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HomeMy WebLinkAboutR-88-0475J-88-457 5/19/88 RESOLUTION NO. F04— W A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI, FLORIDA, AUTHORIZING THE NEGOTIATION OF A LOAN BY THE CITY IN AN AGGREGATE AMOUNT NOT TO EXCEED $7,200,000 FROM THE SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION; APPROVING A LOAN AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE LOAN AGREEMENT TO EVIDENCE THE CITY'S BORROWING FROM THE SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION SULJECT TO APPROVAL 13Y THE CITY MANAGER OF AN AGREEMENT BETWEEN THE CITY AND THE DEPARTMENT OF OFF-STREET PARKING; PROVIDING FOR PAYMENTS PURSUANT TO SUCH LOAN AGREEMENT, INCLUDING INTEREST, FROM AMOUNTS REQUIRED TO BE BUDGETED AND APPROPRIATED BY THE CITY AND FROM CERTAIN RENTAL REVENUES OF THE CITY; AUTHORIZING APPROPRIATE OFFICERS OF THE CITY TO TAKE SUCH INCIDENTAL ACTIONS AS SHALL BE NECESSARY AND APPROPRIATE TO ACCOMPLISH THE BORROWING AUTHORIZED HEREIN; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Sunshine State Governmental Financing Commission (the "Commission") is a public body corporate and politic in the State of FLorida that has been created pur- suant to that certain Interlocal Agreement dated as of November 11, 1985, as amended and supplemented (the "Interlocal Agreement") among various local governmental units in the State of Florida; and WHEREAS, the Commission has issued its $300,000,000 Sunshine State Govermental Financing Commission Revenue Bonds, Series 1986 and is seeking to make loans to various local governmental units in the State of Florida for qualifying projects under the Interlocal Agreement; and WHEREAS, the City Commission (the "City Commission") of The City of Miami, Florida (the "City") has found and determined that a need exists to borrow funds to finance, refinance or receive reimbursement for the cost of the acquisition, construction and/or equipping of the qualifying project set forth on Exhibit "A" to the Loan Agreement hereafter more fully described (the "Project") and the financing expenses related thereto; and WHEREAS, the City has determined that the cost of the Project and the financing expenses related thereto will not exceed $7,200,000; and WHEREAS, the Commission desires to lend to the City from the pooled financing program of the Commission an ag- gregate principal amount not to exceed $7,200,000 (the "Loan"), the proceeds of which will be applied to finance, refinance or receive reimbursement for the cost of the ac- quisition, construction and/or equipping of the Project and to pay financing expenses related thereto; and WHEREAS, the City the complex structure of the program and in order to take as expeditiously as possible pooled financing by the Cit of Florida governmental units ratings, it is in the best y has determined that, because of Commission's pooled financing advantage of market conditions and receive the benefits of a with a limited number of State with investment grade credit interest of the City to finance D'rr:l• OSYD CITY COMMISSION MEETING OF MAY 199 19888 RESOLUTION No, SS-47 t k" the Project and pay financing expenses related thereto by entering into the Loan Agreement (as hereinafter defined), rather than by a public sale of securities by competitive bid, and to delegate to the Mayor, the Vice Mayor, the City Manager or his designee certain particulars of the Loan Agreement, subject to the limitations contained in this Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: SECTION 1. This Resolution is adopted pursuant to the Charter of the City, but only to the extent not incon- sistent with and not repealed by the provisions of Section 166.021, Florida Statutes; Chapter 166, Florida Statutes; the Constitution of the State of Florida; and other applica- ble provisions of law (collectively, the "Act"). SECTION _2_. The recitals, findings, definitions and exhibits contained in the preamble of this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. SECTION 3. A form of loan agreement between the Commission and the City, including the exhibits attached thereto, evidencing the Loan and the terms and conditions related thereto (the "Loan Agreement"), is hereby approved in substantially the form attached to this Resolution as Exhibit "A." The Mayor, Vice Mayor or the City Manager or his designee, and the City Attorney as to the form of the Loan Agreement, in the name and on behalf of the City, are hereby authorized, empowered and directed to execute and deliver the Loan Agreement and the City Clerk or any Deputy Clerk of the City is hereby authorized to impress or affix the seal of the City thereon and to attest such seal. The Mayor, Vice Mayor or the City Manager or his designee, and the City Attorney as to form, are hereby authorized to ap- prove such insubstantial changes to the Loan Agreement as shall be determined to be in the best interests of the City, such approval to be conclusively evidenced by the execution of the Loan Agreement by the Mayor, Vice Mayor or City Manager or his designee, and as to form by the City Attorney. Notwithstanding the foregoing, however, the of- ficers of the City authorized herein to execute such Loan Agreement shall not do so until such time as the City Manager shall have reviewed and approved the terms of a agreement between the City and the City's Department of Off -Street Parking (the "Department") executed by the Department whereby the Department shall agree to lease from the City at least seventy percent (70%) of the office space included in the Project and to pay as an annual rental thereunder seventy percent (70%) of the annual debt service on the Loan and seventy percent (70%) of the annual costs of operation and maintenance of the Olympia Building for the term of the Loan. SECTION 4. In accordance with the provisions of the Constitution and other laws of the State of Florida, in- cluding the Act, the City Commission hereby authorizes to be incurred indebtedness in the form of the Loan in an amount not in excess of $7,200,000. Unless otherwise provided by subsequent resolution of the City Commission, the Loan shall be made at a discount that shall include a pro rata portion of the costs of issuance previously incurred by the Commission in connection with the issuance of the bonds of the Commission from which the proceeds of the Loan will be 2 148 -47 tr derived. The Loan shall bear interest and shall be payable according to the terms and conditions set forth in Article V and Article VI of the Loan Agreement as actually executed by the City, but the Loan shall not bear interest at a rate in excess of the maximum rate per annum permitted by law and shall not have a term in excess of thirty years. The Loan shall be in such aggregate principal amount as shall be determined by the City Manager or his designee to be ade- quate to finance the Project and to pay the financing ex- penses related thereto, but in no event shall exceed $7,200,000. To the extent provided in the Loan Agreement, the Loan will be secured by a covenant of the City to appropri- ate in its annual budget, including by amendment, required, and to pay when due from such appropriation, suf- ficient amounts of non -ad valorem revenues of the City or other legally available funds to satisfy the debt service requirements on the Loan as set forth in the Loan Agreement. If so specified in the Loan Agreement, such covenant and agreement on the part of the City to budget and appropriate such amounts of non -ad valorem revenues or other legally available funds may be cumulative, and may continue until such non -ad valorem revenues or other legally available funds in amounts sufficient to make all required payments shall have been budgeted, appropriated and actually paid. To the extent provided in the Loan Agreement as actually executed by the City, the Loan will be secured additionally by rental revenues from the Project. Nothing in the Loan Agreement shall be deemed to pledge ad valorem revenues, the ad valorem taxing power or the general faith and credit of the City or shall permit or constitute a mortgage upon any assets of the City. The obligations of the City under the Loan Agreement shall not constitute a pledge of all legally available non -ad valorem revenues of the City, but shall be payable solely as provided in the Loan Agreement and shall be subject in all respects to the provisions of Section 166.241, Florida Statutes. The liability of the City under the Loan Agreement shall be a several liability expressly limited to the obligation of the City to repay the Loan, and the City shall have no joint liability with any other party to the Interlocal Agreement or the Commission for any further respective liabilities, except to the extent set forth ex- presssly in the Loan Agreement as actually executed by the City. SECTION 5. The Mayor, the Vice Mayor, the City Manager, the Assistant City Managers, the Director of Finance, the City Attorney, the City Clerk, the Deputy City Clerks and such other officials and officers of the City as shall be designated by any of the foregoing are hereby authorized, empowered and directed to execute and deliver such other documents and take such other actions as shall be necessary and appropriate to comply with the provisions of the Loan Agreement and the Interlocal Agreement, and the transactions contemplated thereto and hereby, pursuant to the terms of this Resolution and the agreements and instru- ments authorized to be executed and delivered hereby and to accomplish the performance of the obligations of the City in respect thereof. SECTION 6. Nothing herein shall be construed as preventing the City from attempting to further lower the cost to the City of constructing and rehabilitating the 3 PtbJeft through additional heq6tiatllonb With the developer thetLb,6L SECTION 5, This Resolution shall take effeft imrfit- diately upon its adoption, PASSED AM ADOPTP.1) this 19 day of May, 1988. Mayor 1W O5/iA%Ark A LOAN AGREEMENT By and Between SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION and CITY OF MIAMI, FLORIDA SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION REVENUE BONDS SERFS 1986 This Instrument Prepared By: j Bryant, Miller and Olive, P.A. 201 S. Monroe Street, Suite 500 3 Tallahassee, Florida 32301 h4. t Q i LOAN AGREEMENT TALE OF CONTENTS RECITALS i i i i i i♦ i i i i i i i i i i i i i i i•. i i i i i i i i i i i i f i i i i i i i i i i i ARTICLE I DEFINITIONS be F I N IT I ONS i i i i i i♦ i i i i i i i i. i. i i. i. i i i i i i i i i i i i i i i i i i i i i i i 3. ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF GOVERNMENTAL UNIT Section 2.01 Representations and Warranties ..i••ii.i.ii 10 Section 2602 Covenants of Governmental Unit i.i..i....•. 14 ARTICLE III THE LOAN Section 3.01 The Loan .................................. 21 Section 3.02 Loan ...................................... 21 Section 3.03 Conversion to Fixed Mode .................. .21 ARTICLE IV LOAN TERM AND LOAN CLOSING REQUIREMENTS -, Section 4.01 Commencement of Loan Term ................. 23 Section 4.02 Termination of Loan Term .................. 23 Section 4.03 Loan Closing Submissions .................. 23 5 ARTICLE V LOAN PAYMENTS Section 5.01 Payment of Loan Payments ................'... 25 Section 5.02 Calculation of Loan Rate ................... 25 Section 5.03 Payment of Additional Payments ............. 27 Section 5.04 Credit for Interest Earnings ............... 28 3 Section 5.05 Loan Payments .............................. 31 ' Section 5. 06 Refunding Bonds ............................ 32 Section 5.07. Secondary Account .......................... 32 ARTICLE VI OPTION TO PREPAY LOAN PAYMENTS Option to Prepay Loan Payments ........................... 33 i NS.. 47!7 ARTICLE VII ASSIGNMENT AND PAYMENT BY THIRD PARTIES Section 7.01 Assignment by Commission . ..... .. .. .... .. ... 33 Section 7.02 Assignment by Governmental Unit ............ 33 Section 7.03 Payments by Bank ........................... 33 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.01 Events of Default Defined .................. 35 Section 8.02 Notice of Default .......................... 37 Section 8.03 Remedies on Default ...........�............ 37 Section 8.04 Attorneys' Fees and Other Expenses ......... 37 Section 8.05 No Remedy Exclusive; Waiver, Notice ........ 37 Section 8.06 Acceleration of Loan... 38 Section 9.01 Section 9.02 Section 9.03 Section 9.04 Section 9.05 Section 9.06 Section 9.07 Section 9.08 Section 9.09 Section 9.10 Section 9.11 Section 9.12 ARTICLE IX MISCELLANEOUS Notices .................................... 39 Binding Effect ...:.......................... 40 Severability ............................... 40 Amendments, Changes and Modifications ...... .40 Execution in Counterparts .................. 40 Applicable Law ............................. 40 Benefit of Bondholders and Bank; Compliance with Indenture .......................... 40 Consents and Approvals ..................... 40 Immunity of Officers, Employees and Members of Commission and Governmental Unit ..... 40 Captions ................................... 41 No Pecuniary Liability of Commission ....'... 41 Payments Due on Holidays ................... 41 ii LOAN AGREEMENT This Loan Agreement (the "Agreement" or the "Loan Agreement") dated as of May 1, 1988, and enterei into between the SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION (the "Commission"), a public body corporate and politic created pursuant to that cer- tain interlocal agreement by and among various governmental units executing it from time to time, and initially between the City of Orlando and the City of Tallahassee, duly constituted municipali- ties under the laws of the State of Florida, and The City of Miami, Florida (the "Governmental Unit"), a municipal corporation organized under the laws of the State of Florida. W I T N E S S E T H: WHEREAS, pursuant to the authority of the hereinafter defined Act, the Commission desires to loan to the Governmental Unit the amount necessary to enable the Governmental Unit to finance the cost of the Project, as hereinafter defined, and the Governmental Unit desires to borrow such amount from the Commission subject to the terms and conditions of and for the purposes set forth in this Agreement; and WHEREAS, the Commission is a public body corporate and poli- tic duly created, organized and existing under and by virtue of the Interlocal Agreement, such Interlocal Agreement constituting an interlocal agreement initially between the City of Tallahassee and the City of Orlando. in accordance with Chapter 163', Part I, Florida Statutes, as amended (the "Interlocal Act"); and WHEREAS, the Commission has determined that there is substan- tial need within the State for a financing program (the "Program") which will provide funds for qualifying projects (the "Projects") for the participating Governmental Units; and WHEREAS, the Commission is authorized under the Interlocal Act to issue its revenue bonds to provide funds for such purposes; and WHEREAS, the Commission has determined that the public inter- est will best be served and that the purposes of the Interlocal Act can be more advantageously obtained by the Commission's issu- ance of revenue bonds in order to loan funds to the Governmental Units to finance Projects; and WHEREAS, the Commission and the Governmental Unit have previ- ously executed a Loan Agreement dated as of September 1, 1987 and - a Supplemental Loan Agreement dated as of January 1, 1988 (collec- tively, the "Original Loan Agreement") pursuant to which the Governmental Unit borrowed $20,800,000; and RN-47 r kL_J WHEREAS, the Governmental Unit desires to borrow an addi- tional $ from the Commission to finance the Project hereinafter described; and WHEREAS, the Governmental Unit is authorized under and pursu- ant to the Act, as amended, to enter into this Loan Agreement (the "Loan Agreement") for the purposes set forth herein; and WHEREAS, the Commission and the Governmental Unit have deter- mined that the lending of funds by the Commission to the Govern- mental Unit pursuant to the terms of this Agreement and that certain Trust Indenture dated as of July 1, 1986 between the Commission and the Trustee (as defined herein), including any amendments and supplements thereto (the "Inded-ture"), will assist in the development and maintenance of the public welfare of the residents of the State and the areas served by the Governmental Unit, and shall serve a public purpose by improving the health and living conditions, and providing adequate governmental services, facilities and programs and will promote the most efficient and economical development of such services, facilities and programs in the State; and r WHEREAS, neither the Governmental Unit nor the State or any political subdivision thereof (other than the Governmental