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HomeMy WebLinkAboutOrdinance 99-86 I ORDINANCE NO. 99-~ AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF A REVENUE BOND, GOVERNMENT CENTER SERIES, OF THE CITY OF SUNNY ISLES BEACH, FLORIDA IN A MAXIMUM AUTHORIZED PRINCIPAL AMOUNT OF $23,300,000 FOR THE PURPOSES OF FINANCING ALL OR A PORTION OF THE COSTS OF ACQUISITION, CONSTRUCTION AND EQUIPPING OF THE SUNNY ISLES BEACH GOVERNMENT CENTER AND AN ADJACENT PARKING GARAGE AND OF PAYING CERTAIN COSTS RELATED THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BOND; PROVIDING FOR THE TERMS AND PAYMENT OF SUCH BOND AND FOR THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; AUTHORIZING THE ISSUANCE OF A BOND ANTICIPATION NOTE IN THE MAXIMUM PRINCIPAL AMOUNT OF $5,000,000 TO PROVIDE TEMPORARY FINANCING IN ANTICIPATION OF THE ISSUANCE OF THE BOND AND SETTING FORTH THE TERMS OF SUCH BOND ANTICIPATION NOTE; AUTHORIZING THE NEGOTIATED SALE OF SUCH BOND ANTICIPATION NOTE TO SUNTRUST BANK, MIAMI, NATIONAL ASSOCIATION; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SUCH BOND ANTICIPATION NOTE; DESIGNATING THE INITIAL ADVANCE UNDER SUCH BOND ANTICIPATION NOTE AS A "QUALIFIED TAX-EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265(b)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SUCH BOND AND BOND ANTICIPATION NOTE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission (the "City Commission") of the City of Sunny Isles Beach (the "City") hereby determines that it would be in the best economic interest of the City to finance the costs of acquisition of the proposed Sunny Isles Beach Government Center and an adjacent parking garage and all incidental and necessary costs relating thereto (collectively, the "Project"); and WHEREAS, pursuant to the terms and provisions of this Ordinance, the City intends to issue an obligation to be known as "City of Sunny Isles Beach, Florida Revenue Bond, Government Center Series" (herein, the "Bond") in a maximum authorized principal amount of $23,300,000 to fmance or refinance the costs of the Project including the costs of issuing such Bond and the Bond Anticipation Note hereinafter mentioned; and if WHEREAS, the Bond shall be secured by a pledge of and lien on the proceeds of the Bond Security (as such term is defined below) on the terms and subject to the conditions hereinafter set forth; and WHEREAS, City Staff has determined and the City Commission hereby concurs that it is necessary to raise a portion of the funds in 1999 necessary to undertake the Project and that it is not practicable to issue the Bond in 1999; and WHEREAS, City staff has received a proposal from SunTrust Bank, Miami, National Association (the "Bank"), to purchase a bond anticipation note to provide a vehicle to the City by which the City can raise the funds for the Project necessary to be raised in 1999; and WHEREAS, City staff has determined and the City Commission hereby concurs that it is in the best interests of the City to authorize in anticipation of the issuance of the Bond the issuance of a bond anticipation note (the "Bond Anticipation Note") in the principal amount of $5,000,000 and to authorize the sale of the Bond Anticipation to the Bank; and WHEREAS, the City Commission hereby determines that, in light of present market conditions, the aforementioned proposal provided by the Bank, the nature of the Bond Anticipation Note and the Bond, the nature of the security afforded to the holders of the Bond Anticipation Note and the Bond, and other factors described herein, it will be in the best interest of the City to sell the Bond Anticipation Note to the Bank on a negotiated basis pursuant to the terms and provisions of this Ordinance and to sell the Bond to a purchaser to be designated by subsequent proceedings of the City (the "Bondholder") on a negotiated basis pursuant to the terms and provisions of this Ordinance; and WHEREAS, the City Commission hereby determines that the amount to be advanced by the Bank to the City under the Bond Anticipation Note in calendar year 1999 shall not exceed $5,000,000 and the City does not expect to issue more than $10,000,000 of its tax-exempt obligations in calendar year 1999, and the City Commission hereby designates the Bond Anticipation Note as a "qualified tax-exempt obligation" within the meaning of Section 265(b )(3) of the Code; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS SECTION 1.1 AUTHORITY FOR TIDS ORDINANCE. This Ordinance is enacted pursuant to the provisions of the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, Section 215.431, Florida Statutes, as amended and supplemented, and other applicable provisions of law (collectively, the "Act"). 2 y SECTION 1.2 FINDINGS. The fmdings and determinations set forth in the recitals to this Ordinance are hereby adopted and confirmed as though fully set forth herein. Further, it is hereby ascertained, determined and declared: (a) That the City hereby authorizes the Project and the financing thereof in the manner hereinafter set forth. (b) That it is necessary and essential to acquire the Project for the health, safety and welfare of the residents of the City and that the financing of the Project through the issuance of the Bond will be in the best economic interest of the City. (c) That the Project will serve a valid municipal purpose. (d) That the cost of the Project shall be deemed to include, but not be limited to, the cost of its acquisition, construction and equipping, the fees and expenses of counsel to the Bank and the Bondholder and such other expenses as may be necessary or incidental to the Project and the issuance of the Bond and the Bond Anticipation Note. (e) That the proceeds of the Bond Security are not pledged or encumbered, in whole or in part, in any manner or for any purpose, other than the prior and senior pledge of the Electric Utilities Tax (as herein defmed) for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B. (f) That the principal of and interest on the Bond Anticipation Note and the Bond shall be secured solely by and paid from the Pledged Revenues (as herein defined), subject only to the prior and senior pledge of the Electric Utilities Tax for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B; and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the Bond Anticipation Note or the Bond, and the Bond Anticipation Note and the Bond issued pursuant to this Ordinance shall not constitute a lien upon any other property whatsoever of or in the City. SECTION 1.3 DEFINITIONS. In addition to terms defined elsewhere in this Ordinance, the following terms shall have the following meanings unless the context otherwise clearly requires: "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, Section 215.431, Florida Statutes, as amended and supplemented, the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, and other applicable provisions of the law. "Authorized Investments" shall mean any of the following: (1) U.S. Obligations; 3 (2) bonds, debentures, notes or other evidences of indebtedness payable in cash issued by anyone or a combination of any of the following federal agencies: Farmer's Home Administration (or its successor), Federal Housing Administration, Maritime Administration, Public Housing Authority, Government National Mortgage Association; (3) the following investments fully insured by the Federal Deposit Insurance Corporation ("FDIC") (i) certificates of deposit, (ii) savings account, (iii) deposit accounts, or (iv) depository receipts of a bank, savings and loan associations and mutual savings bank; (4) certificates of deposit, either in excess of FDIC insurance or without FDIC insurance, properly secured at all times, by collateral security described in clause (a) and (b) above or secured as required for a "qualified public depository" under the Florida Security for Public Deposits Act, being Chapter 280, Florida Statutes, as amended, or any successor statute. Such agreements are only acceptable with commercial banks, savings and loan associations and mutual savings banks or other "qualified public depository"; (5) commercial paper rated in one of the two highest rating categories by at least two nationally recognized rating agencies or commercial paper backed by a letter of credit or line of credit rated in one of the two highest rating categories; (6) written repurchase agreements with any bank, savings institution or trust company which is insured by the FDIC or with any broker dealer with retail customers which falls under Securities Investors Protection Corporation protection, provided that such repurchase agreements are fully secured by collateral security described in clause (1) above, and provided further that (i) such collateral is held by the City or any agent acting solely for the City during the term of such repurchase agreement, (ii) such collateral is not subject to lien or claims of third parties, (iii) such collateral has a market value (determined at least once every 14 days) at least equal to the amount invested in the repurchase agreement, (iv) the City has a perfected first security interest in the collateral, (v) the agreement shall be for a term not longer than 270 days, and (vi) the failure to maintain such collateral at the level required in (iii) above will require the City to liquidate the collateral; (7) money market funds rated in the highest rating category of either Standard & Poor's or Moody's Investors Service, or any successor thereto; (8) investments in the Local Government Surplus Funds Trust Fund established pursuant to Part N of Chapter 218, Florida Statutes, as amended, or any successor trust fund established for the investment of surplus municipal funds; and (9) any other investments permitted under Florida law and acceptable to the Bank or the Bondholder, as the case may be. "Bank" shall mean SunTrust Bank, Miami, N.A., the purchaser of the Bond Anticipation Note. 4 "BAN Interest Rate" shall mean with respect to the Bond Anticipation Note, such rate of interest as shall be approved by subsequent proceedings of the City on or prior to the date of the original issuance and delivery of the Bond "BAN Maturity Date" shall mean January 1,2003, the scheduled maturity date of the Bond Anticipation Note. "Bond" shall mean the Revenue Bond, Government Center Series, authorized by this Ordinance to be issued in a maximum authorized principal amount of $23,300,000. "Bond Counsel" shall mean any fIrm of nationally recognized bond counsel selected by the City and acceptable to the Bank or the Bondholder, as the case may be. "Bondholder" shall mean the purchaser of the Bond to be designated by subsequent proceedings of the City or, subject to the provisions of Section 2.4 hereof, any successor holder of the Bond, provided that there shall never be more than one Bondholder at anyone time. "Bond Maturity Date" shall mean, with respect to the unpaid principal of and interest on the Bond, December 15,2019. "Bond