive as a credit against any payment
due hereunder any amount of actual earnings on the proceeds of the Reserve Bonds,
in excess of (a) fees and charges for the Liquidity Facility and Remarketing Agent in
respect of the Reserve Bonds, (b) fees of the Trustee, Registrar and Paying Agent, and
other applicable Costs and Expenses of the Program, and (c) interest on such Reserve
Bonds. If such earnings are not sufficient to provide a credit for the items listed in (a)
through (c) of the foregoing sentence, such earnings shall be applied in the priority in
which such items are described, from (a) to (c).
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CITY OF GULF BREEZE, FLORIDA
By:
Title: Mayor, City of Gulf Breeze,
Administrator
WITNESS:
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CITY OF MIAMI BEACH, FLORIDA
(SEAL)
By:
Title: Mayor
ATTEST:
By:
Title: City Clerk
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
It(~ JlLf/OV
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SUNTRUST BANK
Trustee
(SEAL)
By:
Title:
ATTEST:
By:
Title:
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STATE OF FLORIDA
COUNTY OF SANTA ROSA
I, , 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 Program Floating Rate Demand Revenue Bonds,
Series 1985 B, 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.
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County in the
State aforesaid, do hereby certify that and , personally
known to me to be the same persons whose names are, respectively as Mayor 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, sealed with the seal of said City, 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.
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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STATE OF FLORIDA
COUNTY OF
, a Notary Public in and for the said County in the
hereby certify that and
, personally known to me to be the same persons whose
names are, respectively as and of
SunTrust Bank, 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 Bank, and delivered the said instrument as the free
and voluntary act of said Bank and as their own free and voluntary act, for the uses
and purposes therein set forth and took an oath.
I,
State
aforesaid,
do
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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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 "Governmental Unit"),
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 defmed) as
assignee of the Sponsor (as hereafter defmed), or to the Credit Facility Issuer, as its
assignee, the principal sum of Million Dollars ($_,000,000), and to pay interest
thereon from the date hereof, as follows:
(a) The principal hereof shall be paid in annual 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 in semi-
annual installments at the rates and on the dates shown on Schedule "I," 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
Governmental Unit and SunTrust Bank, as Trustee, the provisions of which are
incorporated herein by reference.
In addition to such amounts specified in Schedule "I," the actual amounts due
in repayment of the Loan shall also include the Additional Loan Charges, including
without limitation, the Reserve Payments and payments due in respect of the Costs
and Expenses of the Program (solely as defined and described in the Loan Agreement),
if such payments shall be due pursuant to the provisions of Section 3.3 or 3.5 of the
Loan Agreement. Any payment required to be made with respect to the Loan which is
received later than its due date shall bear interest from such due date at a rate equal
to the higher of the rate of interest on this Note or the Prime Rate, plus two per
centum per annum (the "Default Rate").
As set forth in the Loan Agreement, a default of the Governmental Unit may
also result in a requirement that the Governmental Unit make certain additional
payments with respect to a portion of the Debt Service Reserve Fund, as defmed in the
Loan Agreement.
Notwithstanding anything otherwise contained in this Note, the interest rate on
this Note and any other amounts payable by the Borrower under the Loan Agreement
that are treated as interest under applicable law, shall not exceed the Maximum Rate
as defmed in the Loan Agreement; 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
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earlier of (1) the fmal maturity of this Note or (2) such time as the total amount of
interest paid on this Note shall at such rate equals the amount of interest which would
have been payable on this Note without regard to any Maximum Rate.
All payments made hereunder from amounts in the Sinking Fund under the
Loan Agreement shall be applied first to payment of accrued interest on the unpaid
principal balance hereof at the aforesaid rate, and then to reduction of principal.
Amounts due under the Loan Agreement for Additional Loan Charges, including
without limitation, the Reserve Payments and the amounts due in respect of the Costs
and Expenses of the Program, shall be paid solely from Non-Ad Valorem Revenues (as
defined in the Loan Agreement). In the event the full amount of this Note is not
disbursed, the payments of principal due hereunder shall be reduced ratably to reflect
such reduction in the principal amount due hereunder, and a new Schedule "I" will be
calculated by the Administrator.
The principal hereof and interest hereon shall be paid to the Trustee as
Assignee of the Sponsor (or to the Credit Facility Issuer, as its assignee) at such place
as the Trustee may designate in writing.
This Note evidences a loan made to the Governmental Unit pursuant to the
Loan Agreement, to fmance the Governmental Unit's cost of improvements to
neighborhood infrastructure, parks and beaches and fire stations and related facilities
and fire trucks (the "Project"), as described in the Loan Agreement (the "Financing
Program") and the Governmental Unit 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 1985 B (the "Bonds"). The Bonds are issued under a 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 the Trustee.
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.
The full faith, credit and taxing power of the Governmental Unit have been
irrevocably pledged to the punctual payment of the principal of and interest on the
Governmental Unit Note as the same shall become due and payable. Additional Loan
Charges are payable solely from Non-Ad Valorem Revenues, in the manner, and
subject to the limitations set forth in the Loan Agreement. The obligations of the
Governmental Unit hereunder to pay amounts other than principal and interest are
limited, special obligations payable from the Pledged Revenues in the manner, and
subject to the limitations, set forth in the Loan Agreement. Pursuant to the Loan
Agreement, the Governmental Unit has covenanted to budget and appropriate funds
from its Non-Ad Valorem Revenues sufficient to pay such amounts due hereon, all in
the manner, and subject to the limitations, provided in the Loan Agreement. The
acceptance of this Note by the holder from time to time hereof shall be deemed an
agreement between the Governmental Unit and such holder that the obligation to pay
Additional Loan Charges, including without limitation the Reserve Payments and
amounts due in respect of the Costs and Expenses of the Program, 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 provided in the Loan Agreement.
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The Governmental Unit shall be in default hereunder upon: (i) the nonpayment
on or before the same is due of any payment described in paragraphs (a) or (b) of this
Note or (ii) under the circumstances described in the Loan Agreement. 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.
In addition to all other rights it may have, the holder hereof shall have the
following rights, each of which may be exercised at any time: (i) to pledge, transfer or
assign this Note in the manner prescribed herein or in the Loan Agreement and any
renewals, extensions and modifications hereof, assigning therewith its rights in the
Loan Agreement in accordance with the terms thereof and any such pledgee,
transferee or assignee shall have all the rights of the holder hereof with respect to this
Note and any renewals, extensions and modifications hereof and of the Loan
Agreement so assigned therewith, and the holder hereof making such pledge, transfer
or assignment shall be thereafter relieved from any and all liability with respect to the
Loan Agreement so assigned; (ii) to notify the Governmental Unit or any other persons
obligated under the Loan Agreement to make payment to the holder of this Note any
amounts due or to become due thereon; and (iii) to apply any amounts received under
or pursuant to the Loan Agreement against the principal of and interest on and other
amounts payable under this Note.
A payment made on this Note by or on behalf of the Governmental Unit shall
also be deemed a payment made under the Loan Agreement. This Note shall not be
assigned unless the Loan Agreement is included in the assignment.
Upon the request of the holder hereof, this Note may be converted to a
registered obligation and the Governmental Unit shall maintain books for the
registrations of the transfer and exchange of this Note in compliance with the Florida
Registered Public Obligations Act.
It is hereby certified and recited that all acts, conditions and things required to
happen, exist and be performed, precedent to and in the issuance of this Note, have
happened, exist, and have been performed in due time, form and manner as required
by the Constitution and laws of the State of Florida applicable thereto; that the total
indebtedness of the Governmental Unit, including this Note, does not exceed any
constitutional, statutory or charter limitation; and that provision has been duly made
for the levy and collection of a direct annual tax, without limitation as to rate or
amount, upon all taxable property within the Governmental Unit (excluding
exemptions as provided by law) sufficient to pay the principal of and interest on this
Note as the same shall become due, which tax shall be levied and collected at the
same time, and in the same manner, as other ad valorem taxes of the Governmental
Unit are assessed, levied and collected. For the prompt payment of the principal of
and interest on this Note, the full faith, credit and taxing power of the Governmental
Unit are irrevocably pledged.
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
MCL-05/17/00
Rev-05/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-1a-b -39-
terms used herein which are defmed in the Loan Agreement shall have the meanings
set forth in the Loan Agreement.
MCL-05 117/00
Rev-05/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-1a-b
-40-
IN WITNESS WHEREOF, the City of Miami Beach, Florida, has issued this
Govemmental 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 _ day of June, 2000.
CITY OF MIAMI BEACH, FLORIDA
(SEAL OF THE CITY)
By:
Title: Mayor, City of Miami Beach
ATTEST:
By:
Title: City Clerk
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
1JIci!~ ~
MCL-05/ 17/00
Rev-05/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-la-b
-41-
DATE
SCHEDULE "I"
$15,900,000
CITY OF MIAMI BEACH, FLORIDA
GOVERNMENTAL UNIT NOTE
GULF BREEZE VRDS SERIES 1985 B
DEBT SERVICE SCHEDULE
JUNE 1, 2000
INTEREST
RATE
PRINCIPAL
MCL-05/ 17/00
Rev-05/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-la-b
INTEREST
-42-
PRINCIPAL
BALANCE
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 _ day of June, 2000.
CITY OF MIAMI BEACH, FLORIDA
(SEAL OF THE CITY)
By:
Title: Mayor, City of Miami Beach
ATTEST:
By:
Title: City Clerk
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
# 1#1;;!4 b/&:/a-
MCL-05/ 17/00
Rev-05/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-la-e
-41-
DATE
SCHEDULE "I"
$14,100,000
CITY OF MIAMI BEACH, FLORIDA
GOVERNMENTAL UNIT NOTE
GULF BREEZE VRDS SERIES 1985 E
DEBT SERVICE SCHEDULE
JUNE 1, 2000
INTEREST
RATE
PRINCIPAL
MCL-OS/17/00
Rev-OS/25/00
Rev: 05/30/00
Rev-06/13/00
Rev: 06/15/00-6439-1a-e
INTEREST
-42-
PRINCIPAL
BALANCE
EXHIBIT "B"
CONTINUING DISCLOSURE CERTIFICATES
B-1
Library: Miami; Document #: 4983v3
CITY OF MIAMI BEACH, FLORIDA
PARTICIPATING GOVERNMENTAL UNIT
CONTINUING DISCLOSURE CERTIFICATE
Local Government Loan Program
Floating Rate Demand Revenue Bonds
Series 1985 B
This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and
delivered by the City of Miami Beach, Florida (the "Borrower"), in connection with the
execution and delivery on the date hereof of that certain Loan Agreement dated as of June 1,
2000 (the "Borrower Loan Agreement"), between SunTrust Bank (formerly SunTrust Bank,
Central Florida, National Association) (as successor trustee to The Bank of New York, which
succeeded AmSouth Bank, N.A. as trustee), Orlando, Florida, as Trustee (the "Trustee"), the
City of Gulf Breeze, Florida (the "Issuer") acting by and through Lane Gilchrist, Mayor, as
Administrator, and the Borrower, pursuant to which the Issuer is making a loan to the
Borrower of a portion of the proceeds of the Issuer's Local Government Loan Program
Floating Rate Demand Revenue Bonds, Series 1985 B ("Series B Bonds"). Such bonds were
issued under and pursuant to a 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 Issuer and the Trustee. The Borrower agrees as follows:
Section 1. Purpose of this Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the Borrower in order to assist the remarketing agent or agents for
the Series B Bonds (each a "Remarketing Agent") in complying with SEC Rule 15c2-12(b)(5).
Section 2. Definitions. The following capitalized terms shall have the following
meanings:
"Administrator" shall mean the Mayor of the Issuer or any substitute administrator
selected by the Issuer and approved by the Credit Facility Issuer (as defined in the Indenture).
"Annual Determination Date" shall mean the last day of each Fiscal Year.
"Annual Report" shall mean any Annual Report provided by the Borrower pursuant to,
and as described in, Sections 3 and 4 of this Disclosure Certificate.
"Beneficial Owner" shall mean any person which (a) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series B
Bonds (including persons holding Series B Bonds through nominees, depositories or other
intermediaries), or (b) is treated as the owner of any Series B Bonds for federal income tax
purposes.
004.209315.2
1
"Dissemination Agent" shall mean the Borrower, or any successor Dissemination
Agent designated in writing by the Borrower and which has filed with the Borrower a written
acceptance of such designation.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Governmental Units" shall mean the State or any city, county, special district,
municipal corporation, political subdivision, port authority or other governmental entity
described in Chapter 163, Part I, Florida Statutes, authorized to finance or refinance the costs
of qualifying projects under Loan Agreements.
