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HomeMy WebLinkAboutR-89-0461S *1j-j9-4/7 RESOLUTION N0.3. A RESOLUTION, WITH ATTACHMENT, OF THE MIAMI CITY COMMISSION AUTHORIZING AND APPROVING TIER MMCUTION OF A PARTICIPATION AGREEMENT BY TIER DEPARTMENT OF OFF-STREET PARKING, IN SUBSTANTIALLY THE FORM ATTACHED, TO EVIDENCE TIER LOANING OF FUNDS PRON THE FIRST MUNICIPAL LOAN COUNCIL'S POOLED LOAN PROGRAM TO THE CITY OF MIAMI, FLORIDA, SAID APPROVAL BRING SUBJECT TO APPROVAL OF THE PARTICIPATION AGREEMENT BY THE OFF-STREET PARKING BOARD. MIEREAS, the City Commission of the City of Miami, Florida, has previously determined pursuant to Resolution No. 89-183 that the City of Miami desired to join the First Municipal Loan Council by executing the Interlooal Agreement, as amended, in order to obtain low cost funds to finanoe�and refinance certain — qualifying capital projects; and WHEREAS, the Department of Off -Street Parking of the City of Miami now desires to borrow funds in an amount not to exceed Ten Million Dollars ($10,000,000.00) for qualifying capital projects (the "Projects") consisting of the construction of a parking_ garage in the Coconut Grove area and the refinanoing of $3,500,000.00 in subordinated debt Series 88 and Second Series 88 currently outstanding with Barnett Bank, as shall be more a particularly described in the form of the Participation Agreement (the "Participation Agreement") to be executed by and between the City of Miami, Florida (the "Publio Agency") and the First Municipal Loan Council (the "Council") in a form acceptable to } the City Attorney of the City of Miami; and WHBRSAS, the Department of Off -Street Parking will take the necessary steps to arrange for the financing of indebtedness aJ y� respect to such Project under the Participation. Agreement CITC NQW. TR8R81'QI�E.. BE IT 1i$0QhVRA BY°TER `COMMTB$IQN' T$$ ; -,. n��i��. r<_.�rr _�`!������+�1,��..., n�• .._ E� :: �. _ .�=,. _ . _ _ _ t .. _ _ ... ..., . _ .. , w.. �. '.�eti;.,a �'�'.. _ .w - ,ii =. n -- -- - ti by wewt ,----- Preamble to this Resolution are hereby adopted by reference thereto and inoorporated herein as if fully set forth in this Seotion. Seotion 2. Subjeot to the approval of the Participation Agreement by the Off -Street Parking Board, the Commission of the City of Miami hereby approves the exeoution of the Participation Agreement by the City'a Department of Off -Street Parking, in substantially the form attached and as that form may be amended to make it aooeptable to the City Attorney. Seotion 3. This Resolution shall become effective immediately upon its adoption pursuant to law. PASSED AND ADOPTED this llth day of XAVIER L. SFAj ATTES V MATTY IRAI CITY CLERK PREPARED AND APPROVED BY: /Z/, / 0 Le' RAFAEL 6. bin ASSISTANT CITY AT APPROVED AS TO FORM AND CORRECTNESS: A, YU JORH L. FE-P41ANDEZ CITY ATTOMMY ROD/fl/M1083 , 1989. 3 i _ F PARTICIPATION AGREEMENT E r •, Dated as of `► 1989° t- By and Between FIRST MUNICIPAL LOAN COUNCIL and .. CITY OF MIAMI, FLORIDA - $10,000000 FIRST MUNICIPAL ;LOAN;.COUNCIL POOLED ;LOAN.. i kc PROGRAM REVENUE BONDS, :SERIES �1985, M (FLORIDA LEAGUE OF CITIES FIRST MUNICIPAL LOAN PROGRAM) 1_ a It 5-2-89 Draft Foley.:`, Lardner & Hill �. One . Tampa City . Center': k° r� Suite°2900 :.`, Tampa,:,,Florida : 33602-- Ot (813) 229-2300'; = ,r. Section Section Section Section Section Section Section Section Section Section Section ti Sa � TABLE Or CONTENTS Page ARTICLE I .DEFINITIONS 1.01 beffnitiofie..... .. ................ I-1 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OP PUBLIC AGENCY 2.01 Representations and Warranties...... II-1 2.02 Covenants of Public Agency.......... I1-7 ARTICLE III THE LOAN 3.01 The Loan ............................ 7II-1 3.02 Advances ............................ IIi-1 3.03 No Warranty Loan Proceeds Sufficient ........................ III-2 ARTICLE IV LOAN TERM AND LOAN CLOSING REQUIREMENTS 4.01 Commencement of Loan Term........... IV-1 4.02- Termination of Loan Term...`......... IV-1 4.03 Loan Closinq Submissions............ IV-1' 4.04 Submissions Prior to Disbursements.. IV-4 4.05 Financing --of Construction Projects..-IV-5 n ARTICLE V ys LOAN REPAYMENTS 5.01 Payment of Loan Repayments.......... V-1 j 5.02 Calculation of Loan Rate............ V-2 5.03 Payment of Additional Payments...... V-5 5.04 Capital Losses ...................... V-8 5.05 Cure Payments ....................... V-8 -f- s3 Section Section Section Section Section Section Section Section Section Section Section Section AWk p..je 5.06 Yield Restrictions .................. V-8 i i 5.07 Loan Repayments.•.•.•..••.++•.•....• V-9 5.08 Refunding Bonds...•..•..r..•........ V-10 6.09 Conversion to a Fixed Interest 5.10 Rater •r.r•+•• Maximum Legal Interest Rate......... V`10 V-10 ARTICLE VI STATUS OF OBLIGATIONS 6.01 Status of Obligations+•••••+•..+••.• VI-•1 ARTICLE VII DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES Aff 7.01 Disclaimer of Warranties............ VII-1 7.02 Warranties .......................... VII-1 ARTICLE VIII PREPAYMENTS g 8.01 Optional Prepayment ..................VIII--1 ARTICLE IX ASSIGNMENT AND PAYMENT.BY.THIRD PARTIES 9.01 Assignment by Council....:....,•:.... IX-1 +a 9.02 Assignment.by.Public.Agency.••+..••. IX-2 9`.03 Payments by .the ,Issuer of a Public Agency Letter ,eof: Credit..:?. IX-2 ?x �a v age ARTICLE X EVENTS OF DEFAULT AND REMEDIES Section 10.01 Events of Default Defined........... X-1 Section 10.02 Notice of Default................... X-3 Section 10.03 Remedies.on Default................. X-3 _ — Section 10.04 Right of Agent Bank to Direct Proceedings ....................... X-4 Section 10.05 Attorneys' Fees and Other Expenses.. X-4 _ Section 10.06 Application of Moneys ............... X-4 Section 10.07 No Remedy Exclusive; Waiver, 2�otice ............................ X-5 ARTICLE XI REBATE OF EXCESS FUNDS Section 11.01 Rebate of Excess Funds .............. XI-1 ARTICLE XII MISCELLANEOUS Section 12.01 Certain Provisions Not Applicable... XII-1 Section 12.02 Notices ............................. XII-1 Section 12.03 Binding Effect ...................... XII-2 Section 12.04 Severability ........................ XII-2 Section 12.05 Amendments, Changes and = Modifications ..................... XII-2 Section 12.06 Execution in Counterparts........... XII-2 :. Section 12.07 Applicable Law ...................... XII-2 Section 12.08 Benefit of Bondholders, the Agent _ Bank; Compliance with Indenture... XII-3 Section 12.09 Consents and Approvals .............. XII-3 Section 12.10 Immunity of Officers, Employees and Members of Council ................ XII-3 Section 12.11 Captions ............................ XII-3 Section 12.12 No Pecuniary Liability of Council... XII-3 �! Section 12.13 Payments Due on Saturdays, Sundays and Holidays ...................... XII-4 Section 12.14 Right of Others to Perform Public Agency's Covenants ................ XII-4 Section 12.15 Termination of the Agent Bank's Rights ............................ XII-4 x: Zvi EXHIBIT A Project Description EXHIBIT B Schedule of Disbursements EXHIBIT C Permitted Encumbrances EXHIBIT D Required Consents EXHIBIT E Special Covenants and Pinancial Ratios EXHIBIT F Certified Resolution EXHIBIT G Opinion of Public Agency's Counsel EXHIBIT H Certificate of Public Agency in Connection With Loan to Finance Project EXHIBIT I Insurance Coverage Provisions EXHIBIT J Other Conditions Precedent - EXHIBIT K Incumbency Certificate EXHIBIT L Other Defaults EXHIBIT M Excluded Provisions EXHIBIT N Principal Amortization Schedule EXHIBIT 0 Additional Representations EXHIBIT P Certificate as to Public Meeting EXHIBIT Q Certificate Regarding Governing - Instruments -iv- PARTICIPATION AGREEMENT This Participation Agreement, dated as of 1989, and entered into between the First MunicipalLoan Council (the "Council"), an unincorporated governmental association whose membership is limited to Florida munici- palities and counties created pursuant to that certain Inter - local Agreement, as hereinafter defined, by and among certain duly constituted counties and municipalities in the State of Florida, such Interlocal Agreement being executed by such public agencies as herein and by the Council hereafter pro- vided, and the City of Miami, Florida ("the Public Agency"), a duly constituted municipality under the laws of the State of Florida (the "State"). W I T N E S S E T H: WHEREAS, pursuant to the authority of the herein- after defined Act, the Council desires to loan to the Public Agency the amount necessary to enable the Public Agency to finance, refinance or provide reimbursement for the cost of acquiring, equipping, constructing, renovating or remodeling the Project, as hereinafter defined, and the Public Agency desires to borrow such amount from the Council subject to the terms and conditions of and for the purposes set forth in this Participation Agreement; and WHEREAS, the Council is a public body duly created, organized and existing under and by virtue of the Interlocal Agreement, such Interlocal Agreement constituting an inter - local agreement executed by the Participating Public Agencies (hereinafter referred to) in accordance with the Florida Interlocal Cooperation Act of 1969, being Part I of Chapter 163, Florida Statutes, as amended (the "Interlocal Act") and is a properly constituted unincorporated association whose membership is limited to Florida municipalities and counties pursuant to the Interlocal Agreement and is acting on behalf of, and as the agent forthe participating duly constituted municipalities (the "Municipalities") and counties (the "Counties") in the State (sometimes hereinafter collectively referred to.as the "Participating Public Agencies"), such Interlocal Agreement being entered into by and among such Participating Public Agencies as may participate in the Program hereinafter referred to; and WHEREAS, the Council.has determined that. there is substantial need within the State for a financing program s (the "Program") which will provide funds for qualifying municipal and county capital projects for the Participating Public Agencies; and WHEREAS, the Council is authorized under the Act to issue its revenue bonds to provide funds for such pur- poses; and WHEREAS, the Council has determined that the public interest will best be served and that the purposes of the Interlocal Act can be more advantageously obtained by the Council's issuance of variable and/or fixed rate revenue bonds in order to loan funds to the Participating Public Agencies to finance qualifying municipal and county capital projects; and WHEREAS, in furtherance of the foregoing, the Council has issued certain adjustable convertible extendable revenue bonds known as "First Municipal Loan Council Pooled Loan Program Revenue Bonds, Series 1985 (Florida League of Cities First Municipal Loan Program)" (the "Bonds") pursuant to the terms of a certain Trust Indenture dated as of Decem- ber 1, 1985 between the Council and the Trustee (as defined herein) as amended by that certain First Supplemental Trust Indenture dated as of May 1, 1986 and that certain Second Supplemental Trust Indenture dated as of December 1, 1988 (such amended Trust Indenture as at any time amended or supplemented, referred to as the "Indenture"); and WHEREAS, the Council has entered into the Credit Agreement (as defined herein) with a certain financial institution therein named in order to provide credit enhance- ment for certain of the Council's obligations under the Bonds; and WHEREAS, the Public Agency is authorized under and pursuant to Part I of Chapter 159 Florida Statutes, as amended, and Part I of Chapter 125, Florida Statutes, as amended, to enter into this Participation Agreement for the purposes set forth herein; and WHEREAS, suant to Part I of to enter into this set forth herein; the Council is authorized under and pur- Chapter 163 Florida Statutes, as amended, Participation Agreement for the purposes and WHEREAS, the Council determined that the provision Public Agency pursuant to the t 5�= Agreement and the Indenture, will assist in the development and maintenance of the public welfare of the residents of the State and the areas served by the Public Agency, and shall serve a public purpose by improving the health and living conditions# and providing adequate municipal services, facilities and programs and will promote the most efficient and economical development of such services, facilities and programs in the State; and NOW, THEREPOAE, for and in consideration of the premises hereinafter contained, the parties hereto agree as follows: -3- ARTICLE I DEFINITIONS Unless the context of use indicates another mean- ing or intent, the following words and terms as used in this Participation Agreement shall have the following meanings (or the meaning specified in the Section hereof or in the document herein referenced), and any other words and terms not otherwise defined herein which are defined in the Inden- ture shall have the meanings as therein defined. "Accountant" or "Accountants" means an independent certified p—WITc accountant or i fim of independent certi- fied public accountants as to whom the Trustee and the Agent Bank make no reasonable objection. - "Accounts" has the meaning given such term in the Indenture. m "Act" means, collectively, the Interlocal Act, Part I of CFa ter 159, Florida Statutes, as amended, Part II of Chapter 166, Florida Statutes, as amended, Part I of Chapter 125, Florida Statutes, as amended, and all other -� applicable provisions of law. "Act of Bankruptcy" means, with respect to any Person, a petition filed by or against such Person seeking relief as a debtor under the federal bankruptcy laws or under any other similar applicable law or statute of the United States of America or of the State relating to bankruptcy or insolvency. "Additional Payments" means the Ongoing Expenses and the payments required to Se made by the Public Agency pursuant to Section 5.03 of this ParticipationAgreement. "Administration Agreement" means that certain .Program Administration Agreement dated as of September 26, 1985 by and between the Council and the Administrator, as amended and supplemented from time to time. "Administrator" means the Florida League of Cities, Inc.; a Flori a nonpro it corporation, or such other program administrator selected by the Council and approved by the Trustee and the Banks to administer the making, originating and administration of the Loans or any portion thereof and to act as the Council's agent to the extent set forth''in the Administration Agreement. I-1 �l "Advance" means the placement into the Allocated Account of un s or the Public Agency from the Loan Fund pursuant to Article M hereof. The principal of the Public Agency's Loan shall be deemed fully loaned to the Public Agency as of the date hereof but disbursement of such amounts shall be made only in accordance with the terms of the Par- ticipation Agreement. "�Aqent Bank" or "Banks" means The Sumitomo Bank, Limited, :acting t rough its New York Branch as the issuer of an Alternate Credit Facility, and includes any issuer or issuers of an Alternate Credit Facility (including any banks substituted in accordance with Section 1.02(11) of the Indenture) with respect to the Bonds. "Allocable Share" has the meaning given such term in the Indenture. "Alternate Credit Facility" has the meaning given such term in the Indenture. "Arbitrage Regulations" means the final income tax regulations (26 CFR, Part 1) published in the Federal Regi- ster for June 7, 1979 (44 FR 32657) under Section 103(e) of the Code as the same may be amended or supplemented or pro- posed to be amended or supplemented from time to time. "Authorized Representative" means, when used per- taining to the Counc-n , the Chairman of the Board of Direc- tors thereof and such other designated member, agent or representative as may hereafter be selected by Council reso- lution and, when used with reference to a Public Agency, means the person or persons designated in the resolution or ordinance delivered pursuant to Section 4.03(a) or otherwise designated by the Public Agency in writing to the Council, _ the Trustee and the Agent Bank and when used with reference to`the'Agent Bank shall mean any officer thereof and, when used with reference to an act or document, also means any other, person authorized by resolution to perform such act or sign such document. "Available Moneys" means (i) with respect to any Loan Repayments, moneys that have been held on deposit with the Trustee for;at"least one hundred twenty-three (123)'days during which no Act of Binkruptcy'shall have occurred with regard to the Public Agency making said Loan Repayment unless such Act of Bankruptcy shall have been dismissed and such dismissal shall be.final and not subject to appeal; (ii).moneys drawn under.a Public Agency Letter of Credit (iii) moneys which are derived from the proceeds of `'other I-2 bonds or obligations issued for the purpose of refunding the Bonds or payment hereunder, but only if the Trustee receives an unqualified opinion of Counsel acceptable to the Trustee and the Banks that payment of such amounts to the Bondholders or the Hanks would not constitute avoidable preferences under Section 544 or 547 of the United States Bankruptcy Code in the event of a filing of a petition for relief under the United States Bankruptcy Code by or against the Council or any Public Agency;_(iv) moneys which are proceeds of the _ Bonds and which have been continuously on deposit in the - Funds and Accounts created by the Indenture; or (v) moneys - received by the Trustee from the Bank or under the Letter of Credit or Alternate Credit Facility. "Bank Bonds" has the meaning given such term in = the Indenture. - "Base Rate" means the rate of interest established _71-7-7by the Agent Bank rom time to time as its prime lending rate for commercial loans in the United States (which rate is not necessarily its lowest rate of interest). Each change in the Base Rate shall be effective as of the opening of business on the effective date of such change in the Base Rate. "Board" means the governing body of the Public Agency. 