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Home My WebLink AboutR-03-0858.• J-03-643 07/15/03 RESOLUTION NO. 0 3 8 5 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), REGARDING THE REFINANCING OF A PROJECT FOR THE MIAMI CHILDREN'S MUSEUM, INC.; PROVIDING FOR THE ISSUANCE OF REVENUE BONDS OF THE CITY OF MIAMI, FLORIDA, IN THE PRINCIPAL AMOUNT NOT EXCEEDING $5,000,000; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS; FINDING IT NECESSARY FOR A NEGOTIATED PLACEMENT OF THE BONDS AND APPROVING THE PLACEMENT OF SAID BONDS WITH ORIX PUBLIC FINANCE LLC ("BOND PURCHASER"); PROVIDING FOR THE PAYMENT OF THE BONDS; APPROVING THE FORM OF AND THE EXECUTION OF CERTAIN DOCUMENTS; PROVIDING CERTAIN OTHER AGREEMENTS AND COVENANTS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: SECTION 1. AUTHORITY. This Resolution (hereinafter called the "Resolution") is adopted pursuant to the provisions of Chapter 159, Parts II and III, Florida Statutes (hereinafter called the "Act"), and other applicable provisions of law. SECTION 2. DEFINITIONS. The terms used in this Resolution shall have the following meanings: "AGREEMENT" shall mean the Loan Agreement, the form of which is attached hereto as Exhibit "A" to be executed by and between the Issuer (hereinafter defined) and the Company (hereinafter defined). "AUTHORIZED OFFICERS" shall mean the City Manager and the City Clerk of the Issuer (hereinafter defined). R CITY COMMSSION VIEETILETC OF III! 'c` 4 203 Resolution No. 03- 858 "BOND" or "BONDS" shall mean one or more of the not to exceed $5,000,000 City of Miami, Florida Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project) authorized herein and by the Agreement to be issued pursuant to the Act, under the terms, conditions and limitations of this Resolution and the Agreement. "BOND PURCHASER" shall mean Orix Public Finance LLC, its successors and assigns. "COMPANY" shall mean The Miami Children's Museum, Inc., a not-for-profit corporation, organized and existing under the laws of the State of Florida and authorized to transact business in the State of Florida and a qualified 501(c)(3) organization pursuant to their determination letter issued by the Internal Revenue Service, and any successors or assigns and any surviving, resulting or transferee entity. "ISSUER" shall mean the City of Miami, Florida. "PROJECT" shall be ascribed the meaning assigned in Section 3(A) hereof. SECTION 3. FINDINGS. It is hereby ascertained, found, determined and declared by the Issuer that: (A) The Issuer has been requested by The Miami Children's Museum, Inc., a Florida not-for-profit corporation authorized to transact business in the State of Florida and a qualified 501(c)(3) organization as set forth in the Internal Revenue Code (the "Company"), requesting that the Issuer issue not to exceed $5,000,000 of its Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project ) (the "Bonds") to pay the cost of refinancing a loan undertaken pursuant to a Loan Agreement and Leasehold Mortgage dated as of April 29, 2003 between Orix Public Finance LLC, as lender and the Company (the "Taxable Loan"). The proceeds of Taxable Loan 2 03- 858 were used for the acquisition and equipping of certain improvements and exhibits for the museum and for related facilities (the 'Project"). (B) Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), requires as a condition of exclusion from gross income for federal income tax purposes of the interest on private activity bonds, that the issuance of private activity bonds, as defined in Section 141(a) of the Code, such as the Bonds be approved, after a public hearing following reasonable public notice, by the governmental unit on behalf of which such obligation is to be issued and the governmental unit having jurisdiction over the area in which the private activity bond -financed facility is to be located. (C) The City Commission of the Issuer (the "Governing Body") constitutes the elected legislative body of the Issuer. (D) The Governing Body on July 10, 2003, published a notice of a public hearing in The Miami Herald, a newspaper of general circulation in Miami -Dade County, Florida, to be held at 9:00 a.m. on July 24, 2003, in City Commission Chambers, 3500 Pan American Drive, Miami, Florida 33133, to consider the Bonds and the location and nature of the Project to be refinanced with the proceeds of the Bonds. (E) The public hearing so noticed, as indicated by the affidavit of the publisher of The Miami Herald attached hereto as Exhibit "B," has been duly held on the date hereof. (F) The Issuer is authorized and empowered by the Act to enter into transactions such as that contemplated by the Agreement and to fully perform its obligations thereunder in order to promote the industrial economy of the State through improving the mental health of its citizens, increase opportunities for gainful employment and purchasing power, improve living 3 i conditions, and otherwise contribute to the prosperity and welfare of the State and its inhabitants. (G) The Project has made a significant contribution to the economic growth of the City of Miami, Florida, shall provide and preserve gainful employment and shall serve a public purpose by advancing the education of children and therefore the economic prosperity and the general welfare of the State and its people. (H) Having due regard to all relevant financial data concerning the Company as required by the Act and other factors determinative of the Company's capabilities, financial and otherwise (including the Bond Purchaser's willingness to purchase and hold the Bonds), of fulfilling its obligations consistently with the purposes of the Act, the Company is financially responsible and fully capable and willing to fulfill its obligations under the Agreement, including the obligation to pay the financing payments in the amounts and at the time required pursuant to the terms of the Agreement and the obligation to operate, repair and maintain at its own expense the Project, and the Company is desirous of serving the purposes of the Act and is willing and capable of fully performing all other obligations and responsibilities imposed upon it pursuant to the provisions of the Agreement. (I) The Issuer is able to cope satisfactorily with the impact of the Project and is capable of making available or, assisting in making available, all the necessary public utilities and services, if any, that will be necessary for the acquisition, renovation, expansion, equipping, operation, repair and maintenance of the Project and on account of any increase in population or other circumstances resulting by reason of the location of the Project. 4 03- 858 (J) Adequate provision is made under the provisions of the Agreement for the operation, repair and maintenance of the Project at the expense of the Company, and for the payment by the Company of the principal of and interest on the Bonds as authorized in the Agreement. (K) The principal of and interest on the Bonds and all required debt service payments and other payments shall be payable solely from revenues of the Company and other security of the Company, if any, as provided in the Agreement. The Bonds shall not be deemed to constitute a debt, liability or obligation of the Issuer or of the State of Florida or of any political subdivision, but shall be payable solely from the revenues as provided in the Agreement. (L) The issuance of the Bonds and the financing and refinancing of the Project comply with all provisions of the Act. (M) It is hereby found and determined that the Bonds to be issued by the Issuer are in a relatively small aggregate principal amount and are for the purpose of refinancing the Project, and thus constitute bonds not readily marketable at public sale. A public sale of the Bonds is therefore found to be impractical in the prevailing bond market and protection of the public interest necessitates the approval of a negotiated placement of the Bonds directly to the Bond Purchaser for holding for its own account. SECTION 4. AUTHORIZATION OF REFINANCING OF PROJECT. There is hereby authorized the refinancing of the Project pursuant to the provisions of the Agreement. The cost of such Project shall include all costs and expenses of every nature incurred in the completion of the Project, as provided in the Agreement. 5 03- 858 SECTION 5. AGREEMENT TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Bonds authorized to be issued under the Agreement by those who shall hold the same from time to time, the Agreement shall be deemed to be and shall constitute a contract between the Issuer and such Bondholders. The covenants and agreements therein set forth to be performed by the Issuer shall be for the equal benefit, protection and security of the holders of any and all of the Bonds, all of which shall be equal rank and without preference, priority or distinction of any of the Bonds over any others thereof, except as expressly provided therein. SECTION 6. AUTHORIZATION OF BONDS. Subject and pursuant to the provisions of the Agreement, Bonds of the Issuer to be known as "City of Miami, Florida Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project)" herein sometimes referred to as the "Bonds", are authorized to be executed, authenticated, issued and sold in the aggregate principal amount of not exceeding Five Million Dollars ($5,000,000). The Bond will be issued as one fully registered Bond bearing the date of issuance, at a rate of interest as set forth in the Bond, with certain permitted adjustments (not to exceed the maximum allowed by Florida law), and maturing as set forth in the Bond attached hereto as Exhibit "C". SECTION 7. SPECIAL OBLIGATIONS OF ISSUER. The Bonds shall not be or constitute general obligations or indebtedness of the Issuer as "bonds" within the meaning of Article VII, Section 12, of the Constitution of the State of Florida, but shall be payable solely from and secured by a prior lien upon and a pledge of the revenues, as that term is defined and in the manner provided in the agreement and the Agreement. No holder or holders of any Bonds issued thereunder shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer or taxation in any form of any real property or tangible personal C:7 G33 - 858 property therein to pay such Bonds or the interest thereon or be entitled to payment of such principal and interest from any other funds of the Issuer except from the special funds in the manner provided in the agreement and the Agreement. The payment of the principal of and interest on the Bonds shall be secured forthwith equally and ratably by an irrevocable and prior lien on and pledge of the revenues, and the Issuer does hereby irrevocably pledge such funds to the payment of the principal of and interest on the Bonds and for all other payments required by the Agreement. SECTION 8. AGREEMENT AUTHORIZED. The form of the Agreement annexed hereto as Exhibit "A" and incorporated herein by reference is hereby approved and adopted by the Issuer subject to such changes, insertions or omissions as may be approved by the Authorized Officers of the Issuer, including incorporation of the provisions recommended by the Issuer's bond counsel; the execution of the Agreement by the Authorized Officers shall be conclusive evidence of such approval. The Issuer is hereby authorized to enter into said Agreement, and the Authorized Officers of the Issuer are hereby directed to execute such Agreement on behalf of the Issuer in the manner provided by law. SECTION 9. ASSENTS, ACCEPTANCE AND APPROVALS; ACTIONS; FEES. The Authorized Officers of the Issuer are hereby authorized and directed to execute a non -arbitrage agreement, an assignment of a mortgage and security agreement, certain tax compliance agreements, and give such assents, such other documents, acceptances and approvals as Bond Counsel may deem necessary for the Issuer to finance or refinance the Project and deliver the Bonds in the manner contemplated by the Agreement and the Indenture. The Authorized Officers are hereby authorized to take all such further actions as they may deem appropriate to 7 03-� 858 effectuate the purposes of this Resolution. The Borrower shall be charged an issuance fee by the Issuer of $15,000 of which $10,000 shall be allocated to the Issuer's legal department and $5,000 shall be allocated to the Issuer's finance department. The Issuer agrees to make a charitable donation to the Borrower in the amount of $15,000. SECTION 10. PLACEMENT OF BONDS. The placement of the Bond is hereby approved with the Bond Purchaser purchasing the Bond as an accredited investor. The Bond is hereby awarded to the Bond Purchaser upon the terms and conditions set forth in the Bond Purchase Agreement, a copy of which is attached hereto as Exhibit "D," hereby approved to be executed by the Authorized Officers. Prior to the execution of the Bond Purchase Agreement, the Bond Purchaser shall file with the Issuer the disclosure and truth -in -bonding statements required by Section 218.385, Florida Statutes, and competitive bidding for the Bond is hereby waived. SECTION 11. LIMITED APPROVAL. The approval given herein shall not be construed as (i) an endorsement of the creditworthiness of the Borrower or the financial viability of the Project, (ii) a recommendation to the purchaser of the Bond, (iii) an evaluation of the likelihood of the repayment of the debt service on the Bond, or (iv) any necessary governmental approval relating to the Project, and the Issuer shall not be construed by reason of its adoption of this resolution to have made any such endorsement, finding or recommendation or to have waived any of the Issuer's rights or estopping the Issuer from asserting any rights of responsibilities it may have in that regard. SECTION 12. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreement or provisions contained in this Resolution or the Agreement shall be held 8 03- 858 contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or shall in no way affect the validity of any of the other provisions hereof or of the Bonds issued thereunder. SECTION 13. REPEALING CLAUSE. All resolutions, or parts thereof, of the Issuer in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. SECTION 14. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption and signature of the Mayor..1/ PASSED AND ADOPTED this 24th day of Ju lY 2003. I�a_.-9 RISCILLA�OMI; ON CLERK AND CORRECTNESS: VILARELLO, CITY ATTORNEY :tr:AS �i If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. E 03- 858 EXHIBIT A FORM OF LOAN AGREEMENT 03- 858 EXHIBIT A FORM OF LOAN AGREEMENT 03- 858 LOAN AGREEMENT Between THE MIAMI CHILDREN'S MUSEUM, INC. And THE CITY OF MIAMI, FLORIDA DATED AS OF JULY 1, 2003 THE RIGHTS AND THE INTEREST OF THE CITY OF MIAMI, FLORIDA IN THIS LOAN AGREEMENT (EXCEPT UNASSIGNED ISSUER'S RIGHTS) HAVE BEEN ASSIGNED TO ORIX PUBL,C rINANCE LLC. THE BOND ISSUED HEREUNDER SHALL NOT BE DEEMED TO CONSTITUTE A DEBT, LIABILITY OR OBLIGATION OF THE CITY OF MIAMI, FLORIDA AS THE ISSUER OR OF THE STATE OF FLORIDA OR OF ANY POLITICAL SUBDIVISION, BUT SHALL BE PAYABLE SOLELY FROM THE REVENUES OF THE MIAMI CHILDREN'S MUSEUM, INC. AS PROVIDED IN THIS AGREEMENT. 03- 858 TABLE OF CONTENTS (This Table of Contents is not a part of the Loan Agreement but is for convenience of reference only.) Page ARTICLEI DEFINITIONS..................................................................................................................1 Section 1.1. Use of Defined Terms...........................................................................................1 Section1.2. Definitions..................................................................... ..........2 Section1.3. Interpretation.........................................................................................................5 Section 1.4. Captions and Headings........................................................................................ 5 ARTICLE II REPRESENTATIONS AND TAX COMPLIANCE....................................................... 6 Section 2.1. Representations of the Issuer.............................................................................. 6 Section 2.2. R_evresentations and Covenants of the Borrower ............................................. 6 Section 2.3. Tax Representations Warranties and Covenants of the Borrower ................. 9 Section 2.4. Additional Tax Covenants of the Borrower.....................................................10 ARTICLE III ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF THE PROJECT; ISSUANCE OF BOND................................................................................15 Section 3.1. Agreement To Refinance the Refinanced Debt and Improve and Equip the Project ............................. Section 3.2. Issuance of the Bond: Loan of Proceeds...........................................................16 Section 3.3. Insufficiency of Funds........................................................................................16 ARTICLE IV LOAN BY ISSUER; REPAYMENT OF THE LOAN; LOAN PAYMENTS ANDADDITIONAL PAYMENTS...............................................................................16 Section 4.1. Loan Repayment; Delivery of Note..................................................................16 Section 4.2. Additional Payments .........................................................................................17 Section4.3. Place of Payments...............................................................................................17 Section 4.4. Obligations VTLcQn itional Section 4.5: Assignment of Certain Bond Documents ......................................... ARTICLE V ADDITIONAL AGREEMENTS AND COVENANTS; PLEDGE .............................18 Section 5.1. Borrower to Maintain its Existence...................................................................18 Section5.2. Indemnification...................................................................................................18 Section 5.3. Inspection................................................................ Section 5.4. Notice to the Issuer and the Lender.................................................................19 Section 5.5. Financial Statements...........................................................................................19 Section5.6. Reports.................................................................................................................. 21 Section 5.7. Payment of Withholding Taxes......................................................................... 21 Section 5.8. Representations and Warranties....................................................................... 21 Section 5.9. Post -Closing Environmental Assessments...................................................... 21 p3- 858 Section5.10. Pledge................................................................................................................... 22 Section 5.11. Miscellaneous Covenants................................................................................... 22 Section 5.12. Insurance Policies......................................................... Section 5.13. Lender Counsel's Fees........................................................................................ 23 Section 5.14. Subordinate Financing and. Transfer................................................................ 23 ARTICLE VI PREPAYMENT OF NOTE............................................................................................. 23 Section 6.1. Optional Prepayment......................................................................................... 23 Section 6.2. Mandatory Prepayment; Acceleration of Note ............................................... 23 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES................................................................. 24 Section7.1. Default.................................................................................................................. 24 Section 7.2. Remedies on Default.......................................................................................... 25 ARTICLE VIII MISCELLANEOUS........................................................................................................ 26 Section8.1. Usury Laws.......................................................................................................... 26 Section 8.2. The Issuer's or Lender's Consent...................................................................... 27 Section8.3. Miscellaneous...................................................................................................... 27 Section8.4. Notices.................................................................... Section 8.5. Successors and Assigns ...................................................................................... 28 Section 8.6. Modification or Termination............................................................................. 28 Section 8.7. Costs and Expenses............................................................................................. 28 Section 8.8. Further Assurances............................................................................................. 29 Section8.9. No Assignment.................................................................................................... 29 Section8.10. Forum................................................................................................................... 29 Section8.11. Interpretation....................................................................................................... 29 Section8.12. No Partnership, etc............................................................................................. 30 Section8.13. Records................................................................................................................. 