Security" shall mean the Sales Tax, the Electric Utilities Tax, the Non-electric Utilities Tax and the Franchise Fees. "City" shall mean the City of Sunny Isles Beach, Florida, a municipal corporation in the County of Miami-Dade, State of Florida, and its successors and assigns. "City Commission"" shall mean the duly constituted governing body of the City. "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. "Debt Service Fund" shall mean the Sunny Isles Beach Government Center Project Debt Service Fund, created and established pursuant to this Ordinance and which is the fund in which the Pledged Revenues shall be deposited by the City for the payment of the Bond Anticipation Note, the Bond and any Parity Obligations in accordance with the provisions hereof. "Defeasance Obligations" shall mean, to the extent permitted by law, the following securities: (1) U.S. Obligations; (2) Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (i) which are not callable prior to maturity or as to which irrevocable instructions have been given to the 5 trustee of such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (ii) which are secured as to principal and interest and redemption premium, if any, by a fund consisting only of cash or bonds or other obligations of the character described in clause (1) hereof which fund may be applied only to the payment of such principal of and interest and redemption premium, if any, on such bonds or other obligations on the maturity date or dates thereof or the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate, and (iii) as to which the principal of and interest on the bonds and obligations of the character described in clause (1) hereof which have been deposited in such fund along with any cash on deposit in such fund are sufficient to pay principal of and interest and redemption premium, if any, on the bonds or other obligations described in this clause (2) to and including the maturity date or dates thereof or to and including the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate; (3) Evidences of indebtedness issued by the Federal Home Loan Banks, Federal Home Loan Mortgage Corporation (including participation certificates), Federal Financing Banks, or any other agency or instrumentality of the United States of America created by an act of Congress provided that the obligations of such agency or instrumentality are unconditionally guaranteed by the United States of America or any other agency or instrumentality of the United States of America or of any corporation wholly-owned by the United States of America; and (4) Evidences of ownership of proportionate interests in future interest and principal payments on obligations described in clause (1) above held by a bank or trust company as custodian. "Electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of electricity (as defined in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of electricity (as defined in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. "First Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of this Ordinance, the first $5,000,000 of the maximum principal amount of the Bond required to be advanced by the Bondholder to the City under the terms and conditions of this Ordinance. "Franchise Fees" shall mean all revenues received by the City under the franchises granted by the City or received by the City under interlocal arrangements pursuant to the Franchise Ordinances for the right, privilege and franchise to maintain and operate an electric utility in the City, to provide telephone services in the City, to sell metered or bottled gas in the City, to provide cable television services in the City and to provide solid waste collection services in the City. Said term shall also apply to all other franchise fees imposed by the City for any and all of such services, whether imposed pursuant to the Franchise Ordinances, pursuant to amendme~ts thereto or otherwise. 6 "Franchise Ordinances" shall mean all proceedings of the City imposing the Franchise Fees, including Ordinance No. 99-66 of the City enacted on April 15, 1999 and effective ten days thereafter with respect to Franchise Fees for cable television providers, Ordinance No. 98-31 of the City enacted on April 23, 1998 and effective ten days thereafter with respect to Franchise Fees for solid waste collection services, Ordinance No. 98-23 of the City enacted on March 12, 1998 and effective ten days thereafter with respect to Franchise Fees for sales of gas, and Ordinance No. 98- 11 of the City enacted on January 8, 1998 and effective ten days thereafter with respect to Franchise fees for telephone service providers, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. Franchise Ordinances shall also include the Interlocal Agreement dated as of December 15, 1998 between the City and Miami-Dade County, Florida with respect to Franchise Fees payable by Florida Power and Light (FPL), as the same may be amended or supplemented from time to time. "Interest Rate" shall mean: (i) with respect to the First Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be approved by subsequent proceedings of the City on or prior to the date of the original issuance and delivery of the Bond; (ii) with respect to the Second Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be approved by subsequent proceedings of the City not less than fifteen days after the date described in clause (i) above; and (iii) with respect to the Third Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be approved by subsequent proceedings of the City not less than fifteen days after the date described in clause (ii) above. The Interest Rate shall be subject to adjustment as set forth in Section 2.7 of this Ordinance. The Interest Rate on the First Tranche shall be reset on December 15, 2009 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The Interest Rate on the Second Tranche shall be reset on December 30, 2009 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The Interest Rate on the Third Tranche shall be reset on January 14,2010 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The subsequent proceedings of the City for the reset of the Interest Rate on the Second Tranche shall be approved by the City not earlier than fifteen days after the date of the subsequent proceedings of the City for the reset of the Interest Rate on the First Tranche. The subsequent proceedings of the City for reset of the Interest Rate on the Third Tranche shall be approved by the City not earlier than fifteen days after the date of the subsequent proceedings of the City and the Bondholder for the reset of the Interest Rate on the Second Tranche. ''Non-electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of water, metered gas, bottled gas, coal, fuel oil and telecommunications service (as such terms are used and/or defmed in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of water, metered gas, bottled gas and telecommunications service (as such terms are used and/or defined in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. 7 "Ordinance" shall mean this Ordinance as the same may from time to time be amended and supplemented in accordance with the terms hereof. "Parity Obligations" shall mean any notes, bonds or other forms of indebtedness, payable from the Pledged Revenues on a parity with the Bond, whether or not such obligations are issued under this Ordinance. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. "Payment Date" shall mean each January 1, April 1, July 1 and October 1, commencing January 1,2000, the BAN Maturity Date, the Bond Maturity Date and any date the principal of the Bond Anticipation Note or the Bond is optionally prepaid in whole or in part. "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund derived from the proceeds of the Bond Security required to be deposited therein each month in accordance with the provisions of this Ordinance. "Prime Rate" shall mean the annual interest rate most currently quoted in The Wall Street Journal, Eastern Edition, as the "Prime Rate." "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. "Sales Tax" shall mean local government half-cent sales tax imposed by Chapter 82-154, Laws of Florida, as amended, and distributed to the City under Part VI of Chapter 218, Florida Statutes, as amended. "Second Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of this Ordinance, the next $10,000,000 of the maximum principal amount of the Bond required to be advanced by the Bondholder to the City under the terms and conditions of this Ordinance after the Bondholder shall have advanced the entire First Tranche to the City. Upon the satisfaction of the terms and conditions of this Ordinance, advances under the Second Tranche shall be available on and after the first business day of calendar year 2000 until the last business day of calendar year 2001. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the dates of initial delivery of the Bond Anticipation Note and the Bond and on the date of the initial advance under the Bond in each calendar year subsequent to its issuance. "Third Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of this Ordinance, the final $8,300,000 of the maximum principal amount of the Bond required to be 8 advanced by the Bondholder to the City under the terms and conditions of this Ordinance after the Bondholder shall have advanced the entire Second Tranche to the City. Upon the satisfaction of the terms and conditions of this Ordinance, advances under the Third Tranche shall be available on and after the first business day of calendar year 2001 until the last business day of calendar year 2001. "u. S. Obligations" shall mean the direct obligations of, or obligations on which the timely payment of principal and interest are unconditionally guaranteed by the United States of America, and, if determined by subsequent proceedings of the City Commission, certificates which evidence ownership of the right to the payment of the principal of, or interest on, such obligations. "Utilities Tax Ordinance" shall mean all proceedings of the City imposing the Electric Utilities Tax and the Non-electric Utilities Tax, including Ordinance No. 97-3 of the City enacted on September 11, 1997, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. Words importing singular number shall include the plural number and vice versa, as the case may be, and words importing persons shall include firms and corporations. SECTION 1.4 ORDINANCE CONSTITUTES CONTRACT. In consideration of the acceptance of the Bond Anticipation Note and the Bond authorized to be issued hereunder by those who shall own the same from time to time, this Ordinance shall be deemed to be and shall constitute a contract between the City and the Bank and the Bondholder, as the case may be, and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Bondholder. ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BOND SECTION 2.1 NOTE. AUTHORIZATION OF BOND AND BOND ANTICIPATION (a) THE BOND. Subject and pursuant to the provisions of this Ordinance, an obligation of the City of Sunny Isles Beach, Florida, to be known as its "Revenue Bond, Government Center Series" is hereby authorized to be issued in the maximum authorized principal amount of Twenty- three Million Three Hundred Thousand Dollars ($23,300,000) for the purpose offmancing the costs of the Project. (b) THE BOND ANTICIPATION NOTE. Subject and pursuant to the provisions of this Ordinance, an obligation of the City of Sunny Isles Beach, Florida, to be known as its "Bond Anticipation Note, Government Center Series" is hereby authorized to be issued in the principal amount of Five Million Dollars ($5,000,000) for the purpose of financing on a temporary basis a portion of the costs of the Project. 9 SECTION 2.2 BOND. DESCRIPTION OF BOND ANTICIPATION NOTE AND (a) THE BOND. The text of the Bond shall be substantially in the form attached hereto as Exhibit A with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The Bond (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. The Bond shall bear interest on the outstanding principal amount of the Bond from time to time at the Interest Rate. Principal of and interest on the Bond shall be payable in equal installments on each quarterly Payment Date commencing on the first January 1, April 1, July 1 or October 1 next succeeding its issuance, with such payments to be determined on the basis of a twenty year mortgage amortization schedule and an assumed interest rate of five percent (5%) per annum. All previously unpaid principal of the Bond and all previously accrued and unpaid interest on the Bond shall be payable on the Bond Maturity Date. The Bond shall be issuable in registered form only. In the event that the City shall determine that seasonal fluctuations in Pledged Revenues have made it impracticable for the City to make the quarterly payments of principal of and interest on the Bond at the times and in the amounts described in the preceding paragraph, the City may alter the schedule of such quarterly payments to correspond to such seasonal fluctuations, subject to the following conditions: (i) such altered schedule of payments shall not reduce the sum total of principal and interest payments on the Bond payable during each year that the Bond shall remain outstanding; (ii) the Bondholder shall be given a written copy of such altered schedule of payments not less than 30 days before it shall take effect; (iii) the City shall provide the Bondholder with a replacement Bond reflecting such altered schedule of payments (and the Bondholder shall be obligated to return to the City for cancellation the Bond that it shall be holding at the time of such replacement); and (iv) the City shall provide the Bondholder, at the City's sole cost and expense, an opinion of Bond Counsel to the effect that the imposition of such altered schedule of payments shall not have an adverse effect on the exclusion of interest on the Bond from the gross income of the Bondholder for federal income tax purposes. Principal and interest on the Bond shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The Bond shall be numbered in such manner as may be prescribed by the Registrar. The Bond shall be payable, with respect to interest and principal, in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. 10 The City may prepay the Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the Bondholder all or part of the principal amount of the Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the Bondholder not less than ten (10) business days prior thereto. If such prepayment shall be for only a portion of the unpaid principal balance of the Bond, such prepayment shall be applied against the obligation of the City to pay future amortization installments on the Bond in the inverse order in which such amortization installments shall become due. Notice having been given as aforesaid, the principal amount stated in such notice shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the Bond is to be paid, upon presentation and surrender of the Bond to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of the Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, so long as the Bond shall be registered in the name of the Bondholder, a partial prepayment may be effected by payment to the Bondholder of the principal without surrender of the Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of the Bond shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond shall continue to bear interest until payment thereof. The First Tranche of the Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on December 15, 2009 at a purchase price equal to the advanced principal amount of the First Tranche of the Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than June 15, 2009. The Second Tranche of the Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on December 30, 2009 at a purchase price equal to the advanced principal amount of the Second Tranche of the Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than June 30, 2009. The Third Tranche of the Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on January 14,2010 at a purchase price equal to the advanced principal amount of the Third Tranche of the Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than July 15,2009. (B) THE BOND ANTICIPATION NOTE. The text of the Bond Anticipation Note shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. 11 The Bond Anticipation Note (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the interest rate on the Bond is converted to the Prime Rate or is otherwise subject to adjustment pursuant to the provisions of Section 2.7 hereof, the Bond Anticipation Note shall bear interest on the outstanding principal amount of the Bond Anticipation Note from time to time at the BAN Interest Rate. Principal of and interest on the Bond Anticipation Note shall be payable in equal installments on each quarterly Payment Date commencing January 1,2000, with such payments to be determined on the basis of a twenty year mortgage amortization schedule and an assumed interest rate of five percent (5%) per annum. All previously unpaid principal of the Bond Anticipation Note and all previously accrued and unpaid interest on the Bond Anticipation Note shall be payable on the BAN Maturity Date. The Bond Anticipation Note shall be issuable in registered form only. In the event that the City shall determine that seasonal fluctuations in Pledged Revenues have made it impracticable for the City to make the quarterly payments of principal of and interest on the Bond Anticipation Note at the times and in the amounts described in the preceding paragraph, the City may alter the schedule of such quarterly payments to correspond to such seasonal fluctuations, subject to the following conditions: (i) such altered schedule of payments shall not reduce the sum total of principal and interest payments on the Bond Anticipation Note payable during each year that the Bond Anticipation Note shall remain outstanding; (ii) the Bank shall be given a written copy of such altered schedule of payments not less than 30 days before it shall take effect; (iii) the City shall provide the Bank with a replacement Bond Anticipation Note reflecting such altered schedule of payments (and the Bank shall be obligated to return to the City for cancellation the Bond Anticipation Note that it shall be holding at the time of such replacement); and (iv) the City shall provide the Bank, at the City's sole cost and expense, an opinion of Bond Counsel to the effect that the imposition of such altered schedule of payments shall not have an adverse effect on the exclusion of interest on the Bond Anticipation Note from the gross income of the Bank for federal income tax purposes. Principal and interest on the Bond Anticipation Note shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The Bond Anticipation Note shall be numbered in such manner as may be prescribed by the Registrar. The Bond Anticipation Note shall be payable, with respect to interest and principal, in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. 12 The City may prepay the Bond Anticipation Note in whole or in part, at any time or from time to time, without penalty or premium, by paying to the Bank all or part of the principal amount of the Bond Anticipation Note, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the Bank not less than ten (10) business days prior thereto. If such prepayment shall be for only a portion of the unpaid principal balance of the Bond Anticipation Note, such prepayment shall be applied against the obligation of the City to pay future amortization installments on the Bond Anticipation Note in the inverse order in which such amortization installments shall become due. Notice having been given as aforesaid, the principal amount stated in such notice shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the Bond Anticipation Note is to be paid, upon presentation and surrender of the Bond Anticipation Note to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of the Bond Anticipation Note is to be paid, upon presentation of such Bond Anticipation Note at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond Anticipation Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, so long as the Bond Anticipation Note shall be registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal without surrender of the Bond Anticipation Note. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of the Bond Anticipation Note shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond Anticipation Note shall continue to bear interest until payment thereof. SECTION 2.3 EXECUTION OF THE BOND ANTICIPATION NOTE AND THE BOND. The Bond and the Bond Anticipation Note shall be executed in the name of the City by the signature of the Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor of the City and City Clerk on the Bond and the Bond Anticipation Note may be manual or facsimile signatures. In case anyone or more of the officers who shall have signed or sealed the Bond or the Bond Anticipation Note shall cease to be such officer of the City before the Bond or the Bond Anticipation Note so signed and sealed shall have been actually sold and delivered, such Bond or Bond Anticipation Note may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Bond or Bond Anticipation Note had not ceased to hold such office. The Bond or Bond Anticipation Note may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the Bond or the Bond Anticipation Note shall hold the proper office, although at the date the Bond or the Bond Anticipation Note shall be actually delivered such person may not have held such office or may not have been so authorized. 