Units to the extent of their obligations under their respective Agree- ments and except for the Commission to the extent provided in the Indenture), shall in any way be obligated to pay the principal of, premium, if any, or interest on those certain revenue bonds of the Commission designated ."Sunshine State Governmental Financing Commission Revenue Bonds, Series 1986" (the "Bonds") as the same shall become due, and the issuance of the Bonds shall not direct- ly, indirectly or contingently obligate the Governmental Unit, the State or any political subdivision thereof to levy or pledge any form of ad valorem taxation for their payment ibut shall be payable solely from the funds and revenues pledged under and pursuant to this Agreement and the Indenture. NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the parties hereto agree as follows: 2 W ARTICLE I DEFINITIONS Unless the context or use indicates another meaning or intent, the following words and terms as used in this Loan Agree- ment shall have the following meanings, and any other words and terms not otherwise defined herein which are defined in the Inden- ture, as hereinafter defined, shall have the meanings as therein defined. "Accountant" or "Accountants" means an independent certified public accountant or a firm of independent certified public accountants. "Accounts" mean the accounts created pursuant to Section 4.02 of the Indenture. "Act" means, collectively, Chapter 163, Part I, Florida Statutes, Chapter 1590, Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes, Chapter 125, Part I, Florida Statutes, all as amended from time to time, and all other applicable provisions of law. "Additional Payments" mean payments required by Section 5.03 hereof. "Additional Security" means that additional security pledged by the Governmental Unit for the payment of its obligations here- under, as more fully described in Exhibit E attached hereto. "Agent" means The Sumitomo Bank, Limited, acting through its New York Branch, as agent for the Banks under the Reimbursement Agreement. "Alternate Credit Facility" means the credit facility so designated by and provided pursuant to Section 6.01 of the Inden- ture. "Authenticating Agent" means the entity designated as such pursuant to the Indenture and any successor thereto thereunder. "Authorized Representative" means, when used pertaining to the Commission, the Chairman of the Commission and such other designated members, agent or representative as may hereafter be selected by Commission resolution and, when used with reference to a Governmental Unit means the person performing the functions of the Mayor or Finance Director thereof and when used with reference to the Bank shall mean any officer 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. 3 RN--4% "' V W "Bank" or "Banks" means the issuer of the initial Credit Facility (which may include more than one Bank) and any successors thereof, including any entity which issues an Alternate Credit Facility with respect to the Bonds. "Bank Bonds" mean the Bonds owned by the Bank, pursuant to the Indenture or Credit Facility Agreement or held to evidence or held as security for the repayment obligations of the Commission for the benefit of the Bank, as a result of a drawing on the Credit Facility. "Bank Rate" means the rate of interest payable on amounts owed to the Bank, including Bank Bonds pursuant to the Indenture. "Basic Payments" shall have the same meaning as set forth in Section 5.01 hereof. "Board" means the governing body of the Governmental Unit. "Bond Counsel" means Bryant, Miller and Olive, P.A., Tallahassee, Florida or any other nationally recognized bond counsel. "Bondholder" or "Holder" or "holder. of Bonds" or "Owner" or any similar term means the registered owner of any Bond. "Bonds" mean the Sunshine State Governmental Financing Commission Revenue Bonds of any Series issued pursuant to Article II of the Indenture. "Bond Year" means a 12-month period beginning on July 1 of each. year and ending on the last day of June of the succeeding year. "Business Day" means a day on which banks in the Btate of New York or the State are not required or authorized by law to remain closed and on which the New York Stock Exchange is not closed. "City" or "Cities" shall mean municipal corporations created under the laws of the State of Florida which are participating in the Program. "Closing" means the closing of a Loan pursuant to the Inden- ture and this Supplemental Agreement. "Code" means the Internal Revenue Code of 1954, as amended, and the regulations promulgated or proposed thereunder. All references herein to the "Code" shall, to the extent applicable, include the successor provisions of any Federal income tax law relating specifically to the exclusion from gross income for Federal income tax purposes of interest on obligations of govern- mental units. 4 Af4--4ir-, qW "Commencement Date" means the date when the term of this Supplemental Agreement begins and the obligation of the Governmental Unit to make Loan Payments begins to accrue. "Commission" or "Issuer" means the Sunshine State Govern- mental Financing Commission. "County" or "Counties" shall mean those political subdivi- sions of the State of Florida participating in the Program. "Costs of Issuance Fund" means the Costs of Issuance Fund established pursuant to Section 4.02 of the Indenture. "Counsel" means an attorney duly admitted to practice law before the highest court of any state and, without limitation may include legal counsel for either the Commission or the Govern- mental Unit. "Credit Facility" means the Letter of Credit, which took effect on November 18, 1986, issued by The Sumitomo Bank, Limited, New York Branch, The Fuji Bank, Limited, New York Branch and The Mitsubishi Trust and Banking Corporation, New York Branch and shall also include any Alternate Credit Facility. "Credit Facility Agreement" means any agreement between the Commission and the Bank pursuant to which the Credit Facility or any Alternate Credit Facility is issued. "Daily Mode" means. an Interest Mode in which the 'interest rate on the Bonds in such Mode is adjusted on each Business Day. "Debt Service Reserve Fund" means the fund by that name created pursuant to Section 4.02 of the Indenture. "Event of Default" shall have the meaning ascribed to such term in Section 8.01 of this Loan Agreement. "Excess Interest Amount" means an amount equivalent to the interest that is not payable on the Bank Bonds because the interest rate on the Rank Bonds is limited by the Maximum Rate, computed as the difference, expressed in dollars of the United States of America, between the interest earned at the Bank Rate which the Bank Bonds would actually bear and the Maximum Rate. The Excess Interest Amount comes into existence and accumulates when Bank Bonds bear interest at the Maximum Rate and the Bank Rate which the Bank Bonds would otherwise have borne, exceeds the Maximum Rate. The Excess Interest Amount is reduced by an amount equivalent to the interest which is paid on Bank Bonds which bear interest at the Maximum Rate in excess of the interest that would be payable on such Bonds if such Bonds bore interest at the Bank Rate when the Maximum Rate exceeds the Bank Rate which the Bank Bonds would otherwise have borne and shall be further reduced by payments made specifically to the Bank to reduce such Excess Interest Amount. "Existing Debt" means those obligations, if any, of the Gov- erncnental Unit described in Exhibit A hereto, which obligations are to be paid or retired with the proceeds of the Loan. "Fiscal Year" means the fiscal year of the Governmental Unit. "Fixed Mode" means an Interest Mode during which the interest rate is fixed to the stated maturity of the principal of the Bones. "Funds" mean the funds created pursuant to Section 4.02 of the Indenture. "Governmental Unit" or "Borrower" means the entity which is described in the first paragraph and on the cover page of this Supplemental Loan Agreement and which is borrowing and using the Loan proceeds to finance, refinance. and/or be reimbursed for, all or a portion of the costs of one or'more Projects. "Governmental Units" mean the Governmental Unit and the other entities which have receivel loans from the Commission made from the proceeds of the Bonds. "Highest Lawful Rate" means the highest lawful rate of interest permitted under the laws of the State of Florida or permitted under Federal law, if applicable. "Indenture" means the Trust Indenture dated as of July 1, 1986 between the Commission and the Trustee, including any amend- ments and supplements thereto. .. "Interest Payment Date" means (i) the First Tender Date, (ii) thereafter the date on which an installment of interest on the Bonds shall become due, which shall be as to any Daily Mode, Monthly Mode or Adjustable Mode, the first Business Day of each month; as to any Weekly Mode, the first Rate Adjustment Date of each month; as to a Quarterly Mode, the first succeeding January 1, April 1, July 1 or October •1 after the commencement of such Quarterly Mode and each January 1, April 1, July 1 and October 1 thereafter; as to the Money Market Municipal Mode the Flexible Date; and as to any Bank Bond, the first day of each month and the date on which such Bank Bond is remarketed and as to any other Interest Mode, the first succeeding July 1 or January 1 after the commencement of such Interest Mode and each July 1 and January 1 thereafter, (iii) the Maturity Date, and (iv) any Interest Mode Adjustment Date. "Interest Period" means, with respect to the Bonds, the period from and including an Interest Payment Date to and includ- ing the day immediately preceding the next Interest Payment Date, s except that the first Interest Period shall be the period from and including the Closing Date to and including the day immediately preceding the first Interest Payment Date. "Interlocal Act" means Chapter 163, Florida Statutes. "Interlocal Agreement" means that certain Interlocal Agree- ment creating the Commission among the various Governmental Units executing it from time to time, initially between the City of Orlando and the City of Tallahassee. "Issuance Date" means the date on which the Bonds were issued, that date being July 16, 1986. "Loan" means a Loan to a Governmental Unit from Bond proceeds to finance a Project or Projects pursuant to a Loan Agreement. "Loan Agreement" or "Loan Agreements" means the Loan Agree- ments between the Sunshine State Governmental Financing Commission and any Governmental Unit participating in the Program, and any amendments and supplements thereto which are executed for the purpose of securing repayment of any Loan made by the Issuer to any participating Governmental Unit and establishing the terms and conditions upon which such Loans are to be made. "Loan Payment Date" means the fifteenth (15th) day of the month or if such day is not a Business Day, the next succeeding Business Day. On each Loan Payment Date each Governmental Unit shall be responsible for interest and Additional Payments which accrued on such Loan during the preceding month. "Loan Payment Period" means a period beginning on the first day of a month and ending on and including the last day of such month. 4. "Loan Payments" mean the payments of principal and interest and other payments payable by the Governmental Unit pursuant to the provisions of this Supplemental Loan Agreement. "Loan Rate" shall have the same meaning as set forth in Section 5.01 and Section 5.02 hereof. "Loan Term" means the term provided for in Article IV of this Supplemental Loan Agreement. "Maximum Rate" means a rate of interest per annum equal to the lesser of (i) the Highest Lawful Bate or (ii) a rate of interest per annum on the Bonds, other than Bank Bonds, not to exceed 15% and as to Bank Bonds, a rate not to exceed 25%. "Municipality" or "Municipalities" means a duly constituted municipality in the State. 7 RS., 4 75 W 14W "Non -Ad Valorem Revenues" means all legally available reve- nues and taxes of the Governmental Unit derived from any source whatever other than ad valorem taxation on real and personal pro- perty, which are legally available for payment of Loan Payments. "Non -asset Bonds" means an amount equal, as of the calcula- tion date, to (a) the Outstanding principal amount of the Bonds minus (b) the sum of (i) the outstanding principal amount of the Loans, (ii) the amount in the Loan Fund, Debt Service Reserve Fund, Debt Service Fund (other than amounts in the Interest Account not available to be used to pay the principal of the Bonds and amounts to be used to pay redemption premium), the Excess Earnings Fund and the Cost of Issuance Fund which will be trans- ferred to the Loan Fund pursuant to Section 4.06 of the Indenture, (iii) the amounts to be earned under any Investment Agreement approved by the Bank, which will be available to be used to pay the principal of the Bonds upon receipt by the Trustee. For this purpose, a Loan shall not be deemed outstanding to the extent its principal has been prepaid and deposited in the Debt Service Fund or Loan Fund, as the case may be. "Optiional Prepayment Price" means the amount which a Borrower :nay,_ in its discretion, pay the Trustee in order to prepay the Loan in full, which amount shall be equal to (i) the amount of any past -due or currently due Loan Payments together with interest on such past -due Loan Payments to the date of such payment in full at the rate or rates provided in the Loan Agreements; (ii) the unpaid accrued interest at the current Loan interest rate on the out- standing principal amount of the Loan since the end of the pre- vious Loan Payment Period to the date of such payment in full; (iii) the unmatured principal of the Loan; (iv) the premium, if any, to be paid on the Bonds which will be redeemed from such Optional Prepayment Price; (v) the Governmental Unit's Proportion- ate Share of any Excess Interest Amount owing to the Bank; (vi) any amounts owed by such Governmental. Unit pursuant to the provi- sions of Section 5.02(a)(3) and (vii) any other amounts owing to the Issuer under the Loan Agreement, including without limitation, Section 5.03 hereof. With respect to section (iv) above, it is understood by the parties to this Loan Agreement that to the extent the Commission complies with the provisions of Section 4.04 of the Indenture relating to the deposit of Loan Payments in the Secondary Account of the Loan Fund created pursuant to the Inden- ture, Loan Payments shall be deposited in such Secondary Account and will not be used to redeem Bonds. "Person" means art individual, a corporation, a partnership, an association, a trust or any other entity or organization in- cluding a government or political subdivision or an agency or instrumentality thereof. "Prime Rate" means the rate of interest announced by the Agent or any Bank issuing an Alternate Credit Facility to its 8 Rfj"_ 4r7 r Customers at its New York Branch from time to time as its "prime rate." Each change in the Prime Rate shall be effective as of the opening of business on the effective date of such change in the Prime Rate. "Project" or "Projects" means a governmental undertaking approved by the governing body of a Governmental Unit for a public purpose, including the refunding of any bonded indebtedness. "Proportionate Share" means a fraction (a) the numerator of which is the outstanding principal amount of the Loan and (b) the denominator of Which is the sun at the time of calculation of (i) the outstanding principal amount of all Loans plus (ii) 101.0101% of the amount, if any, in the Primary Account of the Loan Fund and 100% of the amounts, if any, in the Secondary Account of the Loan Fund, provided that if amounts have been withdrawn from the Loan Fund to pay the items enumerated in Section 4.07(f)(1)-(8) of the Indenture, and such amounts have not been replaced, all Propor- tionate Shares shall be calculated as though such amounts were still on deposit in such fund or account. If a Governmental Unit has paid the Optional Prepayment Price, its Proportionate Share shall be zero even if its Loan Agreement is not yet terminated. "Pro Rata Share" means as of each date of calculation the outstanding principal amount of the Loan divided by the outstanding principal amount of all Loans. "Rebate Date" means July 1, 1988. "Remarketing Agent" means the entity designated as such pursuant to the Indenture and any successors thereto thereunder. "Reserve Requirement" for the Bonds shall mean $30,000,000; provided, however, in the event Funds are transferred to the Re- demption Account from the Debt Service Reserve Fund as provided in the last paragraph of Section 4.05 of the Indenture, the Reserve Requirement shall be reduced to the extent of such transfer. "State" means the State of Florida. "Tender Agent" means the entity designated as such pursuant to the Indenture and any successors thereto thereunder. "Trustee" means Florida National Sank, as Trustee, or any successor thereto under the Indenture. 