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HomeMy WebLinkAboutR-87-0449J-87-297 Revised 3/27/87 RESOLUTION NO 87-7- 49 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A LOAN AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, BETWEEN THE CITY OF MIAMI AND GRAN CENTRAL CORPORATION, A FLORIDA CORPORATION, FOR AN AMOUNT TO BE DETERMINED, SAID FUNDS TO BE UTILIZED FOR THE ACQUISITION OF A 17,850 SQ. FT PARCEL LOCATED AT 104 NW 1ST AVENUE, THE LOAN TO THE CITY TO BE SECURED BY A CAPITAL IMPROVEMENT BOND DELIVERED BY THE CITY TO GRAN CENTRAL CORPORATION• PAYMENTS ACCRUING ON THE BOND SHALL BE A6CRUED WITHOUT INTEREST AND SHALL BE REPAID FROM FUNDS GENERATED BY THE SUPPLEMENTAL DISTRICT TO SOUTHEAST OVERTOWN/PARK WEST TAX INCREMENT TRUST FUND. WHEREAS, the City Commission approved the Southeast Overtown/Park West Community Redevelopment Plan by Resolution No. 82-755; and WHEREAS, the City Commission amended the Southeast Overtown/Park West Community Redevelopment Plan by Resolution 85- 1143; and WHEREAS, Metropolitan Dade County established the Southeast Overtown/Park West Tax Increment District by Ordinance 82-115; and WHEREAS, Metro -Dade amended the boundaries of the Southeast Overtown/Park West Tax Increment District by Ordinance 86-4; and WHEREAS, the City of Miami desires to improve vehicular and pedestrian traffic flow within the Downtown Area and improve accessibility to public facilities and transportation services; and WHEREAS, the City of Miami desires to encourage economic revitalization of the Southeast Overtown/Park West Project Area; and WHEREAS, Gran Central Corporation, a Florida Corporation, desires to develop property along the west side of N.W. 1st Avenue; and WHEREAS, Gran Central Corporation has agreed to loan the City of Miami funds to acquire needed property for right-of-way improvements to N.W. 1st Avenue in the vicinity of N.W. 1st Street and to match said loan with a cash contribution of equal funds; a n d CITY COMMISSION MEETING OF MAY 14 1981 4S 0 WHEREAS, the City Commission has approved the said loan from and contribution by Gran Central Corporation by Resolution No. 87 —448 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute a loan agreement, in a form acceptable to the City Attorney, between the City of Miami and Gran Central Corporation. Section 2. The amount of the loan is to be determined by the total cost, for the acquisition of a 17,850 sq. ft. parcel located at 104 N.W. 1st Avenue and will be equally matched by a payment to the City by Gran Central Corporation of 50% of the total acquisition costs. Section 3. The loan to the City is to be secured by a Capital Improvement Bond delivered by the City to Gran Central Corporation and payments on the Bond shall be accrued without interest. Section 4. Repayment of the Bond shall be secured solely by a lien of funds deposited in the Southeast Overtown/Park West Trust Fund from revenue generated by the properties that have been added to the Tax Increment District by Dade County Ordinance 86-4 and said Bond shall be junior and subordinate to any other bonds heretofore issued by the City of Miami which are to be payable from funds existing in or to be deposited into said Tax Increment Fund. PASSED AND ADOPTED this 14th day of May 1987. MAYOR W4!i PREPARED AND APPROVED BY: - I*e ww-,e- I. RG-BERT F. CLARK, DEPUTY CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: L 4IAA. DOUGHEIRTY, CITY ATTORNEY I CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM TO. Honorable Mayor and Members of the City -Commission J FROM: Cesar H. Odio City Manager DATE: MAY 0 { FILE: SUIPJECT: Resolution authorizing the City Manager to execute a loan agreement REFERENCES: For City Commission ENCLOSURES: Meeting of 5/ 1 4/ 8 7 RECOMMENDATION It is respectfully recommended that the City Commission approve the attached resolution authorizing -the City Manager to execute a loan agreement in a form acceptable to the City Attorney with Gran Central Corporation for an amount to be determined. Said funds to be utilized for the acquisition of a 17,850 sq. ft. parcel located at 104 N.W. 1st Avenue at no interest with repayment to be secured by a lien of funds deposited into the Southeast Overtown Tax Increment Trust Fund generated by the Supplemental Tax Increment District and to be matched by an equal contribution by Gran Central Corporation. BACKGROUND The Department of Development and the Law Department have reviewed the Loan Agreement. The loan will provide the necessary funding for the acquisition of a 17,850 sq. ft. parcel located at 104 N.W. 1st Avenue. This parcel is strategically located at the proposed entryway into N.W. 1st Avenue which is slated to be rebuilt as a landscaped boulevard from N.W. 1st Street to N.W. loth Street. This street will provide the major access from Downtown to the Arena and the adjacent Southeast Overtown/Park West residential development. Gran Central Corportion, a subsidiary of the Florida East Coast Industries, Inc. will loan the City an amount to cover 50% of all costs associated with the acquisition of the beforementioned property. This loan will be matched by an equal direct contribution (50%) by Gran Central Corporation to the City for the acquisition of the property. It is anticipated that the loan will not exceed $1,500,000, but the exact amount will be determined by the final acquisition costs. 