13 The Bond and the Bond Anticipation Note shall bear thereon a certificate of authentication, in the form set forth on Exhibit A attached hereto, executed manually by the Registrar (when the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only if a Bond or Bond Anticipation Note shall bear thereon such certificate of authentication shall it be entitled to any right or benefit under this Ordinance and no Bond or Bond Anticipation Note shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the Bond or the Bond Anticipation Note executed on behalf of the City shall be conclusive evidence that the Bond or the Bond Anticipation Note so authenticated have been duly authenticated and delivered under this Ordinance and that the Bondholder or the Bank, as the case may be, is entitled to the benefits of this Ordinance. SECTION 2.4 NEGOTIABILITY. REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the Bond and the Bond Anticipation Note and for the registration of transfers of the Bond and the Bond Anticipation Note. The Bond and the Bond Anticipation Note shall be transferable at the option of the Bondholder or the Bank, as the case may be, to an institutional holder, but subject to the prior written approval of the City's Finance Director (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an accredited investor within the meaning of Rule 501 of the Secmities Act of 1933, as amended and supplemented, in which case such approval shall not be required, and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the Bondholder or the Bank, as the case may be, or its duly authorized attorney. Upon the transfer of such Bond or Bond Anticipation Note, the City shall issue in the name of the transferee a new Bond or Bond Anticipation Note. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the Bond or the Bond Anticipation Note shall be registered upon the books kept by the Registrar as the absolute owner of such Bond or Bond Anticipation Note, whether such Bond or Bond Anticipation Note shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Bond or Bond Anticipation Note as the same become due and for all other purposes. All such payments so made to the Bondholder or the Bank or upon its order shall be valid and effectual to satisfy and discharge the liability upon such Bond or Bond Anticipation Note to the extent of the sum or sums so paid, and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the Bond or the Bond Anticipation Note is exercised, the City shall execute and the Registrar shall authenticate and deliver the Bond or the Bond Anticipation Note in accordance with the provisions of this Ordinance. The Bond or the Bond Anticipation Note surrendered in any such transfer shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the 14 Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The Bond or the Bond Anticipation Note paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar when the payment or redemption is made, and such Bond shall thereupon be promptly canceled. The Bond or the Bond Anticipation Note so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the Bond or the Bond Anticipation Note, and one executed certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). SECTION 2.5 MUTILATED. DESTROYED. STOLEN OR LOST BOND OR BOND ANTICIPATION NOTE. In case any Bond or Bond Anticipation Note shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new Bond or Bond Anticipation Note of like date, maturity and denomination as the Bond or Bond Anticipation Note so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated Bond or Bond Anticipation Note, such mutilated Bond or Bond Anticipation Note shall first be surrendered to the City and, in the case of any lost, stolen or destroyed Bond or Bond Anticipation Note, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the Bond or Bond Anticipation Note shall be about to mature or have matured, instead of issuing a duplicate Bond or Bond Anticipation Note, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Bondholder or the Bank their reasonable fees and expenses in connection with this transaction. Any Bond or Bond Anticipation Note surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate Bond or Bond Anticipation Note issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Bond or Bond Anticipation Note be at any time found by anyone, and such duplicate Bond or Bond Anticipation Note shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the Bond or Bond Anticipation Note, as the case may be, issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE BOND AND THE BOND ANTICIPATION NOTE AND FOR THE MAKING OF ADVANCES THEREUNDER. (a) Prior to the issuance of each of the Bond and the Bond Anticipation Note, the City shall comply with the following conditions: (i) Deliver to the Bondholder or the Bank, as the case may be, a fully executed Tax Certificate; and 15 (ii) Deliver to the Bondholder or the Bank, as the case may be, a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (iii) Cause to be delivered to the Bondholder or the Bank, as the case may be, an opinion of Bond Counsel, who may be counsel to the Bondholder or the Bank, regarding, as the case may be, the due authorization, execution, delivery, validity and enforceability of the Bond or the Bond Anticipation Note, as the case may be, and the pledge of the Pledged Revenues therefor and the due adoption of this Ordinance (enforceability of such instrwnents may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the Bond or the Bond Anticipation Note, as the case may be, from gross income for federal income tax purposes, that the Bond or the Bond Anticipation Note, as the case may be, is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the Bond or the Bond Anticipation Note, as the case may be, will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the Bond or the Bond Anticipation Note owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings). Such opinion shall also state that the Bond or the Bond Anticipation Note, as the case may be, is a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code; and (iv) Deliver to the Bondholder or the Bank an opinion of the City Attorney, satisfactory to the Bondholder and the Bank and their respective counsel, regarding, as the case may be, the due authorization, execution, delivery, validity and enforceability of the Bond or the Bond Anticipation Note, as the case may be, and the first perfected pledge of the Pledged Revenues therefor (subject only to the prior and senior pledge of the Electric Utilities Tax for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B), and the due adoption of this Ordinance (enforceability may be subject to standard bankruptcy exceptions and the like); and (v) Deliver to the Bondholder or the Bank a general certificate of the City in form satisfactory to the Bondholder and its counsel certifying, among other things, that the City is in compliance with the terms of the Ordinance. (b) The City may request from time to time, and the Bank shall be obligated to advance, $5,000,000 in maximum principal amount under the Bond Anticipation Note. No advance requested by the City under the Bond Anticipation Note shall be for a principal amount less than $200,000. The City may request from time to time, and the Bondholder shall be obligated to advance, $23,300,000 in maximum principal amount under the Bond. No advance requested by the City under the Bond Anticipation Note shall be for a principal amount less than $200,000. 16 Upon the satisfaction of the terms and conditions of this Section 2.6(b): (i) advances under the Bond Anticipation Note shall be available on and after the date of original issuance and delivery of the Bond Anticipation Note until the last business day of calendar year 2001; (ii) advances under the First Tranche shall be available only on the date of original issuance and delivery of the Bond and shall be applied solely to retire the Bond Anticipation Note; (ii) advances under the Second Tranche shall be available on and after the first business day of calendar year 2000 until the last business day of calendar year 2001; and (iii) advances under the Third Tranche shall be available on and after the first business day of calendar year 2001 until the last business day of calendar year 2001. After the last business day of calendar year 2001, the Bank shall not be obligated to advance any additional principal under the Bond Anticipation Note and the Bondholder shall not be obligated to advance any additional principal under the Bond. Except as set forth in this paragraph, the Bond shall not be issued and the First Tranche shall not be advanced until the entire principal amount of the Bond Anticipation Note shall have been advanced, no advance shall be made under the Second Tranche until the entire principal amount of the First Tranche shall have been advanced, and no advance shall be made under the Third Tranche until the entire principal amount of the Second Tranche shall have been advanced. The City agrees that it shall: (i) request an advance under the Bond Anticipation Note in calendar year 1999; (ii) request the advance under the First Tranche and an advance under the Second Tranche in calendar year 2000; and (iii) request an advance under the Third Tranche in calendar year 2001. If the Bondholder shall not have advanced in calendar year 2000 the entire $10,000,000 in principal amount of the Second Tranche, the first $200,000 requested to be advanced in calendar year 2000 shall be allocated to the Second Tranche. If the Bondholder shall not have advanced in calendar year 2001 the entire $8,300,000 in principal amount of the Third Tranche, the first $200,000 requested to be advanced in calendar year 2001 shall be allocated to the Third Tranche. Prior to any advance under the Bond or the Bond Anticipation Note, the City shall comply with the following conditions: (i) Except in the case of the initial advance under the Bond and under the Bond Anticipation Note, delivery of a written notice (signed by the City Manager or Finance Director) of the City's request for an advance at least two (2) business days prior to the date specified for such advance (such notice shall confirm that the City is not in default under this Ordinance); and (ii) In the case of the initial advance under the Bond in each calendar year, delivery of a copy, certified by the City Clerk, of the resolution adopted by the City Commission approving the Interest Rate applicable to advances in such calendar year; and (iii) With respect to the initial advance under the Bond in each of calendar year 2000 and 2001, delivery of a Tax Certificate, dated as of the date of such advance; and 17 (iv) With respect to the initial advance under the Bond in each of calendar year 2000 and 2001, delivery ofa copy ofa completed and executed Form 8038-G to be filed with the Internal Revenue Service; and (v) With respect to the initial advance under the Bond in each of calendar year 2000 and 2001, delivery of an opinion of the Bond Counsel to the same effect as the opinion of Bond Counsel required under Section 2.6(a)(iii) above. SECTION 2.7 INTEREST RATE ADJUSTMENT. The Interest