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Home My WebLink AboutR-94-0252J-94-279 4/14/94 RESOLUTION NO. /24 ` 252 A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING THE NEGOTIATION OF A LOAN IN AN AGGREGATE AMOUNT NOT TO EXCEED $16,000,000 FROM THE SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION FOR THE PURPOSE OF FINANCING CERTAIN CAPITAL IMPROVEMENTS; APPROVING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT; PROVIDING FOR THE REPAYMENT OF SUCH LOAN FROM CERTAIN LEGALLY AVAILABLE REVENUES OF THE CITY OF MIAMI; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOAN; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami, Florida (the "Governmental Unit"), together with other participating counties and cities (the "Members") have created the Sunshine State Governmental Financing Commission (the "Commission") pursuant to a certain Interlocal Agreement and Chapter 163, Part 1, Florida Statutes, for the purpose of issuing its revenue bonds to make loans to participating members for qualified projects; and WHEREAS, the Commission will issue its Sunshine State Governmental Financing Commission Tax -Exempt Commercial Paper Revenue Notes ("Governmental Financing Program") (the "Notes"), and has agreed to make a loan (the "Loan") to the Governmental Unit; and WHEREAS, the Governmental Unit will apply the proceeds of the Loan to finance the cost of various capital improvements; and A T T A C 1a,AI E 3127 ft'J": CITY CODI RISSION MEETMG OF APR 1 4 1994 $oeotution No, 94— 252 WHEREAS, the Governmental Unit has conducted a public hearing at which interested persons have been given the opportunity to comment on the financing of such capital improvements; and WHEREAS, upon approval and subsequent receipt of said Loan proceeds, the City Commission shall review and approve all proposed expenditures and allocations concerning the various capital improvements; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The Mayor, Vice Mayor or the City Manager, and the City Attorney as to the form of the Loan Agreement, are hereby authorized, and directed to execute and deliver the Loan Agreement, to be entered into by and between the Governmental Unit and the Commission, in substantially the form attached hereto as Exhibit 'A" with such changes, insertions and omissions as may be approved by the Mayor, Vice Mayor or the City Manager, and the City Attorney as to form, the execution thereof being conclusive evidence of such approval. Such Loan Agreement shall be secured in the manner set forth therein. Section 3. The amount of the Loan to the Governmental Unit evidenced by the Loan Agreement shall not exceed $16,000,000. Such Loan shall be made at a discount which shall -2- 94- 252 iinclude the Governmental Unit's Initial Excess Interest Amount (as defined in the Loan Agreement) and the costs of issuance incurred by the Commission and the Governmental Unit and shall bear interest shall be repayable according to the terms and conditions set forth in the Loan Agreement authorized pursuant to Section 1 hereof with such changes, insertions and omissions as may be approved by the Mayor Vice Mayor, or the City Manager, and the City Attorney as to form. Section 4. The Mayor, Vice Mayor, the City Manager, and the City Clerk or any other appropriate officers of the Governmental Unit are hereby authorized and directed to execute i any and all certifications or other instruments or documents required by this Resolution, the Loan Agreement or any other document required by the Commission as a prerequisite or precondition to making the Loan, and any such representation made i therein shall be deemed to be made on behalf of the Governmental Unit. All action taken to date by the officers of the Governmental Unit in furtherance of the issuance of the Notes and the making of the Loan is hereby approved, confirmed and ratified. Section 5. No such Loan Agreement shall be executed until the Governmental Unit shall have received all disclosure information required by Chapter 218, Florida Statutes. i Section 6. This Resolution shall become effective immediately upon its adoption. -3- J 252 PASSED AND ADOPTED this 14th day of April 1994. S PHEN P. CLARK M A Y O R AT i I TY HIRAI, CITY CLERK REVIEWED AS TO ACCOUNTING AND TREASURY REQUIREMENTS: CA 765 . GARCIA FINAN DIRECTOR BUDGETARY REVIEW AND APPROVAL: MANOHAR SU A, ASSISTANT C T MANAGER BUDGET DEPA MENT PREPARED AND APPROVED BY: RAFAEL 0. DIAZ DEPUTY CITY A ORNEY APPROVED AS TO FORM AND CORRECTNESS: M4F.S L / -4- 4- 252 LOAN AGREEMENT By and Between SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION and CITY OF MIAMI SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION COMMERCIAL PAPER REVENUE NOTES (GOVERNMENTAL FINANCING PROGRAM) This Instrument Prepared By: Bryant, Miller and Olive, P.A. 201 South Monroe Street, Suite 500 Tallahassee, Florida 32301 94- 252 LOAN AGREEMENT TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I DEFINITIONS DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 3 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF GOVERNMENTAL UNIT Section 2.01 Representations and Warranties . . . . . . 8 Section 2.02 Covenants of Governmental Unit . . . . . . 12 ARTICLE III THE LOAN . . . . . . . . . . . 19 ARTICLE IV LOAN TERM AND LOAN CLOSING REQUIREMENTS Section 4.01 Commencement of Loan Term . . . . . . . . . 20 Section 4.02 Termination of Loan Term . . . . . . . . . 20 Section 4.03 Loan Closing Submissions . . . . . . . . . 20 ARTICLE V LOAN PAYMENTS Section 5.01 Payment of Loan Payments . . . . . . . . . 22 Section 5.02 Calculation of Loan Rate . . . . . . . . . 22 Section 5.03 Payment of Additional Payments 23 Section 5.04 Credit for Interest Earnings . . . . . . . 24 Section 5.05 Loan Payments . . . . . . . . . . . . . . . 25 Section 5.06 Insurer . . . . . . . . . . . . . . . . . . 25 ARTICLE VI PREPAYMENT OF LOAN PAYMENTS Section 6.01 Optional Prepayment of Loan Payments . . . 26 Section 6.02 Mandatory Prepayment in Connection with Liquidity Facility 26 Section 6.03 Application of Initial Excess Interest Amount . . . . . . . . . . . . . . 27 i 94- 252 Section 7.01 Section 7.02 Section 7.03 ARTICLE VII ASSIGNMENT AND PAYMENT BY THIRD PARTIES Assignment by Commission . . . . . . . Assignment by Governmental Unit . . . . . . Payments by Insurer . . . . . . . . . . . . ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 28 28 28 Section 8.01 Events of Default Defined . . . . . . . . . 29 Section 8.02 Notice of Default . . . . . . . . . . . . . 31 Section 8.03 Remedies on Default . . . . . . . . . . . . 31 Section 8.04 Attorneys' Fees and Other Expenses 32 Section 8.05 No Remedy Exclusive; Waiver, Notice . . . . 32 Section 8.06 Bond Insurance Generally . . . . . . . . . 32 ARTICLE IX MISCELLANEOUS Section 9.01 Notices . 33 Section 9.02 Binding Effect 34 Section 9.03 Severability . . . . 34 Section 9.04 Amendments, Changes and Modifications 34 Section 9.05 Execution in Counterparts . . . . . . . . . 34 Section 9.06 Applicable Law . . . . . . . . . . . . 34 Section 9.07 Benefit of Owners; Insurer and Liquidity Provider; Compliance with Indenture . . . . 34 Section 9.08 Consents and Approvals . . . . . . . . . . 34 Section 9.09 Immunity of Officers, Employees and Members of Commission, Governmental Unit, and Liquidity Provider . . . . . . . . . . . . . 35 Section 9.10 Captions . . . . . . . . . . . . . . 35 Section 9.11 No Pecuniary Liability of Commission or Governmental Unit . . . . . . . . . . . 35 Section 9.12 Payments Due on Holidays . . . . . . . . . 35 EXHIBIT A USE OF LOAN PROCEEDS EXHIBIT B FORM OF CERTIFIED RESOLUTION EXHIBIT C FORM OF OPINION OF GOVERNMENTAL UNIT'S COUNSEL EXHIBIT D SCHEDULE OF LOAN PAYMENTS EXHIBIT E SPECIAL COVENANTS AND FINANCIAL RATIOS EXHIBIT F DRAW SCHEDULE EXHIBIT G INSURANCE COMMITMENT ii 14- 252 LOAN AGREEMENT This Loan Agreement (the "Agreement" or the "Loan Agreement") dated as of (INSERT DATE OF DOCUMENT], and entered into between the SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION (the "Commis- sion"), a public body corporate and politic created pursuant to that certain interlocal agreement by and among various governmental units executing it from time to time and the City of Miami, a municipal corporation organized under the laws of the State of Florida. W I T N E S S E T H: WHEREAS, pursuant to the authority of the hereinafter defined Act, the Commission desires to loan to the Governmental Unit the amount necessary to enable the Governmental Unit to finance or refinance the cost of the Project, as hereinafter defined, and the Governmental Unit desires to borrow such amount from the Commission subject to the terms and conditions of and for the purposes set forth in this Agreement; and WHEREAS, the Commission is a public body corporate and politic duly created, organized and existing under and by virtue of the Interlocal Agreement, such Interlocal Agreement constituting an interlocal agreement in accordance with Chapter 163, Part I, Florida Statutes, as amended (the "Interlocal Act"); and WHEREAS, the Commission has determined that there is substantial need within the State for a financing program (the "Program") which will provide funds for qualifying projects (the "Projects") for the participating Governmental Units; and WHEREAS, the Commission is authorized under the Interlocal Act to issue its revenue bonds and commercial paper to provide funds for such purposes; and WHEREAS, the Commission has determined that the public inter- est will best be served and that the purposes of the Interlocal Act can be more advantageously obtained by the Commission's issuance of revenue bonds and commercial paper in order to loan funds to the Governmental Units to finance or refinance Projects; and WHEREAS, the Governmental Unit is authorized under and pursuant to the Act, as amended, to enter into this Agreement for the purposes set forth herein; and WHEREAS, the Commission and the Governmental Unit have determined that the lending of funds by the Commission to the Governmental Unit pursuant to the terms of this Agreement and that certain Trust Indenture dated as of February 1, 1994, between the Commission and the Trustee (as defined herein), including any amendments and supplements thereto (the "Indenture"), will assist in the development and maintenance of the public welfare of the P4- 252 residents of the State and the areas served by the Governmental Unit, and shall serve a public purpose by improving the health and living conditions, and providing adequate governmental services, facilities and programs and will promote the most efficient and economical development of such services, facilities and programs in the State; and WHEREAS, neither the Governmental Unit nor the State or any political subdivision thereof (other than the Governmental Units to the extent of their obligations under their respective Agreements and except for the Commission to the extent provided in the Indenture), shall in any way be obligated to pay the principal of, premium, if any, or interest on those certain revenue obligations of the Commission designated "Sunshine State Governmental Financing Commission Commercial Paper Revenue Notes (Governmental Financing Program) (the "Notes") as the same shall become due, and the issu- ance of the Notes shall not directly, indirectly or contingently obligate the Governmental Unit, the State or any political sub- division thereof to levy or pledge any form of ad valorem taxation for their payment but shall be payable solely from the funds and revenues payable pursuant to this Agreement and the Indenture. NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the parties hereto agree as follows: (Remainder of page intentionally left blank.] 