30 Section8.14. Entire Agreement................................................................................................ 30 Exhibit A Form of Promissory Note...........................................................................................A-1 xhibit B Permitted Tnflebtedness..................................... ............................... B-1 ii 03- 858 LOAN AGREEMENT THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of July 1, 2003 by THE CITY OF MIAMI, FLORIDA, a municipality of the State of Florida (the "Issuer") and THE MIAMI -CHILDREN'S MUSEUM, INC., a Florida corporation not-for-profit (the "Borrower"): WITNESSETH: WHEREAS, pursuant to the provisions of the laws of the State of Florida, the Issuer may issue industrial development revenue bonds to provide funds for the making of loans to finance and refinance the acquisition, construction and equipping of "tourism facilities" such as the facility to be owned and operated by the Borrower as described herein; and WHEREAS, at the request of the Borrower, the Issuer proposes to issue the Bond (hereinafter defined) and to loan the proceeds thereof to the Borrower pursuant to this Agreement to be applied to the refinancing of the Refinanced Debt and the payment of the Project Costs (as both terms are hereinafter defined); and WHEREAS, the Bond is a limited obligation of the Issuer payable solely from the Loan Repayments derived from this Agreement, including payments received hereunder, which Loan Payments have been pledged and assigned to the Lender to secure payment of the Bond and the Bond, the premium, if any, and the interest thereon shall not be deemed to constitute a debt or a pledge of the faith and credit of The City of Miami, the State of Florida, or any political subdivision or agency thereof, including the Issuer, shall be obligated to pay the principal of, premium, if any, or interest on the Bond or other costs incident thereto except from the revenues and receipts pledged therefor. NOW THEREFORE, in consideration of the premises and the mutual representations and agreements hereinafter contained, the Issuer and the Borrower agree as follows: ARTICLE I DEFINITIONS Section 1.1. Use of Defined Terms. In addition to the words and terms defined elsewhere in this Agreement or by reference to another document, the words and terms set forth in Section 1.2 hereof shall have the meanings set forth therein unless the context or use clearly indicates another or different meaning or intent. Those words and terms not expressly defined herein and used herein with initial capitalization where rules of grammar do not otherwise 1 03- 858 require capitalization, or which are otherwise defined terms under the other Bond Documents (as hereinafter defined) shall have the meanings assigned to them in such Bond Documents. Section 1.2. Definitions. As used herein: "Act" means Chapter 159, Parts lI and lif, Florida Statutes, and other applicable provisions of law. "Additional Payments" means the amounts required to be paid by the Borrower pursuant to the provisions of Section 4.2 hereof. "Agreement" means this Loan Agreement, as amended or supplemented from time to time. "Assignment" means the Assignment of Loan Agreement, Promissory Note, Leasehold Mortgage and Other Collateral dated of even date herewith, among the Issuer, the Lender and the Borrower. "Bond" means the Issuer's not to exceed $5,000,000 principal amount Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project). "Bond Counsel" means Bryant, Miller and Olive, P.A., or another attorney or firm of attorneys satisfactory to the Lender and nationally recognized as experienced in matters relating to the tax exemption of interest on bonds of states and political subdivisions thereof. "Bond Documents" means the Resolution, the Bond, this Agreement, the Note, the Leasehold Mortgage, the Assignment, the Environmental Agreement, each Draw Request and the Bond Purchase Agreement. "Bond Purchase Agreement" means the Bond Purchase and Construction Financing Agreement dated of even date herewith among the Issuer, the..Borrower and the Lender. "Bond Service Charges" means all principal and interest and other payments of any nature due on the Bond. "Borrower" means The Miami Children's Museum, Inc., a Florida corporation not-for-profit, and any lawful successors and assigns thereof permitted by this Agreement. "Business Day" means any day other than a Saturday, Sunday or day on which the office of the Lender at the Notice Address is lawfully closed. "Code" means the Internal Revenue Code of 1986, as amended. 2 03- 858 "Default" means any of the events described as an Event of Default in Section 7.1 hereof. "Default Rate" means the lesser of (i) the Interest Rate on the Bond (without regard to this adjustment) plus [4%] per annum or (ii) the maximum rate permitted by law. "Environmental Agreement" means the Environmental Indemnity Agreement dated of even date herewith among the Borrower, the Lender and the Issuer. "Financial Statements" means a balance sheet, income statement or statement of revenues, statements of cash flow and amount and sources of contingent liabilities, and a reconciliation of changes in equity or fund balance, and, unless the Lender otherwise consents, consolidated and consolidating statements if the reporting party is a holding company or a parent of a subsidiary entity. "Fiscal Year" means such one-year period selected by the Borrower as its fiscal year. "Indebtedness" means any and all indebtedness of the Borrower evidenced, governed or secured by or arising under any of the Bond Documents. "Issuer" means The City of Miami, Florida, its successors and assigns. "Issuer's Fees and Expenses" means those reasonable fees and expenses, if any, payable to or incurred by the Issuer with respect to the issuance of the Bond, including any reasonable fees and expenses of counsel (including Bond Counsel) to the Issuer, financial advisor to the Issuer, and further including any expenses incurred by the Issuer as a result of any reporting requirements imposed upon the Issuer or any investigations or audits as a result of the issuance of the Bond. "Leasehold Mortgage" means the Leasehold Mortgage, Assignment of Rents and Security Agreement, dated April 30, 2003, from the Borrower to the Lender. "Lender" means Orix Public Finance LLC and its successors and assigns as the lender and as the registered owner of the Bond. "Lender Counsel" means Gilmore & Bell, P.C., or another attorney or firm of attorneys satisfactory to the Lender and nationally recognized as experienced in matters relating to the tax exemption of interest on bonds of states and political subdivisions thereof. "Loan" means the loan by the Issuer to the Borrower of proceeds received from the sale of the Bond to the Lender. "Loan Payments" means the amounts required to be paid by the Borrower in repayment of the Loan pursuant to the provisions of the Note and of Section 4.1 hereof. 4] 03- 858 "Note" means the promissory note of the Borrower, dated as of even date herewith, in the form attached hereto as Exhibit A, and in the principal amount of $5,000,000, evidencing the obligation of the Borrower to make Loan Payments. "Notice Address" means: (a) As to the Issuer: The City of Miami, Florida 444 S.W. 2nd Avenue, 101' Floor Miami, Florida 33130 Office of the City Attorney The Citv of Miami, Florida 444 S.W. 2„d Avenue, 100, Floor Miami, Florida 33130 (b) As to the Borrower: The Miami Children's Museum, Inc. 701 Arena Boulevard Miami, Florida 33136 (c) As to the Lender: Orix Public Finance LLC 19309 Yachtman Drive Cornelius, North Carolina 28031 or such additional or different address, notice of which is given under Section 8.4 hereof. "Permitted Indebtedness” means the debt described on Exhibit B hereto. "Person" or words importing persons mean firms, associations, partnerships (including without limitation, general and limited partnerships), joint ventures, societies, estates, trusts, corp(=rations, public or governmental bodies, other legal entities and individuals. "Pledged Funds" means the pledge of the Borrower of the funds to secure the Loan Payments as described in Section 5.10 hereof. "Project" means the improving and equipping of certain improvements to the museum known as The Miami Children's Museum, Inc. in Miami, Florida. "Project Amount" means the proceeds of the Bond in the amount of $1,000,000 to be released to the Borrower by the Lender under the conditions and provisions of the Bond Purchase Agreement. 4 03- 858 "Project Costs" or "Costs of the Project" means any item of cost or expense described within the definition of "Cost" set forth in Section 159.27(2), Florida Statutes, and incurred with respect to the Project. "Refinanced Debt" means the Promissory Note, dated June 1, 1981, in the original principal amount of $5,000,000 made by The Miami Children's Museum, Inc. and payable to the Lender currently outstanding in the principal amount of $5,000,000. "Resolution" means the Resolution adopted by the Issuer on July 24, 2003 authorizing the issuance of the Bond and the transaction contemplated hereby. "Site Lease" means the Sublease Agreement between the Miami Sports and Exhibition Authority and the Borrower. "State" means the State of Florida. "Tax Certificate" means the Tax Certificate signed by the Borrower in connection with the issuance of the Bond. "Unassigned Issuer's Rights" means all of the rights of the Issuer to receive Issuer's Fees and Expenses and any other Additional Payments under Section 4.2 hereof, to be held harmless and indemnified under Section 5.2 hereof, to be reimbursed for attorney's fees and expenses under Section 8.7 hereof, to give or withhold consent to assignments, amendments, changes, modifications, alterations and termination of this Agreement under Sections 8.2, 8.6 or 8.9 hereof, and to receive notice hereunder. Section 1.3. Interpretation. Any reference herein to the Issuer or to any officer or employee thereof includes entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or by operation of law or who are lawfully performing their functions. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa; the terms "hereof," "hereby," "herein," "hereto," "hereunder," "hereinafter" and similar terms refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before, the date of delivery of the Bond. Words of any gender include the correlative words of the other genders, unless the sense indicates otherwise. Section 1.4. Captions and Headings. The captions and headings in this Agreement are solely for convenience of reference and in no way define, limit or describe the scope or intent of any Articles, Sections, subsections, paragraphs, subparagraphs or clauses hereof. 5 03- 858 ARTICLE II REPRESENTATIONS AND TAX COMPLIANCE Section 2.1. Representations of the Issuer. The Issuer represents that: (a) it is a "local agency" within the .meaning of the Act; (b) it has duly accomplished all prerequisites necessary to be accomplished by it prior to the issuance and delivery of the Bond and the execution and delivery of the Bond Documents to which it is a party; (c) it is not in violation of or in conflict with any provisions of the laws of the State which would impair its ability to carry out its obligations contained in the Bond Documents to which it is a party; (d) it is empowered to enter into the transactions contemplated by the Bond Documents to which it is a party; (e) it has duly authorized the execution, delivery and performance of the Bond Documents to which it is a party; and (f) it will do all things in its power in order to maintain its existence or assure the assumption of its obligations under the Resolution and the Bond Documents to which it is a party. The Bond is a limited obligation of the Issuer payable solely from the Loan Repayments derived from this Agreement, including payments received hereunder, which Loan Payments have been pledged and assigned to the Lender to secure payment of the Bond. The Bond, the premium, if any, and the interest thereon shall not be deemed to constitute a debt or a pledge of the faith and credit of The City of Miami, the State of Florida or any political subdivision or agency thereof. Neither the State of Florida nor any political subdivision or agency thereof, including the Issuer, shall be obligated to pay the principal of, premium, if any, or interest on the Bond or other costs incident thereto except from the revenues and receipts pledged therefor. Section 2.2. Representations and Covenants of the Borrower. The Borrower represents and covenants that: (a) The Borrower is duly organized and validly existing as a corporation not-for-profit under the laws of the State. (b)- The Borrower has full power and authority to conduct its business as presently conducted, to construct, equip, own and operate the Project as contemplated hereby, to issue (execute) the Note and to enter into the Bond Documents to which it is a party and all other documents and instruments required to be executed and delivered by the Borrower in connection with this Agreement and the financing contemplated hereby and to perform all duties and obligations of the Borrower under the Bond Documents to which it is a party and under such other documents. Such execution and performance have been duly authorized by all necessary approvals. (c) The Bond Documents to which it is a party and any other documents and instruments required to be executed and delivered by the Borrower in connection with this Agreement or the financing contemplated hereby, when executed and delivered, will constitute 6 03.r 858 the duly authorized, legal, valid and binding obligations of the Borrower and will be enforceable against the Borrower in accordance with their respective terms (except to the extent that enforceability may be affected or limited by applicable bankruptcy, insolvency and other similar debtor relief laws affecting the enforcement of creditors' rights or the availability of equitable remedies). (d) The execution, delivery and performance of the Bond Documents to which it is a party and of any other documents or instruments to be executed and delivered by the Borrower pursuant to this Agreement, the refinancing of the Refinanced Debt and the improving, equipping and use of the Project will not (i) to the best of the Borrower's knowledge violate any provisions of law, including any federal tax or securities laws or State securities laws or any applicable rule, regulation, order, writ, injunction or decree of any court or governmental authority, or (ii) conflict with, be inconsistent with, or result in any breach or default of any of the terms, covenants, conditions or provisions of the organizational documents of the Borrower or any indenture, mortgage, deed of trust, instrument, document, agreement or contract to which the Borrower is a party or to or by which the Borrower or its properties may be subject or bound. (e) The Borrower has no knowledge of any condition, circumstance, event, agreement, document, instrument, restriction, litigation or proceeding (or threatened litigation or proceeding or basis therefor) which could adversely affect the validity of the Bond Documents, or which could adversely affect the ability of the Borrower to refinance the Refinanced Debt and/or complete the Project as contemplated hereby, or which could have a material adverse affect on the ability of the Borrower to perform its obligations under the Bond Documents to which it is a party, or which would constitute an event of default under any of the Bond Documents, or which would constitute such an event of default with the giving of notice or lapse of time or both. (f) To the best of the Borrower's knowledge, the construction and the present and contemplated use and occupancy of the Project will not violate or conflict with any applicable lam, statute_, ordinance, rule, regulation, order or decree of any kind, including without limitation, zoning; building, environmental, land use, noise abatement, occupational health and safety, or other laws, or any building permit or license, or any condition, grant, easement, covenant, condition or restriction, whether or not recorded. (g) All historical financial statements of the Borrower submitted by the Borrower to the Issuer or the Lender in connection with the transaction contemplated by this Agreement were true and correct as of the date thereof in all material respects and fairly presented the respective financial conditions and results of operations of the Borrower, and any pro forma financial statements which purport to show future financial results are a fair and reasonable projection of future operations based upon facts known to the Borrower as of the date of such pro forma statements. 7 03- 858 (h) All materials submitted to the Lender by or on behalf of the Borrower at any time in connection with or in furtherance of any of the Bond Documents fully and fairly stated, in all material respects, the matters with which they purported to deal, and neither misstated any material fact nor, separate or in the aggregate, failed to state any material fact necessary to make the statements made therein not misleading. (i) To the best of the Borrower's knowledge and subject only to payment of fees, all utility and municipal services required for the construction, occupancy, operation and use of the Project, including, but not limited to, water supply, storm and sanitary sewage disposal systems, gas, electric and telephone facilities are available for use from tap ons at or in the vicinity of the boundaries of the Property over dedicated and accepted public rights-of-way abutting the Property or over valid and perpetual easements. of record and written permission has been obtained or will be obtained from the applicable utility companies or governmental units to connect the Project into each of said services. (j) All governmental permits and licenses required by applicable law to construct, occupy, operate and use the Project have been issued or will be issued prior to construction and are or will be in full force or, if the present state of the Project does not allow such issuance, then the Borrower knows of no facts which would prevent the issuance of such permits and licenses when required as the Project is constructed. (k) To the best of the Borrower's knowledge, the storm and sanitary sewage disposal systems, water system and all mechanical systems of the Project do (or when constructed will) comply with all applicable environmental, pollution control and ecological laws, ordinances, rules and regulations. If applicable, the applicable environmental protection agency, pollution control board and/or other governmental agencies having jurisdiction of the Property and Project have issued their permits for the construction, tap -on and operation of those systems or, if the present state of the Project does not allow such issuance, but such issuance will ultimately be required, the Borrower knows of no facts which would prevent such issuance other than the payment of any required fees. (1) To the best of the Borrower's knowledge, all utility, parking, access (including curb -cut and highway access), construction, recreational and other permits and easements required for the construction and use of the Project have been granted and issued or, if not yet granted, the Borrower knows of no facts which would prevent issuance as required. (m) When completed the Project will not encroach upon any building line, set -back line, sideyard line, or other recorded or visible easement or other easement of which the Borrower is aware or has reason to believe may exist with respect to the Property except as approved by the Lender, which approval will not be unreasonably withheld. (n) Bond proceeds will be used only to refinance the Refinanced Debt and to pay Project Costs. The Project will be located entirely within the City of Miami, Florida. 