2002-045RESOLUTION NO. 2002-45
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AUTHORIZING THE BORROWING OF
NOT EXCEEDING $13,000,000 AGGREGATE PRINCIPAL
AMOUNT FROM THE FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION LOAN PROGRAM TO FINANCE
AND/OR REFINANCE CERTAIN CAPITAL PROJECTS OF THE
CITY; AUTHORIZING THE EXECUTION AND DELIVERY OF
ONE OR MORE LOAN AGREEMENTS IN CONNECTION
THEREWITH; AUTHORIZING THE ISSUANCE OF ONE OR
MORE NOTES NOT TO EXCEED $13,000,000 AGGREGATE
PRINCIPAL AMOUNT TO EVIDENCE THE OBLIGATION OF
THE CITY TO REPAY THE LOANS; PROVIDING FOR THE
TERM AND REPAYMENT PROVISIONS THEREOF;
AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Aventura, Florida (the "Borrower") is duly authorized
pursuant to the Constitution and Chapter 166, Part II, Florida Statutes, as amended, and
other applicable provisions of law (collectively, the "Act") to acquire and construct
capital projects for the benefit of the citizens and residents of the Borrower and to borrow
money to facilitate financing and/or refinancing of the costs of such projects; and
WHEREAS, the Florida Intergovernmental Finance Commission ("FIFC"), has
heretofore established a loan pool program (the "Program") for the purpose of financing
certain capital projects of participating local governmental entities situated in the State of
Florida through the issuance of its Florida Intergovernmental Finance Commission
Capital Revenue Bonds; and
WHEREAS, the Borrower has identified certain hereinafter defined capital
projects (such capital projects hereinat'ter collectively referred to as the "Projects") which
the Borrower wishes to finance and/or refinance from funds borrowed from the Program;
and
WHEREAS, the Borrower wishes to identify the specific capital improvements
constituting the Projects and provide for the terms and security for the repayment of such
funds to the Program; and
WHEREAS, to evidence its obligation to repay the loan of funds from the
Program (the "Loans"), the Borrower will execute and deliver one or more Loan
Agreements (collectively, the "Agreements") and one or more notes (collectively, the
"Participant Notes"); and
WHEREAS, to secure its obligation to repay the Participant Notes and the Loans,
the Borrower wishes to covenant to budget and appropriate as security for the Participant
Resolution No. 200245
Page 2
Notes and the Loans, the Non-Ad Valorem Revenues, as defined in the Agreements (the
"Non-Ad Valorem Revenues"), in accordance with the provisions of the Agreements; and
WHEREAS, the Borrower wishes to approve the form of Agreement and
Participant Note and to authorize the officers and employees of the Borrower to take all
action necessary to obtain the proceeds of the Loans and complete the financing of the
Projects in the manner contemplated by the respective Agreement; and
WHEREAS, FIFC will issue and sell its Florida Intergovernmental Finance
Commission Capital Revenue Bonds in one or more series (the "Bonds") pursuant to a
Trust Indenture (the "Indenture") between FIFC and the trustee selected by FIFC and
named therein (the "Trustee"), a portion of the proceeds of which Bonds will finance or
refinance, as the case may be, the Projects; and
WHEREAS, in connection with the sale of the Bonds, FIFC will enter into a
Bond Purchase Agreement (the "Bond Purchase Agreement") with J.P. Morgan &
Company (the "Underwriter"), pursuant to which the terms of the Bonds will be
determined; and
WHEREAS, also in connection with the sale of the Bonds, FIFC will cause a
Preliminary Official Statement and an Official Statement to be prepared, which among
other things, will contain certain financial and other information provided by the
Borrower;
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City
of Aventura, Florida, as follows:
SECTION 1. DEFINITIONS. Terms defined in the preambles hereof shall
have the meanings set forth therein. All capitalized terms used herein which are defined
in the form of Agreement shall have the meanings assigned thereto in the form of
Agreement, unless the context hereof affirmatively requires otherwise.
SECTION 2. FINDINGS. It is hereby found, determined and declared that:
(A) The Projects identified in Exhibit A to the Agreement constitute
capital projects within the meaning of the Act, and the acquisition and construction
and/or refinancing of such Projects is necessary and desirable, is in the public interest and
will serve a proper public purpose.
(B) It is necessary and desirable and in the public interest that the
Projects be constructed or refinanced, as the case may be, at the earliest possible time;
however, the Borrower does not have the resources necessary to pay for such Projects
from currently available funds.
(C) The financing and/or refinancing of the costs of the Projects from
funds borrowed from the Program is in the best interest of the public and will enable the
Borrower to complete the Projects in a timely manner to meet the current public need or
Resolution No. 2002-45
Page 3
to refinance the Projects in order to benefit from advantageous financing terms, as the
ease may be.
(D) The estimated receipts of Non-Ad Valorem Revenues are sufficient
to pay the principal and interest and all other amounts payable with respect to the Loans
and the Participant Notes.
(E) The Non-Ad Valorem Revenues are not encumbered or
hypothecated by any resolution, agreement, indenture, ordinance or other instnunent to
which the Borrower is a party or by which it is bound, except as otherwise set forth in the
Agreements.
SECTION3. PROJECT FINANCING AUTHORIZED. The cost of
financing and/or refinancing of the Projects, as described herein, in the manner provided
in the Agreements is hereby authorized and approved, in an amount not to exceed
$13,000,000 aggregate principal amount. There is also authorized and approved the
reimbursement of any costs incurred by the Borrower in connection with the Project
within 60 days preceding the adoption of Resolution No. 2002-16.
SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF
LOAN AGREEMENTS. The Agreements, each in substantially the form attached
hereto as Exhibit "A", including the Participant Note attached thereto, with such changes,
alterations and corrections as may be approved by the City Manager or Finance Director
of the Borrower, such approval to be presumed by his execution thereof, is hereby
approved by the Borrower, and the Borrower hereby authorizes and directs said City
Manager or Finance Director to execute, and the City Clerk or Deputy City Clerk of the
Borrower to attest under the seal of the Borrower, the Agreements and the Participant
Notes and to deliver to the Administrator, the Agreements and the Participant Notes, all
of the provisions of which, when executed and delivered by the Borrower as authorized
herein and by the Administrator, shall be deemed to be a part of this instrument as fully
and to the same extent as if incorporated verbatim herein.
SECTION 5. ISSUANCE OF PARTICIPANT NOTES; SECURITY. The
Loans shall be evidenced by one or more Participant Note, issued in an aggregate
principal amount not to exceed $13,000,000. The City Manager or Finance Director of
the Borrower and the City Clerk or Deputy City Clerk of the City are hereby authorized
to issue and deliver the Participant Notes against receipt of the proceeds of the Loans as
provided in the Agreements. Each Participant Note shall have such terms and provisions,
shall bear interest at such rates (which may be converted to a variable rate in accordance
with the Agreement), adjusted in such manner and payable at such times, and shall
mature in such amounts on such dates, all as are set forth in the related Agreement;
provided that the aggregate principal amount shall not exceed $13,000,000, the term of
each Participant Note shall be no longer than 30 years and the initial interest rate payable
by the Borrower under each Participant Note shall not exceed 6.25% per annum,
exclusive of annual administrative costs associated with the Bonds and the Loans. The
City manager shall receive a disclosure letter and truth-in-bonding statement prior to
issuance of the Participant Notes. Upon issuance, each Participant Note shall be secured
Resolution No. 200245
Page 4
by a covenant to budget and appropriate Non-Ad Valorem Revenues, in accordance with
the provisions of the Agreements. The Borrower hereby agrees to budget and appropriate
Non-Ad Valorem Revenues, in an mount sufficient to repay the Participant Notes, all in
the manner set forth in the Agreements and the Participant Notes.
SECTION6. NO PERSONAL LIABILITY. No covenant, stipulation,
obligation or agreement herein contained or contained in the Agreements shall be deemed
to be a covenant, stipulation, obligation or agreement of any member, agent or employee
of the Borrower or its governing body in his individual capacity, and neither the members
of the City Commission of the Borrower nor any official executing an Agreement or
Participant Note shall be liable personally thereon or be subject to any personal liability
or accountability by reason of the issuance thereof.
SECTION T. PREPARATION AND APPROVAL OF PRELIMINARY
OFFICIAL STATEMENT. The officers, attorneys, engineers or other agents or
employees of the Borrower are hereby authorized and directed to provide financial and
other information about the Borrower and the Projects necessary or desirable in the
preparation of a Preliminary Official Statement to be used by the Underwriter for the
purpose of offering the Bonds for sale. The Finance Director is hereby authorized to
"deem final" the Preliminary Official Statement within the meaning of SEC Rule
15c2-12(b)(1) and the applicable rules developed by the Municipal Securities
Rulemaking Board.
SECTION 8. PRICING AND SALE OF THE BONDS. The Borrower hereby
authorizes the City Manager and Finance Director of the Borrower to participate in the
pricing of the Bonds on behalf of the Borrower. The Bonds will be sold to the
Underwriter (subject to such terms and conditions) in the amount, at the price and upon
the final terms set forth in the Bond Purchase Agreement as may be approved by the City
Manager or Finance Director; provided, that (a) the term of the Bonds shall be no longer
than 30 years; (b) the interest rate on the Bonds shall not exceed 6.00% per annum; and
(c) the compensation of the Underwriter shall not exceed $6.00 per Bond issued
(inclusive of reimbursement of Underwriter's expenses).
SECTION 9. NO THIRD PARTY BENEFICIARIES. Except as herein or in
the Agreements otherwise expressly provided, nothing in this instrument or in the
Agreements, expressed or implied, is intended or shall be construed to confer upon any
person, firm or corporation other than the Borrower, the Administrator, the Florida
Intergovernmental Finance Commission, and the Trustee any right, remedy or claim,
legal or equitable, under and by reason of this instrument or any provision thereof or of
the Agreements, this instrument and the Agreements intended to be and being for the sole
exclusive benefit of the Borrower, the Administrator, the Florida Intergovernmental
Finance Commission, and the Trustee.
SECTION 10. PREREQUISITES PERFORMED. All acts, conditions
and things relating to the passage of this instrument, to the execution of the Agreements
and the Participant Notes required by the Constitution or laws of the State of Florida to
happen, exist, and be performed precedent to and in the passage hereof, and precedent to
Resolution No. 200245
Page 5
the execution and delivery of the Agreements and the Participant Notes, have happened,
exist and have been performed as so required.
SECTION 11. GENERAL AUTHORITY. The members of the City
Commission of the Borrower and the Borrower's officers, attorneys, engineers or other
agents or employees are hereby authorized to do ail acts and things required of them by
this instrument, the Agreements or the Participant Notes, or desirable or consistent with
the requirements hereof or the Agreements or Participant Notes, for the full, punctual and
complete performance of all the terms, covenants and agreements contained in the
Agreements, the Participant Notes, and this instrument.
SECTION 12. THIS INSTRUMENT CONSTITUTES A CONTRACT.
The Borrower covenants and agrees that this instrument shall constitute a contract
between the Borrower and the owners from time to time of the Participant Notes and that
all covenants and agreements set forth herein and in the Agreements and the Participant
Notes to be performed by the Borrower shall be for the equal and ratable benefit and
security of all owners of the Participant Notes.
SECTION 13. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shail be held
contrary to any express provisions 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 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 or of the
Agreements or Participant Note.
SECTION 14. NEGOTIATED SALE NECESSARY. It is hereby
found, ascertained, determined and declared by the Borrower that a negotiated borrowing
under the Program is in the best interest of the Borrower and is found to be necessary on
the basis of a finding that a competitive sale of the Participant Notes would in all
probability not produce better terms than a negotiated sale particularly in view of the
timing of such an offering and the instability from time to time of the municipal market.
SECTION 15. AUTHORIZATION OF ALL OTHER NECESSARY
ACTION. The Mayor, City Clerk and Deputy City Clerk of the City of the Borrower,
the City Manager, the Finance Director of the Borrower, and counsel to the Borrower are
designated agents of the Borrower in connection with the issuance and delivery of the
Agreements and the Pa~icipant Notes and are authorized and empowered, collectively or
individually, to take all action and steps to execute and deliver any and all instruments,
documents or contracts on behalf of the Borrower which are necessary or desirable in
connection with the execution and delivery of the Agreements and the Participant Notes
and which are not inconsistent with the terms and provisions of this resolution and hereby
authorize, ratify and confirm other actions relating to the Agreements and Participant
Notes heretofore taken on behalf of the Borrower.
Resolution No. 2002-45
Page 6
SECTION 16. REPEALING CLAUSE. All resolutions or parts thereof
of the Borrower in conflict with the provisions herein contained are, to the extent of such
conflict, hereby superseded and repealed.
Section 17. EFFECTIVE DATE. This resolution shall take effect
immediately upon its adoption.
The foregoing resolution was offered by Commissioner Rogers-Libert
who moved its adoption. The motion was seconded by Commissioner Cohen
and upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin yes
Commissioner Ken Cohen yes
Commissioner Manny Grossman ~
Commissioner Harry Holzberg yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Arthur Berger y,.~
Mayor Jeffrey M. Perlow yes
PASSED AND ADOPTED this 18th day of July, 2002.
,~lZ~RffY M. P"E~-,LOW,~
;.ST:
/
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EXHIBIT A
LOAN AGREEMENT
LOAN AGREEMENT
by and between
FLORIDA INTERGOVERNMENTAL FINANCE COMMISSION
and
THE CITY OF AVENTURA, FLORIDA
dated as of August 1, 2002
relating to
FLORIDA INTERGOVERNMENTAL FINANCE COMMISSION
CAPITAL REVENUE BONDS
2002 SERIES A
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS .................................................................................................. 2
Section 1.01 De f'mitions ......................................................................................................... 2
ARTICLE II
BORROWER
Section 2.01
Section 2.02
Section 2.03
Section 2.04
REPRESENTATIONS AND COVENANTS OF
Representations of the Participant ..................................................................... 8
Covenants of Participant ................................................................................. 11
Tax Covenants and Representations of the Participant ................................... 15
Reimbursement Representations ..................................................................... 18
ARTICLE III
Section 3.01
Section 3.02
Section 3.03
Section 3.04
Section 3.05
Section 3.06
THE LOAN ...................................................................................................... 19
The Loan; Participant Notes ............................................................................ 19
Funding the Loan ............................................................................................ 19
No Warranty Of Sufficiency ........................................................................... 20
Closing Submissions ....................................................................................... 20
Evidence O f Loan ........................................................................................... 20
Adjustments to Initial Amount ........................................................................ 20
ARTICLE IV LOAN TERM, LOAN CLOSING REQUIREMENTS AND
LOAN AMENDMENT REQUIREMENTS ......................................................................... 20
Section 4.01 Commencement of Loan Term ....................................................................... 21
Section 4.02 Termination of Loan Term .............................................................................. 21
Section 4.03 Loan Closing Documents ................................................................................ 21
ARTICLE V
Section 5.01
Section 5.02
Section 5.03
Section 5.04
Section 5.05
Section 5.06
LOAN REPAYMENTS .................................................................................. 22
Repayments ..................................................................................................... 22
Additional Payments ....................................................................................... 22
Determination of Interest Rate; Interest Limit ................................................ 24
Obligation To Pay Repayments ...................................................................... 24
Application of Repayments ............................................................................. 27
Agreement To Survive Indenture and Bonds .................................................. 27
ARTICLE VI PROVISIONS RELATED TO THE INSURER .......................................... 28
Section 6.01 Notieesfinformation to be Given to the Insurer .............................................. 28
ARTICLE VII
WARRANTIES
Section 7.01
Section 7.02
DISCLAIMER OF WARRANTIES; VENDOR'S
Disclaimer of Warranties ................................................................................ 28
Warranties ....................................................................................................... 28
ARTICLE VIII OPTION TO PREPAY LOAN REPAYMENTS;
LOAN PREPAYMENT .......................................................................................................... 29
Section 8.01 Prepayment ...................................................................................................... 29
Section 8.02 Prepayment and Swap Agreement .................................................................. 29
ARTICLE IX ................................................................................................................................ 30
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TITLE TO PROPERTY; ASSIGNMENT OF AGREEMENT AND NOTE ........................ 30
Section 9.01 Title To Project ............................................................................................... 30
Section 9.02 Assignment By Issuer; Administrator ............................................................. 30
Section 9.03 Assignment by Participant .............................................................................. 30
ARTICLE X ................................................................................................................................. 30
EVENTS OF DEFAULT AND REMEDIES ............................................................................. 30
Section 10.01 Events of Default Defined ............................................................................... 30
Section I0.02
Section 10.03
Section 10.04
Section 10.05
Section 10.06
Section 10.07
Notice of Default ............................................................................................. 31
Remedies on Default ....................................................................................... 32
Attorneys' Fees and Other Expenses .............................................................. 32
Application of Moneys .................................................................................... 32
No Remedy Exclusive; Waiver; Notice .......................................................... 32
Retention of the Issuer's Rights ..................................................................... 32
ARTICLE XI EXCESS FUNDS., ........................................................................................... 33
Section 11.01 Excess Funds ................................................................................................... 33
ARTICLE XII
Section 12.01
Section 12.02
Section 12.03
Section 12.04
Section 12.05
Section 12.06
Section 12.07
Section 12.08
Section 12.09
MISCELLANEOUS ........................................................ ; ................... 33
Notices ............................................................................................................ 33
Binding Effect ................................................................................................. 34
Severability ..................................................................................................... 34
Amendments, Changes And Modifications .................................................... 34
Execution in Counterparts ............................................................................... 34
Applicable Law ............................................................................................... 34
Benefit of Bondholders; Compliance With Indenture ..................................... 34
Consents And Approvals ................................................................................. 35
Immunity of Officers, Employees And Members of Issuer
And Participant .......................................................................................................................... 35
Section 12.10 Captions .......................................................................................................... 35
Section 12.11 Pecuniary Liability of Issuer ........................................................................... 35
Section I2.12 Payments Due on Holidays ............................................................................. 35
Section 12.13 Right of Others to Perform Participant's Covenants ....................................... 35
ARTICLE XIII
Section 13.01
Section 13.02
Section 13.03
Section 13.04
Section 13.05
Section 13.06
Section 13.07
Section 13.08
Section 13.09
Section 13.10
Section 13.11
Section 13.12
CONTINUING DISCLOSURE ......................................................... 36
Continuing Disclosure Requirements ............................................................. 36
Definitions ...................................................................................................... 36
Annual Reports ............................................................................................... 37
Contents of Annual Reports ............................................................................ 37
Reporting of Significant Events ...................................................................... 38
Termination of Reporting Obligations ............................................................ 39
Dissemination Agent ....................................................................................... 39
Amendments ................................................................................................... 39
Additional Information .................................................................................... 40
Default ............................................................................................................. 40
Duties, Immunities and Liabilities of Dissemination Agent .......................... 40
Beneficiaries .................................................................................................... 41
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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
PROJECT DESCRIPTION
FORM OF NOTE
CERTIFICATE OF PARTICIPANT IN CONNECTION WITH LOAN
FINANCE PROJECT
REQUEST FOR ADVANCE
FORM OF PARTICI?ANT'S COUNSEL OPINION
NOTICE OF FAILURE TO FILE ANNUAL REPORT
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LOAN AGREEMENT
THIS LOAN AGREEMENT dated as of August 1, 2002 (the "Loan Agreement"), and
entered into by and between the Florida Intergovernmental Finance Commission (the "Issuer"),
an interlocal entity of the State of Florida created pursuant to the authority of Chapter 163,
Florida Statutes, as amended (the "Act"), and the City of Aventura, Florida (the "Participant"), a
political subdivision of the State of Florida.