04 `:4- 252 ARTICLE I DEFINITIONS Unless the context or use indicates another meaning or intent, the following words and terms as used in this Loan Agreement shall have the following meanings, and any other words and terms not otherwise defined herein which are defined in the Indenture, as hereinafter defined, shall have the meanings as therein defined. "Accountant" or "Accountants" means an independent certified public accountant or a firm of independent certified public accountants. "Accounts" mean the accounts created pursuant to Section 3.02 of the Indenture. "Act" means, collectively, to the extent applicable, Chapter 159, Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes, Chapter 125, Part I, Florida Statutes, as amended, and all other applicable provisions of law. "Act of Bankruptcy" means the filing of a petition in bankruptcy (or other commencement of a bankruptcy or similar proceeding) by the Governmental Unit or the Commission under any applicable bankruptcy, insolvency, reorganization or similar law, now or hereafter in effect. "Additional Payments" mean payments required by Section 5.03 hereof. "Alternate Credit Facility" means an alternate credit facility securing this Loan provided pursuant to Section 4.01 of the Indenture. "Authorized Representative" means, when used pertaining to the Commission, the Chairman of the Commission and such other designated members, agent or representative as may hereafter be selected by Commission resolution and, when used with reference to a Governmental Unit means the Person or Persons performing the functions of the or thereof and when used with reference to the Insurer shall mean any officer and, when used with reference to an act or document, also means any Person authorized by resolution to perform such act or sign such document. "Basic Payments" shall have the same meaning as set forth in the third sentence of the first paragraph of Section 5.01 hereof. "Board" means the governing body of the Governmental Unit. 3 94- 252 "Bond Counsel" means Bryant, Miller and Olive, P.A., Tallahassee, Florida or any other nationally recognized bond counsel. "Business Day" means any day other than (i) a Saturday or Sunday or (ii) a day on which commercial banks in the City of New York, New York, or the city in which either the principal corporate trust offices of the Trustee or the Issuing and Paying Agent or the offices of the Dealer or the Liquidity Provider are located, are authorized or obligated by law or executive order to be closed. "City" or "Cities" shall mean municipal corporations created under the laws of the State of Florida which are participating in the Program. "Closing" means the closing of a Loan pursuant to this Agreement. "Code" means the Internal Revenue Code of 1986, as amended, and the regulations promulgated or proposed thereunder. All references herein to the "Code" shall, to the extent applicable, include the successor provisions of any federal income tax law relating specifically to the exemption from federal income taxes of interest on obligations of governmental units. "Commencement Date" means the date when the term of this Agreement begins and the obligation of the Governmental Unit to make Loan Payments begins to accrue. "Commission" means the Sunshine State Governmental Financing Commission. "County" or "Counties" shall mean those political subdivisions of the State of Florida participating in the Program. "Counsel" means an attorney duly admitted to practice law before the highest court of any state and, without limitation may include legal counsel for either the Commission or the Governmental Unit. "Credit Facility" means the bond insurance policy or surety bond issued by the Insurer providing for payment of Basic Payments when due under this Loan Agreement. The term shall also include any Alternate Credit Facility. "Designated Funds" means the fund or funds listed on Exhibit E attached hereto. "Eligible Funds" means (a) moneys deposited with the Trustee or Issuing and Paying Agent for at least 124 days during and prior to which no Act of Bankruptcy shall have occurred and not been dismissed; (b) any other moneys, if, in the opinion of nationally 4 24- 252 recognized counsel experienced in bankruptcy matters, the application of such moneys will not- constitute a voidable preference under Section 547 of the United States Bankruptcy Code in the event of the occurrence of an Act of Bankruptcy; or (c) the proceeds from investment of moneys qualifying as Eligible Funds under (a) or (b) above. Notwithstanding the foregoing, when used with respect to payment of any amounts due in respect of any Notes held by the Liquidity Provider, the term "Eligible Funds" means any moneys held by the Trustee or Issuing and Paying Agent. "Event of Default" shall have the meaning ascribed to such term in Section 8.01 of this Agreement. "Existing Debt" means those obligations, if any, of the Governmental Unit described in Exhibit A hereto, which obligations are to be paid or retired with the proceeds of the Loan. "Expiration Date" means the date specified in the Liquidity Facility as the expiration date thereof. "Fiscal Year" means the fiscal year of the Governmental Unit. "Funds" mean the funds created pursuant to the Indenture. "Governmental Unit" or "Borrower" means the entity which is designated in the first paragraph and on the cover page of this Loan Agreement and which is borrowing and using the Loan proceeds to finance, refinance or be reimbursed for, all or a portion of the costs of one or more Projects. "Governmental Units" mean the Governmental Unit and the other entities which have received loans from the Commission made from the proceeds of the Notes. "Indenture" means the Trust Indenture dated as of February 1, 1994 between the Commission and the Trustee, including any amend- ments and supplements thereto. "Initial Excess Interest Amount" shall have the meaning ascribed thereto in Section 5.01 hereof. "Insurer" means Financial Guaranty Insurance Company, and any successors thereof, including any entity which issues an Alternate Credit Facility. "Interlocal Act" means Part I, Chapter 163, Florida Statutes, as amended. "Interlocal Agreement" means that certain Interlocal Agreement creating the Commission among the various Governmental Units executing it from time to time. 5 9/4- 252 "Liquidity Event" shall have the meaning ascribed thereto in the Liquidity Facility. "Liquidity Facility" means the Commercial Paper Purchase Agreement dated as of February 1, 1994 between the Commission and the Liquidity Provider, and any Alternate Liquidity Facility. "Loan" means a loan to a Governmental Unit from Note proceeds to finance, refinance or reimburse the cost of a Project or Projects pursuant to a Loan Agreement. "Loan Agreement" or "Agreement" means this Loan Agreement between the Commission and the Governmental Unit, including the Exhibits attached hereto (the terms and provisions of which are incorporated by reference as if fully set forth at length), and any amendments, changes and modifications thereto which are executed for the purpose of securing repayment of the Loan made by the Commission to the Governmental Unit and establishing the terms and conditions upon which such Loans are to be made. "Loan Payment Date" means the fifteenth calendar day of the month or if such day is not a Business Day, the next succeeding Business Day. "Loan Payment Period" means a period beginning on the first day of a month and ending on and including the last day of such month. "Loan Payments" mean the payments of principal and interest and accrued Discount and other payments payable by the Governmental Unit pursuant to the provisions of this Loan Agreement. "Loan Rate" shall have the same meaning as set forth in Section 5.01 hereof. "Loan Term" means the term provided for in Article IV of this Loan Agreement. "Maximum Rate" means the lesser of (i) 15% per annum or (ii) the maximum rate of interest on the relevant obligation permitted by applicable law. "Municipality" or Municipalities" means a duly constituted municipality in the State. "Non -Ad Valorem Revenues" means all legally available revenues and taxes of the Governmental Unit in the Designated Funds derived from any source whatsoever other than ad valorem taxation on real and personal property, which are legally available for payment of Loan Payments. rn 94- 252 "Noteholder" or "Holder" or "Holder of Notes" or "Owner" or "holder" means the registered Owner of any Note. "Notes" means, collectively, the Taxable Notes and Tax -Exempt Notes designated as the Sunshine State Governmental Financing Commission Commercial Paper Revenue Notes (Governmental Financing Program) issued from time to time pursuant to the Indenture and the Issuing and Paying Agency Agreement. 11180 Day Date" shall have the meaning ascribed thereto in Section 2.4(a) of the Liquidity Facility. "Optional Prepayment Price" means the amount which a Governmental Unit may, in its discretion, pay the Trustee in order to prepay the Loan in full, which amount shall be equal to (i) the amount of any past -due or currently due Loan Payments together with interest on such past -due Loan Payments to the date of such payment in full at the rate or rates provided in the Loan Agreements; (ii) the unpaid accrued interest at the current Loan Rate on the outstanding principal amount of the Loan since the end of the previous Loan Payment Period to the date on which such payment will be applied to the payment of Notes on the maturity dates thereof; (iii) the unmatured principal of the Loan; (iv) any amounts owed by such Governmental Unit pursuant to the provisions of Section 5.02(a); and (v) any other amounts owing to the Commission under the Loan Agreement, including without limitation, Section 5.03 hereof. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. "Program" means the program financed, refinanced or reimbursed with the proceeds of the Notes. "Project" or "Projects" means a governmental undertaking approved by the governing body of a Governmental Unit for a public purpose, including, but not limited to, the refunding of any bonded indebtedness. "Proportionate Share" means as of the date of calculation the outstanding principal amount of this Loan divided by the outstanding principal amount of all Loans. "State" means the State of Florida. "360 Day Date" shall have the meaning ascribed thereto in Section 2.4(a) of the Liquidity Facility. "Trustee" means Bankers Trust Company, as Trustee, or any successor thereto under the Indenture. 7 24- 252 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF GOVERNMENTAL UNIT SECTION 2.01. REPRESENTATIONS AND WARRANTIES. The Governmental Unit makes the following representations and warranties for the benefit of the Commission, the Trustee, the Noteholders, the Liquidity Provider and the Insurer: (a) ORGANIZATION AND AUTHORITY. The Governmental Unit: (1) is located in the State and is a duly organized and validly existing Governmental Unit; (2) has all requisite power and authority and all necessary licenses and permits to own and operate its properties and to carry on its activities as now conducted and as presently proposed to be conducted; and (b) FULL DISCLOSURE. There is no fact known to the Governmental Unit which the Governmental Unit has not specifically disclosed in writing to the Commission and the Insurer which materially affects adversely or is likely to materially affect adversely the financial condition of the Governmental Unit, in a manner that will materially adversely affect its ability to make the payments under this Agreement when and as the same become due and payable. The financial statements, including balance sheets and any other written statement furnished by the Governmental Unit to the Commission and the Insurer do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading, in light of the circumstances under which they were made. There is no fact known to the Governmental Unit which the Governmental Unit has not disclosed to the Commission and the Insurer in writing which materially affects adversely or is likely to materially affect adversely the financial condition of the Governmental Unit, or its ability to make the payments under this Agreement when and as the same become due and payable. (c) PENDING LITIGATION. There are no proceedings pending, or to the knowledge of the Governmental Unit threatened, against or affecting the Governmental Unit, except as specifically described in writing to the Commission and the Insurer, in any court or before any governmental authority or arbitration board or tribunal (i) with respect to any of the transactions contemplated hereby or (ii) that, if adversely determined, would materially and adversely affect the properties, prospects or condition (financial or otherwise) of the Governmental Unit in a manner that will materially adversely affect the ability of the Governmental Unit to 0 24- 252 make the payments under this Agreement when and as the same become due and payable or would materially and adversely affect the existence or powers or ability of the Governmental Unit to enter into and perform its obligations under this Agreement. (d) BORROWING LEGAL AND AUTHORIZED. The execution and delivery of this Agreement and the consummation of the transactions provided for in this Agreement and compliance by the Governmental Unit with the provisions of this Agreement: (1) are within the powers of the Governmental Unit and have been duly and effectively authorized by all necessary action on the part of the Governmental Unit; (2) do not and will not (i) conflict with or result in any material breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Governmental Unit pursuant to any indenture, loan agreement or other agreement or instrument (other than this Agreement), or restriction to which the Governmental Unit is a party or by which the Governmental Unit, its properties or operations may be bound or (ii) with the giving of notice or the passage of time or both, constitute a breach or default or so result in the creation or imposition of any lien, charge, or encumbrance, which breach, default, lien, charge or encumbrance (described in (i) or (ii)) could materially and adversely affect the validity or the enforceability of this Agreement or the Governmental Unit's ability to perform fully its obligations under this Agreement; nor will such action result in any violation of the provisions of the Act, or any laws, ordinances, governmental rules or regulations or court orders to which the Governmental Unit, its properties or operations may be bound; (e) NO DEFAULTS. No event has occurred and no condition exists that constitutes an Event of Default, or which, upon the execution and delivery of this Agreement and/or the passage of time or giving of notice or both, would constitute an Event of Default. The Governmental Unit is not in violation in any material respect, and has not received notice of any claimed violation (except such violations as (i) heretofore have been specifically disclosed in writing to, and have been in writing specifically consented to by the Commission and the Insurer and (ii) do not, and shall not, have any material adverse