7 "Bond Counsel" means Foley & Lardner & Hill, Tampa, Florida or any other nationally recognized bond counsel rea- sonably acceptable to the Council, the Agent Bank and the Trustee. _ "Bond Program" means the pooled loan program of the Council -authorized by for E resolution a period commencing on December-30, 1985 and ending December 15, 1995,.unless -� earlier terminated pursuant to the terms of the Indenture -= and pursuant to which costs of the qualifying capital pro- jects of Participating Public Agencies will be financed, -" refinanced or reimbursed from the proceeds of the Bonds. "Bondholder" means the registered.owner of any Bond. _ "Bonds" means the Council's Pooled Loan Program Revenue Bonds -,Series 1985 (Florida League of Cities First Municipal Loan Program) issued pursuant to Article II of the Indenture. "Business Day" means any day excluding Saturday, Sunday and any day on which banks in New York City or the I-3 City in which the principal corporate trust office of the Trustee is located are authorized by law or other governmen- tal action to close. "Capital Loss" - Section 5.04. "Closi.nq" means the closing of an Advance pursuant to the indenture and this Participation Agreement. "Code" means the ;eternal Revenue Code of 1954, as amended, and -the regulations promulgated or proposed there- under. "Collateral Documents" means any escrow agreements, guaranties,' -deeds 5f trust, security or pledge agreements and other documents, including a Public Agency Letter of Credit, if any, required by the Banks under Section 4.03 of this Participation Agreement, in form and substance accept- able to the Banks, and securing the Public Agency's obliga- tion under this Participation Agreement. If no Collateral Documents are required by the Banks, any further reference to Collateral Documents in this Participation Aqreement shall be of no force or effect. "Commencement Date" means the date when the term of this Participation Agreement begins and the obligations of the Public Agency hereunder to make Loan Repayments accrues. e "Consents" - Section 2.01(f). ■ "Correlative Bonds" means those Bonds which have been converted to bear inteFest at a Fixed -Interest Rate pursuant to Section 5.09 hereof and Section 2.14 of the Indenture. "Correlative Loan" and "Correlative 'Participation Agreement" Have the respective meanings given -such terms in the Indenture. "Counsel" means an attorney or firm of attorneys duly admitted to practice law before the highest court -'of any state and, withoutlimitation, may include legal counsel for either the Council or the Public Agency. a i "Credit A reement" means the Reimbursement Agree- ment dated as of November 14, 1988 between Council and the I Agent Bank including any amendments and supplements thereto, and any agreement pursuant to which an Alternate Credit Facility is issued. "Credit Agreement Rate" means a fluctuating rate of interest per annum (which rate shall change as and when the Base Rate changes and shall be computed on actual days e elapsed and year of 360 days) equal to (a) prior to maturity of the applicable obligation (whether by acceleration or otherwise), the Base Rate and (b) after maturity (whether by acceleration or otherwise) until paid, the Base Rate plus 3%. a "Debt Service Reserve Fund" means the fund by that name establisfied pursuant to Section 5.06 of the Indenture. "Default" Section 10.01. e -` "Default Date" - Section 5.01. "Default Rate" means a rate per annum equal to (i) prior to any date of acceleration pursuant to Article X hereof, for the period from the due date through the date which is ten working days thereafter, the interest rate then accruing on the principal amount of the Loan plus a rate (determined by the Trustee whose determination shall be con- clusive) sufficient to reflect the lost reinvestment earnings and other costs and expenses caused to the Bond Program by reason of such late payment and (ii) after such 10-day period, or on and after the date of any acceleration pursuant to Article X hereof, the Base Rate plus three percent (3t) (com- puted on the basis of actual days elapsed and a 360 day year). "Earnings Fund" means the fund by that name esta- blished pursuant to Section 5.10 of the Indenture. "Event of Default". - Section 10.01. "Existin Debt" means those obligations, of.the Public Agency -described in Exhibit A.heietb, if any, which obligations are to be paid or retired with the proceeds of the Loan. "Expiration Date" means the Expiration Date as defined in the Credit Agreement. "Indenture" Preambles. "Interest Payment Date" has the meaning given such term in the in entuie. "Interlocal.Act" - Preambles. "lnterlocal�Agreement" means that certain Inter - local Agreement by and among various Municipalities and Counties pursuant to which the Council was created, as the same may be from time to time amended. "Issuance Date" means the date on which the Bonds were originally Issuedrthat date being December 30, 1985. "Letter of Credit" means the irrevocable transfer- able direct -draw etter o credit made available by the Banks pursuant to the Credit Agreement, as amended, substituted, extended or otherwise modified, and.any other liquidity and, credit facility provided under any Alternate Credit Facility. "Loan" means an amount equal to the aggregate principal amount of all Advances. "Loan Fund" has the meaning given such term in the Indenture. - "Loan Paiment Period" means (a) during such time as the Bondibearat a Fixed Interest Rate or are in the Semiannual Mode or'Long Mode (each as defined in the Indenture)r the period from and including,the first calendar day of a month to and including the'last calendar "day.,of such month and (b) during such time as the Bonds are;in a Daily Mode; Flexible Mode, Weekly Mode or Monthly Mode (all_ as.define& in the Indenture) or bear interest at the.,Credit' Agreement Rate,°`the period from and including'the first Business Da `of each month to and including ' y 9 theda y . imme- _ diately preceding;the,fiist Business Day 'of the next month" (whether or not such day is a Business Day). If the method of determining the interest rate on the Bonds changesbetween (a) and (b) above, the first Loan Payment Period under the I-6 /V new method shall begin on the day it would have begun under the old method and end on the day it would under the new a method. "Loan Rate" means the rate of interest composed and calculated as provided in Section 5.02 of this Partici- pation Agreement. "Loan Repayments" means all required payments of principal, a�+n Merest at the Loan Rate, on the Loan. "Loan Term" means the term provided for in Article IV of this Part c pation Agreement unless otherwise acceler- ated pursuant to Section 10.03(a) hereof. "Municipality" - Preambles. "Ongoing Expenses" - Section 5.02(A). "Optional Prepayment Price" means: (a) with respect to a prepayment in whole, the amount determined by the Trustee which the Public Agency shall pay the Trustee in order to prepay the Loan in full, which amount shall be equal to (i) the amount of any past due Loan Repay- ments and Onreimbursable Additional Payments together with interest at the Default Rate on such past due Loan Repayments and Onreimbursable Addi- tional Payments to the date of such payment in full, if any; (ii) the accrued interest at the Loan Rate on the outstanding principal amount of the Loan (exclusive of amountsspecified in (i) above) and accrued Onreimbursable Additional Pay- ments,since the last Loan Repayment date to the date of such payment in full; (iii) the unpaid principal amount of the Loan under this Participa- tion Agreement; (iv) interest accruing on-the=Loan together with Additional Payments to be incurred from thedate of such payment until such payment may be applied to redeem Bank Bonds or to reimburse the Banks for the related redemption of Bonds pur- suant'to Article III of the Indenture; (v) the premium, if any, due on any'Bonds`'redeemed pursuant to`Section 3.02 of the`Indenture as a result of the redemption related to the payment of the Op- tional Prepayment Price; and (vi) subject to Sec- tion 5.06 hereof (to the extent then applicable in the opinion of Bond Counsel to any amount required to be paid pursuant to this clause (vi)), the I-7 /7q 89-=461 v r, unpaid amount of the Public Agency's Pro Rata Share of any Capital foss then payable by the Public Agency under Section 5.04; and (b) with respect to a partial prepayment, the amount determined by the Trustee which the Public Agency shall, so long as the Public Agency is not in default hereunder, pay to the Trustee in order to partially prepay the Loan which amount shall be equal to: (i) the accrued interest at the Loan Rate on the outstanding principal amount of the Loan to be prepaid and a percentage (as hereinafter defined) of accrued Unreimbursable Additional Pay- ments since the last Loan Repayment date to the date of such partial prepayment; (ii) the amount of the unpaid principal amount of the Loan under this Participation Agreement to be prepaid; (iii) a percentage of the interest accruing on the Loan together with Additional Payments to be incurred from the date of such payment until such payment may be applied to redeem Bank Bonds or to reimburse the Banks for the related redemption of Bonds pur- suant to Article III of the Indenture; (iv) the premium, if any, due on the Bonds pursuant to Article 3.02 of the Indenture as a result of the redemption related to the payment of the Optional Prepayment Price; and (v) subject to Section 5.06 hereof (to the extent then applicable in the opin- ion of Bond Counsel to any amount required to be paid pursuant to this clause (v)), a percentage of the unpaid amount of the Public Agency's Pro Rata Share of any Capital Loss then payable by the Public Agency under Section 5.04 hereof. The "percentage" for purposes of this paragraph (b) shall be determined by dividing the amount of the Loan to be prepaid by the total.outstanding prin- cipal amount,of the Loan under this Participation Agreement immediately prior to such prepayment. "Parity Date" has the meaning given such term in'the Indenture. "Participation Reservation Fee Agreement" shall' mean -that certain agreement 3—at—eT Was,of Decem er 15, 1988, as amended, between the Council and the Public Agency. "Participating Public Agencies" - Preambles. I-8 "Part c�ipation Agreement" means this Participation i agreement, s-amended or mmooditieed from time to time. "Permitted Encumbrances" means those encumbrances, if any, described N Exhibit, C hereto. "Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization including a government or political subdivision or an agency or instrumentality thereof. "Principal Amortization Schedule" means the prin- cipal payment schedule attached to th s Participation Agree- ment as Exhibit N as such schedule may be revised from time to time in accordance with the terms hereof. "Program" - Preambles. "Project" means the property which is financed, refinanced or reimbursed hereby and which is described in Exhibit A as from time to time supplemented, with the appro- val of the Trustee, Bond Counsel and the Agent Bank. All such property shall constitute a qualifying "project" as such term is defined in Part I of Chapter 159, Florida Stat- utes, Part II of Chapter 166, Florida Statutes, and/or Sec- tion 163.01, Florida Statutes. "Pro Rata Share" - Section 5.03(e). "Public Agency" - Introductory paragraph. "Public Agency Letter of Credit" means the letter of credit, It any, issued by a bank or other financial insti- tution satisfactory to the Banks, in favor of the Trustee for the account of the Public Agency to secure the Public Agency's obligations hereunder as and when due pursuant to the terms hereof and of the Indenture. If no Public Agency Letter of Credit is required by the Banks, .any further -re- ference to the Public Agency Letter of Credit hereunder shall be of no force or effect. .."Remarketing A ent".means Shearson Lehman Buttons Inc., actingnits capacity as remarketing and rate setting agent for the Bonds, or its successors and assigns or any other entity or entities designated by the Council in writing pursuant to the terms of the Indenture. I-9 "Reimbursable Additional Payments" means those Ongoing Expenses set forth in Section 5.02(A) which are in- cluded in the computation of the Loan Rate. "Re uest for Disbursement" means a written request by an Authorized Representative of the Public Agency for a Disbursement under Section 3.01 of this Participation Agree- ment stating the amount of the Disbursement requested, iden- tifying the Project items being purchased or otherwise des- cribing the intended use of the moneys to be advanced, in form and substance satisfactory to the Administrator and Bond Counsel. "Revenue Fund" - Section 5.02(A). "Schedule of Disbursements" shall mean the list of disbursements and pr ncipal payments made hereunder in Exhibit B hereto. "Servicing Agent" has the meaning given such term in the Credit Agreement. "Special Redemption" - Section 5.02(B). "State" - Introductory paragraph. "Tax -Exempt Organization" means an organization described in Section 1 3(a)(1) or Section 103(b)(3)(A) of the Code. "Tender Agent" has the meaning given such term in the Indenture. "Trustee" means Sun Bank, National Association, acting in its capacity as Trustee under the Indenture, or any successor thereto under the Indenture. "Trust Estate" has the meaning given such term in the Indenture. "Onreimbursable Additional Payments" means those Additional Payments escri a in section 5.03 of this Parti- cipation Agreement. "Written" or "in -writing" shall mean any form of written communfcation or a communication by means of telex, telecopier device, telegraph or cable. [End of Article 11 I-10 M ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PUBLIC AGENCY Section 2.01 Representations and Warranties. The Public Agency represents and warrants for the benefit of the Council, the Trustee, the Agent Bank and the Bondholders as follows: (a) Organization and Authority. The Public Agency: (1) is located in the State and is a body politic, duly organized andvalidly existing and a political subdivision of the State constituting a public instrumentality; and (2) has all requisite power and authority and all necessary licenses and permits to own and operate its properties and to carry on its activi- ties as now conducted and as presently proposed to be conducted. (b) Full Disclosure. There is no fact that the Public Agency has not specifically disclosed in writing to the Agent Bank and the Council (or the Administrator acting on the Council's behalf) prior to the date of its execution hereof, that materially and adversely — affects or (so far as the Public Agency can now foresee), that will materially adversely affect the properties,. activities, prospects or condition (financial or otherwise) of the Public Agency or the revenues.of the Public Agency specifically pledged hereunder or the ability of the Public Agency to perform its obligations under this Participation Agreement, the Interlocal Agreement and the Collateral Documents. The financial statements, including those delivered pursuant to Section 2.02(f) of..this Participation Agree went, -this Participation Agreement and.any. other written statement furnished by the Public- .Agency. to the Council (or the Administrator acting-oh°the Council's behalf) or the Banks 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., There is no fact known to the Publiq,Agency which the Public Agency has not disclosed'to the Council (or the Administrator acting on: the Council's.behalf),, and the'Agent Bank.in writing prior to the date of'its execution hereof which materially adversely affects or II-1 r is likely to materially adversely affect the financial condition of the Public Agency, its ability to own and operate its property in the manner such property is currently operated, its ability to make the payments under this Participation Agreement when and as the same become due and payable or the amount or the availability of the revenues of the Public Agency specifically pledged hereunder. (c) Pending Litigation. There are no proceedings pending, or to the knowledge of the Public Agency threatened, against or affecting the Public Agency, prior to the date of its execution of this Participation Agreement, in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would materially and adversely affect the properties, prospects or condition (financial or otherwise) of the Public Agency, or the amount or the availability of the revenues of the Public Agency specifically pledged hereunder, or the Project or any of the consents granted or to be granted in connection therewith, or the existence or powers or ability of the Public Agency to enter into and perform its obligations under this Participation Agreement, the Interlocal Agreement and the Collateral Documents or to undertake the transactions contemplated hereunder and thereunder. (d) Borrowing Le al and Authorized. The execution and deliv—e-r-y--oT this Participation Agreement, the Inter - local Agreement and the Collateral Documents, the con- summation of the transactions provided for in this Participation Agreement, the Interlocal Agreement and the Collateral Documents, the Project and the pledge of the revenues provided for herein and compliance by the Public Agency with the provisions of this Participation Agreement, the Interlocal Agreement and the Collateral Documents: (1) are within the municipal powers of the Public Agency and have been duly and effectively authorized by all necessary action on the part of the Public Agency; (2) do not require approval by referendum of the qualified electors of such Public Agency or, if required, such approval has been duly obtained, has not been challenged by any judicial or other appropriate proceedings and remains in full force and effect; and II-2 89-~4f 1, MINtRIS (3) do not and will not (i) conflict with or result in any breach of any of the terms, condi- tions 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 Public Agency pursuant to any indenture, loan agreement or other aqreement or instrument (other than this Participation Agree- ment and the Collateral Documents) or restriction to which the Public Agency is a party or by which the Public Agency, 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 of any such loan agreement, indenture or other agreement or instrument or so result in the creation or imposition of any lien, charge, or encumbrance; nor will the same result in any vio- lation of the provisions of the Act, or any laws, ordinances, governmental rules or regulations or court orders to which the Public Agency, its pro- perties or operations may be bound. (e) No Defaults. No event has occurred and no condition ex —fists t that constitutes an Event of Default, or which, upon the execution and delivery of this Par- ticipation Agreement, the Interlocal Aqreement or the Collateral Documents, and/or the passage of time or giving of notice or both, would constitute an Event of Default. The Public Agency is not in violation in any material respect, and has not received notice of any claimed violation (except such violations as (i) here- tofore have been specifically consented to by the Coun- cil and the Agent Hank and (ii) do not, and shall not, have any material adverse effect on the transactions herein contemplated and the compliance by the Public Agency with the terms hereof and of the Collateral Documents or have an adverse effect on the tax-exempt status of Program Bonds) 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. (f) Governmental Consent. (1) The Public Agency has obtained, or will obtain prior to any Advance or disbursement relat- ing thereto, all permits, approvals and findinqs of non -review ability (collectively, the "consents") required by any governmental body or officer for the acquisition and/or installation of the Project, including construction and renovation work, the II-3 �3 89-46JL': (3) do not and will not (i) conflict with or result in any breach of any of the terms, condi- tions 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 Public Agency pursuant to any indenture, loan agreement or other aqreement or instrument (other than this Participation Agree- ment and the Collateral Documents) or restriction to which the Public Agency is a party or by which the Public Agency, 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 of any such loan agreement, indenture or other agreement or instrument or so result in the creation or imposition of any lien, charge, or encumbrance; nor will the same result in any vio- lation of the provisions of the Act, or any laws, ordinances, governmental rules or regulations or court orders to which the Public Agency, its pro- - perties 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 Par- ticipation Agreement, the Interlocal Aqreement or the Collateral Documents, and/or the passage of time or giving of notice or both, would constitute an Event of Default. The Public Agency is not in violation in any material respect, and has not received notice of any claimed violation (except such violations as (i) here- tofore have been specifically consented to by the Coun- cil and the Agent Bank and (ii) do not, and shall not, have any material adverse effect on the transactions herein contemplated and the compliance by the Public Agency with the terms hereof and of the Collateral Documents or have an adverse effect on the tax-exempt status of Program Bonds) 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. (f) Governmental Consent. (1) The Public Agency has obtained, or will obtain prior to any Advance or disbursement relat- ing thereto, all permits, approvals and findings of non -review ability (collectively, the "consents") required by any governmental body or officer for the acquisition and/or installation of the Project, including construction and renovation work, the II-3 a3 �39--461 SM ME financing or refinancing thereof or the reimburse- ment of the Public Agency therefor, or the use of such Project, and, prior to any Advance, the Public Agency will obtain all other such permits, appro- vals and findings as may be necessary for the foregoing and for such Advance and the proper application thereof prior to such Advance; the Public Agency has complied with all applicable provisions of law requiring any notification, declaration, filing or registration with any court, agency or other governmental body or officer in connection with the acquisition or installation of the Project, including construction and renovation work necessary for such installation, financing or refinancing thereof or reimbursement of the Public Agency therefor; and any such acquisition, con- struction, installation, financing, refinancing or reimbursement contemplated in this Participation Agreement is consistent with, and does not violate or conflict with, the terms of any such court, agency or other governmental consent, order or other action which is applicable thereto. Each consent and the status thereof as of the date of this Participation Agreement is set forth in Exhibit D hereto. (2) No consent, approval or authorization of, or filing, registration or qualification with, any court or governmental authority is required on the part of the Public Agency as a condition to the execution and delivery of this Participation Agree- ment, the interlocal Agreement or to the Collateral Documents or to amounts becoming outstandinq, and _ the pledge of revenues hereunder except such as 1 have been duly obtained and are in full force and —: effect. (g) Taxes. All federal and state tax or informa- tion returns, statements, certificates and reports of the Public Agency, if any, required by law to be filed to the date hereof in order to establish and maintain the exemptions from taxation under the laws of the State, as amended and supplemented, and the Code have been duly filed. (h) Compliance With Law. The Public Agency: (1) is in compliance with all laws, ordinances, governmental rules and regulations to which it is