WITNESSETH:
WHEREAS, the Issuer was duly created under and organized under Section 163.01(7) of
the Act, pursuant to an Interlocal Agreement dated as of January 23, 2002, between the City of
Coral Springs, Florida and the City of Palm Beach Gardens, Florida (the "Enabling
Agreement"); and
WHEREAS, the Issuer is authorized by the Act, among other things, to assist in
financing and refinancing the construction of public works and infrastructure and the acquisition
of necessary equipment (the "Projects") by participating governmental entities of the State of
Florida (the "State"); and
WHEREAS, pursuant to the Act, and in order to encourage financing such Projects for
the purpose of the construction, installation, rehabilitation and equipping of such facilities and
the acquisition of such necessary equipment by governmental entities ("Participants"), which the
Issuer believes to be in the public interest and for the benefit of the wealth, health and safety of
the citizens of the State, the Issuer is authorized to issue its revenue bonds and loan the proceeds
of the revenue bonds to such Participants (the "Program"); and
WHEREAS, in order to establish the Program to assist Participants in financing Projects,
the Issuer has agreed to authorize, issue, sell and deliver its Capital Revenue Bonds, 2002 Series
A (the "Bonds") pursuant to a Trust Indenture, dated as of August 1, 2002 (the "Indenture"),
between the Issuer and SunTrust Bank, as Trustee (the "Trustee"); and
WHEREAS, in order to effectuate the Program, the Issuer has heretofore authorized and
approved the issuance of the Bonds; and
WHEREAS, the Participant is authorized under the Act and other applicable law to enter
into this Loan Agreement as a Participant for the purposes set forth herein; and
WHEREAS, the Issuer and the Participant have determined that the provision of funds
by the Issuer to the Participant pursuant to the terms of this Loan Agreement and the Indenture,
will assist the Participant in financing or refinancing the construction of public works and
infrastructure and/or the acquisition of necessary equipment or in reimbursement of the
Participant for funds already spent in connection therewith, which will benefit the wealth, health
and safety of the citizens of the Participant and of the State; and
WHEREAS, the Participant, as beneficiary of the financing afforded by the Program,
will also bear the costs of the Program, in proportion to the Initial Amount (as defined herein) of
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its borrowing; provided, that the obligations of the Participant shall not be adversely affected by
the default of any other Participant borrowing funds under the Program;
NOW, THEREFORE, for and in consideration of the premises hereinafter contained
and as contained in the Indenture, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Unless the context or use indicates another meaning or
intent, the following words and terms as used in this Loan Agreement shall have the following
meanings, and any other words and terms which are defined in the Indenture, as hereinafter
defined, shall have the meanings as therein defined:
"Accountant" or "Accountants" means an independent certified public accountant or a
firm of independent certified public accountants selected by the Participant and as to whom the
Trustee and the Administrator make no reasonable objection.
"Acquisition Fund" means the account by that name established pursuant to Section
4.02 of the Indenture.
"Act" means Chapter 163, Florida Statutes, as amended and other constitutional and
statutory authority supplemental thereto.
"Administrator" or "Program Administrator" means Dunlap & Associates Group,
Inc., and any successor thereto named by the Issuer as Administrator.
"Authorized Officer" means the person performing the functions of the chief executive
officer or chief financial officer of the Participant.
"Bond" or "Bonds" means any one or more or all, as the case may be, of the Florida
Intergovernmental Finance Commission Capital Revenue Bonds, 2002 Series A.
"Bond Counsel" means Greenberg Traurig, P.A., or any law firm subsequently
designated by the Issuer having a national reputation in the field of municipal law whose
opinions are generally accepted by purchasers of municipal bonds and which is acceptable to the
Trustee.
"Bondholder" means the registered owner of any Bond.
"Bond Program" or "Program" means the bond program of the Issuer authorized by
resolution of the Issuer, as may be amended from time to time, pursuant to which costs of the
Projects of Participants will be financed, refinanced or reimbursed from the proceeds of the
Bonds.
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"Bond Purchase Agreement" means that certain agreement between the Issuer and the
Underwriter providing for the purchase by the Underwriter of the Bonds upon payment of the
purchase price and satisfaction of the conditions set forth therein for the initial issuance thereof.
"Business Day" means any day other than (a) a Saturday or Sunday, (b) a day on which
commercial banks in New York, New York, or the city or cities in which the designated
corporate trust operations office of the Trustee are authorized by law or executive order to close
or (c) a day on which the New York Stock Exchange is closed.
"Closing Date" means the date on which the Participant executes and delivers this Loan
Agreement and proceeds of the Bonds are transferred to the Participant's Reservation Account.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
"Confirmation" means a confirmation under a Swap Agreement for a notional amount
equal to the aggregate principal amount of Bonds subject to such Swap Agreement.
"Cost" means the cost of the acquisition of all equipment, lands, structures, rights-of-
way, franchises, easements and other property rights and interests acquired by the Issuer or a
Participant for a Project; the cost of demolishing, removing or relocating any buildings or
structures on lands so acquired, including the cost of acquiring any lands to which such buildings
or structures may be moved or relocated; the cost of all labor, materials, machinery and
equipment, financing charges, interest prior to and during construction and for such a limited
period after completion of such construction as may be approved by the Administrator with a
Favorable Opinion of Bond Counsel (not to exceed one year after completion of the Project), the
cost of engineering, financial and legal services, plans, specifications, studies, surveys, estimates
of costs and revenues, other expenses necessary or incident to determining the feasibility or
practicability of constructing a Project; administrative expenses; and such other expenses as may
be necessary or incident to the construction of a Project, the financing of such construction and
the placing of such Project in operation; provided, however, that such term shall not include such
items as fuel, supplies or other items which are customarily deemed to result in a current
operating charge.
"Costs of Issuance" means the costs of preparing, issuing, selling, delivering and closing
the Bonds, including all printing expenses in connection with the Indenture, the Loan
Agreements, the preliminary and final Official Statement, any Underwriter's fees not paid in the
form of Underwriter's discount, the fees and expenses of Bond Counsel, counsel to the Trustee,
counsel to the Underwriter, counsel to the Issuer, and other special counsel, any fees and
expenses of the financial advisor to the Issuer, any accounting expenses incurred in connection
with determining that the Bonds are not arbitrage bonds, the Trustee's initial fee for the Bonds,
the initial fee of the Issuer, if any, and the Administrator, the fee of accountants or consultants
for verification services to the Issuer, the costs of program origination and the costs of any
market demand study or survey, the fees and expenses of the Participant's counsel, financial
advisor and any special counsel to the Participant.
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"Costs of Issuance Fund" means the Costs of Issuance Fund established pursuant to
Section 4.02 of the Indenture.
"Counsel" means an attorney duly admitted to practice law before the highest court of
any state and, without limitation, may include legal counsel for either the Issuer or the
Participant.
"Default Rate" means a rate equal to the Prime Rate plus two percent (2%), which rate
shall change as and when such Prime Rate changes; however, such rate shall not exceed the
highest rate permitted by State law, nor be less than the Participant Rate.
"Disbursement" means any disbursement of funds to the Participant by the Trustee from
the Participant's Reservation Account established under the Indenture as provided in Article III
of this Loan Agreement.
"Event of Default" shall have the meaning ascribed to such term in Section I0.01 of this
Loan Agreement.
"Extraordinary Expenses" means the fees, costs, and expenses more fully defined and
described in Section 5.02(c) of this Loan Agreement.
"Funding Amount" means the Initial Amount, less the Costs of Issuance and less the
initial deposit to the Participant's 'Reserve Account, which is the amount made available by the
Issuer to or on behalf of the Participant by deposit to the Participant's Reservation Account.
"Indenture" means the Trust Indenture dated as of August 1, 2002, by and between the
Issuer and the Trustee.
"Initial Amount" means the aggregate principal amount stated as the Initial Amount in
Section 3.01 of this Loan Agreement, which shall be equal to an authorized denomination of
Bonds, the net proceeds of which, after payment of the Costs of Issuance and less the initial
deposit to the Participant's Reserve Account are made available by the Issuer to or on behalf of a
Participant by deposit to a Reservation Account for such Participant and which is subject to
adjustment as provided in Section 3.06 of this Loan Agreement.
"Indenture" means the Trust Indenture dated as of August 1, 2002, by and between the
Issuer and the Trustee.
"Insurance Policy" shall mean the financial guaranty insurance policy issued by the
Insurer insuring the payment when due of the principal of and interest on the Bonds.
"Insurer" shall mean
its successors and assigns.
stock insurance company,
"Issuer" means the Florida Intergovernmental Finance Commission.
\XMIA-SRV01\1397307v02\7/11/02XA6245.010300 4
"Loan" means the aggregate loan to the Participant by the Issuer from the Proceeds of
the Bonds in the Initial Amount, consisting of Loan A, Loan B and Loan C.
"Loan Agreement" or "Agreement" means this Loan Agreement, including the
Exhibits attached hereto and any amendments hereto.
"Loan Payment Period" shall mean (i) during any period when the Issuer is not
obligated to make variable rate payments under the Swap Agreement, the semiannual periods
ending on each Bond Payment Date and (ii) during the period when the Issuer is obligated to
make variable rate payments under a Swap Agreement, the period commencing on each Loan
Repayment Date and ending on the day immediately preceding the next Loan Repayment Date.
"Loan Repayment Date" means (a) during any period when the Issuer is not obligated
to make variable rate payments under a Swap Agreement, fifteen (15) days prior to the 1st day of
each month and (b) during any period when the Issuer is obligated to make variable rate
payments under a Swap Agreement, fifteen (15 ) days (or if such date is not a Business Day, then
the next preceding Business Day) prior to each Bond Payment Date.
"Loan Term" means the term provided for in Article IV of this Loan Agreement.
"Non-Ad Valorem Revenues" shall mean all revenues of the Participant derived fi-om
any source other than ad valorem taxation on real or personal property which are legally
available to make the payments required under this Loan Agreement.
"Participant" means the Participant under this Loan Agreement.
"Participant Notes" means the promissory notes consisting of a Participant Note for
each of Loan A, Loan B and Loan C, each in substantially the form attached to this Loan
Agreement as Exhibit B, made by the Participant and payable to the Issuer and providing for
Repayments, and any promissory note or notes issued in substitution or exchange therefor.
"Participant Notional Amount" means the portion of the notional amount set forth in
the Confirmation which is allocable to a Participant based on such Participant's Pro Rata Share.
"Participant Rate" means, at any point in time, the applicable rate or rotes of interest on
the Participant's Participant Notes. The Participant Rate for each Participant Note for each Loan
Payment Period shall be (i) during any period when the Issuer is not obligated to make variable
rate payments under a Swap Agreement or a Swap Counterparty has failed to carry out its
obligations, the fixed rate per annum equal to the interest rate on the Bonds, plus not to exceed 8
basis points (0.08%) per annum, such amount to be determined by the Administrator at the time
the Issuer is not obligated to make variable rate payments under a Swap Agreement, and (ii)
during the period when the Issuer is obligated to make variable rate payments under a Swap
Agreement, a variable rate per annum determined and reset weekly equal to the Weekly Rate,
calculated as provided in Section 5.04(d) of the Indenture, plus 8 basis points (0.08%) per
annum, plus, in the event that the Issuer enters into a Swap Agreement with respect to the Bonds,
any additional amount required by the Swap Counterparty; however, upon the conditions
specified in this Loan Agreement following the occurrence of an Event of Default under this
\kMIA-SRV01\ 1397307v02\7/11/02XA6245.010300 5
Loan Agreement, the interest rate thereon shall be increased to a rate per annum equal to the
Default Rate. Said Default Rate shall be based upon a 365/366 day year for the actual days
elapsed and shall change when and as the Prime Rate shall change. The Participant Rate shall
never exceed the Maximum Rate.
"Person" means (a) any individual, (b) any corporation, partnership, limited liability
company, joint venture, association, joint-stock company, business trust or unincorporated
organization or grouping of any such entities, in each case formed or organized under the laws of
the United States of America, any state thereof or the District of Columbia or (c) the United
States of America or any state thereof, or any other governmental entity of the United States of
America or of any state thereof or any agency, authority or other instrumentality of any of the
foregoing.
"Prepayment" means the payment in whole or in part of the principal amount of the
Loan and one or more of the Participant Notes as provided in Section 8.01 hereof.
"Prime Rate" shall mean the consensus New York Prime Rate, which term refers to the
fluctuating rate of interest charged to the largest and most credit-worthy industrial customers on
unsecured notes of ninety (90) days maturity as set by a consensus of New York banks, as such
rate is published in The Wall Street Journal, as the same is adjusted from time to time, effective
as of the date of publication of any change therein.
"Project" means any qualified capital project or projects of the Participant, the financing
of which constitutes a "project", as such term is defined in Section 166.01(8), Florida Statutes, as
amended (including, without limitation, the construction of public works and infrastructure and
acquisition of necessary equipment), all or a portion of the Costs of which are financed or
refinanced by the Issuer pursuant to the Indenture and a Loan Agreement.
"Pro Rata Share" means a fraction the numerator of which is the Participant's Initial
Amount as of the date of calculation and the denominator of which is the sum of the Initial
Amounts as of the date of calculation of all Loans from the Program to Participants.
"Reimbursed Expenditures" means amounts, if any, used from proceeds and
investment earnings thereon to reimburse a Participant for an expenditure paid by the Participant
prior to the Closing Date.
"Reimbursement Allocation" means the act of allocating Reimbursed Expenditures as
described herein.
"Related Documents" means this Loan Agreement, the Participant Notes and the Tax
Agreement.
"Repayments" means the scheduled payments of principal and interest on the Loan and
any other amounts payable by the Participant pursuant to the provisions of this Loan Agreement
and the Participant Notes.
\~MIA-$RV01 \1397307v02\7/11/02\46245.010300 6
"Request for Advance" means a written request by an Authorized Officer of the
Participant for an Advance under Section 3.02 of this Loan Agreement in the form of Exhibit D
hereto stating the amount of the Advance requested, identifying the Project or otherwise
describing the intended use of the moneys to be advanced.
"Reservation Account" means an account by that name for the Participant held by the
Trustee and established pursuant to Section 4.02 of the Indenture.
"Resolution" means that certain Resolution, duly adopted by the governing body of the
Participant on July 18, 2002, authorizing this Loan Agreement and the Participant Notes.
"State" means the State of Florida.