effect on the ability of the Governmental Unit to perform its obligations hereunder) of any terms of any agreement or other instrument to which it is a party or by which it, its properties or operations may be bound. Furthermore, except with respect to actions taken by the Commission or the other Governmental Units as to which no representation or warranties are made by the Governmental Units, no event has occurred and no condition exists, to the best of the knowledge of the Governmental Unit, which would adversely affect in any manner, either directly :A- 252 or indirectly, the exclusion from gross income for federal tax purposes of interest on the Notes (other -than Taxable Notes). (f) GOVERNMENTAL CONSENT. The Governmental Unit has obtained, or will obtain all permits, approvals and findings of nonreviewability required by any governmental body or officer for the acquisition and/or installation of the Projects, including construction and renovation work, the financing or refinancing thereof or the reimbursement of the Governmental Unit therefor, or the use of such Projects, and the Governmental Unit will obtain all other such permits, approvals and findings as may be necessary for the foregoing and for such Loan and the proper application thereof; the Governmental Unit has complied with all applicable provisions of law requiring any notification, declaration, filing or registra- tion with any agency or other governmental body or officer in connection with the acquisition or installation of the Projects, including construction and renovation work necessary for such installation, financing or refinancing thereof or reimbursement of the Governmental Unit therefor; and any such acquisition, construc- tion, installation, financing, refinancing or reimbursement con- templated in this Loan Agreement is consistent with, and does not violate or conflict with, the terms of any such agency or other governmental consent, order or other action which is applicable thereto. No further consent, approval or authorization of, or filing, registration or qualification with, any governmental authority is required on the part of the Governmental Unit as a condition to the execution and delivery of this Loan Agreement. (g) COMPLIANCE WITH LAW. The Governmental Unit is in compliance with all laws, ordinances, governmental rules and regulations to which it is subject and which are material to the execution of this Loan Agreement and the performance by the Governmental Unit of its obligations hereunder, except as has been specifically disclosed in writing to the Commission and the Insurer. (h) USE OF PROCEEDS. (1) The Governmental Unit will apply the proceeds of the Loan from the Commission solely for the financing, refinancing or reimbursing of itself for the cost of those Projects as set forth in Exhibit A hereto. The Governmental Unit may modify or amend Exhibit A, without the consent of the Commission, to provide for the financing, refinancing or reimbursement of the cost of a different or additional Project if the Governmental Unit, after the date hereof, deems it to not be in the interest of the Governmental Unit to acquire or construct any item of such Project from the proceeds of the Loan or the cost of the Project proves to be less than the amounts listed on Exhibit A and the investment earnings thereon. If the Notes issued to fund the Loan are Tax -Exempt Notes, no such amendment will be made unless and until the Governmental Unit shall have given written notice thereof to the 10 94- 252 Insurer and shall have received an opinion of Bond Counsel that such change or modification will not adversely affect the exclusion from gross income for Federal income tax purposes of interest on the Tax -Exempt Notes. (2) Items of cost of the Projects which may be financed, refinanced or reimbursed include all or any reasonable or necessary direct or indirect costs of or incidental to the acquisition, construction or installation of the Projects, including the inci- dental costs of placing the same in use and financing expenses but not operating expenses. In addition, in the case of refinancings, accrued interest and any prepayment penalty on the obligation to be refinanced may be included. (i) NOTICE FROM IRS. The Governmental Unit has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that the Governmental Unit is an issuer of obligations whose arbitrage certifications may not be relied upon. (j) PROJECT. All items constituting the Project are as such term is defined in the Act. (k) COMPLIANCE WITH INTERLOCAL REQUIREMENTS AND INTERLOCAL AGREEMENT. All agreements and transactions provided for herein or contemplated hereby are in full compliance with the terms of the Interlocal Agreement and the Interlocal Act. (1) ENFORCEABILITY. This Agreement constitutes a legal, valid and binding obligation of the Governmental Unit enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency and other similar laws affecting enforceability of creditors' rights generally and to the application of equitable principles if equitable remedies are sought. (m) ADDITIONAL COVENANTS. At least one hundred and eighty days prior (or as soon as practicable thereafter) to the date that all outstanding amounts of the Loan are due and payable under this Agreement (the "Final Payment Date"), the Governmental Unit agrees to provide the Trustee and the Insurer with a report of its autho- rized officer indicating (i) the amounts, other than amounts obtained by incurrence of indebtedness, that will be available for payment of the Loan on the Final Payment Date, and (ii) if such amounts available are insufficient, a plan for obtaining financing for any deficiency. If financing is so required, arrangements for such financing reasonably satisfactory to the Insurer shall be made by a date no later than 60 days prior to the Final Due Date. If, for any reason, such arrangements are not made, the Insurer shall have the right, to the extent permitted by law, to direct the Governmental Unit to refinance its obligations through any legally available means, including refinancing through issuance of fixed rate refunding bonds of the Commission payable from a loan 11 .;4- 252 agreement of the Governmental Unit on parity herewith and in accordance with the Forward Commitment• of the Insurer to the Commission dated [Insert Date of Commitment]. The Governmental Unit and the Commission agree to fully cooperate and use their best efforts to accomplish any such refinancing. SECTION 2.02. COVENANTS OF GOVERNMENTAL UNIT. The Governmental Unit makes the following covenants and representations as of the date first above written and such covenants shall continue in full force and effect during the Loan Term: (a) SECURITY FOR LOAN REPAYMENT. The Governmental Unit covenants and agrees to appropriate in its annual budget, by amendment, if required and to the extent permitted and in accordance with budgetary procedures provided by the laws of the State, and to pay when due directly into the appropriate Fund or Account created in the Indenture, sufficient amounts of Non -Ad Valorem Revenues of the Governmental Unit sufficient to satisfy the Loan Payment as required under this Loan Agreement. Such covenant and agreement on the part of the Governmental Unit to budget and appropriate such amounts of Non -Ad Valorem Revenues shall be cumulative, and shall continue until such Non -Ad Valorem Revenues in amounts sufficient to make all required payments as and when due shall have been budgeted, appropriated and actually paid into the appropriate Fund or Account. The Governmental Unit further covenants that the Indenture and this Loan Agreement shall be deemed to be entered into for the benefit of the Holders of any of the Notes, the Insurer and the Liquidity Provider and that the obligations of the Governmental Unit to include the amount of any deficiency in each of its annual budgets and to pay such deficiencies from Non -Ad Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with the remedies set forth herein. The obligations of the Governmental Unit pursuant to this Loan Agreement will not constitute a general indebtedness of the Governmental Unit within the meaning of any constitutional or statutory provision or limitation and the Governmental Unit is not obligated to levy any ad valorem taxes for payment therefor. Neither the full faith and credit nor the taxing power of the Governmental Unit, the State of Florida or any political subdivision thereof is pledged to such payment. Such appropriation for interest due under this Loan Agreement shall be based upon an assumed interest rate determined as set forth in Exhibit E hereto. [In addition to the provisions set forth in this Section 2.02(a) and described above, the Governmental Unit may pledge all or any portions of its legally available Non -Ad Valorem Revenues for the payments of its Loan Payments. No portion of the ad valorem taxes of the Governmental Unit, however, may be pledged.] The description of the Designated Funds contained in Exhibit E may be amended from time to time with the consent of the Insurer. 12 �4- 252 Non -Ad Valorem Revenue streams in the Designated Funds shall be established by the approved budget for the period in which the Loan is funded and cannot be removed from consideration unless an equal or greater expenditure item, acceptable to the Insurer as being a recurring expenditure, is transferred concurrently. New levies, assessments or significant expansions of existing revenues may be included or excluded from the Designated Funds at the time of enactment by action of the Governmental Unit's governing body. Prior to the refinancing of the Loan through the issuance of fixed rate refunding bonds in accordance with Section 6.02 hereof, the Governmental Unit shall maintain a balance of cash and investments of less than one year maturity in the Designated Funds at least equal to 15% of the outstanding principal balance of the Loan. Verification of such balance shall be provided to the Insurer on a quarterly basis. Verification of such balance by an independent accountant shall be provided to the Insurer on an annual basis. In the event that such balance is not maintained, the Governmental Unit shall be required to fund a reserve fund for the Loan in an amount (the "Reserve Requirement") equal to the lesser of (a) 10% of the principal amount of the Loan at the time such reserve fund is funded, (b) maximum annual debt service on the Loan, or (c) 125% of average annual debt service, assuming for purposes of the computations in clauses (b) and (c) above, a fixed Loan Rate of 9.2%. Such reserve fund shall be held in a separate account by the Trustee for the benefit of the Commission and shall meet the criteria set forth in Section 7(c) and (d) of Exhibit G attached hereto. Moneys held for the credit of such reserve fund shall be used for the purpose of paying Basic Payments whenever and to the extent that the Basic Payments made by the Governmental Unit pursuant to Section 5.01 hereof, if any, shall be insufficient for such purposes. The Trustee shall give written notice to the Insurer of any such withdrawal from the reserve fund. Any withdrawals from the reserve fund shall be subsequently restored in full within ( 60 ] days of such withdrawal. Moneys in the reserve fund in excess of the Reserve Requirement shall be withdrawn and applied on the next succeeding Loan Payment Date by the Trustee as a credit against the amount due and owing pursuant to Section 5.01(a) hereof. Moneys on deposit in the reserve fund if any, shall be valued at market, exclusive of accrued interest, on the last day of each Fiscal Year. To the extent such valuation shows that the amounts on deposit therein shall be less than the Reserve Requirement, such amount shall be restored in full within one year of such valuation in twelve substantially equal installments. (b) LIENS. The Governmental Unit will not create, incur or suffer to exist any lien, charge or encumbrance on the Non -Ad Valorem Revenues, except as permitted hereunder. 