subject and which are material to its properties, operations, finances or status as a public instru- mentality and a body politic of the State or are material to the execution hereof or the perform- ance of its obligations hereunder; and (2) has obtained all licenses, permits, fran- chises or other governmental authorizations neces- sary for its execution, delivery and performance of this Participation Agreement, the Interlocal Ag:•-aeme,-it and the Collateral Documents, the making of the borrowings and the pledge of the revenues hereunder, and for the ownership of its property and the conduct of its activities, and agrees to obtain all such licenses, permits, franchises or other governmental authorizations as may be required in the future in all cases where failure to obtain might materially and adversely affect the ability of the Public Agency to conduct its activities as presently conducted or the condition (financial or otherwise) of the Public Agency or the amount or availability of the revenues pledged hereunder or the ability of the Public Agency to perform its obligations under this Participation Agreement, the Interlocal Agreement or the Collateral Docu- ments. (i) Use of Proceeds. The Public Agency will not use any of the proceeds of the Loan to purchase or carry any "margin security" within the meaning of Regulation G or to purchase any "margin stock" within the meaning of Regulation U of.. the Board of Governors of the Federal Reserve System or in any manner that would cause the Program Bonds to be "arbitrage bonds" within the meaning of Section 103(c) of the Code and the regulations promul- gated thereunder and will take such actions as are neces- sary and within its power to assure that the interest on the Program Bonds will not be subject to Federal income taxation by virtue of the Program Bonds being "arbitrage bonds." The Public Agency will not use, directly or indirectly, the proceeds of the Loan to make or finance loans to persons other than governmental units or in any trade or business carried on by any j person other than a governmental unit other than as a •member of the general public. The foregoing notwith- standing such use may be permitted if specifically con- sented to by the Administrator and provided that, prior to such use, there shall be furnished to the Trustee and the Banks a legal opinion of Bond Counsel to the effect that such proposed use would not adversely affect the tax exemption of interest on the Bonds or the Loan. II-5 89 461 None of the proceeds of the Moan are being or will be used to refinance any indebtedness arising from a loan to the Public Agency which was funded from the proceeds of obligations the interest on which is or was exempt from federal income taxes under existing statutes, regula- tions or court decisions unless such use is specifically approved by Bond Counsel and the other provisions of subsection (k) of this Section are complied with. Not- withstanding any other provision of this Section 2.01(1), the Public Agency will aot use the Proceeds of any Advance or use the Project or suffer or permit such Proceeds or the Project to be used in any manner which would adversely affect the tax exemption of interest on the Bonds otherwise afforded under Section 103(a) of the Code. (j) Project. All items constitutinq the Project are a "project as such term is defined in either Part I of Chapter 159, Florida Statutes, as amended, Part I of Chapter 125, Florida Statutes, as amended, and/or Section 163.01(7), Florida Statutes, as amended, and constitute a project of the Public Agency. (k) Refinancing. Any Existing Debt of the Public Agency to ee—refunded, directly or indirectly, with proceeds from the Bonds was incurred by the Public Agency, and the proceeds of said indebtedness have been expended, to pay or refinance indebtedness of the Public Agency which was initially incurred by the Public Agency to pay, and the proceeds of which were expended to pay, all or a portion of qualifying capital expenditures of a Project owned and operated by the Public Agency; and such refunding, if any, is in the public interest and will assist the Public Agency in providing more adequate municipal services, facilities and programs. (1) Binding —obligation. This Participation Agreement, t e Interlocal Agreement and the Collateral Documents, if any, are legal, valid and binding obliga- tions -and agreements of the Public Agency, enforceable aqainst the Public Agency in accordance with their res- pective terms except that the enforceability thereof may be limited by laws relating to the bankruptcy or insolvency of the Public Agency or other similar laws affecting creditors' rights generally or by general principles of equity. (m) Compliance with Act and Interlocal Agreement. All agreements and transactions provided for herein or — contemplated hereby are in full compliance with the terms of the Interl.ocal Agreement and the Act, (n) Notice From IRS. The Public Agency has not been notified of any sting or proposed listing by the Internal Revenue Service to the effect that the Public Agency is an issuer of obligations whose arbitrage certifications may not be relied upon. (o) Additional Representations. The Public Agency hereby makes the additional representations and war- ranties set forth in Exhibit O attached hereto. Section 2.02 Covenants of Public Agency. The Public Agency makes the o low ng covenants and repre- sentations as of the date first above written and such covenants shall continue in full force and effect during the Loan Term and until all amounts due hereunder have been paid in full: (a) Use of the Project. (1) The Public Agency will not use or permit — the Project to be used primarily for sectarian instruction or study or as a place of devotional activities or religious worship or as a facility used primarily in connection with any part of the program of a school or department of divinity for any religious denomination or the training of _ ministers, priests, rabbis or other similar persons in the field of religion or in a manner which is prohibited by the Establishment of Religion Clause of the First Amendment to the Constitution of the a United States and the decisions of the United States Supreme Court interpreting the same or by any comparable provisions of the Constitution of � the State and the decisions in the Supreme.Court -_'ro _i of the State interpreting the same or for any other �! purpose not permitted by the Act. The provisions of this Section shall remain in full force and effect notwithstanding the payment in full and the termination of this Participation Agreement. (2) The Public Agency.will not use the Pro- ject or suffer or permit the.Project to be used by any non-exempt person (except to the extent other- wise provided in Section 2.01(i) hereof) or in any manner or to any extent which would result in II-7 89 46JL the loss of tax exemption of interest on the Bonds or the Loan otherwise afforded under Section 103(a) of the Code. (b) Covenants in Exhibit E. The Public Agency hereby makes such pledges ana grants such security interests as are provided in# and shall comply with the covenants set forth in Exhibit E hereto, the terms of which are incorporated herein by reference as if fully set forth herein. (c) Insurance. The Public Agency shall obtain and maintain the insurance, if any, required in Exhibit I hereto. (d) Liens. The Public Agency will incur or suu r to exist any lien, charge on its non -ad valorem revenues except in with the provisions of Exhibit E hereto. not create, or encumbrance accordance (e) Right of Inspection. The Council, the Trus- tee, the Administrator, the Agent Bank and their designated agents shall have the right at all reasonable times during normal business hours to enter into and upon the property of the Public Agency for the purpose of inspecting books and records of the Public Agency relating to this Participation Agreement and the transactions contemplated hereby, and the Project including the use thereof by the Public Agency. (f) Delivery of Information to the Agent Bank. The Public Agency will deliver to the Agent Bank: (1) as soon as available and in any event within 180 days after the end of each fiscal year, an audited statement of the financial position of the Public Agency at and as of the end of such fiscal year and the related statements of revenues and expenses, fund balances and changes in fund balances for such fiscal year, all reported on by Coopers & Lybrand or other independent certified public accountants acceptable to the. -Agent Bank, which acceptance will not be unreasonably with- held, whose report shall state that such financial statements present fairly the financial position at and as of the end of such fiscal year and the results of operations and changes in financial position for such fiscal year; and upon receipt by the Public Agency of the accountant's management II-8 • i letter, if any, the Public Agency will forward a copy of such management letter to the Agent Bank; (2) simultaneously with the delivery of each set of financial statements referred to in clause (1) above, a certificate of an Authorized Represen- tative of the Public Agency (i) setting forth in reasonable detail the calculations required to establish whether the Public Agency was in com- pliance with the requirements of Section 2.02(b) of this Participation Agreement on the date of such financial statements and (ii) stating whether there exists on the date of such certificate any Event of Default or event which with notice or lapse of time or both would constitute an Event of Default and, if any Event of Default or such event then exists, setting forth the details thereof and the action that the Public Agency is taking or proposes to take with respect thereto; and (3) such further information concerning the Public Agency, the revenues pledged hereunder or the Project as the Agent Bank may reasonably request. _ (g) Information. The Public Agency's chief financial officer shall, at the reasonable request of the Agent Bank or the Trustee, discuss the Public Agency's financial matters with the Agent Bank or the Trustee and provide the Agent Bank with copies of any documents furnished by the Public Agency to the Council, the Trustee or any credit rating service, or (at the request of the Agent Bank) to any lender to the Public Agency or to the agency of the State in which information regarding the indebtedness of the Public Agency is filed. (h) Expenses. In addition to the payment obliga- tions otherwise provided for in this Participation Agreement, the Public Agency will, upon demand by the Council or the Agent Bank, pay an amount equal to all claims, reasonable costs and expenses whatsoever that the Agent Bank, the Administrator or the Council may incur incident to the preparation, execution and delivery of this Participation Agreement, including, but not limited to: (1) the current application fee, if any, for proposed participants in the Bond Program and the II-9 cost of reproducing this participation Agreement and the Collateral Documents; (2) the reasonable fees and disbursements of Bond Counsel and counsel utilized by the Council, the Public Agency, and the Administrator; (3) all other reasonable out-of-pocket expenses of the Trustee (including the reasonable fees and disbursements of counsel retained by the Trustee), the Administrator and the Council; (4) the reasonable costs and expenses of any experts retained by the Council, the Agent Bank, or the Administrator in connection with the Loan and all filing fees, taxes, title insurance premiums and similar costs incurred in connection with any security or pledge affected hereby or under the Collateral Documents; (5) all taxes in connection with the execution and delivery of this Participation Agreement and the Collateral Documents, and all recording and filing fees and stamp taxes relating thereto.and to the pledge and assignment of the Council's right, title and interest in and to this Participation Agreement and the Collateral Documents pursuant to the Indenture and, if applicable, under Section 5.16 of the Indenture and all expenses, including reasonable attorneys' fees, relating to any amend- ments, waivers, consents or collection or enforce- ment proceedings pursuant to the provisions hereof or under the Collateral Documents; and (6) the fee payable to the Agent Bank under the Credit Agreement with respect to this Partici- pation Agreement to be paid upon the execution hereof. The provisions of this paragraph (h) shall survive the termination of this Participation Agreement and the payment in full of the obligations of the Public Agency hereunder. (f) Agreement to Reimburse Certain Amounts. The, Public Agency Fill, but only to the extent permitted by law, pay to or reimburse the Council, the Agent Bank, the Remarketing Agent, the Tender Agent, the Trustee, the Administrator, the State, each member, officer, commissioner, employee and agent of any of the Council, II-10 MAI 89--461 the Agent Bank, the Remarketing Agent, the Trustee, the Administrator, the Tender Agent, the State 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 any of the foregoing, an amount equal to all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits, claims and judgments of whatsoever kind and nature (including those in any manner directly 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 directly or indirectly (in any case, whether or not by way of the Public Agency, its successors and assigns, or directly or indirectly through the agents, contractors, employees, licensees or otherwise of the Public Agency or its successor and assigns) arising or resulting from, out of, or in connection with, the Project, this Participa- tion Agreement, the Interlocal Agreement, the Collateral Documents or the breach or violation of any agreement, covenant, representations or warranty of the Public Agency set forth in this Participation Agreement, the Interlocal Agreement, the Collateral Documents or any document delivered pursuant hereto or thereto or in connection herewith or therewith. In addition, the Public Agency will reimburse (on a subordinated basis subject to the prior payment in full of principal and interest on the Loan) all other Public Agencies participating in the Bond Program to the extent the Public Agency has performed any act or failed to perform any act and the result of such action or failure to act is that the cost of participating in the Bond Program by such Public Agencies is increased. Such reimbursement includes, without limitation, any increased costs incurred by other participating Public Agencies as a result of the Public Agency failing to make a payment hereunder when due or any action or inaction of the Public Agency which adversely affects the exemption from Federal income taxation of interest on the Bonds or the Loan. Such payment or reimbursement described in the preceding two paragraphs 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 �3/ 89-461. 0 E Counties to reimburse parties for the actions of such Counties to the extent the benefits of such State law may not be waived. A person entitled to payment or reimbursement pur- suant to this Section 2.02(i) shall promptly notify the Public Agency in writing of any claim or action brought against it, in respect of which such reimbursement may be sought against the Public Agency, setting forth, to the extent reasonably practicable under the circum- stances, the particulars of such claim or action, and the Public Agency will promptly assume the defense thereof, including the employment of competent counsel satisfactory to such person and the payment of all expenses related thereto. A person entitled to payment or reimbursement pur- suant to this Section 2.02(1) may employ separate coun- sel with respect to any such claim or action and parti- cipate in the defense thereof, but, except as provided herein, the fees and expenses of such separate counsel shall not be payable by the Public Agency unless such employment has been specifically authorized by the Public Agency or unless such employment was occasioned by conflicts of interest between and among the persons entitled to payment or reimbursement pursuant to this Section 2.02(1) and/or the Public Agency. If the Pub- lic Agency shall fail to assume the defense of any action as required hereunder, or, within a reasonable time after commencement of such action, shall fail to retain counsel satisfactory to such person entitled to payment or reimbursement pursuant to this Section 2.02(i), the fees and expenses of counsel to such per- son hereunder shall be paid by the Public Agency. All amounts payable to or with respect to the Council under this Section 2.02(1) shall be deemed to be fees and expenses retained by the Council for pur- poses of the provisions hereof and of the Indenture dealing with assignment of the Council's rights here- under. The provisions of this paragraph (i) shall survive the termination of this Participation Agreement. (j) Certain Amounts Owing Under the Credit Agree- ment. The Public Agency agrees to pay on demand -of the Agent Bank a proportionate share of all amounts owed by the Council under the Credit Agreement with.respect to any increased cost or other obligation of the Council II-12 89-�461 under Sections 3.05 or 3.06(b) of the Credit Agreement. For the purposes of this subparagraph (j), the Public Agency's proportionate share of such amounts shall be determined by multiplying such amounts by the result of (a) the dollar amount of interest at the Loan Rate there- tofore received by the Trustee on the Loan divided by (b) the total dollar amount of all interest payment theretofore received by the Trustee on all loans made under the Bond Program which have not been assiqned by the Council or the Trustee pursuant to Section 5.16 of the Indenture to the Agent Bank (or as it may direct), the Servicing Agent or the issuer of the Public Agency Letter of Credit. The agreement of the Agent Bank to receive payments of amounts described in this Section 2.02(j) under Section 5.03 hereof on a periodic basis shall not prejudice the rights of the Agent Bank to demand payment of such amounts then outstanding in accor- dance with this Section 2.02(j) at any time thereafter. The provisions of this subparagraph (j) shall sur- vive the termination of this Participation Agreement and the payment in full of all other obligations of the Public Agency hereunder. (k) Information Reports. The Public Agency coven- ants to make all reports required of it, and to provide the Council with all material and information necessary to enable the Council to file all reports required of the Council, under Section 103 of the Code, if any, to assure that interest paid hereunder and interest paid by the Council on the Bonds shall, for purposes of the federal income tax, be exempt from all income taxation. (1) Location of Project. The Project will be primarily used or ase within the State. (m) Further Assurance. The Public Agency shall execute.an el ver to the Agent Bank or the Trustee, as the case may be, all such documents and instruments and do all such other acts and things as may be neces- sary or reasonably required by the Trustee or the Agent Bank to enable the Trustee or the Agent Bank to exercise and enforce their rights under this Participation Agree- ment and the Collateral Documents, if any, and to.real- ize 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 necessary or reasonably required by the Trustee or the Agent Bank to validate, preserve and protect the position of the Trustee and the Agent Bank 11� 89-461 under Sections 3.05 or 3.06(b) of the Credit Agreement. For the purposes of this subparagraph (j), the Public Agency's proportionate share of such amounts shall be determined by multiplying such amounts by the result of (a) the dollar amount of interest at the Loan Rate there- tofore received by the Trustee on the Loan divided by (b) the total dollar amount of all interest payment theretofore received by the Trustee on all loans trade under the Bond Program which have not been assiqned by the Council or the Trustee pursuant to Section 5.16 of the Indenture to the Agent Bank (or as it may direct), the Servicing Agent or the issuer of the Public Agency Letter of Credit. The agreement of the Agent Bank to receive payments of amounts described in this Section 2.02(j) under Section 5.03 hereof on a periodic basis shall not prejudice the rights of the Agent Bank to demand payment of such amounts then outstanding in accor- dance with this Section 2.02(j) at any time thereafter. The provisions of this subparagraph (j) shall sur- vive the termination of this Participation Agreement and the payment in full of all other obligations of the Public Agency hereunder. (k) Information Reports. The Public Agency coven- ants to ma ek a�f reports required of it, and to provide the Council with all material and information necessary to enable the Council to file all reports required of the Council, under Section 103 of the Code, if any, to assure that interest paid hereunder and interest paid by the Council