"Loan" shall mean the loan made by the Issuer to a Governmental Unit pursuant to the
provisions of the Indenture and the applicable Loan Agreement.
"Loan Agreements" shall mean the Loan Agreements, between the Administrator on
behalf of the Issuer, the Trustee and Participating Governmental Units.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The National Repositories currently
approved by the Securities and Exchange Commission and a method of obtaining hereafter the
most current listing of approved National Repositories, are set forth in Exhibit B.
"Participating Governmental Unit" shall mean any Governmental Unit which has
received a Loan.
"Program" shall mean the Local Government Loan Program whereby the proceeds of
the Series B Bonds are applied to finance or refinance qualifying projects for Participating
Governmental Units pursuant to Loan Agreements and the Indenture.
"Reporting Governmental Unit" shall mean each Participating Governmental Unit
which enters into a Loan Agreement on or after December 1, 1999 if the aggregate of the
outstanding principal balances on all Series B Program Loans to such Participating
Governmental Unit, as of the most recent Annual Determination Date, equals or exceeds an
amount equal to twenty percent (20 %) of the aggregate principal amount of the Series B Bonds
outstanding on such Annual Determination Date. For purposes of determining whether a
Participating Governmental Unit is a Reporting Governmental Unit, only the outstanding
principal balances on all Series B Program Loans to such Participating Governmental Unit
which are secured by the same fund, enterprise, revenues or account of such Participating
Governmental Unit shall be taken into account. Not later than thirty (30) days after each
Annual Determination Date, the Issuer will determine which Participating Governmental Units
are Reporting Governmental Units and will provide written notice to each Reporting
Governmental Unit and each Participating Governmental Unit that was a Reporting
Governmental Unit as of the immediately preceding Annual Determination Date, stating that
such Participating Governmental Unit has become, continues to be or has ceased to be, as the
004.209315.2
2
case may be, a Reporting Governmental Unit. The Issuer will provide such notice by (i)
telecopier, telex or other telegraphic means (with receipt confirmed), provided that in each
case a copy is mailed by registered or certified mail, postage prepaid, return receipt requested,
or (ii) express mail or delivery service guaranteeing overnight delivery.
"Reporting Period" shall mean the period commencing on the Annual Determination
Date on which the Borrower becomes a Reporting Governmental Unit and ending on the
Annual Determination Date on which the Borrower ceases to be a Reporting Governmental
Unit.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from
time to time.
"Series B Bondholder" or "Holder" or "Holder of Series B Bonds" shall mean the
registered owner of any Series B Bond (other than the bond registrar and paying agent for the
Series B Bonds holding Series B Bonds tendered to it for payment pursuant to Article III of the
Indenture prior to the purchase and payment for such Series B Bonds).
"Series B Bonds" shall mean the Issuer's Local Government Loan Program Floating
Rate Demand Revenue Bonds, Series 1985 B, dated December 30, 1985, issued in the original
aggregate principal amount of $100,000,000.
"Series B Program Loan" shall mean any Loan of any portion of the proceeds of the
Series B Bonds to a Participating Governmental Unit.
"State" shall mean the State of Florida.
"State Repository" shall mean any public or private repository or entity designated by
the State as a state repository for the purpose of the Rule and recognized as such by the
Securities and Exchange Commission. As of the date of this Disclosure Certificate, there is no
State Repository.
Section 3. Provision of Annual Reports.
(a) During the Reporting Period, the Borrower shall, or shall cause the Dissemination
Agent to, not later than the date which shall be 270 days after the end of the Borrower's Fiscal
Year (presently September 30), provide to each Repository an Annual Report which is
consistent with the requirements of Section 4 of this Disclosure Certificate. The Annual Report
may be submitted as a single document or as separate documents comprising a package, and
may cross-reference other information as provided in Section 4 of this Disclosure Certificate;
provided that the audited financial statements of the Borrower may be submitted separately
from the balance of the Annual Report and later than the date required above for the filing of
004.209315.2
3
the Annual Report if they are not available by that date. If the Borrower's Fiscal Year
changes, it shall give notice of such change in the next Annual Report filed by the Borrower.
(b) Not later than fifteen (15) business days prior to said date, the Borrower shall
provide the Annual Report to the Dissemination Agent (if other than the Borrower). If the
Borrower is unable to provide to the Repositories an Annual Report (other than the audited
financial statements described in Section 4(a)) by the date required in Section 3(a), the
Borrower shall send a notice to (i) each National Repository or the Municipal Securities Rule
Making Board and (ii) the State Repository in substantially the form attached as Exhibit A.
(c) The Dissemination Agent shall:
i. determine each year prior to the date for providing the Annual Report
the name and address of each National Repository and the State Repository, if any; and
ii. if the Dissemination Agent is other than the Borrower, file a report with
the Borrower certifying that the Annual Report has been provided pursuant to this
Disclosure Certificate, stating the date it was provided and listing all the Repositories to
which it was provided.
Section 4. Content of Annual Reports. The Borrower's Annual Report shall contain or
include by reference the following:
(a) The audited financial statements of the Borrower for the prior Fiscal Year, prepared
in accordance with generally accepted accounting principles as promulgated to apply to
governmental entities from time to time by the Governmental Accounting Standards Board. If
the Borrower's audited financial statements are not available by the time the Annual Report is
required to be filed pursuant to Section 3(a), the Annual Report shall contain unaudited
financial statements in a format similar to the Borrower's audited financial statements, and the
audited financial statements shall be filed in the same manner as the Annual Report when they
become available.
(b) The financial information and operating data of the type found in the following
portions of the Official Statement dated September 26, 1997 for the Borrower's General
Obligation Bonds (Park Improvements Projects), Series 1996, which portions are reproduced
as Exhibit C hereto, for the prior Fiscal Year:
i. information under the table "City of Miami Beach, Florida, Property
Tax Levies and Collections, Fiscal Years 1986 through 1995";
ii. information under the table "City of Miami Beach, Florida, Statement of
Tax Levies and Tax Rates, Fiscal Years 1987 through 1996";
111. information under the table "City of Miami Beach, Florida, Computation
of Direct and Overlapping Debt, September 30, 1996";
004.209315.2
4
iv. information under the table "City of Miami Beach, Florida, Summary of
Direct and Overlapping Debt as of September 30, 1996"; and
v. information under the table "Debt Service Requirements" with respect to
the Borrower's outstanding general obligation debts, including the Loan.
(c) If the Borrower's obligations under this Disclosure Certificate shall have terminated
pursuant to the provisions of Section 5 hereof, notice of such termination.
The obligation to provide the information under Section 4(a) and Section 4(b) may be satisfied
by providing a copy of the Borrower's comprehensive annual financial report to the extent the
information required by Section 4(a) and Section 4(b) is contained therein. The information
provided under Section 4(b) may be included by specific reference to other documents which
have been submitted to each of the Repositories or the Securities and Exchange Commission.
If the document included by reference is a final official statement, remarketing circular or
remarketing supplement, it must be available from the Municipal Securities Rulemaking Board.
The Borrower shall clearly identify each such other document so included by reference.
Section 5. Termination of Reoorting Obligation. In the event the Borrower is or
becomes a Reporting Governmental Unit, the Borrower's reporting obligations under this
Disclosure Certificate shall terminate upon (a) receipt of written notice from the Issuer that the
Borrower has ceased to be a Reporting Governmental Unit, and (b) the filing of an Annual
Report containing the notice described in Section 4(c) hereof.
Section 6. Dissemination Agent. The Borrower may, from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Certificate, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. The Dissemination Agent shall not be responsible in any
manner for the content of any notice or report prepared by the Borrower pursuant to this
Disclosure Certificate.
Section 7. Amendment: Waiver. Notwithstanding any other provIsIon of this
Disclosure Certificate, the Borrower may amend this Disclosure Certificate, and any provision
of this Disclosure Certificate may be waived, provided that the following conditions are
satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a) and 4, it may
only be made in connection with a change in circumstances that arises from a change in legal
requirements, change in law, or change in the identity, nature or status of the Borrower, or the
type of business conducted;
(b) The undertaking, as amended or taking into account such waiver, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of the
Rule as of December 1, 1999, after taking into account any amendments or interpretations of
the Rule, as well as any change in circumstances; and
004.209315.2
5
(c) The amendment or waiver either (i) is approved by the Holders of the Series B
Bonds in the same manner as provided in the Indenture for amendments to the Indenture with
the consent of Holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the Holders or Beneficial Owners of the Series B Bonds.
In the event of any amendment or waiver of a provision of this Disclosure Certificate, the
Borrower shall describe such amendment in the next Annual Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on
the type (or in the case of a change of accounting principles, on the presentation) of financial
information or operating data being presented by the Borrower. In addition, if the amendment
relates to the accounting principles to be followed in preparing financial statements, (i) notice
of such change shall be given in the Annual Report for the year in which the change is made
and such Annual Report should present a comparison (in narrative form and also, if feasible, in
quantitative form) between the financial statements as prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles.
Section 8. Additional Information. Nothing in this Disclosure Certificate shall be
deemed to prevent the Borrower from disseminating any other information, using the means of
dissemination set forth in this Disclosure Certificate or any other means of communication, or
including any other information in any Annual Report, in addition to that which is required by
this Disclosure Certificate. If the Borrower chooses to include any information in any Annual
Report in addition to that which is specifically required by this Disclosure Certificate, the
Borrower shall have no obligation under this Disclosure Certificate to update such information
or include it in any future Annual Report.
Section 9. Default. In the event of a failure of the Borrower to comply with any
provision of this Disclosure Certificate the Trustee may (and at the request of the Remarketing
Agent, the Issuer or the Holders of at least 25 % aggregate principal amount of Outstanding
Series B Bonds, shall), or the Issuer or any Holder or Beneficial Owner of the Series B Bonds
may, take such actions as may be necessary and appropriate, including seeking mandamus or
specific performance by court order, to cause the Borrower to comply with its obligations
under this Disclosure Certificate; provided, however, the sole remedy under this Disclosure
Certificate in the event of any failure of the Borrower to comply with this Disclosure
Certificate shall be an action to compel performance. A default under this Disclosure
Certificate shall not be deemed an Event of Default under the Indenture or the Borrower Loan
Agreement.
Section 10. Duties. Immunities and Liabilities of Dissemination Al!ent. The
Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure
Certificate, and the Borrower agrees to indemnify and save the Dissemination Agent, its
officers, directors, employees and agents, harmless against any loss, expense and liabilities
which it may incur arising out of or in the exercise or performance of its powers and duties
hereunder, including the costs and expenses (including attorneys' fees) of defending against
any claim of liability, but excluding liabilities due to the Dissemination Agent's negligence or
willful misconduct. The obligations of the Borrower under this Section 10 shall survive
004.209315.2
6
resignation or removal of the Dissemination Agent and the termination of the obligations of the
Borrower under this Disclosure Certificate.
Section 11. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit
of the Issuer, the Borrower, the Dissemination Agent, the Remarketing Agent and Holders and
Beneficial Owners from time to time of the Series B Bonds, and shall create no rights in any
other person or entity.
Date: June 1,2000.
CITY OF MIAMI BEACH, FLORIDA
By:
Patricia Walker, Finance Director
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
4f( MiJ~4~1r/
004.209315.2
7
EXIDBIT A
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Borrower:
City of Miami Beach, Florida
Name of Bond Issue:
City of Gulf Breeze, Florida, Local Government Loan Program
Floating Rate Demand Revenue Bonds, Series 1985 B, dated as
of December 30, 1985
Date of Issuance:
December 30, 1985
NOTICE IS HEREBY GIVEN that the Borrower has not provided an annual report
with respect to the above-referenced Series 1985 B Bonds as required by Sections 3 and 4 of
the Continuing Disclosure Certificate dated June 1, 2000, executed and delivered by the
Borrower in connection with the loan of a portion of the proceeds of the Series 1985 B Bonds
pursuant to a Loan Agreement dated as of June 1, 2000, between SunTrust Bank (formerly
SunTrust Bank, Central Florida, National Association), the City of Gulf Breeze, Florida,
acting by and through Lane Gilchrist, Mayor, as Administrator, and the Borrower. [The
Borrower anticipates that the annual report will be filed by .]