8 03- 858 (o) The Borrower shall not make any amendment to its Articles of Incorporation or bylaws which could reasonably be expected to adversely affect the Borrower's ability to comply with the provisions of the Bond Documents without the prior written consent of the Lender, which consent will not be unreasonably withheld. (p) The Borrower shall not permit the entry of any monetary judgment or the assessment against, the filing of any tax lien against or the issuance of any writ of garnishment or attachment against any property of or debts due the Borrower which could reasonably be expected to adversely affect the Borrower's ability to comply with the provisions of the Bond Documents. (q) The Borrower shall not permit any material default or event of default to occur in the performance of any obligation (whether payment or otherwise) under any loan, contract or agreement of Borrower. (r) The Borrower shall not create, assume or permit to exist any mortgage, security deed, deed of trust, pledge, lien, charge or other encumbrance upon any of its assets, whether now owned or hereafter acquired, other than (i) pursuant to the Bond Documents; (ii) liens for taxes not then due and payable or being contested in good faith; (iii) liens occurring by law for employee benefits; (iv) Permitted Title Exceptions or (v) such matters approved by the Lender in writing. Section 2.3. Tax Representations Warranties and Covenants of the Borrower. Notwithstanding anything herein to the contrary, the Borrower, for the benefit of the Issuer and the Lender, hereby covenants and represents that it has taken and caused to be taken and shall make and take and cause to be made and taken all reasonable actions that may be required of it and of the Issuer for the interest on the Bond to be and remain excluded from the gross income of the Lender for federal income tax purposes, and that to the best of its knowledge it has not taken or permitted to be taken on its behalf, and covenants that to the best of its ability and wiihin its control, it shall not knowingly make or take, or permit to be made -or taken on its behalf, any action which, if made or taken, would adversely affect such exclusion under the provisions of the Code. The Borrower acknowledges that the continued exclusion of interest on the Bond from gross income for federal income tax purposes depends, in part, upon compliance with the arbitrage limitations imposed by Sections 103(b)(2) and 148 of the Code. The Borrower hereby acknowledges sole responsibility as between the Issuer and the Borrower to take all reasonable actions necessary to comply with these requirements. The Borrower hereby agrees and covenants that it shall not permit at any time or times any of the proceeds of the Bond or other funds of the Borrower to be intentionally used, directly or indirectly, to acquire or to replace funds which were used directly or indirectly to acquire any higher yielding investments (as defined in Section 148 of the Code), the acquisition of which would cause the Bond to be 9 03- 858 arbitrage Bond for purposes of Sections 103(b)(2) and 148 of the Code. The Borrower further agrees and covenants that it shall do and perform all acts and things necessary in order to assure that the requirements of Sections 103(b)(2) and 148 of the Code are met. Specifically, without intending to limit in any way the generality of the foregoing, the Borrower covenants and agrees: (1) to pay to the United States of America at the times required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non -purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non -purpose investments were invested at a rate equal to the yield on the Bond, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; and (3) to comply with all representations and restrictions contained in the Certificate as to Arbitrage and Other Tax Matters and the Tax Certificate of Borrower delivered in connection with the issuance of the Bond. The Borrower understands that the foregoing covenants impose continuing obligations on it to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. All representations and warranties of the Borrower set forth in the Certificate as to Arbitrage and Other Tax Matters and the Tax Certificate of Borrower executed in connection with the issuance of the Bond are and will remain true and correct and are incorporated herein by this reference the same as if tully set forth herein. Section 2.4. Additional Tax Covenants of the Borrower. For so long as the Bond remains outstanding, the Borrower hereby covenants as follows: (a) It will comply with, and timely make or cause to be made all filings required by, all effective rules, rulings or regulations promulgated by the Department of the Treasury or the Internal Revenue Service; (b) It will continue to conduct its operations in a manner that will result in its continuing to qualify as an organization described in Section 501(c)(3) of the Code including but not limited to the timely filing of all returns, reports and requests for determination with the Internal Revenue Service and the timely notification of the 10 03... 858 Internal Revenue Service of all changes in its organization and purposes from the organization and purposes previously disclosed to the Internal Revenue Service; (c) It will not divert any substantial part of its income for a purpose or purposes other than those for which it is organized and operated; (d) It will not use, invest or direct the investment of the proceeds of the Bond or any investment earnings thereon in a manner that will result in the Bond becoming a "Private activity bond" (other than qualified 501(c)(3) bonds) within the meaning of Sections 141 and 145 of the Code; (e) It will not use or permit to be used more than five percent (5%) of the proceeds of the Bond (including any amounts used to pay costs associated with issuing such Bond), including all investment income earned on such proceeds directly or indirectly, in any trade or business carried on by any person who is not an organization described in Section 501(c)(3) of the Code or a governmental unit as that term is used in Section 145 of the Code ("an Exempt Person"). For purposes of the preceding sentence, use of the proceeds by an organization described in Section 501(c)(3) of the Code with respect to an "unrelated trade or business," determined in accordance with Section 513(a) of the Code, does not constitute a use by an Exempt Person; (f) It will not use or permit the use of any portion of the proceeds of the Bond, including all investment income earned on such proceeds, directly or indirectly, to make or finance loans to persons who are not a governmental unit or an organization described in Section 501(c)(3) of the Code. For purposes of the preceding sentence, a loan to an organization described in Section 501(c)(3) of the Code for use with respect to an "unrelated trade or business" does not constitute a loan to such a unit or organization; (g) It has not entered into, and will not enter into, any arrangement with any person or organization (other than a state or local governmental unit or another 501(c)(3) organization) which provides for such person or organization to manage, operate, or provide services with respect to more than 5% of the property financed or refinanced with the proceeds of the Bonds (a "Service Contract"), unless the guidelines set forth in Revenue Procedure 97-13 (or the guidelines set forth in Revenue Procedure 93-19, to the extent applicable, or any new, revised or additional guidelines applicable to Service Contracts) (the "Guidelines"), are satisfied, except to the extent it obtains a private letter ruling from the Internal Revenue Service or an opinion of Bond Counsel which allows for a variation from the Guidelines. Service Contracts that relate to the use or operation of the Project by "service providers," as that term is used in the Guidelines (the "Service Providers"), will satisfy the Guidelines, as in effect on the date hereof, if and only if the requirements of each of the following Subsections is satisfied: 11 03- 858 V (i) The compensation of the Service Provider under the contract must be reasonable for the services rendered. (ii) The contract must not provide for any compensation for services, based in whole or. in part, on a share of net profits from the operation of the Project. Generally, compensation is not based on a share of net profits if such compensation is based on a "capitation fee" or a "per-unit fee." Under the Guidelines, "capitation fee' means a fixed periodic amount for each person for whom the Service Provider or a qualified user assumes the responsibility to provide all needed services for a specified period (so long as the quantity and type of services actually provided to covered persons varies substantially). .Under the Guidelines, a "per-unit fee" means a fee based on a unit of service provided (e.g, a stated dollar amount for each specified medical procedure performed or car parked). (iii) The contract must provide for a compensation arrangement for the Service Provider that satisfies any one of the following six paragraphs: (a) At least 95 percent of the compensation for services for each annual period during the term of the Service Contract is based on a periodic fixed fee, so long as the term of the contract does not exceed the lesser of 80 percent of the reasonably expected useful life of the bond - financed property and 15 years, including renewal options. (b) At least 80 percent of the compensation for services for each annual period during the term of the Service Contract is based on a periodic fixed fee, so long as the term of the contract does not exceed the lesser of 80 percent of the reasonably expected useful life of the bond - financed property and 10 years, including renewal options. (c) At least 50 percent of the compensation for services 'tor - each annual period during the term of the Service Contract is based on a periodic fixed fee, so long as the term of the contract does not exceed five years, including renewal options. (d) All of the compensation for services is based on a "capitation fee" or a combination of "capitation fee' and a periodic fixed fee, so long as the term of the contract does not exceed five years, including renewal options. (e) If the contract has a term, including renewal options, that is not longer than three years, all of the Service Provider's compensation may be based on "per-unit fee' or a combination of a "per-unit fee" and a 12 03- 858 periodic fixed fee. For this compensation arrangement to satisfy the Guidelines, the contract must be cancelable by the Borrower on reasonable notice, without penalty or cause, at the end of the second year of the contract term. In addition, the amount of the "per-unit fee" must be specified in the service contract or otherwise specifically limited by the Borrower or an independent third party.' (f) If the contract has a term, including renewal options, that is not longer than two years, all of the Service Provider's compensation may be based on a percentage of fees charged or a combination of a per- unit fee and a percentage of revenue or expense fee. For this compensation arrangement to satisfy the Guidelines, the contract must be cancelable by the Borrower on reasonable notice, without penalty or cause, at the end of the first year of the contract term. In addition, the contract must (A) require the Service Provider to provide services primarily to third parties; or (B) involve a facility during an initial start- up period for which there have been insufficient operations to establish a reasonable estimate of the amount of the annual gross revenues and expenses (e.g., a service contract for general management services for the first year of operations). During the start-up period only, the Service Provider's compensation may be based on a percentage of either gross revenues, adjusted revenues, or expenses of the Project. (iv) The Borrower must be able to cancel a Service Contract described in (iii)(c) or (iii)(d) above upon reasonable notice, without penalty or cause, at the end of the third year of the contract term, and a Service Contract described in (iii)(e) or (iii)(f) above at the earlier times provided therein (if applicable). Under the guidelines, contract termination penalties include (1) a limitation on the Borrower's right to compete with the Service Provider; (2) a requirement that the Borrower purchase equipment, goods, or services from the Service Provider; and (3) a requirement that the Borrower pay liquidated damages for cancellation of the Service Contract. However, the Guidelines generally do not treat the following as contract termination penalties: (1) a requirement, effective on cancellation of the contract, that the Borrower reimburse the Service Provider for ordinary and necessary expenses; and (2) a restriction on the Borrower against hiring key personnel of the Service Provider. (v) The Service Provider does not have a role or relationship with the Borrower (or the Issuer) that, in effect, substantially limits the ability of the Borrower to exercise its rights, including cancellation of rights, under the Service Contract. Accordingly, not more than 20 percent of the voting power of the governing body of the Borrower (or the Issuer) in the aggregate may be vested in the Service Provider and its directors, officers, shareholders, and employees. 13 03- 858 Furthermore, the group of persons belonging to both the governing board of the Borrower (or the Issuer) and the Service Provider may not include the chief executive officers of the Borrower (or the Issuer) and the Service Provider, or their respective governing bodies. Finally, neither the Borrower nor the Issuer may be members of the same "controlled group" (within the meaning of Treasury Regulations §1.150-1(f)) or "related persons" (within the meaning of Code Section 144(a)(3)) as the Service Provider. (h) It will not cause the Bonds to be treated as "federally guaranteed" obligations for purposes of Section 149 of the Code, as may be modified in any applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or proposed by the Department of the Treasury or the Internal Revenue Service with respect to "federally guaranteed" obligations described in Section 149 of the Code. For purposes of this paragraph, the Bonds shall be treated as "federally guaranteed" if (i) all or any portion of the principal or interest is or will be guaranteed directly or indirectly by the United States of America or any agency or instrumentality thereof, or (ii) 5% or more of the proceeds of the Bonds will be (A) used in making loans the payment of principal or interest with respect to which is to be guaranteed in whole or in part by the United States of America or any agency or instrumentality thereof, or (B) invested directly or indirectly in federally insured deposits or accounts, and (iii) such guarantee is not described in Section 149(b)(3) of the Code; (i) The net proceeds of the Bonds and any investment earnings thereon shall be applied solely for the purposes set forth in this Agreement and in the Bond Purchase Agreement and no amount of net proceeds of the Bonds in excess of two percent (2%) of the proceeds of the Bonds will be expended to pay the costs of issuing such issue of the Bonds, as required by Section 147(g) of the Code. 0) It will not use or invest the proceeds of the Bonds in a manner that will violate the provisions of Section 149(d)(3) or (4) of the Code; (k) The average maturity !of the Bonds will not exceed one hundred twenty percent (120%) of the reasonably expected economic life of any property the cost of which was financed or refinanced with the net proceeds of the Bonds, taking into account the respective cost of each item comprising such property which was financed with the net proceeds of the Bonds. For purposes of the preceding sentence, the reasonably expected economic life of each item of property shall be determined as of the later of (i) the date on which the Bonds are issued or (ii) the date(s) on which such item of property is placed in service (or expected to be placed in service). In addition, land shall not be taken into account in determining the reasonably expected economic life of such property, except that, in the event twenty-five percent (25%) or more of the proceeds of the Bonds have been expended for land, such land shall be treated as having 14 03- 858 an economic life of thirty (30) years and shall be taken into account for purposes of determining the reasonably expected economic life of such property; (1) No amount of the proceeds of the Bonds will be used, directly or indirectly, to provide any airplane, sky -box or other private luxury box, facility primarily used for gambling, store the principal business of which is the sale of alcoholic beverages for consumption off premises or health club facility (except any health club facility related to the Section 501(c)(3) exempt purposes of the Borrower); (m) It will comply with the information reporting requirements of Section 149(e)(2) of the Code; (n) All of the property which is to be provided with the net proceeds of the Bonds shall be owned by an Exempt Person, as required by Section 145(a) of the Code; (o) No other governmental obligations shall be sold within fifteen (15) days of the Bonds pursuant to the same plan of financing as the Bonds that are reasonably expected to be paid from the same source of funds as the Bonds; (p) The information to be furnished by the Borrower and used by the Issuer in preparing the certification pursuant to Section 148 of the Code and information statement (Form 8038) pursuant to Section 149(e) of the Code is accurate and complete as of the date of the issuance of the Bonds; and (q) It will require, in connection with any lease or grant by the Borrower of the use of any portion of the property financed by the Bonds that the lessee, sublessee, manager or other user of any portion of the property financed by the Bonds shall not violate the covenants set forth in this section and use that portion of the property financed by the Bonds in any manner which would violate the covenants set forth in this section; The terms "debt service," ' "gross proceeds," "net proceeds," "proceeds," and "yield" have the meanings assigned to them for purposes of Section 148 of the Code. ARTICLE III ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF THE PROJECT; ISSUANCE OF BOND Section 3.1. Agreement To Refinance the Refinanced Debt and Improve and Equip the Project. The Borrower shall do all things legally and reasonably within its power that are necessary to cause the Refinanced Debt to be satisfied as of the date of issuance of the Bond and 15 03- 858 to cause the completion of the improvements and equipping of the Project with the portion of the Bonds used to fund the Project Amount to occur by December 31, 2003. Section 3.2. Issuance of the Bond; Loan of Proceeds. To provide funds to make the Loan for the purposes of refinancing the Refinanced Debt and assisting in the payment of Project Costs, "the Issuer will issue, sell and deliver the Bond to the Lender in exchange for the Advance and hereby agrees to loan the entire proceeds therefrom upon the terms and conditions herein provided to the Borrower. Pursuant to the Bond Purchase Agreement the Lender will make the Advance to the Issuer, which Advance the Issuer will immediately loan to the Borrower hereunder and which shall be deemed loaned by the Issuer to the Borrower immediately upon funding of such Advance by the Lender. Section 3.3. Insufficiency of Funds. The Issuer does not make any warranty, either express or implied, that the proceeds of the Bond will be sufficient to pay all of the costs of improvements to the Project. The Borrower agrees that if the Borrower shall pay any portion of the cost of construction of the Project from moneys other than proceeds of the Bond the Borrower shall not be entitled to any reimbursement other than from the Bond proceeds therefor from the Issuer or the Lender, nor shall the Borrower be entitled to any diminution of the amounts payable under Sections 4.1 or 4.2 hereof. THE ISSUER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PROJECT OR THE CONDITION THEREOF, OR THAT THE PROJECT WILL BE SUITABLE FOR THE PURPOSES OR NEEDS OF THE BORROWER. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE BORROWER WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE PROJECT. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION OR WORKMANSHIP OF ANY PART OF THE PROJECT OR ITS SUITABILITY FOR THE BORROWER'S PURPOSES. ARTICLE IV LOAN BY ISSUER; REPAYMENT OF THE LOAN; LOAN PAYMENTS AND ADDITIONAL PAYMENTS Section 4.1. Loan Repayment; Delivery of Note. Upon the terms and conditions of this Agreement and the Bond Purchase Agreement, the Issuer will loan (the "Loan") the Borrower the proceeds from the sale of the Bond, including all amounts Advanced by the Lender to the Issuer pursuant to the Bond Purchase Agreement. The Borrower and the Issuer agree that all amounts Advanced by the Lender to the Issuer pursuant to the Bond Purchase Agreement shall be simultaneously deemed loaned by the Issuer to the Borrower, so that the amount of the Loan shall equal the aggregate amount Advanced by the Lender. In consideration of and in repayment of the Loan, the Borrower shall make, as Loan Payments, 16 03-- 858 payments sufficient in time and amount to pay when due all Bond Service Charges, all as more particularly provided in the Note and hereby pledges the Pledged Funds as set forth in Section 5.10 to secure the Loan Repayments. All such Loan Payments shall be paid to the Lender as assignee of the Issuer in accordance with the terms of the Note. Upon payment in full of the Bond Service Charges on the Bond, whether at maturity or by prepayment or otherwise, and other amounts due hereunder and under the Bond Purchase Agreement, the Note shall be deemed fully paid, the obligations of the Borrower thereunder shall be terminated, and the Note shall be surrendered by the Lender to the Borrower, and shall be canceled by the Borrower. Section 4.2. Additional Payments. The Borrower shall pay to the Issuer, as Additional Payments hereunder, the Issuer's Fees and Expenses and shall reimburse or pay the Issuer for any and all reasonable costs, expenses and liabilities paid or incurred by the Issuer in satisfaction of any obligation of the Borrower hereunder not performed by the Borrower in accordance with the terms hereof, it being understood that the Issuer shall have no liability or responsibility for undertaking any obligation of the Borrower. The Borrower shall also prepay or reimburse the Issuer and the Lender for any and all reasonable expenses paid or to be paid by the Issuer or the Lender and requested by the Borrower, or required by this Agreement or the Bond Purchase Agreement or incurred in enforcing the provisions of the Bond Documents, or incurred in defending any action or proceedings with respect to the Project or the Bond Documents, or arising out of or based upon any other document relating to the issuance of the Bond, which are not otherwise required to be paid by the Borrower hereunder. The Borrower also agrees to pay, whether to the Issuer or the Lender or otherwise, any tax or other governmental imposition imposed upon or with respect to this Agreement or the Note, including, but not limited to, the excise tax on documents imposed by Chapter 201, Florida Statutes and the intangible personal property tax imposed by Chapter 199, Florida Statutes, if any. Section 4.3. Place of Payments. The Borrower shall make all Loan Payments directly to the Lender at its office designated inwriting, and all Additional Payments due to the Issuer or the Lender shall be made directly to the Issuer or the Lender, as the case may be, at their Notice Addresses. Section 4.4. Obligations Unconditional. The obligations of the Borrower to make Loan Payments and Additional Payments shall be absolute and unconditional, and the Borrower shall make such payments without abatement, diminution or deduction regardless of any cause or circumstances whatsoever including, without limitation, any defense, set-off, recoupment or counterclaim which the Borrower may have or assert against the Issuer, the Lender or any other Person, unless ordered by a court or arbitrator of competent jurisdiction. Section 4.5. Assignment of Certain Bond Documents. To secure the payment of Bond Service Charges, the Issuer shall assign to the Lender, by the Assignment, its rights under and 17 03- 858 interest in this Agreement (except for the Unassigned Issuer's Rights) and the Note. The Borrower hereby agrees and consents to that assignment, and the Borrower and the Issuer agree that except for the Unassigned Issuer's Rights, the Lender shall have the sole and exclusive right to receive notices (other than notices to be directed to the Issuer), give consents, direct remedial actions and exercise all other discretionary rights and powers hereunder. ARTICLE V ADDITIONAL AGREEMENTS AND COVENANTS; PLEDGE Section 5.1. Borrower to Maintain its Existence. The Borrower shall at all times take all legal steps necessary to maintain its existence as a corporation not-for-profit under the laws of the State and as an organization described in Section 501(c)(3) of the Code. Section 5.2. Indemnification. The Borrower releases the Issuer and the Lender and their respective officers, directors, employees, and agents (herein collectively called the "Indemnified Parties") from, and agrees that the Indemnified Parties shall not be liable for, and the Borrower indemnifies the Indemnified Parties against, all liabilities, claims, costs and expenses imposed upon or asserted against any of them on account of: (a) any loss or damage to property or injury to or death of or loss by any Person that may be occasioned by any cause whatsoever pertaining to the construction, maintenance, operation and use of the Land, Improvements or Project unless arising through the gross negligence or misconduct of the party seeking indemnification; (b) any act or omission or breach or default on the part of the Borrower in the performance of any covenant or agreement of the Borrower under any Bond Document or any related document, or arising from any act or failure to act by the Borrower, or any of its agents, contractors, servants, employees or licensees; (c) the authorization, issuance and sale of the Bond (except for federal or state securities law violations caused by a party seeking indemnification), and the provision by or on behalf of the Borrower of any information furnished by the Borrower in connection therewith concerning the Land, Improvements or Project or the Borrower (including, without limitation, any information furnished by the . Borrower for inclusion in any certifications made by the Issuer under, or as a basis for, preparation of, any information statements furnished by the Issuer and any information or certification obtained from the Borrower) to assure exclusion of the interest on the Bond from gross income of the Lender for federal income tax purposes; (d) the Borrower's failure to comply with any requirements of this Agreement pertaining to compliance with the Code to assure said exclusion of the interest; and (e) any claim, action or proceeding with respect to the matters set forth in (a), (b), (c) or (d) above brought thereon. The Borrower indemnifies the Issuer, and its officers, directors, employees and agents for, and to hold the Issuer harmless against, all liabilities, claims, costs and expenses incurred without gross negligence or bad faith on the part of the Issuer, or its officers, directors, employees or agents, on account of any action taken or omitted to be taken by the Issuer, 18 03- 858 respectively, in accordance with the terms of any Bond Document or any action taken at the request of or with the consent of the Borrower, including the costs and expenses of the Issuer in defending itself against any such claim, action or proceedings brought in connection with the exercise or performance of any of its powers or duties under any Bond Document. In case any action or proceeding is brought against any Indemnified Party in respect of which indemnity may be sought hereunder, the party seeking indemnity promptly shall give notice of that action or proceeding to the Borrower, and the Borrower upon receipt of that notice shall have the obligation and the right to assume the defense of the action or proceeding; provided, that failure of a party to give that notice shall not relieve the Borrower from any of its obligations under this Section unless, and only to the extent that, that failure prejudices the defense of the action or proceeding by the Borrower. At the expense of the Borrower, an Indemnified Party may employ separate counsel and participate in the defense. The Borrower shall not be liable for any settlement made without its consent. The indemnification set forth above is intended to and shall be enforceable by each of the Indemnified Parties to the full extent permitted by law, and shall survive the payment in full of the Note and the Bond. Section 5.3. Inspection. The Issuer or the Lender may enter upon the Mortgaged Property to inspect the Mortgaged Property and any materials at any reasonable time and with reasonable notice. Section 5.4. Notice to the Issuer and the Lender. The Borrower shall promptly notify the Issuer and the Lender in writing of any of the following events, specifying in each case the action the Borrower has taken or will take with respect thereto: (a) any material violation of any law or governmental requirement; (b) any material litigation, arbitration or governmental investigation or proceeding instituted or threatened against the Borrower or the Mortgaged Property or any material development therein; (c) any actual or threatened condemnation of any portion of the Mortgaged Property, any negotiations with respect to any such taking, or any toss of or substantial damage to the Mortgaged Property; (d) any material labor controversy pending or "threatened against the Borrower or any contractor or any material development in any labor controversy; (e) any notice received by the Borrower with respect to the cancellation, alteration or non -renewal of the Site Lease or any insurance coverage maintained with respect to the Mortgaged Property; (f) any failure by the Borrower or any contractor to perform any material obligation under any construction contract, any event or condition which would permit termination of a construction contract or suspension of work thereunder, or any notice given by the Borrower or any contractor with respect to any of the foregoing; or (g) any violation or alleged violation of any provision of the Site Lease. Section 5.5. Financial Statements. The Borrower shall deliver to the Lender the Financial Statements and other statements and information at the times and for the periods 19 03-- .858 described herein, as otherwise required by any other Bond Documents and from time to time such additional financial statements, reports and information the Issuer requests. Borrower must keep true and correct financial books and records on a cash basis for the construction of the Improvements and provide the following to Lender: (a) Within one hundred twenty (120) days after the end of each of Borrower's fiscal years, Borrower must deliver audited balance sheets and income statements to Lender for itself and the Improvements, together with a statement showing all changes in the financial condition of Borrower and the Improvements occurring during the preceding fiscal year, certified in writing as true and correct by a representative of Borrower satisfactory to Lender. (b) _Each month.. charitable pledge and grant receipts, and quarterly balance sheets and income statements, for itself and the Improvements, certified in writing as true and correct by a representative of Borrower satisfactory to Lender. (c) Prior to commencement of operations of the Improvements, a capital and operating budget for the Project for its first fiscal year (or portion thereof) of operations; and after commencement of operations in the Improvements: (i) prior to the beginning of each fiscal year of Borrower, a capital and operating budget for the Project; and (ii) for each month (and for the fiscal year through the end of that month) (A) a statement of all income and expenses in connection with the Property, and (B) a current leasing status report (including tenants' names, occupied tenant space, lease terms, rents, vacant space, and proposed rents), including in each case a comparison to the budget, as soon as reasonably practicable, but in any event, within fifteen (15) days after the end of each such month, certified in writing as true and correct by a representative of Borrower satisfactory to Lender. Items provided under this paragraph shall be in form and detail satisfactory to Lender. (d) Copies of filed federal and state income tax returns of Borrower for each taxable year, within twenty (20) days after filing but, in any event, not later than one hundred twenty (120) days after the close of each ,-�ach taxable year. (e) From time to time, promptly after Lender's request, such additional information, reports, and statements respecting the Project and the Improvements or the business operations and financial condition of each reporting party, as Lender may reasonably request. All Financial Statements shall be in form and detail satisfactory to Lender and shall contain, or be attached to, the signed and dated written certification of the reporting party, in form specified by Lender, to certify that the Financial Statements are furnished to Lender in connection with the extension of credit by Lender and constitute a true and correct statement of the reporting party's financial position. All certifications and signatures, on behalf of corporations, partnerships or other entities, shall be by a representative of the reporting party 20 03- 858 satisfactory to Lender. All fiscal year-end Financial Statements of the Borrower shall be audited by, independent certified public accountants reasonably acceptable to Lender. Section 5.6. Reports. The Borrower shall immediately notify the Lender of any report, study, inspection or test that indicates any adverse condition in the Land or the Improvements. Section 5.7. Payment of Withholding Taxes. The Borrower shall not use, or knowingly permit any contractor or subcontractor to use, any portion of the proceeds of any Advance to pay the wages of employees unless a portion of the proceeds or other funds are also used to make timely payment to or deposit with the United States all amounts of tax required to be deducted and withheld with respect to such wages under the Internal Revenue Code, and to make timely payment to or deposit with any. local and/or state governmental authority or agency having jurisdiction all. amounts of tax required to be deducted and withheld with respect to such wages under any applicable local and/or state laws. Section 5.8. Representations and Warranties. To induce the Issuer to issue the Bond and the Lender to make Advances, the Borrower hereby represents and warrants to the Issuer and the Lender that (a) prior to the recordation of the Leasehold Mortgage, no work of any kind (including the destruction or removal of any existing improvements, site work, clearing, grading, grubbing, draining or fencing of the Land) has been or will be commenced or performed on the Mortgaged Property, no equipment or material has been or will be delivered to or upon the Mortgaged Property for any purpose whatsoever, and no contract (or memorandum or affidavit thereof) for the supplying of labor, materials, or services for the design or construction of the Improvements, or the surveying of the Mortgaged Property or Improvements, nor any affidavit or notice of commencement of construction of the Improvements, has been or will be executed or recorded, which in any case could cause a mechanic's or materialman's lien or similar lien to have an inception so as to achieve priority over the Leasehold Mortgage or the rights of the Issuer thereunder; (b) to the extent required by applicable law, the Borrower has filed all necessary tax returns and reports and have paid all taxes and governmental charges thereby shown to be owing; (c) the Land and Improvements comply with all laws and governmental requirements, including all subdivision and platting requirements, without reliance on any adjoining or neighboring property; (d) the Improvements when constructed will comply with all legal requirements regarding access and facilities for handicapped or disabled persons; (e) the Borrower has not directly or indirectly conveyed, assigned or otherwise disposed of or transferred (or agreed to do so) any development rights, air rights or other similar rights, privileges or attributes with respect to the Mortgaged Property, including those arising under any zoning or land use ordinance or other law or governmental requirement; and (f) the financial statements delivered to the Lender are true and correct, and there has been no material change of the Borrower's financial condition from the financial condition of the Borrower indicated in such Financial Statements. Section 5.9. Post -Closing Environmental Assessments. The Issuer or the Lender may, at their sole option, but only upon reasonable suspicion that an adverse environmental 21 03- 858 condition exists with respect to the Mortgaged Property, and at the Borrower's expense, require an environmental assessment or updated assessment of the Mortgaged Property by an engineering firm, and of a scope and in form and content satisfactory to the Issuer or the Lender, complying with the Issuer's or Lender's established guidelines, showing that there is no evidence of any hazardous or toxic substances which have been generated, treated, stored, released or disposed of in the Mortgaged Property, and such additional evidence as may be required by the Issuer. The Borrower agrees at its sole expense to provide such environmental assessments when requested by the Issuer or the Lender. If any environmental assessment indicates the past or present use, handling, storage, transportation or disposal of hazardous or toxic materials which is unremedied by Borrower, such shall constitute a Default by the Borrower under the Bond Documents. Section 5.10. Pledge. The Borrower shall pledges and covenants in order to pay the Loan Payments to maintain on deposit the pledged funds it has received and will receive from the charitable contributors set forth in Exhibit "C" into an interest-bearing Bank Account, Account No. 354931004676 (the "Bank Account") entitled The Miami Children's Museum Reserve Account at Key Bank. The Borrower represents that Bank Account contains not less than one million dollars ($1,000,000) at the time of the execution of this Agreement, and during the term of this Loan, the principal balance in the Bank Account shall never be less than one million dollars ($1,000,000). In the event that the Bank Account principal balance falls below one million dollars ($1,000,000), the Borrower shall replenish the Bank Account's balance to an amount not less than one million dollars ($1,000,000), within thirty (30) days from the date that the Bank Account principal balance falls below one million dollars ($1,000,000). The Bank Account shall be invested solely in direct general obligation of, or obligations the full and timely payment of the principal and interest of which are unconditionally guaranteed by, the United States of America. Borrower shall deliver to Lender, at least once each calendar quarter, a certificate of a representative of Borrower satisfactory to Lender showing the valuation of the investments held in the Bank Account. Section 5.11. Miscellaneous Covenants. (a) Additional Indebtedness. Borrower shall not incur any additional -long-term indebtedness of any type unless, prior to the incurrence thereof, there is delivered to Lender a certificate of a representative of Borrower satisfactory to Lender demonstrating that, after giving effect to the incurrence of such indebtedness, the projected Debt Service Coverage Ratio for the next succeeding fiscal year of Borrower will not be less than 1.25; provided that the assumptions and analyses used in the calculation thereof shall be satisfactory to Lender. "Debt Service Coverage Ratio" shall mean the ratio determined by dividing net revenues available for debt service by maximum annual debt service, all determined in accordance with generally accepted accounting principles. 22 03- 858 (b) Preservation of Existence. Borrower will preserve and maintain its existence as a Florida not-for-profit corporation and as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. . (c) The Borrower shall comply with all applicable federal, state and local laws and regulatory requirements. (d) The Borrower shall comply with all provisions of the Site Lease. Section 5.12. Insurance Policies. The Borrower shall maintain the insurance required by the Leasehold Mortgage in full force and effect at all times throughout the term of the Loan. Section 5.13.. Lender Counsel's Fees. The Borrower shall pay Lender Counsel's legal fees in connection with the issuance of the Bond, which fees shall be in a fixed amount equal to $000.00. In addition to the fixed fee, the Lender counsel shall charge and the Borrower shall pay any reasonable and customary out-of-pocket expenses incurred by the firm in connection with the Bond closing. All fees and costs shall be due and payable by Borrower on the date of the Bond closing. Section 5.14. Subordinate Financing and Transfer. There shall be no sale or transfer of ownership of the Mortgaged Property unless the Lender, in its sole and absolute discretion, has given its prior written approval. ARTICLE VI PREPAYMENT OF NOTE Section 6.1. Optional Prepayment. The Borrower may prepay the Loan in whole only in accordance with the applicable provisions of the Note. Section 6.2. ' Mandato1y Prepayment; Acceleration of Note. The Note shall be subject to mandatory prepayment to the same extent and on the same dates that the Bond is subject to mandatory prepayment. The Note shall be due and payable in the event of any acceleration of the Bond to the same extent and on the same date that the Bond is declared to become due and payable by reason of such acceleration. 