13 94- 252 (c) INFORMATION. The chief financial officer of the Governmental Unit shall, at the reasonable request of the Insurer, discuss the Governmental Unit's financial matters with the Insurer or its respective designee and provide the Insurer with copies of any documents reasonably requested by the Insurer or its designee. (d) EXPENSES. In addition to the payment obligations otherwise provided for in this Loan Agreement, the Governmental Unit will, upon demand by the Commission, pay all claims, for costs and expenses and all reasonable costs and expenses whatsoever that the Commission may incur incident to the preparation, execution and delivery of this Loan Agreement, including, but not limited to: (1) the cost of reproducing this Loan Agreement and other related documents; (2) the reasonable fees and disbursements of counsel utilized by the Commission, the Insurer and Bond Counsel; ( 3 ) all other reasonable fees and out-of-pocket expenses of the Trustee (including the reasonable fees and disbursements of counsel retained by the Trustee), the Insurer, the Liquidity Provider, the Issuing and Paying Agent, the Dealer and the Commission in connection with the Loan and the enforcement thereof; and (4) any taxes in connection with the execution and delivery of this Loan Agreement and any recording and filing fees or stamp taxes relating to the pledge and assignment of the Commission's right, title and interest in and to this Loan Agreement, pursuant to the Indenture and all expenses, including reasonable attorneys' fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof. The provisions of this paragraph (d) shall survive the termination of this Loan Agreement dnd the payment in full of the obligations of the Governmental Unit hereunder. (e) INDEMNITY. To the full extent permitted under the laws of the State, the Governmental Unit will pay, and will protect, indemnify, save and hold harmless, the Commission, the Insurer, the Liquidity Provider, the Dealer, the Issuing and Paying Agent, the Trustee, each member, officer, commissioner, employee and agent of any of the Commission, the Insurer, the Liquidity Provider, the Dealer, the Issuing and Paying Agent, the Trustee and each other person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the Commission, harmless from and against, any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees and expenses), suits, claims and judgments of whatsoever kind and nature (including those in any manner directly 14 94- 252 or indirectly arising or resulting from, out of, or in connection with, any injury to, or death of, any person or any damage to property resulting from the use or operation of the Project) in any manner arising out of action or failure to act of the Governmental Unit, its successors and assigns, or the agents, contractors, employees, licensees or otherwise of the Governmental Unit or its successors and assigns in connection with, the Project, this Loan Agreement, the Program Documents or the breach or violation of any agreement, covenant, representation or warranty of the Governmental Unit set forth in this Loan Agreement, the Program Documents or any document delivered pursuant hereto or thereto or in connection herewith or therewith. Such indemnity shall not be restricted in any way by any limitation on the amount or type of damages, compensation or benefits payable under any Workers' Compensation Acts, Disability Benefit Acts, or other employee benefits acts or any other similar laws but may be limited by State law relating to the ability of Governmental Units to indemnify parties for the actions of such Governmental Units. An indemnified person shall promptly notify the Governmental Unit in writing of any claim or action brought against it, in respect of which indemnity may be sought against the Governmental Unit, setting forth, to the extent reasonably practicable under the circumstances, the particulars of such claim or action, and the Governmental Unit will promptly assume the defense thereof, including the employment of competent counsel satisfactory to such indemnified person and the payment of all expenses. An indemnified person may employ separate counsel with respect to any such claim or action and participate in the defense thereof, but, except as provided herein, the fees and expenses of such separate counsel shall not be payable by the Governmental Unit unless such employment has been specifically authorized by the Governmental Unit or unless such employment was occasioned by conflicts of interest between and among indemnified persons and/or the Governmental Unit. If the Governmental Unit shall fail to assume the defense of any action as required hereunder, or, within a reasonable time after commencement of such action, to retain counsel reasonably satisfactory to the indemnified person, the fees and expenses of counsel to such indemnified person hereunder shall be paid by the Governmental Unit. The provisions of this paragraph (e) shall survive the termination of this Loan Agreement. (f) AMOUNTS OWING TO INSURER. The Governmental Unit agrees to the fullest extent permitted under the laws of the State, to pay on demand all amounts owed by it to the Insurer with respect to the Credit Facility. The provisions of this subparagraph (f) shall survive the termination of this Loan Agreement and the payment in 15 u4- 252 full of the obligations of the Governmental Unit hereunder. The Insurer shall, to the extent it makes payment of the Basic Payment, become subrogated to the rights of the Commission and the Trustee in accordance with the terms and conditions of the Credit Facility. (g) AMOUNTS OWING UNDER LIQUIDITY FACILITY. The Governmental Unit agrees to the fullest extent permitted under the laws of the State, to pay to the Trustee on demand its Proportionate Share of all amounts owed by the Commission under the Liquidity Facility with respect to any indemnification or other obligation of the Commission under Sections 2.4, 2.7 and 8.2 of the Liquidity Facility or the corresponding provisions of any Alternate Liquidity Facility. The provisions of this subparagraph (g) shall survive the termination of this Loan Agreement and the payment in full of the obligations of the Governmental Unit hereunder. (h) SPECIAL COVENANTS AND FINANCIAL RATIOS. The Governmental Unit shall comply with all special covenants and financial ratios set forth in Exhibit E hereto, at the times and upon the conditions as more fully described in Exhibit E hereto, the terms and provisions of which are incorporated by reference as if fully set forth at length. (i) FURTHER ASSURANCE. The Governmental Unit shall execute and deliver to the Commission, the Insurer, the Liquidity Provider and the Trustee all such documents and instruments and do all such other acts and things as may be reasonably necessary or required by the Commission, the Insurer, the Liquidity Provider, and the Trustee to enable each of them to exercise and enforce its rights under this Loan Agreement and to realize thereon, and record and file and re-record and re -file all such documents and instruments, at such time or times, in such manner and at such place or places, all as may be reasonably necessary or required by any of them to validate, preserve and protect its position under this Loan Agreement. (j) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Governmental Unit shall keep or cause to be kept proper records and books of account, in which correct and complete entries will be made in accordance with generally accepted accounting principles, consistently applied (except for changes concurred in by the Governmental Unit's independent auditors) reflecting all of its financial transactions. (k) PAYMENT OF TAXES, ETC. The Governmental Unit shall pay all taxes, assessments, and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims, which, if unpaid, might become a lien or charge upon any of its properties, provided that it shall not be required to pay any such tax, assessment, charge, levy or 16 :14- 252 claim which is being contested in good faith and by appropriate proceedings which shall operate to stay the enforcement thereof. (1) COMPLIANCE WITH LAWS, ETC. The Governmental Unit shall comply with the requirements of all applicable laws, including the Act, the terms of all grants, rules, regulations and orders of any governmental authority and the terms of this Agreement and the Interlocal Agreement, non-compliance with which would, singly or in the aggregate, materially adversely affect its business, proper- ties, earnings, prospects or credit in a manner which would materially adversely affect its ability to make the payments under this Agreement when and as the same become due and payable, unless the same shall be contested by it in good faith and by appropriate proceedings which shall operate to stay the enforcement thereof. (m) INFORMATION REPORTS. The Governmental Unit covenants to provide the Commission with all material and information necessary to enable the Commission to file all reports required under the Code (including, if required, Form 8038) to assure that interest paid by the Commission on the Tax -Exempt Notes shall, for purposes of the federal income tax, be excluded from gross income for federal income tax purposes. (n) LIMITED OBLIGATIONS. Anything in this Loan Agreement to the contrary notwithstanding, it is understood and agreed that all obligations of the Governmental, Unit hereunder shall be payable only from Non -Ad Valorem Revenues required to be budgeted and appropriated hereunder and nothing herein shall be deemed to pledge ad valorem taxation revenues or to permit or constitute a mortgage or lien upon any assets owned by the Governmental Unit and no Person may compel the levy of ad valorem taxes on real or personal property within the boundaries of the Governmental Unit. The obligations hereunder do not constitute general indebtedness of the Governmental Unit within the meaning of any constitutional, statu- tory or charter provision or limitation, and neither the Trustee, the Commission, the Insurer or the Owners shall have the right to compel the exercise of the ad valorem taxing power of the Govern- mental Unit or taxation of any real or personal property therein for the payment by the Governmental Units of its obligations hereunder. Notwithstanding any provision of this Loan Agreement to the contrary, this Loan Agreement and the obligations of the Governmental Unit hereunder shall not, except to the extent set forth in Exhibit E to this Loan Agreement, be construed as a limi- tation on the ability of the Governmental Unit to pledge or cove- nant to pledge or use all or any portion of said Non -Ad Valorem Revenues for other legally permissible purposes; provided that Non - Ad Valorem Revenues shall be available as required hereunder. Notwithstanding any provisions of this Agreement, the Indenture or the Notes to the contrary, the Governmental Unit shall never be obligated to and neither the Commission, the Trustee, the Liquidity Provider or the Insurer may compel the Governmental Unit to exercise ad valorem taxing power for any purpose, including without 17 .°4- 252 limitation, to maintain or continue any of the activities of the Governmental Unit which generate user service charges, regulatory fees or any Non -Ad Valorem Revenues. (Except as provided in Section 2.02(a) hereof, neither this Loan Agreement nor the obliga- tions of the Governmental Unit hereunder shall be construed as a pledge of all or any legally available Non -Ad Valorem Revenues of the Governmental Unit, but shall be payable solely as provided in this Loan Agreement and is subject in all respects to the provi- sions of Section (166.241] or (129.07], Florida Statutes.] It is the intent of the parties hereto, and they do hereby covenant and agree, that the liability of the Governmental Unit hereunder is a several liability of the Governmental Unit expressly limited to the Loan Payments and the Governmental Unit shall have no joint liability with any other Governmental Units or the Commission for any of their respective liabilities, except to the extent expressly provided hereunder. (o) LITIGATION. The Governmental Unit covenants to provide to the Commission and the Insurer notice as soon as is reasonably possible of any litigation pending, or to the knowledge of the Governmental Unit threatened, against or affecting the Governmental Unit, in any court or before any governmental authority or arbitra- tion board or tribunal that, if adversely determined, would materi- ally and adversely affect the properties, prospects or condition (financial or otherwise) of the Governmental Unit in a manner which would adversely affect its ability to make the payments under this Agreement when and as the same become due and payable, or the exis- tence or powers or ability of the Governmental Unit to perform its duties and obligations hereunder. (Remainder of page intentionally left blank.] 1s 94- 252 ARTICLE III THE LOAN The Commission hereby agrees to loan to the Governmental Unit and the Governmental Unit hereby agrees to borrow from the Commission the sum of the lesser of (i) $ or (ii) such amount advanced from time to time from the Commission to the Governmental Unit in accordance with the provisions of the draw schedule set forth on Exhibit F attached hereto. The Governmental Unit understands that it will receive, as proceeds of the Loan, % of the stated principal amount of the Loan, i.e., as a result, the amount of the Loan proceeds received by the Govern- mental Unit will be smaller than the principal amount of such Loan. The discount is equal to the Governmental Unit's Initial Excess Interest Amount (as defined in Section 5.01 hereof) and the Governmental Unit's costs incurred in connection with this Loan to be paid by the Trustee, including the premium paid to the Insurer, subject to the terms and conditions contained in this Loan Agree- ment and in the Indenture to the extent such amount is (i) approved by the Commission, and (ii) approved in writing by the Insurer and the Trustee, such advanced amounts to be used by the Governmental Unit for the purposes of financing or refinancing the cost of, or receiving reimbursement for costs of the Project in accordance with the provisions of this Loan Agreement. [Remainder of page intentionally left blank.] 