Dated:
By:
Its:
004.209315.2
8
EXIDBIT B
Nationally Recognized Municipal Securities Information Repositories approved by the
Securities and Exchange Commission as of June 1, 2000:
Bloomberg Municipal Repositories
P.O. Box 840
Princeton, N.J. 08542 -0840
Phone: (609) 279-3225
Fax: (609) 279-5962
E-mail: Munis@Bloomberg.com
DPC Data Inc.
One Executive Drive
Fort Lee, NJ 07024
Phone: (201) 346-0701
Fax: (201) 947-0107
E-mail: nrmsir@dpcdata.com
Interactive Data
Attn: Repository
100 Williams Street
New York, NY 10038
Phone: (212) 771-6899
Fax: (212) 771-7390
E-mail: nrmsir@interactivedata.com
Standard & Poor's J. J. Kenny Repository
55 Water Street
45th Floor
New York, NY 10041
Telephone: (212) 438-4595
Facsimile: (212) 438-3975
The current list of NRMSIRs can be found at any time at the SEC's Web site at
http://www.sec.gov/consumer/nrmsir.htm.
004.209315.2
9
EXIDBIT C
SAMPLE FINANCIAL INFORMATION AND OPERATING DATA
004.209315.2
10
CITY OF MIAMI BEACH, FLORIDA
PARTICIPATING GOVERNMENTAL UNIT
CONTINUING DISCLOSURE CERTIFICATE
Local Government Loan Program
Floating Rate Demand Revenue Bonds
Series 1985 E
This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and
delivered by the City of Miami Beach, Florida (the "Borrower"), in connection with the
execution and delivery on the date hereof of that certain Loan Agreement dated as of June 1,
2000 (the "Borrower Loan Agreement"), between SunTrust Bank (formerly SunTrust Bank,
Central Florida, National Association) (as successor trustee to The Bank of New York, which
succeeded AmSouth Bank, N.A. as trustee), Orlando, Florida, as Trustee (the "Trustee"), the
City of Gulf Breeze, Florida (the "Issuer") acting by and through Lane Gilchrist, Mayor, as
Administrator, and the Borrower, pursuant to which the Issuer is making a loan to the
Borrower of a portion of the proceeds of the Issuer's Local Government Loan Program
Floating Rate Demand Revenue Bonds, Series 1985 E ("Series E Bonds"). Such bonds were
issued under and pursuant to a 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 Issuer and the Trustee. The Borrower agrees as follows:
Section I. Purpose of this Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the Borrower in order to assist the remarketing agent or agents for
the Series E Bonds (each a "Remarketing Agent") in complying with SEe Rule 15c2-12(b)(5).
Section 2. Definitions. The following capitalized terms shall have the following
meanings:
"Administrator" shall mean the Mayor of the Issuer or any substitute administrator
selected by the Issuer and approved by the Credit Facility Issuer (as defined in the Indenture).
"Annual Determination Date" shall mean the last day of each Fiscal Year.
"Annual Report" shall mean any Annual Report provided by the Borrower pursuant to,
and as described in, Sections 3 and 4 of this Disclosure Certificate.
"Beneficial Owner" shall mean any person which (a) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series E
Bonds (including persons holding Series E Bonds through nominees, depositories or other
intermediaries), or (b) is treated as the owner of any Series E Bonds for federal income tax
purposes.
004.209295.2
1
"Dissemination Agent" shall mean the Borrower, or any successor Dissemination
Agent designated in writing by the Borrower and which has filed with the Borrower a written
acceptance of such designation.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Governmental Units" shall mean the State or any city, county, special district,
municipal corporation, political subdivision, port authority or other governmental entity
described in Chapter 163, Part I, Florida Statutes, authorized to finance or refinance the costs
of qualifying projects under Loan Agreements.
"Loan" shall mean the loan made by the Issuer to a Governmental Unit pursuant to the
provisions of the Indenture and the applicable Loan Agreement.
"Loan Agreements" shall mean the Loan Agreements, between the Administrator on
behalf of the Issuer, the Trustee and Participating Governmental Units.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The National Repositories currently
approved by the Securities and Exchange Commission and a method of obtaining hereafter the
most current listing of approved National Repositories, are set forth in Exhibit B.
"Participating Governmental Unit" shall mean any Governmental Unit which has
received a Loan.
"Program" shall mean the Local Government Loan Program whereby the proceeds of
the Series E Bonds are applied to finance or refinance qualifying projects for Participating
Governmental Units pursuant to Loan Agreements and the Indenture.
"Reporting Governmental Unit" shall mean each Participating Governmental Unit
which enters into a Loan Agreement on or after December 1, 1999 if the aggregate of the
outstanding principal balances on all Series E Program Loans to such Participating
Governmental Unit, as of the most recent Annual Determination Date, equals or exceeds an
amount equal to twenty percent (20 %) of the aggregate principal amount of the Series E Bonds
outstanding on such Annual Determination Date. For purposes of determining whether a
Participating Governmental Unit is a Reporting Governmental Unit, only the outstanding
principal balances on all Series E Program Loans to such Participating Governmental Unit
which are secured by the same fund, enterprise, revenues or account of such Participating
Governmental Unit shall be taken into account. Not later than thirty (30) days after each
Annual Determination Date, the Issuer will determine which Participating Governmental Units
are Reporting Governmental Units and will provide written notice to each Reporting
Governmental Unit and each Participating Governmental Unit that was a Reporting
Governmental Unit as of the immediately preceding Annual Determination Date, stating that
such Participating Governmental Unit has become, continues to be or has ceased to be, as the
004.209295.2
2
case may be, a Reporting Governmental Unit. The Issuer will provide such notice by (i)
telecopier, telex or other telegraphic means (with receipt confirmed), provided that in each
case a copy is mailed by registered or certified mail, postage prepaid, return receipt requested,
or (ii) express mail or delivery service guaranteeing overnight delivery.
"Reporting Period" shall mean the period commencing on the Annual Determination
Date on which the Borrower becomes a Reporting Governmental Unit and ending on the
Annual Determination Date on which the Borrower ceases to be a Reporting Governmental
Unit.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from
time to time.
"Series E Bondholder" or "Holder" or "Holder of Series E Bonds" shall mean the
registered owner of any Series E Bond (other than the bond registrar and paying agent for the
Series E Bonds holding Series E Bonds tendered to it for payment pursuant to Article III of the
Indenture prior to the purchase and payment for such Series E Bonds).
"Series E Bonds" shall mean the Issuer's Local Government Loan Program Floating
Rate Demand Revenue Bonds, Series 1985 E, dated December 30, 1985, issued in the original
aggregate principal amount of $100,000,000.
"Series E Program Loan" shall mean any Loan of any portion of the proceeds of the
Series E Bonds to a Participating Governmental Unit.
"State" shall mean the State of Florida.
"State Repository" shall mean any public or private repository or entity designated by
the State as a state repository for the purpose of the Rule and recognized as such by the
Securities and Exchange Commission. As of the date of this Disclosure Certificate, there is no
State Repository.
Section 3. Provision of Annual Reports.
(a) During the Reporting Period, the Borrower shall, or shall cause the Dissemination
Agent to, not later than the date which shall be 270 days after the end of the Borrower's Fiscal
Year (presently September 30), provide to each Repository an Annual Report which is
consistent with the requirements of Section 4 of this Disclosure Certificate. The Annual Report
may be submitted as a single document or as separate documents comprising a package, and
may cross-reference other information as provided in Section 4 of this Disclosure Certificate;
provided that the audited financial statements of the Borrower may be submitted separately
from the balance of the Annual Report and later than the date required above for the filing of
004.209295.2
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the Annual Report if they are not available by that date. If the Borrower's Fiscal Year
changes, it shall give notice of such change in the next Annual Report filed by the Borrower.
(b) Not later than fifteen (15) business days prior to said date, the Borrower shall
provide the Annual Report to the Dissemination Agent (if other than the Borrower). If the
Borrower is unable to provide to the Repositories an Annual Report (other than the audited
financial statements described in Section 4(a)) by the date required in Section 3(a), the
Borrower shall send a notice to (i) each National Repository or the Municipal Securities Rule
Making Board and (H) the State Repository in substantially the form attached as Exhibit A.
(c) The Dissemination Agent shall:
i. determine each year prior to the date for providing the Annual Report
the name and address of each National Repository and the State Repository, if any; and
ii. if the Dissemination Agent is other than the Borrower, file a report with
the Borrower certifying that the Annual Report has been provided pursuant to this
Disclosure Certificate, stating the date it was provided and listing all the Repositories to
which it was provided.
Section 4. Content of Annual Reports. The Borrower's Annual Report shall contain or
include by reference the following:
(a) The audited financial statements of the Borrower for the prior Fiscal Year, prepared
in accordance with generally accepted accounting principles as promulgated to apply to
governmental entities from time to time by the Governmental Accounting Standards Board. If
the Borrower's audited financial statements are not available by the time the Annual Report is
required to be filed pursuant to Section 3(a), the Annual Report shall contain unaudited
financial statements in a format similar to the Borrower's audited financial statements, and the
audited financial statements shall be filed in the same manner as the Annual Report when they
become available.
(b) The financial information and operating data of the type found in the following
portions of the Official Statement dated September 26, 1997 for the Borrower's General
Obligation Bonds (Park Improvements Projects), Series 1996, which portions are reproduced
as Exhibit C hereto, for the prior Fiscal Year:
i. information under the table "City of Miami Beach, Florida, Property
Tax Levies and Collections, Fiscal Years 1986 through 1995";
ii. information under the table "City of Miami Beach, Florida, Statement of
Tax Levies and Tax Rates, Fiscal Years 1987 through 1996";
Hi. information under the table "City of Miami Beach, Florida, Computation
of Direct and Overlapping Debt, September 30, 1996";
004.209295.2
4
iv. information under the table "City of Miami Beach, Florida, Summary of
Direct and Overlapping Debt as of September 30, 1996"; and
v. information under the table "Debt Service Requirements" with respect to
the Borrower's outstanding general obligation debts, including the Loan.
(c) If the Borrower's obligations under this Disclosure Certificate shall have terminated
pursuant to the provisions of Section 5 hereof, notice of such termination.
The obligation to provide the information under Section 4(a) and Section 4(b) may be satisfied
by providing a copy of the Borrower's comprehensive annual financial report to the extent the
information required by Section 4(a) and Section 4(b) is contained therein. The information
provided under Section 4(b) may be included by specific reference to other documents which
have been submitted to each of the Repositories or the Securities and Exchange Commission.
If the document included by reference is a final official statement, remarketing circular or
remarketing supplement, it must be available from the Municipal Securities Rulemaking Board.
The Borrower shall clearly identify each such other document so included by reference.
Section 5. Termination of Reporting Obligation. In the event the Borrower is or
becomes a Reporting Governmental Unit, the Borrower's reporting obligations under this
Disclosure Certificate shall terminate upon (a) receipt of written notice from the Issuer that the
Borrower has ceased to be a Reporting Governmental Unit, and (b) the filing of an Annual
Report containing the notice described in Section 4(c) hereof.
Section 6. Dissemination Agent. The Borrower may, from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Certificate, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. The Dissemination Agent shall not be responsible in any
manner for the content of any notice or report prepared by the Borrower pursuant to this
Disclosure Certificate.
Section 7. Amendment: Waiver. Notwithstanding any other prOVISIon of this
Disclosure Certificate, the Borrower may amend this Disclosure Certificate, and any provision
of this Disclosure Certificate may be waived, provided that the following conditions are
satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a) and 4, it may
only be made in connection with a change in circumstances that arises from a change in legal
requirements, change in law, or change in the identity, nature or status of the Borrower, or the
type of business conducted;
(b) The undertaking, as amended or taking into account such waiver, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of the
Rule as of December 1, 1999, after taking into account any amendments or interpretations of
the Rule, as well as any change in circumstances; and
004.209295.2
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(c) The amendment or waiver either (i) is approved by the Holders of the Series E
Bonds in the same manner as provided in the Indenture for amendments to the Indenture with
the consent of Holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the Holders or Beneficial Owners of the Series E Bonds.
In the event of any amendment or waiver of a provision of this Disclosure Certificate, the
Borrower shall describe such amendment in the next Annual Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on
the type (or in the case of a change of accounting principles, on the presentation) of financial
information or operating data being presented by the Borrower. In addition, if the amendment
relates to the accounting principles to be followed in preparing financial statements, (i) notice
of such change shall be given in the Annual Report for the year in which the change is made
and such Annual Report should present a comparison (in narrative form and also, if feasible, in
quantitative form) between the financial statements as prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles.