Rate on the Bond shall be subject to adjustment as set forth in the subsequent proceedings of the City approving the Interest Rate. If the interest on the Bond Anticipation Note becomes includable in the gross income of the Bank for federal income tax purposes as determined in the manner set forth below (herein a "Determination of Taxability") the BAN Interest Rate shall be adjusted so that the Bond Anticipation Note shall bear interest at the Prime Rate. A Determination of Taxability shall have deemed to occur when (i) the Bank has been advised in writing by the Internal Revenue Service that the interest payable on the Bond Anticipation Note must be includable in the gross income of the Bank for federal income tax purposes or (ii) the entry by a court of a final judgment or order or the promulgation by the Internal Revenue Service of a final ruling or decision, in either such case to the effect that the interest on the Bond Anticipation Note is includable for federal income tax purposes in the gross income of the Bank. A Determination of Taxability shall not include inclusion of interest on any Bond Anticipation Note in the income of the Bank for purposes of any alternative minimum tax, environmental tax or branch profits tax or on account of the Bank being a "substantial user" or a "related person" within the meaning of Section 147(a) of the Code. In the case of (i) above, no Determination of Taxability shall be deemed to occur unless the City has been given timely written notice by the Bank of such determination by the Internal Revenue Service and afforded an opportunity to participate in and seek at its own expense, a final administrative determination or determination by a court of competent jurisdiction (from which no further right of appeal exists) as to the existence of such Determination of Taxability; provided that the City, at its own expense, delivers to the Bank an opinion of Bond Counsel to the effect that such appeal or action for judicial or administrative review is not without merit and there is a reasonable possibility that the judgment, order, ruling or decision from which such appeal or action for judicial or administrative review is taken will be reversed, vacated or otherwise set aside. In the event of a Determination of Taxability, the City covenants that it shall also pay any interest, additions to tax or penalties, resulting from the interest on the Bond Anticipation Note being includable in the Bank's gross income for federal income tax purposes, and any arrears in interest resulting from such Determination of Taxability. Any such additional amounts (established to the satisfaction of the City) shall be payable by the City to the Bank on the next succeeding 18 Payment Date or, if such amounts become payable after the BAN Maturity Date within 60 days of the date the City is notified by the Bank that such amounts are due. In addition to the foregoing provisions of this section, the BAN Interest Rate shall be adjusted automatically as of the effective date of any change in the Maximum Corporate Tax Rate (hereinafter defined) or in the Preference Reduction Rate (hereinafter defined), presently 20%, based upon the following calculations; provided, however, that if the Bond Anticipation Note is not a Qualified Tax-Exempt Obligation within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), on the date of its original issuance and delivery, or if the Bond Anticipation Note at any time subsequent to its original issuance and delivery no longer qualifies as a Qualified Tax-Exempt Obligation, then the Preference Reduction Rate shall be adjusted as of the date of original issuance and delivery of the Bond Anticipation Note or as of such subsequent date, as the case may be. Upon the occurrence of any of the foregoing events, the BAN Interest Rate shall be adjusted to the product obtained by multiplying the Interest Rate on the Bond Anticipation Note by a fraction, the numerator of which is equal to the sum of: (i) the product of the Fully Taxable Equivalent (hereinafter defined) times one minus the Maximum Corporate Tax Rate in effect as of the day of adjustment, and (ii) the TEFRA Adjustment (hereinafter defined) in effect as of the date of adjustment; and the denominator of which is equal to the sum of: (i) the product of the Fully Taxable Equivalent times one minus the Maximum Corporate Tax Rate in effect as of the date of the original issuance and delivery of the Bond Anticipation Note, and (ii) the TEFRA Adjustment in effect as of the date of the original issuance and delivery of the Bond Anticipation Note. For the purpose hereof: (1) "Maximum Corporate Tax Rate" means on the date of original issuance and delivery of the Bond Anticipation Note 35% and thereafter the maximum marginal rate of income tax imposed on corporations under Section 11 of the Code or any successor provision; (2) "TEFRA Adjustment" means an adjustment equal to the product of the following: Cost of Funds multiplied by the applicable Maximum Corporate Tax Rate multiplied by the applicable Preference Reduction Rate; (3) "Cost of Funds" means one hundred (100) multiplied by a fraction, the numerator of which is equal to the total interest expense of SunTrust Banks, Inc., for its immediately preceding tax year, and the denominator of which is equal to the average total assets of SunTrust Banks, Inc., but at no time will be determined to exceed the cost of Fed Funds; (4) "Preference Reduction Rate" means the percentage reduction to be applied to the amount allowable as a deduction under Chapter I of the Code with respect to any financial institution preference item (as such term is defined in Section 291(e) of the Code); and (5) "Fully Taxable Equivalent" means the ten (10) year U.S. Treasury yield plus 0.95 percent, expressed as a number and not as a percentage. For the purposes of this paragraph and the two preceding paragraphs, all percentages shall be expressed as decimals. In the event that there shall be more than one Interest Rate in effect at the time of any adjustment of the Interest Rate required under this Section, a separate adjustment shall be calculated for each Interest Rate then in effect. 19 ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 BOND AND BOND ANTICIPATION NOTE NOT TO BE INDEBTEDNESS OF THE CITY. Neither the Bond nor the Bond Anticipation Note shall be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured solely by and payable from the Pledged Revenues. Neither the Bank nor the Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said Bond or Bond Anticipation note or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City. SECTION 3.2 BOND AND BOND ANTICIPATION NOTE SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the Bond and the Bond Anticipation Note, and continuing until the payment of the Bond and the Bond Anticipation Note as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said Bond and Bond Anticipation Note. The pledge of the Pledged Revenues for payment of principal and interest on the Bond and the Bond Anticipation Note is subject only to the prior and senior pledge of the Electric Utilities Tax for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B. Additionally the Bond Anticipation Note shall be payable from and secured by the proceeds of the Bond. SECTION 3.3 COVENANTS OF THE CITY. As long as any of the principal of or interest on the Bond or the Bond Anticipation Note shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 3.6 hereof a sum sufficient to pay, when due, the entire principal of the Bond and the Bond Anticipation Note remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholder and the Bank as follows: (a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. (1) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Bond and the Bond Anticipation Note, the City covenants to comply with each requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate, as such certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (2) The City covenants and agrees with the Bondholder and the Bank that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the Bond or the Bond Anticipation Note, would cause the Bond or the Bond Anticipation Note to be a "private activity bond" or "arbitrage bond" within the meaning of Sections 141(a) and 148(a), respectively, of the Code. 20 (3) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the Bond and the Bond Anticipation Note pursuant to Section 148(t) of the Code. (4) Notwithstanding any other provision of this Ordinance to the contrary, so long as necessary in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Bond and the Bond Anticipation Note, the covenants contained in this Section shall survive the payment of the Bond and the Bond Anticipation Note and the interest thereon, including any payment or discharge thereof pursuant to Section 3.6 of this Ordinance. (b) Establishment of Debt Service Fund. There is hereby created and established the following fund entitled the "Sunny Isles Beach Government Center Project Debt Service Fund" (hereinafter referred to as the "Debt Service Fund"). The Debt Service Fund shall constitute a trust fund for the benefit of the Bondholder and the Bank and shall be held by the City in an account maintained at the Bank, for so long as the Bond Anticipation Note shall remain outstanding, and at such other fmancial institution as the City shall designate thereafter and shall be kept separate and distinct from all other funds of the City, and shall be used only for the purpose and in the manner provided in this Ordinance. Notwithstanding the provisions of the preceding sentence, the City may deposit the proceeds of the Bond Security in a commingled account maintained as described above, provided that the City maintains adequate accounting procedures to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The designation and establishment of the Debt Service Fund in and by this Ordinance shall not be construed to require the establishment of any completely independent self-balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. The City may withdraw any excess amounts remaining in the Debt Service Fund after payment has been made on the Bond or the Bond Anticipation Note on any Payment Date to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Authorized Investments at the written direction of the City, provided such investments mature not later than the next succeeding Payment Date. Subject to the terms and provisions of the Code and the preceding paragraph, all income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (c) Disposition of Pledged Revenues. Not later than December 30, 1999, the City shall deposit in the Debt Service Fund the proceeds of the Bond Security in an amount sufficient to pay the principal of an interest becoming due on the Bond Anticipation Note on January 1, 2000. Not later than the fifteenth day of each month commencing January 15,2000, the City shall deposit in the Debt Service