1 Honorable Mayor and Members of the City Commission Page 2 A Capital Improvement Bond will be issued by the City to Gran Central Corporation to evidence the City's obligation to repay the loan. Repayment of the Bond shall be secured by a lien on funds deposited in the Tax Increment Trust Fund established for the Southeast Overtown/Park West Project but the lien shall only extend to the amount on deposit in the Tax Increment Fund generated by the Supplemental Tax Increment District (area bounded by NW 1st Street, N.W. 5th Street, North Miami Avenue and N.W. 1st Avenue). Payments accruing on the Bond shall accrue without interest and shall be Junior and subordinate to any lien on the Tax Increment Fund. (Initial Bond issue slated for 1989 to repay existing indebtness created by the MUD Section 108 loan). Gran Central Corporation shall not have the right to complete the exercise of the Ad Valorem Taxing —Power of the City for loan repayment from any funds of the City other than the Tax Increment Trust Funds. The attached loan agreement delineates all the terms of the loan. Attachments: Proposed Resolution Loan Agreement • LOAN AGREEMENT on F 198 , the Gran Central Corporation, a Florida corporation ('GCC") and The City of Miami, a Florida municipal corporation (the "City"), entered into this Loan Upon Agreement dated , 198 (the "Loan Agreement"). execution and delivery of this Loan Agreement by the parties hereto, it shall be binding upon the City and GCC. 1. Definitions. In addition to terms defined elsewhere in this Loan Agreement, the following terms have the meanings indicated, which meanings shall be equally applicable to both the singular and the plural forms of such terms: "Acquisition" shall mean the acquiring by the City, by purchase, through condemnation proceedings or otherwise, of the land and building located on the Northwest corner of Northwest First Street and Northwest First Avenue within the Redevelopment Area, which acquiring shall be considered completed on the day that title to such land and building is transferred to the City. "Bond" shall mean the Capital Improvement Bond deliv- ered by the Cl y to GCC at the Closing in the principal amount of $3,000,000 to evidence the City's obligation to repay the Loan. "Borrowing" shall mean the drawing down by the City of all or aepmrtiv �ond of the LosnoL-ntanyhis IoannAg�eementgaD�dttllpuaondnt to the t "Borrowi.ne Date" shall mean the date as of which a Borrowing is consumrnated. "Business Dom" shall mean a day on which commercial banks are open for business in Miami, Florida. "City" shall have the meaning assigned to that term in the introduction to this Loan Agreement. "Closing" shall mean the place and time provided in Section 5 of this Loan Agreement. "Commencement Date" shall mean the date of execution and delivery by the City Of this Loan Agreement. "Commitment" shall mean the obligation of GCC to advance all or a portion of the Loan pursuant to the terms and conditions of this Loan Agreement and the Bond, which obligation shall begin on the Commencement Date and end on the earlier of: (1) the day as of which the City gives written notice to GCC that the City does not intend to initiate any additional Borrowings, - 1 - - p or (2) the day which is two (2) years after the completion of the Acquisition. "Control" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the owner- ship of voting securities, by contract, or otherwise. "GCC" shall have the meaning assigned to that term in the introduction to this Loan Agreement. "Gran Central Project shall mean the property located Aven adjacent to Northwest First,ue between Northwest First Street and Northwest Eighth Street, Miami, Florida, which is owned by GCC or a Parent or Subsidiary of GCC on the date of execution and delivery of this Loan Agreement. "Loan" shall mean the amount advanced to the City by GCC, from time to time, pursuant to the terms of this Loan Agree- ment and the Bond, the aggregate principal amount of which shall not exceed $3,000,000 or, where the context so requires, the amount thereof then outstanding. "Loan Agreement" shall mean this Loan Agreement, as such agreement may, from time to time, be amended. "Parent" shall mean a Person that directly or indi- rectly, through one or more intermediaries, Controls the Person specified. "Payment Date" shall mean the day which is one year after the day upon which the Commitment expires and the same day in each year thereafter. "Person" shall mean any natural person, corporation, unincorporated organization, trust, joint-stock company, joint venture, association, company, partnership or government, or any agency or political subdivision of any government. "Redevelop Areallshall mean the Southeast Over- town/Park West Re evelopment Area as created by Resolution No. 82-755 and Resolution No. 85-1143, passed and adopted by the City Commission on July 29, 1982 and November 26, 1985, respectively, and by Resolution No. R-1677-82 and Resolution No. R-63-86, passed and adopted by the Board of County Commissioners of Dade County, Florida on December 7, 1982 and January 21, 1986, respec- tively. "Subsidiary" shall mean any Person that is under the Control of GCC or a Wholly -Owned Subsidiary during the term of - 2 - Z this Loan Agreement, as well as all Subsidiaries. and other Persons, in each case as from time to time may be included in the consolidated financial statements of GCC. "Supplemental Tax Increment District" shall mean the area generally bounded by the Metrorail on the west, Northwest First Street on the south, Miami Avenue on the east, and North- west Fifth Street on the north, which was added to the Redevelop- ment Area by Resolution No. R-63-86, passed and adopted by the Board of County Commissioners of Dade County, Florida on ,January 21, 1986. "Tax Increment Fund" shall mean the Southeast Over- town/Park West Redevelopment Trust Fund created by Ordinance No. 82-115, passed and adopted by the Board of County Commissioners of Dade County, Florida on December 21, 1982. "Termination Date" shall mean the earlier of: (1) the day which is twenty (20) years after the day as of which the Commitment expires, or (2) the day as of which the Commitment expires in the year 2012, or if in either case this date is not a Business Day, the next succeeding Business Day. "Wholly -Owned Subsidiary" shall mean any Subsidiary, 100% of the outstanding capital stock of* which is owned by GCC and/or one or more Wholly -Owned Subsidiaries. 