9 ( 8-4 /'-i IN ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF GOVERNMENTAL UNIT SECTION 2.01. REPRESENTATIONS AND WARRANTIES. The Govern- mental Unit makes the following representations anti warranties for the benefit of the Commission, the Trustee, the Bondholders and the Bank: (a) ORGANIZATION AND AUTHORITY. The Governmental Unit: (1 ) is located in the State and is d duly organized and validly existing Governmental Unit; (2) has all requisite power and authority and all necessary 1•icenses and permits to own and operate its properties and to carry on its activities as now conducted and as presently proposed to be conducted; and (3) all licenses and permits, absence of which will not have a taterial ability of the Governmental Unit to meet under, necessary for the Governmental Unit properties and to carry on its activities been obtained by the Governmental Unit. except for those the adverse affect on the its obligations here- to own and operate its as now conducted have (b) FULL DISCLOSURE. There is no fact known to the Govern- mental Unit which the Governmental Unit has not specifically disclosed in writing to the Commission which materially and adversely affects or is likely to materially adversely affect its ability to make the payments under this Loan Agreement when and as the same become due and payable. The financial statements, including balance sheets and any other written statement furnished by the Governmental Unit to the Commission and the Bank do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading, in light of the circumstances under which they were made. There is no fact known to the Governmental Unit which the Governmental Unit has not disclosed to the Commission and the Bank in writing which materially affects adversely or is likely to materially affect adversely the financial condition of the Governmental Unit, or its ability to make the payments under this Loan Agreement when and as the same become due anti payable. (c) PENDING LITIGATION. There are no proceedings pending, or to the knowledge of the Governmental Unit threatened, against or affecting the Governmental Unit, except as specifically de- scribed in writing to the Commission and the Bank, in any court or 10 049-47!'. 7 f before any governmental authority or arbitration board or tribunal (i) with respect to any of the transactions contemplated hereby or (ii) that, if adversely determined, would materially and adversely affect the ability of the Governmental Unit to enter into and perform its obligations under this Loan Agreement. (d) BORROWING LEGAL AND AUTHORIZED. The execution and deli- very of this Loan Agreement and the consummation of the transac- tions provided for in this Loan Agreement and compliance by the Governmental Unit with the provisions of this Loan Agreement: (1) are within the powers of the Governmental Unit and have been duly and effectively authorized by all necessary action on the part of the Governmental Unit; ` (2) except with respect to the provisions of Section 8.01(i) hereof as to which no representations and warranties are made by the Governmental Unit, do not and will not (i) conflict with or result in any material 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 Governmental Unit pursuant to any in3enture, loan agreement or other agreement or instrument (other than this Agreement), or restriction to which the Govern- mental Unit is a party or by which the Governmental Unit, its properties or operations may be bound or (ii) with the giving of notice or the passage of time or both, constitute a breach or default or so result in the creation or imposition of any lien, charge, or encumbrance,. which breach, default, lien, charge or encumbrance (described in (i) or (ii)) could materially and adversely affect the valiAity or the enforceability of this Loan Agreement or the Governmental Unit's ability to perform fully its obligations under this Agreement, except as enforcement may be limited by applicable bankruptcy, insolvency or other laws or equitable principles affecting the enforcement of creditors' rights; nor will such action result in any violation of the provi- sions of the Act, or any laws, ordinances, governmental rules or regulations or court orders to which the Governmental Unit, its properties or operations may be bound; (e) NO DEFAULTS. Except with respect to the provisions of Section 8.01(i) hereof as to which no representations and warran- ties are made by the Governmental Unit, no event has occurred and no condition exists that constitutes an Event of Default, or which, upon the execution and delivery of this Loan Agreement and/or the passage of time or giving of notice or both, would constitute an Event of Default. The Governmental Unit is not in violation in any material respect, and has not received notice of any claimed violation (except such violations as (i) heretofore have been specifically disclosed in writing to, and have been in 11 RR-4 7r, writing specifically consented to by the Commission and the Bank or (ii) do not, and shall not, have any material adverse effect on the ability of the Governmental Unit to perform its obligations hereunder, of any terms of any agreement or other instrument to which it is a party or by which it, its properties or operations may be bound. Furthermore, except with respect to actions taken by the Commission or the other Governmental Units as to which no representation or warranties are made by the Governmental Unit, no event has occurred and no condition exists, to the best of the knowledge of. the Governmental Unit, which would adversely affect in any manner, either directly or indirectly, the tax-exempt status of interest on the Bonds. (f) GOVERNMENTAL CONSENT. The Governmental Unit has obtain- ed, or will obtain all permits, approvals and findings of nonre- viewability require) by any governmental body or officer for the acquisition and/or installation of the Projects, including con- struction and renovation work, the financing or refinancing thereof or the reimbursement of the Governmental Unit therefor, or the use of such Projects, and the Governmental Unit will obtain all other such permits, approvals and findings as may be necessary for the` foregoing and for such Loan and the proper application thereof; the Governmental Unit has complied with all applicable provisions of law requiring any notification, declaration, filing or registration with any agency or other governmental body or officer in connection with the acquisition or installation of the Projects, including construction and renovation work necessary for such installation, financing or refinancing thereof or reimburse- ment of the Governmental- Unit therefor; and any such acquisition, construction, installation, financing, refinancing or rei►nburse- ment contemplated in this Loan Agreement is consistent with, and does not violate or conflict with, the terms of any such agency or other governmental consent, order or other action which is appli- cable thereto. No further consent, approval or authorization of, or filing, registration or qualification with, any governmental authority is required on the part of the Governmental Unit as a condition to the execution and delivery of this Loan Agreement. (g) COMPLIANCE WITH LAW. The Governmental Unit is in com- pliance with all laws, ordinances, governmental rules and regula- tions to Vaich it is subject and which are material to the execu- tion of this Loan Agreement and the performance by the Government- al Unit of its obligations hereunder, except as has been specific- ally disclosed in writing to the Commission and the Bank. (h) USE OF PROCEEDS. (1) The Governmental Unit will apply the proceeds of the Loan from the Commission solely for the financing or refinancing or to reimburse itself for the cost of the Projects as set forth in Exhibit A hereto. The Governmental Unit may modify or amend Exhibit A to include any or all of the Projects listed on Exhibit A-1 hereto, without the consent of the Commission, the Bank or any 12 AR-4%`i q. Nr other Person, to provide for the financing of a different or addi- tional Project if the Governmental Unit, after the elate hereof, deems it to be not in the interest of the Governmental Unit to acquire or construct any item of such Project from the proceeds of the Loan or the cost of the Project proves to be less than the amounts listed on Exhibit A and the investment earnings thereon. No such amendment will be made unless and until the Governmental Unit shall have receivel an opinion of Bond Counsel that such change or modification will not adversely affect the exemption from Federal income taxation of interest on the Bonds. No modifi- cation or amendment to Exhibit A hereto may be made to include a Project to be financed from the proceeds of the Loan ani not list- ed on Exhibit A-1 hereto without the prior written consent of the Bank. (2) Items of cost of the Projects which may be financed, refinanced or reimbursed inclule all reasonable or necessary direct or indirect costs of or incidental to the acqui- sition, construction or installation of the Projects, including the incidental costs of placing the same in use and financing expenses but not operating expenses. In addition, in the case of refinancings, accrued interest and any prepayment penalty on the obligation to be refinanced may be included. (3) If the Governmental Unit is receiving reimbursement for the cost of the Projects expended by the Governmental Unit on or before the date of approval by the Commission of the Govern- mental Unit's application for the Loan, the Governmental Unit represents that (i) the .Projects or any portion thereof "for which it is being reimbursed by the proceeds of the Loan was acquired or constructed, and payments therefor to be reimbursed were expended, by the Governmental Unit after May 1, 1988 and the Governmental Unit expended such funds in anticipation of being reimbursed for such funds with bond proceeds; and (ii) if such reimbursement will be used for the repayment of the outstanding principal balance (together with accrued interest and redemption premiums, if any) of indebtedness incurred by the Governmental Unit to lenders or sources other than the Governmental Unit in connection with the Projects that the interest on such debt was exempt fro,n Federal income taxation. (i) NOTICE FROM IRS. The Governmental Unit has not been notified of any listing or proposed listing by the Internal Reve- nue Service to the effect that the Governmental Unit is an issuer of obligations whose arbitrage certifications may not be relied upon. (j) PROJECT. All items constituting the Project are as such term is defined in the Act. (k) COMPLIANCE WITH INTERLOCAL REQUIREMENTS AND INTERLOCAL AGREEMENT. All agreements and transactions on behalf of the Gover:nentat Unit providei for herein or contemplated hereby are in 13 I +_ Nr full compliance with the terms of the Interlocal Agreement appli- cable to the Governmental Unit and with the Interlocal Act. (1) ENFORCEABILITY. This Agreement constitutes a legal, valid and binding obligation of the Governmental Unit enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency and other simi- lar laws affecting enforceability of creditors' rights generally and to the application of equitable principles if equitable reme- dies are sought. SECTION 2.02. COVENANTS OF GOVERNMENTAL UNIT. The Govern- mental Unit makes the following covenants and representations as of the date first above written and such covenants shall continue in full force and effect during the Loan Term: (a) SECURITY FOR LOAN REPAYMENT. The Governmental Unit covenants and agrees to appropriate in its annual budget, by amendment, if required and to the extent permitted and in accor- dance with budgetary procedures provided by the laws of the State of Florida, and to pay when due directly into the appropriate Fund or Account created in the Indenture, sufficient amounts of Non -Ad Valorem Revenues of the Governmental Unit or other legally avail- able funds sufficient to satisfy the Loan Payment as required under this Loan Agreement. Such covenant and agreement on the part of the Governmental Unit to budget and appropriate such amounts of Non -Ad Valorem Revenues or other legally available funds shall be cumulative, and shall continue until such Non -Ad Valorem Revenues or other legally available funds in amounts suf- ficient to make all required payments as anc9 when due shall have been budgeted, appropriated and actually paid into the appropriate Fund or Account. The Governmental Unit further covenants that the Indenture and this Loan Agreement shall be deemed to be entered into for the benefit of the Holders of any of the Bonds and the Bank and that the obligations of the Governmental Unit to include the amount of any deficiency in each of its annual budgets and to pay such deficiencies from Non -Ad Valorem Revenues or other legally available funds may be enforced in a court of competent jurisdiction in accordance with the remedies set forth herein. The obligations of the Governmental Unit pursuant to this Loan Agreement will not constitute a general indebtedness of the Governmental Unit within the meaning of any constitutional or statutory provision or limitation and the Governmental Unit is not obligated and neither the Commission, the Bondholders, the Trustee or the Bank may compel the Governmental Unit to levy any ad - valorem taxes for the payment thereof. Neither the full faith and credit nor the taxing power of the Governmental Unit, the State of Florida or any political subdivision thereof is pledged to such payment. Such appropriation for interest due under this Loan Agreement shall be based upon an assumed interest rate determined as set forth in Exhibit E hereto. Notwithstanding the foregoing or any provision of this Loan Agreement to the contrary, the Govern- mental Unit does not covenant to maintain any services or programs 14 9 0 now provided or maintained by the Governmental Unit which generate Non -Ad Valorem Revenues. (b) LIENS. Except as set forth in Exhibit E hereto, the Governmental Unit shall not be prohibited from creating, incurring or suffering to exist any lien, charge or encumbrance on the Non -Ad Valorem Revenues. (c) INFORMATION. The chief financial officer of the Govern- mental Unit shall, at the reasonable request of the Bank, discuss the Governmental Unit's financial matters with the Bank or its respective designee and provide the Bank with copies of any docu- ments reasonably requested by the Bank or its designee. .