"Swap Agreement" means an agreement acceptable to the Participant and Moody's,
between the Issuer and the Swap Counterparty, together with the Confirmation thereunder,
pursuant to which the Issuer is entitled to receive a fixed interest rate payment on a notional
amount equal to all or a portion of the principal amount of the Bonds on each Payment Date at
rates equal to the rates on such Bonds, and is obligated to pay to the Swap Counterparty the
Swap Payment.
"Swap Counterparty' means the provider of the Swap Agreement.
"Tax Agreement" means the Arbitrage Certificate of the Issuer dated as of the date of
delivery of the Bonds, and the Arbitrage Rebate Agreement by and among the Participant, the
Issuer and the Trustee, dated as of August 1, 2002, as the same may be amended from time to
time in accordance with their respective terms.
"Trustee" means SunTrust Bank, a banking corporation organized under the laws of the
State of Georgia, as trustee under the Indenture, or any successor thereto under the Indenture.
"Weekly Rate" means the TBMA Index established weekly for each Weekly Rate
Period in accordance with Section 5.04(d) of the Indenture.
"Weekly Rate Period" means for any period in which the Participant Rate is the variable
rate of interest based on the Weekly Rate as described in clause (ii) of the first sentence of the
definition of "Participant Rate", the period commencing on Thursday (or if the date of
determination is not a Wednesday or such Thursday is not a Business Day, on the next following
Business Day) and ending on the next succeeding date of determination, or if earlier, on the last
day of the Weekly Rate Period.
\WiIA-S RV01\1397307v02\7/i 1/02~A6245.010300 7
ARTICLE II
REPRESENTATIONS AND COVENANTS OF BORROWER
Section 2.01 Representations of the Participant. The Participant represents for thc
benefit of the Issuer, the Trustee and the Bondholders as follows:
(a) Organization and AuthoriW.
(1) The Participant is a municipality, duly created and validly existing in good
standing pursuant to the constitution and statutes of the State.
(2) The Participant has full legal right and authority and has taken all action
and obtained all necessary approvals required as of the date hereof to enter into this Loan
Agreement and the Related Documents, to adopt the Resolution and issue the Participant Notes,
to undertake and complete the Project, to finance the Project in the manner contemplated herein
and to carry out and consummate all transactions contemplated by this Loan Agreement.
(3) The Resolution approving the Related Documents and authorizing their
execution and delivery on behalf of the Participant, authorizing the issuance, sale and delivery of
the Participant Notes, and authorizing the Participant to undertake and complete the Project has
been duly and lawfully adopted at a meeting or meetings duly called, noticed, and held at which
quorums were present and acting throughout and such meeting or meetings were duly called
pursuant to necessary public notice and held in accordance with the sunshine law and any other
applicable laws.
(4) The Related Documents have each been duly authorized, executed and
delivered by an Authorized Officer of the Participant; and this Loan Agreement, the Resolution
and the Participant Notes constitute the legal, valid and binding obligations of the Participant
enfomeable in accordance with their respective terms subject to future proceedings under
municipal bankruptcy, reorganization, debt arrangements, insolvency, moratorium, or other laws
of general application or principles of equity relating to or affecting the enforcement of creditors'
rights.
(5) The Participant is duly authorized and empowered to issue the Participant
Notes; and the Participant Notes, the payment of principal and interest thereon, and all other
amounts payable hereunder or under the Participant Notes, are valid and enforceable limited
obligations of the Participant, payable solely from the Non-Ad Valorem Revenues in the manner
hereinafter provided.
(b) Full Disclosure. There is no fact known to the Participant that the Participant has
not specifically disclosed in writing to the Issuer or the Administrator that materially and
adversely affects or (so far as the Participant can now foresee), except for pending or proposed
legislation or regulations that are a matter of general public information affecting Persons
generally, that will materially and adversely affect the properties, activities, prospects or
condition (financial or otherwise) of the Participant or the ability of the Participant to perform its
obligations under this Loan Agreement and the Related Documents.
The current financial statements of the Participant, including balance sheets and the other
statements referred to in Section 2.02(g) of this Loan Agreement, and any other written statement
furnished by the Participant to the Issuer (or the Administrator acting on the Issuer's behalf) do
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements contained therein or herein not misleading. There is no fact known to the
Participant which the Participant has not disclosed to the Issuer (or the Administrator acting on
the Issuer's behalf) in writing which materially affects adversely or is likely to materially affect
adversely the financial condition of the Participant, its ability to own and operate its property in
the manner such property is currently operated or its ability to budget and appropriate for, and
make the payments on, the Participant Notes and under this Loan Agreement when and as the
same become due and payable.
(c) Pending Litigation. There is no litigation or legal or governmental action,
inquiry, investigation or proceedings pending, or to the knowledge of the Participant threatened,
against or affecting the Participant, except as specifically described in writing to the Issuer, in
any court or before any governmental authority or arbitration board or tribunal that, if adversely
determined, would materially and adversely affect the properties, prospects or condition
(financial or otherwise) of the Participant, or the corporate existence or powers or ability of the
Participant to enter into and perform its obligations under the Related Documents.
(d) No Conflict With Laws and Agreements. The execution and delivery of the
Related Documents, the performance by the Participant of its obligations hereunder and
thereunder, the consummation of the transactions provided for in the Related Documents,
compliance by the Participant with the provisions of the Related Documents and the undertaking
and completion of the Participant's Project do not and will not conflict with or result in any
material breach of any of the terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon, any property or
assets of the Participant pursuant to any indenture, loan agreement or other agreement or
instrument (other than this Loan Agreement) or corporate restriction to which the Participant is a
party or by which the Participant, its properties or operations may be bound or with the giving of
notice or the passage of time or both would so constitute a breach or default or so result in the
creation or imposition of any lien, charge or encumbrance, which breach, default, lien, charge or
encumbrance could materially and adversely affect the validity or the enforceability of the
Participant Notes or this Loan Agreement or the Participant's ability to perform fully its
obligations under the Participant Notes or this Loan Agreement; nor will such action result in
any violation of the provisions of or any laws, ordinances, governmental rules or regulations or
court or other governmental orders to which the Participant, its properties or operations are
subject.
(e) No Defaults. No event has occurred and no condition exists that constitutes an
Event of Default or which, upon the execution and delivery of this Loan Agreement and the
Participant Notes and/or the passage of time or giving of notice or both, would constitute an
Event of Default. The Participant is not in violation in any material respect, and has not received
notice of any claimed material violation (except such violations as (i) heretofore have been
specifically disclosed in writing to, and have been in writing specifically consented to by, the
Issuer or the Administrator on its behalf) and (ii) do not, and shall not, have any material adverse
\WiI~.-SRV01\1397307v02\7/11/02\46245.010300 9
effect on the transactions herein contemplated and the compliance by the Participant with the
terms hereof or the Participant Notes), of any terms of any agreement, or other insmmaent to
which it is a party or by which it, its properties or operations may be bound.
(f) Governmental Consent. The Participant has obtained, or will obtain prior to any
Advance relating thereto, all approvals required by any govermnental body or officer for the
adoption of the Resolution, the issuance of the Participant Notes and the making and
performance by the Participant of its obligations under this Loan Agreement or for the
undertaking or completion of the Project, the financing thereof or the reimbursement of the
Participant therefor, or the use of such Project. The financing of the Project as contemplated by
this Loan Agreement and the Resolution is consistent with the terms of any such governmental
consent, order or any action applicable thereto. No consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority that has not been obtained is
required on the part of the Participant as a condition to the execution and delivery of the
Participant Notes or this Loan Agreement, or the undertaking or completion of the Participant's
Project, the adoption of the Resolution or the consummation of any transaction herein
contemplated. No consent, approval or authorization of, or filing, registration or qualification
with, any governmental authority is required on the part of the Participant as a condition to the
execution and delivery of or the performance of its obligations under this Loan Agreement or to
the issuance of the Participant Note.
(g) Compliance With Law. The Participant is in compliance with all laws,
ordinances,govemmental rules and regulations to which it is subject, the failure to comply with
which would materially adversely affect the ability of the Participant to conduct its activities or
the condition (financial or otherwise) of the Participant.
(h) Use of Proceeds. Except to the extent that the Participant shall deliver to the
Issuer, the Trustee and the Administrator a Favorable Opinion of Bond Counsel with respect to
the failure of the Participant to comply with any of the agreements on its part contained in the
following paragraphs, the Participant represents and agrees that it will apply the proceeds of the
Loan solely for the financing or refinancing, or to reimburse itself, for the Costs of the Project,
all as provided in the Resolution and the Tax Agreement. The Participant will not use any of the
proceeds of the Loan in any manner that would cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148 of the Code and the regulations promulgated thereunder and will
take such actions as are necessary and within its power to assure that the interest on the Bonds
will not be subject to federal income taxation by virtue of the Bonds being arbitrage bonds. In
this regard, the Participant will follow the written directions of Bond Counsel if, in the opinion of
such Bond Counsel, such directions are needed to maintain the tax-exempt status of the Bonds.
The Participant will apply the Funding Amount solely for the financing or refinancing of
or to reimburse itself for the Cost of the Project as set forth in Exhibit A hereto. With the
consent of the Administrator, the Participant may amend Exhibit A to provide for the financing
or refinancing of different or additional Projects if the Participant, atSer the date hereof, deems it
not to be in the interest of the Participant to acquire, construct, improve, finance or refinance any
Project or the Cost of the Project proves to be less than the amounts listed on such Exhibit A;
provided, however, the Participant shall deliver to the Issuer, the Trustee and the Administrator a
\WiIA-SRV01\1397307v02\7/11/02\46245.010300 1 0
Favorable Opinion of Bond Counsel with respect to the financing or refinancing of different or
additional Projects.
(i) Project. The Project and the financing or refinancing thereof pursuant to the
terms hereof constitutes a "project" as such term is defined in Section 166.01(8), Florida
Statutes, as amended.
(j) Existing Debt. The Participant previously has incurred and has outstanding
certain indebtedness (the "Existing Indebtedness") pursuant to that certain Loan Agreement
dated as of November I5, 2000, between the Participant and the Bank of America, N.A. and that
certain Loan Agreement dated as of April 1, 1999, between the Participant and the Florida
Municipal Loan Council (collectively, the "Existing Loan Agreements"). Pursuant to the
Existing Loan Agreements, the Participant has covenanted to budget and appropriate legally
available Non-Ad Valorem Revenues each year in amounts sufficient to pay debt service on the
Existing Indebtedness, all in accordance with the terms and provisions of the Existing Loan
Agreements.
Section 2.02 Covenants of Participant
(a) Maintenance and Use of the Project. The Participant will maintain the Project in
good condition and make all necessary renewals, replacements, additions, betterments and
improvements thereto.
(b) Investment Agreement. The Participant acknowledges and agrees that (i) the
Investment Agreements were entered into at the Participant's direction and for the Participant's
benefit, (ii) the Participant will pay any penalties, costs, expenses, damages, losses or other
amounts in excess of the investment amounts due to an Investment Agreement provider in
accordance with such provider's Investment Agreement and (iii) the Participant will pay and will
protect, indemnify and save the Issuer and the Trustee, each member, officer, commissioner,
employee, representative, agent and counsel of the Issuer and the Trustee, and each other person,
if any, who has the po,;ver, directly or indirectly, to direct or cause the direction of the
management and policies of the Issuer and the Trustee, harmless fi.om and against, any and all
liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits,
claims and judgments of whatsoever kind and nature (except with respect to the Trustee and its
indemnified persons, other than as a result of the Trustee's negligence or willful misconduct)
arising under or resulting fi.om the Investment Agreements.
(c) Performance of this Loan Agreement. The Participant agrees (i) to cooperate with
the Issuer in the performance of the respective obligations of such Participant and the Issuer
under this Loan Agreement; (ii) subject to the provisions of this Loan Agreement, to collect
currently authorized governmental charges and other revenue sufficient to enable the Participant
to pay when due the amounts payable under, and sufficient to fulfill the terms and provisions of,
this Loan Agreement; and (iii) to deliver to the Issuer and any designee any report or certificate
required to comply or to evidence compliance with requirements imposed hereby.
\~vlIA-SRV01\1397307v02\7/11/02\46245.010300
(d) Inspections. The Participant shall permit the Issuer, the Trustee and the
Admi .nistrator and any party designated by any of such parties to examine, visit and inspect, at
any and all reasonable times, the Project, and to inspect and make copies of any accounts, books
and records, including (without limitation) its records regarding receipts, disbursements,
contracts, investments and any other matters relating thereto (other than documents the
confidentiality of which is protected by law or professional codes of ethics) and to its financial
standing, and shall supply such reports and information as the Issuer, the Trustee or the
Administrator may reasonably require in connection therewith.
(e) Cost of Proiect. The Participant certifies that the Cost of the Project is a
reasonable and accurate estimation and upon direction of the Issuer will supply the same with a
certificate from an' independent Person acceptable to the Issuer stating that such Cost of the
Project is a reasonable and accurate estimation.
(f) Project. Moneys which will be made available from this Loan Agreement and
other sources will be sufficient to complete and pay for the Project or the refinancing thereof.
(g) Delivery of Information. The Participant will deliver to the Trustee, the
Administrator, the Insurer, the Rating Agency and the Swap Counterparty, if any, as soon as
available and in any event within 180 days after the end of the Participant's fiscal year (with
respect to the Swap Counterparty, within 180 days after the end of the Participant's fiscal year in
which the Swap Agreement is entered into), an audited statement of the consolidated fmancial
position of the Participant as of the end of such fiscal year and the related statements of revenues
and expenses, fund balances and changes in fund balances for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all reported on by
licensed, independent certified public accountants, whose report shall state that such financial
statements present fairly the financial position as of the end of such fiscal year and the results of
operations and changes in financial position for such fiscal year.
(h) Information. The Participant shall notify the Trustee, the Administrator, the
Rating Agency and the Swap Counterparty, if any, of any materially adverse event affecting the
Participant's credit rating or its ability to repay the Loan. The Participant's Director of Finance
shall, at the reasonable request of the Administrator and the Swap Counterparty, if any, discuss
the Participant's financial matters with the Administrator and the Swap Counterparty and provide
copies of any documents furnished by the Participant to any credit rating service.
(i) Indemnity. Without waiver of any right the Participant may have under the laws
of the State relating to sovereign immunity and without extending the Participant's liability
beyond the limits established in Section 768.28, Florida Statutes, the Participant will pay and
will protect, indemnify and save the Issuer and the Trustee, each member, officer, commissioner,
employee, representative, agent and counsel of the Issuer and the Trustee, and each other person,
if any, who has the power, directly or indirectly, to direct or cause the direction of the
management and policies of the Issuer and the Trustee, harmless from and against, any and ali
liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits,
claims and judgments of whatsoever kind and nature (including those in any manner directly or
indirectly arising or resulting from, out of or in connection with any injury to, or death of, any
\W!IA-SRV01\1397307v02\7/11/02~46245.010300 12
person or any damage to property resulting fi:om the use or operation of the Project) in any
manner directly or indirectly (in any case, whether or not by way of the Participant, its
successors and assigns, or directly or indirectly through the agents, contractors, employees,
licenses or otherwise of the Participant or its successor and assigns) arising or resulting fi.om, out
of or in connection with the Project or the breach or violation of any agreement, covenant,
representation or warranty of the Participant set forth in this Loan Agreement or the Participant
Notes or any document delivered pursuant hereto or thereto or in connection herewith or
therewith, except, in the case of the Trustee and its related persons, any liabihties, losses,
damages, costs and expenses due to the negligence of any such person.
An indemnified person shall promptly notify the Participant in writing of any claim or
action brought against it, in respect of which indemnity may be sought against the Participant,
setting forth, to the extent reasonably practicable under the circumstances, the particulars of such
claim or action, and the Participant will promptly assume the defense thereof, including the
employment of competent counsel satisfactory to such indemnified person and the payment of all
expenses.
An indemnified person may employ separate counsel with respect to any such claim or
action and participate in the defense thereof, but, except as provided herein, the fees and
expenses of such separate counsel shall not be payable by the Participant unless such
employment has been specifically authorized by the Participant or unless such employment was
occasioned by conflicts of interest between and among indemnified persons and/or the
Participant. If the Participant shall fail to assume the defense of any action as required
hereunder, or, within a reasonable time after commencement of such action, to retain counsel
satisfactory to the indemnified person, the fees and expenses of counsel to such indemnified
person hereunder shall be paid by the Participant.
The provisions of this paragraph (i) shall survive the termination of this Loan Agreement
and the payment in full of the Participant Note.
(j) Insurance and Condemnation Proceeds. The Participant shall not make any
disposition nor direct the disposition of insurance or condemnation payments with respect to the
Project without the written consent of the Trustee.
(k) Location of Project. The Project will be used or based within the jurisdiction of
the Participant.