2. The Bond. (a) To finance the Acquisition and to encourage development of certain property located within the Redevelopment Area, including the Gran Central Project, by relocating and widening Northwest First Avenue between Northwest First Street and Northwest Eighth Street, each located within the Redevelop- ment Area, upon the terms and conditions and upon the basis of the representations, warranties and agreements set forth herein, GCC hereby agrees to make the Loan to the City and to accept the Bond as evidence of the obligation of the City to repay such portions of the Loan as are advanced by GCC, and the City hereby agrees to sell and deliver the Bond. The Bond shall be dated , 198, shall not bear interest and shall mature, subject to prepayment prior to maturity pursuant to Section 2(h) hereof, upon the Termination Date. The Bond shall evidence the City's obligation to repay such portions of the Loan as are advanced to the City by GCC. The form of the Bond shall be as described in, and the Bond shall be issued pursuant to the provi- sions of Ordinance No. , duly adopted by the City Commis- sion on , 198 , ("the "Ordinance"), and shall be issued pursuant to any ordinance or resolution that may be passed or adopted by the Board of County Commissioners of Dade County, - 3 - 0 S 876v" U Florida relating to the transactions contemplated by this Loan Agreement (such resolution or ordinance hereinafter referred to collectively as the "County Ordinance"). The Bond shall not be transferable by GCC, except upon the prior written consent of the City. (b) During the time the Commitment is in effect, GCC shall advance, from time to time, portions of the Loan to the City, subject to the conditions set forth in Section 2(c) of this Loan Agreement in such amounts as the City shall request, up to an amount which shall not exceed $3,000,000 in the aggregate. (c) To' initiate a Borrowing, the City shall give written notice (or telephonic notice, promptly confirmed in writ- ing) to GCC prior to 10:00 A.M., Miami time, at least five (5) Business Days prior to the proposed Borrowing Date specifying the Borrowing Date (which shall be a Business Day) and the amount of the proposed Borrowing. Such notice shall also contain a certif- ication by the City that monies from the Borrowing will be used to pay costs and expenses related to the Acquisition. Provided the City's Borrowing request is in compliance with the provisions of this Loan Agreement, including the notice requirements hereof, GCC shall advance the requested portion of the Loan on the Bor- rowing Date by certified or banl: cashier's check payable re the order of the City of Miami, Florida. Any notice delivered or given by the City to GCC as provided in this Section 2(c) shall be irrevocable and binding upon the City upon receipt by GCC. (d) Pursuant to the terms of the Bond, GCC shall be obligated to provide to the City monies sufficient to pay fifty percent (50%) of all costs and expenses related to the Acquisi- tion, including without limitation, fees and expenses of counsel to the City and expenses incurred in connection with the prepara- tion of any document and the performance of any obligation related to the Loan and to this Loan Agreement. If, upon the expiration of the Commitment, the amount of all Borrowings in the aggregate were in excess of fifty percent (50%) of all costs and expenses related to the Acquisition, the City shall promptly reimburse GCC in the amount of such excess. (e) Payment of the Bond shall be secured by a lien on the funds deposited into the Tax Increment Fund but such lien shall only extend to the amount on deposit in the Tax Increment Fund generated by the Supplemental Tax Increment District. If the revenues generated by the Supplemental Tax Increment District and deposited into the Tax Increment Fund are less than the amount of the payment due on the Bond on any Payment Date (after accounting for the amount that such revenues have been reduced by prior payments on the Bond), the amount due on the Bond on such Payment Date shall be added to the amount due on the Bond on the - 4 - V subsequent Payment Date. Payments accruing on the Bond shall accrue without interest and shall be paid on the first Payment Date after and to the extent that revenues are generated by the Supplemental Tax Increment District and deposited into the Tax Increment Fund. -� (f) The lien on the Tax Increment Fund provided in a Section 2(e) of this Loan Agreement shall be junior and subordi- ', pate in all respects to any lien on the Tax Increment Fund fi created by any other bonds issued by the City or Dade County, Florida and payable from funds existing in or to be deposited into the Tax Increment Fund. Notwithstanding the foregoing, after the City has issued bonds secured by the Tax Increment Fund, the Bond shall be payable in whole, at the option of GCC, prior to the City's issuance of any additional bonds secured by the Tax Increment Fund; provided, however, that such option shall arise only if revenues generated by the Supplemental Tax Incre- ment District and deposited into the Tax Increment Fund prior to the issuance of such additional bonds are sufficient to pay the outstanding amount of the Bond and are otherwise available for such payment. If revenues generated by the Supplemental Tax Increment District and deposited into the Tax Increment Fund are available to pay the outstanding portion of the Bond, the City shall provide GCC with written notice of its intention to issue such additional bonds and the date such bonds are expected to be issued, at least twenty (20) days prior to the issuance of such bonds and GCC shall provide the City with written notice of its intention to exercise its option to tender the Bond for payment in whole at least ten (10 ) days prior to the City' s issuance of such additional bonds. (g) Subject to Section 2(e), Section 2(f) and Section 2(h) of this Doan Agreement, C,h.e Bond shall be payable in equal annual. installments beginning on the first Payment Date and ending on the Termination Date. (h) Notwithstanding anything within this Loan Agree- ment to the contrary, on any Payment Date the City may prepay in part or, on any date, may prepay in whole the principal amount