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2000-074 RESOLUTION NO. 2000-74 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA ACCEPTING THE PROPOSAL OF BANK OF AMERICA, N.A. TO PROVIDE THE CITY WITH A LOAN IN THE AGGREGATE PRINCIPAL AMOUNT OF $6,555,000 TO FUND THE COSTS OF VARIOUS CAPITAL ACQUISITIONS AND IMPROVEMENTS RELATING TO PARKS, RECREATION AND COMMUNITY CENTERS WITHIN THE CITY; APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, A LOAN AGREEMENT INCLUDING A REVENUE NOTE ATTACHED THERETO WITH SAID BANK IN ORDER TO EVIDENCE SAID LOAN; AUTHORIZING THE REPAYMENT OF THE NOTE UNDER THE LOAN AGREEMENT ONLY FROM NON- AD VALOREM FUNDS APPROPRIATED FOR SUCH PURPOSE; DELEGATING CERTAIN AUTHORITY TO THE CITY MANAGER AND CITY CLERK; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA: SECTION 1.AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Act (as defined herein). SECTION 2.DEFINITIONS. When used in this Resolution, capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement (as defined herein), unless the context clearly indicates a different meaning. "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, the Ordinance and other applicable provisions of law. "Bank" shall mean Bank of America, N.A., and its successors and assigns. Resolution No. 2000-74 Page 2 "Bank Proposal" shall mean the Bank's proposal dated October 20, 2000, attached hereto as Exhibit A. "City" shall mean the City of Aventura, Florida. "City Clerk" shall mean the City Clerk of the Issuer or such person's designee. "City Manager" shall mean the City Manager of the Issuer or such person's designee. "Financial Advisor" shall mean Dain Rauscher, Inc. "Loan Agreement" shall mean the Loan Agreement to be executed between the City and the Bank, the form of which is attached hereto as Exhibit B. "Note" shall mean the Revenue Note, Series 2000A to be executed by the City in lhvor of the Bank, the form of which is attached to the Loan Agreement as Exhibit A. "Ordinance" shall mean the Ordinance enacted by the City on the date hereof authorizing the issuance of obligations to finance the Project, as it may be amended and supplemented from time to time. "Pledged Revenues" shall have the meaning assigned such term in the Loan Agreement. "Project" shall have the definition set forth in the Ordinance. "Request for Proposal" shall mean the City's Request for Proposal dated October 4, 2000. The words "herein," "hereby," "hereto," "hereof," and any similar terms shall refer to this Resolution. Words importing the singular number include the plural number, and vice versa. SECTION 3.FINDINGS. It is ascertained, determined and declared: 2 Resolution No. 2000-74 Page 3 (A) That there is presently a need to acquire, construct and equip the Project as more particularly described in the Ordinance. (B) That in response to the City's Request for Proposal, the Bank submitted its proposal to provide the City with a loan in the aggregate amount of $6,555,000 to finance all or a portion of the costs of the Project, all as more particularly described in the Loan Agreement. (C) That amounts borrowed under the Loan Agreement shall be repaid solely from Pledged Revenues in the manner permitted under the Ordinance and to the extent set forth in the Note and the Loan Agreement and the ad valorem taxing power of the City will never be necessary or authorized to the pay said amounts. (D) That it is not reasonably anticipated that more than $10,000,000 of tax-exempt obligations under Section 265(b)(3) of the Code will be issued by the City in calendar year 2000. SECTION 4.RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the purchase and acceptance of the Note authorized to be issued pursuant to this Resolution and the Loan Agreement by those who shall be the Noteholders from time to time, this Resolution shall constitute a contract between the City and the Noteholders. SECTION 5.ACCEPTANCE OF PROPOSAL. The City Manager, on behalf of the City and in accordance with the terms of the Resolution adopted by the City on October 3, 2000 and in reliance on the advice of the City's Financial Advisor, has determined that the Bank Proposal is in the best interest of the City considering the interest rate, term, costs and expenses, covenants, prepayment features and other terms contained therein, and that it complies in all respects with the Request for Proposals. The City hereby accepts the Bank Proposal, attached as Exhibit A hereto, to provide the City with a loan in the aggregate amount of $6,555,000. SECTION 6.APPROVAL OF FORM OF LOAN AGREEMENT. The Loan Agreement, in substantially the form attached hereto as Exhibit B, is hereby approved. The City hereby authorizes the City Manager and the City Clerk to execute and deliver on behalf of the City the Loan Agreement, with such changes, insertions and additions as the City Manager may approve, their execution thereof being evidence of such approval. 3 Resolution No. 2000-74 Page 4 SECTION 7.LIMITED OBLIGATION. The obligation of the City to repay the Note under the Loan Agreement is a limited and special obligation payable from Pledged Revenues solely in the manner and to the extent set forth in the Loan Agreement and shall not be deemed a pledge of the faith and credit or taxing power of the City and such obligation shall not create a lien on any property whatsoever of or in the City other than Pledged Revenues. SECTION 8. APPROVAL OF NOTE. In order to evidence the loan under the Loan Agreement it is necessary to provide for the execution of the Note. The City hereby authorizes the City Manager and the City Clerk to execute and deliver on behalf of the City the Note in substantially the form attached to the Loan Agreement as Exhibit A, with such changes, insertions and additions as the City Manager may approve, their execution thereof being evidence of such approval. Because of the characteristics of the Note, prevailing market conditions and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the City to negotiate with the Bank to purchase the Note at a private negotiated sale. Prior to the issuance of the Note the issuer shall receive from the Bank the disclosure required by Section 218.385, Florida Statutes. SECTION 9.GENERAL AUTHORIZATION. The City Manager, the City Clerk, the Director of Finance Support Services and other employees or agents of the City are authorized to execute and deliver such documents, instrmnents and contracts, and are authorized and directed to do all acts and things required by this Resolution as may be necessary to effectuate the purpose and intent of this Resolution. SECTION10. REPEAL OF INCONSISTENT DOCUMENTS. All ordinances, resolutions or parts of each in conflict with this Resolution are superseded and repealed to the extent of such conflict. SECTION 11. 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 Perlow, and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Ken Cohen yes Commissioner Harry Holzberg yes 4 Resolution No. 2000- 76 Page 5 Commissioner Jeffrey M. Perlow yes Commissioner Patricia Rogers-Libert yes Vice Mayor Jay R. Beskin yes Mayor Arthur I. Snyder yes PASSED AND ADOPTED THIS 14TH DAY OF NOVEMBER 2000. ~'I~HUR I.~NYDI~R, MAYOR ATTEST: ~,- TERESA M. SORO~, CMC CITY CLERK -~' APPROVED AS TO FORM AND LEGAl. SUFFICIENCY: CITY ATTORNEY EXHIBIT A BANKPROPOSAL TERM SHEET FOR INTERNAL .DISCUSSION PURPOSES ONL CI~ OF A~N~ October 2~, 2000 ~is te~ sheet d~cribes the b~ic terms ~d conditions to be included in a proposed credit faciliW be~n Ba~ of ~efica ~d ~e Bo~ower. It ts not e~au~ive and is subje~ to ~her due diligence, unde~riting and approval by Ba~ of ~erica. BO~O~R: CiW of Aven~ ~E OF FAC~: T~ ~ ~0~: Up to $6,555,000 P~POSE To ~ce ~e ~q~sifion of c~ ~ pwpe~ ~r pubhc p~, recr~on ~d co~ cen~ ~d ~c ~o~ =q~pping ~d ~la~on ofv~ous ~1 improvem~n~ ~er~on. ~: F~ ~mfi~ s~ll b~ no later ~ OoWber i, 2020. SEC~: ~s ~c~ity s~l be sec~ed by: - a cove~ to budget ~d appropfia~ honed ~orem revenues sn~ci~nt ~o cover ~1 pa~en~ of p~cip~ ~d mtere~. ~T: A fixod rate (~ exmpt) b~M upon 72% of 30 day L~O~ fix~ at time of closing ~ ~ in~gon oEy, if~e lo~ was closed to~y, ~e ~te would be 4.94%. h~re~ s~l be ~ed ~a a SW~ wi~ B~ of~cfi~ or ~o~er p~ ac~mble to A ~eld ~nt~ce ch~e ~ll b~ ~ eff6~ upon ~l~on ora fixed m~ option. ~e ~eld ~ten~n~ ~e will be fo~ of~e a~ed l~e ~ro~so~ Note comp~on upon prepa~ent or ~le~on). It is ~de~ood ~e B~ Qu~ ~ ~empt ~s s~l dete~in~ by Boffower's Cou~el ~d ~nfi~ed by ~ oPi~on of Cou~l. If~e ~a~ion do~ not quati~ for ~ a ~r ~ of int~ my ~ply. GROSS ~ PRO~SIONS: B~ of ~fi~'s s~ ~ss up pw~i~ ~1 apply. REPAYMENT: Interest payable semi-armually on April 1 and October 1, beginning April 1, 2001; Principal payable in annual payments due October Is~, beginning October I, 2001, in an amount sufficient to repay the debt in full by the final maturity date October 1, 2020. A sample payment schedule is attached based on the indicative rate above. This payment schedule is subject to change based on actual intercst ratc at timc of closing. PRECEDING CONDITION/;: Satisfactory receipt and review by Bank of: Determination oft,~xability oftransaetinn ? COVENANTS: Cove),~,~ts normally required by Bank of America for this type of traasaction, including but not limited to: No additional debt if such new obligation would cause the Debt Service Coverage to be less than 3.00 to l, measured annually. Debt Service Coverage is defined as Borrower's lawfully available non ad valorem revenues divided by principal and interest payments payable fi'om lawfully available non ad valorem revenues. The Borrower will mmnmin a Debt Service Coverage ratao of not less than 3.00 to 1. In the event the Borrower fails to maintain a Debt Service Coverage ratio of 3.00 to 1 for any Fiscal Year, then the Borrower shall either identify a lawfully available non ad valorem revenue stream, or a combination of such revenue streams, which, in and of itself, would have produced a Debt Service Coverage ratio of 3.00 to I or greater during the most recently completed Fiscal Year, and which shall otherwise be reasonably acceptable to the Bank, a~d shall, by resolution, pledge such revenues to the repayment ot'the Note. Alternatively, the Borrower shall prepay all or such portion of the principal of the No~e as shall reduce the debt service on the Note to such level so that non ad valorem revenues for the most recently concluded Fiscal Year, divided by principal and interest payments payable fi.om lawfully available non ad valorem revenues for such Fiscal Year, minus thc actual principal and interest payments on thc Note for such Fiscal Year, plus thc maximum annual principal and interest payments scheduled to become due on the Note in any Fiscal Year after such prepayment, would not have been less than 3.00 ~ 1. Borrower to provide an~,,~l financial statements within 270 days of fiscal year end, including compliance certification. - Borrower to provide annual budget within 60 days from its approval by the Commission. Cross defaulted with all other debt obligations. DOCUMENTATION This uansaction shall be documented by Bank outside counsel at Borrower's ~xpense. Legal fees am projected not to exceed , $4,500.00. The preceding terms mad conditions are not exhaustive and this Term Sheet is subject to cert, i, other terms and conditions customarily required by Bank of America for similar transactions.. The Borrower represents and agrees that all ~n~ncial statements mad other information delivered to Bank are correct and complete. No material adverse change may occur in, or any adverse circumstmace be discovered as to the business or financial condition of the Borrower. This Term sheet is subject to further due diligence and approval by Bank. Our approval process can accommodate a closing date of November 15, 2000. Sincerely, Banl~ of America t. Jean M4 Bell, Senior ¥i¢e President Attachments: I) Promissory Note-Compensation upon prepayment or acceleration. PROMISSORY NOTE-COMPENSATION UPON PREPAYMENT OR ACCELERATION. In addition to principal, intere~ and any other amounts due under this Note, Borrower shall on demand pay to Bank any "Breakage Fee" due hereunder for each Break Event. "Break Event" means any vnlunta~y or mandatory prepayment or acceleration, in whole or in part, of principal of this Note occurring pr/or to the date such principal would, but for that prepayment or acccleration, havc become due ("Scheduled Due Date",). For each date on which a Break Event occurs ("Break Date",), a Breakage Fee shall be due only ffthe rate under "A" below exceeds the rate under "B" below aud shall be delirmmed as follows: Breakage Fee -- the Present Value of ((A-B) x C) + LIBOR Breakage, where: A -- A rate p~r annum equal to the sum of (1) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the dali thc Interest Rate of this Noli was scl ("Lock In Dali"), plus (ii) the corresponding swap spread of Bank on thc Lock In Date for a fixed rate payor to pay Bank thc fixed rate side of an inlircst rali swap of that mamri~:y, plus (iii) .25%. B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Matur~ Dali aa rcpo~/exl by the Wall Street $oumal (or ot~cr published sottrce) on the Break Dali, plus (ii) the corresponding swap spread that Bank determines another swap dealer would quote to Bank on the Break Date for paying to Bank the fixed rate side of an interest rate swap of that mavanty. C= The sum o£the producLs of (i} each Affected Principal Amount for each A/fected Principal Period. times (ii) the number of days ia that Affected Principal Period divided by 360, "~ffected Principal ,4mount" for an Affected Principal Period is the principal araount of this Note scheduled to be ouistandin§ during that Affcclid Principal Period determined as of the relevant Break Date before giving effect to the Break Event on that Break Date, and for any prepaymeat, multiplying each such principal amount limes the Prepayment Fraction. ,,Iffected Principal Period" is each period from and including a Scheduled Due Dali to but excluding the next succeeding Scheduled Due Date, provided thai the first such period shall begin on and includes thc Break Date. "LIBOR Breakage" is any additional loss, cost or ~xpense that Bank may incur with respect to any hedge for the fixed rate of this Note based on the difference between the London intorbank o/fcrccl rate (for U.S. dollar deposits of thc relevant maturiW) available in the London interbank market at the beginning of the interest period in which thc Break Date occurs and that which is available in tha~ market on the Break Date. "Maturity Date' is the dali on which thc final payment of principal of this Note would, but for any Break Event, have become due. *,Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of this Noli outstanding immediately prior to theft prepayment on the Break Dali. "Present Value" is d~'min~l as of'the Break Date using "B" above a.s the discount ra~e. In addition, a Break Event shall be de~med to occur hereunder if, on any date ("Borrowing Date") at~r th~ date hcr~of but prior to any acceleration ofthls Note, any advance of principal under this Note is scheduled to be nmde a~d tha~ advance fails to be made on that Borrowing Date (whether due to Borrower's default, Borrower's failure to borrow, thc termination of any loan conunim~nt, any unsatisfied condition preccdeut, or othu~vis¢), in which case :ba~ Borrowing Dat~ shall bca Break Date, thc Affectexi Principal Amount for that Break Event shall be based on thc amount of thc failed advance, and t~e Borrower shall on demand pay to th~ Bank any Breakage Fee due hereunder for that Break EvcaL Breakage Fees arc payable as liquidated dara~es, are a reasonable pre-estimate of the losses, costs and expenses Bankwould incur for any Break Event, are not a pe~dty, will not require clmm for, or proof of, actual damages, and Bankts dcterminatinn thereof shall be conclusive and binding in thc absence of rnamfcrt error. For any Break Evcnt occurring after the date of this Note, thc foregoing Brcaka~ Fee provisions supersede any brea~e compensation agr~-c~me~ that Borrower and Bank may have executed with respect to this Note. substance by the Bank and its Counsel This letter does not constitute a commitment on the part of the Bank to lend, as it requires the final credit approval of the Bank based upon a review of the financial statements of the Borrower by the Bank. Final approval of the proposal will be determined by Wednesday, October 25, 2000. WAIVER: THE MAKER, BY EXECUTION HEREOF, AND THE LENDER, BY ACCEPTANCE HEREOF, MUTUALLY AND WILLINGLY WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE BETWEEN THEM WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING, XVITHOUT LIMITATION, ANY AND ALL CLAIMS, AND INTERVENOR'S CLAIMS WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION, AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THIS PROPOSAL RELATES. THIS PROPOSAL OUTLINES THE GENERAL TERMS AND CONDITIONS OF THE PROPOSED LENDING AGREEMENT BETWEEN THE CITY OF AVENTURA AND SUNTRUST BANK. IF THIS OFFER IS NOT ACCEPTED BY THE CITY OF AVENTURA ON OR BEFORE NOVEMBER 15, 2000, THE OFFER WILL EXPIRE UNLESS EXTENDED BY THE BANK. IF ACCEPTED, THE FACILITIES MUST CLOSE BY NOVEMBER 15, 2000. We sincerely appreciate the opportunity to serve the City of Aventura and look forward to hearing from you. Please sign below upon acceptance and return the original to my attention. If you have any questions please call me at (305) 579-7014. Michael W, Ryan Institutional Banking Officer SIGNED AND ACCEPTED THIS DAY OF , 2000. CITY OF AVENTURA BY: AS ITS: EXHIBIT B FORM OF LOAN AGREEMENT LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of November 15, 2000, by and between City of Aventura, Florida, a municipal corporation of the State of Florida, and its successors and assigns (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns as holder(s) of the hereinafter de£med Note (the "Bank"); WHEREAS, the Issuer did, on November 14, 2000, enact an Ordinance (the "Ordinance") authorizing, among other things the issuance of not to exceed $6,750,000 in aggregate principal amount of obligations of the City to finance all or a portion of the costs of the Project (as defined below) and providing for a covenant to budget and appropriate legally available Non-Ad Valorem Funds each year to pay the principal of, redemption premium, if any, and interest on the obligations; and WHEREAS, the Issuer did, on November 14, 2000, adopt a Resolution (the "Note Resolution") authorizing, among other things the issuance ora Promissory Note of the Issuer in the aggregate principal amount of $6,555,000 (the "Note") for the primary purpose of £mancing certain of the costs of the Project; and WHEREAS, the Issuer hereby determines that it is desirable and in the best interest of the Issuer to enter into this Agreement whereby the Issuer will borrow funds from the Bank for the purpose of£mancing the costs of the Project, making a deposit to the hereinafter defined Reserve Fund and paying the costs of issuance the Note (the "Loan") and to evidence the obligation of the Issuer to repay such Loan. The Issuer will issue and deliver the Note to the Bank in the aggregate principal amount of the Loan; and WHEREAS, the Note shall be issued pursuant to the terms and provisions of the Ordinance, the Note Resolution and this Agreement; and WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Note Resolution. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS SECTION 1.01 DEFINITIONS. Thewords andterms usedinlhisAgreement shallhave ~ meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined herein. Unless the context sha]l otherwise require, the following words and terms as used in this Agreement shall have the following meanings: "Agreement" shall mean this Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "City Clerk" shall mean the Clerk of the Issuer or such person's designee. "City Manager" shall mean the City Manager of the Issuer or such person's designee. "Code" shall mean the Intemal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder. "Event of Default" shall mean an event of default specified in Article VII of this Agreement. "Final Maturity Date" shall mean October 1, 2020. "Finance Director" shall mean the Finance Support Services Dite6~r of the Issuer or such person's designee. "Interest Rate" means 5.04% per annum. "Loan" shall mean the outstanding principal amount of the Note issued hereunder. "Loan Documents" stroll mean this Agreement, the Ordinance, the Note, the Note Resolution and all other documents, agreements, certificates, schedules, notes, statements, and opinions, however described, referenced herein or executed or delivered pursuant hereto or in co~mection with or arising with the Loans or the transaction contemplated by this Agreement. "Non-Ad Valorem Funds" shall mean all revenues of the Issuer derived fi:om any source other than ad valorem taxation on real or personal properly, which are legally available to make the payments required under this Agreement or the Note but only after provision has been made by the Issuer for the payment of all essential or legally mandated services. "Noteholder" shall mean the Bank as the holder of the Note, or any other registered holder of the Notes. "Pledged Revenues" shall mean (a) the amounts on deposit in the Reserve Fund, (b) to the extent provided in Section 3.09 of this Agreement the Non-Ad Valorem Funds, and (c) any revenue source pledged to the repayment of the Note pursuant to Section 3.04 of this Agreement. "Project" shall mean the acquisition of land for public parks, recreation and community centers and the acquisition, construction, equipping and installation of various capital improvements as more particularly described in the plans and specifications on file with the Issuer. "Reserve Fund" shall mean the Reserve Fund created pursuant to Section 3.08 of this Agreement. Reserve Fund Requirement" means $500,000. SECTION 1.02 INTERPRETATION. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth here/n and to sustain the validity hereof. SECTION 1.03 TITLES AND HEADINGS. The titles and headings of the articles and sections of this Agreement have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. 3 ARTICLE II REPRESENTATIONS OF ISSUER The Issuer represents and warrants to the Bank that: SECTION 2.01 POWERS OF ISSUER. The Issuer is a political subdivision duly organized and validly existing as a municipal corporation under the laws of the State of Florida. The Issuer has the power to borrow the amount provided for in this Agreement, to execute and deliver the Loan Documents, to secure the Note in the manner contemplated hereby, and to perform and observe all the terms and conditions of the Note and this Agreement on its part to be performed and observed. The Issuer is or will be within the time required by law empowered to commence and prosecute the Project and the Issuer may lawf~ly issue the Note in order to £mance the costs of the Project. SECTION 2.02 AUTHORIZATION OF LOAN. The Issuer has had or will have, as the case may be, full legal right, power, and authority to adopt the Ordinance, the Note Resolution and to execute and deliver this Agreement, to issue, sell, and deliver the Note to the Bank, and to carry out and consummate all other transactions contemplated by the Loan Documents, and the Issuer has complied and will comply with all provisions of applicable law in all material matters relating to such transactions. The Issuer, by the Ordinance and Note Resolution, has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank provided for in this Agreement and to that end the Issuer warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Note. The Issuer has duly enacted or adopted, as the case may be, the Ordinance and Note Resolution and authorized the execution, delivery, and performance of the Note and this Agreement and the taking of any and all other such action as may be required on the part of the Issuer to cany out, give effect to and consummate the transactions contemplated by the Loan Documents. The Note has been duly authorized, executed, issued and delivered to the Bank and constitutes the legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, and is entitled to the benefits and security of this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Note or the execution and delivery of or the performance by the Issuer of its obligations under the Loan Documents have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. SECTION 2.03 AGREEMENTS. To the best knowledge of the Issuer, the making and performing by the Issuer of this Agreement will not violate any provision of the 4 Act, or any bond or note resolution of the Issuer, or any regulation, order or decree of any court, and will not result in a breach of any of the terms of any agreement or instrument to which the Issuer is a party or by which the Issuer is bound. The Loan Documents constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their respective terms. SECTION 2.04 LITIGATION, ETC. There are no actions or proceedings pending against the Issuer or affecting the Issuer or, to the knowledge of the Issuer, threatened, which, either in any case or in the aggregate, might result in any material adverse change in the financial condition of the Issuer, or which questions the validity of this Agreement, the Note or any of the other Loan Documents or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. The Issuer is not in default in any material respect under any agreement or other insmnnent to which it is a party or by which it may be bound. SECTION 2.05 FINANCIAL INFORMATION. The financial information regarding the Issuer furnished to the Bank by the Issuer in connection with the Loan is complete and accurate, and there has been no material and adverse change in the £mancial condition of the Issuer from that presented in such information. The Issuer will cause an audit to be completed of its books and accounts and shall furnish to the Noteholder audited year-end financial statements of the Issuer certified by an independent certified public accountant acceptable to the Noteholder to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer and the results of its operations and cash flows for the periods covered by the audit report, all in conformity with generally accepted accounting principles applied on a consistent basis. The Issuer shall adopt an annual budget as required by law. The Issuer shall provide the Noteholder with (a) a copy of its annual operating budget for each fiscal year ending after September 30, 2001 promptly (but no later than sixty (60) days) after it is adopted, and (b) its audited financial statements for each fiscal year ending after September 30, 2000 within two hundred seventy (270) days after the end thereof accompanied by a certificate signed by an authorized officer of the Issuer stating whether the Issuer is in compliance with all representations, warranties and covenants of the Issuer in the Note and in this Agreement, and if not, identifying the nature of such non-compliance. The Issuer acknowledges and agrees that the Bank's ability to monitor and evaluate the status of the Loan is dependent upon the Issuer's timely providing financial information required herein. In addition to all other rights and remedies Bank has should the Issuer fail to timely provide the financial information required by this Section 2.05, including declaring the Loan to be in default, the Bank may charge the Issuer a late fee of up to ten basis points (0.1%) of the outstanding principal balance of the Note, not to be less than $500. The charging and/or payment of the fee is not a waiver of the issuer's continuing obligation to provide the required financial information. SECTION 2.06 SECTION 265 DESIGNATION OF NOTE. The reasonably anticipated amount of tax-exempt obligations (other than obligations described in clause (ii) of Section 265(b)(3)(C) of the Code) which have been or will be issued by the Issuer during calendar year 2000 does not exceed $10,000,000. There are no entities which are subordinate to or which issue obligations on behalf of the Issuer. The Issuer hereby designates the Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The Issuer hereby covenants and agrees not to take any action or to fail to take any action if such action or failure would cause the Note to no longer be a "qualified tax-exempt obligation." ARTICLE III COVENANTS OF THE ISSUER SECTION 3.01 AFFIRMATIVE COVENANTS. The Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of the Issuer hereunder or under any of the other Loan Documents remains unpaid or unperformed, as follows: (a) Payment. The Issuer covenants that it shall duly and punctually pay the principal of the Note and the interest thereon at the dates and place and in the manner (and subject to the limitations) provided herein and in the Note according to the true intent and meamng thereof. (b) Use of Proceeds. The Issuer covenants that the proceeds from the Note will be used only for costs of the Project, to fund the Reserve Fund and to pay costs of issuing the Note. (c) Notice of Defaults. The Issuer shall within ten (10) days after it acquires knowledge hereof, notify the Bank in writing upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and the action being taken or proposed to be taken by the Issuer with respect thereto. (d) Maintenance of Existence. The Issuer covenants that it will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under the Loan Documents have been paid in full. 6 (e) Records. The Issuer agrees that any and all records of the Issuer with respect to the Pledged Revenues, the Project and/or the Loan Documents shall be open to inspection by the Bank or its representatives at all reasonable times at the offices the Issuer. SECTION 3.02 NEGATIVE COVENANTS. The Issuer covenants, for so long as any of the principal mount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the Loan Documents remain unpaid or unperformed, that: (a) The Issuer shall not alter, amend or repeal the Ordinance or Note Resolution, or take any action impairing the authority thereby or hereby given with respect to the issuance and payment of the Note, without prior written approval of the Noteholder. (b) The Issuer shall not pledge or encumber the Pledged Revenues except in connection with indebtedness permitted by Section 3.06 hereof. SECTION3.03 INCORPORATION OF NOTE RESOLUTION. All representations, covenants and warranties of the Issuer contained in the Note Resolution are incorporated herein by reference to the same extent as if set forth verbatim herein and constitute part of this Agreement. SECTION 3.04. DEBT SERVICE COVERAGE RATIO. For so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the Loan Documents remain unpaid or unperformed, the Issuer will maintain a "Debt Service Coverage Ratio" of at least 2.50:1.00 for each fiscal year of the Issuer. The Debt Service Coverage Ratio for each fiscal year will be calculated based upon the audited fmancial statements of the Issuer, and will be the ratio of the total Non-Ad Valorem Ftmds of the Issuer that could lawfully be used to pay principal and interest on the Note divided by the total principal and interest payments (whether on the Note or otherwise) paid from such Non-Ad Valorem Funds. In the event that the Issuer fails to maintain a Debt Service Coverage Ratio of at least 2.50:1.00 for any fiscal year, then the Issuer shall identify a lawfully available Non-Ad Valorem Fund revenue stream, or a combination of such revenue streams, which in and of itself, would have produced a Debt Service Coverage Ratio (taking into account only the payments of principal and interest on the Note) of 2.50:1.00 or greater during the most recently completed fiscal year and which shall otherwise be reasonably acceptable to the Bank, and shall by resolution pledge such revenues to repayment of the Note. Alternatively, the Issuer shall prepay all or such portion of the principal of the Note as shall reduce the debt service on the Note to such level so that the ratio of the Non-Ad Valorem Funds of the Issuer that could lawfully be used to pay principal and interest on the Note for the most recently concluded fiscal year, to the principal 7 and interest payments (whether on the Note or otherwise) payable from Non-Ad Valorem Funds for such fiscal year, minus the actual principal and interest payments on the Note for such fiscal year, plus the maximum annual principal and interest payments scheduled to become due on the Note in any fiscal year after such prepayment, would not have been less than 2.50:1.00. SECTION 3.05. BANK FEES AND EXPENSES. The Issuer hereby agrees to pay the fees and expenses of counsel to the Bank in connection with the issuance of the Note in the mount of $4,500.00, plus reasonable out of pocket expenses, said amount to be due and payable upon the issuance of the Note. SECTION 3.06. MISCELLANEOUS COVENANTS AND REPRESENTATIONS. (a) The Issuer shall not hereafter incur any indebtedness payable from any Non-Ad Valorem Funds source which could, but for such future indebtedness, be lawfully used to pay principal of or interest on the Note (any and all such indebtedness, whether nor existing or incurred in the future, is referred to as "Competing Debt"), unless the amount of such Non- Ad Valorem Funds received by the Issuer during the twelve complete months most recently concluded prior to the issuance of the such Competing Indebtedness equals or exceeds 250% of the maximum amount of principal and interest scheduled to be payable on the Note and all Competing Debt (included the proposed debt) during the then current or any furore period of twelve consecutive months, and the City Manager or Finance Director of the Issuer certifies in writing to the Bank that the to the best of his or her knowledge no event has occurred which would cause him or her to believe that the amount of such Non-Ad Valorem Funds to be received in any future period of twelve consecutive months would be less than 250% of the amount of principal and interest scheduled to be payable on the Note and all Competing Debt during such twelve month period. For purposes of calculating the foregoing, if any such indebtedness bears a variable rate of interest, then the interest rate on such indebtedness shall be assumed to be the lowest of (i) the highest actual interest rate borne by such indebtedness at any time since the date of issuance thereof, (ii) 12% per annum for taxable debt and 8% for tax-exempt debt and (iii) if the Issuer shall have entered into an interest rate swap or interest rate cap or shall have taken any other action which has the effect of fixing or capping the interest rate on such indebtedness for the entire term thereof, then such fixed or capped rate. (b) The Issuer shall invest only in obligations permitted by Florida law. (c) The Issuer shall not dispose of any of its assets other than in the ordinary course of business without the prior written consent of the Bank. 8 (d) The Issuer shall promptly inform the Bank of any actual or potential contingent liab'dities of any amount which might reasonably be anticipated to have a material and adverse effect upon the overall financial condition of the Issuer or its ability to comply with any of its obligations under the Loan ~ents. (e) The Issuer shall maintain such liaUflity, casualty and other insurance as is reasonable and prudent for similarly situated municipalities of the State of Horida and shall upon the request of the Bank, provide evidence of such coverage to the Bank. (f) The Issuer is in compliance with and shall comply with all material applicable federal, state and local laws and regulato~ requirements. (g) In the event the Note, this Agreement or any other Loan Document should be subject to the excise tax on documents or the intangible personal property tax of the State of Florida, the Issuer shall pay such taxes or reimburse the Bank for any such taxes paid by it. (h) The Issuer shall not loan money or make advances or other extensions of credit to other persons or entitles. (i) The Issuer shall do all things lawfi, tlly within its power to maintain its existence as a municipality of the State of Florida~ SECTION 3.07. AUTOMATIC PAYMENT PROCEDURE. The Issuer hereby authorizes the Bank to automatically deduct from the Issuer's account with the Bank numbered 1596448966 the amount of any payment due from the Issuer to the Bank under the Note or other Loan Documents when due. If the funds in the account are insufficient to cover any payment, the Bank shall not be obligated to advance funds to cover the payment. At any time and for any reason, the Issuer or the Bank may voluntarily terminate the automatic payments provided for herTm by written notice delivered to the other. SECTION 3.08. RESERVE FUND. The Issuer agrees to establish the Reserve Fund and to maintain the amount on deposit therein in an amount equal to Reserve Fund Requirement. To the extent the amount on deposit in the Reserve Fund exceeds the Reserve Fund Requirement, the Issuer shall apply the excess to payment of debt service on the Note or for any lawfi.fl purpose of the Issuer. To the extent the amount on deposit in the Reserve Fund is less than the Reserve Fund Requirement, then the Issuer agrees to restore the amount on deposit in the Reserve Fund to the Reserve Fund Requirement from the first Non-Ad Valorem Funds ava'table for such purpose after making all required payments on the Note, and in any event within twelve (12) months after the date such deficiency first occurred. Amounts on deposit in the Reserve Fund to the extent of the Reserve Fund Requirement shall be used, and may only be use& to make payments of principal of and interest on the Note 9 to the extent the other Pledged Revenues of the Issuer are insufficient for such purpose. The Reserve Fund is not required to be a separate bank account, but the Issuer must maintain adequate accounting records to determine the existence of the Reserve Fund and the amount on deposit therein. The Issuer will value the amount on deposit in the Reserve Fund at least as often as once in each period of twelve (12) consecutive months. SECTION 3.09 COVENANT TO BUDGET AND APPROPRIATE. The Issuer covenants that, so long as the Note shall remain unpaid, it will appropriate in its annual budget, by amendment, if necessary, fi'om Non Ad Valorem Funds lawfully available in each fiscal year, amounts sufficient to pay the principal of, redemption premium, if any, and interest on the Note and other obligations under the other Loan Documents not being paid from other amounts as the same shall become due. Such covenant and agreement on the part of the Issuer to budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing, the Issuer has not covenanted to maintain any services or programs, now provided or maintained by the Issuer, which generate Non-Ad Valorem Funds. Such covenant to budget and appropriate shall not create any lien upon or pledge of such Non-Ad Valorem Funds, nor shall it preclude the lssuer from pledging in the future its Non-Ad Valorem Funds, nor shall it require the Issuer to levy and collect any particular Non- Ad Valorem Funds, nor shall it give any Noteholder a prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of the Issuer. Such covenant to budget and appropriate Non-Ad Valorem Funds shall be subject in all respects to the payment of obligations secured by a prior or future pledge of such Non-Ad Valorem Funds (including the payment of debt service on bonds and other debt instruments). However, the covenant to budget and appropriate in its eamual budget for the purposes and in the manner stated in the Ordinance and in this Agreement shall have the effect of making Non-Ad Valorem Funds available for the payment of the Note, and placing on the Issuer a positive duty to appropriate and budget, by amendment, if necessary, Non-Ad Valorem Funds sufficient to meet its obligations under this Agreement; subject, however, in all respects to the restrictions of Section 166.241 (3), Florida Statutes, which provides, in pea't, 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 of the Issuer or which are legally mandated by applicable law. SECTION 3.10 COMPLIANCE WITH TAX REQUIREMENTS. The Issuer covenants and agrees, for the benefit of the Noteholders fi'om time to time, to comply with the requirements applicable to it contained in Section 103 and Peat IV of Subchapter B of 10 Chapter 1 of the Code to the extent necessm'y to preserve the exclusion of interest on the Note from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the Issuer covenants and agrees: (a) to pay to the United States of America from the funds and sources of revenues pledged to the payment of the Note to the extent legally available, and fi'om any other legally available funds, at the times required pursuant to Section 148(0 of the Code, the excess of the amount earned on all non-purpose investments (as defined in Section 148(0(6) of the Code) (other than investments atn-ibuted to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Note, plus any income attributable to such excess, computed in accordance with Section 148(0 of the Code (the "Rebate Amount"); (b) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all deterrninations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessm3, to comply with the Code; (c) to refrain from using proceeds of the Note in a manner that would cause the Note to be classified as a private activity bond under Section 141(a) of the Code; and (d) to refrain from taking any action or omitting to take any action if such action or omission would cause the Note to become an m'bitrage bond under Section 103(b) and Section 148 of the Code. The Issuer understands that the foregoing covenants impose continuing obligations on the Issuer to comply with the reqinrements of Section 103 and Part IV of Subchapter B of Chapter I of the Code so long as such requirements are applicable. ARTICLE IV REPRESENTATIONS OF BANK The Bank represents and warrants to the Issuer that: SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE BANK. (a) The Bank hereby represents, wan'ants and agrees that it is a national banking association authorized to execute and deliver this Agreement and to perform its obligations hereunder, and such execution and delivery will not constitute a violation of its charter, articles of incorporation or bylaws. 11 (b) Upon execution of this Agreement by the Bank, this Agreement shall constitute a legal, valid and binding obligation of the Bank enforceable in accordance with its terms. ARTICLE V CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: SECTION 5.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties set forth in the Loan Documents are and shall be true and correct to the best of the Issuer's knowledge on and as of the date hereof. SECTION 5.02 NO DEFAULT. Ou the date hereof the Issuer shall be in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and no Event of Defanlt nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occun'ed and be continuing at such time. SECTION 5.03 SUPPORTING DOCUMENTS. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in foden and substance to the Bank (such satisfaction to be evidenced by the purchase of the Note by the Bank): (a) The opinion of the City Attorney for the lssuer, regarding the due authorization, execution, delivery, validity and enforceability of this Agreement, the Note and the other Loan Documents and the due adoption of the Ordinance and Note Resolution, which opinion shall be in fol~n and substance satisfactory to the Bank; (b) The opinion ofNabors, Giblin & Nickerson, P.A., regarding, or to the effect that, (i) the due authorization, execution, delivery, validity, and enforceability of the Agreement and the Note and the due adoption of the Ordinance and Note Resolution, (ii) the exclusion of interest on the Note fi'mn gross income for federal income tax purposes, (iii) the Note is not an item of tax preference under Section 57 of the Code, (iv) the Note and the income thereon are exempt from the Florida intangible personal property tax and excise tax on documents and (v) the Note is a "qualified tax-exelnpt obligation" under Section 265 of the Code; (c) Certified copies of the Ordinance and Note Resolution; and 12 (d) Such additional supporting documents as the Bank may reasonably request. ARTICLE VI THE LOAN; ISSUER'S OBLIGATION; DESCRIPTION AND PAYMENT TERMS; ADVANCES SECTION 6.01 TItE LOAN. The Bank hereby agrees to loan to the Issuer the amount of $6,555,000 to be evidenced by the Note, to provide funds to finance certain of the costs of the Project, to fund the Reserve Fund and to pay costs of issuance of the Note, upon the terms and conditions set forth in this Agreement. The Issuer agrees to repay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth in the Loan Documents. SECTION 6.02 DESCRIPTION OF NOTE. (a) The Note shall be in the principal amount of $6,555,000, shall be designated as "City of Aventura, Florida Revenue Note, Series 2000A (Bank of America, N.A.)" to distinguish it from all other promissory notes of the Issuer, shall be dated the date of its execution and delivery, which shall be November 15, 2000 or such other date agreed upon by the Issuer and the Bank, and shall bear interest at the Interest Rate, subject to adjustment as provided in the Note, computed on the basis of a 360-day year consisting of twelve 30-day months, and subject to the required principal payments set forth below shall mature on the Final Maturity Date. Interest shall be payable on April 1 and October 1 of each year, commencing on April 1, 2001. The Note shall be executed on behalf of the Issuer with the manual signature of the City Manager, and shall be impressed with the official seal of the Issuer, and be attested with the manual signature of the City Clerk. The Note may be prepaid in accordance with its terms. Principal of the Note shall be paid as follows: 13 Year Year (October 1) Amount (October 1) Amount 2001 $220 000 2011 $295 000 2002 190 000 2012 310 000 2003 200 000 2013 325 000 2004 210 000 2014 345 000 2005 220 000 2015 360 000 2006 235 000 2016 380 000 2007 245 000 2017 395 000 2008 255 000 2018 415 000 2009 270 000 2019 435 000 2010 285 000 2020 965 000 SECTION 6.03 REGISTRATION AND EXCHANGE OF NOTE; PERSONS TREATED AS NOTEHOLDERS. So long as the Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Note. The Note shall be transferable only upon such registration books. The Issuer will transfer the registration of the Note upon written request of the Noteholder specifying the name, address and taxpayer identification number of the transferee. The person in whose name the Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on the Note shall be made only to or upon the written order of the Noteholder. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Note to the extent of the sum or sums so paid. SECTION 6.04 NOTE NOT TO BE INDEBTEDNESS OF TIlE ISSUER OR STATE. The Note, when delivered by the Issuer pursuant to the terms of this Agreement, shall not be or constitute a general obligation or indebtedness of the Issuer, or the State of Florida, or any political subdivision of the State of Florida, within the meaning of any Constitutional, statutory or other limitation of indebtedness, but shall be a special obligation payable solely as herein provided. No Noteholder shall ever have the fight to compel the exercise of the ad valorem taxing power, if any, of the Issuer to pay the Note or the interest thereon. None of the Loan Documents create a lien upon any facilities of the Issuer. Any agreements or representations herein or contained in any Loan Document do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer, and in the event of a breach of any agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from any revenues of the Issuer other than the Pledged Revenues shall arise therefrom. 14 SECTION 6.05 NOTE MUTILATED, DESTROYED OR STOLEN OR LOST. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Noteholder furnishing the Issuer proof of ownership thereof and indemnity reasonably satisfactow to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so surrendered shall be canceled. SECTION 6.06 ADVANCES OF FUNDS. The Bank and the Issuer agree that the Bank has advanced to the Issuer as of this date pursuant to the Note the sum of $6,555,00O. ARTICLE VII EVENTS OF DEFAULT SECTION 7.01 GENERAL. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Issuer shall fail to make any payment of the principal of or interest on the Loan when the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 7.02, or otherwise; or (b) the Issuer shall default in the performance of or compliance with any term or covenant contained in the Loan Documents, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Issuer by the Bank; or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement, whichever is earlier; or (c) any representation or warranty made in writing by or on behalf of the Issuer in any Loan Document shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or 15 (e) The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Issuer, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Issuer, a receiver or trustee of the Issuer or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (f) The Issuer shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State of Florida; or (g) The Issuer shall default in the due and punctual payment or performance of covenants under any obligation for the payment of money to the Bank or any other subsidiary or affiliate of Bank of America Corporation, including but not limited to under any Interest Rate Protection Agreement. SECTION 7.02 EFFECT OF EVENT OF DEFAULT. Immediately and without notice, upon the occurrence of any Event of Default, the Bank may declare all obligations of the Issuer under the Loan Documents to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable. In addition, and regardless whether such declaration is or is not made, the Bank may also seek enforcement of and exercise all other remedies available to it under the Loan Documents, the Act and any other applicable law. ARTICLE VIII MISCELLANEOUS SECTION 8.01 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder, or under the Note or other Loan Documents shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law or in equity. SECTION 8.02 AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT. This Agreement shall not be amended, changed or modified without the prior written consent of the Noteholders and the Issuer. The Issuer agrees to pay all of 16 the Bank's costs and reasonable attorneys' fees incurred in modifying and/or amending this Agreement at the Issuer's request or behest. SECTION 8.03 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. SECTION 8.04 SEVERABILITY. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. SECTION 8.05 TERM OF AGREEMENT. Except as otherwise specified in this Agreement, this Agreement and all representations, warranties, covenants and agreements contained herein or made in writing by the Issuer and the Bank in connection herewith shall be in full force and effect from the date hereof and shall continue in effect until as long as the Note is outstanding. SECTION8.06 NOTICES. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to: If to the Issuer: City of Aventura 2999 N.E. 191st Street Suite 500 Aventura, Florida 33180 Attn: Finance Support Services Director 17 If to the Bank: Bank of America, N.A. 100 S.E. 2nd Street - 15th Floor Miami, Florida 33131 Attn: Commercial Banking Group or to such other address as either party may have specified in writing to the other using the procedures specified above in this Section 8.06. SECTION 8.07 APPLICABLE LAW. This Agreement, and each of the Loan Documents (other than any document which provides a different choice of law) and transactions contemplated herein, shall be construed pursuant to and governed by the substantive laws of the State of Florida. SECTION 8.08 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Issuer shall have no rights to assign any of their rights or obligations hereunder without the prior written consent of the Bank. SECTION 8.09 CONFLICT. In the event any conflict arises between the terms of this Agreement and the terms of any other Loan Document, the terms of this Agreement shall govern in all instances of such conflict. SECTION 8.10 NO THIRD PARTY BENEFICIARIES. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. SECTION 8.11 ATTORNEYS FEES. To the extent legally permissible, the Issuer and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement, the Note, the Ordinance or the Note Resolution (including any appeal(s)), the prevailing party shall be entitled to recover costs and attorneys' fees from the other party. SECTION 8.12 ENTIRE AGREEMENT. Except as otherwise expressly provided, this Agreement and the other Loan Documents embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. SECTION 8.13 FURTItER ASSURANCES. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects for the purpose of out the transactions contemplated by this Agreement. 18 SECTION 8.14 INCORPORATION BY REFERENCE. All of the terms and obligations of the Note Resolution are hereby incorporated herein by reference as if said Note Resolution was fully set forth in this Agreement. SECTION 8.15 ARBITRATION AND WAIVER OF JURY TRIAL. This Section 8.15 concerns the resolution of any controversies or claims between the Issuer and the Bank, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (a) this Agreement (including any renewals, extensions or modifications); or (b) any document related to this Agreement; (collectively a "Claim"). At the request of the Issuer or the Bank, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will apply even though this Agreement provides that it is governed by the law of a specified state. Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the terms of this section. In the event of any inconsistency, the terms of this section shall control. The arbitration shall be administered by J.A.M.S. and conducted in any U. S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. Ail arbitration heatings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confLrmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. 19 This section does not limit the right of the Issuer or the Bank to: (a) exercise self-help remedies, such as but not limited to, setoff; (b) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (c) exercise any judicial or power of sale rights, or (d) act in a court of taw to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jmy in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Agreement. No provision in this Agreement or in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions of this Agreement or in any Loan Document for arbitration of any controversy or claim. 20 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the date of first set forth above. CITY OF AVENTURA, FLORIDA (SEAL) By: /'~' ~ Eric M. Soroka, City ATTEST: Te~'¢*a M. Sorol~a, C~C, ~ty Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Cit~Attomey BANK OF AMERICA, N.A. 21 EXHIBIT A FORM OFNOTE November 15, 2000 $6,555,000.00 CITY OF AVENTURA, FLORIDA, REVENUE NOTE, SERIES 2000A (BANK ~ [AMERICA, N.A.) KNOW AI/L MEN BY THESE ~F,~SEN',T.~ that the City of Aventura, Florida (the "Issuer"), a munic~al corporation of the S~a~ of Florida created and existing pursuant to the Constitution and thbxlaws of the State of Florida, for value received, promises to pay solely from the sources here~after provided, to the order of Bank of America, N.A. or registered assigns (hereinafter, thbx~'Noteholder"), thc p~cipal stun of $6,555,000 or such lesser amount as shall be outsta~g hereunder, together with interest on the principal balance outstanding at the rate of ~% per annum subject to adjustment as hereinafter provided. All computations of interest on this Note shall be based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in lawful money of the United States of America at such place as the Noteholder may designate to the Issuer. Interest on the outstanding principal balance of this Note shall be due and payable in ancears, on the first day of each and every April and October, commencing April 1,2001, to and including the Final Maturity Date (hereinafter defined). Installments of principal on this Note shall be payable on the first day of each October, commencing October 1, 2001, in the amounts set forth on Exhibit A attached hereto. The entire unpaid principal balance, together with all accrued and unpaid interest hereon, shall be unconditionally due and payable in full on October 1, 2020 (the "Final Maturity Date"). All payments by the Issuer pursuant to this Note shall apply fncst to accrued interest, then to other charges due the Noteholder, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto; (2) "Determination of Taxability" shah mean interest on this Note is determined or declared by the Internal Revenue Service to be includable in the gross income of the Noteholder for federal income tax purposes under the Code. Breakage Fee = the Present Value of ((A-B) x C) + LIBOR Breakage, where: A = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Final Maturity Date as reported by The Wall Street Journal (or other published source selected by the Noteholder) on the date the initial interest rate on this Note was set (which was November 14, 2000) ("Lock In Date"), plus (ii) the con'esponding swap spread of Noteholder on the Lock In Date for a fixed rate payor to pay Noteholder the fixed rate side of an interest rate swap of that maturity, plus (iii) .25%. B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Final Maturity Date as reported by The Wall Sn'eet Journal (or other published source selected by the Noteholder) on the Break Date, plus (ii) the corresponding swap spread that Noteholder determines another swap dealer would quote to Noteholder on the Break Date for paying to Noteholder the fixed rate side of an interest rate swap of that maturity. C = The sum of the products of (i) each Affected Principal Amount for each Affected Principal Period, times (ii) the number of days in that Affected Principal Period divided by 360. "Affected Principal Amount" for an Affected Principal Period is the principal amount of this Note scheduled to be outstanding on the Break Date before giving effect to the Break Event on that Break Date, and for any prepayment, multiplying each such principal amount times the Prepayment Fraction. "Affected Principal Period" is each period from and including a Scheduled Due Date to but excluding the next succeeding Scheduled Due Date, provided that the first such period shall begin on and includes the Break Date. "Libor Breakage" is any additional loss, cost or expense that the Noteholder may incur with respect to any hedge for the fixed rate of this Note based on the difference between the London Interbank Offered Rate (for U.S. dollar deposits of the relevant maturity) available in the London lnterbank Market as of the Lock-in Date and that which is available in that market on the Break Date. "Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of this Note outstanding inunediately prior to that prepayinent on the Break Date. "Present Value" is determined as of the Break Date using "B" above as the discount rate. Breakage Fees are payable as liquidated damages, are a reasonable pre-estimate of the losses, costs and expenses Noteholder would incur for any Break Event, are not a penalty, will not require claim for, or proof of, actual damages, and Noteholder's determination thereof shall be conclusive and binding in the absence of manifest error. For any Break Event occurring after the date of tiffs Note, the foregoing Breakage Fee provisions supersede any breakage compensation agreement that Issuer and Noteholder may have executed with respect to this Note. Upon the occun'ence of an Event of Default (as defined in the Loan Agreement), then the Noteholder may declare the entire debt then re~naining unpaid hereunder immediately due and payable, and in any such default and acceleration the Issuer shall also be obligated to pay (but only from the Pledged Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcexnent hereof, including such fees as inay be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the atttomatic stay. If any payment hereunder is not made within ten (10) days after it is due, then the Issuer shall also be obligated to as pm-t of the indebtedness evidenced by this Note a late payment fee in the amount of 5% of the delinquent payxnent, which late payment fee shall be due and payable immediately. Interest at the lesser of 18% per mmum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of an Event of Default. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to (a) an Ordinance enacted by the Issuer on November 14, 2000, as from time to ti~ne amended and supplemented (herein referred to as the "Ordinance"), (b) a Resolution duly adopted by the Issuer on November 14, 2000, as from time to time amended and supplmnented (herein referred to as the "Note Resolution"), and (c) a Loan Agreement, dated of even date herewith, between the Issuer and the Noteholder (the "Loan Agreement") and is subject to all the terms and conditions of the Ordinance, Note Resolution and Loan Agreement. All terms, conditions and provisions of the Ordinance, Note Resolution and Loan Agree~nent m'e by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Ordinance, Note Resolution and Loan Agreement. This Note is payable solely from and is secured by a lien upon and pledge of the "Pledged Revenues" as described in the Loan Agreexnent. Notwithstanding any other provision of this Note, the Issuer is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise ~nonetarily liable in cmmection herewith from any property other than the Pledged Revenues. This Note may be exchanged or n'ansferred by the Notebolder hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Note Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. 1N WITNESS WHEREOF, the City of Aventura, Florida has caused this Note to be executed in its name by the manual signatt~re of its City Manager and attested by the manual signature of its City Clerk all this 15th day of Nove~nber, 2000. CITY OF AVENTURA, FLORIDA By: ~ '~ge-( Eric M. Soroka, Attest: By: T~,e~a M. Soro~.~MC,/City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: ty om~omey'~ey ~ Ci 6 EXHIBIT A PRINCIPAL INSTALLMENTS Year Year (October I) Amount (October 1) Amount 2001 $220,000 2011 $295,000 2002 190,000 2012 310,000 2003 200,000 2013 325,000 2004 210,000 2014 345,000 2005 220,000 2015 360,000 2006 235,000 2016 380,000 2007 245,000 2017 395,000 2008 255,000 2018 415,000 2009 270,000 2019 435,000 2010 285,000 2020 965,000