(d) EXPENSES. In addition to the payment obligations other- wise provided for in this Loan Agreement, the Governmental Unit will, upon Jemand by the Commission, pay all reasonable costs and expenses whatsoever that the Commission may incur incident to the preparation, execution and delivery of this Loan Agreement, including, but not limited to: (1) the cost of reproducing this Loan Agreement and other related documents; (2) the reasonable fees and disbursements of counsel utilized by the Commission, the Bank and Bond Counsel; (3) all other reasonable fees and out-of-pocket ex- penses of the Trustee (including the reasonable fees an3'disburse- ments of counsel retained by the Trustee), the Bank, the Tender Agent, the Paying Agent, the Registrar, the Authenticating' Agent, the Remarketing Agent and the Commission in connection with the Loan and the enforcement thereof; and (4) any taxes in connection with the execution and delivery of this Loan Agreement and any recording and filing fees or stamp taxes relating to the pledge and assignment of the Com- mission's right, title and interest in and to this Loan Agreement, pursuant to the Indenture and all expenses, including reasonable attorneys' fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof. The provisions of this paragraph (d) shall survive the term- ination of this Loan Agreement and the payment in full of the obligations of the Governmental Unit hereunder. (e) INDEMNITY. To the full extent permitted under the laws of the State, the Governmental Unit will pay, and will protect, indemnify and save, the Commission, the Bank, the Remarketing Agent, the Authenticating Agent, the Registrar, the Tender Agent, the Trustee, each member, officer, commissioner, employee and 15 RR-47F qw 1W agent of any of the Commission, the Bank, the Remarketing Agent, the Trustee, the Tender Agent, and each other person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the Commission, harm- less from and against, any and 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 arising out of action of the Governmental Unit, its successors and assigns (but not of the other parties to the Program Documents or their representatives, agents, contractors, employees, licenses or others, except if acting as the representative, agent, contractor, employee or licensee of the Governmental Unit), in connection with, the Pro- ject, this Loan Agreement, the Program Documents or the breach or violation of any agreement, covenant, representation or warranty of the Governmental Unit set forth in this Loan Agreement, the Program Documents or any document delivered pursuant hereto or thereto.or in connection herewith or therewith. _Such indemnity shall not be.. restricted in any way by any limitation on the amount or type of damages, compensation or bene- fits 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 sovereign immunity of the Governmental Unit and the ability of Governmental Units to indemnify parties for the actions of such Governmental Units. An indemnified person shall promptly notify the Governmental Unit in writing of any claim or action brought against it, in respect of which indemnity may be sought against the Governmental Unit, setting forth, to the extent reasonably practicable under the circumstances, the particulars of such claim or action, and the Governmental Unit will promptly assume the defense thereof, including the employment of competent counsel reasonably satisfac- tory to such indemnified person and the payment of all expenses. An indemnified person may employ separate counsel with re- spect• to any such claim or action and participate in the defense thereof, but, except as provided herein, the fees and expenses of such separate counsel shall not be payable by the Governmental Unit unless such employment has been specifically authorized by the Governmental Unit 'or unless such employment was occasioned by conflicts of interest between and among indemnified persons and/or the Governmental Unit. If the Governmental Unit shall fail to assume the defense of any action as required hereunder, or, within a reasonable time after commencement of such action, to retain counsel satisfactory to the indemnified person, the fees and expenses of counsel to such indemnified person hereunder shall be paid by the Governmental Unit. 16 NS^471"--- The provisions of this paragraph (e) shall survive the termi- nation of this Loan Agreement. (f) AMOUNTS OWING UNDER LOAN AGREEMENT. The Governmental Unit agrees to the Fullest extent permitted under the laws of the State, to pay on deman;i its Proportionate Share of all amounts owed by the Commission under the Credit Facility Agreement with respect to any increased cost, indemnification (other than indem- nification obligations arising solely out of the acts or failure to act of one or more other Governmental Units unless such Govern- mental Unit is acting as the representative, agent, contractor, employee or licensee of the Governmental Unit), or other obli- gation of the Commission under Sections 3.06, 10.02 or 10.03 of the Credit Facility Agreement or the corresponding provisions of any Alternate Credit Facility. The provisions of this subpara- graph (f) shall survive the termination of this Loan Agreement and the payment in full of the obligations of the Governmental Unit hereunder. (g) SPECIAL COVENANTS AND FINANCIAL RATIOS. The Govern- mental Unit shall comply with all special covenants and financial ratios set forth in Exhibit E hereto, the terms and provisions of which are incorporated by reference as if fully set forth at length. (h) FURTHER ASSURANCE. The Governmental Unit shall execute and deliver to the Commission, the Bank and Trustee all such docu- ments and instruments and do all such other acts and things as may be reasonably necessary.or required by the Commission,* the Bank and the Trustee to enable each of them to exercise and enforce its rights under this Loan Agreement and to realize thereon, and record and file and re-record and re -file all such documents and instruments, at such time or times, in such manner and at such place or places, all as may be reasonably necessary or required by any of them to validate, preserve and protect its position under this Loan Agreement. (i) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Govern- mental Unit shall keep or cause to be kept proper records and books of account, in which correct and complete entries will be made in accordance with generally accepted accounting principles, consistently applied (except for changes concurred in by the Governmental Unit's independent auditors) reflecting all of its financial transactions. (j) PAYMENT OF 'FAXES, ETC. The Governmental Unit shall pay all taxes, assessments, and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims, which, if unpaid, might become a lien or charge upon any of its properties, provided that it shall not be required to pay any such tax, assessment, charge, levy or 17 claim which is being contested in good faith and by appropriate proceedings which shall operate to stay the enforcement thereof. (k) COMPLIANCE WITH LAWS, ETC. The Governmental Unit shall comply with the requirements of all applicable laws, including the Act, the terms of all grants, rules, regulations and orders of any governmental authority and the terms of this Loan Agreement and the Interlocal Agreement, non-compliance with which would, singly or in the aggregate, materially adversely affect its ability to perform its obligations under this Loan Agreement, unless the same shall be contested by it in good faith and by appropriate proceed- ings which shall operate to stay the enforcement thereof. (1) TAX EXEMPT STATUS OF BONDS. The `Commission and the Governmental Unit understand that it is the intention hereof that the interest on the Bonds not be included within the gross income of the holders thereof for federal income tax purposes. In fur- therance thereof, the Governmental Unit agrees that it will take all action within its control which is necessary in order for the interest on the Bonds to remain excluded from gross income of the holders thereof for purposes of federal income taxation and shall refrain` from taking any action which results in such interest becoming so included in gross income of the holders thereof for purposes of federal income taxation. The Governmental Unit further covenants that it will record or file or cause to be recorded or filed in such manner and in such places whatever documents relating to the obligations of the Governmental Unit under this Loan Agreement, as may be required by law to be recorded or filed in order to protect fully the security of the holders and owners of the Bonds, and, if applicable, the tax exempt status of such Bonds, including, but not limited to, the filing of all reports as may be required from time to time pursuant to the Code, particularly Section 103(1). The Governmental Unit further covenants that it will not take any action or fail to take any action with respect to the invest- ment of the proceeds of any Bonds received by the Governmental Unit, with respect to the payments derived from the proceeds of the Bonds received by the Governmental Unit or hereunder or with respect to the purchase of other Commission obligations which action or failure to act may cause the Bonds to be "arbitrage bonds" within the meaning of such term as used in Section 103(c) of the Code and the regulations promulgated thereunder. The Governmental -Unit further covenants that no more than twenty-five percent (25%) of the proceeds of its Loan from the Commission will be used in the "trade or business" of any person who is not an exempt person within the meaning of Section 103(b)(3) of the Code and the regulations promulgated thereunder or that no more than twenty-five percent (25%) of the payments on the Loan will be paid from payments in respect of property or 18 R S_4►7 r 1W low borrowed money used or to be user] in the tra3e or business of a person who is not an exempt person, unless (i) the Commission has consented to a use different than that set forth above, (ii) all Goveranental Units have consented to a use different than that set forth above and (iii) the Commission has receiver] an opinion of Bond Counsel acceptable to the Commission that the use of the proceeds in a manner other than that set forth above will not affect the exclusion from gross income of the holders of the Bonds for purposes of federal income taxation. The Governmental Unit further covenants that it will not directly or indirectly use more than five percent (5%) of the proceeds of the Loan to directly or indirectly !Hake loans to persons who are not exempt persons within the` meaning of Section 103(b)(3) of the Code and the regulations promulgated thereunder. The Governmental Unit 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 Commission in an amount related to the amount of the loan. (m) INFORMATION REPORTS. The Governmental Unit covenants to provide the. Commission with all material and information necessary to enable the Commission to file all reports required under Sec- tion 103 of the Code (including, if required, Form 8038) to as- sure that interest paid by the Commission on the Bonds shall, for purposes of the federal income tax, be excluded from gross income of the holders thereof. (n) LIMITED OBLIGATIONS. Anything in this Supplemental Loan Agreement to the contrary notwithstanding, it is understood and agreed that all obligations of the Governmental Unit hereunder shall be payable only from Non -Ad Valorem Revenues budgeted and appropriated as provided for hereunder and nothing herein shall be deemed to pledge ad valorem taxation revenues or to permit or constitute a mortgage upon any assets owned by the Governmental Unit and no one may compel the levy of ad valorem taxes on real or personal property within the boundaries of the Governmental Unit. The obligations hereunder do not constitute an indebtedness of the Governmental Unit within the meaning of any constitutional, statu- tory or charter provision or limitation, and neither the Trustee, the Commission, the Hank or the Bondholders shall have the right to compel the exercise of the ad valorem taxing power of the Governmental Unit or taxation of any real or personal property therein for the payment by the Governmental Unit of its obliga- tions hereunder. Notwithstanding any provision of this .Loan Agreement to the contrary, except to the extent set forth in Exhi- bit E to this Loan Agreement, the obligations of the Governmental Unit hereunder shall not be construed as a limitation on the ability of the Governmental Unit to pledge or covenant to pledge all or any portion of said Non -Ad Valorem Revenues for other legally permissable purposes. Notwithstanding any provisions of 19 RR-4 ; this Loan Agreement, the Indenture or the Bonds to the contrary, the Governmental Unit shall never be obligated to exercise ad valorem taxing power to maintain or continue any of the activities of the Governmental Unit which generate user service charges, regulatory fees or other Non Ad Valorem Revenues. Neither this Loan Agreement nor the obligations of the Governmental Unit hereunder shall be construed as a pledge of all or any portion of Non -Ad Valorem Revenues of the Governmental Unit, but shall be payable solely as provide3 in this Loan Agreement and is subject in all respects to the provisions of Section 166.241, Florida Statutes. It is the intent of the parties hereto, and they do hereby covenant and agree, that the liability of the Governmental Unit hereunder is a several liability of the Governmental Unit expressly limited to the Loan Payments and the Governmental Unit shall have no joint liability with any other Governmental Units or the Commission for any of their respective liabilities, except to the extent expressly provided hereunder. The Commission, the Bank and the Governmental Unit understand that the amounts available to be budgeted and appropriated to make .Loan Payments hereunder are subject to the obligation of the Governmental Unit to provide essential services; however, such obligation is cumulative and would, carry over from Fiscal Year to Fiscal Year. (o) The Governmental Unit covenants to provide to the Com- mission and the Bank notice as soon as is reasonably possible of any litigation pending, or to the knowledge of the Governmental Unit threatened against or affecting the Governmental Unit, in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would materially and adversely affect the existence or powers of the Governmental Unit or the ability of the Governmental Unit to perform its duties and obligations hereunder. (p) The Governmental Unit covenants not to take any action, or to the extent it may do so permit any Person to take any action, to terminate the corporate existence of the Governmental Unit unless adequate provision is made by law for the obligations of the Governmental Unit hereunder. 20 $48-47 r, ARTICLE III THE LOAN SECTION 3.01. THE LOAN. The Commission hereby agrees to loan to the Governmental Unit and the Governmental Unit hereby agrees to borrow from the Commission the sum of $7,200,000. The Borrower understands that it will receive, as proceeds of the Loan, 98.9% of the stated principal amount of the Loan, i.e., the amount of the Loan proceeds received by the Governmental Unit will be smaller than the principal amount of such Loan. The discount is equal to the Goverrunental Unit's share of the costs of the initial issuance of the Bonds and to the costs owed to the Bank upon the execution of. this Loan Agreement pursuant to the second sentence of Section 3.05 of the Reimbursement Agreement. The making of the Loan is subject to the terms and conditions contain- ed in this Loan Agreement and in the Indenture to the extent such amount is (i) approved by the Commission, (ii) approved in writing by the Bank and the Trustee and (iii) determined by the Trustee in its sole discretion to be available in the Loan Fund (established pursuant to Article IV of the Indenture) for such purpose. Such advanced amounts are to be used by the Governmental Unit for the purposes of financing or refinancing the cost of, or receiving reimbursement for the costs of the Projects in accordance with the provisions of this Loan Agreement, and to pay to the Banks the amounts owed to them pursuant to the second sentence of Section 3.05 of the Reimbursement Agreement. SECTION 3.02. LOAN. The Governmental Unit's obligation hereunder to repay amounts advanced pursuant to Section 3.01, together with interest thereon, shall be evidenced by this Loan Agreement. SECTION 3.03. CONVERSION TO FIXED MODE. If the Governmental Unit is not in default under this Loan Agreement, the Governmental Unit may elect to convert the interest rate payable on this Loan to a fixed rate in accordance with the terms hereof, provided that the conditions for converting the Interest Mode on a portion of the Bonds to a Fixed Mode pursuant to Section 2.04(f) of the In- denture are satisfied. The Governmental Unit may only elect to convert this Loan to a fixed rate if the outstanding principal amount of the Bonds that would be converted is equal to or greater than $5,000,000 or multiples of $25,000 in excess thereof. If the Governmental Unit should elect to convert the interest rate on this Loan to a fixed' rate, it shall give the Commission, the Trustee, and the Bank written notice of such desire not sooner than ninety (90) days and not later than sixty (60) days prior to the desirei effective date of the fixed rate (which date shall be an Interest Payment Date). Upon receipt of such notice, the sat- isfaction of the conditions set forth in Section 2.04(f) of the Indenture for converting the Interest Mode on a corresponding 21 portion of the Bonds to a Fixed Mode and the preparation and exe- cution of a supplement to this Agreement revising such provisions herein as counsel to the Commission and counsel for the Bank con- siders necessaryt the interest rate on this Loan will become a fixed rate calculated as provided in Section 5.02 hereof. Pursu- ant to the Indenture the Governmental Unit electing to convert such Loan ani a corresponding amount of Bonds is required to pay all costs and expenses relating to such conversion and furthermore in the event of a failed conversion may be responsible for certain additional costs as more fully described in the Indenture and in sections 5.02 and 5.03 hereof. M 22 SN-47.5 ARTICLE IV LOAN TERM AND LOAN CLOSING REQUIREMENTS SECTION 4.01. COMMENCEMENT OF LOAN TERM. The Governmental Unit's obligations under this Loan Agreement shall commence on the date hereof unless otherwise provided in this Loan Agreement. SECTION 4.02. TERMINATION OF LOAN TERM. The Governmental Unit's obligations under this Loan Agreement shall terminate upon (i) payment in full of all amounts due under this Loan Agreement and (ii) the last such payment having become Available Moneys, as defined in the Indenture. Provided, however, that all covenants and all obligations provided hereunder specified to so survive shall survive the termination of this Loan Agreement and the pay- ment in full of principal and interest hereunder. If the Loan is prepaid, this Loan Agreement shall terminate only upon such pre- payment becoming Available Moneys, as defined in the Indenture. Upon termination of the Loan Term as provided above, the Commis- sion and the Trustee or the Bank shall deliver, or cause to be delivered, to the Governmental Unit, an acknowledgment thereof. SECTION 4.03. LOAN CLOSING SUBMISSIONS. Concurrently with the execution and delivery of this Loan Agreement, the Govern- mental Unit is providing to the Trustee the following documents each dated the date of such execution and delivery unless other- wise provided below or unless waived by the Commission, the Trustee and the Bank: , (a) Certified resolutions of the Governmental Unit in the form of Exhibit B attached hereto. (b) An opinion of the Governmental Unit's Counsel in the form of Exhibit C hereto to the effect that the Loan Agreement is duly authorized and executed, and is a valid, binding and enforce- able obligation of the Governmental Unit in accordance with its terms (subject to bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally) and opining to such other matters as may be reasonably required by Bond Counsel and by the Bank; (c) A certificate of the officials of the Governmental Unit who sign this Loan Agreement to the effect that the representa- tions and warranties of the Governmental Unit are true and correct; (d) A certificate signed by the Authorized Representative of the Governmental Unit stating (i) the estimated dates and the amounts of projected expenditures for the Projects and (ii) that 23 )41R--47!