23 03- 858 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Default. The occurrence of any one of the following shall be a default under this Agreement ("Default"): (a) any of the Indebtedness is not paid when due, whether the due date is the scheduled due date or arises by acceleration or otherwise; (b) any covenant, agreement or condition in any Bond Document (other than covenants to pay any, of the Indebtedness) is not fully and timely performed, observed or kept and such violation is non -curable, or if curable continues for a period of thirty (30) days after written notice thereof from the Lender to the Borrower, provided, however, that if such violation may not reasonably be cured within such thirty day period, a Default shall not be deemed to have occurred so long as the Borrower shall be diligently and continuously endeavoring to cure the same; (c) the Borrower fails to satisfy any condition precedent to the obligation of the Lender to make an Advance; (d) any required permit, license, certificate or approval with respect to the :Mortgaged Property lapses or ceases to be in full force and effect and is not reinstated within a reasonable period of time; (e) the Borrower, the Issuer or the Lender is enjoined or prohibited from performing the Bond Documents; (f) the Borrower leases, as lessor, part or all of the Mortgaged Property in a manner which does not comply with the Bond Documents; (g) the Borrower shall - cease to exist or to be qualified to do or transact business in' the State, or shall be dissolved or shall be a party to a merger or consolidation, or shall sell all or substantially all of its assets; (h) any sale, conveyance, transfer, assignment, or other disposition of all or any part of the Mortgaged Property or any ownership interest in the Borrower except as otherwise permitted hereby; (i) any material statement or representation of the Borrower contained in any financial statements or other materials furnished to the Lender are discovered to have been false or incorrect or incomplete; 24 ®3- 858 (j) the Borrower shall default under any obligation imposed by any indemnity whether contained within any of the Bond Documents or otherwise; (k) a default or event of default occurs under the Site Lease or under any Bond Document other than this Agreement or under the Interlocal Agreement dated November 2, 2001 among the Issuer, The Miami Sports and Exhibit Authority and the Borrower; (1) the Borrower shall default under any obligation under any other indebtedness (now or hereafter existing), of the Borrower to the Lender; or (m) the occurrence of a default under any sublease agreement, license agreement or other agreement between the Borrower or under any charter or other agreement relating to the operation of a charter school on any portion of the Project. Section 7.2. Remedies on Default. Whenever an Event of Default shall have happened and be continuing, any one or more of the following remedial steps may be taken: (a) If acceleration of the principal amount of the Bond has been declared pursuant to the Resolution, the Note shall be immediately due and payable in full; (b) The Issuer and the Lender may have access to, inspect, examine and make copies of the books, records, accounts and financial data of the Borrower; and (c) The Issuer or the Lender may pursue all other remedies now or hereafter existing at law or in equity to collect all amounts then due and thereafter to become due under this Agreement, the Leasehold Mortgage or the Note or to force the performance and observance of any other obligation or agreement of the Borrower under those instruments. In addition, the Issuer or the Lender may, at its election, but without any obligation to do so; do any one or more of the following: (a) terminate its commitment to lend hereunder; (b) reduce any 'claim to judgment, which judgment shall bear interest at the Default Rate; (c) exercise any and all rights and remedies afforded by this Agreement, the other Bond Documents, law, equity or otherwise; or (d) set-off and apply, to the extent thereof and to the maximum extent permitted by law, any and all deposits, funds, or assets at any time held and any and all other indebtedness at any time owing by the Lender to or for the credit or account of the Borrower against any Indebtedness. The Borrower hereby appoints the Lender as the attorney-in-fact of the Borrower, which power of attorney is irrevocable and coupled with an interest, with full power of substitution and in the name of the Borrower, if the Lender elects to do so, upon the occurrence of a Default, to (i) endorse the name of the Borrower on any checks or drafts representing proceeds of any insurance policies, or other checks or instruments payable to the Borrower with respect to the Mortgaged Property; (ii) prosecute or defend any action or proceeding incident to the Mortgaged Property; and (iii) pay, settle, or compromise all 25 03- 858 bills and claims so as to clear title to the Mortgaged Property. Any amounts expended by the Lender shall be a demand obligation owing by the Borrower to the Lender. The Lender shall have no liability to the Borrower for the sufficiency or adequacy of any such actions taken by the Lender. ARTICLE VIII MISCELLANEOUS Section 8.1. Usury Laws. The Borrower and the Issuer intend to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Issuer and the Borrower (or any -other party liable with respect to any Indebtedness under the Bond Documents) are hereby limited by the provisions of this Section which shall override and control all such agreements, whether now existing or hereafter arising. In no way, nor in any event or contingency (including but not limited to prepayment, default, demand for payment, or acceleration of the maturity of any obligation), shall the interest taken, reserved, contracted for, charged, chargeable, or received under this Agreement, the Note, any of the other Bond Documents, or otherwise, exceed the maximum amount permitted under applicable law ("Maximum Amount"). If, from any possible construction of any document, interest would otherwise be payable in excess of the Maximum Amount, any such construction shall be subject to the provisions of this Section and such document shall ipso facto be automatically reformed and the interest payable shall be automatically reduced to the Maximum Amount, without the necessity of execution of any amendment or new document. If the Lender or the Issuer shall ever receive anything of value which is characterized as interest under applicable law and which would apart from this provision be in excess of the Maximum Amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Indebtedness in the inverse order of its maturity and not to the payment of interest, or be refunded to the Borrower or the other payor thereof, at the election of the Lender in its sole discretion or as required by applicable law. The right to accelerate maturity of the Note or any other indebtedness does not include the right to accelerate any interest which has not otherwise accrued on the date of such acceleration, and neither the Issuer nor the Lender intends to charge or receive any unearned interest in the event of acceleration. All interest paid or agreed to be paid by the Borrower shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term (including any renewal or extension) of such Indebtedness so that the amount of interest on account of such Indebtedness does not exceed the Maximum Amount. As used in this Section, the term "applicable law" shall mean the laws of the State or the federal laws of the United States applicable to this transaction, whichever laws allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future. 26 03_. 858.. Section 8.2. The Issuer's or Lender's Consent. Except where otherwise expressly provided in the Bond Documents, in any instance where the approval, consent or the exercise of judgment of the Issuer or the Lender is required, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the reasonable discretion of the Issuer or the Lender; (b) deemed to have been given only by a specific writingintended for the purpose given and executed by the Lender or the Issuer; and -(c) except as expressly stated otherwise in the Bond Documents, free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by the Issuer or the Lender, neither the Lender nor the Issuer have any obligation or responsibility whatsoever for the adequacy, form or content of any matter incident to the Mortgaged Property or the construction of the Project. Any inspection or audit of the Mortgaged Property or the books and records of the Borrower, or the procuring of documents and financial and other information, by or on behalf of the Lender or the Issuer shall be for the Issuer's and Lender's protection only, and shall not constitute any assumption of responsibility to the Borrower or anyone else with regard to the condition, construction, maintenance or operation of the Mortgaged Property, or relieve the Borrower of any of the Borrower's obligations. Neither the Issuer nor the Lender has any duty to supervise or to inspect the Mortgaged Property or the construction of the Improvements nor any duty of care to the Borrower or any other person to protect against, or inform the Borrower or any other person of, the existence of negligent, faulty, inadequate or defective design or construction of the Project. Neither the Issuer nor the Lender shall be liable or responsible for any defect in the Mortgaged Property or the Project, the performance or default of the Borrower, the Borrower's architect, engineer, contractor, or any other party, or for any failure to construct, complete, protect or insure the Improvements, or for the payment of costs of labor, materials, or services supplied for the construction of the Improvements, or for the performance of any obligation of the Borrower whatsoever. The Lender's failure to inspect shall not constitute a waiver of any of the Lender's rights under the Bond Documents or at law or in equity. Section 8.3. Miscellaneous. This Agreement may be executed in several counterparts, all of which are identical, and all of which counterparts together shall constitute one and the same instrument. The Bond Documents are for the sole benefit of the Lender, the Issuer and the Borrower and.art not for -the benefit of any third party. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of any, other provision and the determination that the application of any provision of this Agreement to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. Time shall be of the essence with respect to the Borrower's obligations under the Bond Documents. This Agreement, and its validity, enforcement and interpretation, shall be governed by the laws of the State (without regard to any conflict of laws principles) and applicable United States federal law. Section 8.4. Notices. Unless specifically provided otherwise, any notice for purposes of this agreement or any other Bond Document shall be given in writing or by telex or by facsimile (fax) transmission and shall be addressed or delivered to the Notice Address. If sent 27 03- 858 by prepaid, registered or certified mail (return receipt requested), the notice shall be deemed effective when the receipt is signed or when the attempted initial delivery is refused or cannot be made because of a change of address of which the sending party has not been notified; if transmitted by telex, the notice shall be effective when transmitted (answerback confirmed);. and if transmitted by facsimile or personal delivery, the notice shall be,effective when received. No notice of change of address shall be effective except upon actual receipt, ana service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in any Bond Document or to require giving of notice or demand to or upon any person in any situation or for any reason. Section 8.5. Successors and Assigns. This Agreement shall be binding upon the Borrower, and the Borrower's heirs, devisees, representatives, successors and assigns, .and shall inure to the benefit of the Issuer and its successors and assigns, provided, however, that the Borrower shall not assign or encumber any interest of the Borrower hereunder without the prior written consent of the Issuer. The Lender may sell or offer to sell the Loan or interests in the Loan to one or more assignees or participants as provided for and restricted by the terms of the Bond Purchase Agreement. The Lender may disseminate any information it has pertaining to the Loan, Project, the Borrower, to any actual or prospective assignee or participant. Section 8.6. Modification or Termination. The Bond Documents may only be modified or terminated by a written instrument or instruments intended for that purpose and executed by the party against which enforcement thereof is asserted. This Agreement shall continue in full force and effect until the Bond is paid in full; and all representations and warranties and all provisions herein for indemnity of the Lender or the Issuer (and any other provisions herein specified to survive) shall survive payment in full of the Indebtedness and any release or termination of this Agreement or of any other Bond Documents for a period of four years. This Agreement may not be modified except with the prior written consent of the Lender. Seciion 8.7. Costs and Expenses. Without limitation of. any Bond Document and io the extent, not prohibited by applicable laws, the Borrower shall pay when due, and reimburse to the Lender or the Issuer on demand, and indemnify the Lender and the Issuer from, all out-of-pocket fees, costs, and expenses paid or incurred by the Lender or the Issuer in connection with the negotiation, preparation and execution of this Agreement and the other Bond Documents (and any amendments, approvals, consents, waivers and releases requested, required, proposed or done from time to time), or in connection with the disbursement, administration or collection of the Loan or the enforcement of the obligations or the exercise of any right or remedy of the Lender or the Issuer (including costs of arbitration) including (a) fees and expenses of the Lender's and the Issuer's counsel and Bond Counsel; (b) appraisal, re -appraisal and survey costs; (c) title search or examination costs, including abstracts, abstractors' certificates and uniform commercial code searches; (d) judgment and tax lien searches for the Borrower; (e) fees and costs of environmental investigations and site 28 03- 858 assessments; (f) recordation taxes, documentary taxes, transfer taxes and mortgage taxes, and (g) filing and recording fees. The Borrower shall pay all reasonable costs and expenses incurred by the Lender and the Issuer, including attorneys' fees, if the obligations or any part thereof are sought to be collected by or through an attorney at law, whether or not involving probate, arbitration, appellate, administrative or bankruptcy proceedings. The Borrower shall pay all reasonable costs and expenses -of complying with the Bond Documents. The Borrower's obligations under this Section shall survive the delivery of the Bond Documents, the making of Advances, the payment in full of the obligations, the release or determination of the Bond Documents, the foreclosure of the Leasehold Mortgage or conveyance in lieu of foreclosure, any bankruptcy or other debtor relief proceeding, and any other event whatsoever. Section 8.8. Further Assurances. The Borrower will, on request of the Issuer or the Lender. (a) promptly correct any defect, error or omission in any Bond Document; (b) execute, acknowledge, deliver, procure, record or file such further instruments and do such further acts deemed necessary, desirable or proper by the Lender to carry out the purposes of the Bond Documents and to identify and subject to the liens and security interest of the Bond Documents any property intended to be covered thereby, including any renewals, additions, substitutions, replacements, or appurtenances to the Mortgaged Property; (c) execute, acknowledge, deliver, procure, file or record any document or instrument deemed necessary, desirable, or proper by the Issuer to protect the liens or the security interest under the Bond Documents against the rights or interests of third persons; and (d) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts deemed necessary, desirable or proper by the Issuer to comply with the requirements of any agency having jurisdiction over the Issuer. Section 8.9. No Assignment. The Borrower shall not assign, transfer or encumber its rights or obligations under any Bond Document or any proceeds of the Loan without the prior written consent of the Issuer and the Lender. Section 8.10. Forum. The Borrower hereby irrevocably submits generally and uncondi ioxall , for itself and in respect of its property to the jurisdiction of any sta..te.court, or any United States federal court, sitting in the State, over any suit, action or proceeding arising out of or relating to this Bond Purchase Agreement or the Indebtedness. The Borrower hereby irrevocably waives, to the fullest extent permitted by law, any objection that the Borrower may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Nothing herein shall affect the right of the Issuer or the Lender to serve process in any manner permitted by law or limit the right of the Issuer or the Lender to bring proceedings against the Borrower in any other court or jurisdiction. Section 8.11. Interpretation. References to "Dollars", I", "money", "payments" or other similar financial or monetary terms are references to lawful money of the United States of America. References to Articles, Sections, and Exhibits are, unless specified otherwise, references to articles, sections and exhibits of this Agreement. Words of any gender shall 39 03- 858 include each other gender. Words in the singular shall include the plural and words in the plural shall include the singular. The words "herein," "hereof," "hereunder" and other similar compounds of the word "here" shall refer to the entire Agreement and not to any particular provision or section. The words "include" and "including" shall be interpreted as if followed by the words "without limitation". Captions and headings in the Bond Documents are for convenience only and shall not affect the construction of the Bond Documents. Section 8.12. No Partnership, etc. The relationship between the Issuer, the Lender and the Borrower are solely those of lender and borrower. Neither the Issuer nor the Lender has any fiduciary or other special relationship with or duty to the Borrower and none is created by the Bond Documents. Nothing contained in the Bond Documents, and no action taken or omitted pursuant to the Bond Documents, is intended or shall be construed to create any partnership, joint venture, association, or special relationship between the Borrower, the Lender and the Issuer or in any way make the Issuer or the Lender a co -principal with the Borrower with reference to the Project, the Mortgaged Property or otherwise. In no event shall the Issuer's or Lender's rights and interests under the Bond Documents be construed to give the Issuer or the Lender the right to control, or be deemed to indicate that the Issuer or the Lender is in control of, the business, properties, management or operations of the Borrower. Section 8.13. Records. The unpaid amount of the Loan set forth on the books and records of the Lender maintained in the ordinary course of its business shall be presumptive evidence of the amount thereof owing and unpaid unless proven otherwise by the Borrower, but failure to record any such amount on the books and records shall not limit or affect the obligations of the Borrower under the Bond Documents to make payments on the Loan when due. Section 8.14. Entire Agreement. The Bond Documents constitute the entire understanding and agreement between the Borrower and the Issuer with respect to the transactions arising in connection with the Loan and supersede all prior written or oral understandings and agreements between the Borrower and the Issuer with respect to the inatier ,� addressed in the Bond Documents. The Lender has not made any commitments to extend the term of the Loan past -its stated maturity date or to provide the Borrower, with financing except as set forth in the Bond Documents. Except as incorporated in writing in the Bond Documents, there are not, and were not, and no persons are or were authorized by the Lender to make, any representations, understandings, stipulations, agreements or promises, oral or written, with respect to the matters addressed in the Bond Documents. THE WRITTEN BOND DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 30 03- 858 IN WITNESS WHEREOF, the Issuer and the Borrower have caused this Agreement to be duly executed in their respective names, all as of the date hereinbefore written. THE CITY OF MIAMI, FLORIDA ATTEST: By: Its: Clerk (SEAL) By: Its: City Manager THE MIAMI CHILDREN'S MUSEUM, INC. By: By: Its: Its: President 31 03- 858 WTATUT�c1 PROMISSORY NOTE The Miami Children's Museum, Inc. (the "Borrower"), a corporation not-for-profit formed and existing under the laws of the State of Florida, for value received, promises to pay to the order of The City of Miami, Florida and its successors and assigns, including Orix Public Finance LLC (the "Lender") (together with such successors and assigns, the "Issuer"), the principal sum of Five Million and 00/100 DOLLARS ($5,000,000) and to pay interest on the unpaid balance of such principal sum from and after the date hereof as hereinafter provided until the payment of such principal sum has been made and in. addition to pay all Additional Payments (as defined in the hereinafter defined Agreement). This Note has been executed and delivered by the Borrower pursuant to a certain Loan Agreement (the "Agreement") dated as of July 1, 2003, between the Issuer and the Borrower, and is subject to all terms and conditions of the Agreement. Terms used herein shall have the meanings ascribed thereto in the Agreement. Under the Agreement, the Issuer has agreed to loan the Borrower the principal proceeds received from the sale of the Issuer's Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project) (the "Bond") to assist in the financing and refinancing of the Project (as defined in the Agreement), and the Borrower has agreed to repay such loan by making payments ("Loan Payments") at the times and in the amounts set forth in this Note for application to the payment of the principal of and interest on the Bond as and when due, or as otherwise provided in the Agreement, and in addition to pay all Additional Payments as and when due under the Agreement. The Bond has been issued, concurrently with the execution and delivery of this Note, pursuant to a Resolution of the Issuer adopted July 24, 2003 (the "Resolution") and the Bond Purchase and Construction Financing Agreement (the "Bond Purchase Agreement"), dated July _, 2003, between the Issuer, the Borrower and the Lender. To provide funds sufficient to pay the principal and interest on and any other payments due under the Bond as and when due, the Borrower hereby agrees to and shall make Loan Payments pursuant to this Note on the same date and in the same amount as the principal and interest and any other payment due on the Bond on such date. This Note shall bear interest on any overdue installment of principal and (to the extent permitted by law) interest at the Default Rate (as defined in the Agreement). All Loan Payments shall be payable in lawful money of the United States of America and shall be made to the Issuer or its assign at its designated office. A-1 03- 858 The obligation of the Borrower to make the payments required hereunder shall be absolute and unconditional and the Borrower shall make such payments without abatement, diminution, postponement or deduction regardless of any cause or circumstances whatsoever including, without limitation, any defense, set-off, recoupment or counterclaim which the Borrower may have or assert against the Issuer, the Lender or any other person. This Note is subject to optional prepayment upon the same terms and conditions, on the same date or dates and at the same prepayment prices, as the Bond is subject to optional prepayment, and not otherwise, and the Borrower hereby agrees that it will make Loan Payments hereunder in an amount equal to the Bond Service Charges on the Bond due and payable on each such prepayment date. Whenever the principal of the Bond then outstanding, and. the interest accrued thereon, shall have been declared to be