(1) Further Assurance. The Participant shall execute and deliver to the Trustee and
the Issuer all such documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Trustee or the Issuer to enable the Trustee, the Swap
Counterparty, if any, or the Issuer to exercise and enforce its respective rights under this Loan
Agreement and to realize thereon, and record and file and rerecord and refile all such docmnents
and instruments, at such time or times, in such manner and at such place, or places, all as may be
necessary or required by the Trustee, the Swap Counterparty, if any, or the Issuer to validate,
preserve and protect the position of the Trustee, the Swap Counterparty, if any, or the Issuer
\~vI1A-SRVO l \1397 307v02\7 /l I/02~462 45.010300 13
under this Loan Agreement; provided that nothing herein shall be deemed to authorize, grant or
create any encumbrance or lien upon any property or assets of the Participant.
(m) Keeping of Records and Books of Account. The Participant shall keep or cause to
be kept proper records and books of account, in which correct and complete entries will be made
in accordance with generally accepted accounting principles, consistently applied (except for
changes concurred in by the Participant's independent auditors) reflecting all of its financial
transactions.
(n) Compliance With Laws, Etc. The Participant shall comply with the requirements
of all applicable laws, the terms of all grants, rules, regulations and orders of any governmental
authority noncompliance with which would, singly or in the aggregate, materially and adversely
affect its business, properties, earnings, prospects or credit, or the enforceability of this Loan
Agreement or the Participant Notes unless the same shall be contested by it in good faith and by
appropriate proceedings which shall operate to stay the enforcement thereof.
(o) Tax-Exempt Status of Bonds and the Participant Notes. The Issuer and the
Participant understand that it is the intention hereof that the interest on the Bonds and the
Participant Notes be excludable from the gross income of the holders thereof for federal income
tax purposes. In furtherance thereof, the Participant agrees that it will take all action within its
control which is necessary in order for the interest on the Bonds and the Participant Notes to
remain excludable from federal income taxation and shall refrain from taking any action which
results in such interest becoming so taxable.
The Participant covenants that neither it nor any related person, as contemplated by
Section 1.148-1 Co) of the U.S. Treasury Regulations under the Code, shall, pursuant to an
arrangement, formal or informal, purchase obligations of the Issuer in an amount related to the
amount of the Loan or the Participant Notes delivered in connection with the transaction
contemplated hereby.
The Participant further covenants that it will record or file or cause to be recorded or filed
in such manner and in such places whatever documents as may be required by law to be recorded
or filed in order to protect fully the security of the holders and owners of the Bonds and, if
applicable, the tax-exempt status of such Bonds and the Participant Note, including, but not
limited to, the filing of all reports upon written request of the Issuer as may be required from
time to time pursuant to the Code.
The Participant further covenants that it will not take any action or fail to take any action
with respect to the investment of the proceeds of any Bonds or the Participant Note, with respect
to the payments derived from the Bonds, the Participant Notes or hereunder or with respect to the
purchase of other Issuer obligations, which action or failure to act may cause the Bonds or the
Participant Notes to be "arbitrage bonds" within the meaning of such term as used in Section 148
of the Code and the regulations promulgated thereunder.
(p) Information Reports. The Participant covenants to provide the Issuer with all
material and information necessary to enable the Issuer to file all reports required under Section
\WiIA-SRVOl\I397307v02\7/I1/02~6245.010300 14
103 of the Code (including the applicable Form 8038-G) to assure that interest paid by the Issuer
on the Bonds and by the Participant on the Participant Notes shall be excludable from all federal
income taxation. The Participant further covenants to provide the Rebate Analyst with all
material and information necessary to enable the Rebate Analyst to determine the Annual Rebate
Estimate in accordance with Section 4.07(b) of the Indenture.
(q) Tax Agreement. The Participant shall comply in all respects with the Tax
Agreement, and shall take no action except as expressly permitted herein, which would cause the
representations contained therein not to be tree and correct on a continuing basis. The
Participant covenants that it shall not take any action or inaction, nor fail to take any action or
permit any action to be taken, if any such action or inaction would adversely affect the exclusion
from gross income for federal income tax purposes of the interest on the Bonds or the Participant
Notes under Section 103 of the Code.
(r) Ratings Maintenance. The Participant shall take any action reasonably required
by the Rating Agency to maintain the ratings on the Bonds.
Section 2.03 Tax Covenants and Representations of the Participant. Unless the
Participant shall furnish the Issuer and the Trustee a Favorable Opinion of Bond Counsel to the
effect that such action will not adversely effect the excludability of interest on the Bonds for
federal income tax purposes, the Participant shall not take any of the following actions:
(a) The Participant will not identify the Swap Agreement, if any, as a hedge in its
books and records (e.g., a "qualified hedge") pursuant to Treas. Reg. Section 1.148-4(h)(2)(viii).
(b) No more than five percent (5%) of the Loan proceeds, and the investment
earnings thereon, will be used, directly or indirectly, to make or finance loans to any persons
other than state or local government units. Moreover, at least ninety-five percent (95%) of the
net proceeds derived from the Participant Notes will be applied to the Project used for the
governmental purposes of the Participant.
(c) No users of the Project other than state or local governmental units will use more
than five percent (5%) of the Project in the aggregate, on any basis other than the same basis as
the general public; and no person other than a state or local governmental unit will be the user of
more than five percent (5%) of the Project, in the aggregate, as a result of (i) ownership, (ii)
actual or beneficial use pursuant to a lease or a management, service, incentive payment or
output contract, or (iii) any other similar arrangement, agreement or understanding, whether
written or oral.
(d) For purposes of the foregoing, any subsequent actions are subject to compliance
with the remedial actions rules of Treas. Reg. Section 1.141-12.
(e) The amounts repaid to the Participant's Redemption Account or to the Principal
Account of the Bond Fund will not be derived from proceeds of the sale of the Bonds or
borrowings made by the Participant and such amounts will be derived from tax collections and
other governmental receipts, except with respect to any refunding or prepayment permitted under
the arbitrage regulations.
(f) During the term of the Participant Notes, the Project will be used by the
Participant only for the purpose of performing one or more governmental or proprietary
functions of the Participant consistent with the permissible scope of the Participants authority.
(g) The use of the Project is essential to the Participant's proper, efficient, and
economic operation.
(h) The Participant has an immediate need for, and expects to make immediate use of,
all of the Project, which need is not temporary or expected to diminish in the foreseeable future.
(i) There are no circumstances presently affecting the Participant that could
reasonably be expected to alter its foreseeable need for the Project or adversely affect its ability
or willingness to budget and appropriate funds for the payment of amounts due under the
Participant Notes.
(j) The inclusion in the Participant Notes of the Participant's right to prepay is not
indicative of any present purpose or design on the part of the Participant to prepay or redeem the
Participant Notes and acquire additional property or services performing functions similar to the
Project.
(k) The Participant will not take or omit to take any action which will adversely affect
the excludability from gross income of the interest component of the Participant Note payments
under the Code, including any action or omission which will cause the Bonds or the Participant
Notes to be an "arbitrage bond" within the meaning of Section 148 of the Code.
(1) The Participant reasonably expects that the average maturity of the Participant
Notes will not exceed one hundred and twenty percent (120%) of the average reasonably
expected economic life of the Project pursuant to the Loan Agreement based on when the Project
is in fact acquired.
(m) The Participant reasonably believes that the term of the Participant Notes is
reasonably necessary to accomplish the governmental purposes of the Participant by providing
the Participant the cost of financing or currently refinancing the Project during the term of the
Participant Notes on terms and conditions that are beneficial to the Participant, when compared
to other potential means of financing, leasing, or otherwise using the Project.
(n) The Participant intends to pay the Participant Notes pursuant to the Loan
Agreement.
(o) The estimated total costs of acquiring the Project and paying related expenses of
executing and delivering the Participant Notes will be an amount not less than the aggregate
principal component of the Participant Notes, together with earnings estimated to be received
fi-om investment of any fund monies pursuant to the Indenture until the Project is acquired.
\~VlIA-SRV01\1397307v02\7/11/02\46245.010300 ! 6
(p) The acquisition of the Project and the allocation of the net sale proceeds of the
Loan Agreement to expenditures will commence and will proceed with due diligence to
completion.
(q) At least eighty-five percent (85%) of the net proceeds of the Loan Agreement are
reasonably expected to be allocated to expenditures on the Project within three (3) years of the
date on which moneys are advanced to the Participant.
(r) The Participant does not reasonably expect that any of the Project will be sold,
encumbered, or otherwise disposed of, in whole or in part, except such parts or portion thereof
that may be disposed of due to normal wear, obsolescence, or depreciation, prior to the maturity
of the Participant Notes.
(s) Amounts disbursed from the Participant's Reservation Account will be expended
solely to pay or reimburse the costs of the acquisition of the Project and related costs.
(t) The Participant does not expect to create or establish any sinking fund (other than
as provided in the Indenture) or similar fund with respect to the Participant Notes with respect to
which there can be any assurance that moneys will be available therein to pay the Loan in the
event that the Participant encounters financial difficulty.
(u) No amounts in the accounts or funds of the Participant are reserved or pledged for
Participant Note payments, and it is not expected that any accounts or funds will be used, nor is
there any reasonable assurance that any portion of any accounts or funds will be available for
Participant Note payments if the Participant encounters financial difficulty.
(v) No security, as defined in Sections 165(g)(2)(A) and (B) of the Code, any other
obligations (other than a tax-exempt bond), any annuity contract, or any other property that is
held principally as a passive vehicle for the production of income will be pledged as security for
the payment of the Participant Notes.
(w) None of the proceeds of the Loan Agreement is expected to be used directly or
indirectly to replace funds which were or are to 'be used directly or indirectly to acquire
securities, obligations (other than tax-exempt bonds), any annuity contract, or other property that
is held principally as a passive vekicle for the production of income which are expected to
produce a yield which is materially higher than the yield produced by the Loan Agreement.
(x) None of the proceeds of the Loan Agreement will be allocated to reimburse the
Participant for any expenditures (i) that were originally paid before the date of issuance of the
Bonds from another source, unless the representations set forth in Section 2.04 are true and
correct, or (ii) that were incurred before the period permitted by the arbitrage regulations.
(y) The Participant will not use the proceeds of any Loan as a tax anticipation note,
bond anticipation note or revenue anticipation note unless the Participant certifies that it has
complied with the capital deficit rules of the arbitrage regulations and has received a Favorable
Opinion of Bond Counsel.
\~vlIA-SRV01 \1397307v02\7/11/02\46245.010300 17
Section 2.04 Reimbursement Representations. Under certain circumstances
described below, a Participant may be entitled to use proceeds of the Loan to reimburse the
Participant for an expenditure paid prior to the date of issuance of the Bonds.
If the Participant wishes to use proceeds of the Loan to obtain reimbursement for an
expenditure paid prior to the Closing Date hereof, the Participant will make a Reimbursement
Allocation to allocate a portion of the Loan proceeds and investment earnings thereon to the
Reimbursed Expenditures incurred in connection with the Project and will, after such
Reimbursement Allocation, treat such proceeds as being spent. In support of the Reimbursement
Allocation, the Participant hereby represents as follows:
(a) Certain Reimbursed Expenditures (the "Preliminary Expenditures") relate to
architectural; engineering, surveying, soil testing, and similar costs that were incurred prior to
commencement of the acquisition, construction, or rehabilitation of the Project and do not
include any costs related to land acquisition, site preparation and similar costs incident to
commencement of construction.
(b) The mount of Preliminary Expenditures does not exceed twenty percent (20%)
of the Loan proceeds being used to finance the portion of the Project with respect to which the
Preliminary Expenditures were incurred.
(c) Except as described in (g) below, in the case of non-Preliminary Expenditures, the
Participant has adopted an official intent (within the meaning of Treasury Regulations Section
1.150-2(e)) to reimburse such expenditures not later than sixty (60) days after the date such
expenditures were paid. At the time the official intent described above was declared, the
Participant reasonably expected to reimburse the non-Preliminary Expenditures related thereto
with the proceeds of a future borrowing.
(d) The Participant will allocate Loan proceeds in an amount to reimburse the
Reimbursed Expenditures. Except as described in (g) below, and except in the case of
Preliminary Expenditures, the Participant will be advanced the Loan proceeds fi:om the
Reservation Account within eighteen (18) months after the later of (i) the first date on which a
Reimbursed Expenditure was paid or (ii) the first date on which the property relating to a
Reimbursed Expenditure was placed-in-service or abandoned, but in no event more than three
years after the first date on which a Reimbursed Expenditure was paid. If the Participant
qualifies for the small issuer exception to rebate, except as described in (g) below, and except in
the case of Preliminary Expenditures, the Participant will be advanced the Loan proceeds fi:om
the Reservation Account within three years after the later of (i) the first date on which a
Reimbursed Expenditure was paid or (ii) the first date on which the property relating to a
Reimbursed Expenditure was Placed-in-Service or abandoned.
(e)
Issuance.
Ail Reimbursed Expenditures will represent capital expenditures or Costs of
(f') No Reimbursement Allocation will employ any action that results in the Issuer or
any Participant issuing more bonds, issuing bonds earlier, or allowing bonds to remain
outstanding longer than is reasonably necessary to accomplish the relevant governmental
purposes, based upon all of the facts and circumstances.
(g) The restrictions in (c) and (d) above do not apply to (i) Costs of Issuance or (ii) an
amount not in excess of $100,000.
ARTICLE III
THE LOAN
Section 3.01 The Loan; Participant Notes. The Issuer hereby agrees to make a Loan
to the Participant in the Initial Amount equal to $[INITIAL AMOUNT]. A portion of the Initial
Amount will be deposited into the Participant's Reservation Account upon the issuance of the
Bonds for the purpose of making Disbursements from time to time to the Participant. The
Participant agrees to requisition for and receive Disbursements from time to time and as evidence
of such Loan the Participant shal! issue and deliver the Participant Notes to the Issuer for the full
amount of the Initial Amount. The Participant further agrees to repay such Loan by making all
payments due in respect of the Participant Notes, together with all other amounts due under this
Loan Agreement and the Indenture.
The acceptance of the Participant Notes by the holder from time to time thereof shall be
deemed an agreement between the Participant and such holder that the obligation to pay such
Participant Notes and the other amounts payable in connection herewith shall not constitute a
lien upon any property or funds of the Participant, but shall be subject to payment from the Non-
Ad Valorem Revenues, in the manner herein provided.
Section 3.02 Funding the Loan. The Trustee, as the agent of the Issuer, on the Closing
Date shall transfer a portion of the Initial Amount from amounts on deposit in the Acquisition
Fund to a Reservation Account for the Participant in accordance with the Indenture. Participant
acknowledges that the amount to be deposited in the Participant's Reservation Account (net of
$[COSTS OF ISSUANCE], the Costs of Issuance, and of $[RESERVE AMOUNT], the initial
deposit to the Participant's Reserve Account) shall be $[FUNDING AMOUNT], the Funding
Amount. The Funding Amount in the Participant's Reservation Account will be made available
by the Issuer to the Participant for a period not to exceed sixty (60) months to fund
Disbursements from time to time as directed by the Participant to finance the Cost of Projects.
Amounts on deposit in such Reservation Account shall belong to and be held for the benefit of
the Participant, be subject to a first and prior pledge securing the Participant Notes and this Loan
Agreement, and shall be disbursed in whole or in part from time to time upon receipt by the
Trustee of a Request for Advance in the form of Exhibit D hereto. Each Request for Advance
shall be for a minimum amount of $100,000. The Participant shall deliver a copy of each
Request for Advance submitted to the Trustee to the Administrator on the date the request is
submitted to the Trustee. Other than amounts in the Participant's Reservation Account or
Repayments or Prepayments of principal by the Participant on deposit in the Principal Account
of the Bond Fund or in the Participant's Redemption Fund, all as provided in the Indenture, the
Participant shall have no legal or equitable interest in the proceeds of the Bonds or in any
amounts from time to time on deposit in the funds and accounts created by the Indenture. The
\~iIA-SRV01\1397307v02\7/11/02~46245.010300 19
proceeds provided to the Participant shall be used strictly in accordance with Section 2.01(h)
hereof.
Section 3.03 No Warranty Of Sufficiency. None of the Issuer, the Trustee, or the
Administrator, in any way warrants or represents that the Initial Amount will be sufficient to
finance the entire Cost of the Project. In the event the proceeds of the Loan are insufficient to
defray the entire Costs of the Project, the Participant shall nevertheless pay all such Costs, from
such sources as may be available to the Participant; and the Participant shall not be entitled to
any abatement, reduction, diminution or postponement of any amounts due hereunder or under
the Participant Notes.
Section 3.04 Closing Submissions. The obligation of the Issuer to deposit the Funding
Amount in the Participant's Reservation Account established for the Participant is expressly
subject to the receipt by the Administrator and the Trustee of the documents set forth in Section
4.03 hereof.
Section 3.05 Evidence Of Loan. The Participant's obligation to repay the Initial
Amount due under this Loan Agreement and the Indenture, together with interest thereon at the
Participant Rate shall be evidenced by the Participant Notes; and the Participant's obligation to
repay the other payments required under this Loan Agreement shall be evidenced by this Loan
Agreement.
Section 3.06 Adjustments to Initial Amount.