-,3 it is reasonably anticipated by the Governmental Unit that the Loan proceeds will be fully advanced therefor and expended by the Governmental Unit prior to July 1, 1989 (or, in the alternative, that the proceeds of the Loan will be invested at a yield not in excess of the yield on the Bonds or in obligations, the interest on which is excluded from gross income of the holders thereof for purposes of Federal income taxation) and that the projected expen- ditures are based on the reasonable expectations of the Govern- mental Unit having due regard for its capital needs and the revenues available for the repayment thereof. (e) This executed Loan Agreement; (f) An opinion (addressed to, and in. form and substance acceptable to, the Commission, the Governmental Unit 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 Loan Agreement and will not cause the interest on the Bonds to be sub- ject to Federal income taxation or adversely affect the validity, due authorization for or legality of the Bonds; (g) An incumbency certificate and a signature certificate in form and substance acceptable to the Bank and Bond Counsel; (h) Such other certificates, documents and information as the Commission, the Bank, the Trustee or Bond Counsel may require. All opinions and certificates shall be dated the date of the Closing. 24 R8-475 ARTICLE V LOAN PAYMENTS SECTION 5.01. PAYMENT OF LOAN PAYMENTS. The Governmental Unit shall pay to the order of the Trustee for the account of the Commission all Loan Payments in lawful money of the United States of America to the Trustee. No such Loan Payment shall be in an amount such that interest on the Loan is in excess of the maximum rate allowed by the laws of the State of Florida or of the United States of America. The Loan shall be repaid in Basic Payments consisting of (a) principal in the amounts and on the dates set forth in Exhibit D and (b) interest calculated at the rate (the "Loan Rate") as provided in Section 5.02 hereof. Loan Payments shall begin on the first Loan Payment Date for the first Loan Payment Period following the Closing. No later than the fifth (5th) Business Day of each month, the Trustee shall give the Governmental Unit notice in writing of the total amount of the Loan Payment then due and payable. Any past - due Basic Payment which has not been paid by the Loan Payment Date shall be paid, together with interest thereon, at a rate equal to the Prime Rate from time to time plus two percent (2%) for the period for which such Basic Payment has not been paid, but not in excess of the Highest Lawful Rate. The Basic Payments and Addi- tional Payments shall be due on each Loan Payment Date, unless the principal amount of the,Loan is prepaid, accelerated or forgiven in accordance with the Indenture and in accordance with the provisions hereof. SECTION 5.02. CALCULATION OF LOAN RATE. (a) The Loan Rate shall for each Loan Payment Period be a rate which produces an amount at least equal to the sum of [M plus (3) or (4)] or (2): (1 ) FOR LOANS EXCEPT FOR FIXED RATE LOANS ESTABLISHED PURSUANT TO SECTION 3.03: The Governmental Unit's Proportionate Share of the interest paid on the Bonds (including Bank Bonds) for the immediately preceding Loan Payment Period, other than an amount of Bonds equal to the Reserve Require- ment; and (2) FOR FIXED RATE LOANS ESTABLISHED PURSUANT TO SECTION 3.03: One -sixth (provided that a partial payment shall be calculated for the month in which the fixed rate on the 25 RR—,47.'� "k I - Loan becomes effective if it becomes effective other than on the first day of such month and provided that if the fixed rate on the Loan is not established in July or January, the one -sixth shall be calculated as though the Interest Period were a full six months) of the interest to accrue during each Loan Payment Period on the Bonds which are converted to a Fixed Mode in accordance with Section 2.04(f) of the Indenture because the Govern- mental Unit elected to convert this Loan to a fixed rate pursuant to Section 3.03; provided, however, that the Governmental Unit shall not be required to pay interest on an amount of Bonds equal to the Reserve Requirement (except to the extent investment earnings on the Debt Service Reserve Fund are insufficient to pay such inter- est, in which case the Governmental Unit shall pay its Pro Rata Share of such deficiency); provided, further, that if all or part of the Bonds allocable to the Governmental Unit bear interest at the Bank Rate because of a mandatory tender of such Bonds upon an attempted fixed rate conversion pursuant to Section 2.04(f) of the Indenture, which conversion did not take place the Governmental Unit shall pay, in addition to all other payments required hereunder, all of the difference between the Bank Rate and the rate which such Bona s otherwise would have borne; ( 3 ) Prior to the Rebate Date ( except with respect to Loans the interest rates on which have been fixed pursu- ant to Section 3.03), the Governmental Unit's share of any deficiency (based upon the formula set forth in Section 5.04(b) hereof) in investment earnings on the Primary Account and the Secondary Account of the Loan Fund and in the Debt Service Reserve Fund caused by the fact that investment earnings on the Debt Service Reserve Fund and the amount on deposit on the first day of such Loan Payment Period in the Secondary Account of the Loan Fund and in the Primary Account of the Loan Fund and in the Principal Account are insufficient to pay such interest and Additional Payments allocable to such funds and accounts and to maintain Non Asset Bonds at zero (but not including any deficiency caused by the failure to receive funds under any Investment Agreements approved by the Bank and after excepting therefrom any amounts paid by Governmental Units whose Loans have been fixed pursuant to Section 3.03 hereof). (4) After the Rebate Date (except with respect to Loans the interest rates on which have been fixed pursuant to Section 3.03) , the Governmental Unit's Pro Rata Share of any deficiency in the investment earnings on the Second- ary Account of the Loan Fund and in the investment earn- ings on the Debt Service Reserve Fund caused by the fact 26 RR-47r 0 0 0 that investment earnings on the Debt Service Reserve Fund and the amount on deposit on the first day of such Loan Payment Period in the Secondary Account of the Loan Fund and in the Principal Account are insufficient to pay such interest and Additional Payments allocable to such funds and accounts. (b) If a Loan is not made on the first day of a Loan Payment Period, the Loan Rate for the first Loan Payment Period shall be calculated by taking into account only amounts to accrue for the remainder of the Loan Payment Period. (c) Prior to the Bonds converting to a Fixed Mode, the Governmental Unit recognizes that in the event Bonds are "put" to the Tender Agent pursuant to the Indenture, are not remarketed and are purchased with funds provided by the Bank under the Credit Facility, the interest rate on those Bonds during the period they are owned by the Bank or its transferee will be at the Bank Rate. SECTION 5.03. PAYMENT OF ADDITIONAL PAYMENTS. By execution of this Agreement, the Governmental Unit understands that payments hereunder will include payments in addition to that amount which constitutes interest borne by the Bonds. Such costs include, but are not limited to certain fees, costs and expenses of the Bank owed to it under the Credit Facility Agreement and interest on any amounts due the Bank under the Credit Facility Agreement. Refer- ence is made to the Indenture and the Credit Facility Agreement for provisions relating to fees, cost and expenses of the Commis- sion, the provisions of which are incorporated by reference as if fully set forth at length. In addition to Basic Payments, the Governmental Unit agrees to pay on the Loan Payment Date or on demand of the Trustee in the case of a permitted acceleration of the Loan pursuant to the provisions hereof, as the case may be, its Proportionate Share of the following Additional Payments (except for the Additional Payments relating to a principal amount of Bonds equal to the Reserve Requirement) to the extent that such items are not paid from the Costs of Issuance Fund or paid as provided in Section 2.02(d) and (f): ( 1 ) the fees and expenses of the Trustee owed to it under the Indenture; (2) the fees and expenses of the Paying Agent, the Registrar and the Authenticating Agent owed to them under the Indenture; (3) the fees and expenses of the Tender Agent owed to it under the Indenture. (4) the fees and expenses of the Bank owed to it under the Credit Facility Agreement; 27 RR-47an 0 0 ( 5 ) the fees and expenses of the Remarketing .Agent owed to it under the Remarketing Agreement (as defined in the Indenture); (6) the expenses of the Commission, including legal £ees; (7) the rating fees of Moody's Investors Service and/or Standard and Poor's Corporation, when necessary; (8) the Excess Interest Amount, including payments of such Excess Interest Amount in the amounts and at the times set forth in the Credit Facility Agreement; ( 9 ) all other amounts owed to the Bank pursuant to the Credit Facility Agreement, including to the extent provided in the Credit Facility Agreement, interest on amounts owing to the Bank under the Credit Facility Agreement; (10) such other reasonable fees and expenses in connec- tion with the Bonds, this Loan Agreement or the Credit Facil- it� Agreement, all as determined by the Trustee; and further agrees to make all deposits necessary to the Debt Service Reserve Fund to ensure that the amounts on deposit in the account established for such Governmental Unit in the Debt Service Reserve Fund shall be not less than the Governmental Unit's Pro- portionate Share of the Reserve Requirement to the extent that an insufficiency occurs because of an event of default under such Governmental Unit's Loan Agreement. Notwithstanding any other provision of Section 5.02 or 5.03, after the conversion of this Loan to a fixed rate, the Govern- mental Unit shall not be obligated to pay any of the fees, expenses and costs specified in (3), (4), (5), (8) or (9) above if the Credit Facility then in effect no longer secures the principal amount of Bonds so converted to a Fixed Mode. The Governmental Unit agrees to pay interest at Prime Rate in effect from time to time plus two (2) percent, but not in excess of the Highest Lawful Rate, on any Additional Payments not received by the Trustee on the .Loan Payment Date or on the date the principal amount of the Loan is prepaid or accelerated in accordance with the Indenture and this Loan Agreement, until such amounts, together with interest thereon at the rate specified in this paragraph shall have been paid in full. SECTION 5.04. CREDIT FOR INTEREST EARNINGS. (a) Notwithstanding the provisions of this Article V to the contrary, except with respect to Loans which have been fixed pur- suant to Section 3.03, after the Rebate Date and during such time 28 AS —47 -, as there are no Non -Asset Bonds, the Governmental Unit's Pro Rata Share of the excess earnings on the Debt Service Reserve Fund, Debt Service Fund and the amount on deposit on the first day of such Loan Payment Period in the Secondary Account shall be sub- tracted from the Governmental Unit's obligation to pay interest on the Bonds, pursuant to Section 5.02(a)(1) hereof (provided that earnings derived from investing the portion of such funds and accounts in subaccour.ts related to fixed rate Loans shall be excluded from such calculation). (b) Pursuant to Section 4.07 of the Indenture, excess inter- est earnings shall, prior to the Rebate Date, be deposited in the Excess Earnings Funds and utilized for the purposes set forth therein. Any amounts remaining in the Excess Earnings Fund shall be transferred to the Redemption Account created pursuant to the Indenture and used to redeem Bonds on the Rebate Date, unless the Trustee receives an opinion of Bond Counsel that interest on the Bonds will not be subject to federal income taxation if the re- demption is not made in which case such moneys shall be disbursed to the Governmental Units as set forth in guidelines adopted by the Issuer. In any redemption of Bonds or any disbursement of funds credit shall be given with each Governmental Unit receiving a credit equal to: n Z: t t=1 * I-E-N I-E or interpreted, Credit Per Governmental Unit Share of Aggregate Net Interest Earnings Aggregate Net Interest Earnings Less Non -Asset Bonds ($) where the symbols used in formula shall have the following defini- tions: C = Credit for each Governmental Unit's share of the net interest earnings, prior to the Rebate Date after provision for payment of the Non -Asset Bonds or for purposes of Section 5.02(a)(3) the amount owed by such Governmental Unit. 29 RS 4%r 0 i p = For each Governmental Unit shall mean the pro-rata 't share (percentage) of its loan to the total loans then outstanding for each increment in time "t"; provided, however, with respect to the initial increment in time "t", P will be based on the number of members of the Commission during such initial increment in time. t = Each separate and distinct increment in time, with the first increment "t" being measured from July 16, 1986 to the day immediately preceding the day on which the first Loan(s) is/are made; the next increment "t" starting on the date the next Loan(s) is/are made and ending on the day immediately preceding the day on which subsequent Loan(s) is/are made with each subse- quent increment "t" being measured in the same fashion, with the last increment "t" ending on July 1, 1988; except when used in conjunction with 5.02(a)(3) the latest "t" will end as of the date of calculation. i,� = The total interest income earned for each increment in time "t" on all Funds and Accounts created pursuant to t' the Indenture. et = The total amount of interest for each increment in time "t" borne by the Bonds and all Additional Payments due and owing, except with respect to an amount of Bonds equal to the amount of Loans then outstanding. I = The sum of each i for all increments in time "t". E = The sum of each a for all increments in time "V1. N = The Non Asset Bonds, if any, on the date of calcula- tion. To the extent any Governmental Unit's share of Aggregate Net Interest Earnings (the first half of the formula) is a negative fraction and the Aggregate Net Interest Earning Less Non -Asset Bonds (the second half of the formula) is greater than zero, as of the Rebate Date, then (1) the Governmental Unit will not share in the distribution of any excess interest income and (2) the denomi- nator (of the fraction used. in determining each Governmental Unit's share of Aggregate Net Interest Earning) will be recalcu- lated to be the sum of the positive numerator (of the remaining positive fractions) and the result'ing fractions will be used to distribute the available Aggregate Net Interest Earning Less Non - Asset Bonds. To the extent any Governmental Unit's share of Aggregate Net Interest Earnings is a negative fraction and the Aggregate Net Interest Earnings