on the Bonds shall, for purposes of the federal income tax, be exempt from all income taxation. (1) Location of Project. The Project will be primarily used or ed within the State. (m) Further Assurance. The Public Agency shall execute and deliver to the Agent Bank or the Trustee, as the case may be, all such documents and instruments and do all such other acts and things as may be neces sary or reasonably.required by the Trustee or :the Agent Bank to enable the Trustee or the Agent Bank to exercise and enforce their rights under this Participation -Agree- ment and the Collateral Documents, if any, and to real- ize 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 necessary or reasonably required by the Trustee or the Agent Bank to validate, preserve and protect the position of the Trustee and the Agent Bank II-13 13 11 under this Participation Agreement and the Collateral Documents, if any, all at the expense of the Public Agency. (n) Reepina of Records and Books of Account. The Public Agency shall keep or cause to be kept proper records and books of account, in which correct and com- plete entries will be made in accordance with generally accepted accounting principles, consistently applied (except for changes concurred in by the Public Agency's independent auditors) reflecting all of its financial transactions. (o) Payment of Taxes, Etc. The Public Agency shall pay all taxes, assessments, and governmental charges or levies, if any, 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 claim which is being contested in good faith and by appropriate proceedings which shall operate to stay the enforcement thereof. (p) Compliance with Laws, Etc. The Public Agency shall Comply with the requirements of all applicable laws and the terms of all grants, rules, regulations and orders of any court or governmental authority, non- compliance with which would, singly or in the aggregate, materially adversely affect its business, properties, earnings, prospects or credit or its ability to perform its obligations hereunder, unless the same shall be contested by it in good faith and by appropriate proceed- ings which shall operate to stay the enforcement thereof. (q) Appropriation. Subject to the provisions of Sections 129.07 and 166.241, Florida Statutes, as amended, and in accordance with all budgetary procedures provided by the laws of the State of Florida in addition to and not in limitation of the revenues pledged here- under, if any, the Public Agency covenants that it will appropriate in its general annual budget, by amendment on a monthly basis, if necessary, from legally available non -ad valorem revenues amounts sufficient to pay all amounts due hereunder, subject to availability to the Public Agency of such funds and accounts of the Public Agency and funding requirements for essential govern- mental services of the Public Agency. Such covenant and agreement on the part of the Public Agency to budget 11-14 and appropriate such amounts of none -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 bud- geted, appropriated and actually paid into the appro- priate Funds or Accounts. The Public Agency further covenants that the Indenture and this Participation Agreement shall be deemed to be entered into for the benefit of the Holders of any of the Program Bonds and the Agent Bank and that the obligations of the Public Agency 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 foregoing covenant shall not preclude the Public Agency from pledging any or all of its non -ad valorem revenues or any other legally avail- able funds to the extent not restricted or pledged here- under (including the Exhibits hereto) and such covenant is subject to all such pledges thereof to the extent not prohibited hereby (including the Exhibits hereto). The Public Agency reserves the right to make similar ari passu covenants in connection with other indebted- ness of e Public Agency.to the extent not prohibited hereby. This covenant shall not be construed to obli- gate the Public Agency to levy and collect any ad valorem taxes or any particular non -ad valorem revenues except as otherwise specifically provided herein. The obligations of the Public Agency pursuant to this Par- ticipation Agreement will not constitute a general indebtedness of the Public Agency within the meaning of any constitutional or statutory provision or limitation and the Public Agency is not obligated and neither the Council, the Bondholders, the Trustee or the Agent Bank may compel the Public Agency to levy ad valorem taxes for the Loan Repayments. (r) Tax Exempt Status of Bonds and the Loan. The Council an the Public Agency understand that it is the intention hereof that the interest on the Bonds and the Loan not be included within the gross income of the holders thereof for federal income tax purposes. In furtherance thereof, the Public Agency agrees that it will take all action within its control which is neces- sary in order for the interest on the Bonds and the Loan to remain exempt from federal income taxation and shall refrain from taking any action which results in such interest becoming so taxable. II-15 The Public Agency covenants that neither it nor any "related person," as defined in Section 103(b)(6)(c) of the Code, shall, pursuant to an arrangement, formal or informal, purchase obligations of the Council in an amount related to the amount of the Loan made in connec- tion with the transactions contemplated hereby. The Public Agency further covenants that it will record or file or cause to be recorded or filed in such manager and in such places whatever documents as may be required by law to be recorded or filed in order to protect fully the security of the Trustee, the Banks and the holders and owners of the Bonds, and, if appli- cable, the tax exempt status of such Bonds and the Loan, including, but not limited to, the filing of all reports as may be required from time to time pursuant to the Code, if any. The Public Agency further covenants that it will not take any action or fail to take any action with respect to the investment of the proceeds of any Bonds, with respect to the payments derived from the Bonds or hereunder or with respect to the purchase of other Council obligations which action or failure to act may cause the Bonds or the Loan to be "arbitrage bonds" within the meaning of such term as used in Section 103(c) of the Code and the regulations promulgated thereunder. (s) Purchase of Bonds. Without limiting the provi- sions of Section 2.02(r) hereof, the Public Agency cove- nants that it will not purchase any of the Bonds unless the funds used for such purchase have first been depo- sited by the Public Agency in a special account esta- blished by the Trustee for such purpose and only on the date which, in the sole discretion of the Trustee, such funds constitute Available Moneys. (t) Special Covenants and Financial Ratios. The Public Agency shall comply with all special covenants and financial ratios required by the Agent Bank 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 though fully set forth 'at length at this place. (u) Litigation Notice. The Public Agency covenants to provide to the Council and the Agent Bank notice as soon as is reasonably possible of any litigation pending, or to the knowledge of the Public Agency threatened, against or affecting the Public Agency, in any court or II-16 &V/ before any governmental authority or arbitration board ' or tribunal that, if adversely determined, would mate- rially and adversely affect the existence or powers of the Public Agency or the ability of the Public Agency to perform its duties and obligations hereunder. a' (v) Legal Existence. The Public Agency covenants not to take any act on, or to the extent it may do so permit any person to take any action, to terminate the legal existence of the Public Agency unless adequate provision is made by law for the obligations of the Public Agency hereunder. [End of Article III i i - { II-17 7 89-463 11 ARTICLE III THE LOAN 0 Section 3.01 The Loan. The Council hereby agrees to loan to the Public Agency and the Public Agency hereby agrees to borrow from the Council the sum of $10,000,000 subject to the terms and conditions contained in this Parti- cipation Agreement and in the Indenture and to the extent such amount is (i) approved by the Council, (ii) approved in writing by the Agent Bank, the Administrator and the Trustee, and (iii) determined by the Trustee in its sole discretion to be available in the Loan Fund (established pursuant to Article V of the Indenture) for such purpose. Such loaned amounts shall be used by the Public Agency for the purposes of financing or refinancing the cost of, or receiving reim- bursement for the equity in, the Project in accordance with the provisions of this Participation Agreement. The Loan amount set out in the first sentence of this Section 3.01 hereof shall be deemed to be an Advance to the Public Agency on the execution hereof. Such Advance shall be disbursed to the Public Agency upon the submission to the Trustee of a Request for Disbursement and such other documents and submis- sions required by this Participation Aqreement and the Inden- ture. The Public Agency shall forthwith deliver a copy of each Request for Disbursement submitted to the Trustee, to the Administrator, Bond Counsel, and the Agent Bank. The Public Agency's obligation hereunder to repay its loan together with interest thereon, shall be evidenced by this Participation Agreement. Section 3.02 Disbursements. The Trustee is hereby authorized by the Public Agency and directed by the Council and the Agent Bank, and, by its acceptance of the assignment hereof pursuant to the Indenture, hereby agrees, to endorse the date and the amount of each disbursement to the Public Agency from the Loan Fund and the date and the amount each payment or prepayment of principal hereunder on the "Schedule of Disbursements" attached as Exhibit B to this Participation Agreement, which endorsement shall constitute prima facie evidence of the accuracy of the information enTorse�. The failure of the Trustee to make any such endorsement shall not limit or otherwise affect the obligations of the Public Agency hereunder or under the Loan. --,77777777- 171 ARTICLE ITT LOAN TERM AND LOAN CLOSING REQUIREMENTS Section 4.01 Commencement of Loan Term. The - Public Agency's obligations under this Part c pation Agree- ment and the Collateral Documents shall commence on the date - hereof except to the extent otherwise provided in this Par- ticipation Agreement. .n Section 4.02 Termination of Loan Term. The Public Agency's obligations under this Participation Agreement and the Collateral Documents shall terminate after payment in full of all amounts due under this Participation Agreement = and all amounts not theretofore paid shall be due and payable as set forth in the Principal Amortization Schedule but in no event later than December 1, 1995; provided, however,, that this Participation Agreement shall not terminate until — the final payment due hereunder has been made and has become = Available Moneys (it being understood that, during the period after the date of final payment through the date such payment has become Available Moneys, no further monetary obligations hereunder shall accrue) and provided, further, that all cove- nants and all obligations provided hereunder specified to so _ - survive shall survive the termination of this Participation Agreement and the payment in full of principal and interest on the Loan hereunder. Upon payment in full of all amounts owing hereunder and termination of the Loan Term as provided above, the Council and the Trustee or the Agent Bank shall = — deliver, or cause to be delivered, to the Public Agency, an acknowledgement thereof. — Section 4.03 Loan Closinq Submissions. Concur- rently with the execution and delivery of this Participation — Agreement, the Public Agency is providing to the Agent Bank and the Trustee the following documents each dated the date `= of such execution and delivery unless otherwise provided — (except that the Trustee may, with the written consent of the Agent Bank, waive the item described in (d) below):. (a) Certified resolutions or ordinances of the Public Agency attached as Exhibit F to this Participa- tion Agreement; (b) An opinion of the Public Agency's Counsel reasonably acceptable to the Administrator and the Agent Bank attached as Exhibit to this Participation Agree - went; IV-1 7U (c) A certificate of the officials of the Public Agency who sign this Participation Agreement attached AS Exhibit H to this Participation Agreement; (d) Audited financial statements for the preceding two (2) years of the Public Agency# including a balance sheet as of such date and four years' income statements through such date; (e) A certificate signed by the Authorized Repre- sentative of the Public Agency stating the estimated dates of acquisition and the amounts of expenditures j for the Project; (f) Evidence of delivery to the Trustee of a Public Agency Letter of Credit if required by the Agent Bank (such Public Agency Letter of Credit to be in such form and such amount as shall be approved by the Agent Bank) and an opinion of Counsel to the issuer of the Public Agency Letter of Credit satisfactory to the Administrator and the Banks to the effect that the Public Agency Letter of Credit is a legal, valid and binding obligation of the issuing bank enforceable in accordance with its terms subject to the normal bankruptcy exceptions with respect to the issuer thereof; (g) A letter from the Agent Bank or other evidence satisfactory to the Administrator and the Trustee (including the authorized signature by the Agent Bank of this Participation Agreement) to the effect that the Agent Bank has approved this Participation Agreement and the Collateral Documents, if any; (h) This executed Participation Agreement and the — Collateral Documents required by the Agent Bank,'if any; i (i) An opinion (addressed to, and in and substance acceptable to, the Council, the'Agent Bank " and the'Trustee) of Bond Counsel, to the effect that such -financing, refinancing or reimbursement with Loan proceeds is permitted`under`the Act, 'the indenture and _�- the resolution authorizing this Participation Agreement, and will not cause the interest on the Bonds or'the- Loan to be subject to federal income taxation or adversely affect the validity, due authorization for or'legality of -the Bonds and covering such other matters 'as the' Council, the Agent Bank or the Trustee may reasonablyr' request; IV-2 y� 89--4f�i�;r (j) A certificate (which may be combined with the certificate provided pursuant to subsection (e) hereof) of an Authorized Representative of the Public Agency to the effect that any indebtedness to be refinanced or any amounts to be reimbursed with the proceeds of the Loan were initially incurred by the Public Agency, and the proceeds of such indebtedness were fully expended to finance the Project and the principal amount of the Loan does not exceed the historical cost of the Project less accumulated depreciations (k) In the case of a refinancing of debt with amounts advanced hereunder, evidence satisfactory to the Trustee and Bond Counsel that the interest on such debt (including any debt which was refinanced by the debt then being refinanced) was not exempt from federal income taxation unless the written opinion of Bond Counsel is obtained that the use of the Loan proceeds -' in whole or in part to refinance such debt is a proper ! use of such moneys, and then only to the extent of any principal amount remaining due thereunder and any pre- payment premiums (1) Such certificates, documents and information, if any, required to be submitted pursuant to Exhibit J attached hereto and, if a disbursement is then being requested, Section 4.04 hereof; (m) A copy of the Interlocal Agreement executed by the Public Agency certified by the Clerk or similar official of the Court in which the same is required to be filed; - (n) A certificate of the members of the: governing - body of the Public Agency in form and substance sub- stantially identical to Exhibit P to this Participation: Agreement; (o) ;A certificate signed by an Authorized Repre- sentative'of the Public'Agency.in form and substance -substantially identical to Exhibit Q to this Participa- tion Agreement (with appropriate attachments); (p) An opinion (addressed to, and in substance acceptable.to the Agent Bank) of.Bond Counsel to the effect that the covenant to budget and appropriate is legal, valid and enforceable against the_Public.Agency in a court of competent jurisdiction and that the..granting IV-3 Ll -n- f t. 'a by the Public Agency of a pledge of any revenues here- under does not alter such opinion; (q) A certificate signed by the Authorized Repre- sentative of the Public Agency certifying either (i) — that the Department of insurance has approved the Pro- ject, with a copy of such approval to be attached to the certificate, or (ii) that the Project is a "capital project" funded pursuant to Section 163.01(7)(d), and therefore such approval is not required; and ` (r) Such other certificates, documents, opinions — and information as the Council, the Administrator, the `T Agent Bank, the Trustee or Bond Counsel may require. All opinions and certificates shall be dated the date of the Closing. Section 4.04 Submissions Prior to Disbursements. Upon receipt of a Request for D s ursements, and so long as no Event of Default or condition, event or act which with notice or lapse of time or both would constitute such an Event of Default shall have occurred and be continuing and the conditions set forth in Article VI of the Indenture.have been satisfied, the Trustee shall disburse the amounts, if any, then held in the Loan Fund (i) to the holder of any Existing Debt of the Public Agency being refinanced by the Advance, including any premium or prepayment penalty agreed upon by such holder and the Public Agency and approved by the Administrator, Bond Counsel and the Agent Bank, provided that the proceeds of a disbursement may only be used to retire debt or a portion thereof which was incurred to finance the cost of the Project, in an amount equal to the portion of the cost of acquisition and installation of such Project, including the cost of construction and renovation =_ necessary to such installation, to be financed by the Advance. and/or (ii) to parties that have rendered services in conned- - tion with the.Project, as long as such rendered services i shall constitute cost of the Project and/or (iii) in the case of`a reimbursement, to the Public Agency an amount equal to the historical cost of the Project less accumulated depre- ciation, provided,.however, in no event shall the aggregate amount disbursed hereunder exceed the amounts approved by the Agent Bank: Each Request for Disbursement shall also. —; state that all of the warranties and representations of the Public Agency contained in this Participation Agreement are true and correct as of the date of such certificate as though such warranties and representations were made on such date and that no Event of Default or condition, event or act which with notice or lapse of time or both would constitute such IV-4 E 1 89-4+61 =rx mom an Event of Default has occurred hereunder (or would occur as an effect of such disbursement) as of such date. In addi- tion, the Trustee shall also require: (a) a letter from the Administrator or other evi- dence satisfactory to the Trustee, to the effect that the Administrator has approved the requested disburse- } sent; (b) a bill or bills of sale, invoice or invoices, contract or contracts, purchase order or purchase orders or other evidence satisfactory to the Trustee, the Administrator and Bond Counsel that the Project (or portion thereof to be financed) has been purchased, ordered, constructed or installed by the Public Agency and the payment therefor is due and owing or has been paid; and for any debt being refinanced, the cancelled note or other financing document or other evidence satisfactory to the Administrator, the Trustee and Bond Counsel of such refinancing; (c) certification by an Authorized Representative of the Public Agency that the documents and/or certifi- cates required in Section 4.03(a), (c) and (e) hereof at the Closing are correct and valid as of the date of the disbursement or, in the event one or more is no longer current and valid, submission of such document or certificate satisfactory to the Administrator and the Agent Bank (and, in the case of (e), Bond Counsel) current and valid as of the date of the disbursement; (d) a certificate of an Authorized Representative of the Public Agency or Public Agency's Accountant describ- ing the Project and setting out all necessary information - concerning the useful life expectancy thereof (or to the components of the Project if the components will be listed separately on the Public Agency's depreciation schedule); (e) the certificates, documents or other informa- tion required to be submitted pursuant to Exhibit J attached hereto and Section 4.05 hereof, if applicable; y.4 (f) telephonic notice, promptly confirmed in writ- •ing, from the Administrator to the Trustee, seven days prior to the date of the requested disbursement, list- ing the amount of the disbursement and the date the disbursement is scheduled for; and IV-5 7F77""' .�. .yy tf) such other documents, certificates and other information as the Administrator, the Trustee, the Agent Bank or Bond Counsel may require. All opinions and certificates shall be dated the date of the disbursement for which they were requested. section 4.05 Pinancing, of Construction Projects. In the event the Public Agency degiris to use all or a por- ti6n of its Loan to finance a construction project it shall provide the items specified in any exhibit attached hereto nd tweet all other requirements specified therein. (End of Article IV) „s a _ : b IV-6 y t- a .t. .. «4k dk L-A ARTICLE V LOAN REPAYMENTS Section 5.01 Payment of Loan Rea ents. (a) The Public Agency shall make all Loan Repayments, Additional Payments and other payments due hereunder in lawful money of the United States of America and in immediately available funds to the Trustee (or, if this Participation Agreement shall be assigned pursuant to Section 5.15 of the Indenture, to such Person as the Agent Bank or the issuer of the Public Agency Letter of Credit, as the case may be, may direct) not later than 12:00 Noon, Orlando. Florida, time on the date when due. The principal of the Loan shall be repaid in accordance with the Principal Amortization Schedule and such schedule shall be calculated over the life of the Loan so as to approximate level monthly debt service at an assumed fixed interest rate of 7t per annum (provided that such payments shall be recalculated on the date of each prepayment in part pursuant to Article VIII hereof by the Trustee preparing and delivering to the Public Agency, and attaching hereto a new Principal Amortization Schedule), payable quarterly in arrears commencing on July 1, 1989, with the final install- ment being payable on the date set forth in the Principal Amortization Schedule but in no event later than December 1, 1995, in an amount equal to the full amount then outstanding under the Loan. The Public Agency may adopt an alternative method of calculating the Principal Amortization Schedule` with the consent of the Agent Bank. A b) The Public Agency agrees to pay 'interest ''on the unpaid principal amount of the Loan calculated,_ for each Loan Payment Period, at the applicable Loan Rate determined in accordance with Section 5.02 hereof`. Interest shall be payable in `arrears on the first'Husiness Day of each month, k commencing on the first such date to occur after the Advance hereunder. On the `25th day of 'each month (or, if such day is not'a'Business Day, the next preceding Business Day to such 25th day), the Trustee shall use its,best efforts to inform the Public Agency by,telephone; confirmed'in writing, _ of the ,total 'amount 'of interest :and Additional Payments 'due under Section-5.03 which shall`be payable by the Public' Agency on the first Business Day of the next'succee-ding month. It is understood that the Trustee in making'such calculation may be required to estimate the effective Loan Rate and the amount of such Additional-Payments,to'accrue or become payable during the balance of the "Loan Payment Period during which such calculation is made: Accordingly, it -'is'. Vl-1 '7 �P y hereby agreed that the Trustee# in the event it determines that the Public Agency has paid too little or too much interest and Additional Payments with respect to any Loan Payment Period# shall either decrease or increase as the case may be, the amount of interest and Additional Payments to be payable for the next succeeding Loan Payment Period to fully compensate for such discrepancy; provided that if no further interest payments are due hereunder such adjustment shall be made by a payment byr or a refund to the Public .agency within 10 days of the final interest payment. (c) Overdue principal andr to the extent permitted by lawn overdue interest on the Loan shall bear interest, payable on demand, from the date such payment is due (the "Default Date") until paid at the Default Rate. (d) The Public Agency agrees to pay all Additional Payments owing pursuant to Section 5.03 hereof and any amount payable pursuant to Section 5.04 hereof; provided that Addi- tional Payments accrued pursuant to Section 5.03(a) (with respect to the Tender Agent) and Section 5.03(d)(2), and any Capital Loss occurring, after the date of any conversion of this Participation Agreement in full to a Correlative Partici- pation Agreement shall not be payable by the Public Agency. (e) Any payment made by the Public Agency pursuant to this Section 5.01 shall be credited against+the Public Agency obligations under this Section on the date of deposit with the Trustee if such deposit is made prior to 12:00 Noon, Orlando, Florida, time, and if after 12:00 Noon, shall be so credited on the next succeeding Business Day. Section 5.02 Calculation of Loan Rate. Subject to (E)r (F) and (G) below, the Loan Rate for each Loan Pay- ment Period will be a rate which (i) prior to the Parity Date produces an amount of interest equal to the amount - stated in subparagraph (A) below; and (ii) at and after the ' Parity Date produces, an amount of interestequal to the amount stated in subparagraph (A) below, less the amount n -' stated in subparagraph (B) belowa _ _ (A) The Public Agency's Pro Rata Share of the interest to accrue on the Bonds, interest to accrue on any Bank Bonds at the Credit Agreement Rate, and any interest owed to the Agent Bank pursuant to Section 1.02 of the Credit Agreement for that`Loan Payment Period, plus (s) in the case of the amounts described in (i) through (viii) (inclusive), 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 { V-2 8974611 than annual) and (y) in the case of the amounts described in (ix), (x) and (xi)# 100%v of the Public Agency's Pro Rata Share of the following fees ("Ongoing,,Expenses") relating to the Bonds and the Bond Program: (i) the annual fees of the Administrator owed to it under the Administration Agreement; (ii) the annual fees of the Trustee owed to it under the Indenture; (iii) the annual fees of the Tender Agent; (iv) the commitment commission of the Agent = Bank owed to it under Section 3.01(a) of the Credit Agreement; '- (v) the annual fees and amounts due to the Remarketing Agent owed to it under the Remar- keting Agreement; — (vi) the annual fees of the Council, if any; (vii) the rating fees of Moody's Investors Service and any other rating agency then rating the Bonds; (viii) the agency fees due to the Agent — Bank; (ix) any amount needed to be deposited, into (A) the Revenue Fund (as defined in the,.Inden- ture) due to the investment earnings on the±Debt.. ..Service Reserve .Fund being less..than,the interest .andOngoing Expenses attributable to.Bonds equal . to.the amount on deposit in.the Debt Service Reserve Fund for such payment period and (B) the _ Debt Service Reserve Fund to cure any,deficiency "= therein attributable neither to a Capital Loss`.nor toa defaultbyany:Participating.Public.Agency- (other than the Public Agency) under its, -respec- tive Participation Agreement;. (Y) the amount .of any usage fee payable to the Agent,Bank pursuant to Section-3.01(b) of the Credit Agreement for such payment period; and,.' V-3 7 yo,/ 89�464., { (xi) such other reasonable fees and expenses in connection with the Sonds including any expense related to the Credit Agreement as the Trustee, with the written approval of the Administrator and the Agent Rank, may determine. (B) After June 1, 1989, the Public Agency's Pro Rata Share of amounts transferred to the Interest Account of the Reven»p- Pond pursuant to Section 5.10(1) of the Indenture (but subject to the last paragraph of said Section 5.10), but only if and to the extent such amounts are not needed to pay or accrue the amounts listed in subparagraph (A) above or Section 5.03. (C) If a Loan is not made on the first day of a Loan Payment Period, the Loan Rate for the first payment period shall be calculated by taking into account only amounts to accrue under (A) and (B) above for the re- mainder of the Loan Payment Period. (D) The Public Agency recognizes that in the event Bank Bonds are at any time outstanding the inter- est rate on those Bonds will be the Credit Agreement Rate which will result in an increase in the amount of its Loan Repayments. (E) If the Public Agency chooses to convert this Participation Agreement to a Correlative Participation Agreement, the Public Agency agrees and consents that (x) it shall pay interest at a rate sufficient to pay interest on the related Correlative Bonds and Ongoing Expenses with respect to its Correlative Loan, except if the Loan shall be converted .in full, those under Sections 5.02(A)(iii), (iv) (except to the extent such Correlative Bonds are entitled to the benefit of the Letter of Credit), (v), (ix) and (x) (except to the extent such Correlative Bonds are entitled to the bene- fit of the Letter of Credit), (y) the amount of the Loan of the Public Agency shall be deemed to be imme- diately increased by the amount of the portion of the Debt Service Reserve Fund segregated to support the Correlative Bonds and (z) it will execute such amend- ments to this Participation Agreement and deliver such documents and pay such premium as may be necessary.to convert this Participation Agreement to a Correlative Participation Agreement and, in addition, the Public Agency agrees to pay all costs and expenses relating to the conversion including legal fees and remarketing fees. V-4 _Y 9 (F) Notwithstanding the foregoing, if (i) the acceleration of the Loan is declared pursuant to Section 10.03 hereof, or (ii) the interest of the Trustee in this Participation Agreement and the Collateral Docu- ments are assigned to the Agent Bank or as it may direct, interest shall at all times thereafter be j payable at the Default Rate; (G) If any principal on the Loan is outstanding during a portion of a month, the interest on the Loan will be calculated on the actual days such principal was outstanding and (i) the interest on the Loan shall be prorated on the rates on the Bonds for the actual days outstanding and (ii) amounts due hereunder with respect to Ongoing Expenses under Section 5.02 and earnings on funds held under the Indenture will be determined on the assumption that such Ongoing Expenses and earnings accrue at a constant rate throughout the month. (8) The Public Agency agrees to make all payments whatsoever necessary to enable the Trustee to make, in a timely manner, the Public Agency's Pro Rata Share of all payments of principal.of, premium, if any, and interest on the Bonds (or to reimburse the Agent Bank for such payment), when and as required in accordance with the terms of the Indenture (whether at maturity, or upon redemption, acceleration or otherwise), whether or not such payments are specifically referred to in this Participation Agreement and further agrees to abide by the terms of its Loan Reservation Fee Agree- ment. (I) On or before June 15, 1989, there shall be rebated -to the Public Agency the "Pro Rata.Share" of the amounts transferred to the Interest Account pursuant to Section 5.10(1) of the Indenture. Section 5.03 Payment of Additional Payments. In addition to the payments due under Section 5.02. ut without duplication of amounts included in the computation.of the Loan Rate, the Public Agency agrees to pay to,the:Trustee on each interest payment -date on demand of the -Administrator -or the Trustee the following Additional Payments (except that the payee of any Additional Payments.related to.the execution and delivery hereof or the making of an Advance may require payment at Closing): v-5 11150 89--461 i 1 (a) The Public Agency's Pro Rata Share (as defined in subsection (e) hereof) of all fees and expenses (including attorneys' fees) of the Trustee and Tender Agent and any registrar, authenticating agent or trans- fer agent for the Bonds not included in its regular annual fees; _i (b) The Public Agency's Pro Rata Share of all { amounts owed to the Agent Bank under the Credit Agreement i (including attorneys' fees) other than amounts included in the computation of the Loan Rate or received by the Agent Bank pursuant to Section 2.02(j); (c) All reasonable fees and expenses of the Council, the Administrator, and the Trustee relating to this Participation Agreement, including, but not limited q to. (1) all reasonable costs incurred in connec- tion with the preparation, execution and delivery of this Participation Agreement and the Collateral { Documents including related filing or recording fees and insurance premiums; (2) the reasonable fees and disbursements of counsel and other experts or consultants utilized by the Council, the Administrator, and the Trustee in connection with the Loan, any disbursement, — this Participation Agreement and the Collateral -3 Documents and the enforcement thereof; (3) all other out-of-pocket expenses of the. # Trustee, the Council, and the Administrator<in connectionwith the Loan, this Participation Agreement and the Collateral Documents and the administration, _ modification or enforcement thereof;.and (4) all taxes and other governmental charges i in connection with the execution and delivery of this Participation Agreementand the Collateral,.:=. Documents, whether-or.not the,Loan,is then out- standing, including all recording and filingfees and stamp taxes.relating,to the..Collateral Docu- -.; ments,. the pledge of revenues hereunder.and=the �j assignment of the Council's right, title and 1 interest in and to the Collateral Documents and this Participation Agreement pursuant to the Inden- ture and all expenses, including attorneys' fees.' relating to any amendments, waivers, consents;or- i f t' c Y—i 89-461 � ( f: collection or enforcement proceedings pursuant to the provisions hereof and thereof; (d) The Public Agency's Pro Rata Share of all of the followings (1) amounts owed by the Council under the Indenture with respect to any indemnification obligations to the Trustee; and (2) amounts owed by the Council under the Remarketing Agreement with respect to any indem- nification obligations to the Remarketing Agent. (e) For the general purposes of Sections 5.02, 5.03 and 5.04 hereof, except as hereinafter provided. "Pro Rata Share" or "Pro Rata Shares" of any amount shall be determined by multiplying such amount by a fraction the numerator of which shall be the outstanding principal amount of the Public Agency's Loan and the denominator of which shall be the outstanding principal amount of all Loans (as defined in the Indenture) made by the Council under the Indenture which have not been assigned by the Trustee to the Agent Bank or the issuer of a Public Agency Letter of Credit pursuant to Section 5.16 of the Indenture, plus the amount then on deposit in the Loan Fund, provided that, for purposes of cal- culating the "Pro Rata Share" of amounts under Section 5.02(A)(ix), Section 5.02(B) and Section 5.04, there - shall be excluded from the denominator the amount then on.deposit in the Loan Fund. The foregoing notwith- standing, in connection with a calculation of the Public Agency's Pro Rata Share of ongoing Letter of Credit Fees, such fee shall be calculated assuming such fees accrue at 45 basis points (.45%) per year. In addition, any fee.or expense specifically attributable to a par- ticular participating Public Agency and shall ,not be calculated on a pro rata basis. The Public Agency agrees to pay interest at a rate per annum;equal to three percent,(3%) in excess of the.float- ing-,Base Rate (computed on the basis of actual days elapsed and a 360-day year)-on.any Additional.Payments under this Section 5.03 not received=by the Council or the Trustee when due,and payable. The Public.Agency further agrees to make all pay- ments whatsoever necessary to enable the Trustee to make, in A timelY manner the Public Agency's Pro Rata Share of all = Additional Payments and other similar costs of the Bond Pro- gram when and as required in accordance with the terms of the Indenture (whether at maturity, or upon redemption, acceleration or otherwise), whether or not the same are specifically referred to in this Participation Agreement. Section 5.04 Capital Losses. If, after June 1, 1989, any report furnished to the Council, the Administrator and the Agent Bank pursuant to Section 5.12 of the Indenture shall indicate a principal investment loss with respect to funds deposited in the Debt Service Reserve Fund (each a "Capital Loss"), the Public Agency (upon notification by the Trustee given at the direction of the Agent Bank) agrees to pay its Pro Rata Share of said Capital Loss in equal monthly installments during the twelve-month period following the occurrence of such Capital Loss (subject to acceleration as hereinafter provided), payable on each date interest is due with respect to the Loan hereunder; provided that the Public Agency's liability under this Section 5.04 with respect to any Capital Loss (i) shall not exceed 15% of the amount of the Loan made or approved pursuant to Section 3.01 to be made hereunder and (ii) shall be decreased by any amounts transferred from the Earnings Fund to the Debt Service Reserve Fund pursuant to Section 5.10(a) of the Indenture after the Parity Date, such decrease to be applied equally to the re- maining installments payable by the Public Agency due to such Capital Loss. The failure of the Trustee to notify the Public Agency with respect to any Capital Loss shall not waive or otherwise limit the ability of the Trustee to notify and require reimbursement from the Public Agency for such (and any additional) Capital Loss at a later date. Amounts due under this Section 5.04 which are not received by the Trustee within ten (10) working days of the — date when due shall bear interest at a rate per annum equal to three percent (3%) in excess of the floatinq Base Rate (computed on the basis of actual days elapsed and a 360 day year). Section 5.05 Cure Payments. It is hereby agreed that. the Agent Bank, may (Vut shall not be obligated to) make payments by or on behalf of the Public Agency hereunder. The Public Agency agrees to repay directly to such Bank any amount advanced on its behalf on demand, together with interest thereon, also payable on demand, at a rate per ! annum equal to three percent (3%) in excess of the floating Base Rate (computed on the basis of actual days elapsed and 360 day year). The provisions of this Section 5.05 shall survive the repayment of the Loan. V-8 89•-461. �;r I'll Section 5.06 Yield Restrictions. Notwithstanding anything to the contrary contained ere n, the "yield" on the Loan computed in accordance with Section 103 of the Code or successor provisions of law shall in no event exceed the "yield" on the Bonds (as so computed and adjusted in accor- dance with the succeeding sentence) by more than 150 basis points per annum. In computing "yield" on the Bonds, amounts payable under the Bond Program with respect to the items listed in Section 5.02(A)(iii)t (iv), (v) and (x) shall be taken into account. In the event the Bonds should ever con- stitute more than one "issue" (other than by reason of Corre- lative Bonds becoming outstanding under the Indenture) for purposes of Section 103 of the Code, the Loan hereunder shall thereupon be deemed for all purposes to represent several loans and the computation of yield, Loan Rates and Additional Payments shall be separately computed to reflect the periods of time, respective principal amounts and yield on each of the separate "issues" of Bonds. Section 5.07 Loan Repayments. The obligation of the Public Agency to make Loan Repayments and any other pay- ment required by this Article V and 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 Partici- pation Agreement. Notwithstanding any dispute between the Public Agency and the Council, the Trustee, the Agent Hank, the Administrator or any Bondholder, the Public Agency shall pay Loan Repayments and such other payment when due and shall not withhold any Loan Repayments or any other payments pay- able hereunder pending final resolution of such dispute nor shall the Public Agency assert any right of setoff or coun- terclaim against its obligation to make such payments required under this Participation Agreement. The Public Agency's obligation to make payment of Loan Repayment or any other payments due shall not be abated through accident or unfore- seen circumstances or because of payment (i) under the Public Agency Letter of Credit securing the Loan, if any, or by the Agent Bank on its behalf or (ii),from its Allocable Share of _ the Debt Service Reserve Fund. The Council and the Public Agency agree that the Public Agency shall bear all risk of damage or destruction in whole or in part to the 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 Public Agency with any of the terms of this Participa- tion Agreement. Notwithstanding the foregoing, this Section V-9 &�V 5.01 