immediately due and payable pursuant to the Resolution, the unpaid principal amount of and accrued interest on this Note shall, without further notice or demand, also be due and payable on the date on which the principal of and interest on the Bond shall have been declared to be due and payable. To the extent permitted by law, the Borrower waives demand, protest and notice of maturity, nonpayment or other notices necessary to hold the Borrower liable hereunder, except as required by the Bond Documents. In no event shall the interest rate hereunder exceed the maximum rate permitted by law and in the event any interest otherwise payable hereunder should exceed said maximum legal rate the excess shall be applied as a reduction of the principal hereof. The enforcement and interpretation of this Note shall be governed by the Laws of the State of Florida. This Note is subject to all terms and conditions of the Agreement, and by the purchase and acceptance of this Note, the owner hereof signif les consent to all of the provisions. of the aforementioned document. Should the Borrower fail to pay the installments of interest or principal (if applicable) within seven (7) days after the due date provided herein, the Borrower further promises to pay, from the source provided herein, a late payment charge equal to [four percent RM of the amount of the unpaid installment as liquidated compensation to the Issuer for the extra expense to the Issuer to process and administer the late payment, the Borrower agreeing, by execution hereof, that any other measure of compensation for a late payment is speculative and impossible to compute. This provision for late charges shall not be deemed to extend the time for payment or be a "grace period" or "cure period" that gives the Borrower a right to .cure a Default. Imposition of late charges is not contingent upon the giving of any notice or lapse of A-2 03- 858 any cure period provided for in the Bond Documents and shall not be deemed a waiver of any right or remedy of the Issuer including without limitation, acceleration of this Note. All of the rights, remedies, powers and privileges (together, "Rights") of the Issuer provided for in this Note and in any other Bond Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by the Issuer to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of the Right. Without limiting the generality of the foregoing provisions, the acceptance by the Issuer from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such payment shall not i) constitute a waiver of or impair or extinguish the right of the holder hereof to accelerate the maturity of this Note or to exercise any other Right at the time or at any subsequent time, or nullify any prior exercise of any such Right, or ii) constitute a waiver of the requirement of punctual payment and performance or a novation in any respect. I: the Issuer retains an attorney in connection with any Default or at the Maturity Date or to collect, enforce or defend this Note or any other Bond Document in any lawsuit, at trial, or in any appellate, probate, reorganization, bankruptcy or other proceeding, or if the Borrower sues the Issuer in connection with this Note or any other Bond Document and does not prevail, then the Borrower agrees to pay to the Issuer, in addition to principal, interest and any other sums owing to the Issuer under the Bond Documents, all reasonable costs and expenses incurred by the Issuer in trying to collect this Bond or in any such suit or proceeding, including without limitation reasonable attorneys' fees, paralegals' fees and costs. In no event (including but not limited to prepayment, default, demand for payment, or acceleration of maturity) shall the interest taken, reserved, contracted for, charged or received under 13tis Note or under any of the other,Bond Docum. ents or otherwise, exceed the maximum • nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from any possible construction of any document, interest would otherwise be payable in excess of the Maximum Amount, then ipso facto, such document shall be reformed and the interest payable reduced to the Maximum Amount, without necessity of execution of any amendment or new document. If the holder hereof ever receives interest in an amount which apart from this provision would exceed the Maximum Amount, the excess shall, without penalty, be refunded to the Borrower, or at the option of the Borrower, be applied to the unpaid principal of this Note in inverse order of maturity of installments and not to the payment of interest. The Issuer does not intend to charge or receive unearned interest on acceleration. All interest paid or agreed to be paid to the Issuer shall be spread throughout the full term (including any renewal or extension) of the debt so that the amount of interest does not exceed the Maximum Amount. A-3 03- 858 IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of July J 2003. ATTEST. THE MIAMI CHILDREN'S MUSEUM, INC. By: By: Its: Its: Assigned, without recourse, to Orix Public Finance LLC. Dated May _, 2001. THE CITY OF MIAMI, FLORIDA ATTEST: By: By: Its: Clerk Its: City Manager A-4 03- 858 EXHIBIT B PERMITTED INDEBTEDNESS 1. A loan from the Bank of America, N.A. for $8,000,000 secured by a first mortgage. 2. Any other debt approved in writing by the Lender in its sole discretion. 03- 858 EXHIBIT B NOTICE OF PUBLIC HEARING YOU ARE HEREBY NOTIFIED that on Thursday, July 24, 2003, at 9:00 a.m., or as soon thereafter' as the matter may be heard, in City Commission Chambers, 3500 Pan American Drive, Miami, Florida, a Public Hearing will be held by the City of Miami, Florida on the proposed issuance of Revenue Bonds, Series 2003 (Miami Children's Museum Project) (the "Bonds") and on the location and nature of the facility to be financed and refinanced. The Bonds are to be issued in an aggregate principal amount not to exceed $5,000,000 for the purpose of providing funds to (i) refinance a loan from Orix Public Finance LLC to the Miami Children's Museum, Inc. a not-for-profit organization (the "Company") used for the acquisition, equipping, and renovation of certain exhibits and improvements and related facilities for the museum (the "Project"), and (ii) pay a portion of the costs of issuing the Bonds. The Project is located at 980 MacArthur Causeway, on the southside of Watson Island, Miami, Florida and the Project is owned by the Company which has been determined by the Internal Revenue Service to be an exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. The Project will also be used by the Miami Children's Museum Charter School, Inc. The public hearing is for the purpose of providing a reasonable opportunity for interested individuals to express their views, both orally and in writing, on the proposed issuance of the bonds and on the location and nature of the Project to be refinanced. THE BONDS SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR GENERAL OBLIGATION OF THE STATE OF FLORIDA, THE CITY OF MIAMI, OR ANY OTHER POLITICAL SUBDIVISION OR AGENCY OF THE STATE OF FLORIDA, BUT SHALL BE PAYABLE SOLELY FROM FUNDS PAID BY THE COMPANY AND SHALL BE SECURED BY COLLATERAL FURNISHED BY THE COMPANY. Persons wishing to express their views regarding the Project and the issuance of the Bonds may appear at the hearing or may submit their views in writing. Written comments should be submitted to the City of Miami, Florida, 3500 Par, American Drive, Miami, Florida, Attention: City Clerk, and should be mailed in sufficient time to be received before the date of the hearing. Should any person decide to appeal any decision made by the City of Miami at the hearing, he or she will need a record of the proceedings and he or she may need to assure that a verbatim record of the proceedings be made, which record includes the testimony and evidence upon which the appeal will be heard. Immediately after the hearing, the City Commission will approve or disapprove the issuance of the bonds. Any person requiring reasonable accommodation at this meeting because of a disability or physical impairment should contact the City Clerk at (305) 250-5360 or fax a written request to (305) 858-1610 at least 48 hours prior to the meeting. CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA 03- 858 EXHIBIT C FORM OF BOND No. R-1 ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER'S CERTIFICATE IN THE FORM ON FILE WITH THE ISSUER CERTIFYING, AMONG OTHER THINGS, THAT SUCH HOLDER IS AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF 1933, AS AMENDED, AND REGULATION D THEREUNDER. Date: July _, 2003 THE CITY OF MIAMI, FLORIDA REVENUE BOND, SERIES 2003 (MIAMI CHILDREN'S MUSEUM, INC. PROJECT) Principal Amount: $5,000,000 The City of Miami, Florida, a municipality of the State of Florida (the "Issuer"), for value received, hereby promises to pay to Orix Public Finance LLC (together with its successors and assigns as registered owner hereof, the "Lender"), but solely from the sources as hereafter provided and not otherwise, the principal sum of $5,000,000 or such lesser amount as shall be outstanding hereunder, and to pay interest on the principal sum outstanding hereunder from the date hereof, but solely from the sources as hereafter provided and not otherwise, at the rate per annum set forth below (as the same may be adjusted, the "Interest Rate on the Bond") until payment of such principal sum in full. Subject to adjustment as herein provided, the Interest Rate on the Bond will be the Applicable Rate (hereinafter defined) (subject to adjustment as hereinafter provided). calculated on the basis of a 360 -day year for the actual number of days elapsed. As used in this Bond, (1) "Applicable Rate" shall mean a fixed rate of % per annum. (2) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto; (3) "Determination of Taxability" shall mean interest on this Bond is determined or declared, by the Internal Revenue Service or a court of competent C-1 03- 858 jurisdiction to be includable in the gross income of the Owner for federal income tax purposes under the Code. (4) "Maximum Corporate Tax Rate" shall mean the highest marginal rate of United States federal income tax applicable to the taxable income of corporations, without regard to any increase in tax designed to normalize the rate for all income at the highest marginal tax rate, which rate on the date hereof is 35%. Accrued interest hereon shall be paid monthly in arrears on the day of each month, beginning August ___, 2003. Beginning August __, 2003, and continuing on the day of each month thereafter, the Issuer will pay solely from the sources hereinafter provided the principal of and interest on this Bond in [120] equal monthly installments, provided that all remaining principal, together with all accrued and unpaid interest thereon, shall be unconditionally due and payable on August J 2018 (the "Maturity Date"). In the event that the Interest Rate on the Bond is adjusted as hereinafter described, the amount of the monthly installments due hereon shall be adjusted so that the principal of and interest on this Bond will be amortized in equal monthly installments as aforesaid at the new Interest Rate on the Bond. The principal of and interest on this Bond is payable in any coin or currency of the United States of America which at the time of such payment is legal tender for public and private debts, at such place as the registered owner hereof may designate to the Issuer and the Borrower (hereinafter defined) in writing. All payments by the Issuer pursuant to this Bond shall apply first to accrued interest, then to other charges due the Lender, and the balance thereof shall apply to the principal sum due. Upon the occurrence of a Determination of Taxability (hereinafter defined), the Interest Rate on the Bond shall be adjusted to a rate per annum equal to 154% of the interest rate otherwise borne hereby, as adjusted from time to time (the "Adjusted Interest Rate") calculated on the basis of a 360 -day year and the actual number of days elapsed, as of and from the date such determination would be applicable with respect to this Bond (the "Accrual Date") and (i) the Issuct shall, from the sources hereinafter provided and not otherwise, immediately pay to the registered owner hereof, or any former registered owner hereof, as may be appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the Issuer on this Bond from the Accrual Date to the date of Determination of Taxability, but then only to the extent such owner or owners include (through amended tax return, agreement with the Internal Revenue Service or otherwise) such actual interest in such owner's or owners' gross income for federal income tax purposes, and (2) any loss, cost, charge or expense suffered by such owner and/or former owner arising out of the Determination of Taxability, including without limitation amounts of interest and penalties required to be paid as a result of any additional state and federal income taxes by such owner and former owner arising as a result of such Determination of Taxability; and (ii) from and after the Determination of Taxability, this Bond shall continue to C-2 03- 858 bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Bond. The adjustment provided for in this paragraph shall survive the payment of this Bond until the expiration of the statute of limitations under which the interest on this Bond could be required to be included in the gross income of the registered owner thereof for federal income taxes purposes. If the Maximum Corporate Tax Rate decreases from thirty-five percent (35%), the interest rate otherwise borne by this Bond shall be increased to the product obtained by multiplying the interest rate otherwise borne by this Bond by a fraction, (i) the numerator of which is equal to one (1) minus the Maximum Corporate Tax Rate in effect as of the date of adjustment, and the denominator of which is .65. The interest rate otherwise borne by this Bond shall be adjusted automatically as of the effective date of each change in the Maximum Corporate Tax Rate based upon the foregoing calculations. The principal of and interest on this Bond may be prepaid at the option of The Miami Children's Museum, Inc. (the "Borrower") exercised on behalf of the Issuer at any time in whole as follows: Borrower may prepay the principal balance of this Note, in full, but not in part, at any time, upon the payment of a prepay:7jlent penalty ("Prepayment Penalty"), provided that: (a) Lender shall have actually received from Borrower, at least thirty (30) days prior to the date of prepayments written notice of (i) Borrower's intent to prepay, and (ii) the date on which the prepayment will be made; (b) the prepayment retires the outstanding balance of this Note in full; and (c) the prepayment shall be in the amount of 100% of the outstanding principal balance on the date of prepayment, plus accrued unpaid interest thereon to the date of prepayment, plus any other sums which have become due to Lender under the Loan Documents on or before the date of prepayment but have not been paid. If this Note is prepaid in full, any commitment of Lender for further advances shall automatically terminate. The Prepayment Penalty shall be calculated as follows: (a Commencing on the dee hereof, up to and includirg _ 2010, a penalty equal to three percent (3%) of the outstanding principal balance, which is prepaid, shall be due and payable. (b) Commencing 1, 2010, up to and including , 2013, a penalty equal to two percent (2%) of the outstanding principal balance, which is prepaid, shall be due and payable. (c) Commencing 1, 2013, up to and including '2018, a penalty equal to One Percent (1%) of the outstanding principal balance, which is prepaid, shall be due and payable. C-3 03- 858 Notwithstanding the above Prepayment Penalty schedule, in the event that the Loan is refinanced by the Borrower with the Lender or its affiliates, no Prepayment Penalty of any type shall be due to the Lender. For the purpose of this prepayment section, the term refinance shall include both conventional lending and tax-exempt bond issues. This Bond shall never constitute an indebtedness of the Issuer within the meaning of any State constitutional provision or statutory limitation and shall never constitute nor give rise to a pecuniary liability of the Issuer or a charge against its general credit. Neither the full faith and credit nor taxing power of The City of Miami, Florida or the State of Florida is pledged to the payment of the principal of or interest on this Bond. The owner of this Bond shall not have the right to compel any exercise of the ad valorem taxing power of The City of Miami, Florida or the State of Florida or of any political subdivision of said State to pay this Bond or the interest thereon. This Bond is not a debt of the State of Florida or of any political subdivision of such State other than the Issuer, limited as aforesaid, and neither said State nor any such political subdivision thereof other than the Issuer, limited as aforesaid, shall be liable hereon. This Bond is issued pursuant to and in full compliance with Parts II and III of Chapter 159, Florida Statutes, and other applicable provisions of law (the "Act") and a Resolution ("Resolution") adopted by the Issuer on July 24, 2003. Pursuant to law and the proceedings under which this Bond is issued, this Bond is payable solely out of revenues and receipts derived from the Note (hereinafter defined) and a Loan Agreement, dated May 1, 2001 (the "Loan Agreement"), between the Issuer and the Borrower, pursuant to which the Issuer has loaned money to the Borrower to refinance certain debt and to finance the cost of construction and equipping of an addition to a museum /tourism facility to be operated by the Borrower and to pay a portion of the expenses incurred in connection with the issuance of the Bond. Pursuant to the Loan Agreement, the Borrower has agreed to make payments directly to the Lender in such amounts and at such times as are required to provide for timely payment of the principal of and interest on this Bond. As evidence of its indebtedness under the Loan Agreement, the Borrower has executed and delivered to the Issuer its Promissory Note ("Note"), dated July 2003 and its Leasehold Mortgage, Assignment of Rents and Security Agreement dated April 30, 2CK-3 (the "Mortgage," and together .with the Loan Agreement and the Note, the "Assigned Documents")., Pursuant to a Bond Purchase and Construction Financing Agreement (the "Bond Purchase Agreement") dated as of July 1, 2003, among the Issuer, the Borrower and the Lender, this Bond shall be purchased by the Lender. Pursuant to an Assignment of Loan Agreement, Mortgage, Promissory Note and Other Collateral, the Issuer has assigned the Issuer's rights under the Assigned Documents, including all its rights, title and interest to receive the Note and the repayments on the Loan (subject to the reservation of certain rights of the Issuer, including all its rights to notices, consent rights, payment of certain expenses and indemnity), to the Lender. C-4 03- 858 Reference is made to the Loan Agreement, the Bond Purchase Agreement and the Resolution for a more complete statement of the provisions thereof and of the rights of the Issuer and the Lender. Terms used herein in capitalized form and not otherwise defined herein have the meanings ascribed thereto in the aforementioned documents. This Bond is subject to all terms and conditions of the Loan. Agreement, the Bond Purchase Agreement and the Resolution, and by the purchase and acceptance of this Bond, the registered owner hereof signifies assent to all of the provisions of the aforementioned documents. This Bond shall bear interest on any overdue installment of principal and (to the extent permitted by law) interest at the Default Rate (as defined in the Loan Agreement). As further described in the Resolution and the Loan Agreement, upon the occurrence of an Event of Default, the Lender may declare all unpaid principal hereof immediately due and payable, and upon such declaration of acceleration, the principal amount hereof, together with interest to the date of payment, shall be and become immediately due and payable. Should the Issuer fail to pay, from the Borrower's sources provided herein, the installments of interest or principal (if applicable) within seven (7) days after the due date provided herein (after the expiration of any applicable grace period), the Issuer further promises to pay, solely from the sources provided herein, a late payment charge equal to four percent (4%) of the amount of the unpaid installment as liquidated compensation to the Lender for the extra expense to the Lender to process and administer the late payment. This provision for late charges shall not be deemed to extend the time for payment or be a "grace period" or "cure period" that gives the Borrower a right to cure a Default. Imposition of late charges is not contingent upon the giving of any notice or lapse of any cure period provided for in the Bond Documents and shall not be deemed a waiver of any right or remedy of the Lender including without limitation, acceleration of this Bond. This Bond is transferable by the registered owner, but only in the manner, subject to the limitations and upon payment of the charges provided in the Resolution, and upon surrender and cancellation of this Bond. Upon such transfer a new fully registered Bond will be issued to the transferee in exchange therefor. The Issuer ma Y -deem and ; rr at the registered owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal and interest due hereon and for all other purposes, and the Issuer shall not be affected by any notice to the contrary. No recourse under or upon any obligation, covenant or agreement contained in the