less Non -Asset Bonds is less than zero as of the Rebate Date (or as of the calculation date as provided for in section 5.02 (a)(3)) then the fraction used to 30 SS -47S !W' assess the Government Unit's share of the deficiency will be recalculated to be the fraction derived by (1) eliminating any sign on the numerator (plus or minus) and (2) recalculating the denominator to be the sum of the resulting (unsigned) numerators. Such formula shall also be used to determine the amount of pay- ments due pursuant to Section 5.02(a)(3). (c) The credits may be accumulated. If the credit allowable for a Loan Payment Period is not all needed in the Loan Payment Period, it may be used in the following Loan Payment Period; pro- vided, however, when amounts are transferred to the Redemption Account from the Interest Account or Excess Earnings Fund pursuant to the Indenture, any accumulated credit shall no longer be deemed a credit against the obligation to pay Loan interest and Addi- tional Payments, but instead shall be deemed a credit against the Governmental Unit's obligation to pay Loan principal. This credit shall be applied to the principal repayment portion of Basic Payments in inverse order of maturity of Basic Payments. (d) Notwithstanding the provisions of this Article V to the contrary, after the Rebate Date and for so long as there are no Non -Asset Bonds, with respect to any Governmental Unit which has elected to convert its Loan to a fixed rate pursuant to Section 3.03 hereof, such Governmental Unit's Proportionate Share of the earnings on the portions of the Debt Service Reserve Fund and the Debt Service Fund relating to such fixed rate Loan shall be sub- tracted from the Governmental Unit's obligation to pay interest on the Bonds pursuant to $ection 5.02(a) hereof. SECTION 5.05. LOAN PAYMENTS. The obligation of the Govern- mental Unit to make payment of Loan Payments or any other amounts required by this Article V, other Sections hereof and to perform and observe the other covenants and agreements contained herein shall be absolute and unconditional in all events except as other- wise expressly provided in this Loan Agreement. Notwithstanding any dispute between the Governmental Unit and the Commission, the Trustee, the Bank, any Bondholder or any other Person, the Govern- mental Unit shall make all payments of Loan Payments or any other amounts when due and shall not withhold any Loan Payments or any other amounts pending final resolution of such dispute nor shall the Governmental Unit assert any right of setoff or counterclaim against its obligation to make such payments required under this Loan Agreement. The Governmental Unit's obligation to make pay- ment of Loan Payments or any other amounts during the Loan Term shall not be abated through accident or unforeseen circumstances or because of payment (i) under the Credit Facility securing the Bonds, or (ii) from its Proportionate Share of the Debt Service Reserve Fund. The Commission and the Governmental Unit agree that the Governmental Unit shall bear all risk of damage or destruction in whole or in part to any Project or any part thereof, including 31 SIR-4%!7. 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 burdensome the use or occupancy of the Project or the compliance by the Governmental Unit with any of the terms of this Loan Agree- ment. Notwithstanding the foregoing, this Section 5.03 shall not limit the rights of the Governmental Unit to recover amounts owing to it, except as specifically set forth herein. SECTION 5.06. REFUNDING BONDS. In the event the Bonds are refunded, all references in this Loan Agreement to Bonds shall be deemed to refer to the refunding bonds or, in the case of a cross- over refunding, to the Bonds and the refunding bonds (but the Governmental Unit shall never.be 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 or be responsible for any debt service on or fees related to refunded bonds which are covered by earnings on the escrow fund established for the benefit of such bonds and which have been legally defeased in accordance with the provisions thereof). .; SECTION 5.07. SECONDARY ACCOUNT. Pursuant to the Indenture, Loan Payments, upon the occurrence of certain events and upon compliance with certain conditions more fully described in the Indenture, shall be deposited in the Secondary Account of the Loan Fund and loaned to other Governmental Units for Projects. The Commission hereby covenants and agrees that in making Loans from the Secondary Account of the Loan Fund that priority will be given to Governmental Units which have previously borrowed moneys from the Loan Fund and that within such group priority will -be based upon the date of the previous Loan, with Governmental Units which borrowed moneys from the Loan Fund at earlier dates receiving priority. Nothing herein, however, shall prohibit the Commission from establishing additional criteria for the making of Loans from the Secondary Account of the Loan Fund which must be met prior to the making of any Loan by the Commission. Loans made from the Secondary Account shall be made at such discounts, if any, as shall be approved by the Commission at the time such Loan was made. No Loans from the Secondary Account shall be made at a discount without the consent of the Bank unless there are no Non Asset Bonds, in which case the consent of the Bank shall not be required. In the event such Loan is made by the Commission at a discount, excess funds received by the Commission shall be distri- buted by the Commission to the extent possible to those Govern- mental Units whose Loan Payments are being used to make such Loans from the Secondary Account, to the extent such Governmental Units can be determined. 32 fr R_47! a 0 ARTICLE VI OPTION TO PREPAY LOAN PAYMENTS At the option of the Governmental Unit and after giving at least 30 days' written notice by certified or registered mail to the Commission and the Trustee, the Governmental Unit may, at its option, prepay the Loan Payments in whole by paying the then applicable Optional Prepayment Price or in part in integral prin- cipal multiples of $100,000, on any date, not less than 30 and not more than 180 days from the receipt of such notice. Such amounts shall be applied to any future principal installments of the Governmental Unit under this Loan Agreement. ` After a prepayment in whole, this Loan Agreement shall terminate, except for the obligations and covenants expressed herein to survive, upon pay- ment by the Governmental Unit to the Trustee of then applicable Optional Prepayment Price and upon such Optional Prepayment Price becoming Available Moneys as defined in the Indenture. The Loan may not otherwise be prepaid in whole or in part. Notwithstan:ling any provision of this Agreement to the con- trary, to the extent that payment of the Governmental Unit's Proportionate Share of the Excess Interest Amount is not made pursuant to the provisions hereof, the Governmental Unit's obliga- tions hereunder shall not cease and terminate until such amount has been paid in full by the Governmental Unit. The Loan may not be prepaid in full if for any reason, in- cluding inability to determine reinvestment rates, the Optional Prepayment Price cannot be determined. If following a prepayment, and prior to the date such prepay- ment is used to redeem Bonds or is available to be loaned to other Governmental Units, the investment earnings on the Governmental Unit's prepayment during any Loan Payment Period are insufficient to pay or accrue interest on an amount of Bonds equal to the prin- cipal prepayment therein and the fees in Section 5.03 related to such Bonds, the Trustee shall charge such deficiency to the other Governmental Units with Loans then outstanding based upon their Pro Rata Share and likewise shall credit any excess interest earn ings to Governmental Units with. Loans then outstanding on a Pro Rata Share, except as otherwise provided herein. 33 R--47 r ARTICLE VII ASSIGNMENT AND PAYMENT BY THIRD PARTIES SECTION 7.01. ASSIGNMENT BY COMMISSION. (a) This Loan Agreement and the obligations of the Govern-- mental Unit to make payments hereunder 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 Governmental Unit. The Governmental Unit expressly acknowledges that this Loan Agreement and the obligations of the Governmental Unit to make payments hereunder (with the exception of certain of the Commis- sion rights to indemnification, fees and expenses), have been pledged and assigned to the Trustee as security for the Bonds and for the Bank under the Indenture and the Credit Facility Agree- ment, and that the Trustee or the Bank shall be entitled to act hereunder and thereunder in the place and stead of the Commission whether or not the Bonds are in default. Notwithstanding the foregoing, no such assignment or reassignment may be made except to a sLiccessor Trustee and the provider of any Alternate Credit Facility. (b) In the Indenture and the Credit Facility Agreement, the Commission has agreed that, following the occurrence of an Event of Default under the Loan Agreement, accleration of the amounts due hereunder and payment by the Bank of the accelerated amount, the Commission will cause the Trustee to assign to the Bank all of the Trustee's rights under the Loan Agreement. SECTION 7.02. ASSIGNMENT BY GOVERNMENTAL UNIT. This Loan Agreement may not be assigned by the Governmental Unit for any reason without the express prior written consent of the Commis- sion, the Bank and the Trustee. SECTION 7.03. PAYMENTS BY BANK. The Governmental Unit acknowledges that payment under this Loan Agreement from funds received by the Trustee under the Credit Facility in the event of a default hereunder by the Governmental Unit does not constitute payment under this Loan Agreement for the purposes hereof or fulfillment of its obligations hereunder. 34 AA-47r ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES SECTION 8.01. EVENTS OF DEFAULT DEFINED. The following shall be "Events of Default" under this Loan Agreement and the terms "Event of Default" and "Default" shall mean (except where the context clearly indicates otherwise), whenever they are used in this Loan Agreement, any one or more of the following events. (a) Failure by the Governmental Unit to timely pay any Loan Payment, so long as the Bonds are outstanding and failure by the Governmental Unit to timely pay any other payment required to be paid hereunder on the date on which it is due and payable; (b) Failure by the Governmental Unit to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Loan Agreement for a period of not less than thirty (30) days after notice thereof to the Governmental Unit by the Trustee, the Commission or the Bank, unless the Trustee, the Commission and the Bank shall agree in writing to an extension of such time prior to its expiration; provided, however, if the fail- ure stated in the notice can be wholly cured within a period of time not materially detrimental to the rights of the Commission, the Trustee or the Bank, the Commission, the Trustee and the Bank will not unreasonably withhold their consent to an extension of such time if corrective action is instituted by the Governmental Unit within the applicable period and diligently pursued until the failure is corrected; (c) Any warranty, representation or other statement by the Governmental Unit or by an officer or agent of. the Governmental Unit contained in this Loan Agreement or in any instrument fur- nished in compliance with or in reference to this Loan Agreement, was false or misleading in any material respect when made; (d) The Governmental Unit or the Legislature of the State of Florida shall terminate the corporate existence of the Govern- mental Unit unless, in the opinion of the Commission, adequate provision is made by law for the obligations of the Governmental Unit hereunder; (e) Any provision of this Loan Agreement material to the performance of the obligations of the Governmental Unit hereunder shall at any time for any reason cease to be valid and binding on the Governmental Unit or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Governmental Unit (provided nothing herein shall be construed to limit the right of the Governmental Unit to judicially determine if it is permitted by law to make indemnity arising under subsec- tion 2.02(e) herein) or the Governmental Unit shall deny that it has any or further liability or obligation hereunder; 35 SS--47.r� (f) A petition is filed against the Governmental Unit under any bankruptcy, reorganization, arrangement, insolvency, readjust- ment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, and is now dismissed within 60 days of such filing; (g) The Governmental Unit files a petition in voluntary bankruptcy or seeking relief under any provision of any bankrupt- cy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any petition against it under such law; (h) The Governmental Unit admits insolvency or bankruptcy or its inability to pay its debts as they become due or is generally not paying its debts as such debts become due, or becomes insol- vent or bankrupt or makes an assignment for the benefit of credi- tors, or a custodian (including without limitation a receiver, liquidator or trustee) of the Governmental Unit or any of its property is appointed by court order or takes possession thereof and such order remains in effect or such possession continues for more than 60 days; (i) An "Event of Default" of the Commission under the Inden- ture or the Credit Facility Agreement shall have occurred and the Bonds shall have been accelerated pursuant to the provisions of the Indenture. As used in this subparagraph (i), an "Event of Default" shall only include Events of Default of the Commission not caused solely by a default of another Governmental Unit; (j) The Governmental Unit shall be in default in the payment of any principal of or interest on any obligation for borrowed money or for the deferred purchase price of any property or asset (unless the failure to make payment of such deferred purchase price is consequent upon a contest or negotiation being diligently pursued) or on any obligation guaranteed by the Governmental Unit or in respect of which it is otherwise contingently liable beyond any period of grace stated with respect thereto in any such obli- gation or in any agreement under which any such obligation is created, or shall default in the performance of any agreement under which any such obligation is created if the effect of such default is to cause such obligation to become, or to permit any holder or beneficiary thereof, -or a trustee or trustee on behalf thereof, with notice if required, to declare such obligation to be, due prior to its normal maturity., and any of the foregoing may (in the reasonable judgment of the Commission, the Trustee or the Bank) have a material adverse effect on the ability of the Govern- mental Unit to perform its obligations hereunder. Notwithstanding the foregoing, in order to constitute an "Event of Default" hereunder, any such payment must be for an amount in excess of $11000,000. 36 RR-4 %5 SECTION 8.02. NOTICE OF DEFAULT. The Governmental Unit agrees to give the Trustee, the Bank and the Commission prompt written notice if any petition, assignment, appointment or posses- sion referred to in Section 8.01(c), 8.01(f) and 8.01(g) is filed by or against the Governmental Unit or of the occurrence of any other event or condition which constitutes a Default or an Event of Default, or which with the passage of time or the giving of notice would constitute an Event of Default, immediately upon becoming aware of the existence thereof. Section 8.03. REMEDIES ON DEFAULT. Whenever any Event of Default referred to in Section 8.01 hereof shall have happened and be continuing, (i) the Commission or the Trustee, but only with the consent of the Bank, or (ii) the Bank shall in addition to any other remedies herein or by law provided, have the right, at its or their option without any further demand or notice, to take such steps and exercise such remedies as provided in Section 9.02 of the Indenture, and, without limitation, one or more of the follow- ing, but subject to all limitations set forth in the last para- graph of Section 9.01 of the Indenture: (a) Declare all Loan Payments of the Governmental Unit, in an amount equal to the Optional Prepayment Price applicable on the date of payment, and all other amounts due hereunder, to be imme- diately due and payable, and upon notice to the Governmental Unit the same shall become immediately due and payable by the Govern- mental Unit without further notice or demand. Notwithstanding the foregoing in the case of an Event of Default under Section 8.01(i) hereof, no Loan Payments of the Governmental Unit shall.be due and payable until the earlier of (i) 180 days after the occurrence of such Event of Default or (ii) the Expiration Date, as defined in the Credit Facility Agreement. (b) Take whatever other action at law or in equity may appear necessary or desirable to collect amounts then due and thereafter to become due hereunder or to enforce any other of its or their rights hereunder. SECTION 8.04. ATTORNEYS' FEES AND OTHER EXPENSES. The Governmental Unit shall on demand pay to the Commission, the Trustee and the Bank, the reasonable fees and expenses of attor- neys and other reasonableexpenses incurred by any of them in the collection of Loan Payments or -any other stuns due or the enforce- ment of performance of any other obligations of the Governmental Unit hereunder upon an Event of Default. The provisions of this Section 8.04 shall survive the termination of this Loan Agreement and the payment in full of the Governmental Unit's obligations hereunder. SECTION 8.05. NO REMEDY EXCLUSIVE; WAIVER, NOTICE. No remedy herein conferred upon or reserved to the Commission, the Bank or the Trustee is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other J ! 