of the Bond then outstanding upon providing ten (10) Business Days' notice to GCC in writing of its intention to make such prepay- ment. THE BOND SHALL BE PAYABLE SOLELY FROM AND SECURED BY A LIEN UPON AND A PLEDGE OF THE FUNDS DEPOSITED INTO THE TAX INCREIr W FUND IN THE MANNER AND TO THE EXTENT PROVIDED HAVE IN IS LOAN TO AGREEMENT AND IN THE ORDINANCE. GCC SHALLNOT COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY OR TAXATION IN ANY FORD! ON ANY REAL OR PERSONAL PROPERTY TO PAY THE BOND, NOR SHALL IT BE ENTITLED TO PAYMENT OF THE BOND FROM ANY - 5 - 4 3 t a 1 j i i - e s FUNDS OF THE CITY OTHER THAN THE TAX INCREMENT FUND, IN THE MANNER AND TO THE EXTENT PROVIDED IN THIS LOAN AGREEMENT AND IN THE ORDINANCE. NEITHER THE CITY, THE STATE OF FLORIDA, NOR ANY POLITICAL SUBDIVISION THEREOF SHALL BE OBLIGATED TO PAY ANY AMOUNT DUE PURSUANT TO THE TERMS OF THIS LOAN AGREEMENT OR THE BOND FROM AD VALOREM TAXES AND NEITHER THE FULL FAITH AND CREDIT OF THE CITY, THE STATE OF FLORIDA, NOR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED FOR PAYMENT OF ANY AMOUNT DUE PURSUANT TO THE TERMS OF THIS LOAN AGREEMENT OR THE BOND AND THE SAME DO NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY, THE STATE OF FLORIDA, NOR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CON- STITUTIONAL, STATUTORY OR CHARTER PROVISION OR LIMITATION. 3. Representations, Warranties and Agreements of GCC. GCC hereby represents, warrants and agrees as follows: (a) GCC, its Parent and each of its Subsidiaries is a corporation duly organized, validly existing and in good standing under the respective laws of the jurisdiction of its organization and each has the full right, power and authority to transact business in all places now being conducted by it, in the manner being conducted by it. GCC has the full right, power and author- ity to enter into, execute and deliver this Loan Agreement and this Loan Agreement, when duly executed and delivered for value, will constitute the legal, valid and binding obligation of GCC, enforceable in accordance with its terms, except as such terms may be limited by bankruptcy, insolvency or similar laws of general application affectinq the enforcement of creditors' rights and by the availability of equitable remedies; (b) The creation and performance by GCC of the obli- gations under this Doan Agreement and any, additional documents pursuant hereto have been duly authorized by all necessary corporate action of GCC, its Parent and its Subsidiaries, and do not and will not violate any provision of law or regulation, or any writ, order or decree of any court, governmental or regula- tory authority or agency or any provision of the corporate charter or bylaws of GCC, its Parent or any of its Subsidiaries, and do not and will not, with the passage of time or the giving of notice, result in a breach of, or constitute a default or require any consent under any instrument or agreement to which GCC, its Parent or any of its Subsidiaries is a party or by which GCC, its Parent or any of its Subsidiaries or any of their respective properties may be bound or affected; (c) There is no fact which GCC has not the City in writing which materially and adversely so far as GCC can now foresee, is reasonably likely materially and adversely affect the ability of GCC t obligations of this Loan Agreement or the ability - 6 - disclosed to affects nor, to prove to o perform the of GCC, its Parent or any of Project in such revenues will be deposited into the its Subsidiaries tc a manner so that generated by the Tax Increment Fund; develop the Gran Central significant tax increment Gran Central Project and (d) The re are no suits or proceedings pending or, to the actual knowledge of GCC, threatened before any court or by or before any governmental or regulatory authority, commission, bureau or agency or public regulatory body against or affecting GCC, its Parent or any of its Subsidiaries which, if adversely determined, would have a material adverse affect on the ability of GCC to perform the obligations of this Loan Agreement or the ability of GCC, its Parent or any of its Subsidiaries to develop the Gran Central Project in such a manner so that significant tax increment revenues will be generated by the Gran Central Project and deposited into the Tax Increment Fund; (e) Neither GCC, its Parent nor any of its Subsid- iaries is a party to any agreement or instrument or subject to any court order or judgment, governmental decree, charter or other restriction materially and adversely affecting the ability of GCC to perform the obligations of this Loan Agreement or the ability of GCC, its Parent or any of its Subsidiaries to develop the Gran Central Project in such a manner so that significant tax increment revenues will be generated by the Gran Central Project and deposited into the Tax Increment Fund. Neither GCC, its Parent nor any of its Subsidiaries is in default in anv material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which it is a party or by which it or its properties is laaund or affected, or under any law, regulation, decree, order or the like; (f) All authorizations, consents, approvals and licenses required under applicable law or regulation for GCC to perform the obligations of this Loan Agreement have been duly issued and are in full force and effect. Neither GCC, its Parent nor any of its Subsidiaries is in default under any order, decree, ruling, regulation, closing agreement or other decision or instrument of any governmental commission, bureau or other administrative agency or public regulatory body having jurisdic- tion over GCC, its Parent or any of its Subsidiaries, which default would have a material adverse effect on the ability of GCC to perform the obligations of this Loan Agreement or the ability of GCC, its Parent or any of its Subsidiaries to develop the Gran Central Project in such a manner so that significant tax increment revenues will be generated by the Gran Central Project and deposited into the Tax Increment Fund. No approval, consent or authorization of or filing or registration with any govern- mental commission, bureau or other regulatory authority or agency - 7 - fflw449 T is required with respect. to the execution, delivery or perfor- mance of this Loan Agreement or the documents and transactions contemplated hereby. (g) GCC, or a Parent or Subsidiary of GCC, has good and marketable fee title to all real property comprising the Gran Central Project. 