Section 8. Additional Information. Nothing in this Disclosure Certificate shall be
deemed to prevent the Borrower from disseminating any other information, using the means of
dissemination set forth in this Disclosure Certificate or any other means of communication, or
including any other information in any Annual Report, in addition to that which is required by
this Disclosure Certificate. If the Borrower chooses to include any information in any Annual
Report in addition to that which is specifically required by this Disclosure Certificate, the
Borrower shall have no obligation under this Disclosure Certificate to update such information
or include it in any future Annual Report.
Section 9. Default. In the event of a failure of the Borrower to comply with any
provision of this Disclosure Certificate the Trustee may (and at the request of the Remarketing
Agent, the Issuer or the Holders of at least 25 % aggregate principal amount of Outstanding
Series E Bonds, shall), or the Issuer or any Holder or Beneficial Owner of the Series E Bonds
may, take such actions as may be necessary and appropriate, including seeking mandamus or
specific performance by court order, to cause the Borrower to comply with its obligations
under this Disclosure Certificate; provided, however, the sole remedy under this Disclosure
Certificate in the event of any failure of the Borrower to comply with this Disclosure
Certificate shall be an action to compel performance. A default under this Disclosure
Certificate shall not be deemed an Event of Default under the Indenture or the Borrower Loan
Agreement.
Section 10. Duties. Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure
Certificate, and the Borrower agrees to indemnify and save the Dissemination Agent, its
officers, directors, employees and agents, harmless against any loss, expense and liabilities
which it may incur arising out of or in the exercise or performance of its powers and duties
hereunder, including the costs and expenses (including attorneys' fees) of defending against
any claim of liability, but excluding liabilities due to the Dissemination Agent's negligence or
willful misconduct. The obligations of the Borrower under this Section 10 shall survive
004.209295.2
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resignation or removal of the Dissemination Agent and the termination of the obligations of the
Borrower under this Disclosure Certificate.
Section 11. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit
of the Issuer, the Borrower, the Dissemination Agent, the Remarketing Agent and Holders and
Beneficial Owners from time to time of the Series E Bonds, and shall create no rights in any
other person or entity.
Date: June 1, 2000.
CITY OF MIAMI BEACH, FLORIDA
By:
Patricia Walker, Finance Director
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
AI J 111(2 () f ~// (1([(/
.~ Date
004.209295.2
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EXIDBIT A
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Borrower:
City of Miami Beach, Florida
Name of Bond Issue:
City of Gulf Breeze, Florida, Local Govenunent Loan Program
Floating Rate Demand Revenue Bonds, Series 1985 E, dated as
of December 30, 1985
Date of Issuance:
December 30, 1985
NOTICE IS HEREBY GIVEN that the Borrower has not provided an annual report
with respect to the above-referenced Series 1985 E Bonds as required by Sections 3 and 4 of
the Continuing Disclosure Certificate dated June 1, 2000, executed and delivered by the
Borrower in connection with the loan of a portion of the proceeds of the Series 1985 E Bonds
pursuant to a Loan Agreement dated as of June 1, 2000, between SunTrust Bank (formerly
SunTrust Bank, Central Florida, National Association), the City of Gulf Breeze, Florida,
acting by and through Lane Gilchrist, Mayor, as Administrator, and the Borrower. [The
Borrower anticipates that the annual report will be filed by .]
Dated:
By:
Its:
004.209295.2
8
EXlllBIT B
Nationally Recognized Municipal Securities Information Repositories approved by the
Securities and Exchange Commission as of June 1, 2000:
Bloomberg Municipal Repositories
P.O. Box 840
Princeton, N.J. 08542 -0840
Phone: (609) 279-3225
Fax: (609) 279-5962
E-mail: Munis@Bloomberg.com
DPC Data Inc.
One Executive Drive
Fort Lee, NJ 07024
Phone: (201) 346-0701
Fax: (201) 947-0107
E-mail: nrmsir@dpcdata.com
Interactive Data
Attn: Repository
100 Williams Street
New York, NY 10038
Phone: (212) 771-6899
Fax: (212) 771-7390
E-mail: nrmsir@interactivedata.com
Standard & Poor's J. J. Kenny Repository
55 Water Street
45th Floor
New York, NY 10041
Telephone: (212) 438-4595
Facsimile: (212) 438-3975
The current list of NRMSIRs can be found at any time at the SEC's Web site at
http://www.sec.gov/consumer/nrmsir.htm.
004.209295.2
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EXHIBIT C
SAMPLE FINANCIAL INFORMATION AND OPERATING DATA
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10
LOAN AGREEMENT
dated as of June 1, 2000
Among
CITY OF GULF BREEZE, FLORIDA
(the "Sponsor")
and
SUNTRUSTBANK, ORLANDO, FLORIDA
(the "Trustee")
and
CITY OF MIAMI BEACH, FLORIDA
(the "Governmental Unit")
relating to:
CITY OF GULF BREEZE, FLORIDA
LOCAL GOVERNMENT LOAN PROGRAM, SERIES 1985 E
(CITY OF MIAMI BEACH PROJECT)
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I
AR TI CLE I.................................................................................................................................................................. 1
TABLE OF CONTENTS
SECTION 1.1
SECTION 1.2
SECTION 1.3
SECTION 1.4
SECTION 1.5
BACKGROUND ..................................................................................... .......................................... 1
REPRESENTATIONS OF THE GOVERNMENTAL UNIT. ..................................................................... 2
SPONSOR REPRESENTATIONS AND COVENANTS............................................................................ 5
ADMINISTRATOR REPRESENTATIONS. ................................................................................. .......... 6
TRUSTEE REPRESENTATIONS. ........................................................................................................ 6
SECTION 2.1
AR TI CLE II ................................................................................................................................................................ 7
DEFINITIONS. ................................................................................................................................. 7
AR TI CLE III ............................................................................................................................................................ 10
SECTION 3.1
SECTION 3.2
SECTION 3.3
SECTION 3.4
SECTION 3.5
SECTION 3.6
SECTION 3.7
SECTION 3.8
SECTION 3.9
SECTION 3.10
SECTION 3.11
SECTION 3.12
MAKING OF LOAN; ApPLICATION OF LOAN PROCEEDS. ............................................................. 10
DISBURSEMENT OF LOAN; SECURITY INTEREST IN UNDISBURSED PROCEEDS. ........................... 10
REPAYMENT OF LOAN. ............................................................................................................... 11
PREPAYMENT OF LOAN. .............................................................................................................. 13
RESERVE BONDS. ......................................................................................... ............................... 14
GENERAL OBLIGATION OF GOVERNMENTAL UNIT TO PAY PRINCIPAL AND
INTEREST; SPECIAL OBLIGATION TO PAY ADDITIONAL LOAN CHARGES. ................................... 15
BENEFIT OF BONDHOLDERS AND ENHANCEMENT PROVIDER; COOPERATION
BETWEEN PARTIES. ........................ ............ ................................................................................. 18
BONDS NOT To BECOME ARBITRAGE BONDS. ............................................................................ 18
ASSIGNMENT OF SPONSOR'S RIGHTS. ......................................................................................... 18
COVENANT REGARDING PLEDGED FUNDS; REVENUE FUND; SINKING FUND. ............................. 19
AL TERNA TE SECURITY FOR GOVERNMENTAL UNIT NOTE. ......................................................... 20
INTERLOCAL AGREEMENT. ................ ................. ................. ......................... .............................. 20
ARTI CLE IV ............................................................................................................................................................. 22
SECTION 4.1
SECTION 4.2
SECTION 4.3
SECTION 4.4
SECTION 4.5
REpORTS AND OPINIONS; INSPECTIONS. ..................................................................................... 22
IMMUNITY OF SPONSOR. ............................. ................................................................................ 23
COMPLIANCE WITH LAWS.................................. ......................................................................... 23
RESERVED. .................................................................................................................................. 23
RESERVED. .................................................................................................................................. 23
ARTICLE V .......................................................................................................................................................... 2 4~
SECTION 5.1
SECTION 5.2
SECTION 5.3
SECTION 5.4
SECTION 5.5
SECTION 5.6
SECTION 5.7
EVENTS OF DEFAULT. ............................................................................................................. 2 '123
No ACCELERATION. ................................................................................................................ 2 5~
PAYMENT OF LOAN ON DEFAULT; SUIT THEREFOR................................................................ 25~
OTHER REMEDIES......................... ........................................................................................... 2~
CUMULATIVE RIGHTS. ...................................................................................................... ....... 2 7~
DISCONTINUANCE OF PROCEEDS. ........................................................................................... 27~
NOTICE OF DEFAULT. ... .......................................................................................................... 2 7 ~
AR TI CLE VI ......................................................................................................................................................... 2 8~
SECTION 6.1
SECTION 6.2
SECTION 6.3
SECTION 6.4
SECTION 6.5
SECTION 6.6
SECTION 6.7
SECTION 6.8
SECTION 6.9
SECTION 6.10
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LIMITATION OF LIABILITY. ..................................................................................................... 28~
No PERSONAL RECOURSE. ...................................................................................................... 28;;!.;1.
NOTICES. ................................................................................................................................. 28;;!.;1.
ILLEGAL OR INVALID PROVISIONS DISREGARDED. ................................................................. 29;;!.;1.
ApPLICABLE LA w.................................................................................................................... 29;;!.;1.
ASSIGNMENTS. ........................................................................................................................ 29;;!.;1.
AMENDMENTS. ................................................................................................................... ..... 29;;!.;1.
TERM OF AGREEMENT. ........................................................................... ............................ .... 30~
HEADINGS. .............................................................................................................................. 30~
NOTICE OF EXPECTATION OF OBLIGATION TO MAKE CERTAIN PAyMENTS............................. 30~
SECTION 6.11
SECTION 6.12
ENTIRE AGREEMENT. .............................................................................................................. 30~
LIMIT A nON OF INVESTMENT EARNINGS CREDIT. ................................................................... 30~
EXHIBIT A ........................................................................................................................................................... 3 7 ~
SCHEDULE "I" .................................................................................................................................................... 4 2~
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of June 1, 2000, between SUNTRUST
BANK, ORLANDO, FLORIDA, as Trustee (the "Trustee") for the holders of the Bonds
(as defmed 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
E (the "Bonds") the proceeds of which are to be used for the purpose of fmancing 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 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 fmancing 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 defined in the Indenture hereinafter referred to as the
"Credit Facility").
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(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
December 1, 1991, with Credit Locale de France, New York Agency (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
$ for the purposes of financing the cost of acquisition and construction of
certain capital improvements for the Governmental Unit (the "Project") and paying the
costs associated therewith, which shall hereinafter be referred to collectively as the
"Financing Program."
(h) As evidence of the Loan made pursuant to this Loan Agreement, the
Governmental Unit will execute and deliver a fIxed 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 Loan 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 Loan Agreement may be assigned by
the Trustee to the Credit Facility Issuer under the circumstances set forth therein.
(i) The amount of Bonds required by the Indenture to be converted to the
Fixed Rate Mode has been converted (the "Converted Bonds") to a Fixed Rate Mode for
Fixed Rate Periods as required by the Indenture.
(j) The proceeds of the Loan shall be applied as provided herein to
accomplish the Financing Program.
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 Loan Agreement and perform its
obligations hereunder, and to [mance the Financing Program in the manner
contemplated herein. The Governmental Unit's actions in making and performing this
Loan 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 Financing Program.
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(c) The proceeds of the Loan will be applied to pay the cost of the Financing
Program. 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 defmed 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.
(e) On September 17, 1999, the Mayor and City Commission of the
Governmental Unit (the "Commission") adopted resolutions calling for referendums
relating to the issuance of (i) not to exceed $57,915,000 of the Governmental Unit's
general obligation bonds for improvements to neighborhood infrastructure (the
"Neighborhood G.O.'s"), (ii) not to exceed $24,830,000 of the Governmental Unit's
general obligation bonds for improvements to parks and beaches (the "Parks G.O.'s")
and (iii) not to exceed $9,720,000 of the Governmental Unit's general obligation bonds
for improvements to fire stations and related facilities and to acquire and equip fire
trucks (the "Fire Safety G.O.'s" and together with the Neighborhood G.O.'s and the
Parks G.O.'s, the "G.O.'s"). An election was held on November 2, 1999 at which the
issuance of the G.O.'s was approved by the electorate of the Governmental Unit (the
"Referendum Approvals").