Resolution or in this Bond, or under any judgment obtained against the Issuer or by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any constitution or statute or otherwise or under any circumstances, under or independent of the Resolution, shall be had against any officer or member, as such, past, present or future, of the Issuer, either directly or through the Issuer or otherwise, for the payment for or to the Issuer or any receiver thereof or for or to the owner of this Bond or otherwise, of any sum that may be due and unpaid by the Issuer upon this Bond. Any and all personal liability of every nature, C-5 03- 858 whether at common law or in equity, or by statute or by constitution or otherwise, of any such officer or member, as such, to respond by reason of any act or omission on his part or otherwise for the payment for or to the Issuer or for or to the owner of this Bond or otherwise, of any sum that may remain due and unpaid upon this Bond, is hereby expressly waived and released as a condition of and consideration for the execution and the issuance of this Bond. All of the rights, remedies, powers and privileges (together, "Rights") of the Lender provided for in this Bond and in any other Bond Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by. the Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of the Right. Without limiting the generality of the foregoing provisions, the acceptance by the Lender from time to time of any payment under this Bond which is past due or which is less than the payment in full of all amounts due and payable at the time of such payment shall not (i) constitute a waiver of or impair or extinguish the right of the holder hereof to accelerate the maturity of this Bond or to exercise any other Right at the time or at any subsequent time, or nullify any prior exercise of any such Right, or (ii) constitute a waiver of the requirement of punctual payment and performance or a novation in any respect. If the Lender retains an attorney in connection with any Default to collect, enforce or defend this Bond or any other Bond Document in any lawsuit, at trial, or in any appellate, probate, reorganization, bankruptcy or other proceeding, or if the Issuer sues the Lender in connection with this Bond or any other Bond Document and does not prevail, then the Issuer agrees to pay to the Lender, solely from the sources provided herein, in addition to principal, interest and any other sums owing to the Lender under the Bond Documents, all reasonable costs and expenses incurred by the Lender in trying to collect this Bond or in any such suit or proceeding, including without limitation reasonable attorneys' fees, paralegals' fees and costs. In• no event (including but not limited to prepayment, default, demand for payment, or acceleration of maturity) shall the interest taken, reserved, contracted for, charged or received under this Bond or under any of the other Bond Documents or otherwise, exceed the maximum nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from any possible construction of any document, interest would otherwise be payable in excess of the Maximum Amount, then ipso facto, such document shall be reformed and the interest payable reduced to the Maximum Amount, without necessity of execution of any amendment or new document. If the holder hereof ever receives interest in an amount which apart from this provision would exceed the Maximum Amount, the excess shall, without penalty, be refunded to the Issuer, or at the option of the Issuer, be applied to the unpaid principal of this Bond in order of maturity of installments and not to the payment of interest. The Lender does not intend to charge or receive unearned interest on acceleration. All interest paid or agreed to be C-6 ©3- 858 paid to the holder hereof shall be spread throughout the full term (including any renewal or extension) of the debt so that the amount of interest does not exceed the Maximum Amount. THIS BOND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION AND SHALL NEVER CONST`IT'UTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL CREDIT. THE FULL FAITH AND CREDIT OF THE ISSUER ARE NOT PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS BOND. THE OWNER OF THIS BOND SHALL NOT HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE AD VALOREM TAXING POWER OF THE STATE OF FLORIDA OR OF ANY POLITICAL SUBDIVISION OF SAID STATE TO PAY THIS BOND OR THE INTEREST THEREON. THIS BOND IS NOT A DEBT OF THE STATE OF FLORIDA OR OF ANY POLITICAL SUBDIVISION OF SUCH STATE OTHER THAN THE ISSUER, LIMITED AS AFORESAID, AND NEITHER SAID STATE NOR ANY SUCH POLITICAL SUBDIVISION THEREOF OTHER THAN THE ISSUER, LIMITED AS AFORESAID, SHALL BE LIABLE HEREON. THIS BOND AND ALL PAYMENTS TO BE MADE BY THE ISSUER HEREUNDER OF ANY NATURE WHATSOEVER ARE PAYABLE SOLELY FROM THE SOURCES PROVIDED THEREFOR IN THE HEREINAFTER DESCRIBED RESOLUTION (I.E., PAYMENTS MADE BY THE BORROWER OR DERIVED FROM THE EXERCISE OF REMEDIAL RIGHTS AGAINST THE BORROWER AND THE SECURITY PROVIDED FOR THIS BOND AND NOT ANY OTHER FUNDS OF THE ISSUER). IT IS HEREBY CERTIFIED, RECITED AND DECLARED by the Issuer that all acts, conditions and things required to exist, to happen and to be performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in due time, form and manner and by the appropriate parties as required by law. IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed in its name and on its behalf by its City Manager and its Clerk as of July ___, 2003. (SEAL) ATTEST: By: Name: Priscilla A. Thompson Title: City Clerk THE CITY OF MIAMI, FLORIDA By: Name Title: Joe Arriola City Manager C-7 03- 858 EXHIBIT D FORM OF BOND PURCHASE AGREEMENT BOND PURCHASE AND CONSTRUCTION FINANCING AGREEMENT $5,000,000 The City of Miami, Florida Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project) July ___, 2003 The undersigned, Orix Public Finance, LLC (together with its successors and assigns as holder of the hereinafter described Bond, the "Lender"), The City of Miami, Florida (the "Issuer") and The Miami Children's Museum, Inc. (the "Borrower") hereby enter into this Bond Purchase and Construction Financing Agreement (this "Bond Purchase Agreement"). ARTICLE 1 - INTRODUCTORY STATEMENT Pursuant to a Resolution adopted by the Issuer on July 24, 2003 (the "Resolution"), the Issuer has authorized the execution and delivery of its Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project) in the principal amount of up to $5,000,000 (the "Bond"). The Bond will be issued pursuant to the Resolution and will be sold to the Lender. The proceeds of the Bond will be used by the ussuer to make a loan (the "Loan") to the Borrower to enable the Borrower - to finance and refinance a portion of the costs of the improving and equipping of a museum and educational facility constituting a "tourism facility" within the meaning of Section 159.27, Florida Statutes, and located in the City of Miami, Florida, and which is to be owned and operated by the Borrower, and to pay costs of issuing the Bond. The Loan will be made pursuant to a Loan Agreement between the Issuer and the Borrower (the "Agreement"). The Borrower's obligation to repay the Loan will be evidenced by the Borrower's Promissory Note (the "Note"), and will be secured pursuant to a Leasehold Mortgage, Assignment of Rents and Security Agreement from the Borrower (the "Mortgage") and by certain other collateral instruments. D-1 03- 858 The Issuer will assign certain of its rights, including its right to Loan Repayments, but excluding the Unassigned Issuer's Rights (as defined in the Agreement), under the Agreement, the Note, the Mortgage and other security documents to the Lender, and the Bond will be payable solely from payments made by the Borrower pursuant to the Agreement and the Note, and will be secured by, among other things, an Assignment of Loan Agreement, Mortgage, Promissory Note and Other Collateral to be dated of even date herewith (the "Assignment"), from the Issuer to the Lender. Upon the satisfaction of the terms and conditions set forth in this Bond Purchase Agreement, the Lender shall be obligated to make up to $5,000,000 of Advances to the Issuer, which Advances shall be loaned by the Issuer to the Borrower pursuant to the Agreement, and shall be deposited directly with the Borrower by the Lender (subject to the terms hereof). Upon each such .Advance, the principal amount of the Bond and the Note shall be deemed increased by the amount of such Advance. Pursuant to the Resolution, the Bond and the Note, the principal amount of the Bond and the Note will be $5,000,000 or such lesser amount as may be Advanced by the Lender to the Issuer pursuant to this Bond Purchase Agreement. The Bond is a limited obligation of the Issuer payable solely from the Loan Repayments derived from this Agreement, including payments received hereunder, which Loan Payments have been pledged and assigned to the Lender to secure payment of the Bond and the Bond, the premium, if any, and the interest thereon shall not be deemed to constitute a debt or a pledge of the faith and credit of The City of Miami, the State of Florida, or any political subdivision or agency thereof, including the Issuer, shall be obligated to pay the principal of, premium, if any, or interest on the Bond or other costs incident thereto except from the revenues and receipts pledged therefor. ARTICLE 2 - DEFINITIONS Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Agreement and/or the Mortgage. In addition to the words and phrases defined, elsewhere hereir, the following words and phrases shall have the following meanings herein: (a) Advance: A payment by the Lender to the Borrower on behalf of the Issuer which is loaned by the Issuer to the Borrower pursuant to the Agreement. Such payment represents the purchase price of an increment of the principal amount of the Bond being issued by the Issuer and purchased by the Lender, the proceeds of which are being loaned by the Issuer to the Borrower. The initial Advance is to refinance the Refinanced Debt. (b) Bond: The Issuer's Revenue Bond, Series 2003 (Miami Children's Museum, Inc. Project). D-2 03- 858 (c) Charter School: The Miami Children's Museum Charter School, a non-profit organization. (d) Closing Date: July--, 2003. (e) Commitment Letter: The commitment letter between the Lender and the Borrower signed on behalf of the Borrower on 2003. (f) Draw Request: A properly completed and executed written application by the Borrower to the Lender in the form of Exhibit B or such other form as is acceptable to the Lender setting forth the amount of the Advance requested, together with such schedules, affidavits, releases, waivers, statements, invoices, bills and other documents, certificates and information required by the Lender. (g) Final Advance Date: December 31, 2003. (h) Loan: The Loan by the Issuer to the Borrower, in the maximum amount of up to $5,000,000.00. (i) City Manager: The City Manager of the Issuer. ARTICLE 3 - PURCHASE, SALE AND DELIVERY OF BOND; ADVANCES Section 3.1 On the basis of the representations and agreements contained herein, but subject to the terms and conditions herein set forth, the Lender hereby agrees to purchase from the Issuer and the Issuer hereby agrees to sell to the Lender the Bond, dated the date hereof, maturing on the date, bearing interest at the rate, and having such other details as set forth in the Bond, for a purchase price equal to the amount of all Advances hereunder. The Lender's commitment to fund Advances under this Bond Purchase Agreement shall expire and terminate (a) automatically on the Final Advance Date; (b) automatically if the Bond is prepaid in full; and (c) at the Lender's. or iior., in the event of a Default, This Bond Purchase Agreement imposes :continuing duties upon, and grants continuing rights to, the parties which shall survive the initial delivery of the Bond, and which shall continue to and including the date the Bond is paid in full. The Lender further acknowledges on behalf of the Issuer that the Lender is aware: (i) that investment in the Bond involves various risks; (ii) that the Bond is not a general obligation of the Issuer and is not backed by any Issuer revenues; W 03- 858 (iii) that the principal of, premium, if any, and interest on the Bond are payable solely from the sources specified in the Bond and in the Agreement from funds supplied by the Borrower. The Lender has made such independent investigation of the seci..rity for the Bond and property comprising the Project (as such term is defined in the Agreement) as in the exercise of sound business judgment are considered to be appropriate under the circumstances. ARTICLE 4 - ADVANCES Section 4.1. Advances in General. The Borrower shall disburse the proceeds of all Advances made to the Borrower, for payment of the costs and expenses specified in the Draw Request and for no other purpose for the Project Amount as defined in the Agreement. Following receipt and approval of a Draw Request and all supporting documentation and information, the Lender will determine the amount of the Advance it will make in accordance with this Bond Purchase Agreement, the Bond Documents and the following standards: (a) At least five (5) Business Days before the requested date of the Advance, the Borrower shall deliver a Draw Request to the Lender. The Lender shall be obligated to make an Advance only in an amount approved by the Lender in accordance with the terms of this Bond Purchase Agreement and the Bond Documents. The Lender shall not be required to make the Advance in excess of the Project Amount. The Lender shall, only upon the satisfaction of all applicable conditions of this Bond Purchase Agreement and the Bond Documents, make the requested Advance to the Borrower on behalf of the Issuer on a Business Day within five (5) Business Days after such satisfaction. The Draw Request, and the Borrower's acceptance of any Advance, shall be deemed to ratify and confirm that all representations and warranties of the Borrower in the Bond Documents remain true and correct as of the date of the Draw Request and the Advance, respectively. The Borrower hereby designates the President and any Vice President, jointly and severally, as having authority to sign all Draw Requests on the Borrower's behalf. Section 4.2. Conditions to First Advance. The following are conditions precedent to the Lender's obligation to make the first Advance hereunder: (a) General: (i) there shall then exist no material Default or any event which, with the giving of notice or the lapse of time, or both, could become a material Default; (ii) the representations and warranties of the Issuer and the Borrower made in the Bond Documents shall be true and correct; (iii) the Borrower must have satisfied the conditions required under the Bond Documents; and (iv) the Borrower must have delivered to the Lender a Draw Request. (b) Fees and Expenses. The Lender shall have received any required commitment fee and the Borrower shall have paid all other fees, costs and expenses then required to be paid pursuant to this Bond Purchase Agreement and any other Bond Documents. D-4 03- 858 (c) Financial Statements. The Lender shall have received and approved the financial statements of the Borrower. (d) Authorization. The Lender shall have received and approved evidence the Lender requires of the existence, good standing, authority and capbcity of the Issuer and the Borrower to execute, deliver, and perform the applicable Bond Documents, including but not limited to: (1) For the Issuer: a copy of the Resolution, certified by the Issuer as having been adopted and as being in full force and effect; (2) For the Borrower: (i) a copy of its articles of incorporation and by-laws, and all amendments thereto, a certificate of incumbency of all of its officers who will be authorized to execute or attest any of the Bond Documents, and a copy of resolutions approving the Bond Documents and authorizing the transactions contemplated in this Bond Purchase Agreement; (ii) certificates of existence, good standing and qualification to do business in the State, issued by the appropriate governmental officials; (iii) a determination letter from the United States Internal Revenue Service recognizing that the Borrower is an organization described in Section 501(c)(3) of the Code; and (iv) evidence that the Borrower has all licenses and other governmental approvals required to conduct its business; and (3) All certificates, resolutions, and consents reasonably required by the Lender applicable to the foregoing. (e) Bond Documents. The Borrower, the Issuer and each other person or entity required by the Lender shall have duly executed, acknowledged and/or sworn to as required, recorded or filed, and delivered to the Lender all Bond Documents then required by the Lender, dated the date of this Bond Purchase Agreement, all in form and content satisfactory to the Lender. (f) Opinions of Borrower's Counsel. The Lender shall have received, including, but - not limited to, a written opinion, addressed to Lender and the Issuer, from the Borrower's attorney, dated the date of this Bond Purchase Agreement, in substantially the form attached hereto as Exhibit A. (g) Title Report. The Lender shall have received and approved one or more title reports with respect to the Land, in form and substance satisfactory to the Lender. (h) Insurance Policies. The Lender shall have received and approved the insurance policies initially required by the Lender, pursuant to the Bond Documents, together with evidence satisfactory to the Lender that all premiums therefor have been paid and that the policies are in full force and effect. D-5 ©3- 858 (i) Priority. The Lender shall have received and approved (a) evidence satisfactory to the Lender that prior to and as of the time the Mortgage was filed for record (i) no activity or circumstance was visible on or near the Land which would constitute inception of a mechanic's or materialman's lien against the Property, (ii) no contract, or memorandum thereof, for construction, design, surveying, or any other service relating to the Project has been filed for record in the county where the Mortgaged Property is located; (iii) no mechanic's or materialman's lien claim or notice, lis pendens, judgment, or other claim or encumbrance against the Property has been filed for record in the county where the Mortgaged Property is located or in any other public record which by law provides notice of claims or encumbrances regarding the Mortgaged Property; (b) a certificate or certificates of a reporting service acceptable to the Lender, reflecting the results of searches made not earlier than ten (10) days prior to the date. of this Bond Purchase Agreement, (i) of the central and local Uniform Commercial Code records, showing no filings against any of the collateral for the Loan or against the Borrower otherwise except as consented to by the Lender; and (ii) if required by the Lender, of the appropriate judgment and tax lien records, showing no outstanding judgment or tax lien against the Borrower. (j) Paid Tax Receipts. The Lender shall have received and approved satisfactory evidence (a) that all taxes, standby fees and any other similar charges have been paid, including copies of receipts or statements marked "paid" by the appropriate authority; and (c) that the Land is comprised of complete separate tax lot or lots with separate assessments, independent of any other land or improvements. (k) Bond Counsel Opinion. The Lender shall have received the approving opinion of Bryant Miller & Olive P.A., bond counsel, in form and substance acceptable to the Lender, and addressing such matters as are required by the Lender, including the following: (1) The Bond has been duly authorized, executed and delivered by the Issuer, and constitutes a valid and binding obligation of the Issuer enforceable in accordance with its terms; (2) The interest on the Bond is excluded from the gross income of the Lender for federal income tax purposes and is not an item of tax preference for purposes of the alternative minimum tax; and (3) The Bond is exempt from the excise tax on documents and intangible personal property tax under the laws of the State. (1) Commitment Letter. The Lender shall receive all documents and certificates required to be delivered to the Lender by the Commitment Letter. M 03- 858 (m) Closing Fee. On the Closing Date the Borrower shall pay to the Lender, in addition to all other fees provided for hereunder, a $ closing fee. (n) Site Lease. The Site Lease shall have been executed by all parties thereto and shall have been recorded in the Public Records of Miami -Dade County, Florida. 