shall not limit the rights of the Public Agency to re- cover amounts owing to it, except as specifically set forth herein. Section 5.08. Refunding Bonds. In the event the Bonds are refunded, all references in this Participation Agreement to Bonds shall be deemed to refer to the refunding bonds or, in the case of a crossover refunding, to the Bonds and the refunding bonds (but the Public Agency shall never ba responsible for any debt service on or fees relating to crossover refunding bonds which are covered by earnings on the escrow fund established from the proceeds of such bonds). Section 5.09 Conversion to a Fixed Interest Rate. The Public Agency may, w th Me prior written consent of the Agent Bank, elect to convert all or a portion of the Loan to a Correlative Loan in accordance with the terms hereof pro- vided that the conditions for converting the interest rate on a portion of the Bonds to a Fixed Interest Rate pursuant ` to Section 2.14 of the Indenture are satisfied. Unless otherwise approved by the Remarketing Agent in writing, the Public Agency may only elect to convert if the outstanding principal amount of the Bonds that would be converted is equal to or greater than $5,000,000. If the Public Agency should elect to convert, it shall give the Council, the Trustee, the Administrator and the Agent Bank written notice of such desire which, unless otherwise agreed to in writing by the Trustee, the Administrator, the Agent Bank and the Remarketing Agent shall be not sooner than ninety (90) days and not later than sixty (60) days prior to the desired conversion date. Upon receipt of such notice, the satisfaction of the condi- tions set forth herein and in Section 2.14 of the Indenture for converting the interest rate on the Correlative Bonds to a Fixed Interest Rate and the preparation and execution (at the expense of the Public Agency) of a supplement to this Participation Agreement and the Indenture revising such pro- visions herein and therein as the Council, Trustee, Bond — Counsel, Administrator and Agent Bank consider necessary, the portion of the Loan.so converted shall be a Correlative Loan for the purposes hereof and of the Indenture subsequent to the Conversion Date (as defined in the Indenture) of the Correlative Bonds. Section 5.10. Maximum Legal Interest Rate. The Council and the Public Agency acknowledge that it s their intent to contract hereunder in strict compliance with the usury laws of the State governing this Participation Agree- ment. In furtherance thereof, the Council and the Public Agency stipulate and agree to the extent permitted by law that none of the terms and provisions contained herein or V-10 under any instruments held as security hereunder, shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest permitted to be charged by the laws of the State governinq of this Participa- tion Agreement (the "Maximum Lawful Rate"). In furtherance of the foregoing, if the payment of amounts constituting interest under the laws of the State for any interest payment period ending on any interest payment date calculated in accordance with the provisions of the Participation Agreement (the "Calculated Interest") exceeds the amount of interest that would be payable for such interest payment period had interest for such interest payment period been calculated at the Maximum Lawful Rate, then the Public Agency shall pay on such interest payment date an amount of interest calculated on the basis of the Maximum Lawful Rate for such interest payment period. If on any subsequent interest payment date the Calculated Interest for the interest payment period ending on such subsequent interest payment date (the "Current Interest Period") is less than the amount of interest that would be payable for such Current Interest Period had inter- est for such Current Interest Period been calculated on the basis of the Maximum Lawful Rate and any portion of the excess (if any) of Calculated Interest for any prior interest payment period over interest calculated at the Maximum Lawful Rate for such prior interest payment period (the "Outstanding Interest Amount") remains unpaid, then on such subsequent interest payment date, the Public Agency shall pay, as pro- vided herein, additional interest for such Current Interest Period in an amount equal to the lesser of (i) the Outstand- ing Interest Amount for all prior interest payment periods and (ii) an amount that, when added to the amount of Cal- culated Interest payable for such Current Interest Period, results in the payment of interest for such Current Interest Period at the maximum Lawful Rate. If, notwithstanding the foregoing, a court of competent jurisdiction shall make a final determination that any payments made hereunder have resulted in a payment of an amount for the use, forbearance or detention of money in excess of the Maximum Lawful Rate, then any such excess amounts theretofore received by the Council or its assignees shall be deemed to have been a pre- payment of a like principal amount of said Loan. [End of Article V] ARTICLE VI STATUS OF OBLIGATIONS Anything in this Participation Agreement to the contrary notwithstanding it is understood and agreed that the ad valorem taxing power of the Public Agency has not been pledged to secure the obligations of the Public Agency hereunder; provided, however, that nothing herein contained shall limit, restrict or impair the lien on the revenues and other properties provided herein or in the Collateral Documents or the rights of the Council, the Trustee or the Agent Bank to accelerate the maturity of the Loan pursuant to the terms hereof, to bring suit and obtain a judgment against the Public Agency (collectible from sources provided hereunder and under the Collateral Documents or otherwise legally available therefor) or to exercise all rights and remedies provided under this Participation Agreement and the Collateral (Documents. (End of Article VIj ARTICLE VII DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES Section 7.01 Disclaimer of Warranties. NEITHER THE COUNCIL, THE TRUSTEE, THE AGENT BANK, THE TENDER AGENT, THE REMARKETING AGENT NOR THE ADMINISTRATOR MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE PROJECT OR ANY PORTION THEREOF OR ANY WARRANTY WITH RESPECT THERETO. In no event shall the Council, the Agent Hank, the Administrator, the Tender Agent, the Remarketing Agent or the Trustee be liable for any incidental, indirect, special or consequential damage in connection with or arising out of the existence, furnishing, functioning or the Public Agency's use of the Project or any item or products or services provided for in this Participation Agreement. Neither the Council, the Trustee, the Agent Hank, the Tender Agent or the Remarketing Agent nor the Administrator makes any representation or warranty, express or implied, that the proceeds of the Loan or the Loan Fund will be sufficient or available to pay in full the costs of the Project (as specified in Exhibit A). Section 7.02 Warranties. The Public Agency's sole remedy for the breech o any warranty, right of indem- nification or representation relating to the Project or any part thereof shall be against the vendors, manufacturers, installers or construction contractors of the Project, and not against the Council, the Trustee, the Agent Bank,:the Administrator, the Tender Agent, the Remarketing Agent or any Bondholder, nor shall such matter have any effect what- soever on the rights and obligations of the Public Agency or the Council, the Trustee or,the Agent -Bank with respect to this Participation Agreement. The Public Agency expressly acknowledges that neither the Council, the Trustee, the Agent Bank, the Tender Agent or the Remarketing Agent nor the Admini strator makes, or has made, any representation or warranties whatsoever as to the existence or availability of any such warranties of such vendors, manufacturers, installers and I' construction contractors. ARTICLE VIII PREPAYMENTS Section 8.01 Optional Prepayment, At the option of the Public Agency and after giving a east 30 days' written notice by certified or registered mail to the Admini- strator, the Council, the Agent Bank and the Trustee, the Public Agency may, at its option, prepay the Loan in whole< or, so long as the Public Agency is not in default hereunder (unless waived by the Agent Bank), in part in integral prin- cipal multiples of $100,000, on any date, not less than 30 x and not more than 180 days from the receipt of such notice. Such prepayment shall be effected by the Public Agency paying the Optional Prepayment Price with respect to the amounts to i be prepaid. After any partial prepayment the Trustee shall recalculate principal installments due under this Participa- tion Agreement, assuming substantially level debt service'- payments and a 7% interest rate and attach hereto, and deli- y ver to the Agent Bank and the Public Agency, a new Principal Amortization schedule reflecting such recalculation. On ,I such date as the Optional Prepayment Price shall constitute Available Moneys (or such earlier date if directed by the Agent Bank after g ) a prepayment in whole, this Participation -t Agreement shall terminate, except for the obligations and —i covenants expressed herein to survive. i Notwithstanding any provision of this Participation Agreement to the contrary, to the extent that payment of the Public Agency's Pro Rata Share of its Loan Repayments, including amounts owed under Section 5.10, is not made pur- suant to the provisions hereof, the Public Agency's obliga- tions hereunder shall not cease and terminate until such amount has been paid in full by the Public Agency. The Loan may not be prepaid in full if for any reason, including inability to determine reinvestment rates, the Optional Prepayment Price cannot be determined by the Trustee. In the event of a prepayment which is not to be immediately applied with respect to the redemption of Bonds, the Trustee (so long as no Event of Default shall then be _ continuing hereunder) shall remit to the Public Agency on = the date of final application thereof an amount equal to (i) a- the average investment return earned by the Bond Program during the period from prepayment to application times (ii) _—, the dollar amount so prepaid and not yet applied less any amount which should have been included, but was omitted, in _{ VIII-1 89-461 t 4 1 Y t J i VIII-2 ,g :{ s I3 { ARTICLE IX A§SIGNMENT AND PAYMENT BY THIRD PARTIES Section 9.01 Assignment by Council. (a) This Participation Agreement, the Collateral Documents and the obligations of the Public Agency to make payments hereunder and thereunder and any security therefor# 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 Public Agency. The Public Agency expressly acknowledges that this Partici- pation Agreement, the Collateral Documents and the obligations of the Public Agency to make payments here- under (with the exception of certain of the Council's rights to reimbursement for certain costs under Section 2.02(1) hereof), have been pledged and assigned (i) to the Trustee under the Indenture as security for the Bonds and the obligations of the Council to the Agent Bank under the Credit Agreement, and (ii) to the Agent Bank as security for the obligations of the Council under the Credit Agreement, and that the Trustee (or the Agent Bank as assignee of the Trustee) shall be entitled to act hereunder and under the Collateral Documents in the place and stead of the Council whether or not the Bonds or this Participation Agreement are in default. In addition, the Public Agency acknowledges that the Council has appointed an Administrator which shall be entitled to act hereunder in the place and stead of the Council but only to the extent of such appointment. (b) Pursuant to the Indenture, the Council has agreed that, following the occurrence of an Event of Default and the acceleration of the amounts due here- under, the Trustee, in accordance with Section 5.16 of the Indenture, will assign to the issuer of the Public Agency Letter of Credit or the Agent Bank (or the Ser- vicing Agent or otherwise as the Agent Bank may direct), as the case may be, the Council's and the Trustee's rights under the Collateral Documentsr the Public Agency 'Letter of Creditr if any, and this Participation Agree- ment to the extent and in accordance with said Section 5.16 of the Indenture. The Public Agency consents to any such assignment and agrees that all the rights and benefits of the Trustee and the Council hereunder shall inure to the benefit ofr and be enforceable byr any IX-1 61 such assignee and that all payments hereunder shall be made directly to such assignee. Notwithstanding any other provisions hereof, the respective parties' rights of reimbursement created pursuant to Section 2.02(1) and 10,05 hereof and the right of the Trustee to collect unpaid amounts not payable to the assignee which are described in Section 5.03 hereof and which had accrued prior to the date of such assignment shall not ter- minate upon the assignment of this Participation Agreement and Collateral Documents pursuant to Section 5.16 of the Indenture and such rights shall be retained by the Trustee; provided that the Public Agency's obligation to pay any such amount shall be subordinated to the prior payment in full (in cash) of the Loan and interest thereon pursuant to Sec- tion 5.02.. Section 9.02 Assignment by Public Agency. This Participation Agreement may not be assigned y the Public Agency for any reason without the express prior written con- sent of the Council, the Agent Bank and the Trustee. Section 9.03 Payments _bXthe Issuer of a Public Agency Letter of Credit. The Public Agency acknowledges that payment under this Participation Agreement from funds (i) drawn by the Trustee on a Public Agency Letter of Credit, (ii) furnished by the Agent Bank or any of them under Section 5.05 or (iii) representing the Public Agency's Allocable Share of the Debt Service Reserve Fund do not constitute payment under this Participation Agreement for the purposes — „ hereof or fulfillment of its obligations hereunder. (End of Article IX) S IX-2 6C9- 89-461L'. Section 10.01 Events of Default Defined. The following shall be "Events Bf Default" under t s Participa- tion Agreement and the terms "Event of Default" and "Default" shall mean (except where the context clearly indicates otherwise)► whenever they are used in this Participation Agreement► any one or more of the following events: (a) Failure by the Public Agency to timely pay any Loan Repayment, so long as the Bonds are outstand- ing; or failure by the Public Agency to timely pay any other amount or other payment required to be paid here- under on the date on which it is due and payable; (b) Failure by the Public Agency to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Participa- tion Agreement, other than as referred to in Section 10.01(a) or 10.01(c), for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied► is given to the Public Agency by the Council, the Agent Bank, the Administrator or the Trustee, unless the Administrator, the Agent Bank and the Trustee shall agree in writing to an ex- tension 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 Council, the Bondholders, the Agent Bank, or the Trustee, but cannot be cured within the applicable 30-day period, the Council, the. — Administrator, the Agent Bank and the Trustee will not unreasonably withhold their consent to an extension of - such time if corrective action is instituted by -the: Public. Agency within the applicable period and dili- gently pursued until the failure is corrected; ,v (c)- Failure by Public,Agency to observe and per- form any covenant contained in Exhibit E hereto;_' (d) Any warranty, representation`or other state •ment by the Public Agency.or by an,officer or agent of the Public Agency contained in this Participation Agreement or the Collateral Documents, or'in any instru- ment furnished in compliance with or in reference to this Participation Agreement or the Collateral Docu- ments, is false or misleading in -any material respect; X-1 (,3 h =t s -- (a) A petition is filed against the Pub Iit Ale*nay under: any bankrupteye rbarganieation, arratlgemerit; insolvency, foadjUetment of debt, dissolution Of liquid- ation.140 of`any jurisdiction# whether now or hereafter, in effect, *rid an corder for relief is entered +ot such petition is not dismissed within 30 days+ of such filing; (f) The Public Agency files a petition in volun- tary bankruptcy or seeking relief under any provision Of any bankruptcy,.reorganiration, arrangement, insol- vtncy', readiuriedictionpWhether ustment of debt,,. di&;,,nolution or liquidation law -of aty noW or hereafter in effect, or consents to. the filing'of any petition against 'it under such law; (9) The Public Agency admits insolvency or bank- ruptcy 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 s an assignment for the.benefit of creditors,. or a custo- dian (including without limitation a receiver, liquid- : ator or trustee). of the Public Agency or any of. its property is appointed,by court order or takes.possession' `.thereof d ch msineffect or - an such pos- -session cdntinues for more-than-60 dayss (h)` Default under any agreement to which the Public., -Agency is a party evidencing, securing or other- a yy g — wise respectinq 4ny indebtedness in- excess of l�I,000,000 if, .and as' a result `thereof, such ;indebtedness:.'m$y be declared.iimediately due and payable.or:other rtmsdiea. may,, be,.exercised with respect thereto, unless, the Puilit Agency` can demonstrate to the Agent;. Bank'$..'sat'is�Facai'on ... that ( iY such" default.. will not --materially ari& adversely affect the Public- Agency •s ability -to meet its commit mente under " the Indenture.: and, this, Part eipat,iont Agree ..:. ,. -' ment: and the: Collateral :�oauments or : i fi tt�e Pubiic ` ; Y �! ) Agency is' 441E entl and: in , food faith die utin 'such 9 Y 9 P.. g . , ciaix and 'has_, escrowed: funds sufficient" to pay the 'disc f puted amount solely for the payment thereof in the event the Public Agency,:is,adjudged in default,and the disputed sum due and owing;. t (i) The occurrence of an event of default under any of the Collateral Documents; (j) The occurrence of an event of default under the Indentures �� X-2 (k) Any material provision of this Participation Agreement; the Interlocal Agreement or the Collateral Documents shall at any time for any reason cease to be valid and binding on the Public Agency, or shall be declared to be null and void, or the validity or enforce- ability of any such provision shall be contested in any administrative or judicial proceeding by the Public Agency or any governmental agency or authority (other than the Council), or if the Public Agency shall deny the validity or enforceability of any such provision or any further liability or obligation under this Partici- pation Agreement, the Interlocal Agreement or the Collateral Documents; or (1) The Public Agency or the State shall take any action to terminate the continued legal existence of the Public Agency unless the obligations of the Public Agency hereunder are to be assumed by a successor or transferee Public Agency and such transferee or succes- sor is, in the reasonable judgment of the Agent Bank, equally credit -worth. Section 10.02 Notice of Default. The Public Agency agrees to give the Trustee, the Agent Bank, the Administrator and the Council prompt written notice if any petition, assignment, appointment or possession referred to in Section 10.01(e), 10.01(f) and 10.01(g) is filed by or against the Public Agency or of the occurrence of any other event or condition which constitutes an Event of Default, or an event or condition which, with the passage of time or the giving of notice or both would constitute an Event of Default, immediately upon becoming aware of the existence thereof. Section 10.03 Remedies on Default. Whenever any Event of Default referred to in Section 1 .Ol hereof shall have happened and be continuing, the Agent Bank, the;Council.. or the Trustee 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'auch remedies as provided in Section 5.16 and -Article X of the Indenture,'andr without limitation, the Trustee and the Council, at the direction of the Agent Bank or as other wise specifically provided in Section 5.16 of the Indenture, may do one or more of the following: (a) Declare all Loan Repayments, and all other amounts owing hereunder, to be immediately due and payable, and upon notice to the Public X-3 89-46, Agency the same shall become immediately due and payable by the Public Agency without further notice or demand. (b) Draw on the Public Agency Letter of Cre- dit, if any, held by the Trustee. (c) Require that one or more Public Agency Letters of Credit satisfactory to the Trustee and the Agent Bank be forthwith delivered to it. (d) Execute on any Collateral Document. (e) Take whatever other action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its or their rights hereunder and/or under the Collateral Docu- ments. Section 10.04 Right of Agent Bank to Direct Pro- ceedings. Anything in this Participation Agreement to the contrary notwithstanding, the Agent Bank shall have the right, at any time during the continuance of an Event of Default, by an instrument or instruments in writing executed and de- livered to the Trustee, to direct the time, method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Participa- tion Agreement and/or under the Collateral Documents; pro- vided that such direction shall not be otherwise than in accordance with the provisions of law and of this Participa- tion Agreement and/or under the Collateral Documents. Section 10.05 Attorneys' Fees and Other Expenses. The Public Agency shall, but only to the extent permitte y law, on demand pay to the Council, the Agent Bank, the Trustee and/or Administrator the reasonable fees and expenses of attorneys and other reasonable expenses incurred by any of them in collection of Loan Repayments or any other sums due hereunder or in the enforcement of performance of any other obligations of the Public Agency hereunder or under the Collateral Documents upon an Event of Default. The provisions of this Section 10.05 shall survive the termination and/or assignment of this Participation Agreement and the payment in full of the Public Agency's obligations hereunder. Section 10.06 Application of Moneys. Any moneys collected by the Council, the Trustee, the Agent Bank or the Administrator pursuant to Section 10.03 hereof shall be applied (a) first, to pay any attorneys' fees or other expenses owed X-4 (O 89-4 J ai.ur by the Public Agency to the Council, the Agent Bank, the Trustee and the Administrator pursuant to Section 10.05 hereof, pro rata based on the amount of such expenses owed, provided that fees of attorneys to the Council, the Trustee, and the Administrator shall not be payable hereunder unless the attorney for the Agent Bank shall decline within 10 days of a request to represent any or all of such parties as well as the Agent Bank, (b) second, to pay any additional interest assessments and any interest due on the Loan, (c) third, to pay principal due on the Loan, (d) fourth, to pay any other amounts due hereunder, and (e) fifth, to pay interest and principal on the Loan and other amounts payable hereunder but which are not due, as they become due (in the same order, as to amounts which come due simultaneously, as in (a) through (d) in this Section 10.05). Moneys obtained under (b) of Section 10.03 hereof shall not be used to pay amounts described in (a) of this Section 10.06. Section 10.07. No Remedy Exclusive• Waiver, Notice. No remedy herein conferred upon or reserved to the Council, the Agent Hank, the Trustee or the Administrator is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Participation Agreement and the Collateral Documents or now or hereafter existing at law or in equity. No delay or omission to exercise any right, remedy or power accruing upon any Default shall impair any such 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 Council, the Agent Sank, the Trustee or Administrator to exercise any remedy reserved to it in this Article X, it shall not be necessary to give any notice other than such notice as may be required in this Article X. (End of Article X) X-5 ARTICLE XI REBATE of EXCESS FUNDS Any amounts remaining in the Trust Estate after (a) full payment of the Bonds outstanding under the Indenture, (b) all amounts owed to the Agent Bank under the Credit Agreement have been paid and the Letter of Credit terminated and (c) all fees, charges and expenses listed in Section 5,08(1) through (1) of the Indenture have been paid, shall, after being held for 123 days after such full payment shall have been made and no claim shall have been made thereon and no Act of Bankruptcy with respect to the Council or any Participating Public Agency shall have occurred shall be distributed as provided in Section 8.11 of the Indenture. [End of Article XI) B ARTICLE XII MISCELLANEOUS Section 12.01 Certain_ Provisions Not Applicable. Provisions of this Participation Agreement which are listed in Exhibit L attached hereto shall not be applicable so long as the Public Agency maintains on deposit with the Trustee a Public Agency Letter of Credit, in form and amount approved by the Agent Bank. Section 12.02 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the parties at the following addresses: The Council: First Municipal Loan Council c/o Florida League of Cities 201 West Park Avenue Tallahassee, Florida 32301-1757 Attention: Executive Director The Public Agency: City of Miami Department of Off -Street Parking 190 N.E. Third Street Miami, Florida 33132 Attention: Director of Finance The Administrator: Florida League of Cities 201 West Park Avenue Tallahassee, Florida 32302-1757 Attention: Executive Director The Trustee: Sun Bank, National Association 225 East Robinson Street = Suite 350 P.O. Box 44 Orlando, FL 32802-6044 Attention: Trust Department The Agent Bank: The Sumitomo Bank, Limited New York Branch = One World Trade Center, Suite 9651 New York, New York 10048 Attention: Manager, Public Finance Department Telephone: (212) 553-0100 The kemarketing Agent: Shearson Lehman Hutton, Inc. World Trade Center Tower Two - 104th Floor New York, New York 10285 Attention: Municipal Short -Term Finance Desk 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 12.03 Binding Effect. To the extent pro- vided herein, this Participation Agreement shall be binding upon the Public Agency and the Council and shall inure to the benefit of the Public Agency# the Council, the Trustee and the Agent Bank and their respective successors and assigns. Section 12.04 Severabili y. In the event any provision of this Participation Agreement shall be held invalid or unenforceable by any court of competent jurisdic- tion, such holding shall not invalidate or render unenforce- able any other provision hereof. Section 12.05 Amendments Changes and Modifica- tions. This Participation Agreement may be amended y the Council and the Public Agency as provided in Article XIII of the Indenture; provided, however, that no such amendment shall be effective unless it shall have been consented to in writing by the Trustee and the Agent Bank. The Public Agency understands that this Participation Agreement may require amendment prior to its conversion to a Correlative Participa- tion Agreement pursuant to Article V hereof and/or Section 2.14 of the Indenture. Section 12.06 Execution in Counter arts. This Participation Agreement may be simu taneously executed in several counterparts# each of which shall be an original and all of which shall constitute but one and the same instru went. Section 12.07 Applicable Law. This Participation Agreement shall be governe y an- construed in accordance with the law of the State of Florida. Section 12.08 Benefit of__Bondholders,_the Agent Bank• Compliance with indenture. This Participation Agree- ment is executed in part to In uce the purchase by others of the Bonds and the issuance by the Agent Bank of the Letter of Credit (and the issuance by any other issuer of an Alter- nate Credit Facility). Accordingly, all covenants, agree- ments and representations on the part of the Public Agency and the Council, as set forth in this Participation Agree- ment, are hereby declared to be for the benefit of the holders from time to time of the Bonds and for the benefit of the Agent Bank (and the issuer of any Alternate Credit Facility). The Public Agency covenants and agrees to do all things within its power in order to comply with and fulfill and to enable the Council to comply with and fulfill all requirements and covenants of the Indenture. Section 12.09 Consents and Approvals. Whenever the written consent or approval- of the Council shall be required under the provisions of this Participation Agree- ment, such consent or approval may be given by an Authorized Representative of the Council or such other additional person provided by law or by rules, regulations or resolu- tions of the Council. Section 12.10 Immunity of Officers, Employees and Members of Council. No recourse shall e had for the payment of the principal of or premium or interest hereunder or for any claim based thereon or upon any representation, obliga- tion, covenant or agreement in this Participation Agreement or the Collateral Documents against any past, present or future officer, member, employee, director or agent of the Council, as such, or any successor public or private corpora- tion 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 condition of and consideration for the execution of this Participation Agree- ment and the Collateral Documents. Section 12.11 Captions. The captions or headings in this Participation Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Participation Agreement. Section 12.12 No Pecuniary Liability of Council. No provision, covenant, or agreement contained in t is Par- ticipation Agreement on behalf of the Council, or any obliga- tion herein imposed upon the Council, or the breach thereof', shall constitute an indebtedness or liability of the State XII-3 r or any political subdivision of the State (excluding the Participating Public Agencies to the extent of their obliga- tions under their respective Participation Agreements) or any public corporation or governmental agency existing under the laws thereof other than the Council solely out of the Trust Estate. In making the agreements, provisions and covenants set forth in this Participation Agreement, the Council has not obligated itself except with respect to the Trust Estate. Section 12.13 Payments Due on Saturda s, Sundays and Holidays. In any case where 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 Participation Agreement, shall be other than a Business Day, then such payment or performance shall be made on the succeeding Busi- ness Day with the same force and effect as if done on the nominal date provided in this Participation Agreement. _ Section 12.14 Right of Others to Perform Public Agency's Covenants. If the Public Agency shall faTr to make any payment or perform any act required to be performed here- under, then and in each such case the Council, the Trustee or the Banks, or any of them, may (but shall not be obligated to) remedy such default for the account of the Public Agency and make advances for that purpose. No such performance or advance shall operate to release the Public Agency from any such default and any sums so advanced by the Council, the Trustee or the Agent Bank shall bear interest from the date _ of the advance until repaid as provided herein. The Administra- tor, the Agent.Bank or the Trustee shall have the right to enter the Public Agency's premises in order to effectuate the purposes of this Section. Section 12.15 Termination of the Agent Bank's Rights. The Agent Bank agrees to execute such instruments terminating their interests under this Participation Agreement and/or assigning their rights, title and interests under this Participation Agreement as may be reasonably requested of them provided (i) they have been indefeasibly paid, or are satisfied in their uncontrolled discretion that they will be indefeasibly paid, all amounts then due and owing or which may thereafter become due and owing to them under this Participation Agreement, the Credit Agreement and the Indenture; and (ii) the Letter of Credit has been terminated. IN WITNESS WHEREOF, the Council has caused this Participation Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attested by its duly authorized officers and the Public Agency has caused 89--4f 1. this participation Agreement to be executed in its name with its seal hereunto affixed and attached by its duly authorised officers. All of the above occurred as of the date first above written. (SEAL) FIRST MUNICIPAL LOAN COUNCIL ,X By • Secretary Chairman V5 (SEAL) Attest: CITY OF MIAMIr FLORIDA By Title: By: Title: APPROVED AND DESIGNATED AS A LOAN THE SU14ITONO BANK, LIMITED NEW YORK BRANCH By: Title: 3D/MPS-PA X11-5 113 Rai ... [To Be Completed By public Agency) EXRIRIT A T9E--P1tOJECT _ [Description of Items Which the Public Agency is Pinancingj Date ACRE — 1. Acquired Item Description Classification Amount ; 5 {. 1 1+k .:F.y II. New Capital Projects — [include anticipated date of — completion and full description) t1' +fir' 7 y _ `t^;, 1. r.,' �.. .-. .. ••. .....W��►HC.Y'.' Y N�.wwn r� h Yi �tT �+�.p �l Ncapital I herebycertify that the above constitutes a proJect" Within the meaning of Section 163,01(7) that the Project e ons p and dates of completion are true and correct, and that with respect to the items listed in i. above the principal amount of the Loan disbursed for such items does not ekceed the historical cost of the items less accumulated depreciation. — CITY OF MIAMI r FLORIDA By : [SEAL] Title: Attest: By: Title: r�7 EXHIDIT B s SC �13U h _ OP 01 SSURSEUNTS Principal - - AMOUnts Disbursed Under Paid or Notation Date, � Participation Agreement ,Prepaid Madam t— a�C— .1. AV ty; 7VI Ip r SR x N k � k ¢ .lwn S i )d ' Y % 9 as >s:^ .� r L � y 2k.:y'v. •=7 ems'` EERIRIT C — t PONITTED , ENCUMBRANCES j a _ r 77 s l CS{Y e..ic ,f :F'.' sK i 1._ ,.. . -.l � .,�:. .+.,'• •: .- �'� �4 � �..':• ,. _< .,._ .. ._ .- .. �., . 1 �L'��:_.�.i„�+F.:-,..��.�I,�aY:i�-� 4t .. :F�?i tt c — r L ``xfir S< n r )i x �s r Hvxt. r �s - - 74.E ��-.t,."+..''.ri.'�"' . °.� .•a'l- -s:.i ."'1. %'. .' .:.x...'—'w.-... ,�.... _ .. :';.. r. ;'`:' •C � s a4+�% ry''a s�f' t��'' "��','�� — T ° rng g, i 41 Y � y k— i€,N EXHIBIT E CERTAIN COVENANTS AND REVENUE PLEDGE 1. Pled� a of Revenues. (a) The Public Agency yirrevocably y_�pledges grants to the Trustee, its hereby irrevocar successors and assigns (including any party to whom this Participation Agreement may be assigned pursuant to Section 5.16 of the Indenture) a lien on, and security interest in, the Pledged Revenues (as hereinafter defined), prior and superior to all other pledges, liens, security interests or other encumbrances on the Pledged Revenues now or hereafter in effect, for the full and timely payment of all amounts payable from time to time under this Participation Agreement (including, without limitation, all Loan Repayments and Additional Payments required to be paid hereunder). (b) In furtherance of the foregoing, the Public Agency agrees that, upon the request of the Agent Bank or the Trustee, which request may be given at any time after the occurrence of an Event of Default, all Pledged Revenues shall be deposited as received into a separate fund desig- nated as the "City of Miami Off -Street Parking Public Improve- ment Pledged Revenue Fund" (the "Pledged Revenue Fund") to be maintained at a commercial bank or other financial insti- tution reasonably acceptable to the Trustee and Agent Bank ("Authorized Depositary") which shall act as trustee of such funds for the purposes hereof. The Pledged Revenues held in the Pledged Revenue Fund on or after the twentieth day of each month shall be disposed of only in the following manner and in the following order of priority: (1) Pledged Revenues shall first be deposited into a separate fund created by the Public Agency (herein called the "Debt Service Fund"), and the following accounts, each on a parity with each other, shall be credited to the following identified sums: (x) Interest Account: the total amount of interest and Additional Payments due on the next interest pay- ment date. The moneys in the Interest Account shall be withdrawn and deposited with the Trustee on or before each inter- est payment date in an amount sufficient to pay the interest and Additional Pay- ments due on such date. (y) Principal Account: one- third of the principal portion of the Loan repayment next coming due under this Participation Agreement. The moneys on deposit in the Principal Account shall 79 be withdrawn and deposited with the Trus- tee on or before each principal maturity date in an amount sufficient to pay the principal maturing. (e) Reserve Account: an amount specified by the Agent Bank ("Reserve Requirement"). No further deposits shall be required to be made into the Reserve Account whenever the full Reserve Re- quirement shall be on deposit therein. Any withdrawals from the Reserve Account shall be subsequently restored from the first moneys available after all required payments from the Pledged Revenues (including all deficiencies in prior required payments therefrom) have been made in full. Moneys in the Reserve Account shall be used only for the purpose of paying Loan Repayments and Additional Payments when the other moneys in the Debt Service Fund are insufficient therefor, and for no other purpose. Whenever the amount on deposit in the Reserve Account exceeds the then current Reserve Requirement, the excess may be with- drawn from the Reserve Account and deposited in any account in the Debt Service Fund. (2) The balance of any moneys remaining after the above required payments have been made may be used for any lawful purpose. _ The Public Agency shall cause the Authorized Depositary to furnish to the Trustee and the Agent Bank, 7 within 25 days after the end of each calendar month, a report -j= setting forth all deposits and disbursements made with res- pect to the Pledged Revenue Fund during such calendar month. _ For the purposes hereof, the following terms shall have the following meanings. - "Pledged Revenues" shall mean a first lien on the proceeds of the revenues -of the Department of Off -Street -Parking payments ontheSeries 1986 Revenue Bonds have been made. "Pro'ected Debt Service" for any Fiscal Year until the date of maturity the Loan shall mean the sum of (i) the annual Loan Repayment of the Public Agency during such. Fiscal Year plus (ii) the annual debt service on the bonds or other debt obligations to be issued. 'If the principal - amount of the Loan is payable only at the maturity thereof - E-2 a bullet maturity), the Projected Debt Service with respect to the Loan shall be based upon an assumed substan- tially level Loan Repayment during the period ending fifteen (15) years from the date the Loan was made and the rate of interest on the Loan shall be assumed to be the average rate during the preceding twelve (12) months (or such shorter period during which the Loan has been outstanding). If the principal amount of the bonds or other debt obligations to be issued is payable only at the maturity thereof P Y Y Y (i.e., a bullet maturity), then the Projected Debt Service wi h res- pect to such obligations shall be based upon an assumed sub- stantially level debt service during the period ending fif- _ teen (15) years from the date such obligation was issued, — and the date of interest on such obligation shall be assumed — to be the Bond Buyer Municipal Bond Index rate. — � 2. Entitlement. [Intentionally omitted.] 3. Budget. The Public Agency will set up and appropriate in the annual annual budget for expenditure in each of its fiscal years during which this Participation Agreement shall be in effect or any amount shall be owing by the Public Agency hereunder from the Pledged Revenues sufficient amounts of such Pledged Revenues which will be sufficient to pay all amounts hereunder coming due in such fiscal year. Such covenant and agreement on the part of the Public Agency to budget and appropriate sufficient amounts of such Pledged Revenues in amounts sufficient to make all required payments shall continue until all payments required hereunder shall j have been actually paid in the manner herein provided. 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 Loan Payment Period (calculated on a monthly basis) ending i in May of such year, or (ii) such lower rate as may be approved in writing by the Agent Bank and filed with the Council and the Public Agency. If during any Loan Payment Period (calculated on a monthly basis) the Loan Rate (if continued until the end of the fiscal year) would cause the total remaining Loan Repay- ments to exceed the amounts budgeted for such purposes, the Public Agency covenants and agrees to analyze the estimated average Loan Rate for the next four (4) weeks, as such esti- mates shall be provided by the Trustee to the Public Agency. If by the end of such four -week period, the Loan Rate (if continued until the end of the fiscal year) would cause the E-3 MOM ..fir:... .. .. .v.�.•.. �t�c.«.. .�i._.« r...r.�: ..�.or :7.a s-s.... •...... _ti�1.a.�x.-.:.......is._ _:�:-.:• � ...�: ..a. .n ... s.:..-. _ . 5 d 89--461 0 total remaining Loan Repayments to exceed the amounts bud- geted for such purposes, the Public Agency will initiate all necessary procedures to amend its budget as may be limited by Section 2.02(q) of the Participation Agreement. The assumed interest rate used in such budget amendment will be based upon 120% of the highest Loan Rate during the past three Loan Payment Periods. 4. Reports. Together with the delivery of the annual financial statements of the Public Agency hereundere the Public Agency will furnish to the Trustee and the Agent Bank a report, in reasonable detail, certified by Accountants as to the amount of Pledged Revenues received by the Public Agency during the period covered by such financial statements. S. Additional Bonds. The Public Agency hereby covenants and agrees that it will not issue any bonds or incur any obligations secured in whole or in part by all or any of the Pledged Revenues unless (i) such bonds or obliga- tions are junior and subordinate in all respects to the obligations of the Public Agency hereunder, as to lien and source and security for payment or (ii) there shall be sub- mitted to the Trustee and the Agent Bank a certification by Accountants reasonably satisfactory to the Agent Bank that the Pledged Revenues available after such issuance or incur- rence (and after giving effect to the application thereof, if necessaryr to bonds and obligations secured in whole or in part by the Pledged Revenues on a parity with the Public Agency's obligations hereunder) shall equal or exceed, on an annual basis, 125% of the aggregate maximum Projected Debt Service in any year. Certified copies of such calculation together with the verification of the independent certified public accountant shall be delivered by the Public Agency to the Agent Bank (i) not less than ten (10) days prior to the issuance of the bonds or other debt obligations if such cal- culation show that the test described in clause (ii) has been satisfied or (ii) not less than thirty (30) days prior to the date of issuance of the bonds or other debt obligations if the consent of the Agent Bank is being requested or if the requirements of clause (i) are to be satisfied. E-4 89-461 i� .:.r .1.'.. a+..r.........r..�...r.:e.�.; nn:::.z+.s.r..sr.rn-.'�::.v..ta•rs.....c�n•_.:a.... , � ....................�. _ ._. .. ....... .. - . .. 9XBIHIT G tLetterheaa of Counsel to Public Agency) pp, , 1989 x, - First Municipal Loan Council Tallahassee, Florida - T'he Sumitomo Bank, Limited New` Cork, New York - } "' Sun Bank, National Association Orlando, Florida - k Gentlemen: I am counsel to the City of Miami, a public body and a public instrumentality of the State of Florida (the "Public Agency"), and have been requested by the Public Agency to give this opinion in connection with a loan by the First Municipal Loan Council (the "Council") to the Public Agency of funds to finance or refinance or reimburse the Public Agency for all or a portion of the cost of certain -_ qualifying capital projects (the "Project") described in and pursuant to the Participation Agreement by and between the..: Council and the Public Agency dated as of _ _, 1989 (the "Participation Agreement"). In this connection, I have reviewed such records, certificates and other documents as .I have considered -neces- sary or appropriate for the purposes of this opinion, includ- ing and any special acts and general laws per- taining tote Public Agency, and the relevant resolutions and ordinances adopted by the City Commission of::the`.Public _ Agency (the "City Commission"), the Participation.!Agree went, ::..the Trust. Indenture- dated° as of December ` 1, 1985 amended" " the "Indenture" ),, - ), between the Council < and -:Sun ;Bank, - �{ National Association:(the-"Trustee") and the..Interlocal ...,,? Agreement, as -amended, and the Letter of Credit £Agreement °- referred_in-the Indenture. Based°on such review and such. _ investigation as we have deemed necessar and such other . u- -i —' consideration: of law andfact as I believe to be. relevant, F== we -are of the opinion that: - The Public Agency is a duly constituted':municipal", ity and a public instrumentality of the State of Florida 3 ("State"), validly,,existing:and in -good standing under�.:the i - �y 89 -46 z f - - t 16 `9 laws of the Stater is not in violation of any provision of its charter and any laws material to the transactions con- templated by the Participation Agreement and the Interlocal Agreement and has all requisite power and authority to exe- cute and deliver the Participation Agreement and the Inter - local Agreement and to carry on its activities and own its —' property. The Interlocal Agreement entered into by and among the Public Agency and other Public Agencies in the State constitutes a valid and binding interlocal agreement of the Public Agency in accordance with Chapter 163, Part 1, Florida Statutes. - No approval, authorization, consent or other order of any governmental entity or of any court, public board or body (other than those already obtained), and no approving referendum of the qualified electors of the Public Agencyr is legally required to allow the Public Agency to enter into and perform its obligations under the Participation Agreement = and the Interlocal Agreement. s The Public Agency is exempt from Federal income taxation. To our knowledge, after due inquiry, there has been no threatened change to such status. The Public Agency has the requisite power to enter into the Participation Agreement and the Interlocal Agreement and to purchase, construct and/or install the Project and has been duly authorized to execute and deliver the Partici- pation Agreement and the Interlocal Agreement and to purchase, construct and/or install the Project with the proceeds of the Loan under applicable law and the terms and provisions of a resolution of the City Commission. Neither the execution and delivery of the,Parti- cipation Agreement or the Interlocal Agreement and.the-conr- summation of the transactions contemplated thereby, nor the fulfillment of or compliance with the terms and conditions of the Participation Agreement and the Interlocal Agreement conflicts with, violates or results in a breach or with the' giving of notice.or the passing of time would result in a breach -of any of the terms, conditions or.provisions of the Constitution of the State or any special or general act or laws -governing the Public Agency or its Charter or other governing documents of the Public Agency (includinq any limit on indebtedness), or any restriction or any agreement, instrument or governmental or court order to which the Public Agency is now a party or by which it is bound or constitutes (or with the giving of notice or the passage of time would G-2 777 constitute) a default under any of the foregoing, and does not result in the creation of any lien, charge or encumbrance upon any property or assets of the Public Agency pursuant to any indenture, loan agreement, or other agreement or instru- ment (other than the Participation Agreement). The Public Agency has obtained all permits and approvals required by any court, governmental body or officer for the acquisition, construction and/or installation of the Project, the financing or refinancing thereof or the reim- bursement of the Public Agency therefor; the Public Agency has complied with any applicable provisions of law requiring any notification, declaration# filing or registration with any court# governmental body or officer in connection with the execution, delivery and performance of the Participation Agreement and the tnterlocal Agreement or for the acquisi- tion, construction and/or installation of the Project, the financinq or refinancing thereof or reimbursement of the Public Agency therefor; and any such acquisition, financing, refinancing or reimbursement contemplated in the Partici- pation Agreement is consistent withti and does not violate or conflict with, the terms of any such judicial, agency or other governmental consent, order or other action which is applicable thereto. j The Public Agency is duly authorized and licensed to operate its properties under the laws, rulings, regulations and ordinances of the State and the departments, agencies and political subdivisions thereof. The Project is a "capital project" within the meaning of Section 163.01(7)(d), Florida Statutes. Based upon due inquiry and investigation, the Public Agency does -`+ not plan to use the Project: (a) for sectarian instruction or in connection with any part of the program (i) of a school or department of divinity for any religious denomination or (ii) for the training of priests, ministers, rabbis or other similar persons in the field of religion or for devotional activities or religious worship; or (b) "directly or indirectly in any trade.or busi- ness carried on by any person who is not an exempt person" within the meaning of Section 103(b)(2) of the Code (as defined in the Participation Agreement) and the regulations proposed and promulgated thereunder. G-3 89--46 1 -i j .... ...... The Participation Agreement and the Interlocal Agreement have been duly and validly authorized, executed and delivered and are in full force and effect. The Parti- cipation Agreement (including, without limitation` Section 2.42(q) thereof) and the Interlocal Agreement are valid and legally binding instruments of the Public Agency# enforceable in accordance with their respective terms# except to the extent that the enforceability thereof may be limited by laws relating to the bankruptcy or insolvency of the Public Agency or other similar laws affecting creditors' rights generally. There are no proceedings pending, or to the best of my knowledge threatened, against or affecting the Public Agency, in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would materially and adversely affect the properties, pro- spects or condition (financial or otherwise) of the Public Agency, or the amount or the availability of the revenues of the Public Agency specifically pledged under the Participa- tion Agreement# or the Project or any of the consents granted or to be granted in connection therewith, or the existence or powers or ability of the Public Agency to enter into and perform its obligations under the Participation Agreement and the Interlocal Agreement or to undertake the transactions contemplated thereunder. The Public Agency is subject to suit in a court of competent jurisdiction by the Trustee, the Council, or the Agent Bank for the failure to pay any amounts due and owing by any such entity under, or the failure to perform any obligation required by the Participation Agreement and the Public Agency is not entitled to the defense of sovereign immunity or any other comparable defense in any such suit. Any indebtedness of the Public Agency being re- financed pursuant to the Participation Agreement did not _ arise from a loan funded from the proceeds of obligations the interest on which is or was exempt from Federal income taxation. All capitalized terms used in this opinion but not defined herein shall have the meanings ascribed to such terms in the Participation Agreement. very truly yours, G-4 - ..+.-'�-.:... �.r+wr..S.Y.:.:,._S.;.w.._.+:�.'^.� 'Y.�'.w"..-.—'.'iZ:."--J..`Z`..•_�'«�;.^.^".r'r� ��:�-.7.i..r..:w ^..'Z:' _.'-.-r :r�r�:ac -.. .. i�+.wiv�; ._tsit. �.. n EXHIBIT H CERTIFICATE OF PUBLIC AGENCY IN CONNECTION WITH LOAN TO FINANCE PROJECT The undersigned, and of the City of M am t o po=cal instrumentility of t e State of Florida (the "Public Agency"), Acting for and on behalf of the Public Agency, hereby certify as of the date hereof as follows: The Public Agency is a duly constituted municipality and a public instrumentality of the State of Florida (the "State"), validly existing and in good standing under the laws of the State. The Public Agency is not in violation of any provision of any laws material to the transactions con- templated by the Participation Agreement dated as of May , 1989 (the "Participation Agreement") by and between the First Municipal Loan Council (the "Council") and the Public Agency and the Interlocal Agreement, and has all requisite power and authority to execute and deliver the Participation Agreement and the Interlocal Agreement and to carry on its activities and own its property. The Interlocal Agreement constitutes a valid and - binding interlocal agreement of the Public Agency in accor- dance with Chapter 163, Part I, Florida Statutes. No approval, authorization, consent or other order of the Public Agency or any court, public board or body (other than those already obtained), and no approving referendum of the qualified electors of the Public Agency, is legally re- quired to allow the Public Agency to enter into and perform its obligations under the Participation Agreement and the Interlocal Agreement. The Public Agency is exempt from Federal income taxation. There has been no threatened change to such status. The Public Agency has the requisite power to enter into the Participation Agreement and the Interlocal Agree- ment, and to be reimbursed for the Project (as defined in the Participation Agreement) and has been duly authorized to execute and deliver the Participation Agreement and the Inter - local Agreement, and to be reimbursed for the Project and to secure the repayment of its obligations under the Participa- tion Agreement and the Interlocal Agreement by pledging repayment as specified in the Participation Agreement. Neither the execution and delivery of the Partici- pation Agreement, or the Interlocal Agreement or the consum- mation of the transactions contemplated thereby nor the ful- fillment of or compliance with the terms and conditions of the Participation Agreement or the Interlocal Agreement con- flicts with or results in a: breach of any of the terms, con- ditions or provisions of the Constitution of the State or any Special or General Act or laws governing the Public Agency or its Bylaws, charterr or any other governing docu- ments of the Public Agency (including any limit on indebted- ness), or any restriction or any agreement, instrument, law, ordinance, regulation or judicial or other governmental order to which the Public Agency is now a party or by which it is bound or constitutes a default under any of the foregoing. The Public Agency has obtained all permits and approvals required by any governmental body or officer, for the acquisition, construction and/or installation of the Project, the financing or refinancing thereof or the reim- bursement therefor; the Public Agency has complied with any applicable provisions of law requiring any notification, declaration, filing or registration with any court, govern- mental body or officer in connection with the execution, delivery and performance of the Participation Agreement and the Interlocal Agreement or for the acquisition, construction and/or installation of the Project, financing or refinancing thereof or reimbursement of the Public Agency therefor; and any such acquisition, financing, refinancing or reimburse- ment contemplated in the Participation Agreement is consis- tent with, and does not violate or conflict with, the terms of any order of such judicial, agency or other governmental consent, order or other action which is applicable thereto. The Public Agency does not plan to use the Project: (a) for sectarian instruction or in connection with any part of the program (i) of a school or department of divinity for any religious denomination or (ii) for the training of priests, ministers, rabbis or other similar persons in the field of religion or for devotional activities or religious worship; or (b) "directly or indirectly in any trade or busi- ness carried on by any person who is not an exempt person" =— within the meaning of Section 103(b)(2) of the Code (as defined in the Participation Agreement) or in any "unrelated trade or business," as defined in Section 513(a) of the Code and the regulations proposed and promulgated thereunder. H-2 89 461 --:-i�,.:ss:.�:..ar.-.:,,j.a-�-*s::�wsrr„c:s.;:rcxaa�sraccasavw.•a .Ts-sr-..r..r �.' •i�.:'.Y./I.ir: .-.'.M.'�P. .. ..ff/.ill.•W ...ti.:{.Mr....:�A.�� �.. ...r There are no proceedings pending, or to the know - !edge of the Public Agency threatened, against or affecting the Public Agency, in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would materially and adversely affect the pro- perties, prospects or condition (financial or otherwise) of the Public Agency, or the amount or the availability of the revenues of the Public Agency specifically pledged under the Participation Agreement, or the Project or any of the con- sents granted or to be granted in connection therewith, or the existence or powers or ability of the Public Agency to enter into and perform its obligations under the Participa- tion Agreement and the Interlocal Agreement or to undertake the transactions contemplated thereunder. The covenants contained in Exhibit E of the Parti- cipation Agreement have been duly and validly entered into in order to create an obligation for the repayment of all amounts from time to time outstanding under the Participation Agreement. The representations and warranties of the Public Agency set forth in the Participation Agreement and the Inter - local Agreement, are true and correct in all material respects on the date thereof; the Public Agency is in compliance with all terms, covenants and conditions of the Participation Agreement and the Interlocal Agreement on the date hereof; and no Event of Default (as defined in the Participation Agreement) or condition, event or act which with notice or lapse of time or both would become an Event of Default exists on the date hereof or will exist upon the making of the Advances (as defined in the Participation Agreement) scheduled to be made on the date hereof. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and affixed the official seal of the Public Agency duly attested this day of , 1989. [ SEAL 1 Attest: By: ' �Title: CITY OF MIAMI, FLORIDA By: Title: H-3 x. .' EXHIBIT K INCUMB�Y CERTIFICATE I, _ City Clerk of the City of Miami, Florid HEREBY OERTIFY THAT: 1. The following is a correct list of the names of certain officers of the City of Miami, Florida, and of the dates of commencement and expiration of their respective terms of office: T COMMENCEMENT EXPIRATION OF` OFFICER OF TERM OF TERM xi } 2. The official seal of the City of Miami, Flor- ida, being the only seal used by said City, is the seal, an impression of which is affixed opposite my signature on this certificate. 3. The signature of the of , an the of appear- ing on the Participation Agreement, dated as o 1989, between __ and the First Mun cipal Loan Council are their,true andauthentic signatures. WITNESS my hand and the official seal of referred to above, this day of 1989. `---- , � [ SEAL" ] w= MF Clerk o Florida --'� hl T j7 f �f r; P i �.., � ' 5 "rt+.w;.s7M.eT-raL..!la.4�F✓.Yie�rVCALGY•+F-..+►,}.}.L•t^ �+.iJY•iMri'+M�+►rw^Jrq.P�«Y r.ww.Ir+wwaWv �� ♦M+r- ♦ . r ..q / t� ,�Y.,t, �,�.Y �{2� a*S'Y', �n�.� � _ _ ice. ..� e — aY�.sac.hfbi"� _ EXHIBIT P CERTIPICATE AS.TO_PUBLIC MEETING We, the undersigned constituting all the members of the Governing Body of the City of Miami (the "Governing Body")# DO HEREBY CERTIFY, individually and collectively, that we have no personal knowledge that any two or more members of the Governing Body, meeting together, reached any prior conclusion as to whether the actions taken by the Governing Body, with respect to the execution and delivery of that certain Participation Agreement ("Participation Agreement"), between Dade County and the First Municipal Loan Council, including any and all exhibits attached there- to, the security therefor and the application of the pro- ceeds thereof, should or should not be taken by the Govern- ing Body or should or should not be recommended as an action to be taken or not to be taken by the Governing Body, except at public meetings of the Governing Body held after due notice to the public was given in the ordinary manner re- quired by law and custom of the Governing Body. Further, we certify that we do not have or hold any employment or contractual relationship with the First Municipal Loan Council, or any other relationship which would cause a conflict of interest to arise under the Constitution or the laws of the State of Florida unless (i) the same has been disclosed in accordance with Section 112.3143, Florida Statutes, as amended, and other applicable provisions of law and (ii) any person having any such conflict of interest did not vote for the approval of the execution and delivery of the Participation Agreement and any and all documents inci- dental or necessary to the delivery thereof and the under- taking of the obligations specified therein. IN WITNESS WHEREOF, we have hereunto affixed our official signatures this day of , 1989. Sworn to and subscribed before me this day of 1989. Notary Public My Commission Expires: y J s t f} ti EXHIBIT Q CERTIPICATE REGARDING GOVERNING INSTRUMENTS The undersignedr the ---- of (the *Public Agency ) o hereby eert y at t e carter or other instruments listed below constitute all the governing instruments of the Public Agency and attached hereto are true and correct copies thereoft �i I FURTHER CERTIFY that said documents and instru- ments are in full force and effect and have not been modified or amended and I FURTHER CERTIFY that there are no special acts, ` laws, or charters (other than those specified above), gov- erning the ability of the Public Agency to enter into the Participation Agreement with the First Municipal Loan Coun IS cil or to undertake the obligations specified therein. 11ft6-sA &U4 � Ate.. ...4C 41 etas y k . 1 {Y ITAa R yy � r Y R2 r �,3 '" 1 4.. i 9 V. fie;•.. { ' ;'� '�;,. s 1 s A .. 0 kk,