(f) The Governmental Unit has decided to issue at this time (i)
$ principal amount of the Neighborhood G.O.'s, (ii) $
principal amount of the Parks G.O.'s, and (ill) $ principal amount of
the Fire Safety G.O.'s by entering into the Loan and delivering and executing the
Governmental Unit Note. Simultaneously with the Loan, the Governmental Unit will
enter into a loan agreement (the "Series B Loan Agreement") and issue its Series
1985B Governmental Unit Note for an additional $_ aggregate principal amount of
the G.O.'s, to be funded from the proceeds of the Sponsor's Floating Rate Demand
Revenue Bonds, Series 1985B (the "Series B Loan").
(g) The Governmental Unit is duly authorized and empowered to issue the
Governmental Unit Note, (i) the payment of principal and interest on which is a valid
and enforceable general obligation of the Governmental Unit, and (ii) all payments in
respect of which, other than amounts payable as principal and interest (the
"Additional Loan Charges", as hereinafter defined), are a valid and enforceable special
and limited obligation of the Governmental Unit, payable solely from the Non-Ad
Valorem Revenues in the manner hereinafter provided. The Governmental Unit is
further authorized to pledge the sources hereinafter mentioned to the repayment
thereof in the manner hereinafter provided, and to apply the proceeds thereof to the
payment of the Costs of the Financing Program. The Governmental Unit Note is being
issued pursuant to the Referendum Approvals, the Authorizing Resolution herein
defmed and the Constitution and laws of the State of Florida, including, without
limitation, Article VII, Section 12 of the Constitution, Chapter 166, Florida Statutes, as
amended and the City of Miami Beach Charter, as amended.
(h) On June _, 2000, the Governmental Unit duly adopted Resolution _
(the "Authorizing Resolution"), authorizing the Loan, this Loan Agreement and the
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Governmental Unit Note. The terms and provisions of the Authorizing Resolution are
hereby incorporated by reference.
(i) 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.
OJ The Governmental Unit is in compliance with all covenants and
undertakings in connection with the Project.
(k) The Project shall be owned and operated by the Governmental Unit
(subject only to lease or management agreements permitted under Section 4.6(C)
hereof). In addition, any portion of the Project may also be disposed of by the
Governmental Unit in its ordinary course of business, but only upon compliance with
all requirements of Florida law in connection therewith and receipt by the Trustee of a
Favorable Opinion of Bond Counsel. Any disposition of any portion of the Project
financed 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.
(1) To date, no other bonds, notes or other obligations have been issued
under the authority of, or pursuant to, the Referendum Approvals; and the Pledged
Funds are not pledged or encumbered in any manner, except as provided in this Loan
Agreement and in the Series B Loan Agreement. The Governmental Unit is, and will
be, immediately following the Closing of the Loan hereunder, in full compliance with
all restrictions and covenants and agreements under which it may be obligated,
affecting its right and ability to incur the obligation to pay the Additional Loan
Charges from the Non-Ad Valorem Revenues, and to secure the same, all in the
manner provided herein.
(m) The Governmental Unit is issuing the Governmental Unit Note for the
purpose of implementing the Referendum Approvals and financing the Financing
Program.
(n) All acts, conditions and things required to happen, exist and be
performed, precedent to and in the issuance of the Governmental Unit Note and this
Loan Agreement, have happened, exist, and have been performed in due time, form
and manner as required by the Constitution and laws of the State of Florida applicable
thereto; the total indebtedness of the Governmental Unit, including the Governmental
Unit Note and this Loan Agreement, does not exceed any constitutional, statutory or
charter limitation; and provision has been duly made for the levy and collection of a
direct annual tax, without limitation as to rate or amount, upon all taxable property
within the Governmental Unit (excluding exemptions as provided by law) sufficient to
pay the principal of and interest on the Loan and the Governmental Unit Note as the
same shall become due, which tax shall be levied and collected at the same time, and
in the same manner, as other ad valorem taxes of the Governmental Unit are
assessed, levied and collected. For the prompt payment of the principal of and
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interest, on the Governmental Unit Note and this Loan, the full faith, credit and taxing
power of the Governmental Unit are irrevocably pledged; provided that such pledge of
the full faith, credit and taxing power shall not extend to the payment hereunder of
the Additional Loan Charges. The obligation of the Governmental Unit to pay the
Additional Loan Charges is a special, limited obligation of the Governmental Unit,
payable solely from the Non-Ad Valorem Revenues as herein provided.
SECTION 1.3
SPONSOR REpRESENTATIONS AND COVENANTS.
(a) The Sponsor hereby represents:
(i) The Sponsor is a municipal corporation of the State of Florida duly
existing with full power and authority to issue the Bonds and to enter into this Loan
Agreement and to make the Loan herein contemplated.
(ii) By proper action the Sponsor has duly authorized the issuance
and sale of the Bonds and the execution and delivery of this Loan 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.
(ill) The Sponsor is not in default under any prOVISIon of the
Indenture, and no "Event of Default" as defmed 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.
(iv) 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.
(v) This Loan 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, 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 this Loan Agreement and the performance thereof, by the Sponsor, have been
completed.
(vi) 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.
(vii) The Sponsor will make no other Loans funded with proceeds of the
Bonds without obtaining a Favorable Opinion of Bond Counsel.
(viii) The funding of the Loan for the Project will not adversely affect the
income tax status of the interest on the Bonds.
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(ix) There are no Increased Costs outstanding as of the date hereof.
(x) There are currently no outstanding Non-Asset Bonds.
(b) The Sponsor covenants to require all Governmental Units to whom Loans
are hereafter made to become liable for a Pro-Rata Share of the Non-Asset Bonds and
Costs and Expenses of the Program then outstanding or thereafter arising.
SECTION 1.4
ADMINISTRATOR REPRESENTATIONS.
The Administrator represents that he has duly authorized the execution and
delivery of this Loan 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.
The Trustee represents that it is a state bank organized under the laws of
Georgia duly existing, and with full power and authority to enter into this Loan
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 Loan Agreement and the Indenture.
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ARTICLE n
DEFINITIONS
SECTION 2.1
DEFINITIONS.
The capitalized terms used in this Loan 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 defined as follows:
"Additional Loan Charges" shall mean all amounts payable by the
Governmental Unit hereunder or under the Governmental Unit Note other than
amounts which constitute principal or interest on the Loan, including, without
limitation, the Reserve Payments and Costs and Expenses of the Program, as provided
in Section 3.3(c) hereof.
"Administrative Expenses" shall mean the portion of the Costs and Expenses
of the Program allocable to the fees of the Administrator, the Independent Contractor
and the Issuer.
"Bonds" shall mean the Sponsor's Local Government Loan Program Floating
Rate Demand Revenue Bonds, Series 1985 E.
"City" means the Governmental Unit.
"Commitment" means the commitment of the Administrator as dermed and
described in Section 1. 1 hereof.
"Cost" or "Costs" in connection with the Financing Program, 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 for the
acquisition and 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 this Loan
Agreement, including reimbursement to the Administrator for its out-of-pocket
expenses, and the cost of such other items as may be reasonable and necessary for
the acquisition and/ or construction of the Project.
"Costs and Expenses of the Program" shall mean the reasonable fees, charges
and expenses of the Trustee, and the reasonable expenses of the Sponsor, the Registrar
and Paying Agent, and the Independent Contractor, including the reasonable fees and
expenses of general or special counsel to any of the foregoing or to the Financial Advisor
or the Administrator; provided that the annual administrative fees and charges of the
Sponsor, the Administrator, the Independent Contractor and the Financial Advisor, for
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their services hereunder, exclusive of out-of-pocket expenses and disbursements and
reasonable counsel fees and expenses, shall not be charged to the Governmental Unit.
Further, it is agreed that except for Reserve Payments, as defined herein, and subject to
the provisions of Section 6.12 hereof, the Govemmental Unit shall have no liability for
Costs and Expenses of the Program attributable to the fees, charges and expenses of the
Liquidity Facility Issuer and the Remarketing Agent, and no portion of such fees,
charges and expenses of the Liquidity Facility Issuer and the Remarketing Agent shall
be included as Costs and Expenses of the Program for purposes of computing any
payments due from the Govemmental Unit on the Loan or the Governmental Unit Note.
The Administrative Expenses of the Program shall be payable solely from earnings on
funds in the Reserve Account under the Indenture and other funds held by the Trustee
for the benefit of the Program, and the Governmental Unit shall never have any liability
therefor under any circumstances.
"Fiscal Year" shall mean the period commencing on October 1 and continuing
to and including the next succeeding September 30 or such other annual period as
may be prescribed by law or by the Govemmental Unit in accordance with law.
"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
Govemmental Unit Note.
"Loan Year" shall mean an annual period commencing on December 2 of each
year and ending on the following December 1.
"Non-Ad Valorem Revenues" shall mean all general fund revenues of the
Govemmental Unit derived from any source other than ad valorem taxation on real or
personal property which are legally available to make the payments required under
this Loan Agreement.
"Pledged Funds" shall mean the Revenue Fund and the Sinking Fund created
pursuant to Section 3.10(b) hereof.
"Pledged Revenues" shall mean the portion of the Non-Ad Valorem Revenues
deposited in the Revenue Fund created pursuant to Section 3.10(b) hereof, provided,
however, that prior to deposit of such moneys by the Govemmental Unit in to the
Revenue Fund, such moneys shall not constitute "Pledged Revenues".
"Pro-Rata Share" shall mean the percentage derived by dividing the principal
amount of the Govemmental 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" shall mean the capital improvements to be constructed and/ or
acquired by the Govemmental Unit in furtherance of the Referendum Approvals.
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"Reserve Payment" shall mean, for any period of calculation: (a) the
Governmental Unit's Pro-Rata Share of principal payments required to be made in
respect of Non-Asset Bonds hereafter arising under the Indenture; (b) the Pro-Rata
Share of interest expense and other Costs and Expenses of the Program (other than
Administrative Expenses) allocable to the Reserve Bonds or incurred pursuant to
Section 3.5(a) hereof; and (c) the Liquidation Shortfall as provided in Section 3.5(b) of
this Loan Agreement. The Governmental Unit shall not be entitled to a reduction of or
credit toward the amount of such fees and expenses that the Governmental Unit shall
be obligated to pay, pursuant to Section 3.3 hereof and Section 404 of the Indenture,
in respect of any investment earnings received on the funds held under the Indenture
provided that the net earnings on the Reserve Bonds (after payment of interest on and
the Costs and Expenses of the Program, including Administrative Expenses relating to
the Reserve Bonds) shall be applied to pay Costs and Expenses of the Program prior to
computing the amount of such Costs and Expenses for which the Governmental Unit
will have responsibility for payment of its Pro-Rata Share. The computation of the
Reserve Payment of the Governmental Unit shall be made assuming full payments will
be timely received in respect of each Loan whether or not the payments thereunder are
actually made or may be discharged in bankruptcy or declared void or unenforceable
for any reason, it being the intention of the parties that no Governmental Unit shall
bear any fmancial obligation arising because of the invalidity of or a default in any
Loan of another Governmental Unit. In calculating the amount of the Governmental
Unit's Reserve 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 semiannual installments over the
lesser of sixty (60) months or the remaining life of the Loan. For purposes of
determining the Governmental Unit's Reserve Payment, 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 Trustee hereunder.
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ARTICLE III
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
$ 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
1.2(k) 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.
SECTION 3.2 DISBURSEMENT OF LoAN; SECURITY INTEREST IN
UNDISBURSED PROCEEDS.
(a) Following the execution and delivery of this Loan Agreement and the
Governmental Unit Note (the "Closing"), the Trustee shall disburse from moneys other
than proceeds of the Loan 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 to the Expense Account created under the Indenture.
(b) The Governmental Unit agrees to establish and create, and hereby does
establish and create a separate fund of the Governmental Unit to be known as the
"Gulf Breeze Pooled Financing Loan Program Series E Loan Proceeds Fund" (the "Loan
Proceeds Fund") which account shall be separate and distinct from all other funds and
accounts of the Governmental Unit. The net proceeds of the Loan shall be disbursed
by the Trustee to the Governmental Unit at closing, and shall be deposited by the
Governmental Unit, immediately upon receipt thereof, into the Loan Proceeds Fund
and applied, together with any income from investment thereof, to pay the Costs of the
Project in accordance with the Referendum Approvals. 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(k) hereof, to the extent
such proceeds are not applied to prepay the Loan.
(c) The Governmental 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 and of the
Financing Program.