19 94- 252 ARTICLE IV LOAN TERM AND LOAN CLOSING REQUIREMENTS SECTION 4.01. COMMENCEMENT OF LOAN TERM. The Governmental Unit's obligations under this Loan Agreement shall commence on the date hereof unless otherwise provided in this Loan Agreement. SECTION 4.02. TERMINATION OF LOAN TERM. The Loan Term shall begin as of the date of this Agreement and shall terminate upon the date on which the Governmental Unit's obligations under this Loan Agreement terminate upon (i) payment in full of all amounts due under this Loan Agreement and (ii) payment in full of all amounts due to the Insurer and the Liquidity Provider; provided, however, that all covenants and all obligations provided hereunder specified to so survive shall survive the termination of this Loan Agreement and the payment in full of principal and interest hereunder. Upon termination of the Loan Term as provided above, the Commission and the Trustee and the Insurer shall deliver, or cause to be delivered, to the Governmental Unit, an acknowledgment thereof. The schedule of Loan Payments attached hereto as Exhibit D may be amended with the prior written consent of the Insurer; provided, however, any amendment shall not become effective until the Trustee receives written evidence from S&P that the rating currently assigned to the Notes will not be withdrawn or reduced as the result of the amendment. The Governmental Unit may exercise a one- time option to re -amortize the Loan within the parameters set forth in Exhibit G attached hereto prior to or on the effective date of the refinancing of this Loan through the issuance of fixed rate refunding bonds pursuant to Section 6.02 hereof, but in no event later than the tenth year from the date hereof or upon reaching the mid -point of the original Loan Term; provided, however, any amendment shall not become effective until the Trustee receives written evidence from S&P that the rating currently assigned to the Notes will not be withdrawn or reduced as the result of the amendment. In no event shall the scheduled Loan Term exceed 25 years from the date hereof. SECTION 4.03. LOAN CLOSING SUBMISSIONS. Concurrently with the execution and delivery of this Loan Agreement, the Governmental Unit is providing to the Trustee the following documents each dated the date of such execution and delivery unless otherwise provided below or unless waived by the Commission, the Trustee and the Insurer: (a) Certified resolutions of the Governmental Unit -in the form of Exhibit B attached hereto. (b) An opinion of the Governmental Unit's Counsel in the form of Exhibit C hereto to the effect that the Loan Agreement is duly 20 24-- 252 authorized obligation matters as Insurer; and executed, and is a valid, binding and enforceable of the Governmental Unit and opining to such other may be reasonably required by Bond Counsel and by the (c) A certificate of the officials of the Governmental Unit who sign this Loan Agreement to the effect that the representations and warranties of the Governmental Unit are true and correct; (d) The audited financial statements of the Governmental Unit for the past three fiscal years; (e) A certificate signed by the Authorized Representative of the Governmental Unit stating (i) the estimated dates and the amounts of projected expenditures for the Projects and (ii) that it is reasonably anticipated by the Governmental Unit that the Loan proceeds will be fully advanced therefor and expended by the Governmental Unit prior to [Insert Applicable Date] and that the projected expenditures are based on the reasonable expectations of the Governmental Unit having due regard for its capital needs and the revenues available for the repayment thereof. (f) This executed Loan Agreement; (h) An opinion (addressed to, and in form and substance acceptable to, the Commission, the Insurer and the Trustee) of Bond Counsel, to the effect that such financing, refinancing or reim- bursement with Loan proceeds (1) is permitted under the Act, the Indenture and the resolution authorizing this Loan Agreement, (2) if the Notes being issued to fund the Loan are Tax -Exempt Notes, will not cause the interest on the Tax -Exempt Notes to be included in gross income for federal income tax purposes, and (3) will not adversely affect the validity, due authorization for or legality of the Notes; (i) An incumbency certificate and a signature certificate in form and substance acceptable to the Insurer and Bond Counsel; (j) the Credit Facility; and (k) Such other certificates, documents and information as the Commission, the Insurer, the Trustee, the Liquidity Provider or Bond Counsel may require. All opinions and certificates shall be dated the date of the Closing. 21 94- 252 ARTICLE V LOAN PAYMENTS SECTION 5.01. PAYMENT OF LOAN PAYMENTS. The Governmental Unit shall pay to the order of the Commission all Loan Payments in lawful money of the United States of America to the Trustee. No such Loan Payment shall be in an amount such that the Loan Rate is in excess of the Maximum Rate. The Loan shall be repaid in Basic Payments consisting of (a) principal in the amounts and on the dates set forth in Exhibit D, and (b) interest calculated at the rate (the "Loan Rate") as provided in Section 5.02 hereof. In addition, an interest payment in an amount equal to 52 days of interest at the Maximum Rate on the original principal amount of the Loan shall be payable at Closing (the "Initial Excess Interest Amount"). The schedule of Loan Payments attached hereto as Exhibit D may be amended with the prior written consent of the Insurer; provided, however, any amendment shall not become effective until the Trustee receives written evidence from S&P that the rating currently assigned to the Notes will not be withdrawn or reduced as the result of the amendment. Loan Payments shall begin on the first Loan Payment Date for the first Loan Payment Period following the Closing. No later than the fifth Business Day of each month, the Trustee shall give the Governmental Unit notice in writing of the total amount of the Loan Payment then due and payable. Any past due Basic Payment which has not been paid by the Loan Payment Date shall be paid, together with interest thereon, at a rate equal to the Loan Rate from time to time plus 2% for the period for which such Basic Payment has not been paid, but not in excess of the Maximum Rate. The Basic Payments and Additional Payments shall be due on each Loan Payment Date, unless the principal amount of the Loan is prepaid, accelerated or forgiven in accordance with the Indenture and in accordance with the provisions hereof. To the extent that any Loan Payment is made in an amount which is less than the total amount then due and payable, the amount of the Loan Payment made shall be applied first to the payment of Basic Payments and then to the payment of Additional Payments. SECTION 5.02. CALCULATION OF LOAN RATE. The Commission shall set and from time to time reset the Loan Rate, provided that such Loan Rate shall for each Loan Payment Period be a rate which produces an amount of interest at least equal to the amount described in paragraphs (a) and (b) below: (a) The Governmental Unit's Proportionate Share of the interest and/or Discount, as the case may be, accrued on the Tax -Exempt Notes or Taxable Notes ( including Notes held by the 22 01 4 - 252 Liquidity Provider), as the case may be, for the immediately preceding Loan Payment Period; (b) To the extent not provided for in paragraph (a) above, any amount necessary to replenish the Initial Excess Interest Amount; (c) On the Loan Payment Date in October of each year following the Closing, the Trustee shall apply any portion of the Initial Excess Interest Amount in excess of an amount equal to 52 days of interest at the Maximum Rate on the then outstanding principal amount of the Loan as a credit against the amount due and owing pursuant to paragraph (a) of this Section 5.02; and (d) To the extent that any of the Initial Excess Interest Amount is applied to pay interest or Discount on the Notes, the Initial Excess Interest Amount shall be replenished from amounts paid pursuant to paragraph (a) or (b) of this Section 5.02 on the immediately succeeding Loan Payment Date. (e) Interest at the Loan Rate shall be calculated on the same basis as the Note Rate or Discount then in effect. SECTION 5.03. PAYMENT OF ADDITIONAL PAYMENTS. By execution of this Agreement, the Governmental Unit understands that payments hereunder will include payments in addition to the Basic Payments. Such costs include, but are not limited to certain fees, costs and expenses of the Insurer and the Liquidity Provider and interest on any amounts due the Insurer and the Liquidity Provider. Reference is made to the Liquidity Facility for provisions relating to fees, cost and expenses of the Commission, the provisions of which are incorporated by reference as if fully set forth at length. In addition to Basic Payments, the Governmental Unit agrees to pay on the Loan Payment Date and on demand of the Trustee in the case of a permitted acceleration of the Loan pursuant to the provisions hereof, as the case may be, one -twelfth (or one divided by the number of months in the payment period, in the case of fees calculated on the basis of a period other than annual) of the Governmental Unit's Proportionate Share of the following fees relating to the Notes and the Program to the extent that such items are not costs of issuance paid from the Loan Fund or paid as provided in Sections 2.02(d) and (g): (1) the fees and expenses of the Trustee and its counsel owed to it under the Indenture; (2) the fees and expenses of the Issuing and Paying Agent and its counsel owed to it under the Indenture and the Issuing and Paying Agency Agreement; 23 �14- 252 ( 3 ) the fees and expenses of the Dealer owed to it under the Dealer Agreement; (4) the fees and expenses of the Liquidity Provider and its counsel owed to it under the Liquidity Facility and any other reasonable fees and expenses in connection with the Liquidity Facility and, to the extent not provided for in Section 5.02(a), the Governmental Unit's Proportionate Share of any amounts due and owing by the Commission under the Liquidity Facility for that Loan Payment Period; (5) the expenses of the Commission, including legal fees; (6) the rating fees of Moody's, S&P and/or Fitch when necessary; (7) such other reasonable fees and expenses in connection with the Notes or this Loan Agreement, all as determined by the Trustee; (8) unless the Loan is funded with the proceeds of Taxable Notes, any amounts due and owing with respect to rebate. In calculating the amounts to be paid under this Section 5.03 which are dependent upon the principal amount or Face Amount of Notes outstanding, the principal amount or Face Amount of Notes outstanding for purposes of the calculation shall be that amount outstanding on the first day of each calculation period. Notwithstanding any other provision of Section 5.02 or this Section 5.03, in the event that the Loan is refinanced through the issuance of refunding bonds bearing a fixed interest rate in accordance with Section 6.02 hereof, the Governmental Unit shall not be obligated to pay any of the fees, expenses and costs specified in (2), (3) or (4) above; provided, however, that the Governmental Unit shall remain obligated to pay such fees, expenses and costs to the extent such fees, expenses and costs accrued prior to the date that the Loan was paid in full. The Governmental Unit agrees to pay interest at the Loan Rate in effect from time to time plus 20 on any Additional Payments not received by the Trustee on the Loan Payment Date or on the date the principal amount of the Loan is prepaid or accelerated in accordance with the Indenture and this Loan Agreement. SECTION 5.04. CREDIT FOR INTEREST EARNINGS. Any investment earnings deposited in the subaccount within the General Account created for the deposit of the Governmental Unit's Loan Payments shall be credited on the immediately succeeding Loan Payment Date 24 04- 252 against the Governmental Unit's obligation to pay interest or Discount on the Notes pursuant to Section 5.02(a) hereof. SECTION 5.05. LOAN PAYMENTS. The obligation of the Governmental Unit to make payment of Loan Payments or any other amounts required by this Article V, other Sections hereof and to perform and observe the other covenants and agreements contained herein shall be absolute and unconditional in all events except as otherwise expressly provided in this Loan Agreement. Notwith- standing any dispute between the Governmental Unit and the Commis- sion, the Trustee, the Insurer, the Liquidity Provider, the Issuing and Paying Agent, any Owner or any other Person, the Governmental Unit shall make all payments of Loan Payments or any other amounts when due and shall not withhold any Loan Payments or any other amounts pending final resolution of such dispute nor shall the Governmental Unit assert any right of setoff or counterclaim against its obligation to make such payments required under this Loan Agreement. The Governmental Unit's obligation to make payment of Loan Payments or any other amounts during the Loan Term shall not be abated through accident or unforeseen circumstances or because of payment under the Credit Facility securing the Loan. The Commission and the Governmental Unit agree that the Govern- mental Unit shall bear all risk of damage or destruction in whole or in part to any Project or any part thereof, including without limitation any loss, complete or partial, or interruption in the use, occupancy or operation of such Project, or any manner or thing which for any reason interferes with, prevents or renders burden- some the use or occupancy of the Project or the compliance by the Governmental Unit with any of the terms of this Loan Agreement. Notwithstanding the foregoing, this Section 5.03 shall not limit the rights of the Governmental Unit to recover amounts owing to it, except as specifically set forth herein. SECTION 5.06. INSURER. The Governmental Unit shall pay the premium for the Credit Facility and all other amounts due and owing to the Insurer directly to the Insurer. [Remainder of page intentionally left blank.] 25 94- 252 ARTICLE VI PREPAYMENT OF LOAN PAYMENTS SECTION 6.01. OPTIONAL PREPAYMENT OF LOAN PAYMENTS. At the option of the Governmental Unit and after giving at least 30 days, written notice by certified or registered mail to the Commission, the Trustee and the Dealer, the Governmental Unit may, at its option, prepay the Loan Payments in whole by paying with Eligible Funds the then applicable Optional Prepayment Price or in part in integral principal multiples of $loo,000, on any date, not less than 30 and not more than 270 days from the receipt of such notice. Any partial prepayment shall be applied against future principal installments of the Governmental Unit under this Loan Agreement. After the date on which such prepayment in whole is applied to the payment of Notes, this Loan Agreement shall terminate, except for the obligations and covenants expressed herein to survive. Except as described in Section 6.02 hereof, the Loan may not otherwise be prepaid in whole or in part. The Loan may not be prepaid in full if for any reason the Optional Prepayment Price cannot be determined. SECTION 6.02. MANDATORY PREPAYMENT IN CONNECTION WITH LIQUIDITY FACILITY. In the event that the Liquidity Provider has determined not to extend the term of the Liquidity Facility and the Governmental Unit and the Commission are unable to provide an Alternate Liquidity Facility pursuant to Section 4.02 hereof, the Governmental Unit shall prepay the Loan in full by paying with Eligible Funds the then applicable Optional Prepayment Price on or before a date 60 days prior to the Expiration Date. In the event that the Commission has not paid Notes held by the Liquidity Provider in full on or before the 180 Day Date, the Governmental Unit agrees to prepay the Loan in full by paying with Eligible Funds the then applicable Optional Prepayment Price before the 360 Day Date. If the Loan has not been prepaid in full by the date which is 270 days after the related Liquidity Event or an Alternate Liquidity Facility has not been obtained, the Commission and the Governmental Unit shall present to the Insurer a plan to issue fixed rate refunding bonds, the proceeds of which would be loaned to a Governmental Unit and used to prepay the Loan Agreement and retire the related Commercial Paper. If the Loan has not been prepaid in full by the date which is 300 days after the related Liquidity Event, to the extent permitted by law, the Commission shall issue at the direction of the Insurer such fixed rate refunding bonds and, at the direction of the Insurer, the Govern- mental Unit shall enter, to the extent permitted by law, into a loan agreement with the Commission to secure such fixed rate refunding bonds. ►• 94- 252 In either case, failure to prepay the Loan in full within the relevant time period shall not constitute an Event of Default hereunder; provided, however, that the Commission, the Insurer or Liquidity Provider shall have the right to pursue any and all remedies, other than acceleration of the Loan, provided by law to which either the Commission, the Insurer or the Liquidity Provider is entitled in order to enforce performance by the Governmental Unit of this provision. SECTION 6.03. APPLICATION OF INITIAL EXCESS INTEREST AMOUNT. If following a prepayment and prior to the date such prepayment is used to pay Notes, the amount of the Optional Prepayment Price and the investment earnings thereon are insuffi- cient to pay any amounts to become due and owing hereunder until the date this Loan Agreement terminates, the Trustee shall apply the Initial Excess Interest Amount as needed to pay interest or Discount on the Notes. If the Optional Prepayment Price and the investment earnings thereon are in excess of such amount, any excess amount and any remaining portion of the Initial Excess Interest Amount shall be credited to the Governmental Unit following termination of this Loan Agreement. [Remainder of page intentionally left blank.] 27 ,94-' 252 ARTICLE VII ASSIGNMENT AND PAYMENT BY THIRD PARTIES SECTION 7.01. ASSIGNMENT BY COMMISSION. (a) This Loan Agreement and the obligations of the Govern- mental Unit to make payments hereunder, may be assigned and reassigned in whole or in part to one or more assignees or subassignees at any time subsequent to its execution without the necessity of obtaining the consent of the Governmental Unit. The Governmental Unit expressly acknowledges that this Loan Agreement and the obligations of the Governmental Unit to make payments hereunder (with the exception of certain of the Commission rights to indemnification, fees and expenses), have been pledged and assigned to the Trustee as security for the Notes and for amounts which may be due and owing to the Insurer and the Liquidity Provider, and that the Trustee or the Insurer shall be entitled to act hereunder and thereunder in the place and stead of the Commis- sion whether or not the Notes are in default. Notwithstanding the foregoing, no such assignment or reassignment may be made except to a successor Trustee and the provider of any Alternate Credit Facility. (b) The Commission hereby agrees that, following the occurrence of an Event of Default under this Loan Agreement, acceleration of the amounts due hereunder and payment by the Insurer of the accelerated amount, the Commission will cause the Trustee to assign to the Insurer all of the Trustee's rights under this Loan Agreement. SECTION 7.02. ASSIGNMENT BY GOVERNMENTAL UNIT. This Loan Agreement may not be assigned by the Governmental Unit for any reason without the express prior written consent of the Commission, the Liquidity Provider, the Insurer and the Trustee. SECTION 7.03. PAYMENTS BY INSURER. The Governmental Unit acknowledges that payment under this Loan Agreement from funds received by the Trustee from the Insurer does not constitute payment under this Loan Agreement for the purposes hereof or fulfillment of its obligations hereunder. [Remainder of page intentionally left blank.] W] PA- 252 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES SECTION 8.01. EVENTS OF DEFAULT DEFINED. The following shall be "Events of Default" under this Loan Agreement and the terms "Event of Default" and "Default" shall mean (except where the context clearly indicates otherwise), whenever they are used in this Loan Agreement, any one or more of the following events. (a) (1) With the exception of amounts required to be paid under Section 5.03(4) hereof, failure by the Governmental Unit to timely pay any Loan Payment or any other payment required to be paid hereunder on the date on which it is due and payable; and (2) failure by the Governmental Unit to timely pay amounts required to be paid under Section 5.03(4) hereof on the date on which it is due and payable; (b) Failure by the Governmental Unit to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Loan Agreement for a period of not less than thirty (30) days, after notice thereof to the Governmental Unit by the Trustee, the Commission or the Insurer, unless the Trustee, the Commission and the Insurer shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice can be wholly cured within a period of time not materially detrimental to the rights of the Commission, the Trustee or the Insurer, the Commission, the Trustee and the Insurer will not unreasonably withhold their consent to an exten- sion of such time if corrective action is instituted by the Govern- mental Unit within the applicable period and diligently pursued until the failure is corrected; (c) Any warranty, representation or other statement by the Governmental Unit or by an officer or agent of the Governmental Unit contained in this Loan Agreement or in any instrument furnished in compliance with or in reference to this Loan Agreement, was false or misleading in any material respect when made; (d) The Governmental Unit or the Legislature of the State shall terminate the corporate existence of the Governmental Unit unless, in the opinion of the Commission, adequate provision is made by law for the obligations of the Governmental Unit hereunder; (e) Any provision of this Agreement material to the performance of the obligations of the Governmental Unit hereunder shall at any time for any reason cease to be valid and binding on the Governmental Unit or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Governmental Unit (provided nothing herein shall be construed to limit the right of the Governmental Unit to judicially determine if 29 0 4, 252 it is permitted by law to make indemnity arising under subsection 2.02(e) hereof) or the Governmental Unit shall deny that it has any or further liability or obligation hereunder; (f) A petition is filed against the Governmental Unit under any bankruptcy, reorganization, arrangement, insolvency, readjust- ment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within 60 days of such filing; (g) The Governmental Unit files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any petition against it under such law; (h) The Governmental Unit admits insolvency or bankruptcy or its inability to pay its debts as they become due or is generally not paying its debts as such debts become due, or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian (including without limitation a receiver, liquidator or trustee) of the Governmental Unit or any of its property is appointed by court order or takes possession thereof and such order remains in effect or such possession continues for more than 60 days; (i) An "Event of Default" of the Commission under the Indenture shall have occurred. As used in this subparagraph (i), an "Event of Default" shall only include Events of Default of the Commission not caused solely by a default of another Governmental Unit; (j) The Governmental Unit shall be in default in the payment of any principal of or interest on any obligation for borrowed money or for the deferred purchase price of any property or asset (unless the failure to make payment of such deferred purchase price is consequent upon a contest or negotiation being diligently pursued) or on any obligation guaranteed by the Governmental Unit or in respect of which it is otherwise contingently liable beyond any period of grace stated with respect thereto in any such obligation or in any agreement under which any such obligation is created, or shall default in the performance of any agreement under which any such obligation is created if the effect of such default is to cause such obligation to become, or to permit any holder or beneficiary thereof, or a trustee or trustee on behalf thereof, with notice if required, to declare such obligation to be, due prior to its normal maturity, and any of the foregoing may (in the reasonable judgment of the Commission, the Trustee or the Insurer) have a material adverse effect on the ability of the Governmental Unit to perform its obligations hereunder. Notwithstanding the foregoing sentence, in order to constitute an "Event of Default" hereunder, any such amount must be for an amount in excess of 30 24- 252 $1,000,000 or the debt or the obligation of the Governmental Unit must have been accelerated and be considered due and payable. SECTION 8.02. NOTICE OF DEFAULT. The Governmental Unit agrees to give the Trustee, the Insurer and the Commission prompt written notice if any petition, assignment, appointment or possession referred to in Section 8.01(c), 8.01(f) and 8.01(g) is filed by or against the Governmental Unit or of the occurrence of any other event or condition which constitutes a Default or an Event of Default, or with the passage of time or the giving of notice would constitute an Event of Default, immediately upon becoming aware of the existence thereof. The Trustee shall also give immediate notice to the Insurer of an Event of Default hereunder. SECTION 8.03. REMEDIES ON DEFAULT. Whenever any Event of Default referred to in Section 8.01 hereof (other than an Event of Default described in Section 8.01(a)(2) hereof) shall have happened and be continuing, (i) the Commission or the Trustee, but only with the written consent of the Insurer, or (ii) the Insurer shall, in addition to any other remedies herein or by law provided, have the right, at its or their option without any further demand or notice, to take such steps and exercise such remedies as provided in Section 7.02 of the Indenture, and, without limitation, one or more of the following: (a) Declare all Loan Payments of the Governmental Unit, in an amount equal to the Optional Prepayment Price applicable on the date of payment, and all other amounts due hereunder, to be immediately due and payable, and upon notice to the Governmental Unit the same shall become immediately due and payable by the Governmental Unit without further notice or demand. No such acceleration shall occur without the prior written consent of the Bond Insurer. No such acceleration shall occur without the prior written consent of the Bond Insurer. (b) Take whatever other action at law or in equity may appear necessary or desirable to collect amounts then due and thereafter to become due hereunder or to enforce any other of its or their rights hereunder. Whenever any Event of Default referred to in Section 8.01(a)(2) hereof shall have happened and be continuing, the Liquidity Provider shall, in addition to any other remedies herein or by law provided, have the right, at its option without any further demand or notice, take whatever other action at law or in equity may appear necessary or desirable to collect amounts then due and thereafter to become due hereunder or to enforce any other of its rights hereunder. The foregoing provisions shall not be construed to limit any right of the Liquidity Provider to exercise any other rights it may.have under this Agreement or at law or in equity; provided, however, that the Liquidity Provider shall have no right to accelerate the Loan. 31 94- 252 SECTION 8.04. ATTORNEYS' FEES AND OTHER EXPENSES. The Governmental Unit shall on demand pay to the Commission, the Trustee, the Liquidity Provider, and the Insurer, the reasonable fees and expenses of attorneys and other reasonable expenses incurred by any of them in the collection of Loan Payments or any other sums due or the enforcement of performance of any other obligations of the Governmental Unit hereunder upon an Event of Default. The provisions of this Section 8.04 shall survive the termination of this Loan Agreement and the payment in full of the Governmental Unit's obligations hereunder. SECTION.8.05. NO REMEDY EXCLUSIVE; WAIVER, NOTICE. No remedy herein conferred upon or reserved to the Commission, the Insurer or the Trustee is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Loan Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right, remedy or power or shall be construed to be a waiver thereof, but any such right, remedy or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the commis- sion, the Insurer or the Trustee to exercise any remedy reserved to it in this Article VIII, it shall not be necessary to give any notice other than such notice as may be required in this Article VIII. SECTION 8.06. BOND INSURANCE GENERALLY. Payments with respect to Basic Payments disbursed by the Insurer from proceeds of the Credit Facility shall not be considered to discharge the obligation of the Governmental Unit as set forth in Section 5.02 hereof, and the Insurer shall become the subrogated to the rights of the Commission and the Trustee in accordance with the tenor of the assignment made to it under the provisions of this Section or otherwise. Irrespective of whether any such assignment is executed and delivered, the Commission and the Trustee hereby agree for the benefit of the Insurer that they recognize that to the extent the Insurer makes payments on account of Basic Payments, the Insurer will be subrogated to the rights of the Commission and the Trustee to receive the amount of such Basic Payments from the Governmental Unit, with interest thereon as provided in Section 5.01 hereof, and will otherwise treat the Insurer as the owner thereof of such rights to receive the amount of such Basic Payments. All amounts received under the Credit Facility shall be used solely for the payment of Basic Payments. Notwithstanding any other provision hereof, so long as the Insurer is not in default under the Credit Facility, the Trustee shall not exercise any power hereunder, which is otherwise wholly within its discretion, to advance the normal maturity of the Loan or to exercise any other remedy available to it hereunder following an Event of Default without the prior written approval of the Insurer. The Trustee shall waive an Event of Default hereunder only upon the written direction of the Insurer. 32 A- 252 ARTICLE IX MISCELLANEOUS SECTION 9.01. NOTICES. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by first-class mail, registered or certified mail, postage prepaid, to the parties at the following addresses: The Commission: Sunshine State Governmental Financing Commission 300 S. Adams City Treasurer -Clerk's Office Tallahassee, FL 32301 Attention: Executive Director Telephone: (904) 891-8130 Telecopy: (904) 891-8210 The Governmental Unit: The Trustee: Bankers Trust Company Four Albany Street New York, NY 10006 Attention: Municipal Trust Department Telephone: (212) 250-6565 Telecopy: (212) 250-6727 The Insurer: Financial Guaranty Insurance Company 115 Broadway New York, NY 10006 Attention: Managing Counsel Telephone: (212) 312-3000 Telecopy: (212) 312-3220 The Liquidity Provider: State Board of Administration of the State of Florida 1230 Blountstown Highway Tallahassee, Florida 32304 Attention: Chief Investment Officer - Fixed Income Senior Portfolio Manager - Short Term Telephone: (904) 488-3127 Telecopy: (904) 921-2131 33 �34- 252 ,._d -,A) Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. SECTION 9.02. BINDING EFFECT. This Loan Agreement shall inure to the benefit of and shall be binding upon the Commission and the Governmental Unit and their respective successors and assigns. SECTION 9.03. SEVERABILITY. In the event any provision of the Loan Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. SECTION 9.04. AMENDMENTS, CHANGES AND MODIFICATIONS. This Loan Agreement may be amended by the Commission and the Govern- mental Unit as provided in the Indenture; provided, however, that no such amendment shall be effective unless it shall have been consented to in writing by the Trustee, the Insurer, and, to the extent provided in Sections 10.04 and 10.05 of the Indenture, the Liquidity Provider. SECTION 9.05. EXECUTION IN COUNTERPARTS. This Loan Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. SECTION 9.06. APPLICABLE LAW. This Loan Agreement shall be governed by and construed in accordance with the law of the State of Florida. SECTION 9.07. BENEFIT OF OWNERS; INSURER AND LIQUIDITY PROVIDER; COMPLIANCE WITH INDENTURE. This Loan Agreement is executed in part to induce the purchase by others of the Notes, the issuance by the Insurer of the Credit Facility and the issuance by the Liquidity Provider of the Liquidity Facility. Accordingly, all covenants, agreements and representations on the part of the Governmental Unit and the Commission, as set forth in this Loan Agreement, are hereby declared to be for the benefit of the Owners from time to time of the Notes, the Insurer and the Liquidity Provider. The Governmental Unit covenants and agrees to do all things within its power in order to comply with and to enable the Commission to comply with all requirements and to fulfill and to enable the Commission to fulfill all covenants of the Indenture. SECTION 9.08. CONSENTS AND APPROVALS. Whenever the written consent or approval of the Commission shall be required under the provisions of this Loan Agreement, such consent or approval may be given by an Authorized Representative of the Commission or such other additional persons provided by law or by rules, regulations or resolutions of the Commission. 34 94- 252 SECTION 9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF COMMISSION, GOVERNMENTAL UNIT, AND LIQUIDITY PROVIDER. No recourse shall be had for the payment of the principal of or premium or interest hereunder or for any claim based thereon or upon any representation, obligation, covenant or agreement in this Loan Agreement against any past, present or future officer, member, employee, director or agent of the Commission, the Governmental Unit or the Liquidity Provider as such, either directly or through the Commission, the Governmental Unit, the Liquidity Provider, or respectively, any successor public or private corporation thereto under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, members, employees, directors or agents as such is hereby expressly waived and released as a condi- tion of and consideration for the execution of this Loan Agreement. SECTION 9.10. CAPTIONS. The captions or headings in this Loan Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions of sections of this Loan Agreement. SECTION 9.11. NO PECUNIARY LIABILITY OF COMMISSION OR GOVERNMENTAL UNIT. No provision, covenant or agreement contained in this Loan Agreement, or any obligation herein imposed upon the Commission or the Governmental Unit, or the breach thereof, shall constitute an indebtedness or liability of the State or any political subdivision of the State or any public corporation or governmental agency existing under the laws thereof other than the Commission and the Governmental Unit. In making the agreements, provisions and covenants set forth in this Loan Agreement, the Commission has not obligated itself except with respect to the application of the revenues, income and all other property as derived herefrom, as hereinabove provided. SECTION 9.12. PAYMENTS DUE ON HOLIDAYS. If the date for making any payment or the last date for performance of any act or the exercise of any right, as provided in this Loan Agreement, shall be other than on a Business Day such payments shall be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Loan Agreement. 35 004— 252 IN WITNESS WHEREOF, the Sunshine State Governmental Financing Commission has caused this Loan Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attested by its duly authorized officers and the City of Miami has caused this Loan Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attached by its duly authorized officers. All of the above occurred as of the date first above written. ATTEST: By Secretary [SEAL] ATTESTED BY: Approved as to form and legality this day of , 199_ . By: Attorney 36 SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION By Chairman CITY OF MIAMI, FLORIDA By Title: �A-- 252 EXHIBIT A USE OF LOAN PROCEEDS DIVIS-ID-N-1- DESCRIPTION OF PROJECT TO BE ACQUIRED OR CONSTRUCTED Description of Items Equipment acquisition: Police cars and equipment Solid Waste trucks and equipment Police radios Computer equipment Construction projects: Communications Center Golf Course Improvements Total Allocated Loan Amount $ 4,200,000 4,500,000 1,260,000 900,000 825,000 3,000,000 $14,685,000 DIVISION 1I.- DESCRIPTION OF PROJECT ACQUIRED OR CONSTRUCTED FOR WHICH GOVERNMENTAL UNIT WILL BE REIMBURSED Description of Item Date Acauired_ Allocated Loan Amount DIVISION III DESCRIPTION OF PROJECT FINANCED WITH INDEBTEDNESS BEING RETIRED OR REFINANCED Description of Item Date Acquired Allocated Loan Amount A_1 4- 252 EXHIBIT B FORM OF CERTIFIED RESOLUTION EXTRACT OF MINUTES At a duly called meeting Board] (the "Board") of [Insert the day of there were at, all times present a quorum of the Board of the [Insert name of Governing name of Governmental Unit] held on , , at , the following members constituting At said meeting the adoption of the following Resolution: NO. introduced and moved A RESOLUTION OF [INSERT NAME OF GOVERNMENTAL UNIT] AUTHORIZING THE NEGOTIATION OF ONE OR MORE LOANS IN AN AGGREGATE AMOUNT NOT TO EXCEED [$00,000,000] FROM THE SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION; APPROVING THE EXECUTION AND DELIVERY OF ONE OR MORE LOAN AGREEMENTS; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOANS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, [Insert Name of Governmental Unit] (the "Governmental Unit") together with other participating counties and cities (the "Members") have created the Sunshine State Governmental Financing Commission (the "Commission") pursuant to a certain Interlocal Agreement and Chapter 163, Part I, Florida Statutes, for the purpose of issuing its revenue bonds to make loans to participating members for qualified projects; and WHEREAS, the Commission will issue its $000,000,000 Sunshine State Governmental Financing Commission [Taxable] Commercial Paper Revenue Notes (Governmental Financing Program) (the "Notes"), and has agreed to make a loan (the "Loan") to the Governmental Unit; and WHEREAS, the Governmental Unit will apply the proceeds of the Loan to [insert description]. NOW, THEREFORE, BE IT RESOLVED BY [INSERT NAME OF GOVERNING BODY OF GOVERNMENTAL UNIT], as follows: SECTION 1. The Chairman or Vice Chairman and the Clerk or Deputy Clerk are hereby authorized and directed to execute and deliver a Loan Agreement, to be entered into by and between the Governmental Unit and the Commission in substantially the form attached hereto as Exhibit A with such changes, insertions and B-1 94- 252 omissions as may be approved by the Chairman or Vice -Chairman and the Clerk or Deputy Clerk, the execution thereof being conclusive evidence of such approval. SECTION 2. The amount of the Loan to the Governmental Unit evidenced by the Loan Agreement shall not exceed [$00,000,000]. Such Loan shall be made at a discount which shall include the Governmental Unit's Initial Excess Interest Amount (as defined in the Loan Agreement) and the costs of issuance incurred by the Com- mission and the Governmental Unit and shall bear interest and shall be repayable according to the terms and conditions set forth in the Loan Agreement authorized pursuant to Section 1 hereof with such changes, insertions and omissions as may be approved by the Chairman or Vice -Chairman and the Clerk or Deputy Clerk. SECTION 3. The Chairman or Vice Chairman and the Clerk or Deputy Clerk or any other appropriate officers of the Governmental Unit are hereby authorized and directed to execute any and all certifications or other instruments or documents required by this Resolution, the Loan Agreement or any other document required by the Commission as a prerequisite or precondition to making the Loan, and any such representation made therein shall be deemed to be made on behalf of the Governmental Unit. All action taken to date by the officers of the Governmental Unit in furtherance of the issuance of the Notes and the making of the Loan is hereby approved, confirmed and ratified: SECTION 4. This Resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the [Insert Name of Governing Body] of the [Insert Name of Governmental Unit] at a meeting held on the _ day of , 199 IDY: (SEAL) ATTEST: 252 Motion to adopt the foregoing Resolution was seconded by , put to a vote and carried. The members of the Board voted as follows: AYE: NAY: Thereupon the [Chairman of the Board] declared the motion carried and the Resolution adopted. The [Secretary] [Clerk] was instructed to enter the following proceedings upon the minutes of the Board. The undersigned further certifies that the above Resolution has not been repealed or amended and remains in full force and effect. WITNESS my hand and seal of the [Governing Board] of this day of , [Secretary] [Clerk] [SEAL] EXHIBIT A - DRAFT OF LOAN AGREEMENT 94- 252 EXHIBIT C FORM OF OPINION OF GOVERNMENTAL UNIT'S COUNSEL (Letterhead of Counsel to Governmental Unit) (Date of the Closing] Sunshine State Governmental Financing commission Tallahassee, Florida Bankers Trust Company New York, New York Financial Guaranty Insurance Company New York, New York State Board of Administration of the State of Florida Tallahassee, Florida Gentlemen: We are counsel to the City of Miami, Florida (the "Governmental Unit"), and have been requested by the Governmental Unit to give this opinion in connection with the loan by the Sunshine State Governmental Financing Commission (the "Commission") to the Governmental Unit of funds to finance all or a portion of the cost of certain projects (the "Projects") as defined in, and as described in Exhibit A of the Loan Agreement, dated as of the date hereof (the "Loan Agreement"), between the Commission and the Governmental Unit. In this connection, we have reviewed such records, certificates and other documents as we have considered necessary or appropriate for the purposes of this opinion, including applicable laws, and resolutions adopted by the City Commission of the Governmental Unit, the Loan Agreement, and a Trust Indenture dated as of February 1, 1994 (the "Indenture") between the Commission and Bankers Trust Company, as trustee (the "Trustee"). Based on such review, and such other considerations of law and fact as we believe to be relevant, we are of the opinion that: C-1 U- 252 (a) The Governmental Unit is a City duly organized and existing under the laws of the State of Florida. The Governmental Unit has the legal right and all requisite power and authority to enter into the Loan Agreement and to consummate the transactions contemplated thereby and otherwise to carry on its activities and own its property. (b) The Governmental Unit has power to enter into the Loan Agreement and to purchase or construct the Project and/or receive reimbursement for the costs of the acquisition or construction thereof and/or refinance the indebtedness to be refinanced with the proceeds of the loan and has been duly authorized to execute and deliver the Loan Agreement and to purchase or construct the Project and/or receive reimbursement for the costs of the acquisition or construction thereof and/or refinance the indebtedness to be refinanced with the proceeds of the loan under the terms and provisions of a resolution of its City Commission. (c) The Governmental Unit has duly authorized, executed and delivered the Loan Agreement and the Loan Agreement (including, but not limited to the terms and provisions of Section 2.02(a) thereof) constitutes a legal, valid and binding obligation of the Govern- mental Unit enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency and other similar laws affecting enforceability of creditors' rights generally and, to the application of equitable principles if equitable remedies are sought. [The foregoing notwithstanding, the covenant to budget and appropriate as con- tained in Section 2.02(a) of the Loan Agreement (but not including any pledge of Additional Security) does not create any lien upon or pledge of the Non -Ad Valorem Revenues superior to claims of general creditors of the Governmental Unit determined and liquidated as to amount prior to the time an appropriated amount is deposited in the Funds and Accounts created pursuant to the Indenture nor does it preclude the Governmental Unit from pledging in the future its Non -Ad Valorem Revenues, to the extent the Governmental Unit is in compliance with the provisions of Exhibit E to the Loan Agreement, nor does it require the Governmental Unit to levy and collect any particular Non -Ad Valorem Revenues. However, the covenant to budget and appropriate in its general annual budget for the pur- poses and in the manner stated in the Loan Agreement, has the effect of making available for the payment of the obligations of the Governmental Unit the Non -Ad Valorem Revenues of the Govern- mental Unit placed in such Funds and Accounts and placing on the Governmental Unit a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations under its Loan Agreement; subject, however, in all respects to the restrictions of Section 166.241, Florida Statutes, which makes it unlawful for any municipality to expend moneys not appropriated and in excess of such municipality's current budgeted revenues. The obligation of the Governmental Unit to make such payments from its Non -Ad Valorem Revenues is subject to the availability of money in C-2 94- 252 the treasury of. the Governmental Unit and funding requirements for essential services of the Governmental Unit; however, such obligation is cumulative and would carry over from Fiscal Year to Fiscal Year. (Subject to Change if portion of Non -Ad Valorem Revenues are pledged to the payment of Loan Payments.) (d) Neither the execution and delivery of the Loan Agreement, the consummation of the transactions contemplated thereby, the purchase or construction of the Project or the reimbursement for costs of the acquisition or construction thereof or the refinancing of the indebtedness to be refinanced with the proceeds of the loan nor the fulfillment of or compliance with the terms and conditions of the Loan Agreement conflicts with or results in a breach of or default under any of the terms, conditions or provisions of any agreement, contract or other instrument, or law, ordinance, regu- lation, or judicial or other governmental order, to which the Governmental Unit is now a party or it or its properties is otherwise subject or bound, and the Governmental Unit is not otherwise in violation of any of the foregoing in a manner material to the transactions contemplated by the Loan Agreement. (e) There is no litigation or legal or governmental action, proceeding, inquiry or investigation pending or, to the best of our knowledge, threatened by governmental authorities or to which the Governmental Unit is a party or of which any property of the Governmental Unit is subject, which has not been disclosed in writing to the Commission, or to Financial Guaranty Insurance Company which would individually or in the aggregate (i) materially and adversely affect the validity or the enforceability of the Loan Agreement or (ii) other -wise materially adversely affect the ability of the Governmental Unit to comply with its obligations under the Loan Agreement or the transactions contemplated by such documents or (iii) materially and adversely affect the properties, prospects or condition (financial or otherwise) of the Governmental Unit or the corporate existence of the Governmental Unit. (f) The Interlocal Agreement creating the Commission and all amendments thereto have been duly authorized and executed by the Governmental Unit. Very truly yours, C-3 *4- 2 2 EXHIBIT D SCHEDULE OF LOAN PAYMENTS [To Be Provided] �4- 252 EXHIBIT E SPECIAL COVENANTS AND FINANCIAL RATIOS Pursuant to Section 2.02(a) hereof, the Governmental Unit has covenanted and agreed to budget and appropriate in its annual budget, by amendment, if required, and to pay when due directly into the appropriate Fund or Account created in the Indenture, sufficient amounts of Non -Ad Valorem Revenues of the Governmental Unit or other legally available funds sufficient to satisfy the Loan Payment as required hereunder. The amount budgeted and appropriated for interest due hereunder shall be based upon an assumed interest rate equal to (i) the greater of 120% of (a) the average rate of interest for the 12-month period ending May 31, (or if such Loan has not been outstanding for such period, for such period as the Loan has been outstanding) or (b) the interest rate for the Interest Period (calculated on a monthly basis) ending in May of such year or (ii) such lower rate as may be approved in writing by the Insurer and filed with the Commission and the Governmental Unit. The obligation of the Governmental Unit pursuant to Section 2.02(a) includes an obligation to make amendments to the budget of the Governmental Unit to assure compliance with the terms and provisions thereof. If during any Interest Period (calculated on a monthly basis) the Loan Rate (if continued until the end of the Fiscal Year) would cause the total remaining Loan Payments to exceed the amounts budgeted for such purposes, the Government Unit covenants and agrees to analyze the estimated average Loan Rate for the next four (4) weeks. If by the end of such four -week period, the Loan Rate (if continued until the end of the Fiscal Year) would cause the total remaining Loan Payments to exceed the amounts budgeted for such purposes the Governmental Unit will initiate all necessary procedures to amend its budget. The assumed interest rate used in such budget amendment will be based upon 120% of the highest average monthly Loan Rate during the past three Loan Payment Periods. ADDITIONAL DEBT The Governmental Unit may incur additional debt secured by all or a portion of the Non -Ad Valorem Revenues only if the total amount of Non -Ad Valorem Revenues for the prior fiscal year were at least 2.00 times the maximum annual debt service of all debt (including all long-term financial obligations appearing on the Governmental Unit's most recent audited financial statements and the debt proposed to be incurred) to be paid from Non -Ad Valorem Revenues (collectively, "Debt"), including any Debt payable from one or several specific revenue sources. E-1 94- 252 For purposes of calculating maximum annual debt service if the terms of the Debt are such that interest thereon for any future period of time is to be calculated at a rate which is not then susceptible of precise determination ("Variable Rate Debt"), interest on such Variable Rate Debt shall be computed as follows: (a) if the principal amount of Variable Rate Debt (including any Variable Rate Debt proposed to be incurred) is less than or equal to 25% of the principal amount of all Debt ( including the Debt proposed to be incurred) , an interest rate equal to the higher of 12% per annum or The Bond Buyer 40 Index shall be assumed; or (b) if the principal amount of Variable Rate Debt (including any Variable Rate Debt proposed to be incurred) is more than 25% of the principal amount of all Debt (including the Debt proposed to be incurred), the maximum rate which could be borne by such Variable Rate Debt shall be assumed. For purposes of calculating maximum annual debt service, this Loan shall be assumed to amortize in up to 20 years on a level debt service basis. In the event that the Governmental Unit is required to fund a reserve fund, the funding of such reserve fund shall be included in the calculation of debt service. E-2 94- 252 DESIGNATED FUNDS ' [LIST TO BE APPROVED BY INSURER] ADDITIONAL FINANCIAL COVENANTS [TO BE NEGOTIATED BETWEEN INSURER, COMMISSION AND GOVERNMENTAL UNIT] E-3 94- 252 EXHIBIT F DRAW SCHEDULE April 1994 6,000,000 May 1994 4,000,000 June 1994 2,000,000 December 1994 2,685,000 Total 14,685,000 104- 252 EXHIBIT G INSURANCE COMMITMENT [Attach commitment letter signed by Insurer and Governmental Unit] 04- 252 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM : Cesa O CityVger DATE : 1111D 31 I! FILE SUBJECT Agenda Item for City Commission Meeting REFERENCES: up ENCLOSURES: It is respectfully recommended that the attached resolution, with attachment, be approved authorizing the negotiation of a loan in an amount not to exceed $16,000,000 from the Sunshine State Governmental Financing. Commission for the purpose of financing certain capital improvements; approving the execution and delivery of a loan agreement; providing for the repayment of such loan from certain legally available revenues of the City of Miami; providing certain other matters in connection with the making of such loan; and providing an effective date. The City of Miami has participated in the financing program of the Sunshine State Governmental Financing Commission since 1987. This program provides very attractive terms. Its variable rate interest loans are currently below 3%. City of Miami resolution No. 94-92 authorized the City Manager to seek financing from the Sunshine State Financing Commission for the following items: Police cars and equipment $ 41200,000 Solid waste trucks and equipment 4,500,000 Police radios 1,260,.000 Computer equipment 900,000 E911 Communications Center 825,000 Golf Course Improvements 3.000;00� Total equipment acquisition S�4 685�000 It is hereby recommended that the attached resolution be approved authorizing a loan in an amount not to exceed $16,000,000. 7-/ ',14- 252