4. Ciitt �. lows: Representations The City hereby Warranties and Aqreements of the represents, warrants and agrees as (a) The City is and will be at the date of Closing duly organized and validly existing as a municipal corpor- ation with the powers and authority set forth in Chapter 166, Florida Statutes, as amended, its Charter and any other applicable laws (collectively, the "Act"); (b) - The City has full legal right, power and autho- rity to: (i) enter into this Loan Agreement, (ii) adopt the Ordinance, (iii) issue and deliver the Bond to GCC as provided herein, and (iv) carry out and consummate the transactions contemplated by this Loan Agreement and the Ordinance and the City has complied, and at the Closing will be in compliance in all respects with the terms of the Act and with the obligations on its part in connection with the issuance of the Bond contained in the Ordinance, the Bond and this Loan Agreement; (c) By all necessary official action the City has duly adopted the Ordinance, has duly authorized and approved the execution and delivery of:, and the performance by the City of the obligations on its part in connection with the issuance of the Bond contained in the Bond, the Ordinance and this Loan Agreement and the consummation by it of all other transactions contemplated by this Loan Agreement in connection with the issuance of the Bond. The Ordinance constitutes the legal, valid and binding obligations of the City, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, and similar laws affect- ing creditors' rights generally and subject, as to enforce- ability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). The Bond, when issued, authenticated and delivered to GCC in accordance with the Ordinance and this Loan Agree- ment, will constitute a legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regard- - 8 - �d less of whether enforcement is sought in a proceeding in equity or at law); (d) Except as provided herein, the City is not in material breach of or material default under any applicable constitutional provision, law, or administrative regulation of the State of Florida or the United States or any appli- cable judgment or decree, or any loan agreement, indenture, bond, note, or material resolution, agreement, or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise sub- ject, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the execution and delivery of the Bond, this Loan Agreement, and the adoption of the Ordinance, and com- pliance with the provisions on the City's part contained therein, will not conflict with or constitute a breach of or default under any constitutional provision, law, admini- strative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement, or other in- strument to which the City is a party or to which the City or any of its property or assets is otherwise subject, nor will any such execution, delivery, adoption, or compliance result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of the City, under the terms of any such lacy, regulation or instrument, except as provided by the Bond and the Ordinance. (e) Except as provided herein, all authorizations, approvals, licenses, pormits, consents and orders of• any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter have been duly obtained which are required: for the due authorization by or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the City of its obligations in connection with the issuance of the Bond under this Loan Agreement and the Ordinance, except for such approvals, consents and orders as may be required under the Blue Sky or Securities laws of any state in connection with the offering and sale of the Bond; (f) The descriptions of the Bond and the Ordinance herein conform in all material respects to the Bond and the Ordinance; (g) Except as provided herein, as of the date here- of, there is no action, suit, proceeding, inquiry or in- vestigation, at law or in equity, before or by any court, 9 - s R N- government agency, public board or body, pending or, to the best knowledge of the officials of the City executing this Loan Agreement, threatened against the City, affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Bond or the collection of any taxes or fees pledged or to be pledged to pay the Bond, or contesting or affecting as to the City the validity or enforceability of the Act in any respect relating to authorization for the issuance of the Bond, the Ordinance, this Loan Agreement, or contesting the powers of the City or any authority for the issuance of the Bond; the adoption of the Ordinance, or the execution and delivery by the City of this Loan Agreement; (h) The consolidated financial statements of the City for the fiscal year ended September 30, 1986, including any related notes, certified by Coopers & Lybrand, indepen- dent certified public accountants, pursuant to their audit of the financial records of the City for the fiscal year ended September 30, 1986, heretofore furnished to GCC, were prepared in accordance with generally accepted accounting principles consistently applied, are complete and correct and fairly present the consolidated financial condition of the City as of such date and the results of operations for the fiscal period ended on such date. Other than as dis- closed by those financial statements, the City does not have any direct or contingent obligations or liabilities which would be material to the consolidated financial position of the City, nor any materiel unrealized or anticipated losses from any conuni.tments of the City. Since the date of such financial