(a) Notwithstanding anything to the contrary in this Loan Agreement or in the
Indenture, the Participant's Initial Amount shall not be reduced or changed on account of any
Repayment, Prepayment or deemed Prepayment of any portion of the principal amount of the
Participant's Loan until such time, and only to the extent, that such Repayment has been applied
to pay, discharge and redeem or defease an equal principal amount of Bonds, and the notional
amount of the Swap Agreement, if any, then in effect has been reduced by the amount of such
payment and discharge or defeasance of Bond principal.
(b) Unless and until an adjustment to the Participant's Initial Amount has been made
in accordance with Subsection 3.06(a) above, (i) the amount of any Repayment or Prepayment
on deposit in the Participant's Redemption Account or the Principal Account of the Bond Fund
shall continue to belong to the Participant, subject to application thereof as provided in the
Indenture, and (ii) the Participant shall continue to be obligated to make Repayments and
additional payments in respect of its Initial Amount, subject to receipt of credit of investment
earnings upon such deposits, up to the Permitted Investment Rate, all as provided in the
Indenture.
ARTICLE 1V
LOAN TERM, LOAN CLOSING REQUIREMENTS
AND LOAN AMENDMENT REQUIREMENTS
\hMIA-SRV01 \1397307v02\7/11/02\46245.010300 20
Section 4.01 Commencement of Loan Term. The Participant's obligations under this
Loan Agreement and the Participant Notes shall commence on the Closing Date unless otherwise
provided in this Loan Agreement.
Section 4.02 Termination of Loan Term Subject to Section 5.06 hereof, the
Participant's obligations under this Loan Agreement and the Participant Notes shall terminate
after payment in full of all amounts due under this Loan Agreement and the Participant Notes,
and all amounts not theretofore paid shall be due and payable fifteen (15) days (or if such day is
not a Business Day, then the next preceding Business Day) prior to [ ] 1, 2032; provided,
however, that the covenants and obligations expressed herein to so survive shall survive the
termination of this Loan Agreement and the payment in fixll of the Participant Notes. Upon
termination of the Loan Term as provided above, the Issuer and the Trustee shall deliver, or
cause to be delivered, to the Participant the canceled Participant Notes.
Section 4.03 Loan Closing Documents. Concurrently with the execution and delivery
of this Loan Agreement, the Participant is providing to or will cause to be provided to the
Trustee the following documents, each dated the date of such execution and delivery unless
otherwise provided (except that the item described in (e) below shall be delivered only to the
Trustee):
(a) Certified Resolution of the Participant;
(b) A certificate of the officials of the Participant who sign this Loan Agreement and
the Participant Notes in form and substance substantially identical to Exhibit C to this Loan
Agreement;
(c) The original executed Participant Notes to the Issuer, endorsed to the Trustee;
(d) A certificate signed by the Authorized Officer of the Participant stating (i) the
estimated dates and amounts of projected expenditures for the Project, (ii) that it is reasonably
anticipated by the Participant that the Loan proceeds will be fully advanced therefor and
expended by the Participant (to the extent the Disbursements are not made to reimburse the
Participant for an expenditure already made) prior to a date which is no later than thirty-six (36)
months after the date of issuance of the Bonds, (iii) that the projected expenditures are based on
reasonable expectations, and (iv) that the proceeds of the Loan are to be used to finance a
Project, the financing of which constitutes an "authorized project" of the Issuer under the Act;
(e) An opinion (addressed to, and in form and substance acceptable to, the Issuer and
the Trustee) of Bond Counsel, to the effect that the Loan will not jeopardize the excludability of
the interest on the Bonds from federal income tax or adversely affect the validity of the Bonds;
(f) An opinion of the Participant's Counsel in the form of Exhibit E attached hereto
to the effect that the Loan Agreement is a valid and binding obligation of the Participant and
opining to such other matters as may be reasonably required by Bond Counsel and Underwriter's
counsel;
(g) A Form 8038-G with respect to the Loan; and
\~vlIA- SR VO I \I 397307v02\7 /I I/02\462 4 5.010300 21
(h) Such other certificates, documents and information as the Issuer may require.
All opinions and certificates shall be dated the Closing Date.
ARTICLE V
LOAN REPAYMENTS
Section 5.01 Repayments.
(a) The principal and interest portions of Repayments are due in the form of
payments on the Participant Notes, in accordance with the terms thereof. Payment of all other
amounts due under this Loan Agreement are payable by the Participant directly, upon receipt by
the Participant of a statement thereof. The Participant shall make Repayments due under this
Loan Agreement solely fi:om Non-Ad Valorem Revenues as provided herein in lawful money of
the United States of America to the Trustee. Payment by the Participant of principal, premium,
if any, and interest on the Participant Notes shall constitute Repayments of principal, premium
and interest hereunder.
(b) The Loan shall be repaid in installments, consisting of (i) a principal payment on
the Participant Notes, payable in such amount and on such date as set forth in the Participant
Notes, as shown in Exhibit B hereto; and (ii) interest on the Participant Notes at the Participant
Rate. Interest on any past-due Repayment shall accrue at the Default Rate. All Repayments
shall be due as set forth in a Participant Notes unless such Participant Note is prepaid in whole as
permitted herein.
(c) In addition to the foregoing, the Participant shall pay to the Trustee for the
account of the Issuer, solely from Non-Ad Valorem Revenues as provided herein, its Annual
Rebate Deficiency calculated in accordance with Section 4.07(b) of the Indenture and the fees of
the Administrator, Trustee and Rebate Analyst, as set forth in the Indenture.
(d) Payments of interest on the Participant Notes shall be deposited by the Trustee
into the Interest Account of the Bond Fund established under the Indenture. Repayments of
principal on the Participant Notes shall be deposited into the Principal Account of the Bond
Fund.
Section 5.02 Additional Payments. In addition to payments due under Section 5.01,
the Participant agrees to pay to the Trustee solely fi:om Non-Ad Valorem Revenues as provided
herein, upon demand of the Administrator on behalf of the Issuer, or Trustee the following
additional payments:
(a) the fees and out-of-pocket expenses and disbursements of counsel utilized by the
Issuer and the Trustee in connection with this Loan Agreement, and the Related Documents, and
the enforcement thereof upon any default by the Participant;
\WiIA-SRV01 \ 1397307v02\7/i 1/02~46245.010300 22
(b) all taxes and other governmental charges in connection with the execution and
delivery of this Loan Agreement, whether or not any amount due hereunder is then outstanding,
including all recording and filing fees and stamp taxes relating to the pledge and assignment of
the Issuer's right, title and interest in and to this Loan Agrecnnent pursuant to the Indenture (and
with the exceptions noted therein) and all expenses, including attorneys fees, relating to any
amendments, waivers, consents or collection or enforcement proceedings pursuant to the
provisions hereof; and
(c) all Extraordinary Expenses, consisting off
(1) fees and expenses (including attomey's fees) of the Trustee and any
paying agent, any registrar, authenticating agent or transfer agent for the Bonds not
included it its regular fees;
(2) amounts owed by the Issuer under the Indenture with respect to any
indmnnification obligations to the Trustee or to any other entity under the Indenture;
(3) any Compliance Charges and all amounts owed as costs and expenses of
the Issuer or the Trustee, including fees and expenses of their attorneys and consultants,
incurred in connection with an audit of the Bonds by the Internal Revenue Service, the
Department of the Treasury, the Securities and Exchange Commission, or any successor
agency of any of the foregoing or any state agency or department;
(4) if a Swap Agreement is entered into by the Issuer with respect to the
Bonds, all reasonable fees and expenses of the Issuer or the Trustee relating to tiffs Loan
Agreement and the Swap Agreement, including but not limited to:
(A) the fees and disbursements of counsel utilized by the Issuer and the
Trustee in connection with the Loan, the Loan Agreement and the Participant
Notes and the enforcement or administration thereof;
(B) all other out-of-pocket expenses of the Trustee and the Issuer in
connection with the Loan, the Loan Agreement, the Swap Agreement and the
Participant Notes and the enforcement thereof;
(C) all costs and expenses, fees, charges and other amounts (other than
a Termination Payment) due from the Issuer to the Swap Counterparty for such
Swap Agreement;
(D) any other reasonable fees or expenses of the Issuer or the Trustee
generally in connection with the Bonds, the Participant Notes, the Loans or the
Swap Agreement.
(5) if a Swap Agreement is entered into by the Issuer with respect to the
Bonds, the Termination Payment due upon that portion of the Swap Agreement allocable
to the Participant, upon the failure of the Participant to be in compliance with any
provision hereof which has the effect of causing such Termination Payment to be due;
and
(6) all losses resulting from the investment of the Participant's Reservation
Account, the Participant's Reserve Account, or moneys transferred from such accounts to
the Participant's Redemption Account in the Redemption Fund, including market losses,
a failure of the Investment Agreement to provide earnings sufficient to cover the
Repayments due hereunder or payments due on a principal amount of the Bonds or any of
the additional payments due under this Section 5.02, including any costs under the Swap
Agreement, if any, losses caused by default of the Investment Agreement provider(s) or
the Swap Counterparty, losses due to failure of collateral and losses incurred on a
replacement of the Investment Agreement provider, without regard to the party initiating
the replacement, and any penalties, damages, expenses or repayment of losses due to an
Investment Agreement provider under its respective Investment Agreement.
(d) If the Participant's Reserve Account is reduced or depleted, the Participant shall
pay the amount necessary to restore the balance in the Participant's Reserve Account to the
Participant's Pro Rata Share of the Reserve Fund Requirement. Such payments shall be made
from Non-Ad Valorem Revenues of the Participant in twelve equal monthly installments, due on
the first Business Day of each month commencing with the month following the date of such
reduction, depletion, or draw.
The Participant agrees to pay interest at the Default Rate to the affected party on any such
additional payments enumerated above not received by the Issuer, the Swap Counterparty, the
Trustee or the Administrator, as the case may be, within ten (10) days of demand therefor.
Section 5.03 Determination of Variable Interest Rate; Interest Limit If a Swap
Agreement is entered into by the Issuer with respect to the Bonds, the determination of the
Weekly Rate from time to time by the Calculation Agent in accordance with the Indenture shall
be conclusive and binding on the Participant. Failure by the Trustee to give notice required
hereunder, or any defect therein, shall not (i) affect the interest rate borne by the Bonds or the
payment obligations of the Participant hereunder, or (ii) impose any liability on the Trustee to the
Participant. Interest on the Participant Notes shall not exceed the Maximum Rate.
For purposes of budgeting for the interest component of the Repayment due each year on
the Participant Notes, the Participant covenants and agrees that (A) during any period during
which the provisions of subsection (i) of the definition of Participant Rate are applicable, the
Participant shall budget such interest at an estimated interest rate of percent
( %) and (B) during any period during which the provisions of subsection (ii) of the
definition of Participant Rate are applicable, the Participant shall budget such interest an
estimated interest rate at the greater of percent ( %) or 105% of the average
Participant Rate during the preceding 52 weeks.
Section 5.04 Obligation To Pay Repayments.
\WiIA-SRV01\1397307v02\7/11/02~46245.010300 24
(a) The Participant hereby acknowledges, covenants and agrees to budget and
appropriate, by amendment, if necessary, from Non-Ad Valorem Revenues lawfully available in
each Fiscal Year, and to pay when due under this Loan Agreement directly to the Trustee,
amounts sufficient to pay all Repayments, including without limitation, the amounts due under
Section 5.01 and 5.02 hereof. The Participant hereby covenants that in the event sufficient
amounts, exclusive of the amounts theretofore received from or on behalf of the Participant and
held by the Trustee to satisfy such Repayments on the Participant Loan, have not been paid to the
Trustee, it will, to the extent permitted by law and subject to this Section 5.04, in each year in
which any such deficiency in the Repayments may be due and payable in accordance with this
Loan Agreement, budget and appropriate, by amendment, if required, from legally available
Non-Ad Valorem Revenues, the sums required for payment of such amounts, and apply the same
to the payment thereof.
Such covenant and agreement on the part of the Participant to budget and appropriate
such amounts of legally available Non-Ad Valorem Revenues shall be cumulative, and shall
continue until such legally available Non-Ad Valorem Revenues in amounts sufficient to pay the
Repayments provided for herein in respect of the Initial Amount of the Participant's Loan have
been budgeted, appropriated and actually paid to the Trustee.
Notwithstanding the foregoing covenant of the Participant, the Participant does not
covenant to maintain any services or programs, now provided or maintained by the Participant,
which generate Non-Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the Participant from pledging .in the future its
Non-Ad Valorem Revenues, nor does it require the Participant to levy and collect any particular
Non-Ad Valorem Revenues, nor does it give the Trustee a prior claim on the Non-Ad Valorem
Revenues as opposed to claims of general creditors of the Participant. Such covenant to budget
and appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereinafter
entered into (including the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its general annual budget for the purposes
and in the manner stated herein shall have the effect of making available in the manner described
herein Non-Ad Valorem Revenues and placing on the Participant a positive duty to budget and
appropriate, by amendment, if necessary, amounts sufficient to meet its obligations hereunder;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which
provides, in part, that the governing body of each municipality make appropriations for each
Fiscal Year which, in any one year, shall not exceed the amount to be received from taxation or
other revenue sources; and subject further, to the payment of services and programs which are
for essential public purposes affecting the health, welfare and safety of the inhabitants of the
Participant or which are legally mandated by applicable law.
(b) The obligation of the Participant to make payment of Repayments of any amounts
required by this Article V and other Sections hereof from Non-Ad Valorem Revenues and to
perform and observe the other covenants and agreements contained herein, shall be absolute and
unconditional in all events except as otherwise expressly provided in this Loan Agreement,
\~MIA-SRVOl\I397307v02\7/ll/02\46245.010300 25
including this Section 5.04. Subject to the provisions of this Section 5.04, notwvithstanding any
dispute between the Participant and the Issuer, the Trustee, the Administrator, the Swap
Counterparty, if any, any Bondholder or any other person, the Participant shall make all
payments of Repayments when due and shall not withhold any Repayments pending final
resolution of such dispute, nor shall the Participant assert any right of set off or counterclaim
against its obligation to make such payments required under this Loan Agreement.
(c) The Participant agrees and covenants with the Issuer that it will not hereafter issue
any obligations payable from the Non-Ad Valorem Revenues or portions thereof, unless there
shall have been filed with the Trustee a certificate of the chief financial officer of the Participant
to the effect that: (i) available Non-Ad Valorem Revenues (average of actual receipts over any
12 consecutive months out of the previous 18 months) exceed maximum annual debt service on
debt secured by and/or payable solely from such Non-Ad Valorem Revenues by at least 1.5
times; and (ii) projected maximum annual debt service requirements for all debt secured by
and/or payable solely from such Non-Ad Valorem Revenues will not exceed 20% of
Governmental Fund Revenues (defined as general fund, special fund, debt service fund and
capital projects funds), exclusive of(i) ad valorem revenues restricted to payment of debt service
on any debt and (ii) any debt proceeds. For the purposes of these covenants maximum annual
debt service means the lesser of the actual maximum annual debt service on all debt or 15% of
the orig/nal par amount of the debt, in each case, secured by Participant Non-Ad Valorem
Revenues. For purposes of this subsection (c) the rate of interest on debt service on obligations,
the interest rate on which changes at least every 9 months, shall be assumed to be a rate equal to
two-thirds of the maximum rate which such obligations may bear in accordance with the
controlling instruments for such obligations.
(d) The Participant's obligation to make payment of Repayments or any other
amounts during the Loan Term shall not be abated through accident or unforeseen circumstances.
The Issuer and the Participant agree that the Participant shall bear all risk of damage or
destruction in whole or in part to the Project or any part thereof, including without limitation any
loss, complete or partial, or interruption in the use, occupancy or operation of the Project, or any
manner or thing which for any reason interferes with, prevents or renders burdensome the use of
the Project or the compliance by the Participant with any of the terms of this Loan Agreement.
Notwithstanding the foregoing, this Section 5.04 shall not limit the rights of the Participant to
recover amounts owing to it, except as specifically set forth herein. Subject to the provisions of
this Section 5.04, the Participant does hereby obligate itself and its successors to budget annually
solely from Non-Ad Valorem Revenues a sum of money sufficient to make Repayments required
by this Loan Agreement, including any principal and/or interest on the Bonds theretofore
matured and unpaid and to collect revenues within the limits prescribed by law from time to
time, sufficient to make such Repayments.