Fund the proceeds of the Bond Security in an amount equal to one-third (1/3) of the principal of and interest becoming due on the Bond and the Bond Anticipation Note on the next Payment Date, and shall further cause to be deposited into the Debt Service Fund one business day 21 prior to each Payment Date the proceeds of the Bond Security in an amount necessary to satisfy any deficiency in the Debt Service Fund on such date; provided, however, that such deposit of the interest and principal amount shall not be required to be made to the extent that moneys on deposit in the Debt Service Fund are sufficient for such purpose. The City covenants to deposit, on the business day prior to the BAN Maturity Date and the Bond Maturity Date, the proceeds of the Bond Security (or other legally available moneys) into the Debt Service Fund in an amount sufficient to pay the outstanding principal of and interest on the Bond Anticipation Note and the Bond, as the case may be. (d) Maintenance of Bond Security. Without the prior written consent of the Bondholder and the Bank, the City shall not repeal, amend or modify any ordinance, resolution or agreement with respect to any element of the Bond Security in any manner and shall not knowingly acquiesce in any attempt to eliminate or reduce, or the likely effect of which would be to eliminate or reduce, the Pledged Revenues derived from any element of the Bond Security so as to: (i) impair or adversely affect the power and obligation of the City to levy or collect any element of the Bond Security; (ii) impair or adversely affect in any manner the pledge of the Bond Security made herein; or (iii) diminish the Pledged Revenues to be received in each fiscal year while the Bond and the Bond Anticipation Note shall remain outstanding below an amount equal to 1.10 times the principal of and interest that shall become due and payable during such fiscal year. The City shall vigorously resist all such attempts by others to eliminate or reduce any element of the Bond Security. The City covenants to comply with all eligibility requirements, compliance with which shall constitute a precondition to its ability to levy or collect any element of the Bond Security or the Pledged Revenues. The City covenants that, if the total amount of Pledged Revenues realized in any fiscal year of the City shall be less than the amounts referred to above for such fiscal year, it shall, before the 15th day of November of the following fiscal year, take such actions as shall enable the City to comply with the coverage requirements of this Section during such following fiscal year. (e) Enforcement of Collections. The City will diligently enforce and collect the Bond Security, will take steps, actions and proceedings for the enforcement and collection of such Bond Security as the same shall become delinquent to the full extent permitted or authorized by law, and will maintain accurate records with respect thereto. (t) Budget and Other Financial Information. The City shall provide the Bondholder and the Bank with a copy of its audited general purpose financial statements within 120 days of the close of each fiscal year during which the Bond and the Bond Anticipation Note shall remain outstanding. The City Manager or the Finance Director shall also certify to the Bondholder and the Bank at that time that the City is not then in default of its obligations under this Ordinance, the 22 Bond Anticipation Note or the Bond, or, if the City shall then be in default, shall explain in writing the nature of such default, the steps being taken by the City to cure such default and the estimated time by which such default will be cured. The City shall also provide the Bank and Bondholder with unaudited financial statements not less often than semiannually. Such unaudited statements shall be delivered to the Bondholder and the Bank within 30 days after the fiscal period covered by such statements. The City shall demonstrate in each annual budget that there are sufficient proceeds of the Bond Security to pay the principal of and interest on the Bond Anticipation Note and the Bond coming due in the fiscal year covered by such annual budget. The City shall provide the Bondholder and the Bank with a copy of its approved annual budget within 30 days after the final adoption thereof and with such other financial information regarding the City as the Bondholder or the Bank may reasonably request. (g) Issuance of the Bond. The City covenants that it will use its best efforts, in compliance with applicable law and the requirements of this Ordinance, to issue the Bond after the maximum principal amount of the Bond Anticipation Note shall have been advanced. SECTION 3.4 REMEDIES OF BANK AND BONDHOLDER. Should the City default in any obligation created by this Ordinance, the Bondholder or the Bank, as the case may be, may, in addition to any remedy set forth in this Ordinance, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Ordinance, and may enforce and compel the performance of all duties required by this Ordinance, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholder and the Bank that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within 30 days of such filing shall give the Bondholder and the Bank the right to exercise any of the remedies provided to them under this Section 3.4. SECTION 3.5 APPLICATION OF BOND AND BOND ANTICIPATION NOTE PROCEEDS. The proceeds of the Bond Anticipation Note shall be used to provide temporary financing for the costs of the Project, including the payment of costs associated with the issuance of the Bond Anticipation Note. The proceeds of the Bond shall be used to provide permanent financing for the costs of the Project, including the payment of costs associated with the issuance of the Bond and the Bond Anticipation Note. Notwithstanding the foregoing, the first application of proceeds of the Bond shall be made on the date of its issuance for the purpose of retiring the Bond Anticipation Note. SECTION 3.6 DISCHARGE AND SATISFACTION OF BOND AND BOND ANTICIPATION NOTE. The covenants, liens and pledges entered into, created or imposed pursuant to this Ordinance may be fully discharged and satisfied with respect to the Bond or the Bond Anticipation Note in anyone or more of the following ways: (a) by paying in full the principal of and interest on the Bond or the Bond Anticipation Note, as the case may be, when the same shall become due and payable; or 23 (b) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by ordinance moneys sufficient at the time of such deposit to pay the Bond or the Bond Anticipation Note, as the case may be, and all interest thereon as the same become due on said Bond or Bond Anticipation Note on or prior to the maturity date thereof; or (c) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by ordinance(which Debt Service Fund or other account and all moneys and securities deposited therein shall be irrevocably pledged to the Bondholder or the Bank, as the case may be, for the payment of the Bond or the Bond Anticipation Note, as the case may be, and all interest thereon) moneys which, when invested in Defeasance Obligations, will provide moneys which shall be sufficient to pay the Bond or the Bond Anticipation Note, as the case may be, and, all interest thereon as the same shall become due on said Bond or Bond Anticipation Note, as the case may be, on or prior to the Bond Maturity Date or BAN Maturity Date, as the case may be. Upon such payment or deposit in the amount and manner provided in this Section 3.6, the Bond or the Bond Anticipation Note, as the case may be, shall no longer be deemed to be outstanding for the purposes of this Ordinance and all liability of the City with respect to the Bond or the Bond Anticipation Note, as the case may be, shall cease, terminate and be completely discharged and extinguished, and the Bondholders or the Bank, as the case may be shall be entitled for payment solely out of the moneys or securities so deposited. SECTION 3.8 ADDITIONAL OBLIGATIONS. The City shall not issue any obligation secured by a lien on the Pledged Revenues that is senior to the lien on the Pledged Revenues created by this Ordinance in favor of the Bond and the Bond Anticipation Note. The City may issue Parity Obligations, but only if there shall have been filed with the Bondholder and the Bank a certificate of an independent certified public accountant acceptable to the Bondholder and the Bank to the effect that either (i) the aggregate amount of Pledged Revenues received by the City in a consecutive twelve month period which ends later than thirteen months prior to the issuance of the Parity Obligations proposed to be issued, or (ii) the average annual amount of Pledged Revenues received by the City in the consecutive twenty-four month period which ends later than thirteen months prior to the issuance of the Parity Obligations proposed to be issued equal or exceed 125% of the maximum annual debt service computed on a basis that includes the annual debt service on the Bond Anticipation Note, the Bond, any Parity Obligations then outstanding and the Parity Obligations proposed to be issued. Such certificate shall further state that the City is current in all payments of debt service required to be made under this Ordinance. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Ordinance or of any ordinance amendatory thereof or supplemental thereto, may be made without the consent in writing of the Bondholder and the Bank. Notwithstanding the foregoing, the Bank shall have not such right with respect to any such ordinance if such ordinance is to become effective upon or after the retirement of the Bond Anticipation Note. Upon the retirement of the Bond Anticipation Note, the Bank shall have no further rights under this 24 Ordinance, except that the rights of the Bank under Sections 2.7 and 3.3(a) of this shall survive the retirement of the Bond Anticipation Note. SECTION 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the City Manager, the Finance Director and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Ordinance. SECTION 4.3 SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions of this Ordinance should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions of this Ordinance or of the Bond or the Bond Anticipation Note issued hereunder. SECTION 4.4 WAIVER OF JURY TRIAL. The City, in consideration of the purchase of the Bond Anticipation Note by the Bank, and the Bank, by its acceptance of the Bond Anticipation Note, each mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by the Bond Anticipation Note or this Ordinance. The City, in consideration of the purchase of the Bond by the Bondholder, and the Bondholder, by its acceptance of the Bond, each mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by the Bond or this Ordinance. SECTION 4.5 REPEALER. All ordinances and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed, and this Ordinance shall take effect upon its passage in the manner provided by law. 25 SECTION 4.6 EFFECTIVE DATE. This Ordinance shall be effective ten days after the date of its enactment. The foregoing Ordinance was offered by c....w....: "" ,110M- ~ ' who moved for its adoption on second reading. The motion was seconded by~___ -r ~ and upon being put to vote, the votes were as follows: $-0 Mayor David Samson Vice Mayor Connie Morrow Commissioner Lila Kaufman Commissioner Daniel Iglesias Commissioner Irving Turetsky (yes) ~ (yes) ~ (yes) --1L..