statements and except as heretofore disclosed by the City to GCC in writing, there has been no material adverse change in the business or financial condition of the City, taken as a whole; (i) The financial statements referred to in Section 4(h) hereof do not, nor does this Loan Agreement, or any written statement furnished by the City to GCC in connection with the negotiation of this Loan Agreement, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or here- in, in light of the circumstances under which they were made, not misleading. There is no fact which the City has not disclosed to GCC in writing which materially and adversely affects nor, so far as the City can now foresee, is reasonably likely to prove to materially and adversely affect the business or financial condition of the City or the ability of the City to perform the obligations of this Loan Agreement; - 10 - T S. Closing. At 10:00 A.M., Miami time, on 198 , or at such earlier or later time as may be mutually agreed upon by the City and GCC, the City will, subject to the provi- sions hereof, deliver the Bond to GCC in definitive form, duly executed and authenticated, together with the other documents hereinafter mentioned, and, subject to the provisions hereof, GCC will deliver the documents hereinafter mentioned, accept delivery of the Bond and, if requested by the City pursuant to the notice requirements of Section 2(c) hereof, advance a portion of the Loan to the City in the amount requested. Delivery and payment of funds advanced, if any, shall be made at the offices of the City, or such other place as may be mutually agreed upon by the City and GCC. 6. Closing Conditions of GCC.• GCC has entered into this Loan Agreement in reliance upon the representations and war- ranties of the City contained herein, and in reliance upon the representations and warranties to be contained in the documents and instruments to be delivered by the City at the Closing. Accordingly, GCC's obligation to accept the Bond and make the Loan as provided therein and herein shall be subject to the following conditions: (a) The representations and warranties of the City _ contained herein shall be true, complete and correct on the date hereof and on and as of the date of the Closing; (b) At the tune of the Closing, the ordinance shall _ be in full force and effect in accordance with its respec- tive terms and shall., not have been further amended, modified or supplemented; ( c ) At the time of the Closing, all necessary offi- cial action of the City relating to this Loan Agreement and the Bond shall be in full force and effect in accordance with their respective terms and shall not have been amended, modified or supplemented in any material respect, except in each case as may have been accepted by GCC; and (d) At or prior to the Closing, GCC shall have received copies of each of the following documents: (1) The Ordinance, certified by the City Clerk under seal as having been duly adopted by the City Commission and as being in effect, with such supple- ments or amendments as may have been accepted by GCC; (2) If appropriate, the County Ordinance, certified by the clerk of Dade County, Florida under seal as having been duly adopted by the Board of County Commissioners and as being in effect, with such supplements or amendments as may have been accepted by GCC; (3) The opinion, dated the date of the Closing and addressed to the City, of Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, Florida, Bond Counsel to the City, in substantially the form attached hereto as Appendix A; (4) The opinion, dated the date of the Closing and addressed to GCC, of Lucia Dougherty, Esq., City Attorney, to the effect that (i) this Loan Agreement and the Bond have been duly authorized, executed, and delivered by the City and each constitutes a valid, binding and enforceable obligation of the City, enforceable in accordance with their terms, except to .the extent that the enforceability of the rights and remedies set forth herein or therein may be limited by bankruptcy, insolvency or other laws affecting credi- tors' rights generally and subject, as to enforce- ability, to.general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); (ii) the City has the right, power and authority under the Act to adopt the Ordinance and the Ordinance has been duly and lawfully adopted by _ the City, is in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought: in a proceeding in equity or at law), and no other authori- zation is required; (iii) to the best of her know- ledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pend- ing or threatened against or affecting the City, nor, is there any basis for any such action, suit, proceed- ing, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the transactions contemplated by this Loan Agreement or the validity of the Bond or the Ordinance, except as described herein; and (iv) all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities required for the City's adoption, execution or performance of the obligations under the terms of the Bond, the Ordinance and this Loan Agreement have been obtained - 12 - Iy or effected and, to the best of her knowledge, she has no reason to believe that the City will be unable to obtain or effect any additional authorization, con- sent, approval or review that may be required in the future for the performance of any of them by the City; (5) A certificate, dated the date of Closing, signed by the Mayor and Director of Finance, and approved and signed by the City Attorney as to (iii) below, or other appropriate officials satisfactory to GCC, to the effect that, to the best of their know- ledge: (i) the representations of the City herein are true and correct in all material respects as of the date of Closing; (ii) the City has performed all obli- gations to be performed hereunder as of the date of Closing; (iii) except as disclosed herein, no litiga- tion is pending or threatened (A) to restrain or enjoin the issuance or delivery of the Bond, (B) in any way