(e) Anything in this Loan Agreement to the contrary notwithstanding, it is understood
and agreed that all obligations of the Participant hereunder shall be payable only fi.om Non-Ad
Valorem Revenues budgeted and appropriated as provided for hereunder and nothing herein shall
be deemed to pledge ad valorem taxation revenues or to permit or constitute a mortgage or lien
upon any assets owned by the Participant and no Bondholder or any other person, including the
Issuer or the Trustee may compel the levy of ad valorem taxes on real or personal property
\~vlIA-SRV01 \1397307v02\7/11/02\46245.010300 26
within the boundaries of the Participant. The obligations hereunder do not constitute an
indebtedness of the Participant within the meaning of any constitutional, statutory or charter
provision or limitation, and neither the Trustee, the Issuer, or the Bondholders or any other
person shall have the right to compel the exercise of the ad valorem taxing power of the
Participant or taxation of any real or personal property therein for the payment by the Participant
of its obligations hereunder. Except to the extent expressly set forth in this Loan Agreement, this
Loan Agreement and the obligations of the Participant hereunder shall not be construed as a
limitation on the ability of the Participant to pledge or covenant to pledge said revenues or any
revenues or taxes of the Participant for other legally permissible purposes. Notwithstanding any
provisions of this Agreement, the Indenture or the Bonds to the contrary, the Participant shall
never be obligated to maintain or continue any of the activities of the Participant which generate
user service charges, regulatory fees or any Non-Ad Valorem Revenues. Neither this Loan
Agreement nor the obligations of the Participant hereunder shall be construed as a pledge of or a
lien on all or any legally available Non-Ad Valorem Revenues of the Participant, but shall be
payable solely as provided herein and is subject in all respects to the provisions of Section
166.241, Florida Statutes, as amended, and is subject, further, to the payment of services and
programs which are for essential public purposes affecting the health, welfare and safety of the
inhabitants of the Participant, and shall be expressly limited to the Repayments of the Participant
and the Participant shall have no joint liability with any other Participant or the Issuer for any of
their respective liabilities, except to the extent expressly provided hereunder.
(f) The Issuer and the Participant understand that the amounts available to be
budgeted and appropriated to make Repayments hereunder are subject to the obligation of the
Participant to provide essential services; however, such obligation is cumulative and carries over
from fiscal year to fiscal year.
Section 5.05 Application of Repayments. Repayments of principal and interest on the
Participant Notes shall be applied as provided herein and in the Participant Notes. Any such
Repayments of the principal amount of the Participant Notes shall be held, invested, applied and
disbursed in accordance with the Indenture.
Section5.06 Agreement To Survive Indenture and Bonds. The Participant
acknowledges that its obligations hereunder shall survive the discharge of the Indenture and
payment of the principal of and interest on the Bonds, if and to the extent that amounts are due
and owing to the Swap Counterparty, if any, and any other party entitled to receive the same
hereunder as of the date of such discharge and payment. The Participant also acknowledges that
certain obligations hereunder shall survive the Participant's Prepayment of the Participant Notes
and shall remain obligations until the Initial Amount is adjusted as provided in Section 3.06
hereof. The Participant further acknowledges that obligations hereunder axising from the Swap
Agreement shall survive the Participant's Prepayment of the Participant Notes and the
redemption of the Bonds.
\~MIA-SRVOl\1397307v02\7/I1/02~46245.010300 27
ARTICLE VI
PROVISIONS RELATED TO INSURER
Section 6.01 Notices/Information to be Given to the Insurer.
[To follow upon selection of insurer]
ARTICLE VII
DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES
Section 7.01 Disclaimer of Warranties. NONE OF THE ISSUER, THE TRUSTEE,
OR THE ADMINISTRATOR MAKES ANY WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE
OF THE PROJECT OR ANY PORTION THEREOF OR ANY WARRANTY WITH RESPECT
THERETO. In no event shall the Issuer, the Administrator or the Trustee be liable for any
incidental, indirect, special or consequential damage in connection with or arising out of the
existence, furnishing, functioning or the Participant's use of the Project or any item or products
or services provided for in this Loan Agreement.
Section 7.02 Warranties. The Participant's sole remedy for the breach of any
warranty, right of indemnification or representation relating to the Project or any part thereof
shall be against the vendors, manufacturers, installers or construction contractors of the Project
and not against the Issuer, the Trustee, any Administrator or any Bondholder, nor shall such
matter have any effect whatsoever on the rights and obligations of the Participant or the Issuer
with respect to this Loan Agreement. The Participant expressly acknowledges that neither We
Issuer, the Trustee, nor any Administrator makes, or has made, any representation or warranties
whatsoever as to the existence or availability of any such warranties of such vendors,
manufacturers, installers and construction contractors.
\~IIA-S RV01 \1397307v02\7/11/02~46245.010300 28
ARTICLE VIII
OPTION TO PREPAY LOAN REPAYMENTS;
LOAN PREPAYMENT
Section 8.01 Prepayment.
(a) The principal amount of the Loan and the Participant Notes shall be subject to
optional prepayment at the direction of the Participant prior to maturity, in whole or in part, on
any Business Day, in an amount equal to the principal amount to be prepaid, plus accrued
interest to the date of related redemption of Bonds. Forty-five (45) days prior written notice of
such Prepayment shall be provided by the Participant to the Trustee and the Administrator
clearly stating that such payment is a Prepayment. Any optional Prepayment in part shall be in
the minimum principal amount of $100,000.
(b) After any partial Prepayment or deemed Prepayment (other than a mandatory
sinking fund Prepayment), the Trustee shall recalculate principal installments due under the
Participant Notes, applying such Prepayment to the Schedule of Principal Installments attached
to the Participant Notes, pro rata in the case of redemptions pursuant to Section 3.01(a) and (c) of
the Indenture; provided, however, that no such revision to the schedule of remaining Repayments
shall extend the average life of the Loan in violation of the requirements of the Tax Agreement.
In the event of any optional Prepayment in part, the annual principal installments, if any, prior to
maturity, on the Participant Notes shall be reduced pro rata based upon the remaining principal
outstanding on the Participant Notes, within $5,000 denominations.
(c) Prepayments shall be deposited to the Participant's Redemption Account and shall
be used by the Trustee to redeem Bonds in accordance with Section 3.01 of the Indenture. Until
such amounts are applied to redeem and discharge Bonds in accordance with Section 3.01 of the
Indenture, the provisions of Section 3.06 hereof shall apply. Upon (i) any Prepayment in whole
of the Participant Notes, and (ii) (A) the redemption or defeasance of the Bonds in the amount of
the Prepayment, and (B) the termination of the Participant's Notional Amount of the Swap
Agreement, if any, this Loan Agreement shall terminate, except for the obligations and covenants
expressed herein to survive, as further described herein.
Section 8.02 Prepayment and Swap Agreement. Upon receipt of the forty five day
notice of a Prepayment required by Section 8.01(a), the Administrator, on behalf of the Issuer,
shall notify the Swap Counterparty, if any.
\~vlIA-SRV01 \I 397307v02\7/11/02xA6245.010300 29
ARTICLE IX
TITLE TO PROPERTY; ASSIGNMENT OF AGREEMENT AND NOTE
Section 9.01 Title To Project. Title to the Project will be and remain in the
Participant. The Participant shall have the right to convey the Project to any other Persons,
subject to the limitations contained in other provisions of this Loan Agreement and the Tax
Agreement. If any such conveyance which is not permitted hereby or by the Tax Agreement is
nevertheless undertaken due to unforeseen circumstances or other actions outside the control of
the Participant, the Participant shall prepay its Participant Notes and the Trustee shall, subject to
the provisions of the Indenture, use such Prepayments to redeem Bonds prior to maturity on the
next available Redemption Date. The Participant acknowledges and recognizes that certain
obligations hereunder shall survive prepayment of its Participant Notes.
Section 9.02 Assignment By Issuer; Administrator. This Loan Agreement, the
Participant Notes, and the obligations of the Participant to make payments hereunder and
thereunder may be assigned and reassigned in whole or in part to one or more assignees or
subassignees by the Issuer or the Trustee at any time subsequent to its execution without the
necessity of obtaining the consent of the Participant. The Participant expressly acknowledges
that this Loan Agreement, the Participant Notes, and the obligations of the Participant to make
payments hereunder and thereunder (with the exception of certain of the Issuer's rights to
indemnification, fees and expenses) have been assigned to the Trustee as security for the Bonds
under the Indenture and that the Trustee shall be entitled to act hereunder and thereunder in the
place and stead of the Issuer whether or not the Bonds are in default. In addition, the Participant
acknowledges that the Issuer will appoint an Administrator in writing which shall be entitled to
act hereunder in the place and stead of the Issuer, to the extent of such appointment.
Section 9.03 Assignment by Participant. This Loan Agreement and the Participant
Notes may not be assigned by the Participant for any reason without the express prior written
consent of the Issuer and Trustee.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01 Events of Default Def'med. The following shall be "Events of Default"
under this Loan Agreement and the terms "Event of Default" and "Default" shall mean (except
where the context clearly indicates otherwise), whenever they are used in this Loan Agreement,
any one or more of the following events:
(a) Failure by the Participant to timely pay any Repayment on the date on which it is
due and payable or upon ten (10) Business Days written notice of any other payment required to
be paid hereunder;
(b) Failure by the Participant to observe and perform any covenant, condition or
agreement on its part to be observed or performed under this Loan Agreement, other than a
\XMIA-SRV01\1397307v02\7/11/02~46245.010300 30
covenant referred to in Section 10.01(a) or 10.01(c) through (h), for a period of thirty (30) days
after written notice specifying such failure and requesting that it be remedied is given to the
Participant by the Trustee, unless the Trustee shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure stated in the notice can be wholly cured
within a period of time not materially detrimental to the rights of the Issuer or the Trustee, but
cannot be cured within the applicable thirty (30) day period, the Trustee will not unreasonably
withhold its consent to an extension of such time if corrective action is instituted by the
Participant within the applicable period and diligently pursued until the failure is corrected;
(c) Any warranty, representation or other statement by the Participant or by an officer
or agent of the Participant contained in this Loan Agreement, the Participant Notes, or in any
instrument furnished in compliance with or in reference to this Loan Agreement or the
Participant Notes, affecting the excludability of interest on the Bonds for federal income tax
purposes or the credit worthiness of the Participant is false or misleading in any material respect;
(d) A petition is filed against the Participant under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed within sixty (60) days of such filing;
(e) The Participant files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents
to the filing of any petition against it under any such law;
(f) The Participant admits insolvency or bankruptcy or its inability to pay its debts as
they become due or is generally not paying its debts as such debts become due, or becomes
insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian
(including without limitation a receiver, liquidator or trustee) of the Participant or any of its
property is appointed by court order or takes possession thereof and such order remains in effect
or such possession continues for more than sixty (60) days; or
(g) Any material provision of this Loan Agreement or the Participant Notes shall at
any time for any reason cease to be valid and binding on the Participant, or shall be declared to
be null and void, or the validity or enforceability of any such provision shall be contested in any
administrative or judicial proceeding by the Participant or any governmental agency or authority
(other than the Issuer), or if the Participant shall deny the validity or enforceability of any such
provision or any further liability or obligation under this Loan Agreement or the Participant
Notes.
Section 10.02 Notice of Default. The Participant agrees to give the Trustee, the Issuer,
the Insurer, the Swap Counterparty and the Administrator prompt written notice if any petition,
assignment, appointment or possession referred to in subsections 10.01(d), (e), or (f) is filed by
or against the Participant or of the occurrence of any other event or condition which constitutes a
Default or an Event of Default, or with the passage of time or the giving of notice or both would
constitute an Event of Default, immediately upon becoming aware of the existence thereof.
\WiIA-SRV01 \1397307v02\7/11/02~46245.010300 3 1
Section 10.03 Remedies on Default. Whenever any Event of Default referred to in
Section 10.01 hereof shall have happened and be continuing, the Issuer or the Trustee shall, in
addition to any other remedies herein or by law provided, have the right, at its or their option
without any further demand or notice to take such steps and exercise one or more of the
following:
(a) Take any action permitted or required pursuant to the Indenture; and
(c) Take whatever other action at law or in equity may appear necessary or desirable
to collect the amounts then due and thereafter to become due hereunder or to enforce any other
of its or their rights hereunder.
Section 10.04 Attorneys' Fees and Other Expenses. The Participant shall on demand
pay to the Issuer, thc Trustee, thc Swap Counterparty, if any, or the Administrator thc reasonable
and documented fccs and expenses of attorneys and other reasonable and documented expenses
incurred by any of them in the collection of Repayments or any other sums due or the
enforcement of performance of any other obligations of the Participant upon an Event of Default.
The provisions of this Section 10.04 shall survive thc termination of this Loan Agreement and
thc payment in full of the Participant Notes.
Section 10.05 Application of Moneys. Any moneys collected by the Issuer, the Trustee
or the Administrator pursuant to Section 10.03 hereof shall be applied (a) first, to any reasonable
attorneys' fees or other expenses owed by the Participant to the Issuer, the Trustee, the Swap
Counterparty or the Administrator pursuant to Section 10.04 hereof, pro rata based on the
amount of such expenses owed, (b) second, to pay any interest due on the Participant Notes, (c)
third, to pay principal due on the Participant Notes, (d) fourth, to pay any other amounts due
hereunder, including without limitation, if a Swap Agreement is in effect, any Termination
Payment relating to such default, and (e) fifth, to pay interest and principal on the Participant
Notes and other amounts payable hereunder but which are not due, as they become due (in the
same order, as to amounts which come due simultaneously, as in (a) through (d) in this Section
10.05).
Section 10.06 No Remedy Exclusive; Waiver; Notice. No remedy herein conferred
upon or reserved to the Issuer, the Trustee or the Administrator is intended to be exclusive and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Loan Agreement or now or hereafter existing at law or in equity. No delay or
omission to exercise any right, remedy or power accruing upon any Default shall impair any such
right, remedy or power or shall be construed to be a waiver thereof, but any such right, remedy
or power may be exercised fi.om time to time and as oRen as may be deemed expedient. In order
to entitle the Issuer or the Trustee, the Swap Counterparty, if any, or the Administrator to
exercise any remedy reserved to it in this Article X, it shall not be necessary to give any notice
other than such notice as may be required in this Article X.
Section 10.07 Retention of the Issuer's Rights. Notwithstanding any assignment or
transfer of this Loan Agreement pursuant to the provisions hereof or of thc Indenture, or
anything else to the contrary contained herein, the Issuer shall have thc right upon the occurrence
\~MIA- SR VO I\1397 307v02\7 /I1/02\462 45.010300 32
of an Event of Default to take any action, including, without limitation, bringing an action
against the Participant at law or in equity, as the Issuer may, in its discretion, deem necessary to
enforce the obligations of the Participant to the Issuer pursuant to Section 10.04 hereof.
ARTICLE XI
EXCESSFUNDS
Section 11.01 Excess Funds. Any amounts remaining in the Trust Estate (as defined in
the Indenture) after (a) full payment of the Bonds or provision for payment thereof so that no
Bonds are deemed outstanding under the Indenture; (b) if a Swap Agreement is in effect, ail
payments due or to become due under the Swap Agreement have been paid and (c) all fees,
charges and expenses listed in Section 4.07 and 4.10 of the Indenture have been paid, shall, after
being held for 124 days during which time no Bankruptcy Filing (as defined in the Indenture) has
occurred, after such full payment or provision shall have been made and no claim shall have
been made thereon, shall be rebated by the Trustee to the Participant.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given when hand delivered or mailed by registered or
certified mail, postage prepaid, to the parties at the following addresses:
The Issuer:
Florida Intergovernmental Finance Commission
c/o Dunlap & Associates Group, Inc.
1211 E. Semoran Boulevard, Suite 115
Casselberry, Florida 32801
The Participant:
City of Aventura, Florida
Government Center
19200 W. Country Club Drive, 5m Floor
Aventura, Florida 33180
Attention: Director of Finance
The Administrator:
Dunlap & Associates Group, Inc.
1211 E. Semoran Boulevard, Suite 115
Casselberry, Florida 32801
The Trustee:
SunTrust Bank
225 East Robinson Street, Suite 250
Orlando, Florida 32801
Attention: Lisa Derryberry
Moody's:
Moody's Investors Service, Inc.
99 Church Street
\~vI1A-S RV01\1397307v02\7/11/02\46245.010300 33
Underwriter:
Insurer:
New York, New York 10007
Attention:
J.P. Morgan Securities, Inc.
390 North Orange Avenue, Suite 1850
Orlando, Florida 32801
Any of the above parties may, by notice in writing given to the others, designate any further or
different addresses to which subsequent notices, certificates or other communications shall be
sent.
Section 12.02 Binding Effect. This Loan Agreement shall inure to the benefit of and
shall be binding upon the Issuer and the Participant and their respective successors and assigns.
Section 12.03 Severability. In the event any provision of this Loan Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 12.04 Amendments, Changes And Modifications. This Loan Agreement and
the Participant Notes may be amended by the Issuer and the Participant as provided in Article
XII of the Indenture; provided that no amendment adverse to the Insurer may be effected without
the prior written consent of the Insurer.
Section 12.05 Execution in Counterparts. This Loan Agreement may be
simultaneously executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 12.06 Applicable Law. This Loan Agreement shall be governed by and
construed in accordance with the law of the State of Florida.