9R-47S remedy given under this Loan Agreement or now or hereafter exist- ing at law or in equity. No delay or omission to exercise any right, remedy or power shall be construed to be a waiver thereoft 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 Commission, the Bank or the Trustee to exercise any remedy reserved to it in this Article VIII, it shall not be necessary to give any notice other than such notice as may be required in this Article VIII. SECTION 8.06 ACCELERATION OF LOAN. The Governmental Unit understands and agrees that the program of the Commission is designed to maintain the lowest overall cost to the Governmental Units participating in the program. In connection with the fore- going and notwithstanding any provision of this Agreement to the contrary, if in the connection with the negotiation of the exten- sion of any Credit Facility then in effect or in connection with the obtaining of an Alternate Credit Facility, the Commission is informed that the continued participation of the Governmental Unit under the terms and conditions in effect at such time will either cause (i) the provider of the Credit Facility then in effect not to ex -tend in accordance with the terms and conditions then in effect or (ii) will cause the provider of any Alternate Credit Facility not to agree to provide"such Alternate Credit Facility or (iii) in the case of either ( i) or (ii) above, to provide such Credit Facility or Alternate Credit Facility on terms and condi- tions (including costs) which in the opinion of the Commission are not as favorable as those currently in effect, unless in either ( i) , (ii) or (iii) above, the Commission is able to -provide an Alternate Credit Facility at terms more favorable than the exist- ing Credit Facility, which will produce a lower overall cost to all Governmental Units notwithstanding the fact that such changes are not made, the Commission, upon a separate vote of the Commis- sion, may accelerate the Loan of the Governmental Unit effective on a date not earlier than two (2) years after such determination by the Commission. Upon such date of acceleration the Loan of the Governmental Unit, in an amount equal to the Optional Prepayment Price applicable on the date of payment, and all other amounts due thereunder, shall become immediately due and payable and all other amounts due hereunder, shall become immediately due and payable. 38 RR--47S AS.T = IX MISCELLAN90US SECTION 9,01. NOTICES. All notices, certificates or other communications hereunder sham be sufficiently given and shad be deemed given when hand delivered or flailed by registered or certi- fied mail, postage prepaid, to the parties at the following addresses: The Commission: The Governmental Unit: Sunshine Mate Governmental Financing Commission 201 S. Monroe Street Suite 500 Tallahassee, Florida 32301 The City of Miami City Hall Post Office Box 330708 Miami, Florida 33133 Attn: Director of Finance The Trustee: Florida National Bank 225 Water Street Jacksonville, Florida 32202 Attn: Corporate Trust Director The Bank: The Sumitomo Bank, Limited New York Branch One World Trade Center, Suite 9651 New York, New York 10048 Attn: Public Finance Department The Paying Agent: Florida National Bank 225 Water Street Jacksonville, Florida 32202 Attn: Corporate Trust Department Moody's: Moody's Investors Service, Inc. 99 Church Street New York, New York 10007 39 Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. SECTION 9.02. BINDING EFFECT, This Loan Agreement shall inure to the benefit of and shall be binding upon the Commission and the Governmental Unit and their respective successors and assigns. SECTION 9.03. SEVERABILITY. In the event any provision of the Loan Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. SECTION 9.04. AMENDMENTS, CHANGES AND MODIFICATIONS. This Loan Agreement may be amended by the Commission and the Govern- mental Unit as provided in the Indenture; provided, however, that no such amendment shall be effective unless it shall have been consented to in writing by the Trustee and the Bank. SECTION 9.05. EXECUTION IN "COUNTERPARTS. This Loan Agree- ment may be simultaneously executed. in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. SECTION 9.06. APPLICABLE LAW. This Loan Agreement shall be governed by and construed in accordance with the law of the State of Florida. SECTION 9.07. BENEFIT OF BONDHOLDERS AND BANK; COMPLIANCE WITH INDENTURE. This Loan Agreement is executed in part to induce the purchase by others of the Bonds and the issuance by the Bank of the Credit Facility. Accordingly, all covenants, agreements and representations on the part of the Governmental Unit and the Commission, as set forth in this Loan Agreement, are hereby declared to be for the benefit of the holders from time to time of the Bonds and the Bank. The Governmental Unit covenants and agrees to do all things within its power in order to comply with and to enable the Commission to comply with all requirements and to fulfill and to enable the Commission to fulfill all covenants of the Indenture. SECTION 9.08. CONSENTS AND APPROVALS. Whenever the written consent or approval of the Commission shall be required under the provisions of this Loan Agreement, such consent or approval may be given by an Authorized Representative of the Commission or such other additional persons provided by law or by rules, regulations or resolutions of the Commission. SECTION 9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF COMMISSION AND GOVERNMENTAL UNIT. No recourse shall be had for the payment of the principal of or premium or interest hereunder 40 9�] (iw4 Iy/y r or for any claim based thereon or upon any representation, obliga- tion, covenant or agreement in this Loan Agreement against any past, present or future officer, member, employee, director or agent of the Commission as such, either directly or through the Commission, the Governmental Unit, or respectively, any successor public or private corporation thereto under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, members, employees, directors or agents as such is hereby expressly waived and released as a condition of and consideration for the execution of this Loan Agreement. SECTION 9.10. CAPTIONS. The captions or headings in this Loan Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions of sec- tions of this Loan Agreement. SECTION 9.11. NO PECUNIARY LIABILITY OF COMMISSION. No prov- ision, covenant or agreement contained in this Loan Agreement, or any obligation herein imposed upon the Commission, or the breach thereof, shall constitute an indebtedness or liability of the State or any political subdivision of the State or any public corporation or governmental agency existing under the laws thereof other than the Commission. In making the agreements, provisions and covenants set forth in this Loan Agreement, the Commission has not obligated itself except with respect to the application of the revenues, income and all other property as derived herefrom, as hereinabove provided. SECTION 9.12. PAYMENTS DUE ON HOLIDAYS. If the date for making any payment or the last date for performance of any act or the exercise of any right, as provided in this Loan Agreement, shall be other than on a Business Day such payments may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Loan Agreement. IN WITNESS WHEREOF, the Sunshine State Governmental Financing Commission has caused this Loan Agreement to be executed in its corporate name through its Board of Directors with its corporate seal hereunto affixed and attested by its duly authorized officers 41 R R--47!;. r and the City of Miami has caused this Loan Agreement to be exe= outed in its corporate name with its corporate seal hereunto affixed and attested by its duly authorized officers. All of the above occurred as of the date first above written. SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION ATTEST: Ry._ Secretary Chairman EXHIBIT A USE OF LOAN PROCEEDS DIVISION I DESCRIPTION OF PROJECT TO BE ACQUIRED OR CONSTRUCTED Description of Items Allocated Amount Construction, Acquisition and Erection $701200800 of Renovations to the City of Miami Ousman Hall and Olympic Building DIVISION II DESCRIPTION OF PROJECT ACQUIRED OR CONSTRUCTED SUBSEQUENT TO 11 1986 FOR WHICH GOVERNMENTAL UNIT WILL BE REIMBURSED Description of Allocated Loan Item Date Acquired Amount 0 DIVISION III DESCRIPTION OF PROJECT FINANCED WITH INDEBTEDNESS BEING RETIRED OR REFINANCED Description of Item Type of Debt Allocated Loan Amount 9XH1BIm A=1 Construction, Acquisition# Improvement, Rehabilitation or Renova- tion of Municipally Owned and Operated (where appropriate): Roads, Streets# Highways, Sidewalks, Bikeways Bridges# Causeways Drainage Systems Water Systems Sewer Systems Public Buildings, furnishings and/or equipment Land Parking Garages Recreational Facilities, including Parks, Sports Fields, Community Centers# Golf Courses, Boat Landings, Beaches, Gyms, Pools, Lakes and related equipment thereto Electric Systems Gas Systems Bus Systems Airports Ports Vehicles, Equipment, Telephone Systems Sanitary Landfills Jails, Detention Centers Sports or Entertainment Facilities, including Arenas, Auditoriums, Convention or Exhibition Centers and related equipment thereto No Project included as a part of this Exhibit A-1 unless such project is permitted under the Act, the Indenture and the resolution of the Governmental Unit authorizing this Loan Agreement and that the construction, acquisition, improvement, rehabilitation or renovation of such Project will not cause interest on the Bonds to be subject to Federal income taxation or adversely affect the validity, due authorization for or legality of the Bonds. 99-4'7S f; 1 02 EXHIBIT B CERTIFIED RESOLUTION OF [INSERT NAME OF GOVERNING BOARD] EXTRACT OF MINUTES At a duly called meeting of the [Insert name of Governing Board] (the "Board") of [Insert name of Borrower] held on the day of , , at , there were at, all times present the fol o-wring members constituting a quorum of the Board At said meeting introduced and moved the adoption of the following eso ution: NO. A RESOLUTION OF TINSERT NAME OF BORROWER] AUTHORIZING THE NEGOTIATION OF ONE OR MORE LOANS IN AN AGGREGATE AMOUNT NOT TO EXCEED [$00,000,000] FROM THE SUNSHINE STATE GOVERN- MENTAiL FINANCING COMMISSION; APPROVING THE EXECUTION AND DELIVERY OF ONE OR MORE LOAN AGREEMENTS; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOANS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, [Insert Name of Borrower] (the "Borrower") together with other participating counties and cities (the "Members") have created the Sunshine State Governmental Financing Commission (the "Commission") pursuant to a certain Interlocal Agreement and Chapter 163, Part I, Florida Statutes, for the purpose of issuing its Bonds to make loans to participating members for qualified projects; and WHEREAS, the Commission has issued its $300,000,000 Sunshine State Governmental Financing Commission Revenue Bonds, Series 1986 and is seeking to make loans (the "Loans") to members; and WHEREAS, it is hereby determined that a need exists to borrow funds to finance, re -finance or receive reimbursement for the cost of the acquisition,- construction and/or equipping of the qualifying projects set forth on Exhibit A attached to the hereinafter described Loan Agreement.(the "Projects"); and WHEREAS, it is determined to be in the best interest of the Borrower to borrow funds from the Commission to finance, refinance or receive reimbursement for the cost of the acquisition, con- struction and/or equipping of the Projects. NOW, THEREFORE, BE IT RESOLVED BY [INSERT NAME OF GOVERNING BODY OF BORROWER], as follows: AR-4 75 •044 SECTION I The [Mayor or Vice -Mayor] [Chairman or Vice Chairman] and the Clerk or Deputy Clerk are hereby authorized and directed to execute and deliver one or more Loan Agreements, to be entered into by and between the Borrower and the Commission in substantially the form attached hereto as Exhibit B with such changes, insertions and omissions as may be approved by the [Mayor or Vice -Mayor] [Chairman or Vice -Chairman] and the Clerk or Deputy Clerk, the execution thereof being conclusive evidence of such approval. SECTION 2. The amount of the Loans of the Borrower evidenced by the Loan Agreement(s) shall not exceed [$00,000,000]. Such Loans shall be made at a discount which shall include a portion of costs of issuance previously incurred by the,Commission and shall bear interest and shall be repayable according to the terms and conditions set forth in the Loan Agreement(s) authorized pursuant to Section 1 hereof with such changes, insertions and omissions as may be approved by the [Mayor or Vice -Mayor] [Chairman or Vice -Chairman] and the Clerk or Deputy Clerk. SECTION 3. The [Mayor or Vice -Mayor] [Chairman or Vice Chairman] and the Clerk or Deputy Clerk or any other appropriate officers of the Borrower are hereby authorized and directed to execute any and all certifications or other instruments or docu- ments required by this Resolution, the Loan Agreement(s) or any other document required by the Commission as a prerequisite or precondition to making the Loans, and any such representation made therein shall be deemed to be made on behalf of the Borrower. All action taken to date by the officers of the Borrower in further- ance of the issuance of the Bonds and the making of the Loans is hereby approved, confirmed and ratified. SECTION 4. This Resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the [Insert Name of Governing Body] of the [Insert Name of Borrower] at a meeting held on the day of , 1987. (SEAL) ATTEST: By: EXHIBITS TO RESOLUTION EXHIBIT A - PROJECTS TO BE FINANCED THROUGH LOAN AGREEMENT WITH SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION EXHIBIT B - DRAFT OF LOAN AGREEMENT B-2 RS-4'7 Motion to adopt the foregoing Resolution was seconded by ____ __ar , put to a vote and carried. The me�ttber`s 0 t e Bovoted as follows: AYE: MAY: Thereupon the (Chairman of the board) declared the motion carried and the Resolution adopted. The [Secretary] [Clerk) was instructed to enter -the following proceedings upon the minutes of the Board. The undersigned further certifies that the above Resolution has not been repealed or amended and remains in full force and effect. WITNESS my hand and seal of the [Governing Board] of this day of , Secretary [Clerk] [SEAL] r B-3 0 EXHIBIT C OPINION OF BORROWER'S COUNSEL [Letterhead of Counsel to Borrower] [Date of the Closing] Sunshine State Governmental Financing Commission Tallahassee, Florida Florida National Bank Jacksonville, Florida The Sumitomo Bank, Limited New York Branch The Fuji Bank, Limited New York Branch The Mitsubishi Trust and Banking Corporation, New York Branch New York, New York Gentlemen: We are counsel to [Name of Borrower], [County] [City] (the "Borrower"), and have been requested by the Borrower to give this opinion in connection with the loan by the Sunshine State Govern- mental Financing Commission (the "Commission") to the Borrower of funds to finance or refinance or reimburse the Borrower for all or a portion of the cost of certain projects (the "Projects") as defined in, and as described in Exhibit A of, the Supplemental Loan Agreement, dated as of the date hereof (the "Loan Agree- ment"), between the Commission and the Borrower. ' In this connection, we have reviewed such records, certifi- cates and other documents as we have considered necessary or appropriate for the purposes of this opinion, including applicable laws, and resolutions adopted by the [name of governing board] of the Borrower, the Loan Agreement, an Indenture of Trust dated as of July 1 , 1986, as amended by a First Supplement to Indenture of Trust dated as of November 1, 1986 (the "Indenture") between