(d) Until disbursed in accordance with the prOVlSlons 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 Trust Indenture. Any earnings
on the investment of funds on deposit in the Loan Proceeds Fund shall be credited to
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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
Govemmental Unit of its other obligations hereunder, the Govemmental 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 Govemmental Unit for the Financing Program shall
be repaid in installments which shall correspond in time and amount to the payments
of principal and interest on the Govemmental Unit Note and shall bear interest at the
rates, and shall be payable in immediately available funds at the times payable on the
Govemmental Unit Note, as follows:
(a) The interest of the Loan shall be paid in semi-annual installments on the
dates, at the rates and in the amounts shown on "Schedule I" attached to the form of
the Govemmental Unit Note, which is attached hereto as Exhibit "A". Principal on the
Loan shall be payable in annual installments on the dates and in the amounts shown
on such "Schedule 1." In the event the full amount of the Govemmental Unit Note is
not disbursed, the payments of principal due thereunder shall be reduced ratably to
reflect such reduction in the principal amount due thereunder, and a new Schedule I
will be calculated by the Administrator. The fmal payments on the Govemmental Unit
Note must be made three (3) business days prior to September 1, 2020 with
immediately available funds.
(b) As provided in the Govemmental Unit Note, in addition to the above
payments of principal and interest on the Loan, any payment required to be made with
respect to the Loan which is received later than its due date, shall bear interest from
such due date at a rate per annum equal to the higher of the interest on the
Govemmental Unit Note or the Prime Rate, plus two per centum per annum (the
"Default Rate"). Notwithstanding anything otherwise contained in this Loan
Agreement, the interest rate on the Loan and all other amounts payable hereunder
which are treated as interest under applicable laws shall not exceed the maximum
rate per annum permitted by law (the "Maximum Rate"); provided, that, in the event
the imposition of such Maximum Rate shall ever cause the amount payable on the
Govemmental Unit Note to be less than the amount of interest which would otherwise
be computed pursuant to this Section 3.3, the Govemmental Unit Note shall thereafter
bear interest at the Maximum Rate until the earlier of (1) the fmal maturity of the
Govemmental Unit Note or (2) such time as the total amount of interest paid on the
Govemmental Unit Note shall at such rate equal the amount of interest which would
have been payable on the Govemmental Unit Note pursuant to this Section 3.3
without regard to any Maximum Rate. All payments made hereunder shall be applied
first to the payment of the Additional Loan Charges, and then to payment of accrued
interest on the unpaid balance hereof at the aforesaid rate, and then to the reduction
of principal hereunder; provided, however, that under no circumstances shall
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Additional Loan Charges be paid from ad valorem taxes levied for the payment of
principal and interest on the Loan.
(c) The Governmental Unit shall also pay all Reserve Payments and its Pro-
Rata share of the Costs and Expenses of the Program. At the Closing, the Costs and
Expenses of the Program currently payable (exclusive of Reserve Payments) consist of
the fees of the Trustee. The Financial Advisor, on behalf of the Sponsor, shall
determine not less often than each January 1 and July 1 the estimated Reserve
Payments, if any, and the Pro-Rata Share of the Costs and Expenses of the Program
allocable to the period for which such payment is to be in effect and shall notify the
Trustee and the Administrator of such determination. The Administrator shall
compute the amount of the Governmental Unit's payment in respect of such amounts
and shall notify the Trustee, the Credit Facility Issuer and the Governmental Unit, of
the amount thereof. Reserve Payments under clauses (a) and (c) of the definition of
"Reserve Payments" shall be billed to the Governmental Unit and shall be due within
thirty (30) days of receipt of such notice. The remaining components of the Reserve
Payment and the Governmental Unit's Pro-Rata Share of the Costs and Expenses of
the Program, shall be payable by the Governmental Unit in semiannual installments
for the next ensuing semiannual period. The Financial Advisor shall notify the
Governmental Unit at least ten (10) 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 (6)
months) for which such payment amount is to be in effect, the amount of each
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 Trustee
determines that such payment amount, together with other funds available therefor,
does not provide sufficient funds to pay the Governmental Unit's Pro-Rata Share of the
Costs and Expenses of the Program allocable to the period for which such payment is
to be in effect, and the Governmental Unit's Reserve Payment, if any, the Trustee 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 any deficiency in the payment of the Governmental Unit's
Reserve Payment, its interest payment and its Pro-Rata Share of the Costs and
Expenses of the Program by giving notice thereof to the Administrator. The
Administrator shall recompute the amount of the Governmental Unit's semiannual
payments and shall give the Governmental Unit notice of a revised payment and the
computations used to determine such payment at least ten (10) days prior to the date
such revised payment is to become effective, stating the period (not exceeding six (6)
months) for which such revised additional payments are to be in effect, and the
amount of each payment which the Governmental Unit is required to make during
such period. The 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, which shall specify the respective
amounts of principal and interest due, the Reserve Payment amount, and the amount
of any fees and expenses billed to the Governmental Unit on a semiannual basis
pursuant to Section 3.5 hereof.
(d) As set forth in the Indenture, earnings and other moneys in the Payment
Account in the Loan Reserve Fund shall be applied for the purposes set forth in
Section 5.07 of the Indenture, including, where provided therein, to or for the benefit
of the Governmental Unit. Notwithstanding any other provision contained in this Loan
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Agreement or in the Governmental Unit Note, all computations of the Reserve
Payments and any other amounts due under this Loan 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 except as provided in the
proviso at the end of Section 3.3(f) hereof, the Governmental Unit shall not bear any
fmandal obligation arising because of a default in any Loan to any other party.
Notwithstanding any provision of the Indenture or this Loan Agreement to the
contrary, the Governmental Unit shall not be obligated to pay any portion of the costs
of the Liquidity Facility or Remarketing Agent for the Bonds; provided, however, that
in computing any amount to be included in the payments required of the
Governmental Unit for the interest on the Reserve Bonds, earnings on moneys in the
Reserve Account shall fIrst be applied to pay such costs of the Liquidity Facility and
the Remarketing in respect of the Reserve Bonds, and only the remaining interest
earnings on such monies shall be credited toward the interest on the Reserve Bonds in
accordance with the Indenture in computing the Reserve Payment of the
Governmental Unit.
(e) Reserved
(f) Notwithstanding anything herein to the contrary, the Costs and
Expenses of the Program and the Reserve Payment shall not include any amounts
attributable to the default of any other Governmental Unit, and the Governmental Unit
Note and the principal amount thereof and interest thereon shall not be increased for
any reason related to a redemption of the Bonds other than as a result of an Event of
Default under this Loan Agreement; provided that the Governmental Unit's Reserve
Payment and Pro Rata Share of the Costs and Expenses of the Program may be
affected by reductions in the investment income on the Debt Service Reserve Fund and
Loan Reserve Fund as consequence of the redemption of Bonds.
SECTION 3.4
PREPAYMENT OF LoAN.
(a) The Governmental Unit shall be entitled to prepay the Loan in whole or
in part on any date upon which the Bonds converted to a Long Fixed Rate in
connection with this Loan may be redeemed or converted to another mode at the
option of the Sponsor or may be called for mandatory tender by the Sponsor, upon not
less than one hundred twenty-nine (129) days prior written notice to the Sponsor, the
Administrator and the Trustee.
(b) Any such prepayment in whole shall be made with the effect provided in
Section 4.04 of the Indenture, it being understood that all prepayments must be made
not less than one hundred twenty-nine (129) days in advance of any application
thereof, unless the Indenture shall otherwise permit. The prepayment shall be in an
amount equal to the sum of (A) accrued and unpaid interest on the Loan as of the date
on which redemption or tender of the Bonds can occur following processing 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
(as defmed in the Indenture) 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
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prepayment in whole be less than the principal amount of the Loan then Outstanding
plus accrued interest and any unpaid Reserve Payment amount due in respect of the
Loan.
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 one hundred twenty-nine (129)
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 (x) 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).
Notwithstanding anything herein to the contrary, the one hundred twenty-nine
(129) day periods mentioned in paragraphs (a) and (b) hereof may run concurrently.
The Governmental Unit shall receive credit for any income from investment of the
amount of any such prepayment. Any computation of the prepayment amount under
this Section 3.4(b) shall be made assuming all payments are made by Participating
Governmental Units, as provided in Section 3.3(d) hereof.
(c) The amount of any prepayment shall also include any amounts
necessary to pay prepayment premiums, if any, to the holders of the Converted Bonds
in connection with a redemption thereof from the proceeds of the prepayment.
(d) In determining the amount and effect of any prepayments under this
Section 3.4, Program Assets shall include any unpaid Loans, including any unpaid
Loans that may have been discharged in bankruptcy or declared void or
unenforceable.
SECTION 3.5
RESERVE BONDS.
(a) The Governmental Unit hereby agrees and aclmowledges that a principal
amount of Bonds, initially bearing interest in the Fixed Rate Mode, equal to the
Governmental Unit's Pro-Rata Share of the sum of the Debt Service Reserve Fund
Requirement and the Loan Reserve Fund Requirement (the "Reserve Bonds") are
allocable to the Loan and with respect to which the Program incurs costs and
expenses. A like amount of moneys on deposit in the Debt Service Reserve Fund and
the Loan Reserve Fund are to be invested in compliance with Section 6.02 of the
Indenture. The Governmental Unit hereby aclmowledges that pursuant to the
Indenture, the amount of funds which may be used to pay Bonds or which may result
in a Liquidation Shortfall is not limited to the amount of the Reserve Bonds, and that
the full amount of the Debt Service Reserve Fund and the Loan Reserve Fund may be
used as provided in the Indenture, including, among other things for payment of
Bonds in the event of a default by the Governmental Unit.
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(b) In the event that a default of the Governmental Unit results in the
liquidation of investments in the Debt Service Reserve Fund or Loan Reserve Fund, the
Governmental Unit will pay the "Liquidation Shortfall." "Liquidation Shortfall" shall
mean the loss, if any, incurred by the Issuer as a result of such a liquidation versus
the amount which would have been realized if such investments would have been sold
at a price (exclusive of investment earnings thereon) equal to their purchase price.
In the event that for any other reason permitted under the Indenture (other
than a default by another Governmental Unit) a draw upon the Loan Reserve Fund or
the Debt Service Reserve Fund results in a liquidation of the investments therein, the
Governmental Unit agrees to pay the Governmental Unit's Pro-Rata Share of the
Liquidation Shortfall as a component of the Reserve Payment following such
liquidation. No charges for the Liquidity Facility or Remarketing Agent in respect of
the Reserve Bonds shall be borne by the Governmental Unit; however upon any
determination by the Administrator that the investment earnings on the investment of
funds allocable to the proceeds of the Reserve Bonds is projected to be insufficient to
pay the interest on the Reserve Bonds (after first applying such earnings to pay the
charges for the Liquidity Facility and the Remarketing Agent in respect of the Reserve
Bonds), the Governmental Unit shall pay, as a component of the Reserve Payment
such amounts as determined by the Administrator under Subsections 3.3(c) and (d)
hereof. The Governmental Unit's obligations under this paragraph shall be subject to
the limitations in Section 3.3(f).
SECTION 3.6 GENERAL OBLIGATION OF GoVERNMENTAL UNIT TO PAY
PRINCIPAL AND INTEREST; SPECIAL OBLIGATION TO PAY ADDITIONAL LoAN CHARGES.
(a) Each Credit Facility Issuer may share with any other Credit Facility
Issuer any information given to any of them by the Governmental Unit, including
without limitation fmancial statements, and may also share such information with any
participant of such Credit Facility Issuer, and any fmancial institution which is being
solicited to become a participant of any Credit Facility Issuer. To the extent necessary
to permit 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 information.
(b) The payment of the principal of and interest on the Governmental Unit
Note shall be secured by a pledge of the full faith, credit and taxing power of the
Governmental Unit, and the payment of the Additional Loan Charges shall be secured
by a first lien on and pledge of the Pledged Revenues. In addition, the Sinking Fund
and the amounts on deposit therein are hereby irrevocably pledged to the payment of
the principal and interest on the Loan and the Governmental Unit Note. The Pledged
Funds are hereby irrevocably pledged to secure repayment of the Governmental Unit
Note, as set forth herein. The Governmental Unit hereby represents and warrants that
the pledge of the Pledged Funds and the Pledged Revenues to secure the Governmental
Unit Note and the Loan as set forth herein is valid, binding and enforceable and that
the Pledged Funds and the Pledged Revenues are not, as of the date hereof, otherwise
subject to any pledge, encumbrances or lien, except as have been heretofore disclosed
to and expressly approved by the Credit Facility Issuer in writing. The Governmental
Unit covenants that it will not cause or permit to exist any pledge of or lien upon the
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Pledged Funds and the Pledged Revenues, other than the pledge benefiting the
Governmental Unit Note or the Series 1985B Governmental Unit Note.