Section 12.07 Benefit of Bondholders; Compliance With Indenture. This Loan
Agreement is executed in part to induce the purchase by others of the Bonds. All covenants,
agreements and representations on the part of the Participant and the Issuer, as set forth in this
Loan Agreement, are hereby declared to be for the benefit of the holders from time to time of the
Bonds, and for the benefit of the Insurer, the Swap Counterpart3,, if any, each as a third party
beneficiary hereunder with full right, power and authority to enforce such covenants, agreements
and representations directly, except as otherwise provided in the indenture with respect to the
rights of Bondholders. The Participant covenants and agrees to do all things within its power in
order to comply with and to enable the Issuer to comply with all requirements and to fulfill and
to enable the Issuer to fulfill all covenants of the Indenture and the Swap Agreement, if any.
\WIIA-SRV01\1397307v02\7/11/02XA6245.010300 34
Section 12.08 Consents And Approvals. Whenever the written consent or approval of
the Issuer shall be required under the provisions of this Loan Agreement, such consent or
approval may be given by the Chairman or Vice Chairman of the Issuer or such other additional
person provided by law or by rules or regulations of the Issuer.
Section 12.09 Immunity of Officers, Employees And Members of Issuer And
Participant. No recourse shall be had for the payment of the principal of or premium or interest
on the Participant Notes or for any claim based thereon or upon any representation, obligation,
covenant or agreement in this Loan Agreement against any past, present or future officer,
member, employee, director or agent of the Issuer or the Participant, respectively, of any
successor public or private corporation thereto, as such, either directly or through the Issuer or
the Participant, respectively, any successor public or private corporation thereto under any rule
of law or equity, statute or constitution or by the enforcement of any assessment or penalty or
otherwise, and all such liability of any such officers, members, employees, directors or agents as
such is hereby expressly waived and released as a condition of and consideration for the
execution of this Loan Agreement and the issuance of the Participant Notes.
Section 12.10 Captions. The captions or headings in this Loan Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Loan Agreement.
Section 12.11 Pecuniary Liability of Issuer. No provision, covenant or agreement
contained in this Loan Agreement on behalf of the Issuer, or any obligation herein imposed upon
the Issuer, or the breach thereof, shall constitute an indebtedness or liability of the State or any
governmental entities of the State or any public corporation or governmental agency existing
under the laws thereof other than the Issuer. In making the agreements, provisions and covenants
set forth in this Loan Agreement, the Issuer has not obligated itself except with respect to the
application of the revenues, income and all other property as derived herefrom, as hereinabove
provided.
Section 12.12 Payments Due on Holidays. If the date for making any payment or the
last date for performance of any act or the exercise of any right, as provided in this Loan
Agreement, shall be a day other than a Business Day, such payments may be made or act
performed or right exercised on the next Business Day with the same force and effect as if done
on the nominal date provided in this Loan Agreement.
Section 12.13 Right of Others to Perform Participant's Covenants. In the event the
Participant shall fail to make any payment or perform any act required to be performed
hereunder, then and in each such case the Issuer, the Swap Counterparty, if any, or the Trustee
may (but shall not be obligated to) remedy such default for the account of the Participant and
make advances for that purpose. No such performance or advance shall operate to release the
Participant from any such default and any sums so advanced by the Issuer, the Swap
Counterparty, if any, or the Trustee shall bear interest from the date of the advance until repaid
as provided herein. The Administrator, the Swap Counterparty, if any, or the Trustee shall have
the right to enter the Participant's premises in order to effectuate the purposes of this Section.
\kM1A-SRV01 \1397307v02\7/I 1/02\46245.010300 3 5
ARTICLE XIII
CONTINUING DISCLOSURE
Section 13.01 Continuing Disclosure Requirements. The Participant shall provide
such continuing disclosure information as may be necessary to enable the Issuer to comply with
the provisions of Rule 15(c)2-12 (the "Rule") of the United States Securities and Exchange
Commission, in the form and at the times required by the Rule in accordance with this Article
XIII.
Section 13.02 Defmitions. For purposes of this Article XIII, the following terms shall
have the definitions provided in this Section 13.02.
"Annual Determination Date" shall mean the last day of each Fiscal Year.
"Annual Report" shall mean any Annual Report provided by the Participant pursuant to,
and as described in, Sections 13.03 and 13.04 hereof or provided by the Participant as an
Obligated Person with respect to the Bonds.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly,
to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the
owner of any Bonds for federal income tax purposes.
"Dissemination Agent" shall mean initially, the Trustee, and thereafter the Participant or
any successor Dissemination Agent designated in writing by the Issuer and which has filed with
the Issuer a written acceptance of such designation.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be prescribed
by law.
"Listed Events" shall mean any of the events listed in Section 13.05 hereof.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The National Repositories currently approved
by the Securities and Exchange Commission may be obtained at any time at the SEC's Web site
at http://www.sec.gov/consumer/nrmsir.htm.
"Obligated Person" shall mean the Participant.
"Repository" shall mean each National Repository and each State Repository.
\WIIA~SRV01\1397307v02\7/11/02\46245.010300 3 6
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
"State Repository" shall mean any public or private repository or entity designated by the
State as a state repository for the purpose of the Rule and recognized as such by the Securities
and Exchange Commission. As of the date of this Article XIII, there is no State Repository.
Section 13.03 Annual Reports.
(a) The Participant shall, or shall cause the Dissemination Agent to, not later than the
date which shall be 90 days after the end of the Participant's Fiscal Year (presently September
30), provide to each Repository and the Insurer an Annual Report which is consistent with the
requirements of Section 13.04 hereof. The Annual Report may be submitted as a single
document or as separate documents comprising a package, and may cross-reference other
information as provided in Section 13.04(b) hereof; provided that the audited financial
statements of the Participant may be submitted separately from the balance of the Annual Report
and later than the date required above for the filing of the Annual Report if they are not available
by that date. Not later than fifteen (15) business days prior to said date, the Participant shall
provide the Annual Report to the Dissemination Agent (if other than the Participant). If the
Participant's audited financial statements are not available by the time the Annual Report is
required to be filed pursuant to this Section 13.03(a), the Annual Report shall contain unaudited
financial statements in a format similar to the Participant's audited financial statements, and the
audited financial statements shall be filed in the same manner as the Annual Report when they
become available. If the Participant's Fiscal Year changes, it shall give notice of such change in
the next Annual Report filed by the Participant, and the Participant shall send a notice to (i) each
National Repository or the Municipal Securities Rule Making Board, (ii) the State Repository
and (iii) the Insurer.
Co) The Dissemination Agent shall:
i. determine each year prior to the date for providing the Annual Report the
name and address of each National Repository and the State Repository, if any; and
ii. if the Dissemination Agent is other than the Participant, file a report with
the Participant certifying that the Annual Report has been provided pursuant to this
Article XIII, stating the date it was provided and listing all the Repositories to which it
was provided.
Section 13.04 Contents of Annual Reports. The Participant's Annual Report shall
contain or include by reference the following:
(a) The audited financial statements of the Participant for the prior Fiscal Year,
prepared in accordance with generally accepted accounting principles as promulgated to apply to
governmental entities from time to time by the Governmental Accounting Standards Board.
\~MIA-SRV01 \ 1397307v02\7/11/02\46245.010300 37
(b) An update of the financial information and operating data of the type found in the
Official Statement dated August [ ], 2002, for the Bonds.
(c) If the Participant's obligations under this Article XIII shall have terminated,
notice of such termination.
An update of the financial information and operating data may be included by specific
reference to other documents which have been submitted to each of the Repositories or the
Securities and Exchange Commission. If the document included by reference is a final official
statement, remarketing circular or remarkefing supplement, it must be available from the
Municipal Securities Rulemaking Board. The Participant shall clearly identify each such other
document so included by reference. An update of the financial information and operating data
may be satisfied by providing a copy of the Participant's comprehensive annual financial report
to the extent the information presented therein complies with the requirements of this Section
13.04.
Section 13.05 Reporting of Significant Events
(a) Pursuant to the provisions of this Section 13.05, the Participant shall give, or
cause to be given, notice of the occurrence of any of the following events with respect to the
Bonds, if material:
1. principal and interest payment delinquencies;
2. nonpayment related defaults;
3. modifications to rights of Bondholders;
4. optional, contingent or unscheduled bond calls;
5. defeasances;
6. rating changes;
Bonds;
adverse tax opinions or events affecting the tax-exempt status of the
8. unscheduled draws on debt service reserves reflecting financial
difficulties;
9. unscheduled draws on credit enhancements reflecting financial
difficulties;
10. substitution of credit or liquidity providers, or their failure to perform;
11. release, substitution or sale of property securing repayment of the Bonds.
\~MIA-SRV01\1397307 v02\7/11/02\46245.010300 38
(b) Whenever the Participant obtains knowledge of the occurrence of a Listed Event,
because of a notice from the Trustee or otherwise, the Participant shall as soon as possible
determine if such event would be material under applicable federal securities laws.
(c) If the Participant has determined that knowledge of the occurrence of a Listed
Event would be material under applicable federal securities laws, the Participant shall promptly
prepare the notice of the occurrence of a Listed Event in the form to be filed with the
Repositories, notify the Dissemination Agent in writing and deliver to the Dissemination Agent
such form of notice to be filed with the Repositories. Such notice shall instruct the
Dissemination Agent to report the occurrence pursuant to Section 13.05(e) below.
(d) If pursuant to Section 13:05(b), the Participant determines that the Listed Event
would not be material under applicable federal securities laws, the Participant shall so not/fy the
Dissemination Agent in writing and instruct the Dissemination Agent not to report the
occurrence pursuant to Section 13.05(e).
(e) If the Dissemination Agent has been instructed by the Participant to report the
occurrence of a Listed Event, the Trustee shall notify the Dissemination Agent, and the
Dissemination Agent shall file a notice of such occurrence with Repositories and the Insurer with
a copy to the Participant. Notwithstanding the foregoing, notice of Listed Events described in
Section 13.05(a)(4) and (5) need not be given under this subsection any earlier than the notice (if
any) of the underlying event is given to the Holders of affected Bonds pursuant to the Indenture.
Section 13.06 Termination of Reporting Obligations. The Participant's reporting
obligations under this Article XIII shall terminate upon (a) the legal defeasance, prior
prepayment or payment in full of all Outstanding Bonds, (b) the termination of the continuing
disclosure requirements of the Rule by legislative, judicial or administrative action, (c) in the
case of the Dissemination Agent, upon receipt of notice of discharge, or (d) when the Participant
is no longer an Obligated Person. If termination occurs pursuant to clauses (a), (b) or (d) prior to
the final maturity of the Bonds, the Dissemination Agent shall give notice of such termination in
the same manner as required by Section 13.05.
Section 13.07 Dissemination Agent. The Dissemination Agent shall not be responsible
in any manner for the content of any notice or report prepared by the Participant pursuant to this
Article XIII.
Section 13.08 Amendments. Notwithstanding any other provision of this Article XIII,
the Participant may amend this Article XIII, and any provision of this Article XIII may be
waived, provided that the following conditions are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 13.03, 13.04 or
13.05, it may only be made in connection with a change in circumstances that arises fi.om a
change in legal requirements, change in law, or change in the identity, nature or status of the
Participant, or the type of business conducted;
\WiIA-SRVO l\1397307v02\7/l l/02\46245.010300 39
(b) The undertaking, as amended or taking into account such waiver, would, in the
opinion of nationally recognized Bond Counsel, have complied with the requirements of the Rule
as of August 1, 2002, after taking into account any amendments or interpretations of the Rule, as
well as any change in circumstances; and
(c) The amendment or waiver either (i) is approved by the Holders of the Bonds in
the same manner as provided in the Indenture for amendments to the Indenture with the consent
of Holders, or (ii) does not, in the opinion of nationally recognized bond counsel, materially
impair the interests of the Holders or Beneficial Owners of the Bonds.
(d) In the event of any amendment or waiver of a provision of this Article XIII, the
Participant shall describe such amendment in the next Annual Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on
the type (or in the case of a change of accounting principles, on the presentation) of financial
information or operating data being presented by the Participant. In addition, if the amendment
relates to the accounting principles to be followed in preparing financial statements, (i) notice of
such change shall be given in the Annual Report for the year in which the change is made and
such Annual Report should present a comparison (in narrative form and also, if feasible, in
quantitative form) between the financial statements as prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles.
Section 13.09 Additional Information. Nothing in this Article XIII shall be deemed to
prevent the Participant from disseminating any other information, using the means of
dissemination set forth in this Article XIII or any other means of communication, or including
any other information in any Annual Report, in addition to that which is required by th/s Article
XIII. If the Participant chooses to include any information in any Annual Report in addition to
that which is specifically required by this Article XIII, the Participant shall have no obligation
under this Article XIII to update such information or include it in any future Annual Report
Section 13.10 Default. In the event of a failure of the Participant to comply with any
provision of this Article XIII the Trustee may (and at the request of the Issuer or the Holders of
at least 25% aggregate principal amount of Outstanding Bonds, shall), or the Issuer or any
Holder or Beneficial Owner of the Bonds may, take such actions as may be necessary and
appropriate, including seeking mandamus or specific performance by court order, to cause the
Participant to comply with its obligations under this Article XIII; provided, however, the sole
remedy under this Article XIII in the event of any failure of the Participant to comply with this
Article XIII shall be an action to compel performance. A default under this Article XIII shall not
be deemed an Event of Default under the Indenture or the Participant Loan Agreement.
Section 13.11 Duties, Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have only such duties as are specifically set forth in this Article XIII,
and the Participant agrees to indemnify and save the Dissemination Agent, its officers, directors,
employees and agents, harmless against any loss, expense and liabilities which it may incur
arising out of or in the exercise or performance of its powers and duties hereunder, including the
costs and expenses (including attorneys' fees) of defending against any claim of liability, but
excluding liabilities due to the Dissemination Agent's negligence or willful misconduct. The
\~vlIA-SRVOI\I397307v02\7/ll/02\46245.010300 40
obligations of the Participant under this Section 13.11 shall survive resignation or removal of the
Dissemination Agent and the termination of the obligations of the Participant under this Article
XIII.
Section 13.12 Beneficiaries.. This Article XIII shall inure solely to the benefit of the
Issuer, the Participant, the Dissemination Agent and Holders and Beneficial Owners from time to
time of the Bonds, and shall create no rights in any other person or entity.
[SIGNATURE PAGES FOLLOW THIS PAGE]
\~vlIA-SRVOl\I397307v02\7/ll/02\46245.010300 41
IN wITNESS WHEREOF, the Florida Intergovernmental Finance Commission has
caused this Loan Agreement to be executed in its name with its seal hereunto affixed and attested
by its duly authorized officers, and the City of Aventura, Florida, has caused this Loan
Agreement to be executed in its name with its seal hereunto affixed and attested by its duly
authorized officers. Ail of the above occurred as of the date first above written.
FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION,
As Issuer
Attest:
DUNLAP & ASSOCIATES GROUP, 1NC.
As Program Administrator
By:
Craig Dunlap, President
(Seal)
By:
Alan J. Polin, Chairman
CITY OF AVENTURA, FLORIDA
ATTEST
By:.
Eric M. Soroka, City Manager
Teresa M. Soroka,
City Clerk
Approved as to form
and sufficiency.
Weiss, Serota& Helfman, P.A.
City Attomey
\WIIA-SRV01 \ 1397307v02\7/I 1/02~6245.010300 42
EXHIBIT A
PROJECT DESCRIPTION
DESCRIPTION OF PROJECT
Loan A
Acquisition of site for K-5 charter elementary school
Loan B
Acquisition, construction and equipping of an approximately 44,000
square foot K-5 charter elementary school
Loan C
Completion of the construction and equipping of an approximately
25,000 square foot community/recreation center
COST
$4,600,000
$6,481,000
$ 900,000
A-1
SCHEDULE
A-2
EXHIBIT B
FORM OF NOTE
LOAN [Al[B]ICl
$[PR1NCIPAL AMOUNT]
August __, 2002
FOR VALUE RECEIVED, the undersigned, the City of Aventura, Florida (the
"Participant") promises to pay to the order of the Florida Intergovernmental Finance
Commission (the "Issuer"), or its successors and assigns, solely from the sources hereinafier
described a principal sum equal to the Initial Amount set forth above, with interest on the
principal sum solely from such sources at the Participant Rate defined in the Loan Agreement
and determined pursuant to Section 5.04(d) of the Indenture on the unpaid balance until paid, all
in accordance with, and subject to, the provisions of Article V of the Loan Agreement dated as of
August t, 2002 (the "Loan Agreement"), by and between the Issuer and the Participant. All loan
payments shall be payable in immediately available funds at the designated corporate trust office
of SunTrust Bank (the "Trustee"). Principal installments and interest payments shall be paid (a)
during any period when the Issuer is not obligated to make variable rate payments under a Swap
Agreement, fifteen (15) days prior to each Interest Payment Date and (b) during the period when
the Issuer is obligated to make variable rate payments under a Swap Agreement, fifteen (15) days
prior to the first day of each month (each a "Loan Repayment Date"). All capitalized terms used
herein but not otherwise defined herein shall have the definition given them in the Loan
Agreement.