the Commission and Florida National Bank, as trustee, as amended and supplemented (the "Trustee"). Based on such review, and such other considerations -of law and fact as we believe to be relevant, we are of the opinion that: (a) The Borrower is a [County] [City] duly organized and existing under the laws of the State of Florida. The Borrower has the legal right and all requisite power and authority to enter into the Loan Agreement and to consummate the transactions contem- plated thereby and otherwise to carry on its activities and own its property. � 7Sw47r (b) The Borrower has power to enter into the Loan Agreement and to purchase or construct the Project and/or receive reimburse- ment for the costs of the acquisition or construction thereof and/or refinance the indebtedness to be refinanced with the pro- ceeds of, the loan and has been duly authorized to execute and deliver the Loan Agreement and to purchase or construct the Pro- ject and/or receive reimbursement for the costs of the acquisition or construction thereof and/or refinance the indebtedness to be refinanced with the proceeds of the loan under the terms and provisions of a resolution of its (name of governing board]. (c) The Borrower has duly authorized, executed and delivered the Loan Agreement and the Loan Agreement (including, but not limited to the terms and provisions of Section 2.02(a) hereof) constitutes a legal, valid and binding obligation of the Borrower enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency and other similar laws affecting enforceability of creditors' rights generally and to the application of equitable principles if equitable remedies are sought. The foregoing not- withstanding, the covenant to budget and appropriate as contained in Section 2.02(a) of the Loan Agreement does not create any lien upon or pledge of the Non -Ad Valorem Revenues nor does it preclude the Borrower from pledging in• the future its Non -Ad Valorem Revenues, to the extent the Borrower is in compliance with certain provisions of the Loan Agreement, nor does it require the borrower to levy and collect any particular Non -Ad Valorem Revenues as opposed to claims of general creditors of the Borrower determined and liquidated as to amount prior to the time an appropriated amount is deposited in -the Funds and Accounts created pursuant to the Indenture. However, the covenant to budget and appropriate in its general annual budget for the purposes and in the manner stated in the Loan Agreement, has the effect of making available for the payment of the obligations of the Borrower the Non -Ad Valorem Revenues of the Borrower placed in such Funds and Accounts and placing on the Borrower a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations under its Loan Agreement; subject, however, in all respects to the restrictions of Section 166.241, Florida Statutes, which makes it unlawful for any municipality to expend moneys not appropriated and in excess of such municipality's current budgeted revenues. The obligation of the Borrower to make such payments from its Non -Ad Valorem Revenues is subject to the availability of money in the treasury of the Borrower and funding requirements for essential services of the Borrower; however, such obligation is cumulative and would.carry over from Fiscal Year to Fiscal Year. (d) Neither the execution and delivery of the Loan Agreement, the consummation of the transactions contemplated thereby, the purchase or construction of the Project or the reimbursement for costs of the acquisition or construction thereof or the refinanc- ing of the indebtedness to be refinanced with the proceeds of the loan nor the fulfillment of or compliance with the terms and con- ditions of the Loan Agreement conflicts with or results in a R9-47 no breach of or default under any of the terms, conditions or provi- sions of any agreement, contract or other instrument, or law, ordinance, regulation, or judicial or other governmental order, to which the Borrower is now a party or it or its properties is otherwise subject or bound, and the Borrower is not otherwise in violation of any of the foregoing in a manner material to the transactions contemplated by the Loan Agreement. (e) There is no litigation or legal or governmental action, proceeding, inquiry or investigation pending or, to the best of our knowledge, threatened by governmental authorities or to which the Borrower is a party or of which any property of the Borrower is subject, which has not been disclosed in writing to the Commis- sion, or to The Sumitomo Bank, Limited, New York Branch, as agent for itself and The Fuji Bank, Limited, New York Branch and The Mitsubishi Trust and Banking Corporation, New York Branch (collec- tively, the "Bank") which, if determined adversely to the Bor- rower, would individually or in the aggregate (i) materially and adversely affect the validity or the enforceability of the Loan Agreement or (ii) otherwise materially adversely affect the abil- ity of the Borrower to comply with its obligations under the Loan Agreement or the transactions contemplated by such documents or (iii) materially and adversely affect the properties, prospects or condition (financial or otherwise) of the Borrower or the corpor- ate existence of the Borrower. (f) Any indebtedness being refinanced, directly or indirect- ly, with the proceeds of the Loan was initially incurred by the Borrower, and the proceeds of such indebtedness have been fully expended, to finance the cost of the Project. (g) There is no fact of which the Borrower has knowledge that the Borrower has not specifically disclosed in writing to the Commission and the Bank that materially and adversely affects or that will (based on facts and circumstances known to us today) materially affect adversely the properties, activities, prospects or condition (financial or otherwise) of the Borrower or the ability of the Borrower to perform its obligations under the Loan Agreement. (h) The Interlocal Agreement creating the Commission and all amendments thereto have been duly authorized and executed by the Borrower. Very truly yours, RR... 4'7.R- 1 AM EXHIBIT b 9CHMLE CAP PRINCIPAL AMORTIZATION OP LOAN PAYMENTS Date! Principal 07/01/89 $ 140,000.00 07/01/00 150,000.00 07/01/91 159,000.00 07/01/92 169,000.00 07/01/93 179,000.00 07/01/94 190,000.00 07/01/95 2Q1,000.00 07/01/96 213,000.00 07/01/97 226,000.00 07/01/98 239,000.00 07/01/99 254,000.00 07/0'1/00 269,000.00 07/01/01 285,000.00 07/01/02 302,000.00 0,7,/01/03 ;- 320,000.00 07/01/04 340,000.00 - 07/01/05 360,000.00 07/01/06 382,000.00 07/01/07 404,000.00 07/01/08 429,000.00 07/01/09 455,000.00 07/01/10 482,000.00 07/01/11 - 511,000.00 07/01/12 541,000.00 M20 ,00 Exhibit "E" Special Covenants and Financial Ratios (A) Budget Process Purs-:ant to Section 2.02(a) hereof, the Governmental Unit has covenanted and agreed to budget and appropriate in its annual budget, by amendment, if required, to the extent and In accordance with the procedures permitted by law and to pay when due directly into the appropriate Fund or Account created in the Indenture, sufficient amounts of Non -Ad Valorem Revenues of the Governmental Unit sufficient to satisfy the Loan Payment as required hereunder. The amount budgeted and appropriated for interest due hereunder shall be based upon an assumed interest rate equal to (i) the greater of 120% of (a) the average rate of interest for the 12-month period ending on the immediately preceding June 30, or (b) the interest rate for the Interest Period (calculated on a monthly basis) ending in June of such year or (ii) such lower rate as may be approved in writing by the Banks and filed with the Commission and the Governmental Unit. The obligation of the Governmental Unit pursuant to Section 2.02(a) includes an obligation to make amendments to the budget of the Governmental Unit, to the extent and in accordance with the procedures permitted by law to assure compliance with the terms and provisions thereof. If during any Interest Period (calculated on a monthly basis) the Loan Rate (if continued until .the end of the Fiscal Year) would -cause the total remaining Loan Payments to exceed the amounts budgeted for such purposes, the Governmental Unit covenants and agrees to analyze the estimated average iLoan Rate for the next four (4) weeks. If by the end of such four -week period, the Loan Rate (if continued until the end of the Fiscal Year) would cause the total remaining Loan Payments to -exceed the amounts budgeted for such purposes) the Governmental Unit will initiate all necessary procedures to amend its budget. The assumed interest rate used in such budget amendment will be based upon 120% of the highest Loan Rate during the past three Loan Payment Periods. (B) Additional Security (1) For the payment of all of its obligations hereunder, the Governmental Unit grants unto the Commission a lien on and pledge of the Lease Payments., as hereinafter defined, as security for the payment of all of a.ts obligations under this Loan Agreement. Anything in this Loan Agreement to the contrary notwithstanding, it is understood and agreed that all obligations of the Govern- mental Unit hereunder shall be payable only from the Lease Pay- ments and as otherwise provided in Section 2.02(a) hereof and 9S-47 nothing herein shall be deemed to pledge any other Non -Ad Valorem Revenues or any ad valorem taxation revenues or to permit or con- stitute a mortgage upon any assets owned by the Governmental Unit and no one may compel the levy of ad valorem taxes on real or personal property within the boundaries of the Governmental Unit. The obligations hereunder do not constitute an indebtedness of the Governmental Unit within the meaning of any constitutional, statu- tory or charter provisions or limitation, and neither the Trustee, the Commission, the Bank or the Bondholders shall have the right to compel the exercise of the ad valorem taxing power of the Governmental Unit or taxation of any real or personal property therein for the payment by the Governmental Unit of its obliga- tions hereunder. Except to the extent set forth in this Subsec- tion (B) of Exhibit E, the obligations of the Governmental Unit hereunder shall not be construed as a limit on the ability of the Governmental Unit to pledge or covenant to pledge all or any portion of the ad valorem taxation revenues or the Non -Ad Valorem Revenues of the Governmental Unit for other legally permissible purposes. It is the intent of the parties hereto, and they do hereby covenant and agree that the liability of the Governmental Unit hereunder is a several liability of the Governmental Unit expressly limited to the Loan Payments and that the Governmental Unit shall have no joint liability with any other Governmental Units -or the Commission for any -of their respective liabilities, except to the extent expressly provided hereunder. (2) The Governmental Unit covenants that, so long as any portion of the Loan shall remain outstanding, it will not issue or incur bonds or other indebtedness payable out of or -secured by Lease Payments. Notwithstanding the foregoing, the Governmental Unit may at any time or from time to time issue or incur subordi- nated indebtedness payable out of Lease Payments. Such subordi- nated indebtedness may also be secured by a pledge of the Lease Payments or any portion thereof, so long as such pledge shall be expressed to be subordinate in all respects to the pledge of the Lease Payments created by this Loan Agreement as security for the Loan. Notwithstanding the foregoing, the Governmental Unit also may borrow from the Commission additional moneys payable out of and secured by the Lease Payments on a parity with the Loan with the prior written consent of the Bank. "Lease Payments" means those lease payments received by the Governmental Unit from any person (including, but not limited to the Governmental Unit) for the use of all or any portion of the project being financed with the proceeds of the Loan. NS -47S A Ci+5 Ot� WAM: rLOR'DA INTER•01rFICE MEMORANDUM Honorable Mayor and Members of the City Commission Cesar H. Odio �.I City Manager (' 14 RECOMMENDATION: AT E MAY 13 1988 Gusman Cultural Center/ Olympia Building Renovation Project Loan Agreement RL9[PE%CE5 City Commission Meeting of May 19, 1988 Nc.c=_4f S ( 3 ) It is recommended that the City Commission approve the attached resolution authorizing the City Manager to execute a loan agreement, in substantially the form attached thereto, in an aggregate amount not to exceed $7,200,000, with the Sunshine State Governmental Financing Commission (SSGFC); for the purpose of financing the renovation/redevelopment of the Gusman Cultural Center/Olympia Building project, at a cost not to exceed $6.121 Million and in accordance with the terms and conditions set forth therein. The loan agreement will require the following: o The City will be obligated for one -hundred percent (100490 of the debt; o The City is the borrower; o The City will be restricted from subleasing the office space to be occupied by the Department of Off -Street Parking and the City to a private entity due to the Sunshine State Governmental Financing Loan Commission borrowing requirements and tax exempt status; o The interest rate of the loan will be a variable rate, with a monthly adjustable rate which is presently under six percent (6%), but each monthly period the City must make available funds based upon applicable interest rates for monthly debt payments due under the loan agreement; o The City and DOSP are committed as lessors for the term of the loan; o The City will be required to budget and appropriate from non -ad valorem revenues; and o The amount budgeted and appropriated for interest due 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 on the immedi- 88-475 Nbnbrable Mayon and Members of the City Commission Page 2 ately preceding June 30, or (b) the interest rate for the Interest Period (calculated on a monthly basis) ending in June of such year, or (ii) such lower rate as may be approved in writing by the Banks and filed with the Sunshine State Governmental Financing Commission and the Governmental Unit. BACKGROUND: On May 12, 1988, the City Commission adopted Resolution No. 88- 436 approving the recommendation of the City Manager for the proposed renovation and redevelopment of the Gusman Cultural Center/Olympia Building at a cost not to exceed $6.121 Million; authorizing the City Manager to finalize negotiations with Flagler Landmark Associates concerning such project and instruct- ing the City Manager to bring back the proposed Flagler Landmark Associates agreement to the City Commission for approval prior to its execution; authorizing the City Manager to negotiate the terms of an agreement with the Department of Off -Street Parking and instructing the City Manager to bring back the proposed agreement with said department to the City Commission for its approval prior to execution thereof, which agreement shall pro vide for the proportional sharing of all costs associated with the operations, maintenance, and debt service involved in the project pursuant to the availability of afinancing mechanism acceptable in all respects to the City Commission. (See attachment l for additional background information.) 98-4'75 May 19, 1988 Mr. Cesar Odio City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 Dear Cesar: Please accept this Letter of Intent from the Department of Off -Street Parking to participate with the City in the redevelopment of the Olympia Building and renovation of the Gusman Theater in accordance with Option B - Exhibit 2 presented by Assistant City Manager Sergio Rodriguez at the April 27, 1988 Regular Board meeting on a pro rata basis of the space occupied with a total not to exceed 70 percent. Further, the Department of Off -Street Parking anticipates the effect of the 70/30 split of all debt service, operations, and maintenance should result in the first year rental amount of $27.50 per square foot and a $25.00 per square foot rate thereafter. The Department further understands that Included in the rate per square foot are operating expenses of $10.00 per square foot for the term of the agreement. The Executive Director is further authorized to negotiate an interlocal agreement with the City of Miami to proceed subject to a pro rate split with the City should there be any cost overruns in connection with the redevelopment and renovation of the project. Sincerely, Jo n J . ulvena Executive Director Department of Off -Street Parking cc: Honorable Chairman and Members of the Off -Street Parking Board Sergio Rodriguez Elbert Waters Submitted into the public John Pearson Rob Goldfarb Dan Morhaim record in connection with Susan Eckel item S 4 on -� I _city Hirai City Clerk Department of Off Street Parking 190 N.E. Third Street Miami, Florida 33132 305-373-6789 88 4'75 p i a