(c) Subject to Section 3.6(e), prior to each of its Fiscal Years, the
Governmental Unit shall establish a budget for such fiscal year which allocates a
sufficient sum to provide amounts to pay all amounts reasonably anticipated to be
payable with respect to the Governmental Unit Note and the Loan. In the event that
the budgeted amounts prove insufficient to make said payments, the Governmental
Unit shall as soon as practicable (but in any event prior to the expiration of ninety
days from such event) but subject to Section 3.6(e), amend its budget so as to assure
that sufficient amounts in the Pledged Funds are available to at all times make said
payments.
(d) In each year while any of such principal and interest on the
Governmental Unit Note are outstanding there shall be levied and collected a tax,
without limitation as to rate or amount, on all taxable property within the
Governmental Unit (excluding exemptions as provided by law), sufficient in amount to
pay into the Sinking Fund the amounts due for principal and interest on the Loan and
the Governmental Unit Note as the same shall become due. The proceeds of such tax
shall be deposited into the Sinking Fund to pay the principal of and interest on the
Governmental Unit Note and the Loan as the same shall become due, after deducting
therefrom any other funds of the Governmental Unit which may be available for such
payment and which shall actually be so applied. Such tax shall be assessed, levied
and collected in the same manner and at the same time as other ad valorem taxes are
assessed, levied and collected.
(e) Notwithstanding anything herein to the contrary, but subject to the
provisions of this Section 3.6(e), the Governmental Unit hereby acknowledges and
agrees to budget and appropriate, by amendment, if necessary, from Non-Ad Valorem
Revenues lawfully available in each Fiscal Year, and deposit into the Revenue Fund
amounts sufficient to pay all Additional Loan Charges, including without limitation,
the Reserve Payments and the amounts due in respect of Costs and Expenses of the
Program. The Governmental Unit hereby covenants that in the .event sufficient
amounts, exclusive of the amounts held for the payment of principal and interest on
the Governmental Unit Note and the Loan, have not been applied to pay such
amounts, it will, to the extent permitted by law and subject to this Section 3.6(e), in
each year in which any Additional Loan Charges may be due and payable in
accordance with this agreement, budget and appropriate, by amendment, if required,
from legally available Non-Ad Valorem Revenues, the sums required for payment of
such amounts, and apply the same to the payment thereof.
Such covenant and agreement on the part of the Governmental Unit to budget
and appropriate such amounts of legally available Non-Ad Valorem Revenues shall be
cumulative, and shall continue until such legally available Non-Ad Valorem Revenues
in amounts sufficient to pay the Additional Loan Charges provided for herein in
respect of the Governmental Unit Note have been budgeted, appropriated and actually
paid to the Trustee.
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Notwithstanding the foregoing covenant of the Governmental Unit, the
Governmental Unit does not covenant to maintain any seIVices or programs, now
provided or maintained by the Governmental Unit, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or
pledge of such Non-Ad Valorem Revenues, nor does it preclude the Governmental Unit
from pledging in the future its Non-Ad Valorem Revenues, nor does it require the
Governmental Unit to levy and collect any particular Non-Ad Valorem Revenues, nor
does it give the Trustee a prior claim on the Non-Ad Valorem Revenues as opposed to
claims of general creditors of the Governmental Unit. Such covenant to budget and
appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or
hereinafter entered into (including the payment of debt seIVice on bonds and other
debt instruments). However, the covenant to budget and appropriate in its general
annual budget for the purposes and in the manner stated herein shall have the effect
of making available in the manner described herein Non-Ad Valorem Revenues and
placing on the Governmental Unit a positive duty to budget and appropriate, by
amendment, if necessary, amounts sufficient to meet its obligations hereunder;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida
Statutes, which provides, in part, that the governing body of each municipality make
appropriations for each Fiscal Year which, in anyone year, shall not exceed the
amount to be received from taxation or other revenue sources; and subject further, to
the payment of seIVices and programs which are for essential public purposes
affecting the health, welfare and safety of the inhabitants of the Governmental Unit or
which are legally mandated by applicable law.
(f) The Loan and the Governmental Unit Note, and all payments due with
respect thereto or under this Loan Agreement as principal and interest, shall be
general obligations of the Governmental Unit, and secured by the full faith, credit and
taxing power of the Governmental Unit and a direct ad valorem tax shall be assessed,
levied and collected, without limitation as to rate or amount, on all taxable property
within the corporate limits of the Governmental Unit (excluding exemptions as
provided by applicable law) as herein provided. The faith, credit and taxing power of
the Govemmental Unit have been irrevocably pledged to the punctual payment of the
principal of and interest on the Governmental Unit Note as the same shall become due
and payable.
(g) The obligation to pay the Additional Loan Charges shall be payable solely
from the Non-Ad Valorem Revenues as 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 obligation to pay
such Additional Loan Charges shall not constitute a lien upon any property of the
Governmental Unit, but shall constitute a lien only on the Pledged Funds, in the
manner herein provided.
(h) 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 Non-Ad Valorem Revenues, the Pledged Revenues and
Pledged Funds herein provided, which may come into its possession, including but not
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limited to the proceeds of the Loan, contributions or grants, for the purpose of
payment of the Loan, but the Governmental Unit shall have no obligation to use any
such funds except, to the extent provided herein, the Non-Ad Valorem Revenues for
payment of the Additional Loan Charges.
SECTION 3.7 BENEFIT OF BONDHOLDERS AND ENHANCEMENT PROVIDER;
COOPERATION BETWEEN PARTIES.
This Loan 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 Loan 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
Facility Issuer.
SECTION 3.8
BONDS NOT To BECOME ARBITRAGE BONDS.
The Governmental Unit shall take no action which would cause the interest on
the Bonds to lose the exemption from federal income tax under Section 103 of the
Internal Revenue Code of 1954, as amended, and in effect prior to the enactment of
the Tax Reform Act of 1986, and the regulations issued thereunder (collectively, the
"1954 Code"), as such exemption is carried forward in the exclusion of such interest
from gross income for federal income tax purposes under the Internal Revenue Code of
1986, as amended.
Except as provided in this Loan Agreement, the Governmental Unit hereby
covenants to the Sponsor and the holders of the Bonds that 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 1954 Code,
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 Govemmental 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" or otherwise adversely affect the tax-exempt status of
the 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 Govemmental Unit Note and this Loan
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.
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(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 Loan
Agreement and the Governmental Unit Note may be assigned to a Credit Facility Issuer
or the issuer of a Local Letter of Credit.
SECTION 3.10
SINKING FuND.
COVENANT REGARDING PLEDGED FuNDS; REVENUE FuND;
(a) The Governmental Unit hereby covenants to take all lawful action
necessary or required to collect and receive, and to deposit to the Sinking Fund,
amounts sufficient to pay the principal of and interest on the Governmental Unit Note
and the Loan. In addition, but subject to Section 3.6(e) hereof, the Governmental Unit
shall take a1l1awfu1 action necessary or required to collect and receive and budget and
appropriate Non-Ad Valorem Revenues, for deposit to the Revenue Fund, in amounts
sufficient to provide an amount of Pledged Revenues to pay the Additional Loan
Charges as the same become due. The Governmental Unit further covenants that it
has full power to pledge the Pledged Funds and the Pledged Revenues as provided in
this Loan Agreement to the payment of the principal and interest and other amounts
becoming due on the Governmental Unit Note and the Loan.
(b) There is hereby created and established the Miami Beach, Florida, Gulf
Breeze Loan Program Revenue Fund (the "Revenue Fund"). All amounts payable by
the Governmental Unit hereunder other than amounts required to be deposited
directly into the Sinking Fund pursuant to Section 3.6(d) 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). Commencing on July 15, 2000, and on the
15th day of each month thereafter, but subject to Section 3.6(e) hereof, the
Governmental Unit shall deposit to the Revenue Fund, from Non-Ad Valorem
Revenues or any other sources legally available to the Governmental Unit for such
purposes, amounts sufficient to pay all Additional Loan Charges, including, without
limitation, Reserve Payments and the payments in respect of the Costs and Expenses
of the Program, if any then due. 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. Moneys in the Revenue
Fund, shall be applied and allocated to pay all amounts due hereunder or under the
Series B Loan Agreement as the same become due, other than amounts paid from the
Sinking Fund. A separate fund is hereby created and designated the Miami Beach,
Florida, Gulf Breeze Loan Program Sinking Fund (hereinafter called "Sinking Fund").
Fifteen days prior to each date upon which principal or interest shall be due on the
Governmental Unit Note, there shall be deposited into the Sinking Fund amounts
sufficient to pay (a) all of the interest on the Governmental Unit Note and the Series B
Governmental Unit Note becoming due on such date, and (b) the principal of the
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Governmental Unit Note and the Series B Governmental Unit Note becoming due, if
any, on such date. 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 defmed 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. Moneys in the Sinking Fund shall be applied on each date on which
principal or interest is payable on the Loan, to make such payment. Moneys in the
Revenue Fund shall be applied to make all payments not paid from the Sinking Fund,
when due under any provisions hereof.
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 provisions of Sections 3.6 and 3.10 hereof and the
pledge of and lien upon the Pledged Funds and 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 release the provisions of Sections 3.6 hereof and defease the lien of this Loan
Agreement upon the Pledged Funds and 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 this Loan
Agreement upon the Pledged Funds and 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 ftled of
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record in accordance with the provisions of the Florida Intergovernmental Cooperation
Law; that is, it shall be fIled with the Clerks of the Circuit Court for Santa Rosa
County and Miami-Dade County.
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ARTICLE IV
COVENANTS OF THE GOVERNMENTAL UNIT
SECTION 4.1
REpORTS ANn OPINIONS; INSPECTIONS.
(a) Until all amounts due under this Loan Agreement have been paid in full,
the Governmental Unit shall deliver to the Sponsor, the Trustee and the Credit Facility
Issuers, within thirty (30) 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 hereunder.
(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 Loan Agreement (whether by prepayment
or regularly scheduled payment) or (ii) as to Loans not so secured, upon the final
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 one hundred twenty-nine (128) days following such payment, no banlauptcy,
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 Loan 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 Facility 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 defined 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 Facility Issuers to examine, visit and inspect, at any reasonable time, the
Project, 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 financial standing, to the extent the same reasonably relate
to the Loan and to supply such reports and information as the Sponsor, the Trustee or
the Credit Facility Issuers may reasonably require.
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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 Loan 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 Financing Program or this Loan Agreement by it or its
members, officers, employees and agents in good faith and believed by it or them to be
authorized or within the discretion or rights or powers conferred under this Loan
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 Loan 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, gross negligence, 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
Loan 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
RESERVED.
SECTION 4.5
RESERVED.
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ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1
EVENTS OF DEFAULT.
Each of the following events is hereby defined 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 Governmental Unit to make any payment required to be
made pursuant to any other provision hereof within thirty (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 Loan Agreement for a
period of thirty (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 thirty (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 one hundred eighty (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 thirty (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 by the
Govemmental Unit in connection herewith shall prove to be false or misleading in any
material respect; or
(e) (1) the Governmental 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 Governmental 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; or (4) the Governmental Unit shall take any action to
authorize or effect any of the actions set forth in Sections 5.1(e)(l) or (2); or
(f) (1) the Governmental Unit shall be adjudicated a bankrupt or become
subject to an order for relief under federal bankruptcy law; (2) the Governmental Unit
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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
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 such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of ninety (90) consecutive days; the
mere declaration by the Governmental Unit of a state of fmancial 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 fifteenth (15th) day prior to the expiration or non-renewal of the existing Local
Letter of Credit.
SECTION 5.2
No ACCELERATION.
The payment obligations of the Borrower under this Loan Agreement and the
Governmental Unit Note are not subject to acceleration.
SECTION 5.3
PAYMENT OF LoAN ON DEFAULT; SUIT 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 Loan Agreement as and when the same shall become due and payable, 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, subject to the
provisions of Section 3.6 hereof, to the Trustee (or its assignee) an amount equal to
the sum of: (i) amounts which the Governmental Unit is obligated to pay under this
Loan Agreement 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, attomeys 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, subject to the
provisions of Section 3.6 hereof, to institute any 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 final decree, and may enforce any such judgment
or final 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
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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 Loan 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, 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 Loan 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, 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, subject to Section 3.6 hereof, 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
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
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in this Section 5.4 shall not be exclusive, and the Credit Facility 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 Loan 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 Loan
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 Govemmental 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 PROCEEDS.
In case the Sponsor, the Credit Facility Issuer or the Trustee (or its assignee)
shall have proceeded to enforce any right under this Loan 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.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1
LIMITATION OF LIABILITY.
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 the moneys available under the Indenture 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 Loan Agreement to the contrary, in
the event of any default by the Governmental Unit hereunder, the liability of the
Governmental Unit to pay amounts under the Governmental Unit Note and hereunder
shall be enforceable only out of the sources provided hereunder and there shall be no
other recourse for damages by the Sponsor or the Credit Facility Issuer against the
Govemmental 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 this Loan Agreement or Governmental Unit Note shall
be personally liable on the Loan or the Bonds or this Loan 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, Florida
P.O. Box 640
Gulf Breeze, Florida 32561
As to the Trustee:
SunTrust Bank
225 E. Robinson Street, Suite 250
Orlando, Florida 32801
Attn: Corporate Trust Division
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As to the Governmental Unit:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Finance Director
CC: City Attorney
As to the Credit Facility Issuer:
Financial Guaranty Insurance Company
115 Broadway
New York, New York 10006
Attn: General Counsel
As to the Liquidity FacUity Issuer:
Credit Locale de France
New York Agency
9 West 57th Street, 36th Floor
New York, New York 10019
Attn: General Manager
SECTION 6.4
ILLEGAL OR INvALID PROVISIONS DISREGARDED.
In case any provision of this Loan Agreement shall for any reason be held
invalid, illegal or unenforceable in any respect, this Loan Agreement shall be
construed as if such provision had never been contained herein.
SECTION 6.5
APPLICABLE LAW.
This Loan Agreement shall be deemed to be a contract made in Florida and
governed by Florida law.
SECTION 6.6
ASSIGNMENTS.
The Governmental Unit shall not assign this Loan 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 Loan 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 Loan 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 Loan 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
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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 Loan 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 Loan Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of any
provision hereof.
SECTION 6.10
PAYMENTS.
NOTICE OF ExPECTATION OF OBLIGATION TO MAKE CERTAIN
The Administrator shall promptly notify the Governmental Unit by telephone,
followed by written notice, whenever earnings are reasonably expected to result in the
Governmental Unit's obligation to make a Reserve Payment.
SECTION 6.11
ENTIRE AGREEMENT.
This Loan 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 this Loan Agreement, and this Loan
Agreement shall supersede all other agreements either written or oral between such
parties with respect to the Loan.
SECTION 6.12
LIMITATION OF INVESTMENT EARNINGS CREDIT.
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. The Governmental Unit will not receive as a credit against any payment
due hereunder any amount of actual earnings on the proceeds of the Reserve Bonds,
in excess of (a) fees and charges for the Liquidity Facility and Remarketing Agent in
respect of the Reserve Bonds, (b) fees of the Trustee, Registrar and Paying Agent, and
other applicable Costs and Expenses of the Program, and (c) interest on such Reserve
Bonds. If such earnings are not sufficient to provide a credit for the items listed in (a)
through (c) of the foregoing sentence, such earnings shall be applied in the priority in
which such items are described, from (a) to (c).
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CITY OF GULF BREEZE, FLORIDA
By:
Title: Mayor, City of Gulf Breeze,
Administrator
WITNESS:
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CITY OF MIAMI BEACH, FLORIDA
(SEAL)
By:
Title: Mayor
ATTEST:
By:
Title: City Clerk
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~~
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County in the
State aforesaid, do hereby certify that and , personally
known to me to be the same persons whose names are, respectively as Mayor 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, sealed with the seal of said City, 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.
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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STATE OF FLORIDA
COUNTY OF
, a Notary Public in and for the said County in the
do hereby certify that and
, personally known to me to be the same persons whose
names are, respectively as and of
SunTrust Bank, 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 Bank, and delivered the said instrument as the free
and voluntary act of said Bank and as their own free and voluntary act, for the uses
and purposes therein set forth and took an oath.
I,
State
aforesaid,
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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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 "Governmental Unit"),
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 defmed) as
assignee of the Sponsor (as hereafter defmed), or to the Credit Facility Issuer, as its
assignee, the principal sum of Million Dollars ($_,000,000), and to pay interest
thereon from the date hereof, as follows:
(a) The principal hereof shall be paid in annual 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 in semi-
annual installments at the rates and on the dates shown on Schedule "I," 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
Governmental Unit and SunTrust Bank, as Trustee, the provisions of which are
incorporated herein by reference.
In addition to such amounts specified in Schedule "I," the actual amounts due
in repayment of the Loan shall also include the Additional Loan Charges, including
without limitation, the Reserve Payments and payments due in respect of the Costs
and Expenses of the Program (solely as defined and described in the Loan Agreement),
if such payments shall be due pursuant to the provisions of Section 3.3 or 3.5 of the
Loan Agreement. Any payment required to be made with respect to the Loan which is
received later than its due date shall bear interest from such due date at a rate equal
to the higher of the rate of interest on this Note or the Prime Rate, plus two per
centum per annum (the "Default Rate").
As set forth in the Loan Agreement, a default of the Governmental Unit may
also result in a requirement that the Governmental Unit make certain additional
payments with respect to a portion of the Debt Service Reserve Fund, as defmed in the
Loan Agreement.
Notwithstanding anything otherwise contained in this Note, the interest rate on
this Note and any other amounts payable by the Borrower under the Loan Agreement
that are treated as interest under applicable law, shall not exceed the Maximum Rate
as defined in the Loan Agreement; 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
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earlier of (1) the fmal maturity of this Note or (2) such time as the total amount of
interest paid on this Note shall at such rate equals the amount of interest which would
have been payable on this Note without regard to any Maximum Rate.
All payments made hereunder from amounts in the Sinking Fund under the
Loan Agreement shall be applied first to payment of accrued interest on the unpaid
principal balance hereof at the aforesaid rate, and then to reduction of principal.
Amounts due under the Loan Agreement for Additional Loan Charges, including
without limitation, the Reserve Payments and the amounts due in respect of the Costs
and Expenses of the Program, shall be paid solely from Non-Ad Valorem Revenues (as
defined in the Loan Agreement). In the event the full amount of this Note is not
disbursed, the payments of principal due hereunder shall be reduced ratably to reflect
such reduction in the principal amount due hereunder, and a new Schedule "I" will be
calculated by the Administrator.
The principal hereof and interest hereon shall be paid to the Trustee as
Assignee of the Sponsor (or to the Credit Facility Issuer, as its assignee) at such place
as the Trustee may designate in writing.
This Note evidences a loan made to the Governmental Unit pursuant to the
Loan Agreement, to fmance the Governmental Unit's cost of improvements to
neighborhood infrastructure, parks and beaches and fire stations and related facilities
and fire trucks (the "Project"), as described in the Loan Agreement (the "Financing
Program") and the Governmental Unit 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 1985 E (the "Bonds"). The Bonds are issued under a 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 the Trustee.
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.
The full faith, credit and taxing power of the Governmental Unit have been
irrevocably pledged to the punctual payment of the principal of and interest on the
Governmental Unit Note as the same shall become due and payable. Additional Loan
Charges are payable solely from Non-Ad Valorem Revenues, in the manner, and
subject to the limitations set forth in the Loan Agreement. The obligations of the
Governmental Unit hereunder to pay amounts other than principal and interest are
limited, special obligations payable from the Pledged Revenues in the manner, and
subject to the limitations, set forth in the Loan Agreement. Pursuant to the Loan
Agreement, the Governmental Unit has covenanted to budget and appropriate funds
from its Non-Ad Valorem Revenues sufficient to pay such amounts due hereon, all in
the manner, and subject to the limitations, provided in the Loan Agreement. The
acceptance of this Note by the holder from time to time hereof shall be deemed an
agreement between the Governmental Unit and such holder that the obligation to pay
Additional Loan Charges, including without limitation the Reserve Payments and
amounts due in respect of the Costs and Expenses of the Program, 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 provided in the Loan Agreement.
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The Governmental Unit shall be in default hereunder upon: (i) the nonpayment
on or before the same is due of any payment described in paragraphs (a) or (b) of this
Note or (ii) under the circumstances described in the Loan Agreement. 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.
In addition to all other rights it may have, the holder hereof shall have the
following rights, each of which may be exercised at any time: (i) to pledge, transfer or
assign this Note in the manner prescribed herein or in the Loan Agreement and any
renewals, extensions and modifications hereof, assigning therewith its rights in the
Loan Agreement in accordance with the terms thereof and any such pledgee,
transferee or assignee shall have all the rights of the holder hereof with respect to this
Note and any renewals, extensions and modifications hereof and of the Loan
Agreement so assigned therewith, and the holder hereof making such pledge, transfer
or assignment shall be thereafter relieved from any and all liability with respect to the
Loan Agreement so assigned; (ii) to notify the Governmental Unit or any other persons
obligated under the Loan Agreement to make payment to the holder of this Note any
amounts due or to become due thereon; and (iii) to apply any amounts received under
or pursuant to the Loan Agreement against the principal of and interest on and other
amounts payable under this Note.
A payment made on this Note by or on behalf of the Governmental Unit shall
also be deemed a payment made under the Loan Agreement. This Note shall not be
assigned unless the Loan Agreement is included in the assignment.
Upon the request of the holder hereof, this Note may be converted to a
registered obligation and the Governmental Unit shall maintain books for the
registrations of the transfer and exchange of this Note in compliance with the Florida
Registered Public Obligations Act.
It is hereby certified and recited that all acts, conditions and things required to
happen, exist and be performed, precedent to and in the issuance of this Note, have
happened, exist, and have been performed in due time, form and manner as required
by the Constitution and laws of the State of Florida applicable thereto; that the total
indebtedness of the Governmental Unit, including this Note, does not exceed any
constitutional, statutory or charter limitation; and th'at provision has been duly made
for the levy and collection of a direct annual tax, without limitation as to rate or
amount, upon all taxable property within the Governmental Unit (excluding
exemptions as provided by law) sufficient to pay the principal of and interest on this
Note as the same shall become due, which tax shall be levied and collected at the
same time, and in the same manner, as other ad valorem taxes of the Governmental
Unit are assessed, levied and collected. For the prompt payment of the principal of
and interest on this Note, the full faith, credit and taxing power of the Governmental
Unit are irrevocably pledged.
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
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terms used herein which are defmed in the Loan Agreement shall have the meanings
set forth in the Loan Agreement.
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C I T Y
o F
MIAMI
B E A C H
NOTICE OF A SPECIAL CITY COMMISSION MEETING
NOTICE IS HEREBY given that the City Commission of the City of Miami Beach,
Florida, will hold a Special City Commission Meeting in the Commission
Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach,
Florida, on Friday, June 23, 2000, commencing at 9:30 a.m.
Inquiries concerning this meeting should be directed to the City Clerk's
office at (305)673-7411. This meeting may be opened and continued and, under
such circumstances, additional legal notice would not be provided.
ALL PERSONS are invited to attend this meeting or be represented by an
agent, or to express their views in writing to the City Commission, c/o the
City Clerk, 1700 Convention Center Drive, 1st floor, Miami Beach, Florida
33139.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public
that: if a person decides to appeal any decision made by the City Commission
with respect to any matter considered at its meeting or its hearing, such
person must ensure that a verbatim record of the proceedings is made, which
record includes the testimony and evidence upon which the appeal is to be
based. This notice does not constitute consent by the City for the
introduction or admission of otherwise inadmissable or irrelevant evidence,
nor does it authorize challenges or appeals not otherwise allowed by law.
IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT OF 1990, PERSONS
NEEDING SPECIAL ACCOMMODATION TO PARTICIPATE IN THIS PROCEEDING SHOULD
CONTACT THE CITY CLERK'S OFFICE NO LATER THAN FOUR DAYS PRIOR TO THE
PROCEEDING. TELEPHONE (305) 673-7411 FOR ASSISTANCE; IF HEARING IMPAIRED,
TELEPHONE THE FLORIDA RELAY SERVICE NUMBERS, (800) 955-8771 (TOO) OR (800)
955-8770 (VOICE), FOR ASSISTANCE.
SUNTRUST BANK
Trustee
(SEAL)
By:
Title:
ATTEST:
By:
Title:
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STATE OF FLORIDA
COUNTY OF SANTA ROSA
I, , 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 Program Floating Rate Demand Revenue Bonds,
Series 1985 E, 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.
IN WITNESS WHEREOF, under my hand and notarial seal this
June, 2000.
day of
Notary Public
(SEAL)
My Commission Ends:
Name:
Address:
Personally Known _ or
Produced Identification
Type of Identification Produced
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