The principal of this Note shall be payable in the amounts and on the dates as set forth on
Schedule II (the "Schedule of Principal Installments") attached hereto. The Trustee shall notify
the Participant on or before the second Business Day preceding each Loan Repayment Date of
the amount of interest owed hereunder to but excluding such Loan Repayment Date. During the
period when the Issuer is obligated to make variable rate payments under a Swap Agreement,
such amount shall be calculated by the Trustee as set forth in Section 5.04(d) of the Indenture.
As provided in Section 5.01(d) of the Loan Agreement, all payments of interest shall be
deposited by the Trustee into the Interest Account of the Bond Fund established under the
Indenture and all payments of principal shall be deposited by the Trustee in the funds and
accounts as provided in the Indenture, to be used by the Participant or otherwise applied, all in
accordance with the Indenture. Repayments or Prepayments of the principal amount of this Note
shall be held and applied, and shall be given the effect, only as provided in the Indenture and the
Loan Agreement. Participant hereby acknowledges that the Initial Amount has been funded on
behalf of the Participant by the issuance of the Florida Intergovernmental Finance Comanission
Revenue Bonds, 2002 Series A (the "Bonds"), and further acknowledges that until certain
conditions are satisfied as provided in the Indenture with respect to the Bonds, principal
Repayments and any Prepayments of principal shall not relieve the Participant of responsibility
for all obligations relating to the Initial Amount of this Note unless the same shall have been
used to redeem the Bonds, as provided in the Indenture.
B-3
An amount equal to the entire Initial Amount, to the extent Repayments of principal have
not already been made by the Participant, shall be fully due and payable fifteen (15) days (or if
such day is not a Business Day on the next preceding Business Day) prior to [ ] 1,
2032. Unpaid interest which shall have accrued through the last day of a Loan Payment Period
(as defined in the Loan Agreement) preceding the Loan Repayment Date shall be calculated at
the Participant Rate defined in the Loan Agreement, unless otherwise provided in the next
succeeding sentence. Notwithstanding the foregoing sentence, if (i) any payment of principal
and interest (a "Principal and Interest Payments") due hereunder shall not be paid within ten (10)
calendar days of the Loan Repayment Date, accrued but unpaid interest on the principal portion
of said Principal and Interest Payments shall be calculated at the Default Rate (as defined in the
Loan Agreement) or (ii) if all Principal and Interest Payments are declared to be immediately due
and payable, accrued but unpaid interest on the outstanding principal amount of this Note shall
be calculated at the Default Rate.
The Participant shall have the right to prepay the principal amount hereof, in accordance
with the terms and conditions set forth in Section 8.01 of the Loan Agreement and upon payment
of interest due on the amount prepaid. No prepayment hereunder shall operate to discharge the
Participant from its liability for the principal amount hereof until such time as the conditions set
forth in Section 3.06(a) of the Loan Agreement have been satisfied.
All payments hereon shall be applied first to accrued interest then payable and then to the
installments of principal due hereunder in inverse order of maturity, as provided in the Loan
Agreement.
This Note is a limited obligation of the Participant issued pursuant to, payable solely
from the Non-Ad Valorem Revenues as provided in, and subject to the limitations of, the Loan
Agreement, the terms and provisions of which, including those in connection with default by the
Participant, are incorporated herein by reference. The obligations of the Participant hereunder
are set forth in the Loan Agreement. Pursuant to the Loan Agreement, the Participant has
covenanted to budget and appropriate funds from certain Non-Ad Valorem Revenues sufficient
to pay such amounts due hereon, all in the manner, and subject to the limitations, provided in the
Loan Agreement. The acceptance of this Note by the holder from time to time hereof shall be
deemed an agreement between the Participant and such holder that the obligation to pay the
amounts due hereunder, including without limitation all additional amounts due under the Loan
Agreement, shall not constitute a lien upon any property, funds or revenues of the Participant or
a pledge of the faith, credit or taxing power of the Participant, but shall instead be a limited and
special obligation of the Participant payable only from the sources, and in the manner, provided
in the Loan Agreement.
The Participant hereby waives presentment for payment, demand, protest and notice of
dishonor.
B-4
This Note and all instruments securing the same are to be construed according to the !aw
of the State of Florida.
Signed and sealed this __ day of Augnst, 2002, effective as of Augnst __, 2002.
(Seal)
CITY OF AVENTURA, FLORIDA
ATTEST
By:.
Eric M. Soroka, City Manager
Teresa M. Soroka,
City Clerk
Approved as to form
and sufficiency.
Weiss, Serota & Helfman, P.A.
City Attorney
[Signature page to Note of Aventura, Florida for
Florida Intergovernmental Finance Commission]
B-5
ENDORSEMENT
FOR VALUE RECEIVED, the Florida Intergovernmental Finance Commission (the
"Issuer") hereby sells, assigns and transfers this Note unto SunTrust Bank (the "Trustee"), as
trustee under that certain Trust Indenture, dated as of August 1, 2002, and by and between the
Issuer and the Trustee, this Note to be held by the Trustee under the terms and conditions set
forth in the Indenture and constitute a part of the Series A Trust Estate, as defined therein.
FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION,
As Issuer
By:
Alan J. Polin, Chairman
\XMIA-SRV01\1397307v02\7/11/02\46245.010300
B-6
SCHEDULE I
SCHEDULE OF DISBURSEMENTS
B-7
SCHEDULE II
SCHEDULE OF PRINCIPAL INSTALLMENTS
\~A-SRVOl\I397307vO2\7/I1/O2XA6245.010300
EXHIBIT C
CERTIFICATE OF PARTICIPANT
IN CONNECTION WITH LOAN TO FINANCE PROJECT
I, the undersigned Eric M. Soroka, City Manager of the City of Aventura, Florida (the
"Participant") and the undersigned Teresa M. Soroka, City Clerk of the Participant, do hereby
certify and covenant as follows:
1. The undersigned, Eric M. Soroka, is the duly appointed, qualified and acting City
Manager of the Participant and the undersigned, Teresa M. Soroka, is the duly appointed,
qualified and acting City Clerk of the Participant and such officials are familiar with and have
access to the books and corporate records of the Participant.
2. The persons named below are the duly appointed or elected and qualified Mayor
and Members of the City Commission of the Participant and are presently serving the terms
which commenced and which will expire as indicated to the right of their respective names:
Name Date of Commencement Date of Expiration
of Term of Term
March 21, 2001
March 17, 1999
March 21 2001
March 21 2001
March 17, 1999
March 21. 2001
March 17, 1999
Jeffrey M. Perlow, Mayor
Arthur Berger
Jay R. Beskin
Ken Cohen
Harry Holzberg
Manny Grossman
Patricia Rogers-Libert
March 16, 2005
March 20, 2003
March 16, 2005
March 16, 2005
March 20, 2003
March 16, 2005
March 20, 2003
3. The persons set forth in Exhibit A attached
appointed and qualified officers of the Participant holding
respective names and the signatures appearing on said Exhibit
officers.
hereto are the duly elected or
the office stated opposite their
A are genuine signatures of said
4. The City Manager and City Clerk of the Participant by their manual signatures
duly executed and attested the execution of the Loan Agreement (the "Loan Agreement") dated
as of August 1, 2002, by and between Participant and the Florida Intergovernmental Finance
Commission (the "Issuer").
5. The information in the Preliminary Official Statement and the Official Statement
relative to the Participant does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading;
6. The first Tuesday of every month is the regular meeting date of the Participant,
said meetings to commence at 6:00 p.m. All meetings of the City Commission of the Participant,
including meetings at which action was taken with respect to the Loan Agreement, have been
open to the public in accordance with the provisions of Section 286.011, Florida Statutes.
7. All approvals required to be obtained by the Participant in connection with the
execution of the Loan Agreement have been obtained and are in full force and effect as of the
date hereof.
8. Any certificate signed by any officer of the Participant delivered to the Issuer
shall be deemed a representation of the Participant to the Issuer as to the statements made
therein.
9. The seal affixed to this certificate and the Loan Agreement is the official seal of
the Participant.
IN WITNESS WltE~OF, the undersigned have hereunto set the official seal of the
Participant and their signatures as of day of August, 2002.
CITY OF AVENTURA, FLORIDA
(SEAL)
Approved as to form
and sufficiency.
By:
By:
Eric M. Soroka
City Manager
Teresa M. Soroka,
City Clerk
Weiss, Serota & Helfman, P.A.,
City Attomey
EXHIBIT A TO THE CERTIFICATE OF PARTICIPANT
OFFICERS OF
CITY OF AVENTURA, FLORIDA
NAME
Jeffrey M. Perlow
Eric M. Soroka
Harry Kilgore
Teresa M. Soroka
OFFICE
Mayor
City Manager
Director of Finance
City Clerk
SIGNATURE
EXHIBIT D
REQUEST FOR ADVANCE
The undersigned, the duly authorized of City of Aventura,
Florida (the "Participant"), submits this Request for Advance on behalf of the Participant for
$ pursuant to Section 3.02 of that certain Loan Agreement by and between the Florida
Intergovernmental Finance Commission (the "Issuer") and the Participant dated as of August 1,
2002 (the "Loan Agreement"), and relating to the Issuer's Municipal Loan Program (the
"Program"). The Trustee shall disburse the amount requested herein to
[list parties, including Participant and provide mailing address (or wire instructions)] for the
following purpose[s]:
(the
"Equipment").
Attached hereto as composite Exhibit A are certain documents which, among other things,
verifies that the amount requested herein does not exceed the Cost (as defined in the Loan
Agreement) paid or incurred by the Participant for such Equipment prior to the disbursement of
the funds requested herein and, when disbursed, the total amount disbursed to such Participant
pursuant to Section 3.02 of the Loan Agreement does not exceed the Participant's Loan amount
set forth in Section 3.01 of the Loan Agreement unless a wr/ting has been attached hereto signed
by the Administrator stating that the Participant is eligible for such amount.
The undersigned, on behalf of the Participant, hereby certify that:
1. The Project (as described herein and in Exhibit A) has been purchased,
constructed or installed by the Participant and payment therefore is due and owing or has been
previously paid by Participant.
2. To the extent amounts, if any, requested herein are being used to reimburse the
Participant for Equipment previously purchased, such Equipment was purchased by the
Participant no earlier than sixty (60) days prior to the adoption of Resolution No. 2002-16 on
March 5, 2002, and evidence of the purchase thereof is contained in Exhibit A attached hereto.
3. The Participant is a governmental entity validly existing and in good standing
under the laws of the State of Florida, with full power and authority to own its properties and
conduct its business as presently owned and conducted and, to the best of our knowledge, after
due inquiry, is not in violation of any laws material to the transactions contemplated by the Loan
Agreement, this Request for Advance, or any provisions of law material to the transactions
\~MIA-SRV01\1397307v02\7/11/02~6245.010300
D-1
contemplated by the Loan Agreement and this Request for Advance, and has all requisite power
and authority to execute and deliver this Request for Advance.
4. The Participant has obtained all necessary permits, licenses and certifications to
continue the conduct of its operations and to undertake the actions which wilt be financed fi.om
the funds to be disbursed hereunder.
5. The Loan Agreement and the Participant Notes (as defined in the Loan
Agreement) are in full force and effect and continue to be valid, enforceable and legally binding
obligations of the Participant, enforceable in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by laws relating to bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and the Participant has
received all consents, approvals and authorizations of governmental authorities or agencies
required for incurring the debt represented by such documents, including amounts which will
become outstanding pursuant to this Request for Advance, and/or the continued performance of
such documents.
6. There is no litigation or legal or governmental action, proceeding, inquiry or
investigation pending or, to the best knowledge of the undersigned after due inquiry, threatened
by governmental authorities to which the Participant is a party or of which any property of the
Participant is subject which, if determined adversely to the Participant, individually or in
aggregate (i) affect the validity or enforceability of the Loan Agreement or the Participant Notes
(as defined in the Loan Agreement) or (ii) otherwise materially and adversely affect the ability of
the Participant to comply with its obligations under the Loan Agreement or the Participant Notes
(as defined in the Loan Agreement).
7. The representations and warranties of the Participant set forth in the Loan
Agreement are tree and correct on the date hereof; and the Participant is in compliance with all
terms, covenants and conditions of the Loan Agreement on the date hereof.
8. The Participant does not plan to use, or permit the use of, the Project except as
permitted by the Loan Agreement.
\~MIA-SRV01\1397307v02\7/11/02~46245.010300
D-2
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and affixed
the seal of the Participant, duly attested this __ day of _, 2002 and effective as of
_, 2002.
[SEAL]
CITY OF AVENTURA,
FLORIDA
By:
Eric M. Soroka, City Manager
Attest:
By:
Teresa M. Soroka,
City Clerk
cc: Administrator
\~IA-SRV01\1397307v02\7/11/02~6245.010300
D-3
EXHIBIT E
OPINION OF PARTICIPANT'S COUNSEL
[Letterhead of Counsel to Participant]
August ,2002
Florida Intergovernmental Finance
Commission
Orlando, Florida
SunTrust Bank
Orlando, Florida
Mayor and City Commission of
the City of Aventura, Florida
Ladies and Ggntlemen:
We are counsel to the City of Aventura, Florida (the "Participant"), and have been
requested by the Participant to give this opinion in connection with the loan by the Florida
Intergovernmental Finance Commission (the "Issuer") to the Participant of funds to finance or
refinance or reimburse the Participant for all or a portion of the cost of a certain Project (the
"Project") as defined in, and as described in Exhibit A of, the Loan Agreement, dated as of
August 1, 2002 (the "Loan Agreement"), between the Issuer and the Participant.
In this connection, we have reviewed such records, certificates and other documents as
we have considered necessary or appropriate for the purposes of this opinion, including
applicable laws, local applicable Charters and ordinances enacted by the City Commission of the
Participant, the Loan Agreement, a Trust Indenture dated as of August 1, 2002 (the "Indenture")
between the Issuer and SunTrust Bank, as trustee (the "Trustee") and Resolution No.
adopted by the Participant on July 18, 2002 (the "Resolution"). Based on such review, and such
other considerations of law and fact as we believe to be relevant, we are of the opinion that:
(a) The Participant is a municipality duly organized and validly existing under the
Constitution and laws of the State of Florida and under the provisions of the Constitution and
laws of the State of Florida. The Participant has the legal right and all requisite power and
authority to enter into the Loan Agreement, to adopt the Resolution and to consummate the
transactions contemplated thereby and otherwise to carry on its activities and own its property.
Co) The Participant has duly adopted the Resolution and duly authorized, executed
and delivered the Loan Agreement and each is a legal and bind'rog obligation of the Participant
enforceable against the Participant in accordance with its terms, except to the extent that the
\~tlA-SRV01\1397307v02\7/11/02~46245.010300
D-4
enforceability hereof may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights heretofore or hereafter enacted and that their
enforcement may be subject to the exercise of judicial discretion in accordance with general
principles of equity, and to the sovereign police powers of the State of Florida and the
constitutional powers of the United States of America.
(c) The Participant has duly covenanted in the Loan Agreement to make the Loan
Repayments from its Non-Ad Valorem Revenues in accordance with the provisions of the Loan
Agreement and such covenant is legally valid and binding.
(d) The execution and delivery of the Resolution, the Loan Agreement and the Note,
the consummation of the transactions contemplated thereby, the purchase or construction of the
Project or the reimbursement for costs of the acquisition or construction thereof or the
refinancing of the indebtedness to be refinanced with the proceeds of the loan and the fulfillment
of or compliance with the terms and conditions of the Loan Agreement does not and will not
conflict with or result in a material breach of or default under any of the terms, conditions or
provisions of any agreement, contract or other instrument, or law, ordinance, regulation, or
judicial or other governmental order, to which the Participant is now a party or it or its properties
is otherwise subject or bound, and the Participant is not otherwise in violation of any of the
foregoing in a manner material to the transactions contemplated by the Loan Agreement.
(e) There is no litigation or legal or governmental action, proceeding, inquiry or
investigation pending or, to the best of our knowledge, threatened by governmental authorities or
to which the Participant is a party or of which any property of the Participant is subject, which
has not been disclosed in writing to the Issuer and which, if determined adversely to the
Participant, would individually or in the aggregate materially and adversely affect the validity or
the enforceability of the Loan Agreement or the Note.
We are attorneys admitted to practice law only in the State of Florida and express no
opinion as to the laws of any other state and further express no opinion as to the status of interest
on the Bonds under either Federal laws or the laws of the State of Florida.
Very truly yours,
\~IIA-SRV01\1397307v02\7/11/02M.6245.010300 E-5
EXHIBIT F
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Participant:
City of Aventura, Florida
Name of Bond Issue:
Florida Intergovernmental Finance Commission, Capital Revenue
Bonds, 2002 Series A, dated as of August 1, 2002
Date of Issuance:
August __, 2002
NOTICE IS HEREBY GIVEN that the Participant has not provided an annual report with
respect to the above-referenced Bonds as required by Sections 13.03 and 13.04 of the Loan
Agreement dated as of August I, 2002, between the Florida Intergovernmental Finance
Commission and the Participant executed and delivered by the Participant in connection with the
loan ora portion of the proceeds of the Bonds to the Participant. The Participant anticipates that
the annual report will be filed by
Dated:
By:
Its:
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