contesting or affecting any authority for the issuance. of the Bond or the validity of the Bond, the Ordinance, or this Loan Agreement, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or enjoin the collection of revenues (other than as provided herein) pledged or to be pledged to pay the principal of, premium, if any, and interest on the Bond, or (E) asserting that this Loan Agreement contains any untrue statement of a material fact or omits to state any material fact necessary to make tiic statements made herein, in light of the circumStances under which they were made, not misleading (but in lieu of such certificate, GCC may in its sole discretion accept an opinion of Bond Counsel, that in the opinion of Bond Counsel the issues raised in any such pending or threatened liti- gation are without substance or that the contentions of any plaintiffs therein are without merit); (iv) since September 30, 1986, no material and adverse change has occurred in the financial position or results of operations of the City, except as set forth in or contemplated by this Loan Agreement; and (v) this Loan Agreement did not as of its date, and does not as of the date of Closing contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements con- tained herein, in light of the circumstances under which they were made, not misleading; If the City shall be unable to satisfy the conditions to the obligation of GCC to accept delivery of the Bond, or if the obligation of GCC to accept delivery of the Bond shall be termin- - 13 - ated for any reason permitted by this Loan Agreement, this Loan Agreement shall terminate and neither GCC nor the City shall be under any further obligation hereunder, except that the respec- tive obligations of the City and GCC set forth in Sections 9 and 11 hereof shall continue in full force and effect. 7. 'Closing Conditions of the City. The City has entered into this Loan Agreement in reliance upon the representations and warranties of GCC contained herein, and in reliance upon the representations and warranties to be contained in the documents and instruments to be delivered by GCC at the Closing. Accord- ingly, the City's obligation to deliver the Bond at Closing shall be subject to the following conditions: (a) The representations and warranties of GCC con- tained herein shall be true, complete and correct on the date hereof and on and as of the date of the Closing; (b) At the time of the Closing, all necessary official and corporate action taken by GCC or any other Person in relation thereto, including, without limitation, any Parent or Subsidiary of GCC relating to this Loan Agreement and the Bond shall be in full force and effect in accordance with their respective terms and shall not have been amended, modified or supplemented in any material respect, except in each case as may have been accepted by the City; and (c) At or prior to the Closing, the City shall have received copies of each of the following document.:: (1) The Articles of Incorporation and Bylaws of GCC, certified under seal by authorized officers of GCC to the effect that such Articles and Bylaws have been duly adopted by GCC, are in full force and effect and, as of the date of the Closing, have not been further modified, supplemented or amended; (2) A Certificate of the Secretary of State of Florida with respect to the good standing of GCC in the State of Florida. (3) The Resolutions of the Board of Directors of any Parent of GCC and each Subsidiary of GCC affected hereby, certified under seal by authorized officers thereof, relating to the negotiation and execution of this Loan Agreement and all other corporate actions taken by GCC certified under seal by authorized officers thereof, which authorize, empower or direct any officer of GCC any Parent of GCC or any - 14 - I10 Subsidiary of GCC to enter into the transactions contemplated by the Bond and by this Loan Agreement; (4) A Certificate of incumbency and specimen signatures, certified under seal by authorized officers of GCC, with respect to the officers of GCC who have been authorized, empowered and directed to execute this Loan Agreement and any documents to be delivered at the Closing; (5) The opinion, dated the date of the Closing and addressed to the City, of Charles Evans, Esq., counsel for GCC, to the effect that (i) this Loan Agreement has been duly authorized, executed, and delivered by GCC and constitutes a valid, binding and enforceable obligation of GCC in accordance with its terms, except to the extent that the enforceability of the rights and remedies set forth herein may be limited by bankruptcy► insolvency or other laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); (ii) GCC has the right, power and authority, under the laws of the State of Florida and under the laws of the United States, to enter into this Loan Agreement and the obligations of the Bond, as they relate to GCC, its Parent or any of its Subsidiaries, constitute legal valid and binding obligations of GCC, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' right= generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and no other author" ization is required by GCC to enter, into this Loan Agreement or to adopt the obligations of the Bond; (iii) to the best of his knowledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or threatened against or affecting GCC, its Parent or any of its Subsidiaries, nor, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the trans- actions contemplated by this Loan Agreement or the validity of the obligations created by the terms of the Bond, except as described herein; and (iv) all authorizations, consents, approvals and reviews of - 15 - 7 W7-44 t ; governmental bodies or regulatory authorities required for GCC's adoption, execution or performance of the obligations under the terms of the Bond and this Loan. Agreement have been obtained or effected and, to the best of his knowledge, he has no reason to believe that GCC will be unable to obtain or effect any such ` additional authorization, consent, approval