4.3. Conditions to Subsequent Advances. As conditions precedent to the final Advance for the Project Amount and in addition to all other requirements contained in the other Bond Documents, the Borrower must satisfy the following conditions, and deliver to the Lender evidence of such satisfaction: (a) All conditions precedent to the first Advance have been and continue to be satisfied. (b) No mechanics or materialmen's lien or other encumbrance shall have been filed and remain in effect against the Mortgaged Property, and releases or waivers of mechanics' liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the Mortgaged Property shall have been obtained. (c) As of the date of making such Advance, no event shall have occurred, nor shall any condition exist, that could have a material adverse effect on the enforceability of the Bond Documents, be materially adverse to the financial condition of the Borrower, impair the ability of the Borrower to fulfill its material obligations under the Bond Documents, or otherwise have any material adverse effect whatsoever on the Property. (d) The Improvements shall not have been materially damaged and not repaired. (e) The Borrower shall have delivered to the Lender such other information, documents and supplemental legal opinions as may be reasonably required by the Lender. (f) The License Agreement between the Museum and the Charter School. (g) The approvals, if any, required by The City of Miami and The Miami Sports and Exhibition Authority with respect to the License Agreement. (h) A pledge and security agreement by the Charter School with respect to the pledge of the Charter School's gross revenues to the Lender. (i) An enforceability opinion issued by Borrower's counsel and addressed to the Lender with respect to the License Agreement and the pledge and security agreement of the Charter School. D-7 03- 858 (j) The Charter School Management Agreement between the Charter School and Academica Corporation. Section 4.4. Conditions and Waivers. All conditions precedent to the obligation of the Lender to make any Advance are imposed hereby solely for the benefit of the Lender, and no other party may require satisfaction of any such condition precedent or be entitled to assume that the Lender will refuse to make any Advance in the absence of strict compliance with such conditions precedent. Any condition precedent to the Lender's obligation to make and Advance contained in this Bond Purchase Agreement may be waived, in whole or in part, in a specific written waiver intended for that purpose and signed by the Lender. No Advance shall constitute a waiver of any condition precedent to any further Advance or preclude the Lender from thereafter declaring the failure of the Borrower to satisfy such condition precedent to be a Default. No waiver by the Lender of any condition precedent or obligation shall preclude the Lender from requiring such condition or obligation to be met prior to making any other Advance or from thereafter declaring the failure to satisfy such condition or obligation to be a Default. ARTICLE 5 - REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ISSUER Section 5.1 The Issuer hereby represents, warrants and agrees as follows: (a) The Issuer is duly organized and validly existing as a municipality of the State of Florida; (b) The Issuer has full legal right, power and authority to: (i) enter into this Bond Purchase Agreement and the other Bond Documents to which it is a party, (ii) adopt the Resolution, (iii) sell, issue and deliver the Bond to the Lender as provided herein, and (iv) carry out and consummate the transactions contemplated by this Bond Purchase Agreement, the Resolution and the other Bond Documents, and the Issuer has complied in all respects with the terms of the Act and with the obligations on its part in connection with the issuance of the Bond contained in the Resolution, the Bond and the Bond Documents; (c) The execution and delivery of the Bond and the other Bond Documents to which the Issuer is a party and the adoption of the Resolution, and compliance with the provisions on the Issuer's part contained therein, will not conflict with or constitute a breach of or default under any constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement, or other instrument to which the Issuer is a party or to which the Issuer or any of its property or assets is otherwise subject, nor will any such execution, delivery, enactment, or compliance result in the creation or imposition of any lien, charge, or other security interest or encumbrance of any nature whatsoever upon any of the property or assets or under the terms of any such law, regulation or instrument; and M: 03- 858 (d) As of the date hereof, there is no action, suit, proceeding, inquiry or formal investigation, at law or in equity, before or by any court, government agency, public board or body, pending or, to the best knowledge of the officials of the Issuer executing this Bond Purchase Agreement, threatened against the Issuer, affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Bond, or contesting or affecting as to the Issuer the validity or enforceability of the Act in any respect relating to authorization for the issuance of the Bond, or contesting the tax-exempt status of interest on the Bond, or contesting the powers of the Issuer or any authority for the issuance of the Bond, the adoption of the Resolution, or the execution and delivery by the Issuer of the other Bond Documents to which the Issuer is a party. ARTICLE 6 - REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER Section 6.1 By its acceptance hereof, the Borrower hereby represents and warrants to the Lender and the Issuer that as of the date hereof, and by requesting an additional Advance, the Borrower shall be representing to the Lender and the Issuer that as of the date of such Advance: (a) The Borrower is a Florida corporation not for profit with full power and authority to construct, develop, own and operate the Project and the Borrower is an organization described in Section 501(c)(3) of the Code. (b) The Borrower has full power and authority to execute and deliver the Bond Documents to which the Borrower is a party. (c) The execution, delivery and performance by the Borrower of the Bond Documents to which the Borrower is a party have each been authorized by all necessary action on the part of the Borrower and when executed and delivered by the Borrower and the other parties thereto the Bond Documents to which the Borrower is a party will be in full force and effect and will constitute legal, valid, binding and enforceable obligations of the Borrower, except that the enforceability of such Bond Documents is subject to applicable bankruptcy, reorganization, insolvency and other similar laws affecting creditors' rights and to general principles of equity. (d) To the best of Borrower's knowledge, the consummation of the transactions contemplated by the Bond Documents to which the Borrower is a party will not result in the breach of the provisions of the articles of incorporation of the Borrower, as amended, or any indenture, mortgage, deed of trust, lease, indebtedness, agreement, instrument, judgment, or any lien, decree, order, statute, resolution, rule, regulation, plan or other restriction to which the Borrower is a party or by which it or its property is subject or bound. (e) To the best of Borrower's knowledge, the Borrower is not in material violation of its articles of incorporation or by-laws, and the Borrower is not in violation of any material M 03- 858 provision of any indenture, mortgage, deed of trust, lease, indebtedness, agreement, instrument, or any lien, judgment, decree, order, statute, resolution, rule, regulation, plan or other restriction to which it is a party or by which it or its property is subject or bound, which violation will have any material adverse effect on the financing contemplated hereby, nor will any such -violation result in anv material adverse change in the operations, properties, assets, liabilities or condition (financial or otherwise) of the Borrower. (f) There is no pending, or to the best of the Borrower's knowledge threatened, action, suit, proceeding, inquiry or investigation before or by any court, public board or body against the Borrower, nor, to the best knowledge of the Borrower, is there any basis therefor, which would materially adversely affect the transactions contemplated by the Bond Documents or which would materially adversely affect the Bond or the development, operation or . constniction of the Project or which might result in any material ;,�.dverse change in the operations, properties, assets, liabilities or condition (financial or other) of the Borrower. For purposes of this paragraph, any litigation or other proceeding is considered to be "pending" only if the Borrower has received service of process valid under Florida law with respect thereto. (g) To the Borrower's knowledge, no legislation, ordinance, rule or regulation has been enacted by any governmental body, department or agency of the State nor has any decision been rendered by any court of competent jurisdiction in the State which would materially adversely affect the transactions contemplated by the Bond Documents. (h) To the Borrower's knowledge, all approvals, consents or orders (other than the Resolution) of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the performance by the Borrower of its duties and obligations (other than the construction of the Project) under the Bond Documents to which the Borrower is a party have been obtained and are in full force and effect. (i) Any certificate signed after the date hereof by any authorized officer or officers of the Borrower, and delivered to the Lender si►ail be deemed a representation and warranty by the Borrower to the Lender and the Issuer as to the truth in all material respects of the statements contained in the certificate. (j) There is no default on the part of the Borrower pursuant to the Commitment Letter and all obligations of the Borrower required thereby to have been satisfied as of the date hereof have been satisfied or waived by the Lender. (k) All material representations and material warranties of the Borrower in the Bond Documents are true and correct. D-10 03- 858 ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF THE LENDER Section 7.1 The Lender represents that it is duly authorized to execute and deliver this Bond Purchase Agreement, and that upon execution and delivery of this Bond Purchase Agreement by -the other parties hereto, this Bond Purchase Agreement shall constitute a legal, valid and binding agreement of'the Lender enforceable in accordance with its terms. ARTICLE 8 - GENERAL TERMS Section 8.1 The following shall be applicable throughout the period of this Bond Purchase Agreement or thereafter as provided herein: (a) Borrower and Issuer...not Lender's Agent. Nothing in this Bond Purchase Agreement or any other of the Bond Documents shall be construed to make the Borrower or the Issuer the Lender's agent for any purpose whatsoever, or the Borrower or the Issuer and the Lender partners, or joint or co -venturers. (b) Inspections. All inspections rendered by or on behalf of the Lender shall be rendered solely for the protection and benefit of the Lender. Neither the Borrower nor the Issuer nor other third persons shall be entitled to rely upon such inspections for any purpose. (c) Lender Not Obligated to Insure Proper Disbursement of Funds to Third Parties. Nothing contained in this Bond Purchase Agreement or any of the Bond Documents shall impose upon the Lender any obligation to oversee the proper use or application of any Advances of funds made pursuant to this Agreement. (d) Indemnification from Third Party Claims. The Borrower shall indemnify the Issuer and the Lender from any liability, claims or losses resulting from the transaction contemplated hereby, or from the condition of the Project, whether related to the quality of construction or otherwise, and whether arising during or after the term of this Bond Purchase Agreement, provided the foregoing do not arise out of the gross negligence or malfeasance of the Issuer. This provision shall survive the payment of the Bond and shall continue in full force and effect so long as the possibility of such liability, claims or losses exists. (e) Rights of Subcontractors, Laborers and Materialmen. In no event shall this Agreement be construed to make the Lender, the Issuer or any agent, officer or employee thereof liable to any contractor, subcontractors, labormen, materialmen, craftsmen, or others for labor, materials, or services delivered to the Land or goods fabricated or delivered for incorporation therein, or for debts or claims accruing or arising to such persons or parties against the Borrower. It is distinctly understood and agreed that there is no relation of any type whatsoever, contractual or otherwise, either express or implied, between the Issuer, the Lender, or any of their agents, officers or employees and any contractor, any materialman, subcontractor, craftsman, laborer or any other person or entity supplying any labor, materials or D-11 03- 858 services to the Project or fabricating or delivering goods to be incorporated therein. No such persons or entities are intended to be third party beneficiaries of this Bond Purchase Agreement or any document or instrument related to the Bond. (f) Evidence of Satisfaction of Conditions. The Lender shall, at all times, be free independently to establish to its good faith and satisfaction, and in its absolute discretion, the existence or nonexistence of a fact or facts which are disclosed in documents or other evidence required by the terms of this Bond Purchase Agreement. (g) Headings. The headings of the articles, sections, paragraphs and subdivisions of this Bond Purchase Agreement are for the convenience of reference only, and shall not limit or otherwise affect any of the terms hereof. (h) Invalid Provisions to Affect No Others. If performance of any provision hereof or any transaction related hereto is limited by law, then the obligation to be performed shall be reduced accordingly; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Bond Purchase Agreement in part, then the invalid part of said clause or provision only shall be held for naught, as though not contained herein, and the remainder of this Bond Purchase Agreement shall remain operative and in full force and effect. (i) Governing Law. The laws of the State of Florida shall govern the interpretation and enforcement of this Bond Purchase Agreement. (j) Number and Gender. Whenever the singular or plural number, masculine or feminine or neuter gender is used herein, it shall equally include the others and shall apply jointly and severally. (k) Prior Agreement. To the extent necessary, this Bond Purchase Agreement shall be deemed to be an amendment to the Commitment Letter and in the event of conflict between the terms of this.Bonr_i Purchase Agreement and of the Commitment_ Letter of any such prior agreement, the terms of this Bond Purchase Agreement shall govern. (1) Waiver. If Lender shall waive any provisions hereof, or shall fail to enforce any of the conditions or provisions of this Bond Purchase Agreement, such waiver shall not be deemed to be a continuing waiver and shall never be construed as such; and the Lender shall thereafter have the right to insist upon the enforcement of such conditions or provisions. Furthermore, no provision of this Bond Purchase Agreement shall be amended, waived, modified, discharged or terminated, except by instrument in writing signed by the parties hereto. (m) Fees and Expenses. The Borrower agrees to pay all reasonable costs incurred in connection with the issuance of the Bond, including but not limited to expenses and fees of the D-12 03- 858 Issuer and its counsel, expenses and costs to effect the authorization, preparation, issuance, delivery and sale of the Bond, the fees and disbursements of Lender Counsel, the fees and disbursements of the Lender and its counsel, the expenses and costs for photocopying and delivering the Bond Documents and all other agreements and documents contemplated hereby, the Title Insurer's fees and premiums, charges for examination of title to the Land, survey costs, Florida Documentary Stamp Taxes, Intangible Taxes, if any, and recording expenses. (n) Counterparts. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. (o) Attorney's Fees. In the event of any proceeding brought pursuant to any Bond Document by the Issuer, the Lender or the Borrower, against any of the foregoing, the prevailing party shall be entitled to recover its attorneys' fees and costs, including in connection with any appeal. (p) Arbitration and Waiver of Jury Trial. This Section 8.1(p) concerns the resolution of any controversies or claims between the Borrower, the Issuer and the Lender, or any of them whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this Bond Purchase Agreement (including any renewals, extensions or modifications); or (ii) any document related to this Bond Purchase Agreement; (collectively a "Claim"). At the request of the Borrower, the Issuer or the Lender, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the Arbitration "Act"). The Act will apply even though this Bond Purchase Agreement provides that it is governed by the law of a specified state. Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the terms of this Section. 8.1(p). In the event of any . inconsistency, the terms of this Section 8.1(p) shall control. The arbitration shall be administered by J.A.M.S. and conducted in the City of Miami, Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. D-13 03- 65$ The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees -pursuant to the terms of this Bond Purchase Agreement. This Section 8.1(p) does not limit the right of the Borrower, the Issuer or the Lender to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. (Remainder of this page intentionally left blank) D-14 03- 85 R QIP By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Bond Purchase Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Bond Purchase Agreement. ATTEST: By: Its: City Clerk ACKNOWLEDGE AND CONSENT: THE MIAMI CHILDREN'S MUSEUM CHARTER SCHOOL By: Name: Samuel Terilli Its: President ORIX PUBLIC FINANCE, LLC By: Its: Senior Vice President THE MIAMI CHILDREN'S MUSEUM, INC. By: Name: Richard Lampen Its: President THE CITY OF MIAMI, FLORIDA By: Its: D-15 City Manager 03- 858 EXHIBIT A BORROWER'S COUNSEL OPINION 03- 858. EXHIBIT B DRAW REQUEST 03- 858 CITY OF MIAMI, FLORIDA 31 INTER -OFFICE MEMORANDUM TO: DATE: FILE Honorable or d Memb iia ;iManager ity ommission SUBJECT: Issuance of $5,000,000 City of Miami, Florida FROM: REFERENCES: /R7�e�venue Bonds, Series 2003 ola ENCLOSURES: (Miami Children's Museum Project). Administrative Recommendation: It is respectfully recommended that the City Commission hold the TEFRA hearing and adopt the attached resolution authorizing the issuance of $5,000,000 of City of Miami, Florida Revenue B onds, Series 2 003 (Miami Children's Museum Project) (the "Series 2003 Bonds"). The Series 2003 Bonds are being issued for the purpose of refunding the Miami Children's Museum Taxable Bonds and payibg certain costs of issuance in connection with the Series 2003 Bonds. The debt will be sold to Orix Public Finance, a sophisticated institutional investor. The resolution delegates to the City Manager the determination of certain matters and details concerning the Series 2003 Bonds. The City's Finance Department and its Financial Advisor, RBC Dain Rauscher have reviewed the transaction. Background: The Miami Children's Museum (a 501(c)(3) organization) (the "Museum's is located in the City of Miami, Florida and serves a public purpose by serving the children and families of the City of Miami and Miami -Dade County. The Museum originally issued taxable bonds in the amount of $5,000,000 at an interest rate of 8.79% for the purpose of making improvements to the Museum and acquiring exhibits. In the current interest rate environment, the Museum has the opportunity to refund the debt, through the City, at an estimated interest rate of 4.75%, saving the Museum approximately $202,000 per year. JA/64WSS/jh 03- 858 Brait M"L�PA. er 01i e July 14, 2003 Via UPS Overniaht Delivery Ms. Anna Medina, Chief Deputy Clerk The City of Miami 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 Re: Affidavit of Publication re: City of Miami, Florida Revenue Bond, Series 2003 (Miami Children's Museum Project) Dear Anna: Enclosed please find for your records the original affidavit of publication from The Miami Herald for the Notice of Public Hearing published July 10, 2003 for the July 241" meeting. Please call me if you have any questions. frisse A A. Mittle Legal Assistant to Grace Dunlap Enclosure 101 East Kennedy Boulevard • Suite 2100 • Tampa, Florida 33602 • 813-273-6677 • Fax: 813-223-2705 • www.bmolaw.com TALLAHASSEE • TAMPA • ORLANDO 0 MIAMI -ATLANTA 03-969 the �"iami �Herala www.herald.com www.alherald.com PUBLISHED DAILY MIAMI-DADE-FLORIDA STATE OF FLORIDA COUNTY OF MIAMI-DADE Before the undersigned authority personally appeared: JEANNETTE MARTINEZ who on oath says that he/she is CUSTODIAN OF RECORDS of The Miami Herald, a daily newspaper published at Miami in Miami -Dade County, Florida; that the attached copy of advertisement was published in said newspaper in the issues of: July 10, 2003 Affiant further says that the said The Miami Herald is a newspaper published at Miami, in the said Miami -Dade County, Florida and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida each day and has been entered as second class mail matter at the post office in Miami, in said Miami -Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said +neapers(s). d subscribed before me this _10`h day of _July, 2003 My Commission Expires: _August 1, 2006 Silvia Acosta Notary NOTICE OF PUBLIC HEARING a not -tor -prom or anizatlon (the Company") used for the acquisition, equlPPing and r6novatior of Certain exhibits and or of he Anyorson requiring reason le accommodation at this meeting because of a disability or physical Impairment should contact the City Clerk at (305) 250-15360 -or tax a written. request. te(305) 858-181 Oat least 48 hours prior to the meeting. CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA tiP-t?C.SAU yw I NOTICE OF PUBLIC HEARING a not -tor -prom or anizatlon (the Company") used for the acquisition, equlPPing and r6novatior of Certain exhibits and or of he Anyorson requiring reason le accommodation at this meeting because of a disability or physical Impairment should contact the City Clerk at (305) 250-15360 -or tax a written. request. te(305) 858-181 Oat least 48 hours prior to the meeting. CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA