HomeMy WebLinkAboutR-85-0405r
J 85-332 %k LUTIDN ';0-
A RESOLUTION PROVIDIFLORIDA OFNG FORE 'tHENANCING CONTRUCY
THE CITY OF MIAMI,
TION OF A CAPITAL PROJECT CONSISTING OF A
PERMANENT MUNOP-LELESS VEL URTHAN PAR,2U00 FACILITY
PARKING
CONTAINING
WITH AN ADJACF,NT 3URFACF.
OR THE ISSU_
PARKING AREA FOR THE USE OF BAYSIDE CENTER
NCE OF INDUSTRIAL PARTNERSHIP" PROVIDINGFREVENUE BONDS
ANCE MIAMI, FLORIDA, IN THE PRIN-
OF THE CITY OF
CIPAL AMOUNT OF NOT EXCEEDING $18THE PRO;
MAKING CERTAIN FINDINGS REGARDING THE PRO -
RIGHTS OF raE
JECT; PROVIDING FOR THE ROVIDING FOR 'THE
HOLDERS OF SUCH BONDS;
PAYMENT THEREOF; APPROVING T4 FORM OF A
FINANCING AGREFMF,NT, AN INDENTURE OF 'TRUST,
j A GUARANTY, A MORTGAGE AND AN ASSIGNMENT
THEREOF AND AUTHORIZING EXECUTION OF THE
SAME; PROVIDING CERTAIN O'pHER AGREEMENTS
AND COVENANTS IN CONNECTION WIT4 'THE. ISSU-
ANCE O SUCH BONDS; AND PROVIDING AN EFFEC-
TIVE DATE.
i
a C['tY OF MIAMI,
8E IT RESOLVED 9Y THE CITY COMMISSIUN OF THE
j FLORIDA:
]! SECTION 1. AUTHORITY. This Resolution (hereinafter called
the "Resolution") is adopted pursuant to the provisions of Chapter
159, Part II, Florida Statutes (1984 Supp.),
hereinafter called
the „Act) and other applicable provisions of law.
SECTION 2. DEFINITIONS. The terms used in this Resolution
shall have the following meanings: Florida Statutes,
ACTshall mean Chapter ter 159, Part II,
_1
""
(1984 SupP.)•
Agreement, the form of
"AGREEMENT" shall mean the Financing
r to be executed by and be-
k, which is attached hereto as Exhibit "1
tween the Issuer and the Company.
"ASSIGNMENT" shall mean the Assignment of the Mortgage the
r
form of which is attached hereto as a portion of Exhibit 4 to be
t.
executed by the Issuer assigning its interest in the Mortgage to
F, I:
the Trustee.
"AUTHORIZED OFFICERS" shall mean the Mayor or Vice -Mayor, the
Manager and the Clerk or Deputy Clerk of the issuer.
City of
"BONDS" shall mean the not to exceed $18,500,000 City
3
Miami, Florida industrial Development Revenue 85
Bonds, Series 19
ted Partnership),
(Bayside Center Limiauthorized herein and by the
Dement to be issued pursuant to the Act, together with any
}
Ag r . FAP
ISSION
OF
19V05
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additional parity obligations hereafter issued under the terms,
conditions and limitations of this Resolution, the Indenture and
the Agreement.
"COMPANY" shall mean sayside Center Limited Partnership, a
limited partnership organized and existing under the laws of the
State of Maryland and authorized to transact business in the State
of Florida, and any successors or assigns and any surviving, re-
sulting or transferee entity.
"INDENTURE" shall mean the Indenture of Trust, the form of
which is attached hereto as Sxhibit "2", to be executed by and
between the Issuer and the Trustee.
"ISSUER11 shall mean the City of Miami, Florida.
"LEASE AGREEMENT" shall mean the Lease Agreement between the
Company and the Issuer dated January 14, 1935, pursuant to wnicn
among other things, the land on which the Project is located is
leaser to the Company by the Issuer.
"MORTGAGE" shall mean the Mortgage and Security Agreement,
the form of which is attached hereto as a portion of Exhibit "4"
providing for the mortgaging by the Company of its leasehold es-
tate of the property on which the Project is located.
"PROJECT" shall mean a permanent, multi -level urban public
parking Eacility containing not less than 11200 parking spaces
together with an adjacent surface parking area to be developed in
,= the City of Miami, Florida, including the purchase, improvement;
} yY
' construction and expansion thereof.
"RESOLUTION" shall mean this Resolution authorizing the issu-
� ance of the Bonds.
' "TRUSTEE" shall mean a bank with trust powers or a trust com-
pany organized and existing under the laws of the United States or
one of the states having its principal office within or without
t.;,
i1. the State of Florida, at the time serving as trustee under the In-
denture.
SECTION 3. FINDINGS. It is hereby ascertained, found, de-
termined and declared by the Issuer that:
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(A) The Issuer is authorized and empowered by the Act to en-
ter into transactions such as that contemplated by the Agreement
and
to fully perform its obligations thereunder in
order to
pro-
mote
the industrial economy of the State of Florida,
increase
op-
portunities for gainful employment and purchasing power, improve
living conditions, and otherwise contribute to the prosperity and
welfare of the State of Florida and its inhabitants.
(s) 'rhe Project is appropriate to the needs and circum-
stances of., and shall make a significant contribution to the
economic growth of the City of Miami, Florida; shall provide and
preserve gainful employment and shall serve a public purpose by
advancing the economic prosperity and the general welfare of the
State of Florida and its people.
(C) Having due regard to all relevant financial data con-
cerning the Company as required by the Act and other factors de-
terminative of the Company's capabilities, financial and other-
wise, of fulfilling its obligations consistently with the purposes
of the Act, the Company is financially responsible and fully capa-
ble and willing to fulfill its obligations under the Agreement,
including the obligation to pay the financing payments in the
amounts and at the times required pursuant to the terms of the
j Agreement and the obligation
to
operate, repair and maintain at
its own expense the Project,
and
the Company is desirous of serv-
ing the purposes of the Act
and
is willing and capable of fully
performing all other obligations
and responsibilities imposed upon
�~_:;,
it pursuant to the provisions
of
the Agreement.
(D) The Issuer is able
to
cope satisfactorily with the im-
pact of the Project and is capable
P j
of making available or assist-
N 9
ing in making available all
the
necessary public utilities and
services, if any, that will be necessary for the construction,
operation, repair and maintenance of the Project and on account of
any increase in population or other circumstances resulting by
reason of the location of the Project within the City of Miami,
Florida.
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(E) Adequate provision is made under the provisions of the
Agreement for the operation, repair and maintenance of the Project
at the expense of the Company, and for the payment by the Company
of the principal of and interest on the Bonds as authorized in the
Agreement and the Indenture.
(F) The revenues of the Project are not now pledged or en-
cumbered in any manner which is superior to or equal with the lien
of the holders of the Bonds proposed to be issued.
(0) The principal of and interest on the Bonds and all re-
quired debt service payments and other payments shall be payable
solely from the revenues of the Project and certain other funds,
all as provided in the Agreement and the Indenture. The Bonds
shall not be deemed to constitute a debt, liability or obligation
of the Issuer or of the State of Florida or of any political sub-
division, but shall be payable solely from the Project revenues as
provided in the Agreement and the Indenture attached hereto,
respectively.
(H) The revenues of the Project will be sufficient to pay
all principal of and interest on the Bonds to be issued under the
Agreement and the Indenture as the same become due; and to make
all required debt service or other payments required by the Agree-
ment and the Indenture.
(I) The costs to be paid from the proceeds of the Bonds
shall be "costs of a project" within the meaning of Chapter 159,
Part II of the Act.
SECTION 4. AUTHORIZATION OF CONSTRUCTION OF PROJECT. There
is hereby authorized the construction of a permanent; multi -level
public parking facility containing not less than 1,200 parking
spaces together with an adjacent surface parking area, including
the purchase, improvement, construction and expansion thereof on
property more fully described in Exhibit "A" attached to the
Agreement and the acquisition and installation of certain appur-
tenances and facilities incidental thereto, and other improvements
necessary and convenient therefor constituting the Project, pursu-
ant to the provisions of the Agreement and the Lease Agreement and
4
SS-405
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in accordance with the plans and specifications to be filed with
the Issuer. The cost of such Project shall include all costs and
expenses of every nature incurred in the completion of the
S Project, as provided in the Agreement.
SECTION 5. INDENTURE TO CONSTITUTE CONTRACT. In considera-
tion of the acceptance of the Bonds authorized to be issued under
the Indenture by those who shall hold the sane from time to time,
the .indenture shall be deemed to be and shall constitute a con-
tract between the Issuer and such holders. The covenants and
agreements therein set forth to be performed by the Issuer shall
be for the equal benefit, protection and security of the holders
of any and all of the Bonds, all of which shall be of equal ran►c
and without preference, priority or distinction of any of the
Sonds over any others thereof. except as expressly provided there-
in.
SECTION 6. AUTHORIZATION OF BONDS. Subject and pursuant to
the provisions of the Agreement and the Indenture, bonds of the
Issuer to be known as "City of Miami, Florida Industrial Develop-
ment Revenue Bonds, Series 1985 (Sayside Center Limited Partner-
--.. �
ship Project)," are authorized to be issued in the aggregate
principal amount of not exceeding Eighteen Million Five Hundred
Thousand Dollars ($18,500,000). The Bonds may be issued as either
1
term or serial Bonds bearing such date, rate or rates of interest,
q
including a variable rate, not to exceed the maximum allowed by
Florida law, and maturing in such years, as shall be provided by
i
subsequent resolution of the Issuer at or prior to the sale of the
Bonds.
SECTION 7. SPECIAL OBLIGATIONS OF ISSUER. The Bonds shall
not be
or constitute general obligations or
indebtedness of the
Issuer
as "bonds" within the meaning of Article
VII, Section 12,
of the
Constitution of the State of Florida,
but
shall be payable
solely
from and secured by a prior lien upon
and
a pledge of the
Project
revenues, as that term is defined and in
the manner pro-
vided in
the Agreement and the Indenture. No
holder or holders of
any Bonds issued thereunder shall ever have
the
right to compel
rF;
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the exercise of the ad valorem taxing power of the Issuer in any
form on any real property or personal property therein to pay such
Bonds or the interest thereon or be entitled to payment of such
k principal and interest from any other funds of the Issuer except
i from the special funds in the manner provided in the Agreement and
the Indenture.
The payment of the principal of and interest on the Bonds
i
shall be secured fortwith equally and ratably by an irrevocable
i
and prior lien on and pledge of the Project revenues, and the
Issuer does hereby irrevocably pledge such funds to the payment of
the principal of and interest on the Bonds and for all other pay-
ments required by the Agreement and the Indenture.
t
SECTION 8. AGREEMENT AUTHORIZED. The form of the Financing
Agreement annexed hereto as Exhibit "1" and incorporated herein by
reference is hereby approved and adopted by the Issuer, the Issuer
is hereby authorized to enter into said Agreement, and the Autho-
rized Officers of the Issuer are hereby directed to execute such
Agreement on behalf of the Issuer in the manner provided by law.
The Agreement shall be in substantially the form annexed hereto as
Exhibit 111" subject to such changes, insertions or omissions as
may be approved by the Authorized Officers of the Issuer and the
execution of the Agreement by the Authorized Officers shall be
conclusive evidence of any such approval.
SECTION 9. INDENTURE AUTHORIZED. Before the sale of any of
the Bonds, the Issuer shall appoint a Trustee, which shall be a
trust company or a bank having trust powers and having a capital
and surplus of not less than $50,000,000, and enter into an Inden-
ture of Trust under terms and conditions authorized by the Act,
which Indenture of Trust, in substantially the form annexed hereto
as Exhibit "2" and incorporated herein by reference, is hereby
approved and adopted by the Issuer. The Issuer is hereby authori-
zed to enter into said Indenture, and the Authorized Officers of
the Issuer are hereby directed to execute such Indenture on behalf
of the Issuer in the manner provided by law. The Indenture shall
be subject to such changes, insertions or omissions as may be
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85-405
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approved by the Authorized Officers of the Issuer, and the execu-
tion of the Indenture by the Authorized Officers shall be conclu-
sive evidence of any such approval.
SECTION 10. GUARANTY APPROVED. The form of the Guaranty to
be executed by The Rouse Company and accepted by the Trustee,
annexed hereto as Exhibit "3," and incorporated herein by
reference is hereby approved by the Issuer.
SECTION 11. MORTGAGE AUTHORIZED. The forms of the Mortgage
and the Assignment thereof to the Trustee, annexed hereto collec-
tively as Exhibit "4," and incorporated herein by reference are
hereby approved and adopted by the Issuer. The Issuer is hereby
authorized to execute and deliver said Assignment, and ttie Author-
ized Officers of the Issuer are hereby directed to execute such
Assignment on behalf of the Issuer in the manner provided by law.
The Mortgage and Assignment shall be in substantially the form
annexed hereto as Exhibit "4," subject to such changes, insertions
or omissions as may be approved by the Authorized Officers of the
Issuer, including changes, insertions or omissions relating to the
specific description of the property on which the Project or any
portion thereof is located together with the insertion of provi-
sions regarding the spreading of the lien created thereby to other
properties, and the execution of the Assignment by such Authorized
Officers shall be conclusive evidence of any such approval.
SECTION 12. ASSENTS, ACCEP'PANCES AND APPROVALS. The Author-
ized Officers of the Issuer are authorized to execute such as-
sents, acceptances and approvals as the Issuer may deem necessary
for the Issuer to finance the Project and deliver the Bonds in the
manner contemplated by the Agreement and the Indenture.
SECTION 13. VALIDATION AUTHORIZED. The attorney for the
Issuer is hereby authorized and directed to prepare and file pro-
ceedings to validate the Bonds, the proceedings relating to the
issuance of the Bonds, and the revenues pledged for the payment
thereof in the manner provided by law.
SECTION 14. SALE OF BONDS. Subject to judicial validation
in the manner provided by law and subject to receipt of the
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85-A D �`
via
It
unqualified approving opinion of bond counsel at closing, the
RonJs shall be sold and awarded by subse-guent resolution of the
Issuer.
SECTION 15. FEES. Fees of legal counsel, consultants and
other reasonable expenses related to the issuance, sale and
delivery of the Aonds shall he paid from Bond proceeds within
thirty (30) days after closing upon written re.luest of the Company
and upon approval of the Trustee.
SECTION 16. SEVERABILITY OF INVALID PROVISIONS. If any one
or more of the covenants, agreements or provisions contained in
e
this Resolution, the Agreement or the Indenture shall be held con-
trary to any express provision of law or contrary to the policy of
express law, though not expressly prohibited, or against public
policy or shall for any reason whatsoever be held invalid, then
such covenants, agreements or provisions shall be na.11 and void
and shall be deemed separable from the remaining covenants, agree-
ments or provisions and shall in no way affect the validity of any
of the other provisions hereof or of the Bonds issued thereunder.
SECTION 17. REPEALING CLAUSE. All resolutions, or parts
thereof, of the Issuer in conflict with the provisions herein con-
tained are, to the extent of such conflict, hereby superseded and
repealed.
SECTION 18. EFFEC'rIVF DATE. This Resolution shall take
effect immediately upon adoption.
PASSED AND ADOPTED this llth _ day of April, 1985.
CITY COMMISSION OF THE CITY OF
MIAMI, FLORIDA
(SEAL)
AT yr - ='-/ �--rr7 BAY Y. _ _ _Maurice A. Ferre _
MAURICE A. FERRE, Mayor
AL P'H G . ONG I E
C ty Clerk
PRE ED AND APPROVED HY:
G. MIRIAWWW
Assistant City Attorney
APP34VED AS TO FORM AND CORRECTNESS:
U IA A. DOUGHERTY
City Attorney
85-14o r
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BM&O DRAFT
3 /21 /8 5
FINANCING AGREEMENT
BY AND BETWEEN
CITY OF MIAMI, FLORIDA
and
BAYSIDE CENTER LIMITED PARTNERSHIP
City of Miami, Florida, Industrial Development
Revenue Bonds, Series 1985
(Bayside Center Limited Partnership Project)
Dated as of _, 1985
This Instrument Prepared By:
BRYANT, MILLER and OLIVE, P.A.
700 Barnett Bank Building
Tallahassee, Florida 32301
85-405
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01
TABLE OF CONfiENT3
j
P a r t i e s
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
°J}jF
Recitals
....................................................
1
E'
Article I
z
Section
1.01.
Definitions
3
..................................
Section
1.02.
Correlative words
10
............................
Article It
4
Construction and Acquisition Fund
Section
2.01.
Sale and Delivery of Series 1985 Bonds .......
11
Section
2.02.
Application of Series 1985 3ond Proceeds .....
11
Section
2.03.
Application of Construction and
i
Acquisition Fund Moneys ....................
11
Article III
Construction of Project
Y
Section
3.01.
Delivery of Mortgage; Construction by Company
15
Section
3.02.
Insurance During Construction ................
16
Section
3.03.
Cost of Project ..............................
18
Section
3.04.
Action to Ensure Completion of Project .......
18
b
Section
3.05.
Covenant to Complete .........................
19
Section
3.06.
Warranties Extend to Trustee and Issuer ......
19
Section
3.07.
Establishment of Completion Date .............
19
Section
3.08.
Covenant to Convey ...........................
20
X
a
i
C
'
Article IV
Loan and Payment Thereof
i
Section
4.01.
Defeasance Upon Payment ......................
21
Section
4.02.
Principal Amount of Loan .....................
21
Section
4.03.
Payment of Loan ..............................
22
Section
4.04.
Prepayment to Redeem Bonds ...................
23
Section
4.05.
Obligation to Pay Unconditional ..............
23
i
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Article V
Certain Covenants of the issuer and the Company
Section
5.01.
Covenants of the Issuer ......................
25
Section
5.02.
Revenue Fund
25
Section
5.03.
Disposition of Revenue Fund, Reserve Fund and
Bond Fund Moneys . . . . . . . . . . . . . . .. . . . . . . .. . . .
25
Section
5.04.
Investment and Security of Funds .............
25
r
Section
5.05.
Enforcement of Financing Agreement ...........
26
Section
5.06.
Maintenance of Tax -Exempt Status .............
27
Section
5.07.
Covenants of the Company .....................
27
Section
5.08.
Rate Covenant ................................
27
4
Section
5.09.
Performance of Obligations Under Indenture
and Lease Agreement ........................
27
Section
5.10.
Payment of Operation and Maintenance Expenses
27
F
Article VI
Maintenance, Taxes and Insurance
Section
6.01.
Maintenance, Modifications and Additions .....
28
Section
6.02.
Substitution of Equipment ....................
29
Section
6.03.
Insurance After Completion of Construction ...
31
s
Section
6.04.
Insurance Policy Provisions ..................
32
Section
6.05.
P a ym a n t of Public Charges ....................
32
;.
Section
6.06.
Enforcement by Issuer and Trustee ............
33
Section
6.07.
Release and Indemnification Covenants ........
34
1
j
Article VII
Damage, Destruction and Condemnation
Section
7.01.
Obligation in Event of Damage or Destruction
35
Section
7.02.
Obligation in Event of Condemnation ..........
37
Section
7.03.
Substituted Property Part of Project .........
39
Section
7.04.
Application of Certain Condemnation and
Insurance Proceeds .........................
40
Section
7.05.
Election Not to Restore Project,
Section
7.06.
Deposit to Bond Fund .......................
Provision Concerning Condemnation ............
40
40
Section
7.07.
Casualty To Bayside Specialty Center .........
41
s
t
Article VIII
Special Covenants
Section
8.01.
No Warranty of Condition or Suitability
Section
8.02.
byIssuer ..................................
Right of Access to Project ...................
42
42
Section
8.03.
Maintenance of Existence .....................
42
Section
8.04,
Event and Determination of Taxability ........
42
Section
8.05.
Sale or Lease of Project
42
.....................
Section
8.06.
Release and Satisfaction .....................
43
Section
8.07.
Request for Redemption ......................6
43
Section
8.08.
Company to Furnish Certain Financial
Documents ..................................
43
Section
8.09.
Covenant Prohibiting Excessive Arbitrage .....
44
Section
8.10.
Tax Covenant .................................
44
Section
8.11.
Covenant to Operate Project for Public
Park i ng . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .
4 4
Section
8.12.
Special Covenant Regarding Investments .......
44
Section
8.13.
Covenant Regarding Authorized Representatives
45
Article IX
Events of Default and Remedies
Section
9.01.
Events of Default ............................
46
Section
9.02.
Remedies on Default ..........................
47
Section
9.03.
No Remedy Exclusive ..........................
48
Section
9.04.
No Additional Waiver Implied by One Waiver ...
48
Section
9.05.
Reimbursement of Expenses Upon Default .......
48
Section
9.06.
Notice of Default ............................
49
Article X
Financing Additional Facilities Parity Obligations
Section
10.01.
Issuance of Other Obligations ................
50
Section
10.02.
Issuance of Additional Parity Obligations ....
50
Section
10.03.
Obligations to Issue Additional Parity
Obligations ................................
51
Article XI
Concerning the Mortgaged Properties
Section
11.01.
Bonds Secured By Mortgage .....................
52
Section
11.02.
Protection of Lien ............................
52
Article XII
Miscellaneous
Section
12.01.
Notices Deemed Given Upon Mailing .............
Section
12.02.
Agreement Binding Upon Parties
and Successors ..............................
Section
12.03.
Prohibition of Liens ..........................
Section
12.04.
Agreement Effective Upon Validation ...........
Section
12.05.
Disposition of Remaining Moneys ...............
Section
12.06.
Modification or Amendment .....................
Section
12.07.
Reasonableness of Approvals ...................
Section
12.08.
Appointment of Agents .........................
Section
12.09.
Agreement in Several Counterparts .............
iii
85--405
53
53
53
54
54
54
55
55
55
Section
12.10.
Applicable Law
................................
55
Section
12.11.
Severability of
Provisions ....................
55
Testimonium Clause ............................................ 56
Signatures and Seals .......................................... 57
Acknowledgments............................................... 58
Exhibit A - Description of Project
Exhibit B - Machinery and Equipment
Exhibit C - Promissory Note
Exhibit D - Exhibit Regatding Third Party Rights
0
FINANCING AGREEMENT
0
THIS AGREEMENT,
made
as of the
day of
_ , 1985,
between the CITY OF
MIAMI,
FLORIDA, a
public body and
municipal
corporation of the
State
of Florida
(hereinafter called the
"Issuer"), and BAYSIDE
CENTER LIMITED
PARTNERSHIP, a
Maryland
limited partnership,
authorized to do
business in the
State of
Florida (hereinafter
called
the "Company").
W I T
N E S S E T
H:
WHEREAS, capitalized words and terms as used in this Agree-
ment shall have the meanings set forth in Article I hereof, unless
the context or use indicates another or different meaning or in-
tent; and
WHEREAS, the Issuer is authorized and empowered by the provi-
sions of Chapter 159, Part II, Florida Statutues (1983) (herein-
after called the "Act"), to enter into transactions contemplated
by this Agreement and to carry out its obligations hereunder in
order to promote industrial development of the State of Florida
and develop trade by inducing commercial enterprises to locate in
Florida, and thus utilize and employ the manpower, agricultural
products and natural resources of the State; and
WHEREAS, the Company is a proprietary entity eligible to par-
ticipate in financing, construction and acquisition of the Project
as provided and permitted by the Act; and
WHEREAS, to accomplish such purposes the Issuer proposes to
finance the acquisition and construction of the Project; and
WHEREAS, the Issuer, in order to provide funds to pay the
cost of the acquisition and construction of the Project and for
incidental and related costs, will issue and sell the Bonds pursu-
ant to the Act and the Resolution the proceeds of which will be
loaned to the Company to construct the Project; and
WHEREAS, the Company, in consideration of the Issuer's under-
taking the financing herein referred to and issuing the Bonds,
shall execute in favor of and deliver simultaneously with the exe-
cution and delivery of this Agreement and the Trust Indenture, to
the Issuer its non-negotiable, but assignable, promissory note in
the amount of the Bonds, to be secured as set forth herein; and
WHEREAS, the principal of and interest on the Bonds shall be
payable solely from the Revenues of the Project together with
other funds more fully described herein at the times and in the
manner hereinafter provided; and
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WHEREAS► the Act permits and the parties intend that the Pro-
ject be financed by the issuer as provided in the Act and that the
Company construct the Project on real property owned by the issuer
and leased to the Company;
NOW, THEREFORE, in consideration of the premises, and of the
Issuer's making the loan to the Company in the principal amount
herein scat forth and in consideration of the mutual covenants of
the parties and other good and valuable considerations, it is
agreed by and between the issuer and the Company as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Unless the context otherwise
requires, the capitalized terms used in this Agreement shall have
the meanings specified in this Article. Any terms defined herein
by reference to the definition set forth in the Lease Agreement
shall have the same meaning as set forth in the Lease Agreement
without amendment or modification.
"ACCEPTABLE OPERATOR" shall have the same meaning as set
forth in the Lease Agreement.
"ACT" shall mean the Florida Industrial Development Financing
Act, Chapter 1 59, Part II, Florida Statutes (1983) , as amended.
"ADDITIONAL PARITY OBLIGATIONS" shall mean additional bonds
or obligations issued in compliance with the terms, conditions and
limitations contained herein and in the Trust Indenture and which
shall have an equal lien on the Revenues to be derived by the
Issuer from the Financing Agreement, as herein defined, and, un-
less the terms hereof and of the Indenture indicate otherwise,
rank equally in all respects with the Series 1985 Bonds.
"ADJUSTABLE RATE OBLIGATIONS" shall mean Bonds issued with a
variable, adjustable, convertible or other similar rate which is
not fixed in percentage at the date of issue for the entire term
thereof.
"AGREEMENT" or "FINANCING AGREEMENT" shall mean this Finan-
cing Agreement, dated as of , 1985, to be executed by and
between the Icaiier and the Company ,—together with any supplements
executed pursuant to Section 12.06 hereof.
"AMORTIZATION INSTALLMENTS" with respect to the Term Bonds of
a series, shall mean an amount so designated for mandatory princi-
pal installments (for mandatory call or otherwise) payable on the
Term Bonds issued pursuant to the Indenture.
"ANNUAL BASIC RENTAL" shall have the same meaning as set
forth in the Lease Agreement.
"AUTHORIZED COMPANY REPRESENTATIVE" and "AUTHORIZED ISSUER
REPRESENTATIVE" shall mean the persons at the time designated to
act on behalf of the Company or the Issuer pursuant to Section
2.03 of this Agreement.
"AUTHORIZED OFFICERS" shall mean the City Manager of the
Issuer and the President of the General Partner of the Company
authorized by law or resolution to sign on behalf of the Issuer
3
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. . . . . . . . . . . . . . . . . . . . . . . . .
r--
0 fh�
and the Company, respectively, or the Clerk and Secretary thereof,
respectively, authorized to countersign and attest to the signa-
ture of officers of the Issuer and the Company, respectively, and
to certify documents of the Issuer and the Company, respectively.
As used in Section 203 of the Indenture relating to execution of
the Bonds "Authorized Officers" shall mean the Mayor and the
Clerk. All references to Mayor and Clerk shall include the Vice-
Mayor of the Issuer and any Deputy Clerk of the Issuer, respec-
tively. All references to President of the General Partner of the
Company and Secretary of the General Partner of the Company shall
include any Vice -President of the General Partner of the Company
and any Assistant Secretary of the General Partner of the Compa-
ny,
"AVERAGE ANNUAL DEBT SERVICE REQUIREMENT" means as of each
date on which a series of Bonds is issued, the total amount of
Debt Service Requirement to become due on all Bonds deemed to be
Outstanding immediately after the issuance of such series of Bonds
divided by the total number of years for which Bonds are deemed to
be Outstanding, except that with respect to any Bonds for which
Amortization Installments have been established, the amount of
principal coming due on the final maturity date with respect to
such Bonds shall be reduced by the aggregate principal amount of
such Bonds that are to be redeemed from Amortization Installments
to be made in prior Bond Years.
"BAYSIDE SPECIALTY CENTER" shall have the same meaning as set
forth in the Lease Agreement.
"BOND" or "BONDS" shall mean the Series 1985 Bonds, together
with any Additional Parity Obligations hereafter issued under the
terms, conditions and limitations contained in the Indenture.
"BOND COUNSEL" shall mean any nationally recognized firm of
municipal bond attorneys qualified to perform the duties of Bond
Counsel as set forth herein and in the Indenture.
"BOND FUND" shall mean the "City of Miami, Florida Industrial
Development Revenue Bonds (Bayside Center Limited Partnership
Project) Bond Fund," created pursuant to Section 303 of the
_ Indenture.
"BOND SERVICE PAYMENT DATE" shall mean the date in any Bond
z Year Bonds are Outstanding in which any component of Debt Service
Requirement becomes due.
"BOND YEAR" shall mean the period beginning with January 1,
of each year and extending for a period of twelve (12) months
thereafter.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or a day on which bankinq institutions located in the State
of Florida or in the State of New York or in any state in which
the principal office of the Trustee are required or authorized to
e
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4
remain closed or on which the New York Stock Exchange is closed.
"CODE" shall mean the Internal Revenue Code of 1954, as
amended, together with any regulations promulgated thereunder.
"COMPANY" shall mean Bayside Center Limited Partnership, a
Maryland Limited Partnership, authorized to do business in the
State of Florida, and any successors or assigns and any surviving,
resultinq or transferee entity.
"CONSTRUCTION AND ACQUISITION FUND" shall mean the "City of
Miami, Florida, industrial Development Revenue Bonds (Bayside
Center Limited Partnership project) Construction and Acquisition
Fund", created pursuant to Section 305 of the Indenture.
"CONSULTANT" shall mean a consulting architect or engineer
recommended by the Company, acceptable to the Issuer and approved
by the Trustee or the authorized representative thereof designated
to the Trustee by certificate of the Company.
"CONSUMER PRICE INDEX" shall mean that price index computed
and issued monthly by the Bureau of Labor Statistics of the U.S.
Department of Labor for all Urban Consumers (U.S. Average).
"DEBT SERVICE REQUIREMENT" shall mean for a given Bond Year
the remainder after subtracting any accrued and funded interest
for that year that has been deposited into the Bond Fund, from the
{ sum of:
(1) The amount required to pay the interest coming due on
Bonds during that Bond Year,
(2) The amount required to pay the principal of Serial Bonds
maturing during that Bond Year, and
(3) the Amortization Installment for all Series of Term
Bonds for that Bond Year.
With respect to Adjustable Rate Obligations, except as pro-
vided below, the interest rate used to calculate Debt Service
Requirement shall be assumed to be one hundred ten percent (110%)
of the greater of (a) the daily average interest rate on such
Adjustable Rate Obligations during the twelve months ending with
the month preceding the date of calculation or (h) the most recent
effective interest rate on such Adjustable Rate Obligations prior
to the date of calculation. If such Adjustable Rate Obligations
were not outstanding for a full twelve months ending with the
month immediately preceding the date of calculation, the rate
described in clause (b) of the immediately preceding paragraph
shall be used. If Bonds are payable at the option of the Holder
the "put" date or dates shall be disregarded and the stated matur-
ity dates thereof shall be used for purposes of this calculation.
The rate of interest used to calculate the Reserve Requirement for
5
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Adjustable Rate Obligations shall be determined upon the issuance
of such Adjustable Rate Obligations.
"DEFAULT RATE" shall mean an annual interest rate equal to
the lesser of one hundred twenty-five percent (125%) of the rate
of interest on the Bonds or the maximum rate of interest allowed
by law.
"DEPARTMENT OF OFF-STREET PARKING or "DOSP" shall mean the
Department of Off -Street Parking of the City of Miami, Florida.
"DEVELOPMENT COSTS" shall have the same meaning as set forth
s in the Lease Agreement.
"EVENT OF DEFAULT" means those defaults specified in and
defined by Section 9.01 hereof.
"FEASI3ILITY CONSULTANT" shall mean a firm of nationally
recognized engineers, appraisers or independent certified public
accountants, recommended by the Company, acceptable to the Issuer
and approved by the Trustee who shall perform the duties set forth
in Section 10.02(1) hereof.
S "FINANCING PAYMENTS" or "PAYMENTS" means the payments made or
to he made on the Promissory Note for the payment of the princi-
pal, interest and redemption premiums, if any, on the Bonds pursu-
ant to the terms of this Agreement.
"GUARANTORS" shall mean The Rouse Company, a corporation
organized and existing under the laws of the State of Maryland.
"GUARANTY" shall mean that certain Guaranty Agreement from
the Guarantors to the Trustee dated , 1985, evi-
dencing the guaranty of payment of the Series 1985 Bonds.
"HOLDER OF THE BONDS", "BONDHOLDERS", "HOLDERS" or any simi-
lar term shall mean any person who shall be the registered owner
of any Outstanding Bond or Bonds.
1 "INDENTURE" or "TRUST INDENTURE" shall mean the Trust Inden-
ture, dated as of , 1985, to be executed by and between
the Issuer (hereinafter defined) and the Trustee.
"ISSUER" shall mean the City of Miami, Florida.
<: "LEASE AGREEMENT" shall mean that certain Lease Agreement
- between the Company and the Issuer dated January 14, 1985, as
amended and supplemented, pursuant to which, among other things,
the land on which the Project is located is leased to the Company
by the Issuer.
„y= "MANAGEMENT AGREEMENT" shall mean that certain Parking Garage
tY� 'Management Agreement originally between the Company and DOSP dated
1985, as amended and supplemented.
.4.
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"MANAGER" shall mean initially DOSP and any successor or any
replacement thereto.
"MAXIMUM DEBT SERVICE REQUIREMENT" shall mean as of any par-
ticular date of calculation, the greatest amount of aggregate Debt
Service Requirement for the then current or any future Bond Year.
"MORTGAGE" and "ASSIGNMENT OF MORTGAGE" shall mean respec-
tively, that Mortgage and Security Agreement dated as of
1985, from the Company, as Mortgagor to the Issuer, as mortgagee
and the subsequent Assignment of Mortgage and Security Agreement
o to the Trustee for the benefit of the Bondholders.
"NON PURPOSE OBLIGATIONS" shall have the same meaning as set
forth in Section of the regulations of the United States
Treasury Department interpreting the Code, as said regulations may
be changed from time to time.
"NOTE" shall mean the Promissory Note.
"OPERATION AND MAINTENANCE EXPENSES" shall mean all Annual
Basic Rental and all actual maintenance and operating costs of the
Project, incurred, or charges made therefor, in any particular
fiscal year or period, but only if said charges are made in con-
formity with generally accepted accounting principles, and exclu-
sive of depreciation or reserves therefor, amortization of intan-
gibles or other bookkeeping entries of a similar nature. Operation
and Maintenance Expenses include, without limitation, or duplica-
tion, generally, salaries, wages, fringe benefits, pension contri-
butions, contract services, payments to the Manager under the
Management Agreement, materials and supplies, Public Charges,
rents, office supplies, taxes and all other costs that are charged
or apportioned directly to the operation and maintenance of the
Project in conformity with generally accepted accounting princi-
ples. Operation and Maintenance Expenses do not include costs, or
charges made therefor, for capital additions, replacements,
enlargements, extensions or improvements to or retirements from
the Project, which under generally accepted accounting principles
are properly chargeable to the capital account or the reserve for
depreciation, and do not include losses from the sale, abandon-
ment, reclassification, reevaluation or other disposition of any
properties included in the Project.
"OUTSTANDING" in connection with Bonds (or a series of Bonds)
means, as of the time in question, all Bonds (or all Bonds of such
series) authenticated and delivered under the Resolution, this
Agreement and the Indenture, except:
(A) Bonds theretofore canceled or required to be canceled
pursuant to the Indenture.
7
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(B) Bonds for the payment or redemption of which the neces-
sary amount shall have been or shall concurrently be deposited
with the Trustee or for which provision for the payment of which
has been made in accordance with the Indenture; provided that, if
such Bonds are being redeemed prior to maturity, the required
notice of redemption shall have been given or provision satisfac-
tory to the Trustee shall have been made therefor; and
(C) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to the Indenture.
c "PERMITTED ENCUMBRANCES" shall mean as of any particular time
(i) utility, access and other easements and rights of way, re-
strictions and exceptions which will not materially interfere with
k or impair the operation of the Project, (ii) any mechanic's,
laborer's, materialmen's, supplier's or vendor's lien or right to
purchase money security interest in respect thereof if payment is
not yet due and payable under the contract in question, (iii) such
minor defects, irregularities, encumbrances, easements, rights of
way and clouds on title as normally exist with respect to proper-
ties similar in character to the Project and as do not, in the
opinion of counsel satisfactory to the Trustee and the Issuer, in
the aggregate materially impair the property affected thereby for
the purposes for which it will be held and for the lien of the
Indenture; and (iv) the second mortgage permitted pursuant to
w Section 6.1 of the Loan Agreement.
f "PLANS AND SPECIFICATIONS" when used with reference to the
construction of the Project, means the plans and specifications
prepared for the construction of the Project by the Company as
approved by the Issuer pursuant to the Lease Agreement and filed
with the Trustee as provided in this Agreement, as the same may be
revised from time to time during the construction period in
accordance with the provisions of this Agreement and the Lease
Agreement, and when used with reference to any modification,
repair, restoration or replacement of the Project means any plans
and specifications prepared by the Company, approved by the Issuer
and filed with the Trustee, prior to the making of any modifica-
tion, repair, restoration or replacement of the Project, as the
same may be revised from time to time in accordance with the pro-
visions of this Agreement and the Lease Agreement.
"PROJECT" shall mean a permanent, multi -level urban public
parking facility containing not less than 1200 parking spaces
together with an adjacent surface parking area to be developed in
1 the City of Miami, Florida, including the construction, improve-
ment, expansion and renovation thereof, on land more fully de-
scribed in Exhibit A attached to this Agreement. Unless the con-
text indicates otherwise, the term "Project" includes any addi-
tional parking facilities financed with Additional Parity Obliga-
tions.
"PROMISSORY NOTE" shall mean the promissory note from the
Company to the Issuer dated _, 1985, evidencing the loan
8 85-0�►
described herein, which shall be in substantially the form
attached hereto as Exhibit C.
"PUBLIC CHARGES" shall have the same meaning as set forth in
the Lease Agreement.
"RECORD DATA:" shall mean the fifteenth (15th) day of the cal=
endar month next preceding any Bond Service Payment Date or, if
such day is not a Business Day, the next Business Day preceding
such day.
)
"RESERVE FUND" shall mean the "City of Miami, Florida,
g Industrial Development Revenue Bonds, Series 1985 (Bayside Center
1 Limited Partnership Project) Reserve Fund" created pursuant to
Section 304 of the Indenture.
"RESERVE REQUIREMENT" shall mean an amount equal to the les-
ser of Maximum Debt Service Requirement or 125% of Average Annual
Debt Service Requirement. The rate of interest used to calculate
the Reserve Requirement for Adjustable Rate Obligations shall be
determined upon the issuance of such Adjustable Rate Obligations.
"RESOLUTION" shall mean the Resolution of the Issuer dated
, 1985, as may be supplemented and amended, authorizing
the Bonds and approving this Agreement, the Indenture, the Guaran-
ty, the Mortgage and the Assignment of Mortgage.
"REVENUE FUND" shall mean the "City of Miami, Florida Indus-
trial Development Revenue Bonds (Bayside Center Limited Partner-
ship Project) Revenue Fund" created pursuant to Section 302 of the
Indenture.
"REVENUES" shall mean all moneys at any time paid to the
Trustee under this Agreement, pursuant to Section 4.03 or any
other section or provision hereof, except the funds required to be
deposited to the Construction and Acquisition Fund and such sums
as are authorized by the Indenture to be retained by the Trustee
for its services and expenses in performing under this Agreement
and the Indenture, all in the manner provided herein.
"SERIAL BONDS" shall mean the Bonds of a series which shall
be stated to mature in annual or semi-annual installments.
"SERIES 1985 BONDS" shall mean the $ _ City of Miami,
Florida, Industrial Development Revenue Bonds, Series 1985
(Bayside Center Limited Partnership Project) authorized by the
Resolution, the Indenture and this Agreement.
"STATE" shall mean the State of Florida.
"TERM BONDS" shall mean the Bonds of a series, all of which
shall be stated to mature on one date and payable from Amortiza-
tion Installments.
9 k
85-405 T
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"TRUST ESTATE" shall have the same meaning as set forth in
the Indenture.
"TRUSTEE"
shall mean
or
any bank
with trust
powers or any
trust company organized and existing under
the laws
of the United
States or one
of the states
having its
principal
office within
the continental
United States
and within
or without
the State of
Florida, at the
time serving
as Trustee
under the
Indenture.
SECTION 1.02. CORRELATIVE WORDS. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, words importing the singular number shall
include the plural as well as the singular number or vice versa
and the word "person" shall include corporations and associations,
including public bodies, as well as natural persons.
10
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ARTICLE II
CONSTRUCTION AND ACQUISITION FUND
SECTION 2.01, SALE AND DELIVERY OF SERIES 1985 BONDS. In
order to provide the funds necessary for the payment of the cost
of acquiring and constructing the Project as provided for in this
Agreement, the Issuer agrees that it will cause the Bonds to be
delivered pursuant to the provisions of the Indenture.
SECTIO14 2.02. APPLICATION OF SERIES 1985 BOND PROCEEDS. All
moneys received from the sale of the Series 1985 Bonds shall be
deposited by the Issuer in trust with the Trustee, to be held and
administered by the Trustee as provided in the Indenture.
SECTION 2.03. APPLICATION OF CONSTRUCTION AND ACQUISITION
FUND MONEYS. The moneys deposited in the Construction and Acqui-
sition Fund shall be held in trust by the Trustee and, pending
application thereof to the payment of the Development Costs of the
Project, shall be subject to a lien on and charge in favor of the
Holders of the Series 1985 Bonds and shall be held for the further
3
security of such Holders until paid out as provided in this Sec-
tion. The Trustee shall pay costs of acquisition of the Project
and costs and expenses of issuing the Series 1985 Bonds, including
but not limited to Trustee acceptance fees and costs, and fees of
consultant and legal services out of the Construction and Acquisi-
tion Fund upon receipt of written order for such payment from the
Authorized Company Representative. At least ninety (90) percent
of the Bonds ($ ) shall be expended for costs which do
qualify as costs for an "exempt facility" within the meaning of
i
S1.103-8(a) of the regulations of the United States Treasury
Department interpreting the Code. All other transfers or payments
from the Construction and Acquisition Fund shall be made monthly
and only (i) after providing a letter acceptable to the Trustee
evidencing the availability of water and utilities sufficient for
the Project; (ii) after providing final Plans and Specifications;
(iii) after delivery to the Trustee of a building permit or
similar permit for the portion of Project for which disbursement
_
is requested; and (iv) after certification by the Consultant
indicating for any portion of the Project for which disbursement
is requested that such requested disbursements will not exceed
100% of the Development Costs thereof incurred by the Company as
of the date of such request; in the following manner:
The Company shall approve and direct the payment of all a-
mounts due and owing on account of acquisition and construction of
the Project and, by written order submitted by the Company to the
Trustee and the Issuer no later than the tenth (10th) day of each
j month, during the course of construction or acquisition of equip-
ment, if any, and signed by the Authorized Company Representative
directing the Trustee to make such payments, and each such order
r t
ARTICLE II
CONSTRUCTION AND ACQUISITION FUND
SECTION 2.01. SALE AND DELIVERY OF SERIES 1985 BONDS. In
order to provide the funds necessary for the payment of the cost
of acquiring and constructing the Project as provided for in this
Agreement, the Issuer agrees that it will cause the Bonds to be
delivered pursuant to the provisions of the Indenture.
SECTION 2.02. APPLICATION OF SERIES 1985 BOND PROCEEDS. All
moneys received from the sale of the Series 1985 Bonds shall be
deposited by the Issuer in trust with the Trustee, to be held and
administered by the Trustee as provided in the Indenture.
SECTION 2.03. APPLICATION OF CONSTRUCTION AND ACQUISITION
FUND MONEYS. The moneys deposited in the Construction and Acqui-
sition Fund shall be held in trust by the Trustee and, pending
application thereof to the payment of the Development Costs of the
Project, shall be subject to a lien on and charge in favor of the
Holders of the Series 1985 Bonds and shall be held for the further
security of such Holders until paid out as provided in this Sec-
tion. The Trustee shall pay costs of acquisition of the Project
and costs and expenses of issuing the Series 1985 Bonds, including
but not limited to Trustee acceptance fees and costs, and fees of
consultant and legal services out of the Construction and Acquisi-
j
tion Fund upon receipt of written order for such payment from the
Authorized Company Representative. At least ninety (90) percent
of the Bonds ($ ) shall be expended for costs which do
qualify as costs for an "exempt facility" within the meaning of
§1.103-8(a) of the regulations of the United States Treasury
Department interpreting the Code. All other transfers or payments
from the Construction and Acquisition Fund shall be made monthly
and only (i) after providing a letter acceptable to the Trustee
evidencing the availability of water and utilities sufficient for
1
the Project; (i i) after providing final Plans and Specifications;
(i ii) after delivery to the Trustee of a building permit or
similar permit for the portion of Project for which disbursement
is requested; and (iv) after certification by the Consultant
indicating for any portion of the Project for which disbursement
is requested that such requested disbursements will not exceed
100% of the Development Costs thereof incurred by the Company as
of the date of such request; in the following manner:
The Company shall approve and direct the payment of all a-
mounts due and owing on account of acquisition and construction of
the Project and, by written order submitted by the Company to the
Trustee and the Issuer no later than the tenth (10th) day of each
month, during the course of construction or acquisition of equip-
ment, if any, and signed by the Authorized Company Representative
directing the Trustee to make such payments, and each such order
f
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85-405
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shall state with respect to such payments the following:
(1) the item number of the payment;
(2) the name and address of the person, firm or corpor-
ation to whom the payment is due (including, if applicable, the
Company);
(3) the amount to be paid;
(4) that an obligation or costs in the stated amount
and description has been incurred by the Company subsequent to
, 1984, and that each item thereof is a proper and reasona-
ble charge against the Construction and Acquisition Fund and that
after making such expenditure at least ninety percent (90%) of the
proceeds of the Bonds so expended are used to provide an "exempt
facility" within the meaning of S1.103-8(a) of the regulations of
the United States Treasury Department interpreting the Code.
(5) that there has not been filed with or served upon
the Company any notice of any lien, claim of lien, or attachment
affecting the right to receive payment of any of the moneys paya-
ble to the person, firm or corporation named in such order which
has not been released or will not be released simultaneously with
the payment of such obligation, or for which adequate provision
for payment or other disposition has not been made pursuant to law
or to the satisfaction of the Trustee and, in the event any
assignment of the right to receive payments has been made and
notice thereof has been given to the Company and the Company has
accepted such assignment, the order accepting payment shall recite
a that fact and direct that payment shall be made to the assignee
thereof as shown by the records of the Company.
(6) that there has been filed with the Company a lien waiver
of any general contractor (with the exception of any lien which
has attached for the payments requested in such requisition).
Each such order shall be accompanied by a certificate on the
Standard AIA form or some other form satisfactory to the Trustee
in accordance with the construction contract executed by the
Company prior to delivery of the Bonds signed by the Consultant
certifying that an obligation or cost in the stated amount has
been incurred by the Company, and that each item thereof is a
Development Cost and a proper charge against the Construction and
Acquisition Fund and has not been theretofore paid, and that,
insofar as any such obligation was incurred for work, materials,
equipment or supplies, such work was actually performed, or such
materials, equipment or supplies were actually installed or stored
in furtherance of the completion of the Project. The Trustee in
its discretion may accept the certificates required by this
paragraph signed by the Authorized Company Representative and the
12
85-405
c*y
EJ
Authorized Issuer Representative
certificate.
in lieu of the Consultant's
Upon receipt of any such order and accompanying certificates,
and upon such inspection of the Project, if any, as the Trustee
elects to make, in order to verify progress of construction of the
Project, but in any event within eight (8) Business Days after
receipt by the Trustee and accompanying certificates the Trustee
shall pay such obligation, if authorized by the Indenture and this
Agreement` from the Construction and Acquisition Fund. Provided,
however, no such payment shall be made if within five Business
Days after receipt of the written order referred to in the second
paragraph of this Section 2.03 the Trustee shall have received
notice from the Issuer, with a copy to the Company, that such
requisition is for costs other than Development Costs or that the
( work for which such requisition is requestd was not completed in a
workmanlike manner in accordance with the Plans and Specifications
Y or that such costs have been incurred for materials and equipment
other than in conformance with the Plans and Specifications.
Further, provided, however, no payment shall be made for any item
of materials not certified to be physically located on the site of
the Project unless (i) said item shall be stored in a facility
reasonably satisfactory to the Trustee and (ii) title to the same
shall pass to the Company not later than the date on which such
payment shall be made. If prior to payment of any item in an
j order the Company shoul3 for any reason desire not to pay such
f item, but should, in good faith, desire to contest the payment of
f such item the Company shall give timely notice of such decision
(and of the steps being taken to contest such payment) to the
Issuer and the Trustee, who shall refuse to make such disbursement
until further notice from the Company. In the event the Trustee
has received notice from the Issuer as set forth above contesting
only a portion of said payment, the remaining uncontested portion
shall be paid, provided that all other requirements of this
Section are met. In making any disbursement the Trustee shall
deliver to the Company a check or draft for the payment thereof
payable to the order of the Company or otherwise, as set forth in
the order of the Company directing such disbursement.
Any moneys on deposit in the Construction and Acquisition
Fund which, in the opinion of the Trustee acting upon the recom-
mendations of the Consultant or the Authorized Company or Issuer
Representatives, are not immediately necessary to pay the cost of
the Project or a portion thereof shall be invested in the same
manner as provided in Article V hereof.
The final disbursement shall be disbursed subject to the fol-
lowingi
�. A. A final in -place survey reasonably satisfactory to the
Trustee and the Issuer.
13
85-405
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S. Lien waivers and affidavits from all contractors, subcon-
tractors and materialmen who are entitled to file such liens
unless the Company has given the Trustee and the issuer such other
satisfactory evidence that no such liens will attach or, if filed,
have been released.
C. Checked -down title binder reflecting that no liens have
been filed against the Project which have not been satisfied of
record or for which adequate provision has not been made pursuant
to law or to the satisfaction of the Trustee and Issuer;
D. Certificate of Occupancy and/or such other requirements
and certifications as may be required by the County, State Depart-
ment of Health or other governmental agencies having jurisdiction
of the Project;
E. Determination by the Trustee and the Issuer in their
reasonable judgment that this Agreement has been complied with in
all respects.
F. The City Manager of the Issuer shall have delivered to
the Trustee the Certificate of Final Completion set forth in Sec-
tion 3.9 of the Lease Agreement or the Company shall be entitled
pursuant to the Lease Agreement to have such Certificate of Final
Completion issued.
Any amount of moneys derived from Bond proceeds remaining in
the Construction and Acquisition Fund after payment or provision
for payment of all of the costs of the Project shall be used to
redeem the largest portion of Outstanding Bonds, callable at the
earliest possible date under terms of the Resolution, the Inden-
ture and this Agreement, that does not exceed the amount of such
unexpended Bond proceeds. In furtherance of the foregoing, all
such unexpended Bond proceeds shall be placed in a special escrow
account within the Bond Fund and used by the Trustee until deplet-
ed by redemption of Bonds at the earliest possible call date or
maturity of the Bonds whichever occurs first, and the amounts so
used shall be considered a reduction in the payments required
under Section 4.03 hereof. The amount placed in escrow shall not
be invested to produce a yield greater than the yield on the
Bonds. Any amount derived from investment earnings on the Con-
struction and Acquisition Fund remaining in said fund after
provision for payment of all of the costs of the Project shall be
deposited in the Bond Fund and used for the purposes thereof, and
said amount shall be considered a reduction in the payments re-
quired under Section 4.03 of this Agreement for the Bond Fund.
14
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ARTICLE III
CONSTRUCTION OF PROJECT
SECTION 3.01. DELIVERY OF MORTGAGE; CONSTRUCTION BY COMPANY.
Prior to or upon receipt by the Trustee of the proceeds from the
sale of the Ronds, the Company will execute and deliver to the
Issuer and the Issuer assign to the Trustee the Mortgage of the
leasehold estate of those properties described in Exhibit A
attached hereto to secure payment of the Bonds, the terms of such
trust being defined in the Indenture. To further secure repayment
of the Bonds, the payment of the interest and the applicable re-
demption premium thereon, the payment of all sums of money re-
quired to be paid by the Company hereunder, and the performance of
all obligations to be performed as defined by this Agreement, the
Company hereby grants and conveys to the Trustee, as the secured
party a security interest in the equipment and all personalty and
fixtures, if any, acquired with Bond proceeds and described in
Exhibit B attached hereto.
The Issuer has determined that the purpose of the Act will be
_
more effectively served by the Company's constructing the Project,
and the Issuer hereby authorizes the Company to construct, build
and erect such building(s) and facilities to constitute the Pro-
ject on the land described in Exhibit A and to equip such Project
substantially in accordance with the description of work and
equipment, if any, contained in the final Plans and Specifications
which shall be approved by the Issuer, a copy of which shall be on
x
file with the Authorized Officer of the Issuer and the Trustee,
and in furtherance thereof to award contracts for the improvement
a
of the Project upon a competitive or negotiated basis as, in the
Company's judgment, will best facilitate the timely and economical
preparation of the Project all as more fully set forth in the
Lease Agreement. As provided in the Lease Agreement, the Company
is authorized to employ such consultants, engineers, builders and
other contractors and construction personnel as may be necessary
for the construction of said Project and all of such expenses
shall be reimbursed to the Company by the Trustee or paid by the
Trustee in the manner provided in this Agreement and the Inden-
ture to the extent such expenses constitute Development Costs.
The Company agrees to construct the Project substantially in
accordance with such Plans and Specifications, as the same may be
amended from time to time in accordance with the Lease Agreement
Notwithstanding the foregoing, the Company shall have the
authority to order minor change orders resulting in an increase in
Development Costs of not greater than $20,000 in any one instance
or $100,000 in the aggregate without the consent of the Issuer
provided that such change orders do not decrease the amount of
parking spaces in the Project or adversely affect the aesthetic
appearance thereof. All other change orders shall be subject to
x the review and approval of the Issuer. Any change orders not
requiring the approval of the Issuer shall be mailed to the Issuer
15 85-405
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not less than five (5) days subsequent to the date thereof. In
the event approval by the Issuer is required pursuant to this Sec-
tion, approval shall have been deemed given unless the Issuer
shall have notified the Company otherwise in writing by the close
of business on the fifteenth day (15th) day following notification
of such change order to the Issuer.
Except as provided for in Section 3,11 of the Lease Agreement
the Company shall obtain all necessary approvals from any and all
governmental agencies requisite to the construction of the Pro-
ject. The Project shall be constructed by the Company in compli-
ance with existing laws, ordinances and regulations applicable
thereto. Upon completion of the Project the Company shall obtain
all occupancy permits and authorizations from appropriate authori-
ties which may be required for its occupancy and use of the Pro-
ject for the purposes contemplated. A copy of all permits
required to improve or equip the Project shall be supplied within
a reasonable period of time to the Trustee and the Issuer upon
receipt by the Company.
The Company has executed the Lease Agreement to lease the
site of the Project, and has agreed to complete construction of
the Project in accordance with the provisions of the Lease Agree-
ment as promptly as practicable after receipt by the Trustee of
proceeds from the sale of the Bonds with all reasonable dispatch
and to use reasonable efforts to cause the said construction to be
completed as soon thereafter as may be practicable, but if such
work is not promptly completed there shall be no resulting abate-
ment, diminution or delay in the Financing Payments for the
Project required hereby to be paid to the Trustee by the Company.
The equipment, if any, listed on Exhibit B shall be acquired
with Bond proceeds. If for any reason any item of equipment is
not available or acquirable the Company may substitute other
equipment of equal value and after approval by the Issuer, so in-
form the Trustee by amendment of Exhibit S.
SECTION 3.02. INSURANCE DURING CONSTRUCTION. In compliance
with or in addition to insurance required by the Lease Agreement,
the Company shall maintain or cause to be maintained in full force
and effect at all times during the period of construction of and
equipping of the Project, with the Issuer, and the Trustee named
as loss -payees as their interests may appear (except with respect
to the policy described in (G) below) and with a 30-day notice
required to the Issuer and the Trustee of any reduction in or can-
cellation of coverage, the following:
(A) Insurance on the Project against "All Risks" of physical
loss or damage, including the expense of the removal of debris of
such property as a result of damage by an insured peril, written
on as broad an "All Risk" form as is commercially available. At
the option of the Company the aforementioned insurance may be
provided on a Completed Value Builder's Risk Policy;
16
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f t
(B) Automobile liability insurance and equivalent policy
forms covering all owned, non -owned and hired vehicles used in
connection with any work arising out of the Lease Agreement. Such
insurance shall afford protection to at least a combined single
limit for bodily injury and property damage liability of
$1,000,000 per occurrence;
(C) Comprehensive general liability insurance, including
contractural liability, or an equivalent policy form providing
liability insurance against claims for personal injury or death or
property damage occuring on or about the Project. Such insurance
shall afford protection to at least a combined single limit for
bodily injury and property damage liability of $10000,000 per
occurrence;
(D) Theft coverage insurance covering employer fidelity,
inside or outside loss and burglary with a limit of not less than
$100,000 per occurrence;
(E) Worker's Compensation and Employer's Liability Insurance
insurance as required by Florida law;
(F) Flood insurance in an amount satisfactory to the Issuer
and the Company;
The Company shall not commence construction of the Project
until such time as all required insurance is obtained and the
carriers are bound and shall remain in full force and effect until
final acceptance of the Project or until the Project is used for
the public parking of vehicles, which ever first occurs. All
insurance provided for in this Section 3.02 shall be effected
under valid and enforceable policies issued by insurers of recog-
nized responsibility, which are licensed to do business in the
State of Florida. All such companies must be rated at least "A"
as to management, at least Class "V as to financial strength in
the latest edition of Best's Insurance Guide, published by Alfred
M. Best Co., Inc., 75 Fulton Street, New York, New York. The
insurance required by this Section 3.02 may be part of another
policy or policies of the Company or affiliates of the Company in
which other properties and locations are also covered so long as
the amount of insurance available to pay losses at the Project is
at least the minimum required by this Section 3.02 and cannot be
reduced in any manner by losses occurring at other properties or
locations.
The Company shall submit certificates evidencing the required
insurance policies to the Trustee together with all relevant
coverage and premium information along with satisfactory evidence
of payment of the premiums thereof.
The initial premiums for insurance secured by the Company to
cover such risks or premiums for insurance for such other coverage
as the Company may reasonably require and obtain shall be consid-
ered to be a part of the Development Costs to the extent allowed
by applicable federal and State law. All risk of loss shall be
17
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upon the Company and the Trustee shall have an interest in all
proceeds upon any loss to the extent of the balance of the pay-
ments due pursuant to Section 4.03 of this Agreement.
SECTION 3.03 COST OF PROJECT. It is estimated that the
Development Costs will not exceed the net proceeds of the sale of
the Series 1985 Bonds (exclusive of accrued interest) plus income
or other gains from investments of moneys in the Construction and
Acquisition Fund hereinafter referred to, and less any losses on
investments of moneys in the Construction and Acquisition Fund,
with such excess to be paid by the Company. The net proceeds, as
that expression is used in this Agreement, from the sale of the
Series 1985 Bonds, shall mean the amount of the gross proceeds
remaining after payment of the costs and expenses of initiating
(but not acquiring and improving) the Project, including, without
limiting the generality of the foregoing, documentary stamps, if
any, intangible and other taxes, if any, recording fees, municipal
bond insurance, fees and expenses of Bond Counsel, underwriter's
discount, fees for credit enhancement, reasonable attorneys' fees
of the original purchaser incurred prior to the receipt of the
Series 1985 Bonds and fees and reasonable expenses of the Trustee
including attorneys' fees properly incurred prior to the delivery
of the Series 1985 Bonds to the purchasers thereof or during the
period of construction of the Project.
SECTION 3.04 ACTION TO ENSURE COMPLETION OF PROJECT. The
Company covenants that it will take such action and institute such
proceedings reasonably available to it as shall be necessary to
cause and require all contractors and material suppliers to
complete their contracts diligently in accordance with the terms
of said contracts, including without limitation the correcting of
any defective work, with all expenses incurred by the Company in
connection with the performance of its obligations under this
Section to be considered part of the cost of the Project to the
extent they constitute Development Costs, and the Issuer and the
Trustee agree that the Company may, from time to time, and after
written notice to the Trustee, in the Issuer's name, the Company's
name or in the name of the Issuer and the Company, take such
action as may be necessary or advisable, as determined by the Com-
pany, to ensure the completion of the Project in accordance with
said Plans and Specifications and the installation of equipment,
if any, in accordance with applicable contracts pertaining there-
to, and to insure the performance by the Company of all its cove-
nants and obligations under this Agreement. The Trustee, and the
Issuer will cooperate with the Company during any efforts by the
Company to remedy a default by any contractor or subcontractor,
provided that the Company shall advance all costs and expenses
reasonably expected to be incurred by the Trustee and/or the
Issuer and to indemnify and save harmless the Trustee and the
18
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114
Issuer against any risk, claims or liabilities arising out of any
such efforts.
SECTION 3.056 COVENANT TO COMPLETE, The Company covenants
and agrees, in the event the cost of constructing the Project
should exceed the net proceeds of the sale of the Bonds, the
Project shall nevertheless be promptly completed by the Company,
and the Company does hereby agree to pay from its own funds the
cost of such excess.
SECTION 3.06. WARRANTIES EXTEND TO TRUSTEE AND ISSUER. It
is agreed that all vendors' warranties received in connection with
all equipment purchased, if any, for the Project, together with
all warranties given by contractors, manufacturers or service
organizations who perform construction work or install any equip-
ment for the Project, shall extend to the Trustee and the Issuer.
If requested, the Issuer and the Company shall execute and deliver
appropriate instruments to accomplish the intent of this Section;
provided, however, that neither the Issuer nor the Company shall
have any responsibility or liability for the effectiveness of such
instruments or the enforceability of such warranties.
SECTION 3.07. ESTABLISHMENT OF COMPLETION DATE. The Company
shall be required to establish the Project's completion date,
which shall be evidenced by the Company's furnishing to the rrust -
ee and the Issuer within thirty (30) days of said completion date,
with a copy of each to the Issuer, a certificate signed by the
Authorized Company Representative and the Consultant stating
that;
(1) improvements have been completed substantially in
accordance with the Plans and Specifications and all labor, ser-
vices, materials and supplies used in such construction have been
paid;
(2) all equipment, if any, and other facilities necessary in
connection with the Project have been constructed or acquired and
installed substantially in accordance with the Plans and Specifi-
cations and all costs and expenses incurred in connection there-
with have been paid! and
(3) the equipment, if any, so installed is in proper operat-
ing order and is suitable and sufficient for the efficient opera-
tion of the Project for the purposes for which it is intended;
notwithstanding the foregoing, such certificate shall state that
it is given without prejudice to any rights against third parties
which exist at the date of such certificate or which may subse-
quently come into being.
Notwithstanding the foregoing, establishment of such date
shall not be a waiver of any rights of the Issuer under the Lease
Agreement.
19
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SECTION 3.08. COVENANT TO CONVEY. The Company hereby cov-
enants that it will cause to be granted to the Issuer for assign-
ment to the Trustee a first lien mortgagee's interest in its
leasehold estate in the property on which the Project will be con-
structed, described in Exhibit A attached hereto, free from all
encumbrances, other than Permitted Encumbrances, and a security
interest in the equipment and all personalty and fixtures, if any,
acquired with Bond proceeds and described in Exhibit a attached
hereto.
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ARTICLE IV
LOAN AND PAYMENT THEREOF
SECTION 4.01. DEFEASANCE UPON PAYMENT. If the Company shall
first make the payments and perform the covenants and agreements
required in the Note, the Indenture and herein on its part to be
made and performed, the Issuer covenants and agrees that it shall
cause the Trustee, as soon as practicable, but in no event later
than thirty (30) days thereafter, to execute and deliver to the
Company a good and sufficient satisfaction of the Note and the
Mortgage, termination statements and such other releases and docu-
ments.
For purposes of the preceding sentence, a deposit in irrevo-
cable trust with the Trustee, for the sole benefit of the Bond-
holders, of direct obligations of, or obligations the principal of
and interest on which are guaranteed by, the United States of
America in such amounts as will, with the income thereon or the
increment thereto, be sufficient to pay the principal of, redemp-
tion premium, if any, and interest to become due, whether at
maturity or upon call for redemption on the Bonds, and amounts due
to the Trustee hereunder, at the time and in the manner stipulated
herein, shall be considered "provision for payment". Nothing
herein shall be deemed to require the Company or the Bondholders
to exercise their option to call any of the Outstanding Bonds for
redemption prior to maturity pursuant to any applicable optional
redemption provisions, or to impair the discretion of the Company
in determining whether to exercise any such option for early re-
demption.
SECTION 4.02. PRINCIPAL AMOUNT OF LOAN. The principal a-
mount of the loan to be repaid by the Company for the Project is
the principal amount of the Bonds issued, the interest thereon (at
the rate or rates specified in the Bonds), redemption premiums, if
any, and the reasonable fees, expenses and expenditures of the
Issuer and the Trustee, in performing the Trustee's duties under
this Agreement or the Indenture, which loan shall be paid in such
amounts as provided in Section 4.03 hereof. To assure the pay-
ments of the amounts due under Section 4.03 hereof, the Company
hereby agrees to deposit or cause to be deposited with the Trustee
for deposit in the Revenue Fund, the revenues derived from the
operation of the Project as soon as practicable after receipt
thereof, but no .Later than the next Business Day, to be disoursed
as provided in the Indenture and in Section 4.03 hereof. Notwith-
standing the foregoing, in no event shall the inadequacy of sucn
Revenues or the failure of the Company to make the foregoing
deposit limit the obligations of the Company pursuant to Section
4.03 hereof in that the obligation of the Company to make the pay-
ments hereunder and in the Note are general obligations of the
Company secured by the full faith and credit of the Company. The
21
8S.,405
Trustee shall furnish to the Company, the Issuer and any Bondhold-
er who shall so request in writing of the Trustee, at reasonable
intervals not less than annually, an accounting of the funds ex-
pended out of, deposited in and on deposit in the Revenue Fund,
SECTION 4.03. PAYMENT OF LOAN. Pursuant to Section 4.02
a hereof the Company has agreed to deposit, as soon as practicable
s after receipt thereof, but no later than the next Business Day,
all Revenues received from the operation of the Project. Out of
such Revenues, the Trustee shall pay Costs of Operation and Main-
tenance, as provided in the Agreement. Such Revenues shall be
deposited as provided in this Agreement and the Indenture. In the
event sufficient moneys are not available in the Revenue Fund to
make the deposits required herein and in the Indenture. The Com-
pany shall remit the same directly to the Trustee in immediately
available funds prior to 11:00 A.M., Eastern Standard Time on the
date the payment is due for deposit by the Trustee in the Revenue
Fund. To the extent that moneys are on deposit in the Revenue
Fund and available for such purpose, the Trustee shall credit such
moneys against the payments required below, which represent
payments to be made under the Note. Until the principal of and
interest on the Bonds shall have been fully paid or provision for
the payment thereof shall have been made in accordance with this
Agreement, the Company shall pay to the Trustee in the manner
provided above, an amount equal to the sum of the following:
(A) On the Business Day of each month, an amount equal
to one -sixth (1/6T0€ the interest coming due on the next Bond
Service Payment Date together with the amount of any deficiency in
prior deposits for interest.
(B) On the Business Day of each month on a parity with
the deposits set forth in (A) above, an amount equal to one -
twelfth (1/12) of the principal and Amortization Installments com-
ing due on the next Bond Service Payment Date together with the
amount of any deficiency in prior deposits for principal and or
Amortization Installments.
(C) On the Business Day of each month after the de-
posits set forth in (A) and (B) above have been made, after taking
into consideration the amounts on deposit therein, an amount not
less than one -sixtieth (1/60) of the difference between the
amounts currently on deposit in the Reserve Fund and the Reserve
Requirement.
(D) On the Business Day of each month, after the
deposits set forth in (A), (B) and (C) above have been made the
amount of all reasonable fees and expenses of the Trustee which
may be charged in connection with the performance of its duties
and services with respect to such current payments of principal,
22
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Amortization Installments and/or interest and as otherwise re-
quired or indicated by the Indenture or this Agreement together
with the amount of deficiencies in prior payments due pursuant to
this subsection (D). The Trustee shall furnish to the Company an
itemized statement of the payments due to be made by the Company
to the Trustee pursuant to this paragraph (D) as they become due.
The Company shall pay within thirty (30) days of receipt of such
statement the sums required by this paragraph (0), The Trustee's
failure to furnish such a statement shall not affect the Company's
unconditional obligation to pay when due the sums required by
paragraphs (A), (3) and (C) of this Section.
In making the deposits set forth in (A) and (3) above, the
Company shall deduct therefrom any moneys on deposit in the Bond
Fund and available for such purpose. Pursuant to and subject to
the provisions of the Indenture, amounts on deposit in the Revenue
Fund after the deposits set forth in (A) through (D) above have
been made shall be remitted promptly to the Company to be dis-
bursed as provided in the Lease Agreement.
SECTION 4.04. PREPAYMENT TO REDEEM BONDS. Whenever any
maturity or series of Bonds is subject to optional redemption, the
Issuer will, but only upon request of the Company, or the Bond-
holder as provided in Section 207 of the Indenture, redeem the
same as a whole or in part. No such optional redemption shall be
made from Revenues without the written consent of the Issuer.
Whenever any maturity or series of Bonds is subject to mandatory
redemption, the Issuer will cooperate with the Trustee in effect-
ing such redemption. In either such event; the Company will pay
an amount which, when added to amounts already on deposit in the
Bond Fund and available for such purpose, shall be equal to the
applicable redemption price as a prepayment of that portion of the
loan corresponding to such maturity or series of Bonds, including
interest accrued to the date of redemption, at least five (5)
business days prior to the date of redemption.
SECTION 4.05. OBLIGATION TO PAY UNCONDITIONAL. So long as
any of the Bonds or interest thereon or any other obligations of
the Company hereunder shall be Outstanding, or until payment
thereof has been duly provided for, the Company's obligation to
make the Financing Payments due hereunder shall be absolute and
unconditional, and such payments shall be payable on the dates and
at the times specified without notice or demand (except as pro-
vided herein), without abatement or set-off, regardless of any
contingencies whatsoever, and notwithstanding any circumstances or
occurrences that may now exist or that may hereafter arise or take
place, including but without limiting the generality of the fore-
going, the following:
(A) The failure to complete the Project;
23
4.
85-405
+ Kit a
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(B) Damage to or destruction of the Projectp or any part
thereof, by Act of God or otherwise;
(C) Legal curtailment of the Company's use or occupancy of
the Project, or any part thereof, through procedures of eminent
domain or otherwise;
(D) Change in the Company's legal organization or status;
(E) Any assignment or lease of the Project by the Company,
notwithstanding a consent thereto by the Issuer or the Trustee;
(F) Any termination of this Agreement for any reason whatso-
ever, including without limitation, termination by reason of
default by the Company hereunder;
(G) Failure of consideration or commercial frustration of
purpose;
(H) Any change in the tax laws or regulations or other laws
of the United States of America or of the State of Florida or of
any political subdivision thereof, including the Issuer; or
(I) Any default on the part of the Issuer under this Agree-
ment or the Lease Agreement or any other fault or failure of the
Issuer whatsoever, or any failure by the Trustee under this
Agreement, the Indenture or otherwise.
24
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ARTICLE V
CERTAIN COVENANTS OF THE ISSUER AND THE COMPANY
SECTION 5.01. COVENANTS OF THE ISSUER. For as long as any
of the principal of and interest on any of the Bonds shall be
Outstanding and unpaid or until there shall have been set apart in
the Bond Fund a sum sufficient to pay when due the entire princi-
pal of the Bonds remaining unpaid, together with interest accrued
and to accrue thereon, the Issuer, in addition to any other
covenants contained herein, covenants with the Company and the
Holders of any and all Bonds as provided in Sections 5.02 - 5.06
of this Article.
SECTION 5.02. REVENUE FUND. The Issuer shall cause all of
the Revenues to be deposited as soon as practicable after receipt
thereof in the Revenue Fund, as required herein and in the Inden-
ture.
SECTION 5.03. DISPOSITION OF REVENUE FUND, RESERVE FUND AND
BOND FUND HONEYS. The Issuer directs in the Indenture that all
moneys at any time remaining on deposit in the Revenue Fund, in-
cluding the accounts therein, the Reserve Fund and Bond Fund shall
be disposed of as provided in the Indenture.
SECTION 5.04. INVESTMENT AND SECURITY OF FUNDS. Moneys on
deposit in the Construction and Acquisition Fund, the Revenue
Fund, the Reserve Fund and Bond Fund may be invested as provided
in this Section. Any and all income received by the Issuer from
investment of the Construction and Acquisition Fund shall remain
in the Construction and Acquisition Eund for the purposes thereof
until completion of the Project. Thereafter, any investment
earnings or other moneys in the Construction and Acquisition Fund
shall be transferred to the Revenue Fund and used by the Trustee
as provided in the Indenture. Investment earnings on moneys in
the Bond Fund shall remain in the Bond Fund. Investment earnings
on moneys in the Reserve Fund shall remain in the Reserve Fund
until the Reserve Requirement shall be on deposit therein and
thereafter shall be transferred to the Revenue Fund. Tne -trustee
shall sell and reduce to cash funds a sufficient portion of in-
vestments under the provisions of Section 801 of the Indenture
whenever the cash balance in a fund is insufficient for the pur-
poses of such fund. No investments shall be requested, however,
which may violate the covenants prohibiting excessive arbitrage
contained in this Agreement.
All moneys on deposit to the credit of the Revenue Fund, Bond
Fund, Reserve Fund and Construction and Acquisition Fund shall, at
the telephonic request of the Company, be invested and reinvested
by the Trustee as specified in such requests, based upon written
guidelines specified by the Company from time to time and approved
by the Issuer, in direct obligations of, or obligations the
25
85-405
... *k -. � ,�y1.
principal of and interest on which are guaranteed by, the United
States of America (including money market funds consisting of such
obligations) or in obligations of the Federal National Mortgage
Association, the Federal Intermediate Credit Corporation, or
Federal Home Loan Banks, Federal Fund Credits or obligations
issued by other agencies of the United States Government or com-
mercial paper of the quality which has a Standard and Poor's
rating of A-1, or in time deposits in banks (including the Trustee
or affiliates of the Trustee) having capital and surplus of not
less than $10,000,000, evidenced by certificates of deposit, to
the extent such investments qualify under Florida law, or in re-
purchase agreements with banks (including the Trustee or affili-
ates of the Trustee, provided that such investments are at the
highest rate in effect in the general marketplace) for securities
guaranteed by the United States of America.
Moneys in separate funds and accounts may be commingled for
the purpose of investment or deposit to the extent permitted under
applicable law and this Agreement. For the purpose of determining
the amount of money in such fund, the securities purchased with
the moneys in each fund shall be valued at their market value.
The Trustee shall not be liable or responsible for any loss re-
sulting from any investment permitted hereby or resulting from the
redemption, sale or maturity of any such investment. If the Com-
pany does not provide written directions and instructions with
respect to investment of moneys in any fund or funds, the 'trustee
shall hold any such fund or funds in cash or demand deposits
invested at the highest permissible rate available in the general
market. If at any time it shall become necessary that some or all
of the investments purchased with the moneys in any such fund be
redeemed or sold in order to raise moneys necessary to comply with
the provisions of this Agreement, the Trustee shall effect such
redemption or sale, employing, in the case of a sale, any commer-
cially reasonable method of effecting the same. The Trustee may,
but shall not be required to make any and all investments permit-
ted under this Section 5.04 through its own bond department, un-
less otherwise directed by the written request of the Company.
Neither the Issuer or the Trustee shall be liable or responsible
for any loss resulting from an investment made in accordance with
this Agreement.
SECTION 5.05. ENFORCEMENT OF FINANCING AGREEMENT. The Issu-
er will diligently enforce and cooperate with the Trustee to
achieve the enforcement of all the covenants and agreements on the
part of the Company that are contained in this Agreement and will
take all steps, actions and proceedings for the enforcement of
this Agreement and the collection of the Revenues payable hereun-
der, to the full extent permitted or authorized by law; provided,
rr.> however, the Issuer shall not be required to incur any obligation
or expense unless the Issuer shall have the proceeds derived by it
from the performance of this Agreement, which shall be legally
available to the Issuer for such purposes, which shall be
y_;,4-0.• sufficient to reimburse the Issuer for any such expenses, or the
Issuer shall be otherwise indemnified to its satisfaction against
26
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any and all costs and expenses, outlays and counsel fees and other
reasonable disbursementst and against all liability.
SECTION 5.06. MAINTENANCE OF TAX-EXEMPT STATUS. The Issuer
hereby covenants with the Company and the Holders of the Bonds
that it will not take or cause to be taken or acquiesce in the
taking of any action or proceeding which will result in the inter=
est to be payable on any of the Bonds becoming taxable for federal
income tax purposes.
SECTION 5.07. COVENANTS OF THE COMPANY. For so long as any
of the principal of and interest on any of the Bonds shall be
Outstanding and unpaid or until there shall have been set apart in
the Bond Fund a sum sufficient to pay when due the entire princi-
pal of the Bonds remaining unpaid, together with interest accrued
and to accrue thereon the Company, in addition to any other cov-
enants contained herein, covenants with the Issuer and the Holders
of any and all Bonds as provided in Sections 5.08 - 5.10 of the
Article.
SECTION 5.08. RATE COVENANT. After expiration of the Guar-
anty, the Company covenants and agrees that so long as any of the
Bonds are Outstanding that it will use its reasonable efforts
consistent with prudent business practices to collect or cause to
be collected, such rates, fees, rentals and other charges for the
use and services of the Project that will produce Revenues
sufficient in each Bond Year to pay 100% of all Operation and
Maintenance Expenses, 125% of Debt Service Requirement together
with 100% of all other payments required by this Agreement and the
Indenture and that such rates, fees, rentals and other charges
shall not be reduced so as to be insufficient for such purposes.
SECTION 5.09. PERFORMANCE OF OBLIGATIONS UNDER INDENTURE AND
LEASE AGREEMENT. The Issuer and the Company hereby covenants and
agrees to perform all duties and obligations required by them
under the Indenture and the Lease Agreement. To the extent the
Indenture or the Lease Agreement imposes duties or obligations on
the Company or the Issuer to be performed in addition to the
duties and obligations set forth herein, such provisions are in-
corporated as a part of this Agreement as though fully set forth
herein.
SECTION 5.10. PAYMENT OF OPERATION AND MAINTENANCE EXPENSES.
Prior to completion of the Project and for so long as any Bonds
shall remain Outstanding under the Indenture, the Company shall
maintain or cause to be maintained at all times in a depository
bank an amount of money equal to the estimated Operation and Main-
tenance Expenses for the next two calendar months together with
amounts required for the current month's Operation and Maintenance
Expenses. The Company hereby agrees that the Company shall pay or
cause to be paid daily payments of Operation and Maintenance Ex-
penses from said fund. The Trustee shall be required to reimburse
the Company on a monthly basis for said payments as provided in
Section 503 of the Indenture.
27 85-405
f
t
ARTICLE VI
MAINTENANCE, 'TAXES AND INSURANCE
SECTION 6.01. MAINTENANCE, MODIFICATIONS AND ADDITIONS. The
Company agrees that while any Bonds shall remain Outstanding it
will at its own expense (A) operate and keep or cause to be oper-
ated and kept the Project in as reasonably safe condition as its
normal operations shall permit and (S) keep or cause to be kept
all improvements forming a part of the Project in good repair and
in good operating condition, making or causing to be made from
time to time all renewals and replacements thereof as shall be
reasonably necessary.
In furtherance of the covenant of the Company to operate and
maintain the Project as provided in the preceding paragraph, the
Company shall retain under contract the services of an Acceptable
Operator. The Company agrees to initially engage DOSP pursuant to
the Management Agreement.
Subject to the terms and provisions of the Lease Agreement,
the Company may, also at its own expense or in the manner provided
in Article X of this Agreement, make from time to time any addi-
tions, modifications or improvements to any portion of the Project
it may deem desirable for its business purposes that do not ad-
versely affect the structural integrity of the Project; provided
that all such additions, modifications and improvements shall be
located wholly within the boundary lines of the land described in
Exhibit A. All such additions, modifications and improvements so
made by the Company shall become a part of the Project and shall
be subject to this Agreement and relevant documents executed pur-
suant to this Agreement.
Except when an event of default as defined in Section 9.01
hereof shall have occurred and be subsisting the Company may from
time to time, in its sole discretion and at its own expense, in-
stall, store or place additional furniture, office equipment,
automotive equipment and inventory used in connection with the
Project or the Bayside Specialty Center in the Project, provided
that such installation, storage or placement does not adversely
affect the operation of the Project as a public parking facility
or decrease the number of available parking spaces. All such
furniture, office equipment, automotive equipment and inventory so
installed stored or placed in the Project by the Company shall
remain the sole property of the Company and shall not be subject
to any security interest in favor of the Issuer, the Bondholders
or the Trustee. Nothing contained in the preceding provisions of
this Section shall prevent the Company from purchasing, but not
out of Bond proceeds, furniture and equipment on conditional sale
contract or lease sale contract, or subject to vendor's lien or
purchase money mortgage as security for the unpaid portion of the
purchase price thereof, or from leasing furniture and equipment.
28
85-405
n1z
,r t
The Company shall tag or otherwise suitably identify all furniture
or equipment installed (whether subject to a security interest or
otherwise) by it without expense to the Issuer and not constitut-
ing a part of the Project so as to indicate the Company's owner-
ship thereof.
The Company will not permit
remain against the Project for I
connection with any additions,
repairs, renewals or replacements
the Company shall first notify th
do, the Company may in good faith
liens filed or established agains
may permit the items so contested
satisfied during the period of su
cable appeal period or the condu,
vided that during the period of ar
if requested in writing by a majo
in reserve the moneys requested
Trustee shall notify the Company t
sel, by non-payment of any such
thereof will be subject to immedi
event the Company shall promptly E
Ai me-harnAA al 1 cueh unpaid items.
my mechanics' or other liens to
abor or materials furnished in
modifications, improvements;
so made by it; provided, that if
r Trustee of its intention so to
contest any mechanics' or other
the Project and in such event
to remain undischarged and un-
-h contest and during the appli -
;t of an appeal therefrom, pro-
y such contest the Company must,
.ity of the Bondholders, deposit
by the Bondholders, unless the
hat, in the opinion of its coun-
items the Project or any part
kte loss or forfeiture, in which
ay and cause to be satisfied and
The Trustee by the Indenture
agrees to cooperate fully with the Company in any such contest,
provided that the Company shall undertake to pay all costs and
expenses incurred by the Trustee and to indemnify the Trustee and
save it harmless against any risks, claims or liabilities arising
out of such contest.
SECTION 6.02.
in the Lease Agreeme
be under any obliga
quate, obsolete, wor
equipment. In any
determines that any
Project have become
undesirable or unnec
such items of equil
exchange or otherwi
without any responsi
Trustee therefor; p r
ated value (calculi
;UBSTITUT ION OF EQU I mar . Except as provided
nt, neither the Trustee, nor the Issuer shall
:ion to renew, repair or replace any inade-
n-out, unsuitable, undesirable or unnecessary
instance where the Company in its discretion
items of equipment included as part of the
inadequate, obsolete, worn-out, unsuitable,
essary, the Company may remove and dispose of
iment from the Project and sell, trade in,
;e dispose of them (as a whole or in part)
3ility or accountability to the Issuer or the
)vided, however, if such items have a depreci-
�ted in accordance with generally accepted
accounting practice) of more than $10,000 each or $50,000 in the
aggregate annually, (but in each event adjusted annually to
reflect changes in the Consumer Price Index), then the Company
shall:
(A) Substitute and install anywhere in the Project other
equipment having equal or greater utility and value and having a
similar function in the operation of the Project as an urban
29
85-405
T 4
parking facility in Miami, Florida (provided such removal and
substitution shall not impair operating unity or the operation of
the Project), all of which substituted equipment shall be free of
all liens and encumbrances, shall become a part of the Project and
E shall be evidenced by appropriate recording of financing state-
ments naming the Trustee as secured party; or
(B) Pay into the Bond Fund, within thirty (30) days after
the end of any calendar quarter in which such equipment is removed
from the Project, (I ) in the case of the sale of any such equip-
ment, or in the case of the scrapping thereof, the proceeds from
such sale or the proceeds, if any. from such scrapping, as the
case may be, (2) in the case of the trade-in of such equipment for
( other equipment not installed in the Project, the amount of the
credit received by it in such trade-in, and (3) in the case of any
disposition other than as provided in clauses (B)(1) or (B)(2) an
amount equal to the original cost thereof less depreciation at
rates calculated in accordance with generally accepted accounting
practices followed by the Company; or
(C). In the event that the Company has acquired and in-
stalled, prior to such removal and disposal of items of equipment
from the Project other than under preceding subsection (A) of this
Section. an additional item or items of equipment or made addi-
tions, modifications or improvements to the Project with its own
funds, free of all liens and encumbrances, which have become part
of the Project, either by virtue of the first paragraph of Section
6.01 or by virtue of not being tagged or suitably identified pur-
suant to the third paragraph of Section 6.01, the Company may take
credit to the extent of the amount so spent by it against the
requirement that it either substitute and install other equipment
having equal or greater utility or that it make payment into the
Bond Fund. If such equipment is already owned by the Company, the
value of such equipment for purposes of determining the credit
shall be the Company's depreciated book value.
The removal from the Project of any portion of the equipment
made a part of the Project and the substitution, payment or credit
-
therefor pursuant to the provisions of this Section shall not en-
title the Company to any delay, abatement or diminution of the
Financing Payments payable under Section 4.03 hereof. The Company
will promptly report to the Trustee within thirty (30) days of
each calendar quarter each such removal, substitution, sale and
other disposition of any item of equipment having a depreciated
value (calculated in accordance with generally accepted accounting
practice followed by the Company) of more than $10,000, or when
the aggregate of any such removed, substituted, sold or disposed
:
of items of equipment aggregate $50,000 (but in each event adjust-
ed annually to reflect changes in the Consumer Price Index), and
.,,,.
in addition will comply with the requirements of the
p y q preceding
paragraphs (A), (B) or (C) as the case may be.
30
w ` BJr-405. •.
T
y'
�or ttifi� - r A.4r
.�, �cY+�� W'r'i � tic, a9 � . � �d. x , , , :.� • , _. :::. '' i :��._ ..., : t:,. l , ... � 3:s,:i'-����,�3'+.t�.•"sie:��,rv'� `
Adjustments in this Section to reflect changes in the Consu-
mer Price index shall be based upon the multiplying of the figure
in question by a fraction, the numerator of which shall be the
most recently reported Consumer Price Index after the adjustment
date and the denominator shall be the Consumer Price Index report-
ed for the first full calendar month after issuance of the 9onds.
Such annual adjustments shall be made at the beginning of each
Rental Year under the Lease Agreement, as such term is defined in
the Lease Agreement.
SECTION 6.03. INSURANCE AFTER COMPLETION OF CONSTRUCTION.
In compliance with or in addition to the Lease Agreement and the
Management Agreement, the Company shall maintain or cause to be
maintained at all times, with the Issuer and the Trustee named as
loss -payees as their interests may appear (except with respect to
the policy described in (E) below) and with a 30-day notice
required to the Issuer and the Trustee of any reduction in or
cancellation of coverage, the following:
(A) Comprehensive General Liability (including Contractual
Liability) in limits not less than $5,000,000 per occurrence for
Bodily Injury and Property Damage;
(B) Garage Liability in the same limits as (A) above, inclu-
ding Automobile Insurance Hazard I;
(C) Garagekeepers Legal Liability with limits not less than
$5,000,000 per occurrence plus an excess coverage policy in an
amount of not less than $10,000,000. This policy shall be en-
dorsed to name the Issuer and the Company as additional insureds.
(D) Theft Coverage covering employee fidelity, inside or
outside loss and burglary with a limit of not less than $100, 000
per occurrence.
(E) Worker's Compensation as required by Florida Statutes,
Chapter 440.
(F) Flood Insurance in an amount satisfactory to the
Company.
(G) Business Interruption Insurance covering loss of Gross
Revenues for a period of at least two (2) years.
(H) Insurance on the Project against all risks of physical
loss or damage, including the expense of removal of debris of such
property damaged by an insured peril. Such policy shall be for
"full replacement costs".
(I) Errors and Omissions Coverage, if available, in limits
not less than $1,000,000.
31
85-4 05 -.im
,i
I t
The Company shall furnish Certificates of Insurance with the
Issuer named as additional insureds (except with respect to the
policy described in (E) above) for the coverages specified herein
prior to the commencement of operations hereunder and throughout
the term of this Agreement, which certificates shall clearly indi-
cate that the Company has obtained insurance in the type, amount
and classification as required for strict compliance with this
Section, and that no material change or cancellation of the insur-
ance shall be effective without thirty (30) days prior written
notice to the Issuer.
SECTION 6.04. INSURANCE POLICY PROVISIONS. The proceeds of
the insurance carried pursuant to the provisions of Section 6.03
hereof shall be applied as provided in Section 7.01 hereof. All
such insurance shall be taken out and maintained in generally
recognized responsible insurance companies organized under the
laws of one of the states of the United States and qualified to do
business in the State of Florida selected by the Company and
reasonably acceptable to the Trustee. All such companies must be
rated at least "A" as to management, and at least "Class X" as to
financial strength in the latest edition of Best's Insurance
Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street,
New York, New York. All policies evidencing such insurance shall
provide that loss shall be payable to the Issuer, the Trustee, the
Manager and the Company as their respective interests may appear,
and the policies or certificates thereof shall be deposited with
the Trustee. Evidence of reduction in or cancellation of coverage
under and evidence of renewal of all such policies shall be fur-
nished to the Trustee no less than thirty (30) days before the
policies' respective reduction, cancellation or expiration dates.
If a policy shall provide that the insurance benefits thereunder
shall be payable through any period of grace beyond the stated
expiration date, for the purposes of this Agreement such policy's
expiration date shall be deemed to be the last day of such grace
period, if the Company is not otherwise in default hereunder.
SECTION 6.05. PAYMENT OF PUBLIC CHARGES. The Company will
pay and discharge before any fine, penalty, interest or cost may
be added, as the same become due, all Public Charges of any kind
whatsoever that may at any time be lawfully assessed or levied
against or with respect to the Project, the interest of the
Company under this Agreement, the land described in Exhibit A and
any additional lands subsequently made a part of the Project, the
equipment, if any, described in Exhibit B, or any equipment or
other property installed or brought by the Company therein or
thereon (including, without limiting the generality of the fore-
going, all ad valorem taxes lawfully assessed upon the real and
personal property constituting the Project, all utility and other
charges incurred in the operation, maintenance, use, occupancy and
upkeep of the Project and all assessments and charges lawfully
made by any governmental body for public improvements that may be
32
85-405
i
1
v
a S"'.
secured by lien on the Project, and any taxes which may lawfully
be levied upon or with respect to the Revenues or receipts of the
Company, except that with respect to special assessments or other
governmental charges that may lawfully be paid in installments
over a period of years, the Company shall be obligated to pay only
such installments as are current and required to be paid while any
of the Bonds shall remain Outstanding). Pursuant to the Lease
Agreement the Issuer has agreed that it will not impose any spe-
cial assessment or other Public Charges (other than ad valorem
real property taxes) against the Project with respect to the con-
struction, operation, repair and maintenance of any improvements
the Issuer is obligated to construct pursuant to the Retail Lease
Agreement dated as of January 14, 1985 between the Issuer and the
Company. Provided however, the Issuer has retained all of its
rights to impose special assessments or other public charges for
all other purposes.
If the Company shall first notify the Trustee and Issuer of
its intention so to do, the Company may in good faith contest any
such taxes, assessments and other charges and, in the event of any
such contest, may permit the taxes, assessments or other charges
so contested to remain unpaid during the period of such contest
and during the applicable appeal period or the conduct of an
appeal therefrom unless the Trustee shall notify the Company that,
in the opinion of its counsel by non-payment of any such items the
Project or any part thereof will be subject to immediate loss or
forfeiture, in which event such taxes, assessments or charges
shall be promptly paid by the Company. The Trustee by the Inden-
ture agrees to cooperate with the Company in any such contest,
provided that the Company shall advance all costs and expenses
reasonably expected to be incurred by the Trustee against any
risk, claims or liabilities arising out of any such efforts.
The Issuer hereby agrees that any tax credits or tax deduc-
tions to which the Company may be entitled under the Code or any
applicable rules or regulations of the Internal Revenue Service
with respect to any part of the Project shall be made available to
the Company, and the Issuer will direct the Trustee upon indemni-
fication as provided in Section 6.07 hereof to cooperate and
itself will cooperate with the Company in any effort by the Compa-
ny to avail itself of any such tax credits or tax deductions, but
neither the Issuer nor the Trustee shall have any responsibility
or liability for the Company's failure to receive any such tax
credits or deductions.
SECTION 6.06. ENFORCEMENT BY ISSUER AND TRUSTEE. In the
event the Company shall fail to (A) keep or cause to be kept the
rf a
Project in as reasonably safe condition as its operating condi-
tions; will permit or keep the equipment, if any, in good repair
and good operating condition, (B) pay or cause to be satisfied and
'
discharged or removed any mechanics' or other liens filed or
33
85-405 -
r} '
established against the Project, (C) pay any lawful takes, assess-
ments or other governmental or utility charges, or (D) maintain
the required insurance or provide evidence of renewals of such
insurance thirty (30) days before the expiration thereof, the
Issuer or the Trustee may (but shall be under no obligation to)
take such action as may be necessary to cure such failure# includ-
ing the advancement of amounts of money# and all amounts so
advanced therefor together with any reasonable and necessary fees
and expenses incurred with respect to such enforcement by the
Issuer or the Trustee shall become an additional obligation of the
Company to the one making the advance, which amounts together with
interest on amounts advanced at the Default Rate from the respec-
tive dates of the making of such advances, the Company agrees to
pay on demand. The Company hereby covenants and agrees to indem-
nify and hold the Issuer and the Trustee harmless against any
reasonable and necessary advances, fees# costs and expenses and
any loss sustained by either of them as a result of enforcing this
Agreement and the Indenture.
SECTION 6.07. RELEASE AND INDEMNIFICATION COVENANTS. The
Company releases the Issuer and the Trustee from and covenants and
agrees that the Issuer and the Trustee shall not be liable for,
and the Company agrees to indemnify and hold the Issuer and the
Trustee harmless against, any loss or damage to property or any
injury to or death of any person occurring on or about, or result-
ing from any defect in, the property, the building, the equipment
or the other improvements constituting a part of the Project,
provided, that the indemnity provided in this sentence shall be
effective only to the extent of any loss that may be sustained by
the Issuer and the Trustee in excess of the net proceeds received
from any insurance carried with respect to the loss sustained, and
provided, further, that the indemnity shall not be effective for
damages that result from wanton negligence or intentional acts on
the part of the Issuer or the Trustee or their respective agents
or employees.
34
85-405
ARTICLE VII
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 7.01. OBLIGATION IN EVENT OF DAMAGE OR DESTRUCTION.
So long as any of the Bonds remain outstanding under the terms of
this Agreement, if the Project or any of the equipment, if any, is
destroyed (in whole or in part) or is damaged by fire or other
casualty. the Company shalt be obligated to continue to pay the
Financing Payments upon the loan as specified in Section 4.03
hereof. Whenever the Project, or any part thereof, (including any
personal property furnished or installed in the premises) shall
have been damaged, or destroyed, the Company shall promptly make
proof of loss in accordance with the terms of the insurance
policies.
(A) If the claim for loss resulting from such destruction or
damage is not greater than $500,000 [as adjusted periodically
pursuant to the Lease Agreement], the Company will promptly
repair, rebuild or restore the property damaged or destroyed to
substantially the same condition as it existed as of the comple-
tion date of the Project, with such changes, alterations and modi-
fications (including the substitution and addition of other pro-
perty) as may be desired by the Company and permitted by Section
9.8 of the Lease Agreement in such a manner as will not impair
operating unity or productive capacity or the value of the Project
as an urban parking facility; and the Company will pay the costs
thereof and will be entitled to retain all proceeds of insurance
in respect of such claim.
(8) If claim for loss resulting from such destruction or
damage is in excess of $500,000 [as adjusted periodically pursuant
to the Lease Agreement], the Company shall promptly give written
notice thereof to the Trustee. Unless the election provided in
Section 7.05 hereof has been made by the Company, all proceeds of
insurance resulting from claims for such losses shall be paid to
and held by the Trustee in the Construction and Acquisition Fund,
whereupon the Company will either: (1) proceed promptly to re-
pair, rebuild or restore the property damaged or destroyed to suo-
stantially the same condition as existed as of the completion date
of the Project, with such changes, alterations and modifications
(including the substitution and addition of other property) as may
be desired by the Company and permitted by Section 9.8 of the
Lease Agreement and as will not materially impair operating unity
or productive capacity or the value of the Project as an urban
parking facility, in which case the Trustee will apply so much as
may be necessary of the proceeds of such insurance to payment of
the costs of such repairs, rebuilding or restoration either on
completion thereof or as the work progresses, upon certification
by the Consultant or the Authorized Company Representative as the
Trustee may require, of such costs for work in place as provided
in Section 2.03 hereof and provided that the Trustee has no
knowledge of any default which has occurred under this
35
r
y
Agreement which has not been remedied; in the event said insurance
proceeds are not sufficient to pay in full the costs of such
repair, rebuilding or restoration, the Company will nonetheless
complete the work thereof and will pay from its own funds that
portion of the costs thereof in excess of the amount of insurance
proceeds necessary to complete said work prior to any disburse-
ments by the Trustee pursuant to Section 2603 hereof; or (2) upon
the Trustee's being furnished a certificate by the Authorized Com-
pany Representative or the Consultant, as the Trustee may require,
stating that (a) the property forming a part of the Project that
was destroyed or damaged is not essential to the Company's use or
occupancy of the Project, and if the security for the Bonds repre-
sented by the remaining Project is, in the opinion of the Trustee
not reduced thereby to less than that existing immediately prior
to the date of damage or destruction of the Project, or (b) the
Project has been restored to a condition substantially equivalent
to its condition and value as of the date of such destruction or
damage, or (c) improvements have been acquired which are fully
adequate for the Company's operations at the Project, and in the
opinion of the Trustee result in the value of the Project as
security for the Bonds remaining at least equal to the value of
the Project as of the date of such destruction or damage, upon the
Trustee's having no knowledge of any default by the Company under
this Agreement which has not been remedied and upon the Company
having furnished to the Trustee and the Issuer a certificate stat-
ing that in its opinion the Company is not in default under the
provisions of this Agreement, such insurance proceeds shall be
paid by the Trustee to the Company subject to the rights of the
Issuer pursuant to the Lease Agreement, or, if the Company shall
so direct the Trustee in writing, into the Bond Fund and applied
by the Trustee in the manner provided in this paragraph. The Com-
pany shall not, by reason of the payment of any excess costs under
clause (1) above, be entitled to any reimbursement from the Issuer
or the Trustee or any delay, abatement or diminution of the
Financing Payments payable under this Agreement or any other sums
payable by the Company hereunder. Any balance of such insurance
proceeds remaining in the Construction and Acquisition Fund after
the payment of all the costs of such repair, rebuilding or restor-
ation shall be paid into the Bond Fund and shall be used within
twelve (12) months of deposit therein by the Trustee for the pur-
chase or redemption of Outstanding Bonds as provided in the Inden-
ture. In the event that less than all of the Bonds are to be pur-
chased or redeemed, the Company shall furnish to the Trustee a
certificate of the Company or the Consultant, as the Trustee may
require, stating that the property forming a part of the Project
that was damaged or destroyed is not essential to the Company's
use or occupancy of the Project or the Project has been restored
to a condition substantially equivalent to its condition as of the
completion date of the Project and improvements which are fully
adequate for the Company's operations at the Project have been
acquired and made a part of the Project, and in any case the value
of the Project after such damage, destruction or partial repair is
not reduced below that existing on the completion date of the Pro-
ject or the date of such destruction or damage, whichever is
36
85-405 .
r
Agreement which has not been remedied; in the event said insurance
proceeds are not sufficient to pay in full the costs of such
repair, rebuilding or restoration, the Company will nonetheless
complete the work thereof and will pay from its own funds that
Portion of the costs thereof in excess of the amount of insurance
proceeds necessary to complete said work prior to any disburse-
ments by the Trustee pursuant to Section 2603 hereof; or (2) upon
the Trustee's being furnished a certificate by the Authorized Com-
pany Representative or the Consultant, as the Trustee may require,
stating that (a) the property forming a part of the Project that
was destroyed or damaged is not essential to the Company's use or
occupancy of the Project, and if the security for the Bonds repre-
sented by the remaining Project is` in the opinion of the Trustee
not reduced thereby to less than that existing immediately prior
to the date of damage or destruction of the Project, or (b) the
Project has been restored to a condition substantially equivalent
to its condition and value as of the date of such destruction or
damage, or (c) improvements have been acquired which are fully
adequate for the Company's operations at the Project, and in the
opinion of the Trustee result in the value of the Project as
security for the Bonds remaining at least equal to the value of
the Project as of the date of such destruction or damage, upon the
Trustee's having no knowledge of any default by the Company under
this Agreement which has not been remedied and upon the Company
having furnished to the Trustee and the Issuer a certificate stat-
ing that in its opinion the Company is not in default under the
provisions of this Agreement, such insurance proceeds shall be
paid by the Trustee to the Company subject to the rights of the
Issuer pursuant to the Lease Agreement, or, if the Company shall
so direct the Trustee in writing, into the Bond Fund and applied
by the Trustee in the manner provided in this paragraph. The Com-
pany shall not, by reason of the payment of any excess costs under
clause (1) above, be entitled to any reimbursement from the Issuer
or the Trustee or any delay, abatement or diminution of the
Financing Payments payable under this Agreement or any other sums
payable by the Company hereunder. Any balance of such insurance
proceeds remaining in the Construction and Acquisition Fund after
the payment of all the costs of such repair, rebuilding or restor-
ation shall be paid into the Bond Fund and shall be used within
twelve (12) months of deposit therein by the Trustee for the pur-
chase or redemption of Outstanding Bonds as provided in the Inden-
ture. In the event that less than all of the Bonds are to be pur-
chased or redeemed, the Company shall furnish to the Trustee a
certificate of the Company or the Consultant, as the Trustee may
require, stating that the property forming a part of the Project
that was damaged or destroyed is not essential to the Company's
use or occupancy of the Project or the Project has been restored
to a condition substantially equivalent to its condition as of the
completion date of the Project and improvements which are fully
adequate for the Company's operations at the Project have been
acquired and made a part of the Project, and in any case the value
of the Project after such damage, destruction or partial repair is
not reduced below that existing on the completion date of the Pro-
ject or the date of such destruction or damage, whichever is
36
85-405 .
greater. The Financing Payments described in Section 4.03 hereof
shall be reduced to the extent of such Bonds purchased or redeemed
under the provisions of this paragraph. Provided however, the
obligation of the Company to deposit Revenues pursuant to Section
4.02 hereof shall not be decreased.
(C) If, at the time insurance proceeds for such damage or
destruction are paid, no Bonds remain Outstanding under the terms
of this Agreement or any insurance proceeds shall remain in the
hands of the Trustee after all Outstanding Bonds have been paid in
full or provision for payment made and all expenses and fees of
the Trustee and Issuer have been paid, such insurance proceeds
will be paid to the Company, subject to the rights of the Issuer
pursuant to the Lease Agreement.
(0) Any moneys held by the Trustee as provided in this
Section at the telephonic request of the Company (based upon writ-
ten guidelines for investments given by the Company from time to
time and approved by the Issuer, which approval shall not be
unreasonably withheld), shall be invested in such investments as
are authorized for investment of fund moneys pursuant to the pro-
visions of Article V of this Agreement, maturing not later than
the date or dates specified by the Company, on which such moneys
shall be needed for the purposes herein provided. Any earnings or
profits on such investments shall be considered as part of the
insurance proceeds and the amount of any losses on such invest-
ments shall be forthwith reimbursed to the Trustee by the Com-
pany.
SECTION 7.02. OBLIGATION IN EVENT OF CONDEMNATION. So long
as any Bonds remain Outstanding under the terms of this Agreement,
if title to the Project or any part thereof shall be taken under
the exercise of the power of eminent domain by any governmental
body or by any person, firm or corporation acting under govern-
mental authority, the Company shall be obligated to continue to
make the Financing Payments as specified in Section 4.03 hereof
and to deposit the Revenues with the Trustee pursuant to Section
4.02 hereof. If no default is continuing hereunder, the proceeds
derived from any such condemnation which shall be received by the
Trustee, to whom the Issuer and the Company do hereby assign their
respective interests in any award made in eminent domain proceed-
ings with respect to any part of the Project, and shall be
deposited into the Construction and Acquisition Fund for applica-
tion by the Trustee in one or more of the following ways as shall
be directed in writing by the Company:
(A) To the restoration of the site and improvements of the
Project to substantially the same condition and value as they
existed immediately prior to the date of the commencement of such
condemnation proceedings. In the event such condemnation proceeds
37
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shall be insufficient to pay in full the costs of such restora-
tion, the Company will nonetheless complete the work thereof and
pay from its own funds the amount necessary for such completion,
and prior to disbursement of such proceeds to the Company by the
Trustee, the Company or the Consultant as the Trustee may require,
shall furnish to the Trustee a certificate stating that the Pro-
ject has been restored to a condition substantially equivalent to
its condition and value as they existed on the date of the
commencement of such condemnation proeedings.
(8) To the acquisition, by construction or otherwise, of
improvements fully adequate for the Company's operations at the
Project (which improvements shall be made a part of the Project to
the same extent as if such improvements were specifically de-
scribed herein and subject to this Agreement and which shall be
available for use and occupancy by the Company without payment or
expense other than herein provided); provided, that such improve-
ments shall be acquired subject to no liens or encumbrances
(excepting liens and encumbrances approved by the Trustee) and
prior to disbursement of such proceeds to the Company by the
a Trustee, the Company or the Consultant, as the Trustee may re-
quire, shall furnish to the Trustee a certificate stating that the
j Project has been restored to a condition and value substantially
{ equivalent to its condition and value as they existed on the date
of the commencement of such condemnation proceedings.
3 (C) To deposit into the Bond Fund for use within twelve (12)
months of deposit therein by the Trustee to purchase or redeem
Outstanding Bonds as provided in the Indenture; provided, that no
part of any such condemnation award may be applied for such pur-
chase or redemption unless (1) all of the Bonds are to be pur-
chased or redeemed in accordance with this Agreement; or (2) in
the event that less than all of the Bonds are to be purchased or
redeemed, the Company or the Consultant as the Trustee may re-
quire, shall furnish to the Trustee a certificate stating that (a)
the property forming a part of the Project that was taken by such
condemnation proceedings is not essential to the Company's use or
occupancy of the Project, or (b) the Project has been restored to
a condition substantially equivalent to its condition and value as
existed on the date of the commencement of such condemnation pro-
ceedings, or (c) improvements which are fully adequate for the
Company's operations at the Project and which in the opinion of
the Trustee maintain the value of the Project at substantially the
same value as they existed on the date commencement of such con-
demnation proceedings, have been acquired and made a part of the
Project.
(D) If at the time such damages for such condemnation are
paid, no Bonds remain Outstanding under the terms of this Agree-
ment, or any balance of condemnation proceeds remain after all
Outstanding Bonds shall have been paid in full or provision for
38
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payment having been made and all expenses of the Trustee and the
Issuer have been paid, then to the Company, subject to the rights
of the Issuer under the Lease Agreement.
The Company shall within ninety (90) days from the date of
entry of a final order in any eminent domain proceedings granting
condemnation, but not prior to the expiration of the appeal period
applicable to such final order, and in the event of an appeal
period in excess of ninety (90 ) days from the date of such final
order, then within ten (10) days of the expiration of such appeal
period, direct the Issuer and the Trustee in writing as to which
of the ways specified in this Section the Company elects to have
the condemnation award applied.
Any moneys held by the Trustee under the provisions of this
Section at the telephonic request of the Company (based upon writ-
ten guidelines for investments given by the Company from time to
time and approved by the Issuer, which approval shall not be
unreasonably withheld), shall be invested or reinvested by the
Trustee, as specified by the Company in such request, and approved
by the Issuer, in such investments as are authorized for invest-
ment of fund moneys pursuant to the provisions of Article V of
this Agreement, maturing not later than the date or dates speci-
fied in writing by the Company on which such moneys shall be
needed for the purposes herein provided. Any earnings or profits
on such investments shall be considered as part of the condemna-
tion Proceeds.
The Trustee by the Indenture agrees to cooperate fully with
the Company in the handling and conduct of any prospective or
pending condemnation proceedings with respect to the Project or
any part thereof and, to the extent it may lawfully do so, permit
the Company to control the defense of the proceedings, but in no
event will the Company voluntarily settle or consent to the
settlement of any prospective or pending condemnation proceedings
with respect to the Project or any part thereof without the
written consent of the Trustee and the Issuer.
If no default is continuing hereunder, the Company, subject
to the rights of the Issuer pursuant to the Lease Agreement, shall
be entitled to the proceeds of any condemnation award or portion
thereof separately awarded for damages to or takings of its own
property or for damages on account of the taking or an interfer-
ence with its right to possession, use or occupancy of the Pro-
ject, or for business damages or moving expenses.
SECTION 7.03. SUBSTITUTED PROPERTY PART OF PROJECT. All
property, real and personal, required by the provisions of this
Article VII to be substituted or added to the Project for the pur-
pose of restoring the same to a condition substantially equivalent
to its condition prior to any damage, destruction or taking under
the exercise of the power of eminent domain, or to a condition
fully adequate for the Company's operations at the Project, shall
become a part of the Project.
39
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SECTION 7.04. APPLICATION OF CERTAIN CONDEMNATION AND INSUR-
ANCE PROCEEDS. Upon the occurrence of any damage or destruction
caused by the perils insurable against under fire and extended
coverage insurance, resulting in a loss of use which shall give
rise to payments of proceeds of use and occupancy insurance, and
provided the Company is not in default under this Agreement, the
proceeds of any use and occupancy insurance shall be paid by the
Issuer and Trustee to the Company, subject to the rights of the
Issuer pursuant to the Lease Agreement. In the event the tempo-
rary use of the Project or any part thereof shall be taken under
the exercise of the power of eminent domain, or in the event that
damage or destruction to the Project results in a loss of use
which shall give rise to payments of use and occupancy insurance
and the Company is in default under this Agreement, the proceeds
derived from any such condemnation award or such proceeds of use
and occupancy insurance shall be promptly deposited to the credit
of the Revenue Fund and applied in the same manner as payments
thereof by the Company are applied pursuant to the provisions of
Section 4.03 of this Agreement.
SECTION 7.05. ELECTION NOT TO RESTORE PROJECT, DEPOSIT TO
BOND FUND. Upon certification by the Company or the Consultant as
the Trustee may require, that the Project shall have been damaged
or destroyed and (i) cannot be replaced or restored within six (6)
months, or within any longer period during which the proceeds of
use and occupancy insurance shall be payable and sufficient to pay
all the Financing Payments maturing during such period, or (ii) if
in the reasonable judgment of the Company it shall be unsuitable
for restoration for the Company's continued use or operation, then
the Company, with the approval of the Issuer, which approval shall
not be unreasonably withheld, may elect not to repair, substitute
or reconstruct the damaged or destroyed property, in the manner
provided in this Article VII, and in such event the Company shall
forthwith deposit to the credit of the Bond Fund such sums which,
together with the insurance proceeds, shall be sufficient to pay
the principal of all the Bonds then Outstanding plus accrued in-
terest thereon and interest to accrue thereon to the next interest
payment date on which notice pursuant to Section 702 of the Inden-
ture can be given, reasonable Trustee's charges and expenses
including attorney's fees, in which event all of the Bonds then
Outstanding shall be redeemed by the Trustee on the next succeed-
ing interest payment date which occurs at least sixty (60) days
after the deposit of said funds in the Bond Fund. Such redemption
shall be effected in the manner provided in the Indenture.
SECTION 7.06 PROVISION CONCERNING CONDEMNATION. Upon certi-
fication by the Company or the Consultant, as the Trustee may
require, that the Project shall have been taken by the exercise of
the power of eminent domain, or if such certification shall be
made with respect to a substantial portion of the Project, that it
shall be economically unfeasible to effect restoration, then the
40
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Company, with the approval of the Issuer, which approval shall not
be unreasonably withheld, may elect not to replace or restore the
property taken by the power of eminent domain, in the manner
provided in this Article and in such event, the Company shall
forthwith deposit to the credit of the Bond Fund such sums which,
together with the condemnation award, shall be sufficient to pay
the principal of all the Bonds then Outstanding at par plus
accrued interest thereon and interest to accrue thereon to the
next interest payment date for which notice pursuant to Section
702 of the indenture can be given, and to pay reasonable Trustee's
charges including its attorneys fees. The Trustee shall redeem
all of the Bonds then Outstanding on the next succeeding interest
payment date which occurs at least sixty (60) days after the
deposit of said funds into the Bond Fund. Such redemption shall
be effected in the manner provided in the Indenture.
SECTION 7.07. CASUALTY TO BAYSIDE SPECIALTY CENTER. In the
event that all or any portion of the Bayside Specialty Center is
taken by power of eminent domain or shall be conveyed to avoid
such proceedings or is damaged or destroyed by reason of fire or
any other casualty pursuant to Sections 10.06 and 9.11 of the
Lease Agreement, respectively, and is not restored such that, in
the good faith opinion of the Company, it shall be economically
feasible to use and enjoy the Project, the Issuer shall, at the
request of the Company, but solely with funds of the Company
redeem all the Outstanding Bonds as provided in Section 701 of the
Indenture.
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ARTICLE VI I I
SPECIAL COVENANTS
SECTION 8.01. NO WARRANTY OF CONDITION OR SUITABILITY BY
ISSUER. Except as otherwise provided in the Lease Agreement, the
Issuer makes no warranty, either express or implied, as to the
title or condition of the Project, or that it will be suitable for
the Company's purposes or needs, or that it can be improved
according to the Plans and Specifications with the proceeds from
the sale of the Bonds, except that it warrants it has created no
rights in third parties that will interfere with the Company's use
of the Project, except as set forth in Exhibit D hereto for the
rights of the third parties.
SECTION 8.02. RIGHT OF ACCESS TO PROJECT. The Company
agrees that the Issuer, the Trustee and their duly authorized
agents shall have the right at all reasonable times to enter upon
the Project as may be necessary to carry out or determine compli-
ance with this Agreement, but such entry will be subject to the
giving of reasonable notice and to the execution of reasonable
release of liability agreements and similar matters.
SECTION 8.03. MAINTENANCE OF EXISTENCE. The Company agrees
that during the term of this Agreement it will maintain its
existence as a limited partnership, will not dissolve or otherwise
dispose of all or substantially all of its assets, or partner-
ships, and will not consolidate with or merge into another corpor-
ation or partnership, or permit one or more other corporations or
partnerships, to consolidate with or merge into it, unless such
change shall be approved in writing by the Issuer.
SECTION 8.04. EVENT AND DETERMINATION OF TAXABILITY. In the
event there shall be a Determination of Taxability (as defined in
the Indenture) as a result of an Event of Taxability (as defined
in the Indenture), the rate of interest on the Bonds shall be in-
creased retroactively to the Date of Taxability as provided in the
Indenture, and any additional interest payable on the Bonds,
either retroactively or prospectively, shall be included in the
amounts payable by the Company as provided in Section 4.03 hereof.
If a Determination of Taxability shall occur, the Company,
after receiving written notice thereof from the Trustee, may elect
to redeem the Bonds in whole, but not in part, at the earliest
date for which notice can reasonably be given following the
occurrence of a Determination of Taxability in the manner and at
the rate of interest provided in Section 202 of the Indenture.
SECTION 8.05. SALE OR LEASE OF PROJECT. Until payment in
full of the Bonds and the interest thereon the Company covenants
42
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f 4t
that it will not sell, lease, convey or otherwise dispose of any
of its property or assets except in the ordinary course of busi-
ness and except as and to the extent permitted in the Lease
Agreement.
SECTION 8.06. RELEASE AND SATISFACTION. If at any time the
aggregate moneys held on deposit in the Bond Fund by the Trustee
pursuant to this Agreement shall be sufficient to pay the princi-
pal of all the Bonds at the time Outstanding, and the interest on
the Bonds to maturity or to the first date on which such Bonds may
be redeemed prior to maturity as authorized by the Indenture,
including the applicable redemption premium, if any, and to pay
all fees and charges of the Issuer and the Trustee due and to
become due through the date on which the last of the Bonds is re-
tired the Company shall be entitled to obtain a satisfaction of
the Note and any security interest as provided by Section 4.01
hereof; the Indenture, or this Agreement, and neither the Issuer,
the Trustee nor the Holder of any of the Bonds shall thereafter
have any rights hereunder, saving and excepting those that shall
have theretofore vested.
SECTION 8.07. REQUEST FOR REDEMPTION. The Issuer shall at
the request and direction at any time of the Company or as re-
quired hereunder, and if the Bonds are then redeemable, upon the
Issuer or the Trustee being furnished the requisite funds, forth-
with take all steps that may be necessary under the applicable
redemption provisions of the Indenture to effect redemption of all
or part of the then Outstanding Bonds on the earliest redemption
date on which such redemption may be made under such applicable
provisions.
SECTION 8.08. COMPANY TO FURNISH CERTAIN FINANCIAL DOCU-
MENTS. The Company covenants and agrees that, unless all of the
Bonds have been retired, or are callable prior to maturity and
have been duly called for redemption and payment of principal, in-
terest and applicable premium duly made or provided for, it will
furnish to the Trustee and the Issuer the following documents:
(A) within one hundred and twenty (120) days after the end of each
fiscal year an income statement, surplus statement and a balance
sheet of the Company for such fiscal year certified by any inde-
pendent certified public accountants acceptable to the Trustee,
(B) within ninety (90) days after the end of each quarter the
quarterly Company prepared financial statements, and (C) such
other financial data regarding the Company or the Project that the
Trustee may reasonably request. With each delivery of financial
statements required by clauses (A) and (B), the Company will deli-
ver to the Trustee a certificate signed by the Authorized Company
Representative stating that there exists no event of default or
default hereunder or if such event of default or default exists,
stating the nature thereof, the period of existence thereof and
43
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85-405.
91 4`
what action the Company is taking or proposes to take with respect
thereto. A copy of such certificate shall be simultaneously fur-
nished to the Issuer. The Trustee is hereby authorized by the
Company to deliver to any regulatory body having jurisdiction over
the Trustee with respect to this transaction copies of any finan-
cial data furnished pursuant to the requirements of this Section.
SECTION 8.09. COVENANT PROHIBITING EXCESSIVE ARBITRAGE. The
Company covenants to the Issuer, the Trustee and the purchasers
of the Bonds provided for herein that the Company will not direct
any use of the proceeds of the Bonds at any time during the term
of the Bonds which, if such use had been reasonably expected on
the date the Bonds were issued, would have caused such Bonds to
be "Arbitrage Bonds" within the meaning of Section 103(c) of the
Code, as interpreted by Section 1.103-13, 1.103- 14 and 1.103-15
of the Regulations of the United States Treasury Department. The
Company understands that this covenant imposes an obligation on
the Company throughout the term of the issue to comply with the
requirements of Section 103(c) of the Code, and to comply with the
requirements of the Treasury Regulations Sections 1.103-13,
1.103-14 and 1.103-15 interpreting such Code section in directing
the investments of funds held by the Trustee under the Indenture.
SECTION 8.10. TAX COVENANT. The Company and the Issuer
hereby covenant and agree that neither shall take any action nor
fail to take any action and to the extent that they may do so,
permit the Manager or any other party to take any action which, if
either taken or not taken, would adversely affect the exemption
from Federal income taxation on the Bonds.
SECTION 8.11. COVENANT TO OPERATE PROJECT FOR PUBLIC PARK-
ING. The Company hereby covenants that the Project will be avail-
able on a regular basis for general public use so that the Project
will comply with Section 1.103(8)(a)(2) of the Code.
SECTION 8.12. SPECIAL COVENANT REGARDING INVESTMENTS. The
Company hereby covenants and agrees that at no time during any
Bond Year will the amount invested in Non Purpose Obligations with
a yield higher than the yield on the Bonds exceed 150% of the debt
service of the Bonds for that particular 3ond Year, and that such
amount will be promptly and appropriately reduced as the amount of
outstanding Bonds is reduced.
SECTION 8.13. COVENANT REGARDING AUTHORIZED REPRESENTATIVES.
The Company and the Issuer covenant to furnish to each other and
to the Trustee written certificates containing the names of the
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persons at the time designated to act on behalf of the Company or
the Issuer pursuant to Section 2.03
hereof. The Company and the
Issuer will furnish to each other and
the Trustee written certifi-
cates containing specimen signatures
of such persons and signed on
44
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behalf of the Company and the Issuer by their respective Autho-
rized officers. Such certificates may designate an alternate or
alternates. Any such representatives shall be replaced upon
written request of the Company or the Issuer, as the case may be.
45
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01, EVENTS OF DEFAULT. The following shall be
"events of default" under this Agreement and the terms "event of
default" or "default" shall mean, whenever they are used in this
Agreement, any one or more of the following events:
(A) Failure on the part of the Company to pay the Financing
Payments required to be paid under Section 4.03 hereof on the date
that the payment is due.
a (B) Failure on the part of the Company to pay or cause to be
paid insurance premiums and taxes with respect to the Project for
a period of fifteen (15) days after written notice specifying such
failure and requesting that it be remedied shall have been given
by registered mail to the Company by the Trustee. For purposes of
i this Section taxes shall be deemed "due" upon the first date the
same shall be payable with penalty or interest.
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(C) Failure on the part of the Company to observe and
perform any other covenant, condition or agreement which it has
herein agreed to observe or perform, for a period of thirty (30)
days after written notice specifying such failure and requesting
that it be remedied shall have been given by registered mail to
the Company by the Issuer or the Trustee, unless the Issuer and
the Trustee shall agree in writing to an extension of such time
prior to its expiration. However, such a default shall be deemed
to be cured, if promptly and in good faith upon receipt of such
notice the Company proceeds diligently to correct such default and
corrects it within the applicable period or as soon thereafter as
reasonably practicable; provided, that in the sole judgment of the
Trustee the rights of the Bondholders have not been unduly preju-
diced thereby. If such failure by the Company to observe and
perform any such covenant, condition or agreement (other than a
failure described in (A) and (B) above) shall result from a change
in the Constitution of the United States or of the State of
Florida, or administrative or legislative action (whether state or
federal), or a final judgment, decree or order of any court or
administrative body entered after the Company's contest thereof in
good faith, or an Act of God, an act of a public enemy, an order
or action of military authorities (whether state or federal), a
strike or lockout or other industrial disturbance, insurrection,
riot, epidemic, drought, arrests, civil or military restraints,
accidental damage to the Project or injury to employees of the
Company, or a failure of utilities, or other event beyond the
Company's control, then the Company shall not be deemed to be in
default during the continuance of such inability. (The settlement
of strikes, lockouts and other industrial disturbances shall not
be deemed to be entirely within the discretion of the Company, and
46
85 i05.
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the Company shall not be deemed to be in default within the mean-
ing of this paragraph if it shall refuse to make settlement of
strikes, lockouts and other industrial disturbances by acceding to
the demands of the opposing party or parties when such course is,
in the sole judgment of the Company, unfavorable to the Company.)
(0 ) The Company shall file a petition in oankruptcy or for
an arrangement pursuant to any present or future federal bankrupt-
cy act or under any similar federal or state law, or shall be
adjudicated a bankrupt or insolvent or shall make an assignment
for the benefit of its creditors or shall admit in writing its
inability to pay its debts generally as they become due, or if a
petition or answer proposing the adjudication of the Company as a
bankrupt under any present or future federal bankrupt act or any
similar or state law shall be filed in any court and such petition
or answer shall not be discharged or denied within ninety (90)
days after the filing thereof, or a receiver, trustee or liquida-
tor of the Company or of all or any substantial portion of the
Project shall be appointed in any proceeding brought against the
Company and shall not be discharged within ninety (90) days after
such appointment or if the estate or interest of the Company in
the Project or a part thereof shall be levied upon or attached in
any proceedings and such process shall not be vacated or discharg-
ed within sixty (60) days after such levy or attachment, or the
Company shall liquidate (other than as a result of a merger or
consolidation of the Company into or with a partnership or corpor-
ation under the conditions permitting such actions contained in
Section 8.03 hereof).
(E) The occurrence of a default under the Indenture, Guar-
anty, Lease Agreement or the Management Agreement, but only after
taking into consideration any applicable grace or cure periods
contained in any of the foregoing agreements.
M The Company shall fail to maintain on deposit in the
special account referred to in Section 5.10 hereof an amount which
is, in the reasonable opinion of the Issuer, equal to the esti-
mated Operation and Maintenance Expenses for the next two calendar
months.
SECTION 9.02. REMEDIES ON DEFAULT. Whenever any Event of
Default referred to in Section 9.01 hereof shall have occurred and
be continuing, the Issuer with the prior written consent of the
Trustee, or the Trustee, may, to the extent permitted by law, take
any one or more of the following remedial steps:
(a) If the Bonds shall be declared due and payable pursuant
to the provisions of the Indenture, as an acceleration of the pay-
ments payable under Section 4.03(A)(B) and (C) hereof an amount
equal to all amounts due and payable on the Bonds (whether by
acceleration of maturity or otherwise) shall thereupon be immedi-
ately due and payable, without other or further action on the part
of the Issuer or the Trustee, together with interest thereon (to
47 85-405.:,
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the extent permitted by law) from the date of such acceleration
until the Bonds are paid in full at the Default Rate; provided,
however, that if such declaration of acceleration of the Bonds
shall thereafter be rescinded pursuant to the provisions of the
Indenture, then the acceleration of the purchase price payments
pursuant to this paragraph shall likewise be rescinded without
other or further action on the part of the Issuer or the Trustee.
(b) From time to time take whatever action at law or in
equity may appear necessary or desirable to collect the Financing
Payments and any other amounts payable by the Company hereunder,
then due and/or thereafter to become due, or to enforce perform-
ance and observance of any obligation, agreement or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this
Section (other than amounts collected for the payment of fees and
expenses of the Issuer, the Trustee or any paying agents) shall be
paid into the Bond Fund and applied in accordance with the
provisions of the Indenture.
SECTION 9.03. NO REMEDY EXCLUSIVE. No remedy conferred upon
or reserved to the Trustee or to the Issuer by the Indenture, or
existing at law or in equity, shall be exclusive of any other
available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given
under the Indenture or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time as often as may
be deemed expedient. In order to entitle the Trustee or the
Issuer to exercise any remedy reserved to it in this Agreement or
the Indenture, or existing in law or in equity, it shall not be
necessary to give notice, other than such notice as may be herein
expressly required.
SECTION 9.04. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER.
In the event any agreement contained in this Agree ent should be
breached by any party hereto and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach here-
under.
SECTION 9.05. REIMBURSEMENT OF EXPENSES UPON DEFAULT. In
the event the Company should default under any of the provisions
of this Agreement, it will on demand therefor reimburse the Issu-
er and the Trustee for the reasonable fees and expenses of their
attorneys (whether or not suit shall have been brought) and such
other expenses as may reasonably be incurred by them in the
enforcement of performance or observance of any obligation or
agreement herein contained or in the collection of any balance of
EV
85-405.:,
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the Financing Payments or other sums due hereunder by the Company
to either or all of them; and it is hereby agreed that the issuer
has an interest in the full and appropriate performance of every
covenant and agreement herein contained for the payment of money
by the Company to the Trustee and the issuer shall be entitled to
reimbursement from the Company for any expenses incurred by the
Issuer, together with interest thereon from the date such expense
was incurred to the date of reimbursement at the Default Rate and
expenses of collecting the same, including reasonable attorneys'
fees whether suit be brought or not, in the protection of its
interest in this respect.
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SECTION 9.06. NOTICE OF DEFAULT. Immediately upon either of
the Issuer's or the Trustee's obtaining knowledge of the occur-
rence of any event of default it shall give written notice of such
occurrence to the other and to the Company and such notice to the
Company shall be in addition to, and not in lieu of, the notice
required by Section 9.01 or any other provision hereof.
1 14
ARTICLE X
FINANCING ADDITIONAL FACILITIES
PARITY OBLIGATIONS
SECTION 10.01. ISSUANCE OF OTHER OBLIGATIONS. The Issuer
will not issue any other Bonds or obligations payable from the
Revenues, nor voluntarily create or cause to be created any debt,
lien, pledge, assignment, encumbrance or other charge on the Trust
Estate, including the Mortgage, pledged in the Indenture having
priority to or being on a parity with the lien of the Bonds issued
pursuant to this Agreement and the Indenture and the interest
thereon, upon said Revenues, except under the conditions and in
the manner provided in Section 10.02 below. Notwithstanding the
foregoing, the Company may grant a second mortgage in its lease-
hold estate in the land on which the Project is located as provid-
ed in Section 6.1 of the Lease Agreement.
SECTION 10.02. ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS.
The Issuer hereby reserves the right to issue additional obliga-
tions upon request for same by the Company, such additional obli-
gations payable on a parity with the Bonds described in Section
202 of the Indenture for the purpose of (i) financing the acquisi-
tion, construction and installation of additional facilities to be
made a part of the Project, (ii) financing completion of the Pro-
ject or (iii) repairs or capital improvements to the Project of a
major nature arising from casualty or unanticipated conditions
after completion of the Project, but the Issuer may not be
required or compelled to issue any such obligations. The proceeds
of any such Additional Parity Obligations shall be loaned to the
Company upon execution of a promissory note and upon the appropri-
ate supplementation of the Indenture and this Agreement. No Addi-
tional Parity Obligations, payable on a parity from the Revenues
with the Bonds herein authorized, shall be issued after the issu-
ance of any Bonds herein authorized, except upon the conditions
and in the manner hereinafter provided:
(1 ) In the case of Additional Parity Obligations issued for
the purposes set forth in (i) and (iii) above there shall have
been obtained and filed with the Issuer and the Trustee a certifi-
cate of a Feasibility Consultant stating: (1) that the books and
records of the Company and the applicable books and records Issuer
have been audited by him; (2) the amount of the Revenues derived
for each of the three Bond Years preceding the date of issuance of
the proposed Additional Parity Obligations with respect to which
such certificate is made and the Revenues expected to be derived
r'+
for the Bond Year immediately following to date of issuance of the
proposed Additional Parity Obligations with respect to which such
certificate is made for each such Bond Year is equal to not less
than 125% percent of the Maximum Debt Service Requirement on all
outstanding Bonds, including the Additional Parity Obligations
with respect to which such certificte is made together with 100%
t It
of Operation and Maintenance Expenses and all other payments
required to be made pursuant to this Agreement and the Indenture.
In calculating the Maximum Debt Service Requirement in connection
with the issuance of the Additional Parity Obligations for the
purposes set forth in (i) and (iii) above, the Feasibility Consul-
tant may take into consideration the rates in effect on the date
of such calculation, but shall not include any proposed or pro-
jected rate increases.
(2) The issuer and the Company shall enter into an agreement
supplementing this Agreement, in form acceptable to the Issuer's
attorney and Bond Counsel, providing for the payment by the Compa-
ny to the Trustee of additional sums sufficient to pay debt
service and expenses with respect to such Additional Parity Obli-
g ations, on the same basis as provided in Section 4.03 of this
Agreement with respect to the Bonds herein authorized, and making
all of the covenants herein contained applicable to such Addition-
al Parity Obligations except where different provisions applicable
to such Additional Parity Obligations shall have no adverse effect
upon the interest of the holders of the Bonds herein authorized
and then Outstanding.
(3) Neither the Issuer nor the Company shall be in default
in performing any of the covenants and obligations assumed here-
under, and all payments required herein to have been made into the
accounts and funds, as provided hereunder, shall have been made to
the full extent required.
(4) No Additional Parity Obligations shall be issued if the
issuance thereof shall result in the interest of any Bonds then
Outstanding becoming taxable for federal income tax purposes.
(5) The Company and the Issuer shall have delivered all
additional items required by Section 208 of the Indenture.
SECTION 10.03. OBLIGATION TO ISSUE ADDITIONAL PARITY
OBLIGATIONS. The Issuer covenants and agrees to use reasonable
efforts, in light of applicable federal and state laws in effect
from time to time, including but not limited to federal tax laws
and regulations, to issue Additional Parity Obligations for the
purposes set forth in (ii) of the first paragraph of Section 10.02
to the extent that said Additional Parity Bonds are expended for
Development Costs.
51
ARTICLE XI
CONCERNING THE MORTGAGED PROPERTIES
SECTION 11.01, BONDS SECURED BY MORTGAGE. The repayment of
the Bonds, the interest and the applicable redemption premium
thereon, if any, the payment of the Financing Payments, the pay-
ment of all sums of money required to be paid by the Company or
the Issuer or either of them, and the performance of all obliga-
tions imposed by this Agreement upon the Company or the Issuer are
secured by a Mortgage encumbering the Company's leasehold estate
'•
in the land on which the Project is located. The Mortgage and
5
security interests have been, or prior to the sale and delivery of
the Bonds will be, executed and delivered by the Company to the
6
Issuer and assigned to the Trustee, which Mortgage and security
interests will be for the equal and proportionate benefit and
security of all and singular the present and future Holders of the
Bonds, the redemption premium thereon, if any, issued and to be
issued under this Agreement and the Indenture, without preference,
priority or distinction as to lien or source of payment of any one
Bond over any other Bond by reason of priority in the issue, sale
or negotiation thereof.
d
SECTION 11.02. PROTECTION OF LIEN. On the date hereof, the
Issuer and the Company shall cause the Mortgage and the Agreement,
or a financing statement relating thereto, to be recorded or
filed, in such manner and at such places as may be required by
law. From time to time, as reasonably requested by the Trustee,
the Company shall furnish to the Trustee an opinion of counsel
setting forth what, if any, actions by the Issuer, the Company or
Trustee should be taken to preserve such lien and shall on or
before October 1 of each Bond Year furnish to the Trustee an opin-
ion of counsel that all actions have been taken fully to preserve
such lien. The Issuer or the Company shall execute or cause to be
executed any and all further instruments including UCC financing
statements as may be required by law or as shall reasonably be
requested by the Trustee for such protection of the interests of
the Bondholders, and the Company shall furnish satisfactory evi-
dence to the Trustee of filing and refiling of such instruments
and of every additional instrument which shall be necessary to
preserve the lien of the Agreement upon the trust estate or any
part thereof until the principal of and interest on the Bonds
issued hereunder shall have been paid. The Trustee shall execute
or join in the execution of any such further or additional instru-
ment and file or join in the filing thereof at such time or times
and in such place or places as it may be advised by an opinion of
counsel will preserve the lien of this Agreement upon the Trust
A ,{:
Estate or any part thereof until the aforesaid principal and
interest shall have been paid.
'
52
�,ry
8S-405. -.
1
�fT.a
1tyftl,
10
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. NOTICES DEEMED GIVEN UPON MAILING. All
notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when mailed by first
class mail, postage prepaid, except where registered mail has
been expressly required, addressed as follows: (A) If to the
Issuer, to
(B) if to the Company, then to
(C) if to the Trustee, to •
A duplicate copy of any notice, certificate or other communication
required to be given hereunder by any of the parties shall also be
simultaneously given to the Issuer. The issuer, the Company and
the Trustee may, by notice given hereunder, designate any further
or different addresses to which subsequent notices, certificates
or other communications shall be sent, but such notice of change
of address shall be effective only when received by the Trustee on
behalf of the Bondholders, and by each other party hereto, except
for investment requests made by the Company pursuant to Sections
5.04, 7.01 and 7.02 hereof.
SECTION 12.02. AGREEMENT BINDING UPON PARTIES AND SUCCESSORS.
This Agreement shall inure to the benefit of and shall be binding
upon the Issuer and the Company and their respective successors
and assigns, subject however, to the limitations contained
herein.
SECTION 12.03. PROHIBITION OF LIENS. The Company shall not
create or suffer to be created by any other person any lien or
charge, whether for taxes, assessments, materials, supplies, labor
or otherwise, upon the Project or any part thereof or upon the
rents, contributions or charges or receipts or revenues therefrom
other than in favor of the Issuer or the Trustee. Notwithstanding
the foregoing, the Company may grant a second mortgage in its
leasehold estate in the land on which the Project is located as
provided in Section 6.1 of the Lease Agreement. The Company
further agrees to pay or cause to be discharged or make adequate
provision to satisfy and discharge, within (sixty) 60 days after
the same shall become due, any such lien or charge and also all
lawful claims or demands for labor, materials, supplies or other
charges which, if unpaid, might be or become a lien upon the
Project or any part thereof or the revenues or income therefrom;
provided, however, that nothing in this Section shall require the
Company to pay or cause to be discharged or make provision for any
such lien or charge so long as the validity thereof shall be con-
tested in good faith, unless the Trustee shall notify the Company
that, in the opinion of its counsel, by non-payment of any such
items the Project or any part thereof will be subject to immediate
loss or forfeiture, in which event the Company shall promptly pay
and cause to be satisfied and discharged all such unpaid items.
The Issuer shall cooperate with the Company in any such contest.
53
85-4 05. :
WIT
yam.
-� •�i�fi_.!�, �Yz ��a�.;�k,w'�.K3+iimd +_?� ,k..,f_�"..":. „..,,._.. .-mot, ...�`.�. -_'_x .. '.i4.s.Y,...m,�
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. NOTICES DEEMED GIVEN UPON MAILING. All
notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when mailed by first
class mail, postage prepaid, except where registered mail has
been expressly required, addressed as follows: (A) If to the
Issuer, to
(B) if to the Company, then to
(C) if to the Trustee, to
A duplicate copy of any notice, certificate or other communication
required to be given hereunder by any of the parties shall also be
simultaneously given to the Issuer. The issuer, the Company and
the Trustee may, by notice given hereunder, designate any further
or different addresses to which subsequent notices, certificates
or other communications shall be sent, but such notice of change
of address shall be effective only when received by the Trustee on
behalf of the Bondholders, and by each other party hereto, except
for investment requests made by the Company pursuant to Sections
5.04, 7.01 and 7.02 hereof.
SECTION 12.02. AGREEMENT BINDING UPON PARTIES AND SUCCESSORS.
This Agreement shall inure to the benefit of and shall be binding
upon the Issuer and the Company and their respective successors
and assigns, subject however, to the limitations contained
herein.
SECTION 12.03. PROHIBITION OF LIENS. The Company shall not
create or suffer to be created by any other person any lien or
charge, whether for taxes, assessments, materials, supplies, labor
or otherwise, upon the Project or any part thereof or upon the
rents, contributions or charges or receipts or revenues therefrom
other than in favor of the Issuer or the Trustee. Notwithstanding
the foregoing, the Company may grant a second mortgage in its
leasehold estate in the land on which the Project is located as
provided in Section 6.1 of the Lease Agreement. The Company
further agrees to pay or cause to be discharged or make adequate
provision to satisfy and discharge, within (sixty) 60 days after
the same shall become due, any such lien or charge and also all
lawful claims or demands for labor, materials, supplies or other
charges which, if unpaid, might be or become a lien upon the
Project or any part thereof or the revenues or income therefrom;
provided, however, that nothing in this Section shall require the
Company to pay or cause to be discharged or make provision for any
such lien or charge so long as the validity thereof shall be con-
tested in good faith, unless the Trustee shall notify the Company
that, in the opinion of its counsel, by non-payment of any such
items the Project or any part thereof will be subject to immediate
loss or forfeiture, in which event the Company shall promptly pay
and cause to be satisfied and discharged all such unpaid items.
The Issuer shall cooperate with the Company in any such contest.
53
85-405.
SECTION 12.04. AGREEMENT EFFECTIVE UPON VALIDATION. This
Agreement shall not become effective and shall be of no force and
effect, unless and until it shall be found and determined by the
Circuit Court in and for Dade County, Florida, to the extent that
such Court possesses authority and jurisdiction, in bond valida-
tion proceedings that the Issuer has full power and authority to
enter into and execute this Agreement, the Indenture, the Lease
Agreement and the Management Agreement and that each and every
provision contained herein and therein is valid and subsisting.
SECTION 12.05. DISPOSITION OF REMAINING MONEYS. It is
agreed by the parties hereto that any amounts remaining in the
Bond Fund, upon performance of this Agreement by the Company,
including payment in full of the Bonds in accordance with this
Agreement, shall belong to and be paid to the Company by the
Trustee as soon as practicable, but in no event longer than thirty
(30) days after such performance, as overpayment upon the purchase
price of the Project.
SECTION 12.06. MODIFICATION OR AMENDMENT. No material
modification or amendment of this Agreement or of any agreement
supplemental hereto may be made except as follows:
(A) Exclusive of supplemental agreements covered by Subsec-
tion (B) hereof and subject to the terms and provisions contained
in this Section, and not otherwise, no modification or amendment
to this Agreement or of any agreement supplemental hereto may be
made without the consent in writing of the Holders of two-thirds
or more in the principal amount of the Bonds then Outstanding;
provided, however, that no modification or amendment shall permit
a change in the maturity of such Bonds or a reduction in the rate
of interest thereon or in the amount of principal obligation
thereof or affecting the promise of the Issuer to pay the princi-
pal of and interest on the Bonds as the same shall become due from
the proceeds or reduce the percentage of the Holders of the Bonds
required to consent to any material modification or amendment
hereof without the consent of the Holder or Holders or all such
Bonds.
�,.
(B) The Issuer and the Trustee may without the consent of,
or notice to, any of the Holders, enter into an agreement or
agreements supplemental to this Agreement, as shall not be incon-
sistent with the terms and provisions hereof, for any one or more
of the following purposes:
-_
(1) To cure any ambiguity or formal defect or omission
in this Agreement;
(2) To grant to or confer upon the Trustee for the
benefit of the Holders of any additional rights, remedies,
54
85-405.
powers or authority that may lawfully be granted to or con-
ferred upon the Holders or the Trustee or either of them;
(3) To subject additional revenues to the lien and
pledge of this Agreement; and
(4) To assure compliance with federal "arbitrage" pro-
visions in effect from time to time.
The Issuer and the Trustee may enter into an agreement or
agreements supplemental to this Agreement with respect to the
issuance of Additional Parity Obligations as provided in Section
10.02 hereof, including any modifications hereof deemed necessary
or desirable in the judgment of the Trustee to permit the finan-
cing of real estate in connection therewith.
SECTION 12.07. REASONABLENESS OF
APPROVALS. Pursuant to
this Agreement, the Issuer, the Company
and
the Trustee
are re-
quired to give approvals to various matters
affecting the
rights
of each other and affecting the rights
of
the Holders
of the
Bonds. In considering whether to give such
approval the
Issuer,
the Company and the Trustee shall each
be
reasonable in
making
such determination.
SECTION 12.08. APPOINTMENT OF AGENTS. Except as otherwise
expressly provided for herein, and except for those duties which
are to be performed by the City Commission of the Issuer, the
Issuer shall from time to time appoint a department or departments
of the Issuer as its exclusive agent to perform the duties re-
quired hereunder to be performed by the Issuer by giving written
notice of such appointment to the Company and the Trustee. Upon
receipt of such written notice the Company shall be entitled to
rely upon representations and actions of such agent.
SECTION 12.09. AGREEMENT IN SEVERAL COUNTERPARTS. This
Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall consti-
tute but one and the same instrument.
SECTION 12.10. APPLICABLE LAW. This Agreement shall be con-
strued and enforced according to the laws of Florida.
SECTION 12.11. SEVERABILITY OF PROVISIONS. If any one or
more of the covenants, agreements or provisions herein contained
shall be held contrary to any express provisions of law or con-
trary to the policy of express law, though not expressly prohibi-
ted, or against public policy, or shall for any reason whatsoever
be invalid, then such covenants, agreements or provisions shall be
null and void and shall be deemed separable from the remaining
covenants, agreements or provisions and shall in no way affect the
validity of any of the other provisions hereof.
55
ss-4os_.
^� L
I V
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective corporate or indi-
vidual names and the corporate seal of the Issuer to be hereunto
affixed and attested by its duly authorized officer all as of the
date first above written, but actually executed and delivered this
day of , 1985.
(SEAL)
ATTEST%
Clerk
(SEAL)
ATTEST:
Its:
R LY I
r•
r a
CITY OF MIAMI, FLORIDA
By
City Manager
BAYSIDE CENTER LIMITED PARTNERSHIP
By: Rouse -Miami, Inc.
By
56
85-405.
� A AT
i¢
h
STATE OF FLORIDA
COUNTY OF
On the day of 1985, before me personally ap-
peared and
with whom I am personally acquainted
and who, upon their several oaths acknowledged themselves to be
the Mayor and Clerk, respectively of the City of Miami, Florida;
that they as such officers being authorized so to do, executed the
foregoing instrument for the purpose therein contained by signing
the name of said Issuer, that they know the seal of said Issuer,
that the seal affixed to said instrument is such official seal,
that it was so affixed by order of the Issuer, and that each of
them signed his name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and official
a
seal.
NOTARY PUBLIC
i My Commission Expires
57
85-405 -
. aT
14
:1
T�
.rat
sttT.O1 �r � � F Xh i
Ppp - } •.
STATE OF FLORIDA
COUNTY OF
On the day of , 1985, before me personally ap-
peared and
, with whom I am personally acquainted and who, upon
oath acknowledged themselves to be the
and respectively of Rouse -Miami, Inc.,
the General Partner of Bayside Center Limited Partnership, that as
such officers of the General Partner being authorized so to do,
executed the foregoing instrument for the purpose therein con-
tained by signing the name of said limited partnership, that they
know the seal of said limited partnership, that the seal affixed
to said instrument is such official seal, that it was so affixed
by order of the General Partner, and that they signed their names
thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
NOTARY PUBLIC
My Commission Expires:
Y
GARAGE PARCEL
Commence at the Northeast corner of Block 61 North of
the A. L. KNOWLTON MAP OF MITI, as recorded in Plat Book "B"
at Page 41 of the Public Records of bade County, Florida;
thence run North 89058118" East along the Easterly prolongation
of the Northerly line of Block 61 North of said A. L. KNOWLTON
MAP OF MIAMt for a distance of 557.10 feet to a point; thence
run South 00°08'11" West for a distance of 100.00 feet to a
point of intersection with the South line of Port Boulevard
as recorded in Official Records Book 6811 at Page 240 of the
Public Records of Dade County, Florida; said point being the
Point of Beqinning of the parcel hereinafter described; thence
run South 00008111" West for a distance of 34.17 feet to a
point; thence run South 89051149" East for a distance of 158.33
feet to a point; thence run South.00°08111" Westfor a distance of
149.00 feet to a point; thence run South 89051149" East for a
distance of 28.42 feet to a point; thence run South 00008'11"
West for a distance of 50.00 feet to a point; thence run North
89051'49" West for a distance of 28.42 feet to a point; thence
run South 00008'11" West for a distance of 166.00 feet to a
point; thence run South 89051149" East for a distance of 28.42
feet to a point; thence run South 00008111" West for a distance
of 50.00 feet to a point; thence run North 89°51'49" West for
a distance of 30.00 feet to a point; thence run North 00 08111" East -
fob a distance of 11.00 feet to a point; thence run North
89 51149" West for a distance of 156.75 feet to a point; thence
run South 00008111" West fgr a distance of 25.00 feet to a
point; thence run North 89 51149" Weft for a distance of 101.25
feet to a point; thence run North 00 08'll" East for a distance
of 25.00 feet to a point; thence run North 89051149" West for
a distance of 73.07 feet to a point of intersection with a line'
210 feet Easterly of and parallel with the City Mo ument line
of Biscayne Boulevard (North); thence run North 16 51'29" West
along said line parallel with the City Monument line for a
distance of 312.42 feet to a point; thence run North 12057'37"
West for a distance of 7.35 feet to a point of intersection
with the South line of said Port Boulevard; thence run North
39001119" East along the South line of said Port Boulevard for
EXHIBIT A
Sr5-405.
,..s.. .: t _, .....>� ,k�y • ; ' :.-;1_ a..ai..:� .yJY,jdf�'�1''".. a-_� ..ty ? - x,Y4�9
0
4
Ir
GARAGE PARCEL
November 21, 1984
Page 2
(Revised December 3, 1984)
a distance of 65.42 feet to a point of curvature of a curve
concave to the South having a radius of 218 feet; thence
Northeaster;y and easterly along said curve through a central
angle of 50 56'59" for an arc distance of 193.85 feet to a
point of tangency; thence continue along the South line of said
Port Boulevard North 89058118" East for a distance of 57.17
feet to the Point of Beginning; containing 3.7588 Acres more
or less.
85-405 - •.
EXHIBIT A
rp ..x
y,. �i ' ?
•�.-�" '�� i4s ?. tic pw e r � � 3 �'� ^`� �Y �' l c s � - a ,!: � to 1�k"
{z ks >
LEGAL DESr'vIPTION
A?EA
Cor . ence at the Northeast corner of Block 61 North of the
A. L. KNOI.ILTON MAP OF MI&,MI, as reccrded in Plat Book "B"
at Page 41 of the Public Records of Dade County, Florida;
thence run North 89 58118" East alonq the Easterly prolongation
of the Northerly line of Block 61 !North of said A. L. KNO.dLTON
MAP OF MIAMI for a distance of 184.07 feet to the Point of
Beginning of the parcel hereinafter described; thence run
South 24 26129" East for a distance of 254.19 feet to a point
of intersection with the South line of Port Boulevard as
recorded in Official Records Book 6811 at Page 240 of the
Public Records of Dade County, Florida; thence run North
¢
39 01119" East along the South line of said Port Boulevard for
a distance of 65642 feet to a point of curvature of a curve
concave to the South having a radius of 218 feet; -thence run
s
Northeasterly and Easterly along said curve through a central
angle of 50056'59.5" for an arc distance of 193.85 feet to a
point of tangency; thenroe continue along the South line of said
Port Boulevard North 89 58'18" East for a distance of 835.90
feet, more or less, to a point of intersection with the U. S.
Harbor Line of 1930 as shown on the plat of METROPOLIT;VN DADE
COUNTY BULKHEAD LIME as recorded in Plat Book 74 at Page 3 of
the Public Records of Dade County, Florida; thence run North
00015153" East along the said U. S. Harbor Line for a distance
of 270.00 feet to a point of intersection with a line 170 feet
North of and parallel with the Easterly prolongation of the
Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF
MIAMI; thence run South 89058118" hest along said parallel line
for a distance of 1230.02 feet to a point of intersection with
a line 130 feet Easterly of and parallel with the City Monument
Line of Biscayne Boulevard betw8en N. E. 6th Street and N. E.
7th Street; thence run South 24 26'29" East for a distance of
186.69 feet to the Point of Becinning, containing 7.526 acres,
more or less.
=ti
—405._
EXHIBIT A
P.
n
_ `•
TITa.
%4
<
i
J
L�
«��,,.:.JK
��.iP�.." r
1YC1i�R•Nl�r ��3'.s:iYi'�l *� :...`.y�� _...eJ. r . _. - ...
_ . �_.i:�' �_ -. ._ ... •^t1.:,n�+� :.'Lduv�i�i+..,..... .n..i'4.`I�5.:+.x+4��Si'1�'l.�
_
EXHIBIT "B"
I MACHINERY AND EQUIPMENT
Machinery and equipment shall include, but not be limited to,
such items as gates, ticket counters and related computerized
revenue control hardware and software; mechanical sweepers, high
Pressure cleaners, CCTV systems, office furniture and certain
landscape maintenance equipment.
��'i4 �i�^{S�-r-rRa-- -rr Y:. - _ ,, r; .:r'�' �I i'Mr'.•�1
EXHIBIT "C"
PROMISSORY NOTE
1985
$ CITY OF MIAMIr FLORIDA
On or before ,►►
for value received, the
undersigned promises to pay to the order of the CITY OF MIAMI#
FLORIDAj, a public body corporate of the State of Florida# the
principal sum of
DOLLARS ($_____ ) oge her with interest and other amou s
from the date hereof as specified in the Financing Agreeme�nt� (the
"Agreement") to which this Note is annexed as Exhibit C and
incorporated by reference and as specified in the Indenture of
Trust (the "Indenture") of even date between the City of Miami and
as Trustee under the Indenture.
r This Note shall bear interest and be payable in the following
manner and times:
This Note is secured by the Agreement by and between Bayside
Maryland Limited Partnership,
Center Limited Partnership# a
to do business in the State of Floridan and the City of
authorized o ena tI, condi
Miamir Florida. It is expressly agreed that aall nt covenants,
in the Agreem enture
tions and agreements contained
executed in connection herewith are hereby
executeth oatted lengthreferhere-
t as though fully
ence in this instrumenun the occur
e in default
be deemed bunder
in. This Note shall
of any Event of Default which the t rmso f the Ag re
an event of
-,
ment or the Indenture securing this Note constitutes
of an Event of Default the Holder of
default. Upon the occurrence
at its option, declare all unpaid indebtedness evi-
P
this Note may,
edate of immediately
denced by this Note and any modificationslesof t1maturitye
and payable without notice regardless the
this option shall not constitute a
Failure at any time to exercise
of the right to exercise the same at any other time.
waiver
This Note is assignable to the Trustee as provided in the
�:,..
Indenture, but otherwise sha
dged or hypot the Trusteerredn
h t c ted by the holder hereof�ora
ple
85"405
•
14
This Note shall be governed by the laws of the State of
Florida` which laws shall be applicable in the interpretation,
construction and enforcement hereof.
BAYStDE CENTER LIMITED PARTNERSHIP
By: Rouse -Miami, Inc.
By
ATTEST:
es-4os.•.
- 3 YJAAiT.�C�'4•^'v�.V4rI"' i f�—!r . � A Y! 7 x .nis�s� . J ff MM �• K
x �
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n
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— .y t°TSa�a.:. �Ar't.
'-r � �4it 4�6 v�tnfr`'.:�,.p'r�i� � . _ ti t r t !' i n � y x: +.#.`�•5 :��.X
-S,. A� s"'�`IFY[iPa•". r1.].a.. __ .._.... w G:... .- .. ,.-v':'tvr_:is:vbe�m..
EXHIBIT REGARDING THIRD PARTY RIGHTS
9-
71�1
117,
at�
iV
SM&O DRAFT
3/21/85
INDENTURE OF TRUST
BETWEEN
CITY OF MIAMI, FLORIDA
AND
I AS TRUSTEE I
Dated , 1985
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This Instrument Prepared By:
:r
=_ BRYANT, MILLER AND OLIVE, P.A.
700 Barnett Bank Building
Tallahassee, Florida 32301
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TABLE OF CONTENTS
Parties
. . . . . • . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ..
1
Recitals
.. . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .. . . . . • . .. . . . . . . .
1
Fo rm o f
Bo nd
. . . . . . . . . . . . . . ► .. . . . . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . .
3
rr a n t i ng
C 1 a u s e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
Article I
Definitions
S e c t i on
10 1 .
};
Wo rd s a nd T e rms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Section
102.
Correlative Words ..................................
19
Article II
The Series 1985 Bonds
Section
201.
Authorized Amount of Series 1985 Bonds .............
20
Section
202.
Description of Series 1985 Bonds ...................
20
Section
203.
Execution and Authentication of Bonds ..............
21
Section
204.
Form of Series 1985 Bonds ..........................
24
Section
205.
Registration and Exchange of Bonds; Persons Treated
as Owners ........................................
24
Section
206.
Bonds Mutilated, Destroyed,Stolen or Lost ..........
25
Section
207.
Issuance of Other Obligations ......................
25
Section
208.
Additional Parity Obligations ......................
25
Article III
Creation of Funds
Section
301.
Creation of Funds ..................................
28
Section
302.
Revenue Fund .......................................
28
Section
303.
Bond Fund ..........................................
28
Section
304.
Reserve Fund .......................................
28
-..
Section
305.
Construction and Acquisition Fund ..................
28
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Article IV
Custody and Application of Proceeds of
Series 1985 Bonds
'{
Section
401.
Custody of Proceeds ................................
29
n ='
Section
402.
Application and Disbursement of Series 1985 Bond
=.'
Proceeds
29
.........................................
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Article V
Application of Financing Payments
Application of Deposits to the Funds
Section
501.
Source of Payment of Bonds .........................
30
Section
502.
Deposits to and Disbursements from the Revenue Fund
30
Section
503.
Payment of Operation and Maintenance Expenses ......
30
Section
504.
Application of Moneys in the Revenue Fund ..........
30
Section
505.
Use of Money in Reserve Fund . . . . . . . . .. . . . . . . . . . . . . .
31
S e c t i o n
5 0 6 .
C h a rg a .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ♦ . . . . . . . . . . . .
3 2
Section
507.
Repayment to the Company from the Funds ............
32
Article VI
General Covenants
Section
601.
Payment of Principal and Interest ........6.........
33
Section
602.
Performance of Covenants; Authority ................
33
Section
603.
Right to Finance Project; Instruments of
Further Assurance .............................
33
Section
604.
Filing, Re -Filing of Supplements ...................
34
Section
605.
Payment of Taxes, Charges . .........................
34
Section
606.
Insurance ..........................................
34
Section
607.
Recordation of Agreement, Indenture and
Security Instruments ..........................
34
Section
608.
Inspection of Books ................................
34
Section
609.
Maintenance of Existence ...........................
35
Section
610.
Rights Under Agreement .............................
35
Section
611.
Protection of Bondholders ..........................
35
Section
612.
Trustee's Fees, Charges, Advances and Expenses .....
35
Section
613.
Performance of Obligations Under Agreement .........
36
Article VII
Redemption of Series 1985 Bonds Before Maturity
Section
701.
Redemption Dates and Prices ........................
37
Section
702.
[This Section Intentionally Reserved] ..............
38
Section
703.
Notice of Redemption ...............................
39
Section
704.
Cancellation .......................................
39
Section
705.
Non -Presentment of Bonds ...........................
39
Section
706.
Bonds Redeemed in Part .............................
40
Article VIII
Investments
Section 801. Investment of Fund Moneys .......................... 41
Section 802. Investments Through Trustee's Bond
or Other Department ........................... 41
ii
4
V
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Article IX
Discharge of indenture ..........••.•..•••..•.........•.......•... 42
Article X
Default Provisions and Remedies
of Trustee and Bondholders
Section
1001.
Events of Default ..................................
43
Section
1002.
Declaration of Acceleration ........................
43
Section
1003.
Remedies; Rights of Bondholders ....................
44
Section
1004.
Notice to Bondholders ..............................
45
Section
1005.
No Remedy Exclusive ................................
45
Section
1006.
No Additional Waiver Implied by One Waiver .........
45
Section
1007.
[This Section Intentionally Reserved] ..............
45
Section
1008.
Application of Moneys ..............................
46
Section
1009.
Remedies Bested in Trustee .........................
47
Section
1010.
Waivers of Events of Default .......................
47
Article XI
Concerning The Trustee
Section
1101.
Acceptance of the Trusts; Liability ................
49
Section
1102.
Reliance Upon Documents and Opinions ...............
49
Section
1103.
No Duty to Take Certain Actions ....................
50
Section
1104.
General Limitation of Liability ....................
51
Section
1105.
Bringing and Defending Legal Actions ...............
51
Section
1106.
Notice of Defaults .................................
52
Section
1107.
Intervention on Behalf of Bondholders ..............
52
Section
1108.
Release of Property from Lien of this Instrument ...
52
Section
1109.
Payment of Governmental Charges ....................
52
Section
1110.
Advancement of Moneys ..............................
53
Section
1111.
Retention of Documents .............................
53
Section
1112.
Trustee has Lien; Compensation; Indemnification;
Reimbursement by Company ........................
53
Section
1113.
Trustee May Acquire Bonds ..........................
54
Section
1114.
Successor Trustee ..................................
54
Section
1115.
Resignation or Removal of Trustee ..................
54
Section
1116.
Appointment of Successor Trustee ...................
55
Section
1117.
Concerning any Successor Trustees ..................
55
Section
1118.
Instruments and Documents of Bondholders ...........
56
Section
1119.
Determination of Bonds Outstanding .................
57
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V
Article XII
Supplemental indentures
Section 1201. Supplemental indentures not Requiring Consent of
Bondholders ... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. 58
Section 1202. Supplemental Indentures Requiring Consent of
Bo nd ho 1 d e rs . .. • . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5 8
Article XIII
Amendment of Agreement
Section 1301. Amendments, Etc., to Agreement not Requiring
Consent of Bondholders ........................ 60
Section 1302. Amendments, Etc., to Agreement Requiring
Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . 60
Article XIV
Miscellaneous
Section
1401.
Consents, Etc., of Bondholders .....................
61
Section
1402.
Limitations of Rights ..............................
61
Section
1403.
Severability.......................................
61
Section
1404.
Appointment of Agents ..............................
62
Section
1405.
Reasonableness of Approvals ........................
62
Section
1406.
Notices ............................................
62
Section
1407.
Trustee as Bond Registrar and as Paying Agent ......
62
Section
1408.
Payments Due on Saturdays, Sundays and Holidays ....
62
Section
1409.
Headings not Part of Indenture ................6....
63
Section
1410.
Counterparts .......................................
63
Section
1411.
Applicable Law .....................................
63
Section
1412.
No Liens ...........................................
63
Section
1413.
Indenture Effective Upon Execution .................
63
Section
1414.
Advancement of Costs ...............................
63
Testimonium Clause ...............................................
63
Signatures and Seals .............................................
64
Acknowledgments..................................................
65
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Article X11
Supplemental indentures
Section
1201.
Supplemental indentures not Requiring Consent of
Bondholders
58
Section
12026
Supplemental indentures Requiring Consent of
Bondholders 6 6 0 4. 6 0 6 0 6 a 6 .. • 6 6 6 6 6 6 0 ..
58
Article Xtit
Amendment of Agreement
Section
13016
Amendments, Etc., to Agreement not Requiring
Consent of Bondholders
60
Section
1302.
Amendments, Etc., to Agreement Requiring
Consent of Bondholders
60
Article XIV
Miscellaneous
Section
1401.
Consents, Etc., of Bondholders .......
61
Section
1402.
Limitations of Rights .........
61
Section
1403.
Severability ........
61
Section
1404.
Appointment of Agents
62
Section
1405.
Reasonableness of Approvals
62
Section
1406.
Notices
62
62
Section
1407.
Trustee as Bond Registrar and as Paying Agent ......
Section
1408.
Payments Due on Saturdays, Sundays and Holidays ....
62
Section
1409.
Headings not Part of Indenture ................
63
Section
1410.
Counterparts ........
63
Section
1411.
Applicable Law
63
Section
1412.
No Liens ...........................................
63
Section
1413.
Indenture Effective Upon Execution
63
Section
1414.
Advancement of Costs .....
63
k4i
Testimonium Clause
...............................................
63
Signatures and Seals
64
65
Acknowledgments
...................
1.
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WHEREAS, capitalized words
tune sh +text have the
eanings indicates t
the con
TRUST INDENTURE
_ day of r
THIS TRUST INDFNTTURE dated as of theF�RIDA, a municipal Cor-
1985, by and between the CITY OF det art of the first
d and existing under the laws oy the State of
poration create "Issueti )r P bank.
Florida (hereinafter called the a
Part, and existing .and authorized to aCCept
nder t
ing association duly organized,
rusts of the character here
in_rihc°°paluofficehe domis
and execute t , with its P Florida, as
" a
of rty of the
vile anposecond
d st office address located at
trustee (hereinafter called the Trustee )� P
part;
WITNESSETHs
and terms as used in this Inden-
forth in orticle I differentreofr meaning eor
another o
intent; and ted by the Act, the Issuer
t to authority gran
WHEREAS, Pursuanowered to make loans to qualified
is authorized and emp alified companies
'ects in accordance with agreements between the
for the cost of prod
Issuer and such companies; and
company is eligible to undertake the financing,
the Co
WHEREAS. construction and acquisition of the Project; and
the Issuer has authorized thioanedissuance
to the company
1985 Bonds, the proceeds roceeds of which will be ect; and
finance the acquisition and construction of the Proa
er's making
WHEREAS,
the Company, in considerationthe Seriessu1985 Bonds,
the loan herein referred to and issuing its Promissory Note to
shall execute in favor of and delivertu�e o the Issuer simultane
ously with t5esstefarthninfthethis
Agreement; and
be secured a
s authorized by law to enter into the
WHEREAS, the Company is
of the Series 1985 Bonds and,
Agreement to pay from the p
from Revenues and other available funds
and lcient
other
if necessary, a the Bonds the Agreement and this
moneys to the Issuer
Payments pay by
charges and other p Y
upon the terms and conditions provided in the Agreement;
indentureP
and of this Indenture of
WHEREAS, the execution and delivery the Rt have
he issuance of the Series 198 authorized by the Act have
Trust and t fully and validly
been in all respects
tion; and
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TRUST INDENTURE
THIS TRUST INDENTURE dated as of the day of ,
1985, by and between the CITY OF MIAMI, FL,ORIDA, a municipal cor-
potation created and existing under the laws of the State of
Florida (hereinafter called the "Issuer"), party of the first
part, and , a bank-
ing association duly organized, existing and authorized to accept
and execute trusts of the character herein set out under the laws
of , with its principal office, domi-
cile and post office address located at , Florida, as
trustee (hereinafter called the "Trustee"), party of the second
part;
WITNESSETH:
WHEREAS, capitalized words and terms as used in this Inden-
ture shall have the meanings set forth in Article I hereof, unless
the context or use indicates another or different meaning or
intent; and
WHEREAS, pursuant to authority granted by the Act, the Issuer
is authorized and empowered to make loans to qualified companies
for the cost of projects in accordance with agreements between the
Issuer and such companies; and
WHEREAS, the Company is eligible to undertake the financing,
construction and acquisition of the Project; and
WHEREAS, the Issuer has authorized the issuance of the Series
1985 Bonds, the proceeds of which will be loaned to the Company to
finance the acquisition and construction of the Project; and
WHEREAS, the Company, in consideration of the Issuer's making
the loan herein referred to and issuing the Series 1985 Bonds,
shall execute in favor of and deliver unto the Issuer simultane-
ously with the execution of this Indenture, its Promissory Note to
be secured as set forth in the Agreement; and
WHEREAS, the Company is authorized by law to enter into the
Agreement to pay from the proceeds of the Series 1985 Bonds and,
if necessary, from Revenues and other available funds sufficient
moneys to the Issuer to pay the Bonds with interest and other
charges and other payments required by the Agreement and this
Indenture upon the terms and conditions provided in the Agreement;
and
WHEREAS, the execution and delivery of this Indenture of
Trust and the issuance of the Series 1985 Bonds under the Act have
been in all respects fully and validly authorized by the Resolu-
tion; and
857405
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WHEREAS, it is the intention of the Issuer that this inden-
ture should serve as the organic document for issuing and securing
the Series 1985 Bonds together with any Additional Parity Obliga-
tions; and
WHEREASp the Series 1985 fondsr the registration and interest
payment provisions and the Trustee's Certificate of Authentication
to be endorsed thereon are all to be in substantially the follow-
ing form with such changes, amendments and variations as are
required by the resolution of the Issuer selling the Series 1985
Bonds, to wit:
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#'-yal�tirzcsf
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[FORM OF SERIES 1985 BOND]
[FACE OF SERIES 1985 BOND]
No. R-1 $
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF DADE
CITY OF MIAMI
DADE COUNTY, FLORIDA
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985
(BAYSIDE CENTER LIMITED PARTNERSHIP PROJECT)
MATURITY DATE: INTEREST RATE: DATED DATE: CUSIP:
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Miami,
Florida, a municipal corporation of the State of Florida (herein-
after called the "Issuer"), for value received, hereby promises to
pay to the order of the Registered Owner identified above, or
registered assigns (the "Owner"), upon the presentation and sur-
render hereof at the principal corporate office of the Trustee (as
hereinafter defined), on the Maturity Date identified above or at
prior redemption or tender, the Principal Amount identified above
and in like manner to pay interest, computed as provided herein,
on said principal sum from and including the date hereof until
payment of said principal sum has been made or duly provided for,
at the rate and on the dates set forth herein. All payments of
principal of and interest on this Bond other than the final pay-
ment shall be paid by check or draft mailed to the registered
holder hereof at its address as it appears on the registration
books of the Issuer to be maintained by the Trustee as of the
Record Date. This Bond shall bear interest at the Interest Rate
identified above, payable on 11 1985 and thereafter
semi-annually on each 1 and 1 from the preced-
ing Bond Service Payment Date to which interest has been paid in
full. The Record Date is defined in the Indenture as being the
fifteenth (15th) day of the calendar month next preceding any Bond
Service Payment Date or, if such day is not a Business Day, the
immediately preceding Business nay. The final payment of the
principal of, and interest on this Bond shall be paid upon surren-
der at the principal corporate trust office of
as trustee (the "Trustee" and the "Paying Agent's
in the City of , Florida (or at the principal corpor-
ate trust office of any successor Trustee).
This Bond is one of an authorized issue of Bonds of the
Issuer in the aggregate principal amount of $ issued to
C]
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finance the acquisition and construction of an urban parking
facility on property owned by the issuer and leased to the
Company, hereinafter defined, in Dade County, Florida, to be owned
by Bayside Center Limited Partnership, a Maryland limited partner-
ship authorized to do business in the State of Florida (herein-
after called the "Company") located in Dade County, Florida (here-
inafter called the "Project"). The Bonds will be repaid by the
Issuer from installment financing payments under the terms of a
Financing Agreement (hereinafter sometimes called the "Agreement")
and a Promissory Note dated as of , 1985. The issuance
of the Bonds and the construction and financing of the Project are
under the authority of and in full compliance with the Constitu-
tion and Statutes of the State of Florida, including particularly
Chapter 159, Part Il, Florida Statutes (1983), as amended (herein-
after called the "Act"), and other applicable provisions of law,
and a resolution duly adopted by the Issuer on , 19850, as
supplemented (hereinafter called the "Resolution"), and is subject
to all the terms and conditions of the Act and such Resolution.
The Bonds are all issued under and equally and ratably
secured and entitled to the security of an Indenture of Trust
dated as of , 1985 (herein sometimes called the "Inden-
ture"), duly executed and delivered by the Issuer to
, as Trustee under the Indenture (the "Trust-
ee"). Reference is made to the Indenture for the terms of the
Indenture and the provisions, among others, with respect to the
nature and extent of the security, the rights, duties and obliga-
tions of the Issuer and the Trustee and the rights of the holders
of the Bonds.
The Issuer shall not be obligated to pay this Bond or the
interest hereon except from the revenues and proceeds pledged
therefor and herein called the special funds, and neither the
faith and credit nor the taxing power of the Issuer or of the
State of Florida or of any political subdivision thereof is
pledged to the payment of the principal of or the interest on this
Bond.
FURTHER PROVISIONS OF THIS BOND ARE SET FORTH ON THE REVERSE
HEREOF WITH THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
and that the issuance of this Bond and the series of which it
forms a part, together with all other obligations of the Issuer,
does not exceed or violate any constitutional or statutory limita-
tion.
!1
1 4)
This Bond shall have and is hereby declared to have all the
qualities and incidents, including negotiability, of investment
securities under the Uniform Commercial Code - Investment Securi-
ties law of the State of Florida.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Inden-
ture until the certificate of authentication hereon shall have
been duly executed by the Trustee.
IN WITNESS WHEREOF, the City of Miami, Dade County, Florida
has issued this Bond and has caused the same to be executed in its
name by facsimile signature of the Mayor, and attested by its
Clerk, by facsimile signature, and its official seal to be im-
pressed hereon, as of the day of , 1985.
[SEAL]
ATTEST:
Clerk
CITY OF MIAMI, DADE COUNTY,
FLORIDA
By
Mayor
Certificate of Validation
This Bond is one of a series of Bonds which were validated by
judgment of the Circuit Court for Dade County, Florida, rendered
on the day of , 1985.
[Facsimile]
Mayor
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This Bond is one of the Bonds described in the within -men-
tioned Indenture.
as Trustee
By
Authorized officer
5
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V
[REVERSE OF SERIES 1985 BOND]
All capitlized terms not defined herein but used herein shall
have the same meaning as set forth in the Indenture.
The Bonds may be redeemed at the option of the Issuer at the
request of the Company, in whole at any time or in part from time
to time, on any Bond Service Payment Date, if less than all, as
set forth in the following table plus accrued interest to the
redemption date:
Redemption Dates
Redemption Prices
[Years and Redemption Prices to be Inserted]
MANDATORY REDEMPTION
The Bonds maturing on are subject to manda-
tory redemption, pursuant to the Amort zation Installments set
forth below, on each mandatory redemption date at 100% of the
principal amount thereof plus accrued interest:
Mandatory Redemption Date Amount
Year
AmountYear Amount
[Years and Amounts to be Inserted]
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EXTRAORDINARY OPTIONAL REDEMPTION IN WHOLE
The Bonds are subject to redemption in whole prior to matur-
ity by the Issuer, at the request of the Company, on any Bond Ser-
vice Payment Date, pursuant to the provisions set forth in Section
701(A)(3) of the Indenture in the event of damage, destruction or
condemnation of the project, at par plus accrued interest and the
premiums, if any.
SPECIAL REDEMPTION IN WHOLE
If interest on the Bonds is declared taxable for any reason,
then the Bonds at the option of the Company may be immediately
called at par, plus accrued interest, calculated as provided in
Section 202 of the Indenture. In the alternative, the Bonds shall
bear interest computed as provided in Section 202 of the Indenture.
In addition, in the event the Bayside Specialty Center is
i taken by power of eminent domain or shall be conveyed to avoid
such proceedings, or is damaged or destroyed by reason of fire or
any other casualty pursuant to Sections 10.06 and 9.11 of the
Lease Agreement dated as of January 14, 1985 between the Issuer
and the Company, and is not restored such that, in the good faith
opinion of the Company, it shall be economically unfeasible to use
and enjoy the Project, the Bonds may be immediately called at par,
plus accrued interest, as more fully provided in the Indenture.
Notice of any such redemption shall be given in the manner
required by the Indenture.
All Bonds so called for redemption will cease to bear inter-
est on the specified redemption date, provided funds for their
redemption are on deposit at the place of payment at that time,
and shall no longer be protected by the Indenture and shall not be
deemed to be outstanding under the provisions of the Indenture.
The Issuer reserves the right to issue additional bonds
payable on a parity with the Bonds of the issue of which this Bond
is one, subject to the conditions and in the manner provided in
the Agreement and the Indenture.
This Bond and such other Bonds of the series of which it forms
a part are issued pursuant to and in full compliance with the Con-
stitution and laws of the State of Florida, particularly Chapter
159, Part II, Florida Statutes (1984 Supp.); and pursuant to the
Resolution which authorizes the execution and delivery of the
Indenture and the Agreement. This Bond and the series of which it
forms a part are limited obligations of the Issuer and are payable
>:
solely from the payments and other amounts derived from the Com-
"A
pany pursuant to the Agreement and otherwise as provided in the
Indenture and the Agreement.
Neither the Issuer, the State of Florida, nor any political
subdivision thereof, is or shall be obligated to pay the Bonds or
4
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the interest thereon except from the payments from the Company and
neither the faith and credit nor the taxing power of the Issuer,
the State of Florida or of any political subdivision thereof is
pledged to the payment of the principal of or the interest on the
Bonds. The issuance of the Bonds shall not directly or indirectly
or contingently obligate the issuer, the State of Florida or any
political subdivision thereof to levy or to pledge any form of
taxation whatever therefor or to make any appropriation for their
payment.
Pursuant to the provisions of the Agreement, Financing Pay-
ments sufficient for the prompt payment when due of the principal
of, premium, if any, and interest on the Bonds are to be paid by
the Company to the Trustee for the account of the Issuer, and
deposited in certain special accounts created by the Issuer. Such
payments have been duly pledged for that purpose, and certain
rights of the Issuer under the Agreement have been assigned to the
Trustee under the Indenture to secure payment of such principal,
premium, if any, and interest.
The holder of this Bond shall have no right to enforce the
covenants under the Agreement or the Indenture, or to take any
action with respect to any event of default under the Agreement or
the Indenture, or to institute, appear in or defend any suit or
other proceedings with respect thereto, except as provided in the
Agreement or the Indenture.
In certain events, on the conditions, in the manner and with
the effect set forth in the Agreement and the Indenture, the prin-
cipal of all the Bonds issued under the Agreement and the Inden-
ture and then outstanding may become or may be declared due and
payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of the Agreement
and the Indenture, or of any supplements thereto, may be made only
to the extent and in the circumstances permitted by the Agreement
and the Indenture.
PROVISIONS FOR TRANSFER AND EXCHANGE
As provided in the Trust Indenture and subject to certain
limitations set forth therein, this Bond is transferable upon the
books of the Trustee, by the registered owner hereof in person or
by such owner's attorney duly authorized in writing, upon surren-
der hereof together with a written instrument of transfer satis-
factory to the Trustee, duly executed by the registered owner or
such owner's duly authorized attorney. Upon such transfer the
Issuer will cause to be issued in the name of the transferee a new
fully registered Bond or Bonds of the same aggregate principal
amount, maturity and interest rate as the surrendered Bond, sub-
ject to reimbursement for any tax, fee or governmental charge
required to be paid by the Issuer or the Trustee with respect to
such transfer and for any cost of printing Bonds.
8
i
857405
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED
The undersigned
hereby sells, assigns and transfers unto
the within Bond of the City of Miami, Florida and does hereby
constitute and appoint
attorney to transfer
r
the said Bond on the books of the within
named Issuer, with full
power of substitution in the premises.
Date:
j`
Signature Guaranteed:
Registered Owner
Notice: Signature(s)
must be guaranteed by a member firm of the
New York Stock Exchange
or a commercial bank or trust company.
(End of
Form of Fully Registered Bond)
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FURTHER WITNESSETH:
WHEREAS, all things necessary to make the Series 1985 Bonds,
when authenticated by the Trustee and issued as in this Indenture
provided, the valid, binding and legal obligations of the Issuer
according to the import thereof, and to constitute this Indenture
a valid assignment and pledge of the right to make claim for,
s collect, receive and receipt for the payments and revenues derived
from the Company for payment of the principal of, premium, if any,
and interest on the Bonds and a valid assignment of the rights of
the Issuer under the Note and the Financing Agreement or any sub-
sequent note or agreement have been done and performed, and the
creation, execution and delivery of this Indenture, and the crea-
tion, execution and issuance of the Series 1985 Bonds, subject to
the terms hereof, have in all respects been duly authorized;
f
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises, the accep-
tance by the Trustee of the trusts hereby created, the purchase
and acceptance of the Series 1985 Bonds by the purchasers thereof,
Ten Dollars ($10.00) duly paid to the Issuer by the Trustee at or
` before the execution and delivery of these presents and of other
good and valuable considerations, the receipt of which is hereby
acknowledged, and in order to secure the payment of the principal
of, premium, if any, interest and any other sums payable on the
Series 1985 Bonds Outstanding hereunder from time to time, accord-
ing to their tenor and effect, and to secure the observance and
performance by the Issuer of all covenants expressed or implied
herein and in the Series 1985 Bonds, retaining only its rights
under the Agreement to indemnity, reimbursement, insurance pro-
ceeds from liability insurance attributable to the Issuer's lia-
bility, notice, and receipt of copies of all documents, certifi-
cates and statements required by the Agreement to be provided to
the Issuer and any other rights specifically reserved to the
Issuer therein does hereby grant a security interest unto the
Trustee, and unto its successors in trust, and to its assigns
forever, in all of the Issuer's estate, right, title and interest
in, to and under any and all of the following described rights and
interests (herein called the "Trust Estate"):
GRANTING CLAUSE
The Note, the Agreement and the Mortgage, including the pre-
sent and continuing rights in all general intangibles, accounts
and accounts receivable including the rights (a) to make claim
for, collect, receive and receipt for any of the payments, reve-
nues, insurance proceeds, issues and profits arising from the
Issuer's rights in the Note and the Agreement and any security
therefor granted to the Issuer, including the Mortgage and any
additional collateral, and (b) to bring actions and proceedings
under the Note, the Mortgage and the Agreement all as more parti-
cularly hereinafter provided;
10
85-405
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TO HAVE AND HOLD all and singular the Trust Estate, whether
now owned or hereafter acquired, unto the Trustee and its respec-
tive successors in said trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trust herein set
forth for the equal and proportionate benefit, security and pro-
tection of all present and future Holders and owners of Outstand-
ing Bonds, from time to time, issued under and secured by this
Indenture without privilege, priority or distinction as to the
lien or otherwise of any of the Outstanding Bonds over any of the
others of the Outstanding Bonds;
PROVIDED, HOWEVER, that if the Issuer, its successors or
assigns, shall well and truly pay, or cause to be paid, the prin-
cipal of Outstanding Bonds and the interest and premium, if any,
due or to become due thereon, at the times and in the manner men-
tioned in the Outstanding Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made into the
various funds as required herein or shall provide, as permitted
hereby, for the payment thereof by depositing with the Trustee the
amounts due or to become due to it in accordance with terms and
provisions hereof, then upon such final payment this indenture and
the rights hereby granted shall cease, determine and be void,
otherwise this Indenture to be and remain in full force and
effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and the Promissory Note,
Agreement, Mortgage, Financing Payments and Revenues hereby
pledged are to be dealt with and disposed of under, upon and
subject to the terms, conditions, covenants, agreements, trusts,
uses and purposes as hereinafter expressed, and the Issuer does
hereby agree and covenant, with the Trustee and with the respec-
tive owners, from time to time, of all Outstanding Bonds, or any
part thereof, as follows:
11
85--405
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ARTICLE I
DEFINITIONS
SECTION 101. WORDS AND TERMS. Unless the context otherwise
requires, the capitalized terms used in this indenture shall have
the meanings specified in this Article. Any terms defined herein
by reference to the Lease Agreement shall have the same meaning as
set forth in the Lease Agreement, without amendment or modifica-
tion.
"ACCEPTABLE OPERATOR" shall have the same meaning as set
forth in the Lease Agreement.
"ACT" shall mean Chapter 159, Part II, Florida Statutes
(1983), as amended.
"ADDITIONAL PARITY OBLIGATIONS" shall mean additional bonds
or obligations issued in compliance with the terms, conditions and
limitations contained herein and in the Financing Agreement and
which shall have an equal lien on the Revenues to be derived by
the Issuer from the Financing Agreement, as defined therein, and,
unless the terms hereof and the Agreement indicate otherwise, rank
equally in all respects with the Series 1985 Bonds.
"AGREEMENT" or "FINANCING AGREEMENT" shall mean the Financing
Agreement, dated as of , 1985, to be executed by and
between the Issuer and the Company, together with any supplements
executed pursuant to Section 12.06 of the Agreement.
"AMORTIZATION INSTALLMENTS" with respect to the Term Bonds of
a series, shall mean an amount so designated for mandatory princi-
pal installments (for mandatory call or otherwise) payable on the
Term Bonds issued pursuant to this Indenture.
"ANNUAL BASIC RENTAL" shall have the same meaning as set
forth in the Lease Agreement.
"AUTHORIZED COMPANY REPRESENTATIVE" and "AUTHORIZED ISSUER
REPRESENTATIVE" shall mean the persons at the time designated to
act on behalf of the Company or the Issuer pursuant to Section
2.03 of the Agreement.
"AUTHORIZED OFFICERS" shall mean the City Manager of the
Issuer and the President of the General Partner of the Company,
authorized by law or resolution to sign on behalf of the Issuer
and the Company, respectively, or the Clerk and Secretary thereof,
respectively, authorized to countersign and attest to the signa-
ture of the officers of the Issuer and the Company, respectively,
and to certify documents of the Issuer and the Company, respec-
tively. As used in Section 203 hereof relating to execution of
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the Bonds, "Authorized Officers" shall mean the Mayor and
the
Clerk. All references to Mayor and Clerk shall include the Vice
-
Mayor of the Issuer and any Deputy Clerk of the Issuer.
All
references to President of the General Partner of the Company
and
Secretary of the General Partner of the Company shall include
any
Vice -President of the General Partner of the Company and
any
Assistant Secretary of the General Partner of the Company.
"AVERAGE ANNUAL DEBT SERVICE REQUIREMENT" means as of each
date on which a series of Bonds is issued, the total amount
of
Debt Service Requirement to become due on all Bonds deemed to
be
Outstanding immediately after the issuance of such series of Bonds
divided by the total number of years for which Bonds are deemed
to
be Outstanding, except that with respect to any Bonds for which
Amortization Installments have been established, the amount
of
principal coming due on the final maturity date with respect
to
such Bonds shall be reduced by the aggregate principal amount
of
such Bonds that are to be redeemed from Amortization Installments
to be made in prior Bond Years.
"BAYSIDE SPECIALTY CENTER" shall have the same meaning as
set
forth in the Lease Agreement.
"BOND" or "BONDS" shall mean the Series 1985 Bonds, together
with any Additional Parity Obligations hereafter issued under the
terms, conditions and limitations contained herein.
"BOND COUNSEL" shall mean any nationally recognized firm of
municipal bond attorneys qualified to perform the duties of Bond
Counsel as set forth herein.
"BOND FUND" shall mean the "City of Miami, Florida, Industri-
al Development Revenue Bonds (Sayside Center Limited Partnership
Project) Bond Fund" created pursuant to Section 303 hereof.
"BOND SERVICE PAYMENT DATE" shall mean the date in any Bond
Year Bonds are Outstanding in which any component of Debt Service
Requirement becomes due.
"BOND YEAR" shall mean the period beginning with January 1,
of each year and extending for a period of twelve (12) months
thereafter.
"BUSINESS DAY" shall mean any day other than a
Saturday,
Sunday or a day on which banking institutions located in
the State
of Florida or in the State of New York or in any state
in which
the principal office of the Credit Entity or the Trustee are
required or authorized to remain closed or on which the
New York
Stock Exchange is closed.
"CODE" shall mean the Internal Revenue Code of
1954, as
amended, together with any regulations promulgated thereunder. '
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85--405
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"COMPANY" shall mean Bayside Center Limited partnership, a
Maryland limited partnership authorized to do business in the
State of Florida, and any successors or assigns and any surviving,
resulting or transferee entity.
"CONSTRUCTION AND ACQUISITION FUND" shall mean the "City of
Miami, Florida, Industrial bavelopment Revenue Bonds, Series 1985
(Bayside Center Limited Partnership Project) Construction and
Acquisition Fund" created pursuant to Section 305 hereof.
"CONSULTANT" shall mean a consulting architect or engineer
recommended by the Company and acceptable to the Issuer and
approved by the Trustee or the authorized representative thereof
designated to the Trustee by certificate of the Company.
"CONSUMER PRICE INDEX" shall mean that price index computed
and issued monthly by the Bureau of Labor Statistics of the U.S.
Department of Labor for all Urban Consumers (U.S. Average).
"DEBT SERVICE REQUIREMENT" shall mean for a given Bond Year
the remainder after subtracting any accrued and funded interest
for that year that has been deposited into the Bond Fund, from the
sum o f :
(1) The amount required to pay the interest coming due on
Bonds during that Bond Year,
(2) The amount required to pay the principal of Serial Bonds
maturing during that Bond Year, and
(3) the Amortization Installment for all Series of Term
Bonds for that Bond Year with respect to Adjustable Rate obliga-
tions, except as provided below, the interest rate used to calcu-
late Debt Service Requirement shall be assumed to be one hundred
ten percent (110%) of the greater of (a) the daily average inter-
est rate on such Adjustable Rate Obligations during the twelve
months ending with the month preceding the date of calculation or
(b) the most recent effective interest rate on such Adjustable
Rate Obligations prior to the date of calculation. If such
Adjustable Rate Obligations were not outstanding for a full twelve
months ending with the month immediately preceding the date of
calculation, the rate described in clause (b) of the immediately
preceding paragraph shall be used. If Bonds are payable at the
option of the Holder the "put" date or dates shall be disregarded
and the stated maturity dates thereof shall be used for purposes
of this calculation. The rate of interest used to calculate the
Reserve Requirement for Adjustable Rate Obligations shall be
determined upon the issuance of such Adjustable Rate Obligations.
"DEFAULT RATE" shall mean an annual interest rate equal to
the lesser of one hundred twenty-five percent (125%) of the rate
of interest on the Bonds or the maximum rate of interest allowed
by law.
14
85-405
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"DEPARTMENT OF OFF-STREET PARKING" or "DOSP" shall mean the
Department of Off -Street Parking of the City of Miami, Florida.
"DEVELOPMENT COSTS" shall have the same meaning as set forth
in the tease Agreement.
"EVENT OF DEFAULT" means those defaults specified in and
defined by Section 1001 hereof.
"FEASIBILITY CONSULTANT" shall mean a firm of nationally
recognized engineers, appraisers or independent certified public
accountants, recommended by the Company, acceptable to the Issuer
and approved by the Trustee who shall perform the duties set forth
in Section 10.02(1) of the Agreement.
"FINANCING PAYMENTS" or "PAYMENTS" means the payments made or
to be made on the Promissory Note for the payment of the
principal, interest and redemption premiums, if any, on the Bonds
pursuant to the terms of the Agreement.
"GUARANTORS" shall mean The Rouse Company, a corporation
organized and existing under the laws of the State of Maryland.
"GUARANTY" shall mean that certain Guaranty Agreement from
the Guarantors to the Trustee dated , 1985, evidenc-
ing the guaranty of payment of the Series 1985 Bonds.
"HOLDER OF THE BONDS", "BONDHOLDERS", "HOLDERS" or any simi-
lar term shall mean any person who shall be the registered owner
of any Outstanding Bond or Bonds.
"INDENTURE" or "TRUST INDENTURE" or "INDENTURE OF TRUST"
shall mean this Indenture of Trust, dated as of 1985,
to be executed by and between the Issuer and the Trustee, together
with any supplements executed pursuant to Article XII hereof.
f`
"ISSUER" shall mean the City of Miami, Florida, a municipal
corporation organized and existing under the laws of the State of
Florida.
"LEASE AGREEMENT" shall mean that certain Lease Agreement
{
between the Company and the Issuer dated as of January 14, 1985,
as amended and supplemented, pursuant to which, among other
things, the land on which the Project is located is leased to the
T .
Company by the Issuer.
-
"MANAGEMENT AGREEMENT" shall mean that certain Parking Garage
r
Management Agreement originally between the Company and DOSP dated
1985, as amended and supplemented.
4-
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"MANAGER" shall mean initially DOSP and any successor or
replacement thereto.
15
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"MAXIMUM DEBT SERVICE REQUIREMENT" shall mean, as of any
particular date of calculation, the greatest amount of aggregate
Debt Service Requirement for the then current or any future Bond
Year.
"MORTGAGE" and "ASSIGNMENT OF MORTGAGE" shall mean, respec-
tively, that Mortgage and Security Agreement dated as of
, 1985 from the Company, as mortgagor to the Issuer,
as mortgagee and the subsequent Assignment of Mortgage and Securi-
ty Agreement to the Trustee for the benefit of the Bondholders.
"NON PURPOSE OBLIGATIONS" shall have the same meaning as set
forth in Section of the regulations of the United States
Treasury Department interpreting the Code, as said regulations may
s be changed from time to time.
4
"OPERATION AND MAINTENANCE EXPENSES" shall mean all Annual
! Basic Rental and all actual maintenance and operating costs of the
Project, incurred, or charges made therefor, in any particular
fiscal year or periodo but only if said charges are made in con-
formity with generally accepted accounting principles, and exclu-
sive of depreciation or reserves therefor, amortization of intan-
gibles or other bookkeeping entries of a similar nature. Opera-
tion and Maintenance Expenses include, without limitation or dup-
lication, generally, salaries, wages, fringe benefits, pension
i contributions, contract services, payments to the Manager under
the Management Agreement, materials and supplies, Public Charges,
rents, office supplies, taxes and all other costs that are charged
or apportioned directly to the operation and maintenance of the
Project in conformity with generally accepted accounting princi-
ples. Operation and Maintenance Expenses do not include costs, or
charges made therefor, for capital additions, replacements, en-
largements, extensions or improvements to or retirements from the
Project, which under generally accepted accounting principles are
properly chargeable to the capital account or the reserve for
depreciation, and do not include losses from the sale, abandon-
ment, reclassification, reevaluation or other disposition of any
properties included in the Project.
"OUTSTANDING" in connection with Bonds (or a series of Bonds)
means, as of the time in question, all Bonds (or all Bonds of such
series) authenticated and delivered under the Resolution, the
Agreement and this Indenture, except:
(A) Bonds theretofore canceled or required to be canceled
pursuant to this Indenture.
(B) Bonds for the payment or redemption of which the neces-
sary amount shall have been or shall concurrently be deposited
with the Trustee or for which provision for the payment of which
has been made in accordance with this Indenture; provided that, if
16
85-405
such Bonds
notice of
satisfactory
are being redeemed prior
redemption shall have
to the Trustee shall have
to maturity, the required
been given or provision
been made therefor; and
(C) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to this Indenture.
"PERMITTED ENCUMBRANCES" shall mean as of any particular time
(i) utility, access and other easements and rights of ways re-
strictions and exceptions which will not materially interfere with
or impair the operation of the Project, (ii) any mechanic's,
laborer's, materialmen's, supplier's or vendor's lien or right to
purchase money security interest in respect thereof if payment is
not yet due and payable under the contract in question, (iii) such
minor defects, irregularities, encumbrances, easements, rights of
way and clouds on title as normally exist with respect to
properties similar in character to the Project and as do not, in
the opinion of counsel satisfactory to the Trustee and the Issuer,
in the aggregate materially impair the property affected thereby
for the purposes for which it will be held and for the lien of the
Indenture; and (iv) the second mortgage permitted pursuant to
Section 6.1 of the Lease Agreement.
"PLANS AND SPECIFICATIONS" when used with reference to the
construction of the Project, means the plans and specifications
prepared for the construction of the Project by the Company, as
approved by the Issuer, pursuant to the Lease Agreement and filed
with the Trustee pursuant to the terms hereof, as the same may be
revised from time to time during the construction period in
accordance with the provisions of the Agreement and the Lease
Agreement, and when used with reference to any modification,
repair, restoration or replacement of the Project means any plans
and specifications prepared by the Company, approved by the
Issuer, and filed with the Trustee prior to the making of any mod-
ification, repair, restoration or replacement of the Project, as
the same may be revised from time to time in accordance with the
provisions of the Agreement and the Lease Agreement.
"PROJECT" shall mean a permanent, multi -level urban public
parking facility containing not less than 11200 parking spaces
together with an adjacent surface parking area, to be developed in
the City of Miami, Florida, including the purchase, improvement,
expansion and renovation thereof on property more fully described
in Exhibit A attached to the Agreement. Unless the context
indicates otherwise, the term "Project" includes any additional
parking facilities financed with Additional Parity Obligations.
"PROMISSORY NOTE" shall mean the promissory note from the
Company to the Issuer dated , 1985, evidencing the loan
described herein, which shall be in substantially the form
attached to the Financing Agreement as Exhibit C.
"PUBLIC CHARGES" shall have the same meaning as set forth in
the Lease Agreement.
17
857405
7`.
"RECORD DATE" shall mean the fifteenth (15th) day of the
calendar month next preceding any Bond Service Payment Date or, if
such date is not a Business Day, the next Business Day preceding
such day.
"RESERVE FUND" shall mean the "City of Miami, Florida
Industrial Development Revenue Bonds, Series 1985 (Bayside Center
Limited Partnership Project) Reserve Fund" created pursuant to
Section 304 hereof.
"RESERVE REQUIREMENT" shall mean an amount equal to the
lesser of Maximum Debt Service Requirement or 125% of Average
Annual Debt Service Requirement. The rate of interest used to
calculate the Reserve Requirement for Adjustable Rate Obligations
shall be determined upon the issuance of such Adjustable Rate
Obligations.
"RESOLUTION" shall mean the Resolution of the Issuer dated
1985, as may be supplemented and amended, authorizing
the Bonds and approving this Indenture, the Agreement, the Guaran-
ty, the Mortgage and the Assignment of Mortgage.
"REVENUE FUND" shall mean the "City of Miami, Florida Indus-
trial Development Revenue Bonds (Bayside Center Limited Partner-
ship Project) Revenue Fund" created pursuant to Section 302 here-
of.
"REVENUES" shall mean all moneys at any time paid to the
Trustee by the Company or the Manager under the Agreement, pursu-
ant to Section 4.03 or any other section or provision thereof,
except the funds required to be deposited to the Construction and
Acquisition Fund and such sums as are authorized by this Indenture
to be retained by the Trustee for its services and expenses in
performing under the Agreement and this Indenture, all in the
manner provided herein.
"SERIAL BONDS" shall mean the Bonds of a series which shall
be stated to mature in annual or semi-annual installments.
"SERIES 1985 BONDS" shall mean the $ City of
Miami, Florida, Industrial Development Revenue Bonds, Series 1985
(Bayside Center Limited Partnership Project) authorized by the
Resolution, the Agreement and this Indenture.
"STATE" shall mean the State of Florida.
"TERM BONDS" shall mean the Bonds of a series, all of which
shall be stated to mature on one date and payable from Amortiza-
tion Installments.
"TRUST ESTATE" means the rights granted to the Trustee under
the paragraph hereinabove appearing immediately beneath the phrase
"Granting Clause".
18
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85-405
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"TRUSTEE" shall mean _ or
any bank with trust powers or any trust company organized and
existing under the laws of the United States or one of the states
having its principal office within the Continental United States
and within or without the State of Florida, at the time serving as
Trustee under this Indenture.
SECTION 102. CORRELATIVE WORDS. Words of the masculine gen-
der shall be deemed and construed to include correlative words of
the feminine and neuter genders. Unless the context shall other-
wise indicate, the words importing the singular number shall
include the plural as well as the singular number and vice versa,
and the word "person" shall include corporations and associations,
including public bodies, as well as natural persons.
19
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85-r405
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ARTICLE II
THE SERIES 1985 BONDS
SECTION 201. AUTHORIZED AMOUNT OF SERIES 1985 BONDS. No
Series 1985 Bonds may be issued under the provisions of this
Indenture except in accordance with this Article. The total prin-
cipal amount of Series 1985 Bonds that may be issued is hereby
expressly limited to not to exceed $ . Additional Parity
Obligations may be issued only as provided in Section 207 hereof
and in Article X of the Agreement.
j SECTION 202. DESCRIPTION OF SERIES 1985 BONDS. The Series
1985 Bonds shall be known as "City of Miami, Florida, Industrial
1 Development Revenue Bonds, Series 1985 (Bayside Center Limited
Partnership Project)," shall be dated as of , 1985, shall
i be numbered from R-1 upward, shall be fully registered as to both
principal and interest, shall be in the denomination of $5,000
each or integral multiples thereof, shall bear interest based on a
360 day year for the actual number of days outstanding at the rate
per annum of percent ( %) semiannually commencing ,
} and on the first day of and there-
after. In the event there shall be a_ Determination of Taxability
the rate of interest payable on such Series 1985 Bonds shall be
ti increased to percent ( %) (provided, however, the rate of
interest shall not exceed the highest rate allowed by law); said
increased rate shall become effective retroactively to the Date of
Taxability and the additional interest payable on account of such
increase in the rate of interest applicable to which interest has
been paid at the original rate shall become due and payable to the
person who was or persons who were the Holders of such Series 1985
Bonds during such prior periods, or portions thereof, as reflected
by the registration books of the Issuer maintained by the Trustee;
if subsequent to the Date of Taxability, the principal of such
Series 1985 Bond shall be paid in whole or in part, whether at
maturity or an earlier redemption such additional interest shall
nonetheless be payable as herein provided with respect to the
unpaid balance thereof from time to time outstanding during the
period with respect to which such additional interest is payable
as above provided. All such additional interest as shall become
payable with respect to monthly periods ending prior to the Deter-
mination of Taxability shall become due and payable on the first
interest payment date which follows the Determination of Taxabili-
ty but in no event longer than sixty (60 ) days. The term "Event
of Taxability" shall mean the occurrence of circumstances result-
ing from any action or inaction on the part of the Company, or a
change in applicable laws or regulations, which circumstances the
r Determination of Taxability shall have found to have occurred,
with the result that the interest payable on the Series 1985 Bonds
becomes includable in the gross income of the Holders of the
Series 1985 Bonds (other than a Holder who is a "substantial user"
20
857405
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or "related party" as such quoted terms are defined in the Code.
The term "Determination of Taxability" shall mean any determina-
tion, decision or decree made in regard to the Code by the Commis-
i sioner or any District Director of the Internal Revenue Service,
or by any court of competent jurisdiction, or an opinion of Bond
Counsel, that the interest payable on the Series 1985 Bonds is or
has become includable in the gross income of the Holders (other
than a Holder who is a substantial user or related person as such
are defined in the Code) if and so long as such determination, de-
cision, decree or opinion is not being appealed or otherwise con-
tested in good faith by the Company. If a Bondholder is notified
that the Internal Revenue Service is conducting an audit or taking
other action concerning the tax exemption of the interest on the
Series 1985 Bonds the Bondholder will disclose such notice to the
a Company, and agrees to reasonably cooperate with Company if Com-
pany contests in good faith any such action by the Internal Reve-
nue Service. The term "Date of Taxability" means the first date
a as of which interest on any of the Series 1985 Bonds is subject to
federal income taxation as a result of an Event of Taxability.
Each Series 1985 Bond shall bear interest from the Bond
Service Payment Date next preceding its date of authentication,
unless (i) such date shall be prior to the first Bond Service
Payment Date, in which case such Series 1985 Bond shall bear
interest from the date of authentication and delivery or (ii) such
date of authentication shall be a Bond Service Payment Date to
which interest on the Series 1985 Bonds has been paid in full or
duly provided for, in which case such Series 1985 Bond shall near
interest from such date of authentication; provided, however, that
if interest on the Series 1985 Bonds shall be in default, Series
1985 Bonds issued in exchange for Series 1985 Bonds surrendered
for transfer or exchange shall bear interest from the last date to
which interest has been paid in full.
The principal of, premium, if any, and interest on the Series
1985 Bonds shall be payable in any coin or currency of the United
States of America which, at the respective dates of payment there-
of, is legal tender for the payment of public and private debts,
and such premium, if any, and interest shall be payable at princi-
pal office of the Trustee. Payment of interest on the Series 1985
Bonds shall be made by check mailed by the Trustee to the Holder
registered as of the Record Date.
SECTION 203. EXECUTION AND AUTHENTICATION OF BONDS. The
i Series 1985 Bonds shall be executed in the name of the Issuer and
countersigned and attested by its Authorized Officers, as provided
by law, by the manual or facsimile signatures of such officers,
and its official seal or a facsimile thereof shall be affixed
thereto or reproduced thereon. In case any officer whose signa-
ture shall appear on any Bonds shall cease to be such officer be-
fore the delivery of such Bonds, such signature or facsimile shall
nevertheless be valid and sufficient for all purposes the same as
if he had remained in office until delivery. Any Bonds may oe
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signed and sealed on behalf of the Issuer by such person who at
the actual time of the execution of such Series 1985 Bonds shall
hold the proper office with the Issuer, and any Series 1985 Bond
so signed and sealed shall be valid and enforceable, notwithstand-
ing that at the date of delivery of such Series 1985 Bonds such
person does not hold such office or is not so authorized.
The Issuer may adopt and use for such purposes the facsi-
mile signatures of any persons who shall have been such officers
at any time on or after the date of the Series 1985 Bonds notwith-
standing that they may have ceased to be such officers at the time
such Series 1985 Bonds shall be actually delivered.
No Series 1985 Bond shall be valid or obligatory for any pur-
pose unless and until such certificate of authentication shall
have been duly executed by the Trustee, and such certificate of
the Trustee upon any Series 1985 Bond shall be conclusive evidence
that such Series 1985 Bond has been duly authenticated and deliv-
ered pursuant to this Indenture. The Trustee's certificate of
authentication on any Series 1985 Bond shall be deemed to have
been duly executed if signed by an authorized officer of the
Trustee, but it shall not be necessary that the same officer sign
the certificate of authentication on all of the Series 1985 Bonds.
The Series 1985 Bonds shall be executed substantially in the form
and manner herein provided and shall be deposited with the Trustee
for authentication, but prior to or simultaneously with the
authentication and delivery of the Bonds by the Trustee there
shall have been filed with the Trustee the following:
(A) A copy, certified by an Authorized Officer of the Issu-
er, of the Resolution, evidencing that the same has been duly
adopted by the Issuer;
(B) A copy, certified by an Authorized Officer of the Issu-
er, of the resolution duly adopted by the Issuer awarding the
Bonds to the purchaser or purchasers thereof, and directing the
authentication and delivery of the Series 1985 Bonds to or upon
the order of the said purchaser or purchasers upon payment of the
purchase price therein set forth;
(C) Executed counterparts of the Agreement, the Mortgage,
the Assignment of Mortgage, the Guaranty and this Indenture;
(D) Original Promissory Note;
(E) Executed counterparts of the Lease Agreement and the
Management Agreement;
(F) An opinion of counsel for the Issuer stating that the
signer is of the opinion that the execution and delivery of the
Agreement, this Indenture and the Assignment of Mortgage have been
duly authorized by the Issuer, that the Agreement, this Indenture
and the Assignment of Mortgage are in the form so authorized and
have been duly executed by the Issuer and that, assuming proper
22
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authorization and execution of the Agreement and the Indenture by
the Issuer, the Trustee and the Company, as applicable, the
Agree-ment, this Indenture and the Assignment of Mortgage are valid and
binding in accordance with their terms (subject as to enforcement
of remedies to applicable bankruptcy, reorganization, insolvency
and discretionary equitable remedies and similar laws and to
moratorium laws from time to time in effect) ;
(14) An opinion of counsel for the Company stating that the
signer is of the opinion that the execution and delivery of the
Agreement, the Note and the Mortgage have been duly authorized by
the Company, that the Agreement, the Note and the Mortgage are in
the form so duly authorized and have been duly executed by the
Company and that, assuming proper authentication and execution of
the Agreement by the Issuer, the Agreement, the Note and the Mort-
gage are valid and binding in accordance with their terms (subject
to enforcement of remedies to applicable bankruptcy, reorganiza-
tion, insolvency and discretionary equitable remedies and similar
laws and to moratorium laws from time to time in effect) ;
(I) An executed copy of the unqualified opinion of Bond Coun-
sel approving, the validity and legality (subject as to enforcement
of remedies as to applicable bankruptcy, insolvency and discretion-
ary equitable remedies and similar laws and to moratorium laws from
time to time in effect) and exemption from federal income taxation,
of all the Series 1985 Bonds then being delivered;
W An opinion of counsel to the Trustee stating that the
signer is of the opinion that the execution and delivery of the
Indenture has been duly authorized by the Trustee, that the Inden-
ture is in the form so authorized and has been duly executed by
the Trustee and assuming due execution by the Issuer is valid and
binding in accordance with its terms ( subject as to enforcement of
remedies to applicable bankruptcy, reorganization, insolvency and
discretionary equitable remedies and similar laws and to morator-
ium laws from time to time in effect);
(K) A written request of the Issuer to the Trustee requesting
the Paying Agent to authenticate and deliver the Series 1985 Bonds
in the aggregate principal amount as stated in said request and
authorization to the purchasers therein identified upon payment to
the Trustee of a sum specified in such request and authorization,
plus accrued interest thereon to the date of delivery; and
(L) Such other documents or opinions as shall be reasonably
required by Bond Counsel, counsel to the Issuer or the Trustee.
When the documents mentioned in clauses (A) to (K), inclusive,
next above, shall have been filed with the Trustee, the Trustee
shall authenticate the Series 1985 Bonds and deliver the same to
the purchaser or purchasers named in the resolution mentioned in
clause (B) above, but only upon payment to the Trustee of the pur-
chase price of the Bonds. The Trustee shall be entitled to rely
upon said resolution as to the amount of such purchase price.
23 85-405
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SECTION 204. FORD OF SERIES 1985 BONDS. The Series 1985
Bonds and the certificate of authentication by the Trustee to be
endorsed on all Series 1985 Bonds issued under this indenture
shall be substantially in the form hereinabove set forth with such
appropriate variations, omissions and insertions as are permitted
or required by this indenture or the resolution of the Issuer
awarding the sale of the Bonds.
SECTION 205. REGISTRATION AND EXCHANGE OF BONDS; PERSONS
TREATED AS OWNERS. The issuer shall cause books for the registrar
tion and for the transfer of the Bonds as provided in this inden-
ture to be kept by the Trustee. At reasonable times and under
reasonable regulations established by the Trustee, such list may
be inspected and copied by the Company, the Issuer or by Holders
(or a designated representative thereof) of 15% or more in aggre-
gate principal amount of Bonds then Outstanding.
Upon surrender for transfer of any Bond at its principal
office, the Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Bond or Bonds of authorized
denominations of the same interest rate and maturity and in an
aggregate principal amount equal to the principal amount of such
Bond or Bonds so surrendered.
All Bonds presented for transfer, exchange, redemption or
payment (if so required by the Issuer or Trustee), shall be accom-
panied by a written instrument or instruments of transfer or
authorization for exchange, in form and with guaranty of signature
satisfactory to the Issuer and Trustee, duly executed by the reg-
istered holder or by his duly authorized attorney. The Trustee
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation to any ex-
change or transfer. Neither the Issuer nor the Trustee shall be
required to make any exchange or registration of Bonds during the
period beginning with the day following the Record Date until the
immediately following Bond Service Payment Date or (b) to transfer
or exchange any Bonds selected, called or being called for redemp-
tion in whole or in part.
New Bonds delivered upon any transfer or exchange shall be
valid limited obligations of the Issuer, evidencing the same debt
as the Bonds surrendered, shall be secured by this Indenture and
shall be entitled to all of the security and benefits hereof to
the same extent as the Bonds surrendered.
The person in whose name any registered Bond is registered
may be deemed the owner thereof by the Issuer and the Trustee, and
any notice to the contrary shall not be binding upon the Issuer or
the Trustee.
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24
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SECTION 206. BONDS MUTILATED, OESTROYED, STOLEN OR LOST. In
case any Bond shall become mutilated, or be destroyed, stolen or
lost, the Issuer may, in its discretion, issue and cause the
Trustee to deliver a new Bond of like tenor as the Bond so muti-
lated, destroyed, stolen or lost, in exchange and substitution
for such mutilated Sond, upon surrender and cancellation of such
mutilated Bond or in lieu of and in substitution for the Bond
destroyed, stolen or lost and upon the Holder's furnishing the
Trustee proof of his ownership thereof and satisfactory indemnity
and complying with such other reasonable regulations and condi-
tions as the Issuer or the Trustee may prescribe and paying such
expenses as the Issuer or the Trustee may incur. All Bonds so
surrendered shall be canceled by the Trustee. If any such Bonds
shall have matured or be about to mature, instead of causing the
Issuer to issue a substitute Bond, the Trustee may pay the same,
upon being indemnified as aforesaid, and if such Bond be lost,
stolen or destroyed, without surrender thereof.
Any such duplicate Bond, if any, issued pursuant to this Sec-
tion shall constitute an original, additional contractual obliga-
tion on the part of the Issuer whether or not the lost, stolen or
destroyed Bonds be at any time found by anyone, and such duplicate
Bonds shall be entitled to equal and proportionate benefits and
rights as to lien on and source and security for payment from the
Revenues, as hereinafter pledged, to the same extent as all other
Bonds issued hereunder.
SECTION 207. ISSUANCE OF OTHER OBLIGATIONS. The Issuer will
not issue any other obligations payable from the Financing Pay-
ments or the Revenues, except under the conditions and in the man-
ner provided in Article X of the Agreement and in Section 208
hereof, nor voluntarily create or cause or permit to be created
any debt, lien, pledge, assignment, encumbrance or other charge
having priority over or being on a parity with the lien of the
Bonds and the interest thereon, upon said Financing Payments or
the Revenues.
SECTION 208. ADDITIONAL PARITY OBLIGATIONS. Notwithstanding
the provision of Section 207 hereof or any provision of this
Indenture to the contrary, the Issuer reserves the right to issue
Additional Parity Obligations upon compliance with the terms and
provisions of the Agreement and this Indenture. No Additional
Parity Obligations, payable on a parity with the Series 1985 Bonds
from the Revenues and the Financing Payments may be issued except
as provided below and in Article X of the Agreement. Before a
series of Additional Parity Obligations are authenticated, there
shall be delivered to the Trustee the following items:
(A) A copy, duly certified by an Authorized Officer, of the
resolutions adopted and approved by the Issuer authorizing the
execution and delivery of the supplemental indenture securing such
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Additional Parity Obligations and awarding such Additional Parity
Obligations to the purchasers thereof and authorizing the issu-
ance, sale and delivery of such Additional Parity Obligations.
(T3) An original executed counterpart of any amendment or
supplement to this Indenture necessary to provide for pledges and
payments sufficient in amount to make all required payments into
the Bond Pund in order to pay when due the Debt Service Require-
ment on all Bonds then to be Outstanding and any payment required
to by made into the other various funds required by this indenture
in any amendment or supplement thereto.
(C) A certificate of the Trustee stating that all require-
ments of Section 10.02(1) of the Agreement have been met.
(0) The written opinion of Bond Counsel expressing the con-
clusion that:
(1) Any indenture supplemental hereto or any resolution
of the Issuer providing for the issuance of the Additional Parity
Obligations has been duly authorized, executed and delivered by
the Issuer and constitutes a valid and legally binding instrument
enforceable in accordance with its terms (except as the enforce-
ment thereof may be limited by discretionary equitable remedies,
bankruptcy, insolvency, moratorium, reorganization or other laws
relating to or affecting generally the enforcement of creditors'
rights), and the Additional Parity Obligations have been validly
authorized and executed, and, when authenticated and delivered
pursuant to the request of the Issuer, will be valid and legally
binding limited obligations of the Issuer, enforceable in accord-
ance with their terms (except as aforesaid) entitled to the ben-
efits and security created by this Indenture; and
(2) The issuance of such series of Additional Parity
Obligations will not adversely affect the exemption from federal
income taxation on the interest paid on any Outstanding Bonds
under the Code.
(E) A certificate of the Trustee and the Authorized Company
Representative stating that, to the best of the signer's knowledge
and belief, a default or Event of Default or a state of facts that
upon the giving of the notice required hereunder would become a
default or an Event of Default does not exist under this Inden-
ture.
(F) A request and authorization to the Trustee on behalf of
the Issuer and signed by Authorized Officers to authenticate and
deliver the Additional Parity Obligations in the aggregate princi-
pal amount as stated in said request and authorization to the
purchasers therein identified upon payment to the Issuer of a sum
specified in such request and authorization, plus accrued interest
thereon to the date of delivery.
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857405
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When the foregoing documents have been duly filed and the
Additional Parity Obligations have been executed, the Trustee
shall authenticate and deliver said Additional Parity Obligations
to or upon the order of the purchasers thereof, but only upon pay-
ment to the Trustee of the specified sum set forth in the request
and authorization referred to in this Section.
All such Additional Parity Obligations will be issued, exe-
cuted and authenticated in the same manner as herein provided for
in this Article, and all moneys received therefrom shall be
applied as provided herein or in the supplemental indenture. Such
Additional Parity Obligations shall be on a parity and rank equal-
ly with the Bonds issued under this Indenture as to lien on and
source and security for payment from the Revenues and the Financ-
ing Payments and in all other respects except as otherwise provid-
ed herein, and all of the provisions of this Indenture, except as
to details inconsistent with the provisions of this indenture,
shall apply to and be for the benefit and security and protection
of the owners of such Additional Parity Obligations as fully and
to the same extent as for the Holders of the Outstanding Bonds
issued hereunder. Additional Parity Obligations may be issued
with or without the ber.�fit of a credit facility covering all or
any portion of the principal and interest thereon. The proceeds
(excluding accrued interest) of all Additional Parity Obligations
issued under the provisions of this Section, other than for the
purpose of refunding Bonds, and the funding of interest shall be
deposited by the Issuer and used solely for the purpose for which
said Additional Parity Obligations were authorized to be issued.
27
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ARTICLE III
CREATION OF FUNDS
SECTION 301, CREATION OF FUNDS. There are hereby created
and established with the Trustee and to be maintained by the
Trustee the following special trust funds:
SECTION 302. REVENUE FUND. The "City of Miami, Florida,
Industrial Development Revenue Bonds (Bayside Center Limited
Partnership Project) Revenue Fund" (hereinafter sometimes called
the "Revenue Fund"), to the credit of which deposits shall be made
as required by Section 502 herein. Within the Revenue Fund there
shall be created an Operation and Maintenance Account.
SECTION 303. BOND FUND. The "City of Miami, Florida
Industrial Development Revenue Bonds (Bayside Center Limited
Partnership Project) Bond Fund" (hereinafter sometimes called the
"Bond Fund"), to the credit of which deposits shall be made as
required by Section 402 and Section 502 herein.
SECTION 304. RESERVE FUND. The "City of Miami, Florida
Industrial Development Revenue Bonds (Bayside Center Limited
partnership Project) Reserve Fund" (herein sometimes called the
"Reserve Fund") to the credit of which deposits shall be made as
required by Section 502 hereof.
SECTION 305. CONSTRUCTION AND ACQUISITION FUND. The "City
of Miami, Florida Industrial Development Revenue Bonds (Bayside
Center Limited Partnership Project) Construction and Acquisition
Fund" (herein sometimes called the "Construction and Acquisition
Fund"), to the credit of which such deposits may be made as are
required by the Agreement and Section 402 herein.
857405
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ARTICLE IV
CUSTODY AND APPLICATION OF PROCEEDS
OF SERIES 1985 BONDS
SECTION 401. CUSTODY OF PROCEEDS. When the documents men-
tioned in Section 203 herein shall have been filed with the
i Trustee and when the Series 1985 Bonds shall have been executed
and authenticated as required herein, the Trustee shall deliver
said Bonds at one time to, or upon the order of, the purchaser
named in the resolution of the Issuer, but only upon receipt of
the proceeds and accrued interest thereon by the Trustee. The
Trustee shall then become custodian of the Bond proceeds and shall
deposit such proceeds in the various trust funds herein estab-
lished with the Trustee.
SECTION 402. APPLICATION AND DISBURSEMENT OF SERIES 1985
BOND PROCEEDS. The proceeds, including accrued interest and
premium, if any, received from the sale of any or all of the
Series 1985 Bonds shall be applied simultaneously with the deli-
very of such Series 1985 Bonds to the purchaser thereof, as
} follows:
(1) The accrued interest, if any, and $ , repre-
senting interest to accrue on the Series 1985 Bonds, during the
period of construction of the Project, shall be deposited by the
Trustee in the Bond Fund and shall be used only for the purpose of
paying interest becoming due on the Series 1985 Bonds.
(2) Unless provided from other funds of the Company on the
date of issuance of the Bonds, or unless provided for through the
purchase of municipal bond insurance issued by a recognized and
reputable municipal bond insurer, a sum sufficient to equal the
Reserve Requirement shall be deposited in the Reserve Fund.
(3) The balance of moneys received from the sale of the
Bonds shall be paid into the Construction and Acquisition Fund
and shall be held and administered by the Trustee for the payment
of issuance expenses and Development Costs incurred and to be
incurred by the Company as provided in Section 2.03 of the Agree-
ment.
(4) After payment of the costs and expenses referred to in
(1), (2) and (3) above, any balance of moneys remaining in the
.tl Construction and Acquisition Fund shall be applied by the Trustee
as provided in the last paragraph of Section 2.03 of the Agree-
ment.
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85-405
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ARTICLE V
APPLICATION OF FINANCING PAYMENTS,
APPLICATION OF DEPOSIT'S TO THE FUNDS
SECTION 501. SOURCE OF PAYMENT OF BONDS. The Bonds herein
authorized and all payments by the Issuer hereunder are not genet-
al obligations of the issuer but are limited obligations payable
solely from payments under the Agreement as defined herein, and
any other amounts derived by the Issuer from the Company and as
authorized by the Act and provided herein. The Bonds are secured
as provided herein.
SECTION 502. DEPOSITS TO AND DISBURSEMENTS FROM THE REVENUE
FUND. Pursuant to the Agreement the Company has covenanted to
deposit all Revenues derived from the use or operation of the Pro-
ject upon receipt thereof on a daily basis in the Revenue Fund.
All moneys on deposit in the Revenue Fund shall be used as provid-
ed in Section 503 and Section 504 hereof.
SECTION 503. PAYMENT OF OPERATION AND MAINTENANCE EXPENSES.
Pursuant to the Agreement the Company has covenanted and agreed
that prior to completion of the Project and so long as Bonds shall
remain Outstanding under the Indenture, to maintain or cause to be
maintained at all times in a depositary bank an amount of money
equal to the estimated Operation and Maintenance Expenses for the
next two calendar months together with amounts sufficient to pay
Operation and Maintenance Expenses for the current month. The
Issuer and the Trustee agree that daily payments of Operation and
Maintenance Expenses shall be paid by the Company from said
account and that the Company shall be entitled to be reimbursed
for said expenditures only as provided in this Section. No later
than the Business Day of each calendar month the Company
shall submit to the Trustee an itemized statement showing all
Operation and Maintenance Expenses incurred during the preceding
calendar month. Upon receipt of such statement and after approval
thereof by the Trustee, the Trustee hereby expressly agrees to
transfer to the Operation and Maintenance Account for payment to
the Company, an amount of money sufficient to reimburse the Com-
pany for Operation and Maintenance Expenses paid during the pre-
ceding month.
SECTION 504. APPLICATION OF MONEYS IN THE REVENUE FUND. The
Revenue Fund and the Bond Fund shall be in the custody of and
under the control of the Trustee but in the name of the Issuer,
and the Issuer hereby authorizes and directs the Trustee to with-
draw sufficient funds from the Revenue Fund, but only after pay-
ment of Operation and Maintenance Expenses, as set forth in Sec-
tion 503 hereof, and deposit to the Bond Fund to pay the principal
of, premium, if any, and interest on all Bonds as the same become
due and payable, whether by maturity or call for redemption, and
to deposit to the Reserve Fund for the purposes set forth herein,
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which authorization and direction the Trustee hereby accepts. No
later than the Business Day of each calendar month the
Trustee shall transfer the following moneys from the Revenue Fund
to the Bond Fund or the Reserve Fund, as applicable.
(A) An amount equal to one -sixth (1/6) of the interest
coming due on the Bonds on the next Bond Service Payment Date,
:
together with the amount of any deficiency in prior deposits for
interest.
(B) On a parity with the deposits set forth in (A) above, an
amount sufficient to pay one -twelfth (1/12) of the principal and
Amortization Installments coming due on the Bonds on the next Bond
Service Payment Date, together with the amount of any deficiency
on prior deposits for principal and Amortization Installments.
(C) After the deposits set forth in (A) and (B) above have
been made, an amount not less than one -sixtieth (1/60) of the
difference between the amounts currently on deposit in the Reserve
Fund and the Reserve Requirement.
(D) After the deposits set forth in (A), (B) and (C) above
have been made, to the payment of all reasonable fees and expenses
of the Trustee which may be charged in connection with the perfor-
mance of its duties and services with respect to such current pay-
ments of principal, Amortization Installments, and/or interest and
as otherwise required or indicated herein and in the Agreement.
Whenever the amount in the Bond Fund, from any source whatso-
ever, is sufficient to pay all amounts due the Trustee and the
Issuer and to redeem all of the Bonds Outstanding hereunder and to
pay interest to accrue thereon prior to such redemption, and the
redemption premium, if any, the Issuer covenants and agrees to
take and cause to be taken the necessary steps (under this Section
.
and Article VII herein) to redeem all of the Bonds on the next
succeeding redemption date for which the required redemption
notice may be given and on which the Bonds are permitted to be re-
deemed under this Indenture.
tl.
In making the deposits set forth in (A) and (B) above, the
Trustee shall deduct therefrom any moneys on deposit in the Bond
Fund and available for such purpose.
After making all payments set forth in (A) through (D) above,
=
all moneys remaining on deposit in the Revenue Fund shall be
promptly transferred by the Trustee to the Company for distribu-
tion pursuant to the Lease Agreement.
a
No prepayment of Bonds shall be made from Revenues except as
as provided in Section 4.04 of the Agreement.
�yr
SECTION 505. USE OF MONEYS IN RESERVE FUND. If at any time
funds for the payment of the principal of, Amortization Install-
=`r'a"
ments, and the interest on the Bonds shall be insufficient to pay
31
857405
0
the total amount due, then the Trustee shall draw on the funds
available therefor in the Reserve Fund, which funds shall be
transferred to the Bond Fund.
SECTION 506. CHARGE. Subject to the terms and conditions
set forth in this Indenture, moneys deposited to the credit of the
various funds herein are hereby pledged to and charged with the
payments mentioned in this Article, and such moneys held in trust
constitute part of the Trust Estate and are subject to a lien and
charge in favor of the Holders of the Bonds issued and Outstanding
under this Indenture and for the further security of such Holders
until paid out or transferred as herein provided.
SECTION 507. REPAYMENT TO THE COMPANY FROM THE FUNDS.
Should this Indenture be discharged under the provisions of Arti-
cle IX herein, any amounts in excess of amounts needed for redemp-
tion of Bonds remaining in the various funds established under the
provisions of this Indenture shall be paid to the Company, subject
to the rights of the Issuer pursuant to the Lease Agreement.
857405
ARTICLE VI
's
GENERAL COVENANTS
SECTION 601, PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants that it will promptly pay the principal of, premium, if
any, and interest on every Bond issued under this Indenture in the
manner provided herein and in said Bonds. The principal, interest
and premium, if any, are payable solely from the Financing Pay-
ments and Revenues derived by the issuer from the payments, as
provided herein and in the Agreement, which Financing Payments and
Revenues are hereby specifically pledged to the payment thereof as
herein specified, and nothing in the Bonds or in this Indenture
should be considered as pledging any other funds or assets of the
Issuer. Neither the Issuer nor the State of Florida or any of its
political subdivisions shall be liable for the payment of the
principal of, premium, if any, or interest on any of the Bonds or
for the performance of any pledge, obligation or agreement under-
taken by the Issuer, except as provided in this Indenture and the
Agreement.
SECTION 602. PERFORMANCE OF COVENANTS; AUTHORITY. The
Issuer covenants that it will faithfully perform at all times any
and all covenants, undertakings, stipulations and provisions con-
tained in this Indenture, and in any Bond executed, authenticated
and delivered hereunder. The Issuer covenants that it is duly
authorized under the Constitution and laws of the State of
Florida, including particularly and without limitation the Act, to
issue the Bonds authorized hereby and to execute this Indenture;
and to assign the Agreement and pledge the Revenues hereby pledged
in the manner and to the extent herein set forth; that all action
on its part for the issuance of the Bonds and the execution and
delivery of this Indenture has been duly and effectively taken,
and that the Bonds in the hands of the owners thereof are and will
be valid and enforceable obligations of the Issuer according to
the import thereof.
SECTION 603. RIGHT TO FINANCE PROJECT; INSTRUMENTS OF
FURTHER ASSURANCE. The Issuer represents that it has the right to
finance the Project. The Issuer covenants that it will defend its
interest in the proceeds from the Agreement and any Financing Pay-
ment or other payment required by the Agreement and the Revenues
for the benefit of the owners of the Bonds against the claims and
demands of all persons whomsoever, subject to indemnification by
the Company as provided in Section 1112'herein and Section 6.07 of
the Agreement. The Issuer covenants that it will take such fur-
r`:
they actions as the Trustee may reasonably require for the better
assuring, pledging, assigning and confirming unto the Trustee all
g g g y and singular the rights assigned hereby to the payment of the
}`
principal of, premium, if any, and interest on the Bonds, subject
to indemnification by the Company as provided in Section 1112
33
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herein and Section 6,01 of the Agreement. The issuer covenants
and agrees that, except as herein and in the Agreement provided,
it will not sell, convey, mortgage, encumber or otherwise dispose
'
of any part of its interest and rights in the Financing Payments,
Revenues or of its rights under the Note and Agreement.
SECTION 604. FILING, RE -FILING OF SUPPLEMENrrS. Promptly
J
after any filing, registration, recording, re -filing, re -register-
ing, or re-recording of this indenture, the Agreement, any supple-
ment to any of said instruments, any financing statement or any
instrument of further assurance which is required pursuant to the
preceding paragraph the issuer will cause the Company to deliver
to the Trustee a certificate to the effect that such filing,
registration, recording, re -filing, re -registration or re-record-
ing has been duly accomplished and setting forth the particulars
f
thereof.
SECTION 605. PAYMENT OF TAXES, CHARGES. The Issuer will
cause the Company to pay all lawful taxes, assessments and charges
at any time levied or assessed against or with respect to the Com-
pany which are required to be maintained or paid under the provi-
sions of the Agreement.
i
SECTION 606. INSURANCE. The Issuer will cause the Company
{
to insure the Project during construction and after completion as
provided in Sections 3.02 and 6.03 of the Agreement.
SECTION 607. RECORDATION OF AGREEMENT, INDENTURE AND SECUR-
ITY INSTRUMENTS. On the date hereof the Issuer shall cause this
Indenture, the Agreement, all supplements hereto, the Mortgage;
the Assignment of Mortgage and other agreements, if any, and other
security instruments as may be required to be recorded and filed
by the Company in such manner as may be required by law in order
to fully preserve and protect the security of the owners of the
Bonds and the rights of the Trustee hereunder.
From time to time, as reasonably requested by the Trustee,
_
the Company shall furnish to the Trustee an opinion of counsel
setting forth what, if any, actions by the Issuer, the Company or
Trustee should be taken to preserve such security. The Issuer or
the Company shall execute or cause to be executed any and all
further instruments as may be required by law or as shall reason-
ably be requested by the Trustee for such protection of the inter-
ests of the Bondholders.
SECTION 608. INSPECTION OF BOOKS. The Issuer covenants and
agrees that all books and documents in its possession relating to
,..
the Project and the Financing Payments and the Revenues shall at
all times be open to inspection by such agents as the Trustee may
n.
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from time to time designate.
34
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SECTION 609. MAINTENANCE OF EXISTENCE. For as long as any
of the principal and interest on any of the Bonds shall be out-
standing and unpaid, the Issuer and the Trustee severally covenant
with the owners of any and all Outstanding Bonds and the Company
that each will maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all of its assets,
and will not consolidate with or merge into another body politic
or corporation, respectively, or permit another body politic or
corporation, as the case may be, to consolidate with or merge into
it, unless there exists at the time a surviving, resulting or
successor body politic or corporation, respectively, which assumes
in writing or by operation of law all of the obligations of the
Issuer or the Trustee, as the case may be, herein and hereunder.
SECTION 610. RIGHTS UNDER AGREEMENT. The Agreement sets
forth the covenants and obligations of the Issuer and the Company,
and reference is hereby made to the Agreement for a detailed
statement of said covenants and obligations. The Issuer agrees
that the Trustee in its name or in the name of the Issuer may
enforce all rights of the Issuer and all obligations of the Com-
pany under and pursuant to the Agreement for and on behalf of the
Bondholders, whether or not the Issuer is in default hereunder.
SECTION 611. PROTECTION OF BONDHOLDERS. The Issuer hereby
covenants and agrees that as long as any of the Bonds issued here-
under are Outstanding it will deposit in the Bond Fund sufficient
sums, but solely from the Financing Payments and the Revenues and
other amounts derived from the Company pursuant to the Financing
Agreement, promptly to meet and pay the principal of, premium, if
any, and interest on the Outstanding Bonds as the same become due
and payable.
SECTION 612. TRUSTEE'S FEES, CHARGES, ADVANCES AND EXPENSES.
Pursuant to the provisions of the Agreement the Company has
covenanted to pay to the Trustee, commencing with the execution
and delivery of this Indenture and continuing until the principal
of, premium, if any, and interest on the Bonds shall have been
fully paid or provided for in accordance with the provisions of
this Indenture: (1) an amount equal to the annual fee of the
Trustee, as Trustee, and its ordinary expenses incurred under this
Indenture, as and when the same become due, (2) the reasonable
fees, charges and expenses of the Trustee, as Bond Registrar and
paying agent, and any paying agents acting as paying agent as
herein provided, as and when the same become due, (3) the reason-
able fees, charges and expenses of the Trustee for any necessary
extraordinary services and expenses of the Trustee under this
Indenture in excess of those services usually rendered and those
expenses usually incurred by a Trustee under instruments similar
to this Indenture including but not limited to reimbursement of
reasonable legal fees incurred (if any), as and when the same
become due, and (4) any advances made by the Trustee, together
with interest, pursuant to Section 6.06 of the Agreement. In no
event shall the Issuer be liable for such fees, charges, advances
35
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and expenses except to the extent that the Company has deposited
funds allocated for the payment of the same pursuant to the
provisions of the Agreement.
SECTION 613, PERFORMANCE OF OBLIGATIONS UNDER AGREEMENT.
The Issuer and the Trustee hereby covenant and agree to perform
all of the duties required by the issuer and the Trustee, respec-
tively# pursuant to the Agreement. To the extent the Agreement
imposes duties or obligations on the Issuer or the Trustee to be
performed in addition to the duties and obligations set forth
herein, such provisions of the Agreement are incorporated as a
part of this Indenture as though fully set forth herein.
36
85-405
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ARTICLE VtI
REDEMPTION OF SERIES 1985 BONDS BEFORE MATURIT$
SECTION 701. (A) REDEMPTION DATES AND PRICES.
(1) Optional Redemption: The Series 1985 Bonds may be
redeemed at the option of the Issuer at the request of the Company
in whole at any time or in part from time to time, on any Bond
Service Payment Date, if less than all, as set forth in the
following table plus accrued interest to the redemption date:
Redemption Dates
Redemption Prices
(Years and Redemption Prices to be Inserted)
(2) Mandatory Redemption. The Series 1985 Bonds matur-
ing on , are subject to mandatory redemption,
pursuant to the Amortization Installments set forth below, on each
mandatory redemption date, at 100% of the principal amount thereof
plus accrued interest to the redemption date. As and for the
mandatory redemption for the retirement of Series 1985 Bonds, the
Amortization Installment required to be deposited into the Bond
Fund shall include amounts sufficient to redeem on each mandatory
redemption date the principal amount of Bonds set opposite the
year as follows:
Mandatory Redemption Date
( 1)
Year
xa
Amount
Year
(Years and Amounts to be Inserted)
37
Amount
Amount
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(3) Extraordinary Oltional Redemption_in Whole: The
Bonds are subject to redemption in whole prior to maturity by the
Issuer, at the request of the Company, on any Bond Service Payment
Date, pursuant to the provisions set forth in Article VII of the
Agreement in the event of damage, destruction or condemnation of
the Project, at par plus accrued interest and the premiums, if
any, computed as provided herein.
(4) Special Optional Redemption in Whole: if interest
on the Bonds is declared taxable for any reason, then the Bonds,
at the option of the Company, may be immediately called at par,
plus accrued interest, calculated as provided in Section 202 of
this indenture; or if not called the Bonds shall bear interest
computed as provided in Section 202 of this Indenture.
Furthermore, in the event the Bayside Specialty Center
is taken by power of eminent domain or shall be conveyed to avoid
such proceedings or is damaged or destroyed by reason of fire or
any other casualty pursuant to Sections 10.06 and 9.11 of the
Lease Agreement and not restored such that, in the good faith
opinion of the Company, it shall be economically unfeasible to use
and enjoy the Project, the Bonds may be redeemed by the Issuer, at
the request of the Company at par plus accrued interest without
premium.
(13) SELECTION OF BONDS TO BE CALLED FOR REDEMPTION. The
Issuer shall direct the Trustee to call Bonds for optional redemp-
tion only after it shall have been notified by the Company of the
proposed redemption and the Company has notified the Trustee of a
corresponding prepayment under this Indenture. The Issuer shall
furnish the Company with a copy of its notification to the Trust-
ee. [Insert applicable method of selection of Bonds to be called
for redemption.]
SECTION 702. [THIS SECTION INTENTIONALLY RESERVED]
38
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85-405
SECTION 703. NOTICE OF REDEMPTION. Notice of the call for
redemption identifying the Bonds to be redeemed shall be given by
mailing a copy of the redemption notice by registered or certified
mail at least thirty (30) days but not more than sixty (60) days
prior to the date fixed for redemption to the Holder of each Bond
to be redeemed at the address shown on the registration books, -
provided,, however, that failure to give such notice by mailing, or
any defect therein, shall not affect the validity of any proceed-
ings for the redemption of the Bonds.
Prior to the date that the redemption notice is mailed as
aforesaid the Issuer shall place in trust with the Trustee suffi-
cient funds to pay such Bonds and accrued interest thereon and the
premium, if any, to the redemption date. Notice of redemption
having been given as aforesaid, the Bonds or portions thereof so
to be redeemed shall, on the date fixed for redemption, become due
and payable at the redemption price herein specified and on and
after such redemption date (unless the Issuer shall default in the
payment of the redemption price), the Bonds or portion thereof
thus called shall not bear interest, shall no longer be protected
by this Indenture and shall not be deemed to be Outstanding.
SECTION 704. CANCELLATION. All Bonds which have been re-
deemed shall be canceled and destroyed by the Trustee and a certi-
ficate of destruction shall be furnished by the Trustee to the
Issuer and the Company.
SECTION 705. NON -PRESENTMENT OF BONDS. In the event any
{ Bonds shall not be presented for payment either at maturity or at
j the date fixed for redemption thereof, if funds sufficient to pay
such Bonds shall have been made available to the Trustee, for the
benefit of the holder or holders thereof, all liability of the
Issuer to the holder thereof for the payment of such Bond shall
`. forthwith cease, be terminated and be completely discharged.
Thereupon it shall be the duty of the Trustee, as paying agent, to
hold such funds for an additional period of seven (7) years, with-
out liability for interest thereon, for the benefit of the holder
of such Bond, who shall thereafter be restricted exclusively to
such funds for any claim of whatever nature on his part under this
Indenture or on, or with respect to, said Bond, and at the termi-
nation of such seven (7) year period the Trustee shall pay such
unclaimed funds to the Company, as successor paying agent, who
shall hold such unclaimed funds, without liability for interest,
for the account of the person, persons, or entities entitled
thereto, subject to such obligations as the Company may have under
the Florida Abandoned Property Act or any law of similar import,
'- and subject to the rights of the Company pursuant to the Lease
Agreement, Earnings on such unclaimed funds shall be deposited in
the Revenue Fund and disbursed as provided herein.
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SECTION 706. BONDS REDEEMED IN PART. Any Bond which is to
be redeemed only in part shall, at the option of the Holder there -
oft either (1) be presented for notation thereon by the Trustee of
the payment as of the redemption date of the redeemed portion of
the principal thereof, or (2) be surrendered (with, if the Issuer
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such Bond,
without service charge, a new Bond or 3onds, of any authorized
denomination or denominations as requested by such Holder, and in
an aggregate principal amount equal to the unredeemed portion of
the principal of the Bonds surrendered.
85-405
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ARTICLE VIII
INVESTMENTS
SECTION 801. INVESTMENT OF FUND MONEYS. Any moneys held as
part of the funds established herein shall, at the telephonic
request of the Authorized Company Representative be invested or
reinvested by the Trustee in accordance with the provisions of
Section 5.04 of the Agreement, based upon written guidelines sub-
mitted by the Company from time to time and approved by the Issu-
er. The request shall include the issuer or obligor, the princi-
pal amount, maturity date and interest rate of such investment.
Any and all income received from investment of the Construction
and Acquisition Fund shall remain in the Construction and Acquisi-
tion Fund for the purposes thereof until completion of the Pro-
ject. Thereafter, investment income earned in all funds created
in this Indenture shall be deposited in the Revenue Fund and, un-
less an Event of Default exists and continues, used by the Trustee
as provided in Section 504 of this Indenture. Notwithstanding the
foregoing, investment income earned on the Reserve Fund shall re-
main on deposit in the Reserve Fund until such time as the Reserve
Requirement is on deposit therein and thereafter shall be trans-
ferred to the Revenue Fund. The Trustee shall sell and reduce to
cash funds a sufficient portion of investments under the provi-
sions of this Section whenever the cash balance in a fund is in-
sufficient for the purposes for which such fund is established.
No investments shall be requested, however, which may violate the
covenant prohibiting excessive arbitrage contained in the Agree-
ment. The Trustee may rely on such requests in making such in-
vestments.
SECTION 802. INVESTMENTS THROUGH TRUSTEE'S BOND OR OTHER
DEPARTMENT. The Trustee unless otherwise requested by the Autho-
rized Company Representative and approved by the Issuer, which
approval shall not be unreasonably withheld, although not obligat-
ed to, may make any and all investments permitted by this Inden-
ture through or from the Trustee's bond or other appropriate de-
partment, or the bond or other appropriate department of any other
company under common control of the Trustee, provided, however,
that any fees, commissions, expenses or other compensation paid to
the Trustee's bond or other department or the bond or any other
department of any other entity under common control of the Trustee
shall not be greater than the fees, commissions, expenses or other
compensation which would have been paid if such services had been
contracted at arm's length in the open market.
41
85-405
ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 901. DISCHARGE OF INDENTURE. If (1) the Issuer
shall either (i) deposit with the Trustee an amount of money equal
to the principal, premium, if any, and interest to become due on
the Bonds, whether at maturity or upon call for redemption, or
' (ii) deposit with the Trustee investments authorized by Section
5.04 of the Agreement in such amount as will, with the income
thereon or the increment thereto be sufficient to pay the princi�
3 pal of, redemption premium, if any, and interest to become due on
! the Sonds, whether at maturity or upon call for redemption, at the
times and in the manner stipulated therein and herein, (2) all
fees and expenses of the Trustee, if any, authorized to be paid
pursuant to this Indenture shall have been paid, and (3) the
Issuer shall keep, perform and observe all and singular the cove-
nants and promises in the Bonds and in this Indenture, then these
presents and the rights hereby granted shall cease, determine and
be void, and thereupon the Trustee shall cancel and discharge this
Indenture and execute and deliver to the Issuer such instruments
in writing as shall be requisite. Bonds for the payment or
redemption of which moneys or investments authorized by Section
5.04 of the Agreement shall have been deposited with the Trustee
(whether upon or prior to the maturity or the redemption date of
such Bonds) shall be deemed to be paid within the meaning of this
Article; provided, however, that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall
have been duly given or arrangements satisfactory to the Trustee
shall have been made for the giving thereof.
If, at any time, the Issuer shall have paid, or shall have
made provision for payment of, the principal, interest and redemp-
tion premiums, if any, with respect to the Outstanding Bonds,
4r;
then, and in that event, the pledge of and lien on the Revenues in
favor of the holders of the Outstanding Bonds shall be no longer
in effect. Nothing herein shall be deemed to require the Issuer
to call any of the Outstanding Bonds for redemption prior to
3' maturity pursuant to any applicable optional redemption provi-
sions, or to impair the discretion of the Issuer in determining
whether to exercise any such option for early redemption.
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ARTICLE X
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
SECTION 1001, EVENTS OF DEFAULT. If any of the following
events shall occur and be continuing it shall constitute an "Event
of Default":
(a) failure to make due and punctual payment of any interest
on any Bond; or
(b) failure to make due and punctual payment of the princi-
pal of or premium, if any, on any Bond, whether at the stated
maturity thereof, upon proceedings for redemption thereof, upon
the maturity thereof by declaration of acceleration or otherwise;
or
(c) the occurrence of any "Event of Default" as defined (i)
in the Agreement, or any other collateral security agreement or
instrument furnished to the Trustee; or
(d) failure of Issuer to perform any of the other covenants,
conditions and agreements which are to be performed by Issuer in
this Indenture or the Bonds and the continuance of such failure or
default for a period of thirty (30) days after notice thereof to
the Issuer and the Company in writing from the Trustee (which
i notice shall specify the respects in which the Trustee contends
that the Issuer has failed to perform any such covenants,
conditions and agreements), unless such default cannot be cured
within thirty (30) days and the Issuer within said thirty (30) day
period shall have commenced and thereafter shall have continued
diligently to prosecute all actions necessary to cure such
default, said failure shall constitute an Event of Default under
this Indenture. The Trustee and the Issuer acknowledge that the
Company shall have the right, but not the obligation, to cure
Issuer's failures or defaults under the Indenture and the Bonds
and, if Company exercises such right to cure, the Company shall be
afforded the same rights and opportunity to cure as provided the
Issuer under this subparagraph (c).
SECTION 1002. DECLARATION OF ACCELERATION. If an Event of
Default shall have occurred and be continuing, the Trustee may,
and upon the written request of the Holders of a majority in
aggregate principal amount of Bonds then outstanding shall, by
notice in writing delivered to the Issuer and the Company, to the
extent permitted by law, declare the principal of all Bonds then
outstanding, plus any premium thereon which shall have become pay-
able prior to such declaration, immediately due and payable. Such
declaration may be rescinded as provided in Section 1010 hereof.
43
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SECTION 1003. REMEDIES; RIGHTS OF BONDHOLDERS.
(a) If an Event of Default shall have occurred and be con-
timing, the Trustee may pursue any available remedy granted by
the Constitution and laws of the State of Florida, as it may deem
best, including any remedy at law or in equity by suit, action,
mandamus or other proceeding to enforce the payment of the princi=
pal of, premium, if any, and interest on the Bonds then Outstand-
ing, and to specifically enforce and compel the performance of the
duties and obligations of the Issuer as herein set forth and the
duties and obligations of the Company under the Agreement, and
including any and all other remedies provided for herein. While
any Bonds are outstanding, the Issuer shall not exercise any of
the remedies specified in Section 9.02 of the Agreement or other-
wise available to the Issuer without the prior written consent of
the Trustee.
(b) If an "Event of Default" (as defined in the Agreement)
under the Agreement or this Indenture shall have occurred and be
continuing, the Trustee may pursue any and all available remedies
provided for or permitted by Section 9.02 of the Agreement and
this Section 1003 of this Indenture, and any and all remedies pro-
vided for in the Agreement with respect to the Company's interest
in the Project may also be exercised with respect to the interest
( if any) of the Issuer therein.
If an Event of Default shall have occurred and be continuing,
if requested so to do by the Holders of thirty-five percent ( 35% )
or more in aggregate principal amount of Bonds then outstanding,
and if indemnified as provided in Section 1105 hereof, the Trustee
shall be obliged to exercise such one or more of the rights,
powers and remedies conferred by this Section as the Trustee shall
deem most expedient in the interest of the Bondholders.
No right, power or remedy hereby conferred upon or reserved
to the Trustee (or to the Bondholders) is intended to be exclusive
of any right, power or remedy, but each and every such right,
power or remedy shall be cumulative and shall be in addition to
any other right, power or remedy given to the Trustee or to the
Bondholders hereunder or under the Agreement or now or hereafter
existing at law or in equity or by statute.
No delay or omission to exercise any right, power or remedy
accruing upon any Event of Default hereunder shall impair any such
right, power or remedy or shall be construed to be a waiver of any
such Event of Default or acquiescence therein; and every such
right, power or remedy may be exercised from time to time as often
as may be deemed expedient.
No waiver of any Event of Default hereunder, whether by the
Trustee or by the Bondholders, shall extend to or shall affect any
subsequent Event of Default hereunder, or shall impair any rights
or remedies consequent thereon.
44
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857405
No judgment hereunder shall be rendered against the Issuer
which in any manner encumbers the general funds or property of the
Issuer or requires the payment of a money Judgment out of any
funds or property of the Issuer other than the funds and property
pledged in the granting Clause contained herein.
SECTION 1004. NOTICE TO BONDHOLDERS, The Trustee shall
promptly give written notice by registered mail of the occurrence
of every Event of Default to the Company and the issuer and to
every Bondholder.
SECTION 1005. NO REMEDY EXCLUSIVE. No remedy herein con-
ferred upon or reserved to the Trustee or to the Issuer, or exist-
ing at law or in equity, shall be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumu-
lative and shall be in addition to every other remedy given under
this indenture or now or hereafter existing at law or in equity or
by statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time as often as may be deemed
expedient. In order to entitle the Trustee or the Issuer to exer-
cise any remedy reserved to it in this Indenture or the Agree-
ment, or existing in law or in equity, it shall not be necessary
to give notice, other than such notice as may be herein expressly
required.
SECTION 1006. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER.
In the event any agreement contained in the Agreement or this
Indenture should be breached by any party thereto or hereto and
thereafter waived by the other party, such waiver shall be limited
to the particular breach so waived and shall not be deemed to
waive any other breach hereunder.
SECTION 1007. [THIS SECTION INTENTIONALLY RESERVED.]
45
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85-405
SECTION 1008. APPLICATION OF :HONEYS. All moneys received by
the Trustee pursuant to any right given or action taken under the
provisions of this Article shall, after payment of the cost and
expenses of collection, be deposited in the Bond Fund and all
s
moneys in the Aond Fund shall be applied:
(1) Unless the principal of all the Bonds shall have become
or shall have been declared due and payable, all such moneys shall
be applied;
First: To the payment of all installments of interest
then due on the Outstanding Bonds, in the order of the maturity of
the installments of such interest and, if the amount available
1
shall not be sufficient to pay in full any particular installment,
!
then to the payment ratably, according to the amounts due on such
s
installment, to the persons entitled thereto, without any discri-
mination or privilege; and
Second: To the payment of the unpaid principal of and
premium, if any, on any of the Bonds which shall have become due
j
(other than Bonds called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture), in
order of their due dates, and if the amount available shall not be
sufficient to pay all Outstanding Bonds due on any particular
'
date, then to the payment ratably, according to the amount of
principal due on such date, without any discrimination or privi-
lege.
(2) If the principal of all the Bonds shall have become due
or shall have been declared due and payable, all such moneys shall
be applied to the payment of the principal and interest then due
and unpaid upon the Bonds, without preference or priority of prin-
cipal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or
?`
of any Bond over any other Bond, ratably, according to the amounts
- (
due, respectively, for principal and interest, without any discri-
mination or privilege.
(3) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall thereafter
have been rescinded and annulled, then, subject to the provisions
of subsection (2) of this Section in the event that the principal
of all the Bonds shall later become due or be declared due and
payable, the moneys shall be applied in accordance with the provi-
sions of subsection (1) of this Section.
Whenever moneys are to be applied pursuant to the provisions
of this Section, such moneys shall be applied at such times, and
'
from time to time, as the Trustee shall determine having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
46
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application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date upon which such application is to be
made and upon which interest on the amounts of principal to be
paid shall cease to accrue. The Trustee shall give such notice as
it may deem appropriate of the deposit with it of any of such
moneys and of the fixing of any such date, and shall not be
required to make payment to the owner of any Bond until such Bond
shall be presented to the Trustee for appropriate endorsement or
for cancellation if fully paid.
i
Whenever all principal, premium, if any, and interest on all
Bonds have been paid under the provisions of this Section and all
expenses and charges of the Trustee have been paid, any balance
t remaining in the Bond Fund shall be paid to the Company as provid-
ed in Section 505 hereof.
SECTION 1009. REMEDIES VESTED IN TRUSTEE. All rights of
action under this Indenture or under any of the Bonds may be
enforced by the Trustee without the possession of any of the Bonds
or the production thereof in any trial or other proceedings relat-
ing thereto and any such suit or proceeding instituted by the
Trustee shall be brought in its name as Trustee without the neces-
sity of joining as plaintiffs or defendants any Holders of the
Bonds, and any recovery of judgment shall be for the equal benefit
of the Holders of the Outstanding Bonds.
SECTION 1010. WAIVERS OF EVENTS OF DEFAULT. The Trustee may
in its discretion waive any Event of Default hereunder and its
consequences and rescind any declaration of maturity of principal
of and interest on the Bonds, and shall do so upon the written
request of the Holders of (1) sixty-six and two-thirds percent
(66-2/3%) in aggregate principal amount of all the Bonds then out-
standing in respect of which default in the payment of principal
and/or premium, if any, and/or interest exists, or (2) a majority
in aggregate principal amount of all Bonds then outstanding in the
case of any other default; provided, however, that there shall not
be waived (a) any Event of Default in the payment of the principal
of and premium, if any, on any Outstanding Bonds when due (whether
at maturity or by mandatory or optional redemption) or (b) any
Event of Default in the payment when due of the interest on any
such Bonds, unless prior to such waiver or rescission, all arrears
of interest, with interest thereon (to the extent permitted by
law) as provided herein and all arrears of principal (due other-
wise than by declaration of acceleration) and premium, if any, as
the case may be, with interest on said overdue amounts as provided
herein, and all fees, expenses and advances of the Trustee and any
other paying agents in connection with such default, shall have
been paid or provided for. In the case of any such waiver or res-
cission, or in case any proceeding taken by the Trustee on account
of any such default shall have been discontinued or abandoned or
determined adversely, then and in every such case the Issuer, the
T
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Company, the Trustee and the Holders of Honds shall be restored to
their former positions, rights and obligations hereunder, respec-
tively, but no such waiver or rescission shall extend to any sub-
sequent or other default, or impair any right consequent thereon.
48
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ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 1 101. ACCEPTANCE OF TRUSTS;
LIABI LtTY. The Trustee
accepts the trusts and assumes the duties
imposed and created by
this Indenture. The Trustee shall, prior
to an event of default
as defined in Section 1001, and after the curing of all such
events of default which may have occurred,
perform such duties and
only such duties as are specifically set forth in this Indenture.
The Trustee shall, during the existence
of any such event of
default (which has not been cured), exercise such of the rights
and powers vested in it by this Indenture
and use the same degree
of care and skill in their exercise as a
prudent man would exer-
cise or use under the circumstances in
the conduct of his own
affairs.
No provisions of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(A) In the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the state-
ments and to the correctness of the opinions expressed therein,
upon any certificate or opinion furnished to the Trustee conform-
ing to the requirements of the Agreement or this Indenture; but in
the case of any such certificate or opinion which by any provision
hereof is specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine
whether or not it conforms to the requirements of this Indenture.
(B) At all times, regardless of whether or not any such
event of default shall exist, the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of all the Bonds at
the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under
this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur individual financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers.
SECTION 1102. RELIANCE UPON DOCUMENTS AND OPINIONS. The
Trustee may rely upon certain documents and opinions as follows:
49
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(A) The Trustee may rely and shall be protected in acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, coupon or other
a paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties, except to the
iextent that any such document is clearly erroneous on its face to
1 the Trustee.
(B) Any request, direction, election, order or demand of the
Company shall be sufficiently evidenced by an instrument signed in
the name of the Company by its Authorized Company Representative
(unless otherwise in this Indenture specifically prescribed), and
any request, direction, election, order or demand of the Issuer
shall be sufficiently evidenced by an instrument signed in the
name of the Issuer by its Authorized Officer (unless otherwise in
this Indenture specifically prescribed), and any resolution of the
i Issuer may be evidenced to the Trustee by a true copy thereof
certified by an appropriate officer of the Issuer.
(C) The opinion of counsel for the Trustee shall be full and
j complete authorization and protection in respect of any action
taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
i
(D) Whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any
a action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by a certificate of an Authorized Officer
of the Issuer or the Company and such certificate shall, in the
absence of bad faith on the part of the Trustee, be full warrant
to the Trustee for any action taken or suffered by it under the
provisions of this Indenture upon the faith thereof.
SECTION 1103. NO DUTY TO TARE CERTAIN ACTIONS. The Trustee
shall not be responsible for any recital or statement herein, or
in the Bonds (except in respect of the authentication certificate
of the Trustee endorsed on such Bonds), or for the recording or
re-recording, filing or refiling of this Indenture or the Agree-
ment or for the affixing or cancellation of any revenue stamps, or
for the payment of or for keeping down of taxes, charges, assess-
ments and liens upon the Trust Estate, or for insuring the Trust
Estate, or collection of any insurance moneys, or for the validity
of the execution of this Indenture except for the validity of the
Trustee's execution thereof, or any agreement supplemental hereto
or instrument of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby, or for the Bonds issued hereunder or intended to be
secured hereby, or for the value or title of any of the Trust
Estate, or otherwise as to the maintenance of the security hereof;
50 85-405
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except that in the event the Trustee enters into possession of a
part or all of the Trust Estate pursuant to any provision of this
Indenture it shall use diligence in preserving such property and
the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenant, condition or agreement
on the part of the Company or the Issuer, except as hereinafter
set forth, but the Trustee may require of the Company or the
Issuer full information and advice as to the performance of the
covenantst conditions and agreements aforesaid and of the condi-
tion of the physical property included in the Trust Estate. The
Trustee shall not be accountable for the use of any Bonds authen-
ticated or delivered hereunder or of any of the proceeds of such
Bonds except as herein provided.
SECTION 1104. GENERAL LIMITATION Op LIABILITY. The permis-
sive right of the Trustee to do things enumerated in this Inden-
ture shall not be construed as a duty of the Trustee and the
Trustee shall be answerable only for its own negligence or willful
default. The Trustee shall not be required to give any bonds or
surety in respect of the execution of the said trusts and powers
or otherwise in respect of the premises. The Trustee shall not be
liable for any debts contracted or for damages to persons or to
personal property injured or damaged, or for salaries or nonful-
fillment of contracts during any period in which it may be in the
possession of or managing the Trust Estate as in this Indenture
provided, if such debts, damages, salaries or contracts have been
incurred, suffered, earned or made in connection with such posses-
sion or management.
SECTION 1105. BRINGING AND DEFENDING LEGAL ACTIONS. The
Trustee shall be under no obligation to institute any suit, or to
take any action or conduct any proceeding under this Indenture, or
to enter any appearance or in any way defend in any suit in which
it may be made defendant, or to take any steps in the execution of
the trusts hereby created or in the enforcement of any rights and
powers hereunder, until it shall be indemnified to its satisfac-
tion against any and all reasonable costs and expenses, outlays
and counsel fees and other reasonable disbursements, and against
all liability; the Trustee may nevertheless after written notice
to the Company and the Issuer, begin suit, or appear in and defend
suit or do anything else in its judgment proper to be done by it
as such Trustee, without indemnity, and in such case the Company
shall reimburse the Trustee for all reasonable costs and expenses,
outlays and counsel fees and other reasonable disbursements prop-
erly incurred in connection therewith, plus interest on disburse-
ments therefor at the Default Rate.
51
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SECTION 1106. NOTICE OF DEFAULTS. The Trustee shall not be
required to take notice or be deemed to have notice of any default
hereunder, except default in the deposits or payments specified
herein, or failure by the Company to file with it any of the docu=
ments required, or to deposit with it evidence of the insurance
policies required hereunder, unless the Trustee shall be specifi-
cally notified in writing of such default by the Company, the
Issuer or by the Holders of at least thirty-five percent (35%) in
aggregate principal amount of Bonds Outstanding hereunder, and all
notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be deli-
vered at the principal office of the Trustee, and in the absence
of such notice so delivered, the Trustee may conclusively assume
that there is no default, except as aforesaid.
SECTION 1107, INTERVENTION ON BEHALF OF BONDHOLDERS. In any
judicial proceeding to which the Company is a party and which, in
the opinion of the Trustee and its counsel, has a substantial
bearing on the interests of owners of Bonds, the Trustee may
intervene on behalf of Bondholders and shall do so if requested in
writing by the owners of at least twenty-five percent (25%) of the
aggregate principal amount of Bonds Outstanding hereunder and
indemnified as provided in Section 1105 hereof. The rights and
obligations of the Trustee under this Section are subject to the
approval of the court having jurisdiction in the premises.
SECTION 1108. RELEASE OF PROPERTY FROM LIEN OF THIS INSTRU-
MENT. The resolutions, opinions, certificates and other instru-
ments provided for in this Indenture may be accepted by the
Trustee as conclusive evidence of the facts and conclusions stated
therein and shall be full protection and authority to the Trustee
for the release of property and the withdrawal of such hereunder;
but the Trustee may, in its unrestricted discretion, and shall, if
requested in writing so to do by the Holders of not less than
twenty-five percent (25%) in aggregate principal amount of Bonds
then Outstanding, cause to be made such independent investigation
as it may see fit, and in that event may decline to release such
property or pay over such cash unless satisfied by such investiga-
tion of the truth and accuracy of the matters so investigated.
The reasonable expenses of such investigation shall be paid by the
Company or, if paid by the Trustee, shall be reimbursed to the
Trustee, plus interest on disbursements therefor at the Default
Rate not to exceed any legal maximum, by the Company.
SECTION 1109. PAYMENT OF GOVERNMENTAL CHARGES. In case the
Company shall fail to pay or cause to be paid any tax, assess-
ments, or governmental or other charge upon any part of the Trust
Estate, to the extent, if any, that the Company may be liable for
52
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same, the Trustee may pay such tax, assessment or governmental
charge without prejudice, however, to any rights of the Trustee or
the Bondholders hereunder arising in consequence of such failure;
and any amount at any time so paid under this Section shall be
repaid to the Trustee by the Company plus interest thereon at
upon demand and, if not repaid by the Company, shall
be given a preference in payment over any of the Bonds, and shall
be paid out of the Trust Estate, but the Trustee shall be under no
obligation to make any such payment unless it shall have been
requested to do so by the Holders of at least twenty-five percent
(25%) of the aggregate principal amount of Bonds then Outstanding
and shall have been provided with adequate funds for the purpose
of such payment. If the Company shall first notify the Trustee of
its intention so to do, the Company may in good faith contest any
liens filed or established against the Trust Estate and in such
event may permit the items so contested to remain undischarged and
unsatisfied during the period of such contest and during the
applicable appeal period or the conduct of an appeal therefrom
unless the Trustee shall notify the Company that, in the opinion
of its counsel, by non-payment of any such items the Trust Estate
or any part thereof will be subject to immediate loss or forfeit-
ure, in which event the Company shall promptly pay and cause to be
satisfied and discharged all such unpaid items. The Trustee will
cooperate fully with the Company in any such contest, provided
that the Company shall undertake to pay all costs and expenses
incurred by the Trustee and to indemnify the Trustee and save it
harmless against any risks, claims or liabilities arisinq out of
such contest.
SECTION 1110. ADVANCEMENT OF MONEYS. All sums at any time
advanced by the Trustee from its own funds shall bear interest at
the Default Rate, from the date of such advance, and the Trustee
shall be entitled to be paid the amount of such interest by the
Company upon demand and, if not paid by the Company, the Trustee
shall have a preference for the payment to it of such interest
over any of the Bonds and shall be paid the amount thereof out of
the Trust Estate.
SECTION 1111. RETENTION OF DOCUMENTS. The Trustee shall
1 retain all documents furnished by the Issuer, the Manager and the
i Company in accordance with this Indenture and the Agreement so
long as any of the Bonds shall be Outstanding.
SECTION 1112. TRUSTEE HAS LIEN; COMPENSATION; INDEM-
NIFICATION; REIMBURSEMENT BY COMPANY. The Trustee shall have a
lien on the Trust Estate subject to the limitations set forth
herein, for reasonable compensation, expenses, advances and
reasonable counsel fees incurred in and about the execution of the
trusts hereby created and the exercise and performance of the
powers and duties of the Trustee hereunder and the cost and
expenses incurred in defending against any liability in the
premises of any character whatsoever (unless such liability is
53
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adjudicated to have resulted from the negligence or willful de-
fault of the Trustee). The Company by the Agreement has coven-
anted and agreed to pay all advances, reasonable counsel fees and
other expenses reasonably made or incurred by the Trustee in and
about the execution of the trust hereby created and to reimburse
the Trustee therefor if such expenses are paid by it. The Company
has agreed in the Agreement to pay the Trustee reasonable compen-
sation for its services in the premises. The compensation of the
Trustee shall not be limited to or by any provision of law in
regard to the compensation of trustees of an express trust. The
Company has also agreed in the Agreement to indemnify the Trustee
for, and to hold the Trustee harmless against, any loss, liability
or expense incurred by the Trustee, other than those incurred as a
result of the Trustee's own negligence, arising out of or in con-
nection with the acceptance and administration of this trust,
including reasonable cost and expenses of defending against claims
of liability in the premises. The obligations of the Company
under the Agreement to reimburse, compensate and indemnify the
Trustee shall be paid even though the Trustee shall resign, be
removed or become incapable of serving as provided hereinafter.
SECTION 1113. TRUSTEE MAY ACQUIRE BONDS. The Trustee and
its officers and directors may acquire and hold, or become the
pledgee of, any of the Bonds and otherwise deal with the Company
in the same manner and to the same extent and with like effect as
though it were not Trustee hereunder.
SECTION 1114. SUCCESSOR TRUSTEE. Any corporation or associ-
ation into which the Trustee may be converted or merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it is
a party, ipso facto, shall be and become successor trustee here-
under and vested with all of the title to the trust estate and all
the trusts, powers, discretions, immunities, privileges, responsi-
bilities, liabilities and all other matters as was its predeces-
sor, without the execution or filing of any instrument or any
further act, deed or conveyance on the part of any of the parties
hereto, anything hereto to the contrary notwithstanding.
SECTION 1115. RESIGNATION OR REMOVAL OF TRUSTEE. The
Trustee may resign and be discharged from the trusts created by
this Indenture by giving to the Company and the Issuer ninety (90)
days' notice in writing of such resignation to the Issuer and the
Company, and by giving to the Bondholders notice of such resigna-
tion by publication at least once a week for two successive weeks
in a financial journal published in the City of New York, New
York. Both the notice to the Issuer, to the Company and to the
Bondholders shall specify a date when such resignation shall take
effect.
54
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Any Trustee hereunder may be removed at any time by an
instrument or instruments in writing, appointing a successor to
the Trustee so removed, filed with the Trustee and executed by the
Holders of a majority in principal amount of the Bonds then Out-
standing and approved by the Company and the Issuer, which appro-
val shall not be unreasonably withheld.
No such resignation or removal shall be effective until a
successor Trustee shall be appointed and serving pursuant to the
provisions hereof.
SECTION 1116, APPOINTMENT OF SUCCESSOR TRUSTEE. In case at
any time the Trustee shall resign or shall be removed or otherwise
shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or if a receiver of the Trustee or of its property
shall be appointed, or if a public officer or officers shall take
charge or control of the Trustee or of its property or affairs, a
vacancy shall forthwith and ipso facto be created in the office of
such Trustee hereunder, and a successor may be appointed by the
Holders of a majority in principal amount of the said Bonds then
Outstanding by such Holders executing an instrument or instruments
in writing, filing same with the Trustee, and notification thereof
being given to the Company and the Issuer. Until such new trustee
shall be appointed by the Bondholders as herein authorized, the
i Issuer shall, subject to the provisions hereof, promptly appoint a
trustee to fill such vacancy. In the event the Issuer fails to
i promptly appoint a successor Trustee, the Company shall, subject
to the provisions hereof, promptly appoint a trustee to fill such
vacancy. After any such appointment by the Issuer, or the Compa-
ny, as applicable, notice thereof shall be published by the Issuer
or the Company, as applicable, at least once within thirty (30)
days of such appointment in a financial journal of general circu-
lation in Dade County, Florida. Any new trustee so appointed by
the Issuer shall immediately and without further act be superseded
by a new trustee appointed by the Bondholders in the manner above
provided whenever such appointment by said Bondholders shall be
made. Any such successor Trustee shall be approved by the Company
and the Issuer, which approval shall not be unreasonably with-
held.
If, in a proper case, no appointment of a successor trustee
shall be made pursuant to the foregoing provisions of this Section
within six (6) months after a vacancy shall have occurred in the
office of Trustee, the Holder of any Bond, the Company, the Issuer
or any retiring trustee may apply to any court of competent juris-
diction to appoint a successor trustee. Said court may thereupon,
after such notice, if any, as such court may deem proper and pre-
scribe, appoint a successor trustee.
SECTION 1117. CONCERNING ANY SUCCESSOR TRUSTEES. Every
successor trustee appointed hereunder shall execute, acknowledge
and deliver to each of its predecessors and to the Issuer and the
55
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Company an instrument in writing accepting such appointment here-
}
under, and thereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all of the estates,
#
properties, rights, powers, trusts, duties and obligations hereby
vested or intended to be vested in the predecessor trustee, but
such predecessor shall, nevertheless, on the written request of
either its successor, the Issuer or the Company, execute and deli-
ver an instrument transferring to such successor all the estate,
properties, rights, powers and trusts of such predecessor here-
under; and every predecessor trustee shall deliver all securities
and moneys held by it as Trustee hereunder to its successor. Any
successor Trustee shall execute appropriate instruments as re-
quested by the Issuer and the Company accepting the trusts, duties
and obligations set forth herein. Should any deed, conveyance or
instrument in writing from the Issuer or the Company be required
by any successor trustee to more fully vest in such successor the
estates, rights, powers and duties hereby vested or intended to be
vested in the predecessor trustee, any and all such deeds, convey-
ances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer and the Company. The
resignation of any Trustee and the instrument or instruments re-
moving any Trustee and appointing a successor hereunder, together
with all deeds, conveyances and other instruments provided for in
this Indenture and the Agreement shall, at the expense of the
i
Company, be forthwith filed or recorded by the successor trustee
'
in each recording office where this Indenture and the Agreement
shall have been filed or recorded.
SECTION 1118. INSTRUMENTS AND DOCUMENTS OF BONDHOLDERS. Any
f request, direction, consent or other instrument in writing signed
t,
or executed by the Bondholders may be in any number of concurrent
instruments of similar tenor and may be signed or executed by such
~
Bondholders in person or by agent duly appointed by an instrument
in writing. Proof of the execution of any such instrument and of
the ownership of the Bonds shall be sufficient for any purpose of
this Indenture and shall be conclusive in favor of the Trustee
with regard to any action taken by it under such instrument if
.'
made in the following manner:
(A) The fact and date of the execution by any person of any
f"
such instrument may be proved by the certificate of any officer in
any jurisdiction who, by the laws thereof, has power to take
acknowledgments of deeds to be recorded within such jurisdiction,
to the effect that the person signing such instrument acknowledged
to him the execution thereof, or by an affidavit of a witness to
such execution.
(B) The fact of the holdinq of Bonds by any Bondholder and
the amount and the numbers of such Bonds and the date of his hold-
ing the same (unless such Bonds be registered) may be proved by
the affidavit of the person claiming to be such Holder if such
�Y t'
56
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affidavit shall be deemed by the Trustee to be satisfactory, or by
a certificate issued by any trust company, bank, banker or any
other depositary wherever situated showing that at the date there-
in mentioned such person had on deposit with such trust company,
bank, banker or other depositary the Bonds described in such cer-
tificate if such certificate shall be deemed by the Trustee to be
satisfactory. The Issuer, the Company and the Trustee may never-
theless, in their separate discretion, require further proof in
cases where they or one of therm shall deem further proof desir-
able.
(C) The ownership of fully registered Bonds shall be proved
by the registration books kept under the provisions of this Inden-
ture*
Nothing contained in this Section shall be construed as lim-
iting the Trustee to the proof above specified, it being intended
that the Trustee may accept any other evidence of the matters
herein stated which it may deem sufficient. Any request or con-
sent of the Holder of any Bond shall bind every future Holder of
the same Bond in respect of anything done by the Trustee in pursu-
ance of such request or consent.
SECTION 1119. DETERMINATION OF BONDS OUTSTANDING. In deter-
mining whether the Holders of the requisite aggregate principal of
Bonds have concurred in any demand, request, direction, consent or
waiver under this Indenture, Bonds which are owned by the Company
or by any other obligor on the Bonds or guarantor thereof or of
the performance of the Agreement, or by any person directly or
indirectly controlling or controlled by or under common control
with the Company or any other obligor on the Bonds or guarantor
thereof or of the performance of the Agreement, shall be disre-
garded and deemed not to be Outstanding for the purpose of any
such determination; provided that for the purpose of determining
whether the Trustee shall be protected in relying on any such
demand, request, direction, consent or waiver only Bonds which the
Trustee knows to be so owned shall be disregarded. Bonds so owned
which have been pledged in good faith may be regarded as Outstand-
ing for the purposes of this Section if the pledgee shall estab-
lish to the satisfaction of the Trustee the pledgee's right to
vote such Bonds and that the pledgee is not a person directly or
indirectly controlling or controlled by or under common control
with the Company or any other obligor on the Bonds or guarantor
thereof or of the performance of the Agreement. In case of a dis-
pute as to such right, any decision by the Trustee taken upon
advice of counsel shall be full protection to the Trustee.
57
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ARTICLE XI I
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL
OF BONDHOLDERS. The Issuer and
sent of or notice to any of the
ture or indentures supplemental
inconsistent with the terms and
more of the following purposes:
INDENTURES NOT REQUIRING CONSENT
the Trustee may, without the con-
Bondholders, enter into an inden-
to this Indenture as shall not be
provisions hereof for any one or
(a) To cure any ambiguity or formal defect or omission in
this Indenture; or
(b) To grant to or confer upon the Trustee for the benefit
of the Bondholders any additional rights, remedies, powers or
authority that may lawfully be granted to or conferred upon the
Bondholders or the Trustee or either of them; or
(c) To subject to the lien and pledge of this Indenture
additional revenues; or
(d) To assure compliance with Federal "arbitrage" provisions
in effect from time to time.
SECTION 1202, SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF
BONDHOLDERS. Exclusive of supplemental indentures covered by
Section 1201 hereof and subject to the terms and provisions con-
tained in this Section, and not otherwise, the Holders of not less
than two-thirds in aggregate principal amount of the Bonds then
Outstanding shall have the right, from time to time, anything con-
tained in this Indenture to the contrary notwithstanding, to con-
sent to and approve the execution by the Issuer and the Trustee of
such other indentures supplemental hereto as shall be deemed
necessary and desirable by the Issuer for the purpose of modify-
ing, altering, amending, adding to or rescinding, in any particu-
lar, any of the terms or provisions contained in this Indenture or
in any supplemental indenture; provided, however, that nothing in
this Section shall permit or be construed as permitting (a) an
extension of the stated maturity or reduction in the principal
amount of, or reduction in the rate or extension of the time of
payment of interest on, or reduction of any premium payable on the
redemption of, any Bonds, without the consent of the Holder of
such Bonds, or (b) a reduction in the aforesaid aggregate princi-
pal amount of Bonds the Holders of which are required to consent
to any such supplemental indenture, without the consent of the
Holders of all the Bonds at the time Outstanding which would be
affected by the action to be taken, or (c) modify the rights,
duties or immunities of the Trustee, without the written consent
of the Trustee.
58
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85-405
If at any time the Issuer shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section, the Trustee shall, upon being satisfactorily indem-
nified with respect to expenses, cause notice of the proposed exe-
a
cution of such supplemental indenture to be mailed to the owners
of the Bonds. Such notice shall briefly set forth the nature of
the proposed supplemental indenture# shall state that copies
thereof are on file at the principal office of the Trustee for
inspection by all Bondholders. If., within sixty days or such
longer period as shall be prescribed by the Issuer following the
mailing of such notice, the Holders of not less than two-thirds in
aggregate principal amount of the Bonds Outstanding at the time of
the execution of any such supplemental indenture (subject, how-
i
ever, to the consent requirements set forth in the proviso to the
i
first sentence of this Section 1202) shall have consented to and
approved the execution thereof as herein provided, no Holder of
any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any
manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Issuer from executing the
same or from taking any action pursuant to the provisions thereof.
Upon the execution of any such supplemental indenture as in this
Section permitted and provided, this Indenture shall be and be
deemed to be modified and amended in accordance therewith. The
Trustee may receive an opinion of counsel (who may be counsel for
the Issuer or the Company or both) that any such supplemental
indenture entered into by the Issuer and the Trustee complied with
the provisions of this Article and the Trustee may rely upon such
opinion.
1
Anything herein to the contrary notwithstanding, a supple-
mental indenture under this Article which affects any rights of
the Company shall not become effective unless and until the Com-
pany shall have consented to the execution and delivery of such
supplemental indenture.
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ARTICLE XI I I
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1 AMENDMENT OF AGREEMENT
a
SECTION 1301. AMENDMENTS, ETC., TO AGREEMENT NOT REQUIRING
CONSENT OF BONDHOLDERS. The Issuer and the Trustee shall, without
the consent of or notice to the bondholders, consent to any amend-
ment, change or modification of the Agreement as may be required
(i) by the provisions of the Agreement and this Indenture, (ii)
for the purpose of curing any ambiguity or formal defect or Omis-
sion, or (iii) in connection with any other change therein which,
in the judgment of the Trustee, is not to the prejudice of the
Trustee or the Holders of the Bonds.
i
SECTION 1302. AMENDMENTS, ETC., TO AGREEMENT REQUIRING CONS
SENT OF BONDHOLDERS. Except for amendments, changes or modifica-
tions as provided in Section 1301 hereof, neither the Issuer nor
the Trustee shall consent to any other amendment, change or modi-
fication of the Agreement without notice to and the written appro-
vac or consent of the Holders of not less than two-thirds in
time outstanding
aggregate principal amount of the Bonds at the t
given and procured as in Section 1202 provided. If at any time
the Issuer and the Company shall request the consent of the
Trustee to any such proposed amendment, change or modification of
an Agreement, the Trustee shall, upon being satisfactorily indem-
nified with respect to expenses, cause notice of such proposed
amendment, change or modification to be mailed and published in
i the same manner as provided by Section 1202 hereof with respect to
i supplemental indentures. Such notice shall briefly and clearly
set forth the nature of such proposed amendment, change or modifi-
cation, shall state that copies of the instrument embodying the
same are on file at the principal office of the Trustee for
inspection by all Bondholders.
ARTICLE XI V
MISCELLANEOUS
SECTION 1401. CONSENTS, ETC., OF BONDHOLDERS. Any consent,
request, direction, approval, objection or other instrument re-
quired by this Indenture to be signed and executed by the Bond-
holders may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Bondholders in person
or by agent appointed in writing. Proof of the execution of any
such consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent and proof
of the ownership of any Bond not registered as to principal, or
registered as to bearer, may be by affidavit and shall be suffi-
cient for any of the aforesaid purposes of this Indenture and
shall be conclusive in favor of the Trustee with regard to any
action taken under such request or other instrument, if the fact
and date of the execution by any person of any such writing is
proved by certificate of any officer in any jurisdiction who by
law has power to take acknowledgments within such jurisdiction
that the person signing such writing acknowledged before him the
execution thereof, or is proved by affidavit of any witness to
such exectoithe Trusteelforoanyeofethesafary oresaidto rpurposesr render opresent
any Bond
SECTION 1402. LIMITATIONS OF RIGHTS. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds, is intended
or shall be construed to give to any person or company other than
the Company and the parties hereto, and the holders of the Bonds,
any legal or equitable right, remedy or claim under or in respect
to this Indenture or any covenants, conditions and provisions
herein contained; this Indenture and all of the covenants, condi-
tions and provisions hereof being intended to be and being for the
sole and exclusive benefit of the parties hereto, the Company and
the Holders of the Bonds as herein provided.
SECTION 1403. SEVF.RABILITY. If any provision of this Inden-
ture shall be held or deemed to be or shall, in fact, be inopera-
tive or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all
cases because it conflicts with any other provision or provisions
hereof or any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unen-
forceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inopera-
tive, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses
or sections in this Indenture contained, shall not affect the
remaining portions of this Indenture, or any part thereof.
.,l
85-405
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SECTION 1404. APPOINTMENT OF AGENTS. Unless the context
indicates otherwise the Issuer may appoint a department or depart-
ments of the Issuer as its exclusive agent to perform the duties
required hereunder to be performed by the Issuer by giving written
notice of such appointment to the Company and the Trustee. Upon
receipt of such written notice the Company shall be entitled to
rely upon representations and actions of such agent.
SECTION 1405. REASONABLENESS OF APPROVALS. Pursuant to this
Indenture the Issuer, the Trustee and the Company are required to
give approval to various matters affecting the rights of each
other and affecting the rights of the Holders of the Bonds.
in
anhe Company
d theerTrustee tshall her oeach ebe reasonable such approval
making the u t
suchdetermii determina-
tion.
tion.
SECTION 1406. NOTICES. It shall be sufficient service of
any notice, request, complaint, demand or other paper on the
parties hereto if the same shall be duly mailed, postage prepaid,
addressed as follows:
(a) If to the Issuer, to
(b) If to the Company, to
(c) If to the Trustee, to
.
A duplicate copy of any notice, certificate or other communi-
cation required to be given hereunder by any of the parties shall
also be simultaneously given to the Issuer. The Issuer, the Com-
pany and the Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certi-
ficates or other communications shall be sent, but such notice of
change of address shall be effective only when received by the
Trustee on behalf of the Bondholders, and by each other party
hereto.
SECTION 1407. TRUSTEE AS BOND REGISTRAR AND AS PAYING AGENT.
The Trustee is hereby designated and agrees to act as bond regis-
trar and as paying agent for and in respect to the Bonds.
SECTION 1408. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLI-
DAYS. In any case where the date of maturity of interest on or
62
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85-405
principal of the Bonds or the date fixed for redemption of any
Bonds shall be on a day not a Business Day, then payment of inter -
eat or principal ( and premi um o if any) and Purchase Price need not
be made on such date but may be made on the next succeeding busi-
ness day not a Saturday, Sunday or a legal holiday or a day upon
which banking institutions are authorized by law to close with the
same force and effect as if made on the date of maturity or the
date fixed for redemption.
SECTION 1409, HEADINGS NOT PART OF INDENTURE. Any headings
preceding the text of the several Articles or Sections hereof, and
any table of contents or marginal notes appended to copies hereof,
shall be solely for convenience of reference and shall not consti-
tute a part of this Indenture, nor shall they affect its meaning,
construction or effect.
i
SECTION 1410. COUNTERPARTS. This Indenture may be simultan-
eously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
i instrument.
SECTION 1411. APPLICABLE LAW. This Indenture shall be gov-
erned exclusively by the applicable laws of the State of Florida.
SECTION 1412. NO LIENS. Except as expressly permitted here-
under or in the Agreement, no lien, encumbrance or other right
shall be permitted with respect to the Trust Estate which is prior
to or on a parity with the lien of this Indenture.
SECTION 1413. INDENTURE EFFECTIVE UPON EXECUTION. This
Indenture shall not become effective and shall be of no force and
effect, unless and until it shall be executed and delivered.
SECTION 1414. ADVANCEMENT OF COSTS. Prior to the filing or
recording of any documents contemplated in connection herewith,
the Trustee may advance funds to pay any necessary closing costs
including without limitation Florida documentary stamp taxes and
intangible taxes, if any, and recording costs. If for any reason
the sale of the Bonds is not completed, the Company agrees to
reimburse the Trustee for all such disbursements.
IN WITNESS WHEREOF, the City Commission of the City of Miami,
Florida has caused these presents to be signed in its name and
behalf by its City Manager, and its corporate seal to be hereunto
affixed and attested by its Clerk, and to evidence its acceptance
of the trusts hereby created, has caused
63
85-405
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principal of the Bonds or the date fixed for redemption of any
Bonds shall be on a day not a Business Day, then payment of inter-=
est or principal (and premium, if any) and Purchase Price need not
be made on such date but may be made on the next succeeding busi-
nest day not a Saturday, Sunday or a legal holiday or a day upon
which banking institutions are authorized by law to close with the
same force and effect as if made on the date of maturity or the
date fixed for redemption.
SECTION 1409. HEADINGS NOT PART OF INDENTURE. Any headings
preceding the text of the several Articles or Sections hereof, and
any table of contents or marginal notes appended to copies hereof,
shall be solely for convenience of reference and shall not consti-
tute a part of this Indenture, nor shall they affect its meaning,
construction or effect.
SECTION 1410. COUNTERPARTS. This Indenture may be simultan-
eously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 1411. APPLICABLE LAW. This Indenture shall be gov-
erned exclusively by the applicable laws of the State of Florida.
SECTION 1412. NO LIENS. Except as expressly permitted here-
under or in the Agreement, no lien, encumbrance or other right
shall be permitted with respect to the Trust Estate which is prior
to or on a parity with the lien of this Indenture.
SECTION 1413. INDENTURE EFFECTIVE UPON EXECUTION. This
Indenture shall not become effective and shall be of no force and
effect, unless and until it shall be executed and delivered.
SECTION 1414. ADVANCEMENT OF COSTS. Prior to the filing or
recording of any documents contemplated in connection herewith,
the Trustee may advance funds to pay any necessary closing costs
including without limitation Florida documentary stamp taxes and
intangible taxes, if any, and recording costs. If for any reason
the sale of the Bonds is not completed, the Company agrees to
reimburse the Trustee for all such disbursements.
IN WITNESS WHEREOF, the City Commission of the City of Miami,
Florida has caused these presents to be signed in its name and
behalf by its City Manager, and its corporate seal to be hereunto
affixed and attested by its Clerk, and to evidence its acceptance
of the trusts hereby created, has caused
63
85-4015
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these presents to be signed in its name and behalf by one of its
Trust officers and its official seal to be hereunto affixed by the
Trustee this day of 1985.
CITY OF MIAVI, FLORIDA
(SEAL)
By
City Manager
ATTEST:
Clerk
as Trustee
(SEAL)
By
Its Trust Officer
64
85-405
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STATE OF FLORIDA
1
COUNTY OF
I
On the
day of _ , 1985, before me personally
appeared
and
with whom I am personally acquainted and who upon their several
oaths acknowledged
themselves to be the City Manager and Clerk
respectively, of the City of Miami; that they as such officers
being authorized so
to do, executed the foregoing instrument for
the purpose therein
contained by signing the name of said Issuer,
that they know the
seal of said Issuer, that the seal affixed to
said instrument is
such official seal, that it was so affixed by
order of the Issuer
and that each of them signed his name thereto
by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
My Commission Expires:
STATE OF FLORIDA
i
COUNTY OF
On the day of
, 1985 before me personally appeared
1
with whom I am personally
1
acquainted and who upon her oath acknowledged herself to be Trust
Officer of
, the within named Trustee; that
she as such officer being
authorized so to do, executed the fore-
going instrument for the
purpose therein contained by signing the
name of said corporation,
that the seal affixed to said instrument
jis
such corporate seal, that it was so affixed by order of said
corporations and that she
signed her name thereto by like order.
IN WITNESS WHEREOF,
I have hereunto set my hand and official
seal.
�r s
Notary Public
My Commission Expires:
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E
s.,
GUARANTY AGREEMENT
BETWEEN
THE ROUSE COMPANY
Guarantor
AND
Trustee
BM&O Draft
3/21/85
$ City of Miami, Florida
Industrial Development Revenue Bonds, Series 1985
(Bayside Center Limited Partnership Project)
Dated as of 1, 1985
85-405
1
i
1
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty") made and entered
into as of the first day of , 1985, by and between THE
ROUSE COMPANY, a corporation duly organized and existing under the
laws of the State of Maryland (hereinafter referred to as the
"Guarantor"), and p_ , Florida,
a national banking association authorized by law to accept and
execute trusts (hereinafter referred to as the "Trustee");
WHEREAS, the City of Miami, Florida, a municipal corporation
organized and existing under the laws of the State of Florida (the
"Issuer") intends to issue its $ City of Miami, Florida,
Industrial Development Revenue Bonds, Series 1985 (Bayside Center
' Limited Partnership Project), under and pursuant to the provisions
of Chapter 159, Part II, Florida Statutes (1983), (the "Act"), in
the aggregate principal amount of $ (the "Bonds"); and
WHEREAS, the Bonds are to be issued under and pursuant to the
Act and secured pursuant to the provisions of an Indenture of
Trust dated as of 1, 1985 (the "Indenture"), between the
Issuer and the Trustee; and
WHEREAS, the Bonds are to be additionally secured pursuant to
the provisions of the Financing Agreement dated as of 10,
1985 (the "Agreement"), by and between the Issuer and Bayside
Center Limited Partnership, a limited partnership organized and
existing under the laws of the State of Maryland (the "Company")
(the Agreement and the Promissory Note of the Company to be execu-
ted pursuant thereto being sometimes hereinafter collectively re-
ferred to as the "Financing Documents"); and
WHEREAS, the proceeds derived from the issuance of the Bonds
are to be applied to (i) the financing of the acquisition and con-
struction of a permanent multi -level urban public parking facility
containing not less than 1,200 parking spaces together with an ad-
�;
jacent surface parking area, and (ii) related expenses with re-
spect to the costs of issuing the Bonds, all for the benefit of
the Company (the "Project"); and
WHEREAS, The Rouse Company of Florida, Inc. a wholly owned
subsidiary of the Guarantor is the owner of all outstanding shares
of the general partner of the Company and is desirous that the
Issuer issue the Bonds and apply the proceeds as aforesaid and is
willing to enter into this Guaranty in order to enhance the secur-
= i ity for and, hence, the marketability of the Bonds and induce the
purchasers to purchase the Bonds and thereby provide the Issuer
.'
with funds to finance the acquisition and construction of the Pro-
,..,. j ect;
NOW, THEREFORE, in consideration of the premises and in order
~T to enhance the security for and the marketability of the Bonds and
as an inducement to the purchasers of the Bonds by all who shall
W,
85-405
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at any time become holders of the Bonds, the Guarantor does hereby
covenant and agree with the Trustee as follows
ARTICLE I
i REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 161, The Guarantor does hereby represent and war-
rant that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the State of Maryland; it is not in
default under its Articles of Incorporation; it has power under
applicable law and its Articles of Incorporation to enter into and
perform all agreements on its part herein contained; it has been
authorized to enter into this Guaranty and hereby acknowledges
receipt of good and valuable consideration therefor; the execution
and delivery by it of this Guaranty and the agreements herein
contained do not contravene or constitute a default under any
agreement, indenture, commitment, provision of its Articles of
Incorporation or By -Laws, or other requirement of law to which it
is a party or by which it is or may be bound; it acknowledges that
this Guaranty shall be valid and binding except as may be limited
by bankruptcy, insolvency, or other laws affecting creditors$
rights generally and discretionary equitable remedies;
(b) all financial statements and other information furnished
to the Trustee or the Issuer by the Guarantor are true, correct
and complete as of the date thereof and since the date thereof
there have been no material adverse changes in the condition,
financial or otherwise, of such Guarantor;
(c) there are no actions, suits or proceedings pendinq or,
to the knowledge of the Guarantor, threatened against or affecting
the Guarantor which, if determined adversely to the Guarantor,
would have a material adverse effect on the financial condition or
properties of such Guarantor;
(d) the Guarantor is not in material default in the per-
formance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any evidence of indebtedness
or in any lease to which such Guarantor is a party, which indi-
vidually or in the aggregate has or may have a material adverse
effect on the financial condition or properties of such Guarantor;
and
(e) the Guarantor is solvent on the date of this Guaranty
Agreement and will not be rendered insolvent by the execution of
this Guaranty Agreement or compliance with the provisions hereof
(for purposes of this representation, solvency and insolvency
shall be as defined for purposes of the federal bankruptcy laws
and the applicable state laws governing fraudulent conveyances).
2 85-405
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This Guaranty is made in furtherance of the purposes for
which the Guarantor and the Company were formed and is necessary
to promote and further the business of and will result in direct
financial benefits to the Guarantor and the Company. The Guaran-
tor representsr warrants and acknowledges that it has received
good, valuable and sufficient consideration for its making of this
Guaranty and subjects its property to this Guaranty and expressly
agrees that recourse may be held against its property for all of
its obligations hereunder and further agrees that any and all of
its properties shall be subject to execution for any judgment
rendered against it on this Guaranty Agreement by any court of
competent jurisdiction.
ARTICLE II
COVENANTS AND AGREEMENTS
SECTION 2.1. The Guarantor does hereby unconditionally and
irrevocably agree with the Trustee for the benefit of the holders
at any time and from time to time of the Bonds that (a) the Guar-
antor shall make or cause to be made available to the Company from
time to time, without limitation as to amount, cash funds in
amounts sufficient to enable the Company to pay in a timely manner
all Operating Deficits, (b) if the Company shall fail to pay any
Operating Deficits pursuant to the Agreement, the Guarantor shall
immediately pay such Operating Deficits in accordance with and to
the extent required by the Agreement, and (c) in the event the
failure to pay any Operating Deficits under the Agreement results
in any penalty or damages payable by the Issuer to the Trustee or
the holders of the Bonds and the Company shall fail to pay such
amounts when and as due, the Guarantor shall immediately pay such
amounts in accordance with the Agreement, and (d) the Guarantor
shall pay, upon demand of the Trustee, all costs and expenses,
legal or otherwise (including attorney's fees), as shall have been
reasonably expended or incurred in the protection or enforcement
of any right or privilege provided under the Agreement or this
Guaranty. As used herein the term Operating Deficits means any
amounts required to make the payments required to be made by the
Company pursuant to Section 4.03 of the Agreement or to pay
"Operation and Maintenance Expenses" which are, at the time the
same become payable under the Agreement, in excess of "Revenues,"
as such quoted terms are defined in the Agreement.
SECTION 2.2. The obligation of the Guarantor under this
Guaranty shall be binding upon the Guarantor and its successors
and assigns and shall remain in full force and effect irrespective
of any obligations of the Issuer or the Company, or of the power
or authority or the lack of power or authority of the Issuer or
the Company to issue or incur said Obligations or to execute and
deliver the Financing Documents, and irrespective of the validity
or enforceability of said Obligations, or of any defense whatso-
ever that the Issuer or the Company may or might have to the
3
85-405
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payment of said Obligations (principal, interest and premium, if
any) or to the performance or observance of any of the conditions
of the Agreement or the Indenture, or the existence or continuance
of the Issuer or the Company as a legal entity; nor shall said
obligations be discharged or impaired by any act, failure or
omission whatsoever on the part of the Trustee, the Issuer or any
holder or holders of said Bonds including but not limited to the
following acts, failures or omissions:
( i ) any failure to present any Obligations for payment or to
demand payment thereof, or to give the Guarantor notice of dis-
honor for non-payment of said Obligations or the interest apper-
taining thereto when and as the same may become due and payable,
or notice of any failure on the part of the Issuer, Trustee or any
Bondholder to do any act or thing or to perform or keep any cove-
nant or agreement by it to be done, kept or performed under the
terms of said Financing Documents; or
(ii) the acceptance of any security or other guaranty, the
advance of additional money to the Company or Issuer, any exten-
sion of the obligation of said Obligations or the interest apper-
taining thereto, either indefinitely or for any period of time, or
any other modification in the Obligations or of the Financing
Documents or of the Company or Issuer thereon, or in connection
therewith, or the sale, release, substitution or exchange of any
security; or
(iii) any action taken under the Financing Documents in the
exercise of any right or power thereby conferred or any failure or
omission on the part of the Trustee or any holder of any Bond to
enforce any right or security given under the Agreement or the
Financing Documents or any waiver of any right or any failure or
omission on the part of the Trustee or any holder of any of the
Obligations to enforce any of their rights; provided that the
specific enumeration of the above -mentioned acts, failures,
waivers or omissions shall not be deemed to exclude any other
acts, failures, waivers or omissions, though not specifically men-
tioned above, it beinq the purpose and intent of this paragraph
that the obligation of the Guarantor shall be absolute and uncon-
ditional to the extent herein specified and shall not be discharg-
ed, impaired or varied except by the payment of the principal of,
interest on, and any premium on any Obligations, and then only to
the extent of such payment. All rights of the holders of the
Bonds may be transferred and assigned at any time or from time to
time and shall be considered to be transferred or assigned at any
time or from time to time upon the transfer of any Bond whether
with or without the consent of or notice to the Guarantor or to
the Issuer.
SECTION 2.3. The obligations, covenants and agreements of
the Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable and shall remain in full force and effect until
4
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the earlier of M such time as the Trustee shall have certified
in writing to the Company and the Issuer that the Net Revenues, as
defined in the Indenture, for any consecutive three twelvemonth
periods occuring after the fourth (4th) year following delivery of
the Bonds shall have been not less than 1.50 times the Debt
Service Requirement, as defined in the Indenture► (ii) such time
as the entire principal of and interest and anv premium on the
Bonds shall have been paid or provided for in accordance with the
Agreement, the Indenture and the Bonds, or (iii) the fifteenth
(15th) anniversary of the Completion Date, as defined in the Lease
Agreement and, until the earlier of such times, all obligations
set forth in the Financing Documents, in the Bonds and in this
Guaranty, shall not be affected, modified or impaired upon the
happening from time to time of any event, including, without limi-
tation, any of the following, whether or not with notice to or the
consent of the Guarantors
(a) the compromise, settlement, release or termination of
Iany or ssuer orll of the Gua Guarantor undler the Financing covenants reements of the
Documentsg
(b) the failure to give notice to the Guarantor of the oc-
currence of a default under the terms and provisions of this
Guaranty or the Financing Documents, except as specifically pro-
vided in this Guaranty;
(c) the assignment, mortgaging, transferring, pledging or
conveying or the purported assignment, mortgaging, transferring,
pledging or conveying of all or any part of the interest of the
Issuer in the Project;
(a) the waiver of the payment, performance or observance by
the Issuer, the Guarantor or the Trustee of any of the obliga-
tions, covenants or agreements of the Issuer or the Guarantor con-
tained in the Financing Documents or this Guaranty;
(e) the extension of the time for payment of any principal
of or interest or premium on any obligation or any part thereof
owing or payable on such Bonds or under the Financing Documents or
under this Guaranty, of the time for performance of any other ob-
liqations, covenants or agreements under or arising out of the
Financing Documents, or this Guaranty or the extension or the re-
newal thereof;
(f) the modification or amendment (whether material or
otherwise) of any obligations, covenants or agreements set forth
in the Financing Documents or this Guaranty;
(g) the taking or the omission of any of the actions re-
ferred to in the Financing Documents or the Indenture or any
actions under this Guaranty;
5
85-405
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i
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(h) except as to exhaustion of remedies of foreclosure as
provided in the Agreement and herein, any failure, omissions delay
or lack on the part of the Issuer or any holder of the Bonds or
the Trustee to enforce, assert or exercise any right, power or
remedy conferred on the Issuer, such holder, or the Trustee in
} this Guaranty or the Financing Documents, or any other act or acts
on the part of the Issuer, the Trustee or any of the holders at
any time or from time to time of the Bonds;
(i) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets,
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganiza-
tion, arrangement, composition with creditors or readjustment of,
or other similar proceedings affecting the Guarantor, the Issuer
or any of their assets or any allegation or contest of the valid-
ity of this Guaranty in any proceedings;
(j) to the extent permitted by law, the release or discharge
of the Guarantor or the Issuer under the Financing Documents from
the performance or observance of any Obligation, covenant or
agreement contained in the Financing Documents or this Guaranty,
by operation of law or otherwise;
(k) the default or failure of the Guarantor to duly perform
any of its obligations set forth in this Guaranty;
(1) the release of any collateral or security pledged to the
Trustee under the Mortgage, Agreement or Indenture;
(m) any invalidity or unenforceability of any of the Financ-
ing Documents;
(n) the existence of any defense based on election of
remedies, including any election to accept a deed in lieu of
foreclosure or the taking of other action which affects the Guar-
'•
antor's subrogation; or
,.
(o) any other condition or contingency whatsoever, whether
similar or dissimilar.
Notwithstanding the foregoing this Guaranty will terminate on
l
the fifteenth (15th) anniversary of the Completion Date as defined
in the Lease Agreement.
SECTION 2.4. The Guarantor hereby consents to all of the
terms and conditions of said Financing Documents and hereby con-
::_ ?
sents to any extension or extensions of time of any payment or
payments or of any other act or thing which the Trustee or any
holder or holders of said Bonds or the Issuer may agree or consent
to, at the request of the Company, either expressly, by acquies-
cence, or otherwise.
6
85-405
4*
SECTION 2.5. No set-off, counterclaim, reductionp or di.mihu-
tion of any obligation, or any defense of any kind or nature which
the Guarantor has or may have against the Issuer or the Trustee
shall affect, modify or impair the Guarantor's obligations here-
under,. Any payment by the Guarantor hereunder shall not impair
any claims or rights that Guarantor may have against Issuer or
Trustee.
SECTION 2.6. In the event of a default in the payment of
principal of or premium, if any, on any Bond when and as the same
shall become due, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of
a default in the payment of any interest on any Bond when and as
the same shall become due, or default in the performance of any
other Obligation, the Trustee may, and if requested so to do by
the holders of not less than a majority in aggregate principal
amount of the Bonds then outstanding, and upon indemnification as
hereinafter provided, shall be obligated to proceed to enforce the
obligations of the Guarantor hereunder. Before taking any action
hereunder, the Trustee may require that satisfactory indemnity be
furnished by the holders requesting such action for the reimburse-
ment of all expenses and to protect against all liability, except
liability which is adjudicated to have resulted from its negli-
gence or willful default by reason of any action so taken.
SECTION 2.7. The Guarantor hereby expressly agrees to pro-
vide to the Trustee all financial data required by Section 8.08 of
the Agreement.
SECTION 2.8. The Guarantor hereby expressly waives notice in
writing, or otherwise, from the Trustee or the holders at any time
or from time to time of any of the Bonds of their acceptance and
reliance on this Guaranty. The Guarantor agrees to pay all costs,
reasonable expenses and fees, including all reasonable attorneys'
fees, which may be incurred by the Trustee or holders of the Bonds
in enforcing or attempting to enforce this Guaranty following any
default on the part of the Guarantor hereunder, whether the same
shall be enforced by suit or otherwise and whether at trial or an
appeal.
SECTION 2.9. This Guaranty is entered into by the Guarantor
for the benefit of the holders of the Bonds and the Trustee and
any successor trustee or successor trustees and their respective
successors and assigns under the Indenture, all of whom shall be
entitled to enforce performance and observance of this Guaranty
and of the guarantees and other provisions herein contained to the
same extent as if they were parties signatory hereto.
SECTION 2.10. The terms of this Guaranty may be enforced as
to any one or more breaches either separately or cumulatively.
7
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85-405
4?
i ARTICLE III
i
NOTICE AND _SERVICE OF PROCESS,
PLEADINGS AND OTHER PAPERS
Pt
SECTION 3.1. The Guarantor covenants that it is a proprie"
tary corporation duly organized and existing and in good standing
under the laws of the State of Maryland. The Guarantor consents
to suit in the state and federal courts of the State of Florida on
or with respect to this Guaranty. Furthermore, the Guarantor
waives any objection to the venue of any action filed by the
Trustee against the Guarantor and waives any claim of forum non
conveniens or for transfer of any such action to any other court.
SECTION 3.2. The Trustee shall provide immediate written
notice to the Guarantor of the occurrence of a default under the
terms of this Guaranty or the Financing Documents; provided, how-
ever, failure of the Guarantor to receive such notice -sent by the
Trustee, shall not affect, modify or impair the obligations, cove-
nants and agreements of the Guarantor hereunder.
SECTION 3.3. Any notice, process, pleadings or other papers
served upon any of the foregoing agents shall, at the same time,
be sent by registered mail to Guarantor at the following address:
The Rouse Company, 10275 Little Patuxent Parkway, Columbia,
Maryland 21044 Attention: General Counsel or other such address as
may be furnished by the Guarantor to the Trustee in writing.
SECTION 3.4. The Guarantor agrees that during the term of
this Agreement it will maintain its corporate existence, will not,
without the written consent of the Trustee, dissolve or merge
into, consolidate with or transfer all or a substantial portion of
its assets (except sales in the ordinary course of business) to
any other entity unless such merger, consolidation or sale shall
not impair the rights of the Trustee or the Issuer hereunder.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. No amendment, change, modification, alteration
or termination of the Agreement or the Indenture shall be made
which would in any way materially increase the Guarantor's obliga-
tions under this Guaranty without obtaining the prior written con-
sent of the Guarantor; provided, however, that failure to obtain
such consent shall not affect the Guarantor's obligations here-
under except to the extent of any increase in such obligations.
SECTION 4.2. The obligations of the Guarantor hereunder
shall arise absolutely, unconditionally and irrevocably when the
Bonds shall have been issued, sold and delivered by the Issuer.
8
85-405
r
�Y
SECTION 4.3. No remedy herein conferred upon or reserved to
the Trustee hereunder is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given
under this Guaranty or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right
or power accruing upon any default, omission or failure of per
formance hereunder shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed
expedient. The Guarantor hereby waives the benefit and advantage
of any stay, extension or moratorium, or any rights of redemption
or possession pursuant to any law, court decree or otherwise which
might hinder, delay or impede the exercise of the rights of the
Trustee. In order to entitle the Trustee to exercise any remedy
reserved to it in this Guaranty, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required. In the event any provision contained in this Guaranty
should be breached by any party and thereafter f ul ly waived by the
other party so empowered to act, such waiver shall be limited to
the particular breach hereunder. No waiver, amendment, release or
modification of this Guaranty shall be established by conduct,
custom or course of dealing, but solely by an instrument in writ-
ing duly executed by the parties thereunto. Nothing herein
contained shall be deemed to exclude any action or proceedings
taken by any holder of any Bonds against the Guarantor, in the
event of nonpayment of principal, interest or premium as afore-
said, but any judgment or recovery so had by any holder of any
Bonds shall be deemed to thereby reduce the amount of any recovery
hereunder to which the Trustee may be entitled, and such holder
shall thereupon, to the extent of such recovery, be excluded from
participating in any amount so recovered by the Trustee.
SECTION 4.4. This Guaranty, which includes incorporation by
reference of the terms of the Agreement, the Indenture and other
Financing Documents, constitutes the entire agreement and super-
sedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof
and may be executed simultaneously in several counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
SECTION 4.5. The invalidity or unenforceability of any one
or more phrases, sentences, clauses or sections in this Guaranty
contained, shall not affect the validity or enforceability of the
remaining portions of this Guaranty, or any part thereof. The
provisions of this Guaranty shall be governed by the applicable
laws of the State of Florida.
9
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7 6�1
„ir S iY _ I HW
SECTION 4.6. Except as hereafter provided, the Trustee shall
not consent to any amendment or modification of this Guaranty or
waive any of the provisions hereof without the prior written
approval or consent of the holders of not less than seventy
percent (70%) in aggregate principal amount of the Bonds at the
1 time outstanding together with the approval or consent of the
Issuer, which approval or consent shall not be unreasonably with-
held. The Trustee shall, without the consent of or notice to the
Bondholders, consent to any amendment, change or modification of
this Guaranty as may be required for the purpose of curing any
ambiguity or formal defect or omission or in connection with any
other change herein which, in the judgment of the Trustee, is not
j to the prejudice of the Trustee.
SECTION 4.7. This Guaranty shall be binding upon the under-
; signed Guarantor and its successors and assigns and shall inure to
the benefit of the Trustee and the holders of the Bonds so long as
any of the Bonds remain outstanding and unpaid during the term
hereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed in its name and on its behalf all as of the date first
above written.
THE ROUSE COMPANY
(SEAL)
By.
Its:
ATTEST:
k
Accepted this day of
1985
as
Trustee
(SEAL)
By•
Its:
ATTEST:
SECTION 4.6. Except as hereafter providedo the Trustee shall
not consent to any amendment or modification of. this Guaranty or
9 waive any of the provisions hereof without the prior written
j approval or consent of the holders of not less than seventy
! percent (70%) in aggregate principal amount of the Bonds at the
time outstanding together with the approval or consent of the
Issuer, which approval or consent shall not be unreasonably with-
i held. The Trustee shall, without the consent of or notice to the
Bondholders, consent to any amendment, change or modification of
this Guaranty as may be required for the purpose of curing any
ambiguity or formal defect or omission or in connection with any
other change herein whiche in the judgment of the Trustee, is not
to the prejudice of the Trustee.
SECTION 4.7. This Guaranty shall be binding upon the under-
signed Guarantor and its successors and assigns and shall inure to
the benefit of the Trustee and the holders of the Bonds so long as
any of the Bonds remain outstanding and unpaid during the term
hereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed in its name and on its behalf all as of the date first
above written.
THE ROUSE COMPANY
(SEAL)
By:
Its:
ATTEST:
1
a
Accepted this day of
1985
as
Trustee
(SEAL)
ATTEST:
10
i
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3
'r
By:
Its:
8Y_405
7
THE CITY OF MIAMI
MORTGAGE
(Leasehold)
t Dated: +
1985
j Location: Bayfront Park, Miami, Florida
RECORD AND RETURN TO:
Office of the City Attorney
City of Miami
169 E. Flagler Street
.d
Miami, Florida 33131
{
Attention: G. Miriam Maer, Esq.
Assistant City Attorney
THIS INSTRUMENT PREPARED BY:
John E. Pearson
SAGE GRAY TODD & SIMS
Avenue, Suite 900
777 Brickell
Miami, Florida 33131
85-405
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4
MORTGAGE
(Leasehold)
THIS MORTGAGE made the day of - _ _ f
1985 between
BAYSIDE CENTER LIMITED PARTNERSHIP, a limited partnership organized
and existing under the laws of the State of Maryland and qualified to
do business in the State of Florida (hereinafter referred to as
"Mortgagor"), and THE CITY OF MIAMI, a municipal corporation
organized and existing under the laws of the State of Florida
(hereinafter referred to as "Mortgagee"),
W I T N E S S E T H:
WHEREAS pursuant to and in accordance with the provisions of Chapter
1599 Parts II, Florida Statutes (1983)9 the Mortgagee did, on
1985, adopt Resolution No. __ (herein referred to as the 'Resolut on )
and, in and by said Resolution, did provide for the issuance and sale of up to
$1895009000.00 of City of Miami, Florida Industrial Development Revenue Bonds,
Series 1985 Wayside Center Limited Partnership Project) (herein referred to �
as the Bonds ), for the purpose of financing the construction of a permanent,
multi -level urban parking facility containing not less than 19200 parking
spaces together with an(hereinadjacent
referredsurface
toaas hearea
"Project) defor velothe use ped in tof
he
City of Miami, Florida
the Mortgagor, and
WHEREAS, in order to secure the payment of said Bonds and interest
and premium, if any, thereon, as and when they severally become due and
payable and all incidental expenses incurredAgreement dated i not herewith, the
parties hereto did enter into a Financing
1965 (herein referred to as the "Agreement"), and executed a Promissory Note
(herein referred to as the "Note% providing for the financing of the Project
by the Mortgagee for the Mortgagor in consideration of the Mortgagor's making
payments to the Mortgagee of all sums of money necessary to pay the principal,
interest and premium, if any, of said Bonds as and when the same become due
and payable, together with all fees, costs and expenses of the Mortgagee in
connection therewith and for the maintenance of the Project, insurance thereon
and other items b cost and expense the Act and the all as set Resolution, the Agreementrth in the amend Noted all
being
as contemplated y
incorporated herein by reference, and
WHEREAS, pursuant to a Lease Agreement (Parking Garage) dated as of
January 149 1985 (hereinafter referred to as the "Ground Lease'% the
Mortgagee has leased to the Mortgagor certain lands of the Mortgagee more
fully described in Exhibit annexed' Premises") hereto to and
enablemade
the Mortgagor eto
(hereinafter referred toas the
construct and operate or cause to be operated the Project; and
WHEREAS, Section 6.1 of the Ground Lease provides that the Mortgage
shall have the
encumber the
a leasehold mortgage;sehold and estate created pursuant to. the
Ground Lease y 9
85--405
WHEREAS, in accordance with provisions of the Act, the Resolution and
the Agreement, the Mortgagee did issue and sell as security for the payment of
the Note, a copy of which is attached hereto as Exhibit "B", the Bonds and
cause the proceeds of the sale of the Bonds to be deposited with
(the "Trustee"), as Trustee under that
Indenture of Trust dated , 1985, between the Mortgagee
and Trustee (the "indenture , or a construe ion of the Project, and
WHEREAS, it was provided in and by the Agreement that the Mortgagor,
in order to further secure the payment of the principal, interest and premium,
if any, upon the Bonds as and when the same shall become due and payable,
together with the fees and expenses of the Trustee in connection therewith,
would mortgage its leasehold estate in the Project to the Mortgagee to secure
the Note and its obligations under the Agreement and as additional security
for the Bonds, and that the Mortgagee would assign the Note, Mortgage and
Agreement to the Trustee as security for the Bonds for the protection of the
holders of the Bonds, subject only to the rights of the Mortgagor to the
Project in accordance with the terms of the Resolution and the Agreement, and
WHEREAS, it is the desire of the parties promptly to vest in the
Mortgagee a first mortgage lien upon and security interest in the Mortgagor's
leasenold estate in the Project and the Ground Lease in accordance with the
Resolution and the Agreement and as authorized by the Act;
NUW, THEREFORE, to secure the payment of an indebtedness in the
principal sum of Eighteen Million Five Hundred Thousand and No/100 Dollars
318,500,000.0U), lawful money of the United States of America, to be paid
with interest (said indebtedness, interest and all other sums which may or
shall become due hereunder being hereinafter collectively referred to as the
"Debt") according to the Note and the Agreement, Mortgagor has mortgaged,
given, granted, bargained, sold, aliened, enfeoffed, conveyed, confirmed and
assigned, and by these presents does mortgage, give, grant, bargain, sell,
alien, enfeoff, convey, confirm and assign unto Mortgagee all right, title and
interest of Mortgagor now owned, or hereafter acquired, in and to the
following property, rights and interests (such property, rights and interests
being hereinafter collectively called the "Mortgaged Property"):
(a) the Premises;
(b) the leasehold estate created pursuant to the Ground Lease and
all rights of Mortgagor therein set forth;
(c) all modifications, extensions and renewals of the Ground Lease
and all credits, deposits, options, privileges and rights of Mortgagor, as
tenant under the Ground Lease;
(d) all the estate, right, title, claim or demand of any nature
whatsoever of Mortgagor, either in law or in equity, in possession or
expectancy, in and to the Mortgaged Property or any part thereof;
(e) all buildings and improvements now or hereafter located on the
Premises (hereinafter referred to as the "Improvements");
- 2 - 85-405
(f) all rights in and to the Retail Genter (hereinafter defined) of
Mortgagor solely as granted to Mortgagor pursuant to the Ground Lease and all
easements, rights -of -way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water rights and powers, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments,
and appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Mortgaged Property and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises to the center line thereof;
(g) all machinery, apparatus, equipment, fittings, fixtures and
other property of every kind and nature whatsoever owned by Mortgagor, or in
which Mortgagor has or shall have an interest, now or hereafter located upon
the Mortgaged Property, or appurtenances thereto, and usable in connection
with the present or future operation and occupancy of the Mortgaged Property
and all building equipment, materials and supplies of any nature whatsoever
owned by Mortgagor, or in which Mortgagor has or shall have an interest, now
or hereafter located upon the Mortgaged Property (hereinafter collectively
referred to as the "Equipment"), and the right, title and interest of
Mortgagor in and to any of the Equipment which may be subject to any security
agreements (as defined in the Uniform Commercial Code of the State in which
the Premises are located), superior in lien to the lien of this Mortgage;
(h) all awards or payments, including interest thereon, and the
right to receive the same, which may be made with respect to the Mortgaged
Property, whether from the exercise of the right of eminent domain (including
any transfer made in lieu of the exercise of said right), or for any other
injury to or decrease in the value of the Mortgaged Property;
(i) all leases, subleases and other agreements (other than the
Ground Lease) affecting the use or occupancy of the Mortgaged Property now or
hereafter entered into (hereinafter referred to as the Leases) and the right
to receive and apply the rents, issues and profits of the Mortgaged Property
(hereinafter referred to as the "Rents") to the payment of the Debt;
[=
(j) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property (hereinafter referred to as the
"Policies"), including, without limitation, the right to receive and apply the
proceeds of any insurance, judgments, or settlements made in lieu thereof, for
damage to the Mortgaged Property;
s
(k) the right, in the name and on behalf of Mortgagor, to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to commence any action or proceeding to protect the interest of
Mortgagee in the Mortgaged Property.
This Mortgage does not create any lien in favor of Mortgagee with
respect to the real property leased to Mortgagor by Mortgagee as set forth in
that certain Lease Agreement dated January 14, 1985 (hereinafter referred to
as the "Retail Lease") pursuant to which Mortgagee demised to Mortgagor a
certain parcel of real property located adjacent to the Premises and upon
which Mortgagor intends to construct a retail center nor does this Mortgage
convey or affect any rights which Mortgagor may have in the Project as tenant
-3 -
8s-405
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•- � •'L — .a `?'O'h ' v.�._...�_.'.%�t..X i1i1,.'+LF3•n i?•
under the Retail Lease which are set forth in the Retail Lease or any right
set forth in the Ground Lease accruing to the tenant under the Retail Lease.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the
successors and assigns of Mortgagee, forever.
PROVIDED, ALWAYS, and these presents are upon this express condition,
if Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in
the manner provided in the Agreement and shall well and truly abide by and
comply with each and every covenant and condition set forth herein and in the
Agreement and the Note, then these presents and the estate hereby granted
shall cease, determine and be void.
AND Mortgagor covenants with and represents and warrants to Mortgagee
as follows:
1. Payment of Debt. Mortgagor will pay the Debt at the time and in
the manner provided for its payment in the Note, the Agreement and in this
Mortgage including, but not limited to, all suns required thereby to be used
by the Trustee to pay the principal, interest and premium, if any, of the
Bonds as the same shall become due and payable and all fees, charges and
expenses of the Mortgagee and the Trustee in connection therewith pursuant to
the Agreement.
2. Warranty of Title. Mortgagor warrants leasehold title to the
Premises, and the Ground Lease subject to the permitted encumbrances (herein-
after referred to as the "Permitted Encumbrances") as set forth on Exhibit C
attached hereto and made a part hereof and Mortgagor warrants fee title to the
Improvements and the Equipment subject to the Permitted Encumbrances. In
addition, Mortgagor represents and warrants that (i) the Ground Lease is in
full force and effect and has not been modified or amended in any manner what-
soever, (ii) there are no defaults by Mortgagor under the Ground Lease and no
event has occurred, which but for the passage of time, or notice, or both,
would constitute a default under the Ground Lease, (iii) all rents, additional
rents and other sums due and payable under the Ground Lease have been paid in
full, and (iv) neither Mortgagor nor the landlord under the Ground Lease has
commenced any action or given or received any notice for the purpose of
terminating the Ground Lease.
3. Insurance. Mortgagor will at all times maintain all insurance
j upon, or.in connect on with the operation of the Project required by the
Agreement. All insurance proceeds shall be disbursed pursuant to the terms
and conditions relating thereto set forth in the Agreement.
4. Payment of Taxes, etc. Mortgagor shall pay all taxes, assess-
ments, water rates, sewer rents and other charges, including vault charges and
license fees for the use of vaults, chutes and similar areas adjoining the
Premises, now or hereafter levied or assessed against the Mortgaged Property
as more particularly defined in the Ground Lease as "Public Charges"
(hereinafter referred to as the Taxes) pursuant to the terms of the Agreement.
- 4 -
e
85-405
5. Trustee. Funds. Mortgagor will pay all sums due to the Trustee
pursuant to the terms of the Agreement.
b. Condemnation. Notwithstanding any taking by any public or
quasi -public authority through eminent domain or otherwise, Mortgagor shall
continue to pay the Debt at the time and in the manner provided for its
payment in the dote, the Agreement and in this Mortgage and the Debt shall not
be reduced until any award or payment therefor shall have been actually
received and applied by the Trustee pursuant to the terms and conditions
relating thereto set forth in the Agreement.
7. Leases and. Rents. Until such time as Mortgagor shall be in
default of this Mortgage, Mortgagee waives the right to enter the Mortgaged
Property for the purpose of collecting the Rents, and grants Mortgagor the
right to collect the Rents. Mortgagor shall pay all Rents to the Trustee
pursuant to the terms and conditions relating thereto set forth in the
Agreement.
8. Maintenance of the Mortgaged Property. Mortgagor shall cause
the Mortgaged Property to be maintained in good condition and repair in
accordance with the terms and conditions relating thereto set forth in the
Agreement.
9. Estoppel Certificates. Either party, within ten (10) days after
request by the other party and at its expense, will furnish the other party
with a statement, duly acknowledged and certified, setting forth the amount of
the Debt and the offsets or defenses thereto, if any.
10. Transfer or Encumbrance of the Mort a ed Property. Except as
otherwise provided in the Agreement or the Ground Lease, no part of the
Mortgaged Property shall in any manner be further encumbered, sold,
transferred or conveyed, or permitted to be further encumbered, sold,
transferred or conveyed without the consent of Mortgagee. The provisions of
this paragraph shall apply to each and every such further encumbrance, sale,
transfer or conveyance, regardless of whether or not Mortgagee has consented
to, or waived by its action or inaction its rights hereunder with respect to
any such previous further encumbrance, sale, transfer or conveyance.
11. Notice. Any notice, request, demand, statement or consent made
hereunder shall oe in writing and shall be sent by registered or certified
mail, return receipt requested, and shall be deemed given when postmarked and
addressed as follows:
If to Mortgagor:
9ayside Center Limited Partnership
c/o Rouse - Miami, Inc.
10275 Little Patuxent Parkway
Columbia, Maryland 21044
Attention: General Counsel
-5-
{
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85-405
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4
If to Mortgagee:
Office of the City Manager
City of Miami
2500 Pan American Drive
Miami, Florida 33133
Attention: City Manager
Each party may designate a change of address by notice to the other party.
12. Sale.of M�ort9aged� Property. If this Mortgage is foreclosed, the
Mortgaged Property, or any interest therein, may, at the discretion of
Mortgagee, be sold in one or more parcels or in several interests or portions
and in any order or manner.
13. Changes in Laws Regarding Taxation. In the event of the passage
after the date-ofdati-of this Mortgage of any law of the state of Florida deducting
from the value of real property for the purpose of taxation any lien or
encumbrance thereon or changing in any way the laws for the taxation of
mortgages or debts secured by mortgages for state or local purposes or the
manner of the collection of any such taxes, and imposing a tax, either
directly or indirectly, on this Mortgage, the Note, the Agreement or the Debt,
Mortgagor shall, if permitted by law, pay any tax imposed as a result of any
such law within the statutory period or within fifteen (15) days after demand
by Mortgagee, whichever is less.
14. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes assessed against the Mortgaged Property or any part thereof
and no deduction shall otherwise be made or claimed from the taxable value of
the Mortgaged Property, or any part thereof, by reason of this Mortgage or the
Debt.
15. Offsets Counterclaims and Defenses. Any assignee of this
Mortgage, the Agreement and the Note Shall take the same free and clear of all
offsets, counterclaims or defenses of any nature whatsoever which Mortgagor
may have against any assignor of this Mortgage, the Agreement and the Note and
no such offset, counterclaim or defense shall be interposed or asserted by
Mortgagor in any action or proceeding brought by any such assignee upon this
Mortgage, the Agreement or the Note and any such right to interpose or assert
any such offset, counterclaim or defense in any such action or proceeding
brought by any such assignee is hereby expressly waived by Mortgagor but
nothing herein contained shall be construed as a waiver of any right or cause
of action which may exist in favor of Mortgagor against any assignor of the
Mortgage at the time of such assignment. This Mortgage may not be assigned by
the Trustee to a successor Trustee (as defined in the Indenture) or assigned
thereafter by any successor Trustee unless and until such assignee executes
and delivers the documents required pursuant to Section 11.17 of the Indenture.
16. Other Security for the Debt. Mortgagor shall observe and
perform all of the terms, covenants and provisions contained in the Note, the
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Agreement and in all Other mortgages and other instruments or documents
evidencing, securing or guaranteeing payment of the Debt, in whole or in part,
or otherwise executed and delivered in connection with the Note, the
Agreement, this Mortgage or the loan evidenced and secured thereby.
17. Documentary_Stampsif at any time the United States of America,
any state thereof or any governmental subdivision of any such state, shall
require revenue or other stamps to be affixed to the Note, the Agreement or
this Mortgage, Mortgagor will pay for the same, with interest and penalties
thereon, if any.
is. Right_ of Entry. Mortgagee and its agents shall have the right
to enter and inspect the Mortgaged Property at all reasonable times.
19. gooks and Records. Mortgagor will keep and maintain or will
cause to be kept and maintained in accordance with generally accepted
accounting practices consistently applied proper and accurate books, records
and accounts reflecting all of the financial affairs of Mortgagor and all
items of income and expense in connection with the operation of the Mortgaged
Property or in connection with any services, equipment or furnishings provided
in connection with the operation of the Mortgaged Property, whether such
income or expense be realized by Mortgagor or by any other person whatsoever.
All of such books and records shall be kept by Mortgagor in accordance with
the provisions relating thereto set forth in the Ground Lease and the
Agreement.
2u. Performance of Other Agreements. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor pursuant
to the terms of any agreement or recorded instrument affecting or pertaining
to the Mortgaged Property.
21. The Ground Lease. Mortgagor shall (i) pay all rents, additional
rents and other sums required to be paid by Mortgagor, as tenant under and
pursuant to the provisions of the Ground Lease, (ii) diligently perform and
observe all of the terms, covenants and conditions of the Ground Lease on the
part of Mortgagor, as tenant thereunder, to be performed and observed, unless
such performance or observance shall be waived or not required by the landlord
under the Ground Lease, to the end that all things shall be done which are
necessary to keep unimpaired the rights of Mortgagor, as tenant, under the
Ground Lease, and (iii) promptly notify Mortgagee of the giving of any notice
by the landlord under the Ground Lease to Mortgagor of any default by
Mortgagor in the performance or observance of any of the terms, covenants or
conditions of the Ground Lease on the part of Mortgagor, as tenant thereunder,
to be performed or observed and deliver to Mortgagee a true copy of each such
notice. Mortgagor shall not, without the prior consent of Mortgagee,
surrender the leasehold estate created by the Ground Lease or terminate or
cancel the Ground Lease or modify, change, supplement, alter or amend the
Ground Lease, in any respect, either orally or in writing, and Mortgagor
hereby assigns to Mortgagee, as further security for the payment of the Debt
and for the performance and observance of the terms, covenants and conditions
of this Mortgage, all of the rights, privileges and prerogatives of Mortgagor,
as tenant under the Ground Lease, to surrender the leasehold estate created by
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the Ground Lease or to terminate, cancel, modify, change, supplement, alter or
amend the Ground Lease, and any such surrender of the leasehold estate created
by the Ground Lease or termination, cancellation, modification, change,
supplement, alteration or amendment of the Ground Lease without the prior
consent of Mortgagee shall be void and of no force and effect. If Mortgagor
shall default in the performance or observance of any term, covenant or
condition of the Ground Lease on the part of Mortgagor, as tenant thereunder,
to be performed or observed, then, without limiting the generality of the
other provisions of this Mortgage, and without waiving or releasing Mortgagor
from any of its obligations hereunder, Mortgagee shall have the right, but
shall be under no obligation, to pay any sums and to perform any act or take
any action as may be appropriate to cause all of the terms, covenants and
conditions of the Ground Lease on the part of Mortgagor, as tenant thereunder,
to be performed or observed to be promptly performed or observed on behalf of
Mortgagor, to the end that the rights of Mortgagor in, to and under the Ground
Lease shall be kept unimpaired and free from default. If Mortgagee shall make
any payment or perform any act or take action in accordance with the preceding
sentence, Mortgagee will notify Mortgagor of the making of any such payment,
the performance of any such act, or taking of any such action. In any such
event, subject to the rights of lessees, sublessees and other occupants under
the Leases, Mortgagee and any person designated by Mortgagee shall have, and
are hereby granted, the right to enter upon the Mortgaged Property at any time
and from time to time for the purpose of taking any such action. If the
landlord under the Ground Lease shall deliver to Mortgagee a copy of any
notice of default sent by said landlord to Mortgagor, as tenant under the
Ground Lease, such notice shall constitute full protection to Mortgagee for
any action taken or omitted to be taken by Mortgagee, in good faith, in
reliance thereon. Mortgagor shall exercise each individual option, if any, to
extend or renew the term of the Ground Lease upon demand by Mortgagee made at
any time within one (1) year of the last day upon which any such option may be
exercised provided that this Mortgage shall remain in full force and effect at
the time such option is to be exercised. Notwithstanding any provisions
herein to the contrary, in the case of any conflict between the Mortgagee's
rights under this Mortgage in the event of default and the Mortgagee's rights
as Lender under Article VI of the Ground Lease, then the provisions of the
said Article VI of the Ground Lease shall prevail.
22. No Meraer of Fee and Leasehold Estates. So long as any portion
of the Debt sha remain unpaid, unless Mortgagee shall otherwise consent, the
fee title to the Premises and the leasehold estate therein created pursuant to
the provisions of the Ground Lease shall not merge but shall always be kept
separate and distinct, notwithstanding the union of such estates in Mortgagor,
or in any other person by purchase, operation of law or otherwise. If
Mortgagee shall acquire the fee title to the Premises and the leasehold estate
therein created pursuant to the provisions of the Ground Lease, by foreclosure
of this Mortgage or otherwise, such estates shall not merge as a result of
such acquisition and shall remain separate and distinct for all purposes after
such acquisition unless and until Mortgagee shall elect to merge such estates.
23. Defaults. The Debt shall become due at the option of Mortgagee
upon the occurrence of any one of the following events:
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(a) if any portion of the Debt is not paid pursuant to the
terms of the Note and the Agreement;
(b) if Mortgagor shall fail to pay any instalment of any
assessment against the Mortgaged Property pursuant to the terms of the
Agreement;
(c) if any Federal tax lien is filed against Mortgagor or the
Mortgaged Property and the same is not discharged of record within the
time periods set forth in the Agreement with respect to same;
(d) unless otherwise permitted in the Agreement or the Ground
Lease, if, without the consent of Mortgagee, any part of the Mortgaged
Property or any interest therein is in any manner further encumbered,
sold, transferred or conveyed, or if any Improvement or the Equipment
(except for normal replacement of the Equipment) is removed, demolished or
materially altered, or if the Mortgaged Property is not kept in good
condition and repair;
(e) if the Policies are not kept in full force and effect
pursuant to the terms of the Agreement;
i (f) if The Rouse Company shall default under the terms of those
certain guarantees delivered to Mortgagee in connection with the
completion of the Improvements and the payment of the Note (hereinafter
referred to as the "Guarantor");
(g) if Mortgagor or any Guarantor shall make an assignment for
the benefit of creditors;
(h) if a court of competent jurisdiction enters a decree or
order for relief with respect to Mortgagor or any Guarantor under Title 11
of the United States Code as now constituted or hereafter amended or under
any other applicable Federal or state bankruptcy law or other similar law,
or if such court enters a decree or order appointing a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of
Mortgagor or any Guarantor, or of any substantial part of their respective
properties, or if such court decrees or orders the winding up or
liquidation of the affairs of Mortgagor or any Guarantor;
(i) if Mortgagor or any Guarantor files a petition or answer or
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consent seeking relief under Title 11 of the United States Code as now
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constituted or hereafter amended, or under any other applicable Federal or
state bankruptcy law or other similar law, or if Mortgagor or any
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Guarantor consents to the institution of proceedings thereunder or to the
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filing of any such petition or to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of Mortgagor or any Guarantor, or of any
substantial part of their respective properties, or if Mortgagor or any
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Guarantor fails generally to pay their respective debts as such debts
become due, or if Mortgagor or any Guarantor takes any action in
furtherance of any action described in this subparagraph;
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(J) if Mortgagor shall default in the observance or performance
of any term, covenant or condition of the Ground Lease on the part of
Mortgagor, as tenant thereunder, to be observed or performed, unless any
such observance or performance shall have been waived or not required by
the landlord under the Ground Lease, or if any one or more of the events
referred to in the Ground Lease shall occur which would cause the Ground
Lease to terminate without notice or action by the landlord thereunder or
which would entitle the landlord under the Ground Lease to terminate the
Ground Lease and the term thereof by giving notice to Mortgagor, as tenant
thereunder, or if the leasehold estate created by the Ground Lease shall
be surrendered or the Ground Lease shall be terminated or cancelled for
any reason or under any circumstance whatsoever, or if any of the terms,
covenants or conditions of the Ground Lease shall in any manner be
modified, changed, supplemented, altered or amended without the consent of
Mortgagee;
(k) if Mortgagor or other person shall be in default under the
Note, the Agreement or under any other mortgage, instrument or document
evidencing, securing or guaranteeing payment of the Debt, in whole or in
part, or otherwise executed and delivered in connection with the Note, the
Agreement, this Mortgage or the loan evidenced and secured thereby;
(1) if Mortgagor shall continue to be in default under any of
the other terms, covenants or conditions of this Mortgage for fifteen (15)
days after notice from Mortgagee in the case of any default which can be
cured by the payment of a sum of money or for thirty (30) days after
notice from Mortgagee in the case of any other default, provided that if
such default cannot reasonably be cured within such thirty (30) day period
and Mortgagor shall have commenced to cure such default within such thirty
(30) day period and thereafter diligently and expeditiously proceeds to
cure the same, such thirty (30) day period shall be extended for so long
as it shall require Mortgagor in the exercise of due diligence to cure
such default, it being agreed that no such extension shall be for a period
in excess of• sixty (60) days and that nothing contained in this
subparagraph shall be construed as having the effect of extending the
j Completion Date (as defined in the Agreement); or
(m) if Mortgagor shall be in default beyond applicable grace
periods, if any, under any mortgage or deed of trust covering any part of
the Mortgaged Property whether superior or inferior in lien to this
Mortgage.
24. Right to Cure Defaults. If default in the performance of any of
the covenants oir Mortgagor herein occurs, Mortgagee may, at its discretion,
remedy the same and for such purpose shall have the right to enter upon the
Mortgaged Property or any portion thereof without thereby becoming liable to
Mortgagor or any person in possession thereof holding under Mortgagor. If
Mortgagee shall remedy such a default or appear in, defend, or bring any
action or proceeding to protect its interest in the Mortgaged Property or to
foreclose this Mortgage or collect the Debt, the costs and expenses thereof
(including reasonable attorneys' fees to the extent permitted by law), with
interest as provided in this paragraph, shall be paid by Mortgagor to
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Mortgagee upon demand: All such costs and expenses incurred by Mortgagee in
remedying such default or in appearing in, defending, or bringing any such
action or proceeding shall be paid by Mortgagor to Mortgagee upon demand, with
interest at the Default Rate (as defined in the Agreement). All such costs
and expenses incurred by Mortgagee pursuant to the terms of this Mortgage,
with interest, shall be secured by this Mortgage.
25. Appointment_ . of _Receiver. Mortgagee, in any action to foreclose
this Mortgage or upon the actual or threatened waste to any part of the
Mortgaged Property or upon the occurrence of any default hereunder, shall be
at liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter
of right, without regard to the value of the Mortgaged Property as security
for the Debt, or the solvency or insolvency of any person then liable for the
payment of the Debt.
26. Non -Waiver. The failure of Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. Mortgagor shall not be relieved of Mortgagor's
obligation to pay the Debt at the time and in the manner provided for its
payment in the Note and this Mortgage by reason of (i) failure of Mortgagee to
comply with any request of Mortgagor to take any action to foreclose this
Mortgage or otherwise enforce any of the provisions hereof or of the Note, the
Agreement or any other mortgage, instrument or document evidencing, securing
or guaranteeing payment of the Debt or any portion thereof, (ii) the release,
regardless of consideration, of the whole or any part of the Mortgaged
Property or any other security for the Debt, or (iii) any agreement or
stipulation between Mortgagee and any subsequent owner or owners of the
Mortgaged Property or other person extending the time of payment or otherwise
modifying or supplementing the terms of the Note, the Agreement, this Mortgage
or any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Debt or any portion thereof, without first having
obtained the consent of Mortgagor, and in the latter event, Mortgagor shall
continue to be obligated to pay the Debt at the time and in the manner
provided in the Note, the Agreement and this Mortgage, as so extended,
modified and supplemented, unless expressly released and discharged by
Mortgagee. Regardless of consideration, and without the necessity for any
notice to or consent by the holder of any subordinate lien, encumbrance,
right, title or interest in or to the Mortgaged Property, Mortgagee may
release any person at any time liable for the payment of the Debt or any
portion thereof or any part of the security held for the Debt and may extend
the time of payment or otherwise modify the terms of the Note, the Agreement
or this Mortgage, including, without limitation, a modification of the
interest rate payable on the principal balance of the Note, the Agreement,
without in any manner impairing or affecting this Mortgage or the lien thereof
or the priority of this Mortgage, as so extended and modified, as security for
the Debt over any such subordinate lien, encumbrance, right, title or
interest. Mortgagee may resort for the payment of the Debt to any other
security held by Mortgagee in such order and manner as Mortgagee, in its
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclose this Mortgage. Mortgagee shall not
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be limited exclusively to the rights and remedies herein stated but shall be
entitled to every additional right and remedy now or hereafter afforded by
law. The rights of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others.
No act of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision.
27. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several.
28. Construction. The terms of this Mortgage shall be construed in
accordance with the laws of the state of Florida.
29. Security,. -Agreement. This Mortgage constitutes both a real
property mortgagd a security agreement", within the meaning of the
Uniform Commercial Code, and the Mortgaged Property includes both real and
personal property and all other rights and interest, whether tangible or
intangible in nature of Mortgagor in the Mortgaged Property. Mortgagor by
executing and delivering this Mortgage has granted to Mortgagee, as security
for the Debt, a security interest in the Equipment. If Mortgagor shall
default under the Note, the Agreement or this Mortgage, Mortgagee, in addition
to any other rights and remedies which it may have, shall have and may
exercise immediately and without demand, any and all rights and remedies
granted to a secured party upon -default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing, the right to take
possession of the Equipment or any part thereof, and to take such other
measures as Mortgagee may deem necessary for the care, protection and
preservation of the Equipment. Upon request or demand of Mortgagee, Mortgagor
shall at its expense assemble the Equipment and make it available to Mortgagee
at a convenient place acceptable to Mortgagee. Mortgagor shall pay to
Mortgagee on demand any and all expenses, including legal expenses and
attorneys' fees, incurred or paid by Mortgagee in protecting its interest in
the Equipment and in enforcing its rights hereunder with respect to the
Equipment. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Equipment sent to Mortgagor in accordance with
the provisions hereof at least five (5) days prior to such action, shall
constitute reasonable notice to Mortgagor. The proceeds of any disposition of
the Equipment, or any part thereof, may oe applied by Mortgagee to the payment
of the Debt in such priority and proportions as Mortgagee in its discretion
shall deem proper.
30. Further Acts etc. Mortgagor will, at the cost of Mortgagor,
and without expense to Mortgagee, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, mortgages, assignments, notices
of assignments, transfers and assurances as Mortgagee shall, from time to
time, require, for the better assuring, conveying, assigning, transferring and
confirming unto Mortgagee the property and rights hereby mortgaged or intended
now or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage and, on demand, will execute and
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deliver and hereby authorizes Mortgagee to execute in the name of Mortgagor to
the extent Mortgagee may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments, to evidence more
effectively the lien hereof upon the Mortgaged Property.
31. Headings,- etc. the headings and captions of various paragraphs
of this Mortgage are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
32. Filin of Mort a e, etc_ Mortgagor forthwith upon the execution
and delivery o this Mortgage and thereafter, from time to time, will cause
this Mortgage, and any security instrument creating a lien or evidencing the
lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien hereof upon, and the interest of Mortgagee in the
Mortgaged Property. Mortgagor will pay all filing, registration or recording
fees, and all expenses incident to the preparation, execution and acknowledg-
ment of this Mortgage, any mortgage supplemental hereto, any security instru-
ment with respect to the Mortgaged Property and any instrument of further
assurance, and all Federal, state, county and municipal taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Mortgaged Property or any instrument of further
assurance. Mortgagor shall hold harmless and indemnify Mortgagee, its suc-
cessors and assigns, against any liability incurred by reason of the imposition
of any tax on the making and recording of this Mortgage.
33. Usury Laws. This Mortgage, the Agreement and the Note are
subject to the express condition that at no time shall Mortgagor be obligated
or required to pay interest on the principal balance due under the Note or the
Agreement at a rate which could subject the holder of the Note to either civil
or criminal liability as a result of being in excess of the maximum interest
rate which Mortgagor is permitted by law to contract or agree to pay. If by
the terms of this Mortgage or the Note or the Agreement, Mortgagor is at any
time required or obligated to pay interest on the principal balance due under
the Note at a rate in excess of such maximum rate, the rate of interest under
the Note and Agreement shall be deemed to be immediately reduced to such
maximum rate and the interest payable shall be computed at such maximum rate
and all prior interest payments in excess of such maximum rate shall be
applied and shall be deemed to have been payments in reduction of the
principal balance of the Note.
34. Recovery of Sums Required To Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice to
the right of Mortgagee thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Mortgagor existing at the time such
earlier action was commenced.
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35. Marshaling. Mortgagor waives and releases any right to have the
Mortgaged Property marshaled.
36. Authority. Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and legal right to execute this
Mortgage and to mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm and assign the Mortgaged Property pursuant to the terms hereof and to
keep and observe all of the terms of this Mortgage on Mortgagor's part to be
performed.
37. Actions and Proceedin s. Mortgagee shall have the right to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to bring any action or proceeding, in the name and on
behalf of Mortgagor, which Mortgagee, in its discretion, feels should be
brought to protect its interest in the Mortgaged Property.
38. Inapplicable Provisions. If any term, covenant or condition of
this Mortgage shall be held to be invalid, illegal or unenforceable in any
respect, this Mortgage shall be construed without such provision.
39. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to constitute but one and the same instrument.
40. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless o erw se specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean each Mortgagor and any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein, the
word "Mortgagee" shall mean Mortgagee or any subsequent holder of the Note,
the word "Note" shall mean the Note or any other evidence of indebtedness
secured by this Mortgage, the word "Guarantor" shall mean each person
guaranteeing payment of the Debt or any portion thereof or performance by
Mortgagor of any of the terms of this Mortgage and their respective heirs,
executors, administrators, legal representatives, successors and assigns, the
word "person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other
entity, the words "Mortgaged Property" shall include any portion of the
Mortgaged Property or interest therein, and the word "Debt" shall mean all
sums secured by this Mortgage. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural
and vice versa.
41. No Oral Change. This Mortgage may only be modified or amended
by an agreement in writing signed by Mortgagor and Mortgagee, and may only be
released, discharged or satisfied of record by an agreement in writing signed
by Mortgagee.
42. Agreement. The proceeds of the Note and Agreement are loaned
for the purpose of financing the construction of certain improvements on the
Premises. This Mortgage is subject to all of the terms, covenants and
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conditions of the Agreement, which Agreement and all of the terms, covenants
and conditions thereof are by this reference incorporated herein and made a
part hereof with the same force and effect as if set forth at length herein.
The proceeds of the loan secured hereby are to be advanced by Trustee to
Mortgagor in accordance with the provisions of the Agreement. Mortgagor shall
observe and perform all of the terms, covenants and conditions of the
Agreement on Mortgagor's part to be observed or performed. All advances made
and all indebtedness arising and accruing under the Agreement from time to
time shall be secured hereby. In the event of any conflict or ambiguity
between the terms, covenants and conditions of this Mortgage and the
Agreement, the terms, covenants and conditions which shall enlarge the rights
and remedies of Mortgagee and the interest of Mortgagee in the Mortgaged
Property, afford Mortgagee greater financial security in the Mortgaged
Property and better assure payment of the Debt in full, shall control.
43. Additional Remedies. Notwithstanding any other provision of
this Mortgage to the contrary, if Mortgagor shall default in the observance or
performance of any of the terms, covenants and provisions of this Mortgage on
its part to be observed or performed, or if any one of the events of default
specified in this Mortgage shall occur, Mortgagee may, at its option, exercise
any one or more or all of the following remedies in addition to those set
forth elsewhere in this Mortgage:
(a) at any time, without notice, enter upon and take possession
of the Mortgaged Property or any part thereof, to perform any acts
Mortgagee deems necessary or proper to conserve the Mortgaged Property and
the security thereof and subject to the rights of the Trustee under the
Agreement and Trust Indenture, to collect and receive all Rents, including
those past due as well as those accruing thereafter;
(b) as a matter of strict right and without regard to the value
or occupancy of the security, have a receiver appointed to enter upon and
take possession of the Mortgaged Property, collect the Rents and apply the
same as the court may direct, such receiver to have all the rights and
powers permitted under the laws of the State of Florida; and
(c) exercise any other remedy specifically granted under any
other instrument executed by Mortgagor in connection with this Mortgage or
now or hereafter existing in equity, or at law, by virtue of statute or
otherwise.
In the case of either (a) or (b) above, Mortgagee or the receiver may
also take possession of, and for these purposes use, any and all personal
property constituting part of the Mortgaged Property and used by Mortgagor in
the rental, sale or leasing thereof or any part thereof. The expenses
(including receiver's fees, counsel fees, costs and agent's compensation)
incurred pursuant to the powers herein contained shall be secured by this
Mortgage. Mortgagee shall (after payment of all costs and expenses incurred)
apply the Rents received by it to the Debt pursuant to the terms of the
Agreement. The right to enter and take possession of the Mortgaged Property,
to manage and operate the same, and to collect the Rents, whether by a receiver
or otherwise, shall be in addition to any other right or remedy hereunder or
{
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afforded by law, and may be exercised concurrently therewith or independently
thereof,.
44. Future_- Advances, This Mortgage shall secure such future or
additional advances as may be made by Mortgagee at its option to Mortgagor or
Mortgagor's successor in title for any purpose, provided that all those
advances are to be made within 20 years from the date of this Mortgage or
within such lesser period of time as may be provided hereafter by law as a
prerequisite for the sufficiency and actual notice or record of notice of the
optional future or additional advances as against the rights of creditors or
subsequent purchasers for valuable consideration. The total amount of the
indebtedness secured by this Mortgage may decrease or increase from time to
time but the total unpaid principal balance as secured at any one time by this
Mortgage shall not exceed the maximum principal amount of Thirty -Five Million
and No/100 Dollars ($35,0009000.00), plus interest, and any disbursements made
for the payment of taxes, levies, or insurance on the property covered by the
lien of this Mortgage with interest on those disbursements. It shall be a
default hereunder if Mortgagor shall file for record a notice limiting the
maximum principal amount which may be secured by this Mortgage if the effect
of the filing of such notice would in any way prohibit Mortgagee from making
future advances to be secured by this Mortgage in the full amount hereinabove
set forth.
45. Homestead Exemptions. Mortgagor hereby represents and declares
that the Mortgaged Property forms no part of any property owned, used or
claimed by Mortgagor as exempted from forced sale under the laws of the State
of Florida, and disclaims, waives and renounces all and every claim to
exemption under any homestead exemption law or other laws.
IN WITNESS WHEREOF,
Mortgagor has duly executed this
Mortgage the day
and year first above written.
Signed, Sealed and Delivered
BAYSIDE CENTER LIMITED
PARTNERSHIP, a
in the Presence of:
Maryland partnership
By: ROUSE-MIAMI, INC.,
a Maryland
corporation
by
President
>^
452G/476A
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85-405
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EXHIBIT A
(Description of Premises)
ALL of that certain lot, piece or parcel of land $ with the buildings
and improvements erected thereon, situate, lying and being
452G/476A
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EXHIBIT C
(List of permitted Encumbrances)
,r%r--Anit
ASSIGNMENT OF MORTGAGE AND SECURITY AGREEMENT
KNOWN ALL MEN BY THESE PRESENTS, that the CITY OF MIAMI,
FLORIDA, a municipal corporation of the State of Florida, (the
"Issuer") the owner and holder of a certain Mortgage and Security
Agreement executed by BAYS tDE CENTER LIMITED PARTNERSHIP, a limit-
ed partnership duly organized and existing under the laws of the
State of Maryland (the "Mortgagor"), to the Issuer, dated the
day of 19850 and recorded in the Public Records
of Dade County, Florida (collectively the "Mortgage"), securing
performance of the obligations of the Mortgagor and the payment of
the sums of money mentioned in the Financing Agreement, dated the
day of , 1985, by and between the Issuer and
BAYSIDE CENTER LIMITED PARTNERSHIP incorporated in and made a part
of the Mortgage by reference, encumbering a leasehold estate in
certain real property situated in the State and County aforesaid
more fully described in Exhibit "A" attached hereto together with
all buildings, structures and improvements of every nature whatso-
ever now or hereafter situated on the described property and made
part of the Project, and a security interest in all fixtures,
furniture, machinery, leasehold improvement, goods, inventory,
accounts, general tangibles and chattel paper, and other personal
property, except motor vehicles, of every nature whatsoever now or
hereafter owned by the Mortgagor and made part of the Project and
located in, on or used or intended to be used in connection with
the Project, improvement, betterments, renewals and replacements
to any of the foregoing which are made part of the Project,
comprising the Project as set out in the said Financing Agreement,
for the consideration of the sum of Ten Dollars ($10.00) paid by
as Trustee, the receipt of which is here-
by acknowledged, and other good and valuable considerations, the
Issuer as Assignor, hereby assigns and transfers to ,
as Trustee and Assignee, the above described Mortgage, together
with the sums of money secured by said Mortgage, and the money due
and to become due thereon as provided in the said Financing Agree-
ment and all other rights thereunder of the Issuer.
THIS INSTRUMENT PREPARED B
BRYANT, MILLER AND OLIVE,
700 BARNETT BANK BUILDING
TALLAHASSEE, FLORIDA 32301
d�Y
TO HAVE AND TO HOLD the same unto ► as
Trustee, and its successors and assigns forever.
IN WITNESS WHEREOFt the City of Miami has caused this Assign -
tent of Mortgage to be signed in its name by its Mayor, attested
by its Clerk and its official seal to be affixed and executed and
delivered all the day of _r 1985•
(SEAL)
ATTEST:
City Clerk
CITY OF MIAMI, FLORIDA
Mayor
2
85-405
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STATE OF FLORIDA
COUNTY OF DADE
On this day of , 1985, before me personally came
and to me known, who
being by me duly sworn, did depose, say and acknowledge that they
are Mayor and City Clerk, respectively, of the City of Miami,
Florida, a municipal corporation of the State of Florida, describ-
ed in and which executed the above Assignment of Mortgage and
Security Agreement; that they know the seal of said Issuer; that
the seal affixed to said instrument is such official seal; that it
was so affixed by order of the City of Miami, Florida, and that
each of them signed her name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
My Commission Expires:
EXH tB I T "A"
DESCRIPTION OF MORTGAGED
LEASEHOLD ESTATE
195-40SE
L1
I
CITY OF MIAMI. ItLOPICA
30 INTER-OPPICE MEMORANDUM
To. Randolph B. Rosencrantz
City Manager
m
DATE: March 21, 1985 ►az, BYG.040
sus�Ecr: Bayside Specialty Center
Parking Garage
FROM: John E. Gilchrist REREIlCNccs: Agenda Item for City
Asst. to the City an ger Commission Meeting of
Special Projects Task Force ENmosumes: March 28, 1985
It is recommended that the City Commission
adopt the attached resolution authorizing
the financing of a 1200 car garage and
associated parking facilities for use by
the Bayside Center Limited Partnership,
with the proceeds of Industrial Deveio -
ment Revenue Bonds in the pr nctpal
amount not to exceed $18,500,000, and
authorizing the execution of certain other
agreements and covenants in connection
with the issuance of such Bonds.
in order to provide financing for the 1200 car garage and adjacent
parking facilities to be used in conjunction with the wayside
Specialty Center, the City intends to issue Industrial Development
Revenue Bonds in the principal amount not to exceed $18,500,000.
The proceeds of these Bonds are to be loaned to Bayside Center
Limited Partnership for the construction of parking facilities
which The Rouse Company is guaranteeing completion. Bayside Center
Limited Partnership is also responsible for operation of the
parking facilities, which they are carrying out through a
management agreement with the City's Department of Off -Street Parking.
The Bonds shall not be deemed to constitute a debt, liability or
obligation of the City of Miami, the State of Florida, or of any
political subdivision, but shall be payable solely from the
parking garage revenues.
This resolution authorizes issuance of the Industrial Development
Revenue Bonds, allows for use of the proceeds as described herein,
approves the various enacting documents and covenants and
authorizes the execution of the agreements necessary in connection
with the issuance of the Bonds and their guaranty by
The Rouse Company.
It is there -fore recommended that the attached resolution be
on the agenda o5 the March 28, 1985 City Commission Meeting
cons' eration and adoption.
JEG :bf
cc: Law Dept.
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placed
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