or review that may be required in the future for performance of any of them by GCC; (6) A certificate, dated the date of Closing, signed by the Chairman of the Board of Directors of GCC and the President of GCC, and approved and signed by GCC's counsel as to (iii) below, or other appro- priate officers of GCC satisfactory to the City, to the effect that, to the best of their knowledge: (i) the representations of GCC herein are true and correct in all material respects as of the date of Closing; (ii) GCC, its Parent and its Subsidiaries have performed all obligations to be performed hereunder as of the date of Closing; (iii) except as disclosed herein, no litigation is pending or threatened (A) to restrain or enjoin GCC's acceptance of the Bond, (B) in any way contesting or affecting any authority for the acceptance of the Bond or the performance of the obligations thereunder, or under this Loan Agreement, (C) in any way contesting the corporate existence or powers of GCC, its Parent or any of its Subsidiaries, (D) to restrain or enjoin the collection of any monies (other than as provided herein) pledged or to be pledged to make the Loans to the City, or (E) asserting that t17i,s Loan Agreement contains any untrue statement of: a. material fact or Omits to state any material tact necessary to make the statements made herein, in light of the circumstances under which they were made, not misleading (but in lieu of such certificate, the City may in its sole discretion accept an opinion of counsel for GCC, that in the opinion of such counsel the issues raised in any such pending or threatened litigation are without substance or that the contentions of any plaintiffs therein are without merit); and (iv) this Loan Agreement did not as of its date, and does not as of the date of Closing contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading; - 16 - i 1 If GCC shall be unable to satisfy the conditions to the obligation of the City to deliver the Bond, or if the obligation of the City to deliver the Bond shall be terminated for any reason permitted by this Loan Agreement, this Loan Agreement shall terminate and neither GCC nor the City shall be under any further obligation hereunder, except that the respective obli- gations of the City and GCC set forth in Sections 9 and 11 hereof shall continue in full force and effect. 8. Termination. GCC shall have the right to terminate its obligation under this Loan Agreement to accept delivery of the Bond by notifying the City of its election to do so, and the City shall have the right to terminate its obligation under this Loan Agreement to deliver the Bond by notifying GCC of its elec- tion to do so, if, after the execution hereof and prior to the Closing (i) legislation shall be enacted or any action shall be taken by the U.S. Securities and Exchange Commission which has the effect of requiring the contemplated distribution of the Bond to be registered under the Securities Act of 1933 or the Ordinance, or, if applicable, the County Ordinance, to be qualified as an indenture under the Trust Indenture Act of 1939 or (ii) the United States shall declare wear, engage in major hostilities, or any other national emergency or calamity relating to the effective operation of the government of or the financial community .in they United States shall occur. 9. menses. Fifty percent (90%) of all expenses incurred in connection with the preparation of this Loan Agreement, including fees and expenses of counsel to the City, and all expenses incurred in connection with the preparation of the documents related hereto and the performance of the obligations hereunder shall be borne by GCC. 10. Notices. Any notice or other communication to be given to the City under this Loan Agreement may be given by delivering the same in writing to the City of Miami, Florida, 3500 Pan American Drive, Miami, Florida 33133, Attention: Director of Finance and any notice or other communication to be given to GCC under this Loan Agreement may be given by delivering the same in writing to Gran Central Corporation, P.O. Box 1048, Saint Augustine, Florida 32084, Attention: Carl F. Zellers, Vice President. 11. Parties In Interest. This Loan Agreement is made solely for the benefit of the City and GCC and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements contained in this Loan Agreement shall remain operative and in full force and effect, regardless of: (i) any investigations made by or on behalf of either party and (ii) delivery of any payment under the terms of the Bond. - 17 - 19 12. No Waiver, Remedies Cumulative. No failure on the part of either GCC or the City to exercise and no delay in exer- cising any right hereunder, or under the Bond shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and are not exclusive of any remedies provided by law. 13. Counterparts. This Loan Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which when taken together shall constitute one and the same instrument. 14. Severability. In the event that any one or more of the provisions contained in this Loan Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, but this Loan Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 15. Effectiveness. This, Loan Agreement shall become effective upon the execution by the appropriate City officials and authorized officers of GCC of the acceptance hereof by the City and GCC, respectively, and shall be valid and enforceable at the time of such acceptance. To the extent of: any conflict between they provision, of this Loan Agreement and any prior con- tract between the parties hereto, the provisions of this Loan Agreement shall govern. 16. Headings. The headings of the sections of this Loan Agreement are inserted for convenience only and shall not be deemed to be a part hereof. Attest: GRAN CENTRAL CORPORATION By: • , Secretary [ SEAL I By: 11 87--44J Attest: MATTY HIRAI, City Clerk [SEAL] CITY OF MtAMI, FLORIDA By: XAVIER L. SUAREZ, Mayor Approved as to form and correctness: LUCIA A. DOUGHERTY, City Attorney