- (yes) --1t.- (yes)~ (no)_ (no)_ (no)_ (no)_ (no)_ PASSED AND ADOPTED on first reading the 9th day of December, 1999. PASSED AND ADOPTED on second reading this day of 1999. A TIEST: '1C~~~~ Richard Brown-Morilla, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY ~- ~-t~- ~~elsser, itY Attorney 26 Exhibit A FORM OF BOND No.R- UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF SUNNY ISLES BEACH, FLORIDA Revenue Bond, Government Center Series Interest Rate Bond Maturity Date December 15,2019 Dated Date AS SET FORTH BELOW Registered Bondholder: Maximum Authorized Principal Amount: $23,300,000 KNOW ALL MEN BY THESE PRESENTS, that the City of Sunny Isles Beach (the "City") in Miami-Dade County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Bondholder specified above or registered assigns on the Bond Maturity Date specified above or earlier upon mandatory repayment of principal as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), such Principal Amount as shall have been advanced by the Registered Bondholder to the City of the $23,300,000 maximum principal amount of this Bond with interest thereon at the Interest Rate specified below (unless interest on this Bond is converted to the Prime Rate (as defined in the Ordinance) or the Interest Rate specified below is otherwise adjusted in the manner provided in the Ordinance calculated on the basis of a 365/366-day year, as the case may be, on each Payment Date (as defined in the Ordinance) in the manner specified in the Ordinance to the Registered Bondholder. The Principal Amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond is authorized to be issued in a maximum authorized principal amount of $23,300,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and Ordinance No. 99- -' duly adopted on , 1999 (as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may thereafter be A-I adopted, the "Ordinance"), and is subject to all terms and conditions of the Ordinance. Any term used in this Bond and not otherwise defmed, shall have the meaning ascribed to such term in the Ordinance. The proceeds of the Bond shall be applied in the manner and for the purposes set forth in the Ordinance. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Ordinance until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. As used in this Bond: "First Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of the Ordinance, the first $5,000,000 of the maximum principal amount of this Bond required to be advanced by the Bondholder to the City under the terms and conditions of the Ordinance. "Second Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of the Ordinance, the next $10,000,000 of the maximum principal amount of this Bond required to be advanced by the Bondholder to the City under the terms and conditions of the Ordinance after the Bondholder shall have advanced the entire First Tranche to the City. Upon the satisfaction of the terms and conditions of the Ordinance, advances under the Second Tranche shall be available on and after the first business day of calendar year 2000 until the last business day of calendar year 2001. "Third Tranche" shall mean, except as otherwise set forth in Section 2.6(b) of the Ordinance, the final $8,300,000 of the maximum principal amount of this Bond required to be advanced by the Bondholder to the City under the terms and conditions of the Ordinance after the Bondholder shall have advanced the entire Second Tranche to the City. Upon the satisfaction of the terms and conditions of the Ordinance, advances under the Third Tranche shall be available on and after the first business day of calendar year 2001 until the last business day of calendar year 2001. The City may request from time to time, and the Bondholder shall be obligated to advance, $23,300,000 in maximum principal amount under this Bond. No advance requested by the City shall be for a principal amount less than $200,000. A-2 Upon the satisfaction of the terms and conditions of Section 2.6(b) of the Ordinance: (i) advances under the First Tranche shall be available only on the date of original issuance and delivery of the Bond and shall be applied solely to retire the Bond Anticipation Note; (ii) advances under the Second Tranche shall be available on and after the first business day of calendar year 2000 until the last business day of calendar year 2001; and (iii) advances under the Third Tranche shall be available on and after the first business day of calendar year 2001 until the last business day of calendar year 2001. After the last business day of calendar year 2001, the Bondholder shall not be obligated to advance any additional principal under this Bond. Except as set forth in this paragraph, no advance shall be made under the Second Tranche until the entire principal amount of the First Tranche shall have been advanced, and no advance shall be made under the Third Tranche until the entire principal amount of the Second Tranche shall have been advanced. The City agrees that it shall: (i) request the advance under the First Tranche and an advance under the Second Tranche in calendar year 2000; and (ii) request an advance under the Third Tranche in calendar year 2001. If the Bondholder shall not have advanced in calendar year 2000 the entire $10,000,000 in principal amount of the Second Tranche, the first $200,000 requested to be advanced in calendar year 2000 shall be allocated to the Second Tranche. If the Bondholder shall not have advanced in calendar year 2001 the entire $8,300,000 in principal amount of the Third Tranche, the fIrst $200,000 requested to be advanced in calendar year 2001 shall be allocated to the Third Tranche. Except in the event of [INSERT REFERENCE TO APPROVED INTEREST RATE ADmSTMENTS], this Bond shall bear interest at the "Interest Rate", which for purposes of this Bond, shall mean (i) with respect to the First Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be set forth in subsequent proceedings of the City on or prior to the date of the original issuance and delivery of the Bond; (ii) with respect to the Second Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be set forth in subsequent proceedings of the City not less than fIfteen days after the date of the written agreement described in clause (i) above; and (iii) with respect to the Third Tranche of the maximum authorized principal amount of the Bond to be advanced by the Bondholder, such rate of interest as shall be set forth in subsequent proceedings of the City not less than fIfteen days after the date of the written agreement described in clause (ii) above. The Interest Rate shall be subject to adjustment as set forth in Section 2.7 of the Ordinance or in such subsequent proceedings of the City. The Interest Rate on the First Tranche shall be reset on December 15, 2009 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The Interest Rate on the Second Tranche shall be reset on December 30, 2009 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The Interest Rate on the Third Tranche shall be reset on January 14,2010 to such rate of interest as shall be set forth in a written agreement between the Bondholder and the City. The subsequent proceedings of the City to reset the Interest Rate on the Second Tranche shall be approved by the City not earlier than fIfteen days after the date of the subsequent proceedings of the A-3 City for the reset of the Interest Rate on the First Tranche. The subsequent proceedings of the city to reset the Interest Rate on the 1bird Tranche shall be approved by the City not earlier than fifteen days after the date of the subsequent proceedings of the City for the reset of the Interest Rate on the Second Tranche. Principal of and interest on this Bond shall be payable in equal installments on each quarterly Payment Date commencing on the January 1, April 1, July 1 or October 1 next succeeding its date of issuance, with such payments to be determined on the basis of a twenty year mortgage amortization schedule and an assumed interest rate of five percent (5%) per annum. All previously unpaid principal of the Bond and all previously accrued and unpaid interest on the Bond shall be payable on the Bond Maturity Date. The principal of and interest on this Bond shall be secured solely by and payable from the Pledged Revenues (as defmed below), subject only to the prior and senior pledge of the Electric Utilities Tax for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B. As used in this Bond: "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund (created and established under the Ordinance) derived from the proceeds of the Bond Security required to be deposited therein each month in accordance with the provisions of the Ordinance. "Bond Security" shall mean the Sales Tax, the Electric Utilities Tax, the Non- electric Utilities Tax and the Franchise Fees. "Electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of electricity (as defined in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of electricity (as defined in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. "Franchise Fees" shall mean all revenues received by the City under the franchises granted by the City or received by the City under interlocal arrangements pursuant to the Franchise Ordinances for the right, privilege and franchise to maintain and operate an electric utility in the City, to provide telephone services in the City, to sell metered or bottled gas in the City, to provide cable television services in the City and to provide solid waste collection services in the City. Said term shall also apply to all other franchise fees imposed by the City for any and all of such services, whether imposed pursuant to the Franchise Ordinances, pursuant to amendments thereto or otherwise. "Franchise Ordinances" shall mean all proceedings of the City imposing the Franchise Fees, including Ordinance No. 99-66 of the City enacted on April 15, 1999 and effective ten days thereafter with respect to Franchise Fees for cable television providers, A-4 Ordinance No. 98-31 of the City enacted on April 23, 1998 and effective ten days thereafter with respect to Franchise Fees for solid waste collection services, Ordinance No. 98-23 of the City enacted on March 12, 1998 and effective ten days thereafter with respect to Franchise Fees for sales of gas, and Ordinance No. 98-11 of the City enacted on January 8, 1998 and effective ten days thereafter with respect to Franchise fees for telephone service providers, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. Franchise Ordinances shall also include the Interlocal Agreement dated as of December 15, 1998 between the City and Miami-Dade County, Florida with respect to Franchise Fees payable by Florida Power and Light (FPL), as the same may be amended or supplemented from time to time. ''Non-electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of water, metered gas, bottled gas, coal, fuel oil and telecommunications service (as such terms are used and/or defined in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of water, metered gas, bottled gas and telecommunications service (as such terms are used and/or defined in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. "Sales Tax" shall mean local government half-cent sales tax imposed by Chapter 82-154, Laws of Florida, as amended, and distributed to the City under Part VI of Chapter 218, Florida Statutes, as amended. "Utilities Tax Ordinance" shall mean all proceedings of the City imposing the Electric Utilities Tax and the Non-electric Utilities Tax, including Ordinance No. 97-3 of the City enacted on September 11, 1997, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. The City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the Bondholder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Such accrued and unpaid interest shall be payable on the next succeeding Payment Date. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the Bondholder not less than ten (10) business days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and surrender of the Bond to the office of the Paying Agent (designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (designated A-5 corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, a partial prepayment may be effected by payment to the Bondholder of the principal without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of this Bond shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond shall continue to bear interest until payment thereof. The First Tranche of this Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on December 15,2009 at a purchase price equal to the advanced principal amount of the First Tranche of this Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than June 15, 2009. The Second Tranche of this Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on December 30, 2009 at a purchase price equal to the advanced principal amount of the Second Tranche of this Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than June 30, 2009. The Third Tranche of this Bond shall be subject to purchase by the City in whole or in part at the option of the Bondholder on January 14,2010 at a purchase price equal to the advanced principal amount of the Third Tranche of this Bond then unpaid, plus interest accrued to the date of purchase. In order to exercise such option, the Bondholder shall provide the City with written notice thereof not later than July 15,2009. THIS BOND SHALL NOT BE AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY, CHARTER OR OTHER LIMITATIONS OF INDEBTEDNESS BUT SHALL BE SECURED SOLELY BY AND PAYABLE FROM THE PLEDGED REVENUES. NO HOLDER OF THIS BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF AD VALOREM TAXING POWER OF THE CITY, OR TAXATION IN ANY FORM OF ANY REAL PROPERTY THEREIN TO PAY THE BOND OR THE INTEREST THEREON. The terms and provisions of the Ordinance are incorporated in this Bond as though such terms and provisions have been set out in full herein. A-6 IN WITNESS WHEREOF, the City of Sunny Isles Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or with his facsimile signature, and the seal of the City Commission of the City of Sunny Isles Beach, Florida, to be affixed hereto or imprinted or reproduced hereon, and attested by the Clerk of the City, either manually or with her facsimile signature, and this Bond to be dated the Dated Date set forth above. (SEAL) CITY OF SUNNY ISLES BEACH, FLORIDA ATIEST: By: Mayor Clerk of the City of Sunny Isles Beach, Florida A-7 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: This Bond IS the Bond delivered pursuant to the within mentioned Ordinance. CITY OF SUNNY ISLES BEACH Finance Department, as Registrar By: Authorized Officer A-8 ASSIGNMENT FOR V ALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. A-9 Exhibit B FORM OF BOND ANTICIPATION NOTE No.R- UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF SUNNY ISLES BEACH, FLORIDA Bond Anticipation Note, Government Center Series BAN Interest Rate BAN Maturity Date January 1,2003 Dated Date AS SET FORTH BELOW Registered Noteho1der: SUNTRUST BANK, MIAMI, NATIONAL, ASSOCIATION Maximwn Authorized Principal Amount: $5,000,000 KNOW ALL MEN BY THESE PRESENTS, that the City of Sunny Isles Beach (the "City") in Miami-Dade County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Noteho1der specified above or registered assigns on the BAN Maturity Date specified above or earlier upon mandatory repayment of principal as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), such Principal Amount as shall have been advanced by the Registered Noteholder to the City of the $5,000,000 maximwn principal amount of this Bond Anticipation Note with interest thereon at the BAN Interest Rate specified below (unless interest on this Bond Anticipation Note is converted to the Prime Rate (as defmed in the Ordinance) or the BAN Interest Rate specified below is otherwise adjusted in the manner provided in the Ordinance calculated on the basis of a 365/366-day year, as the case may be, on each Payment Date (as defined in the Ordinance) in the manner specified in the Ordinance to the Registered Noteholder. The Principal Amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond Anticipation Note is authorized to be issued in a maximwn authorized principal amount of $5,000,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, Section 25.431, Florida Statutes, as amended and supplemented, the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and A-I Ordinance No. 99-_, duly adopted on , 1999 (as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may thereafter be adopted, the "Ordinance"), and is subject to all terms and conditions of the Ordinance. Any term used in this Bond Anticipation Note and not otherwise defined, shall have the meaning ascribed to such term in the Ordinance. The proceeds of the Bond Anticipation Note shall be applied in the manner and for the purposes set forth in the Ordinance. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond Anticipation Note exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond Anticipation Note, is in full compliance with all constitutional or statutory limitations or provisions. 'Ibis Bond Anticipation Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Ordinance until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. The City may request from time to time, and the Noteholder shall be obligated to advance, $5,000,000 in maximum principal amount under this Bond Anticipation Note. No advance requested by the City shall be for a principal amount less than $200,000. Except in the event of a Determination of Taxability and as otherwise provided in the Ordinance, this Bond Anticipation Note shall bear interest at the "BAN Interest Rate", which for purposes of this Bond Anticipation Note, shall mean [INSERT REFERENCES TO INTEREST RATE APPROVED BY SUBSEQUENT PROCEEDINGS OF THE CITY] . Principal of and interest on this Bond Anticipation Note shall be payable in equal installments on each quarterly Payment Date commencing January 1, 2000, with such payments to be determined on the basis of a twenty year mortgage amortization schedule and an assumed BAN Interest Rate of five percent (5%) per annum. All previously unpaid principal of the Bond Anticipation Note and all previously accrued and unpaid interest on the Bond Anticipation Note shall be payable on the BAN Maturity Date. The principal of and interest on this Bond Anticipation Note shall be secured solely by and payable from the Pledged Revenues (as defined below), subject only to the prior and senior pledge of the Electric Utilities Tax for the payment of the City's outstanding Revenue Bonds, Series 1998, Series 1999 and Series 1999B. 'Ibis Bond Anticipation Note shall also be payable from and secured by the proceeds of the Bond. As used in this Bond Anticipation Note: "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund (created and established under the Ordinance) derived from the proceeds of the Bond A-2 Security required to be deposited therein each month in accordance with the provisions of the Ordinance. "Bond Security" shall mean the Sales Tax, the Electric Utilities Tax, the Non- electric Utilities Tax and the Franchise Fees. "Electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of electricity (as defined in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of electricity (as defined in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. "Franchise Fees" shall mean all revenues received by the City under the franchises granted by the City or received by the City under interlocal arrangements pursuant to the Franchise Ordinances for the right, privilege and franchise to maintain and operate an electric utility in the City, to provide telephone services in the City, to sell metered or bottled gas in the City, to provide cable television services in the City and to provide solid waste collection services in the City. Said term shall also apply to all other franchise fees imposed by the City for any and all of such services, whether imposed pursuant to the Franchise Ordinances, pursuant to amendments thereto or otherwise. "Franchise Ordinances" shall mean all proceedings of the City imposing the Franchise Fees, including Ordinance No. 99-66 of the City enacted on April 15, 1999 and effective ten days thereafter with respect to Franchise Fees for cable television providers, Ordinance No. 98-31 of the City enacted on April 23, 1998 and effective ten days thereafter with respect to Franchise Fees for solid waste collection services, Ordinance No. 98-23 of the City enacted on March 12, 1998 and effective ten days thereafter with respect to Franchise Fees for sales of gas, and Ordinance No. 98-11 of the City enacted on January 8, 1998 and effective ten days thereafter with respect to Franchise fees for telephone service providers, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. Franchise Ordinances shall also include the Interlocal Agreement dated as of December 15, 1998 between the City and Miami-Dade County, Florida with respect to Franchise Fees payable by Florida Power and Light (FPL), as the same may be amended or supplemented from time to time. "Non-electric Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of water, metered gas, bottled gas, coal, fuel oil and telecommunications service (as such terms are used and/or defined in the Utilities Tax Ordinance). Said term shall also apply to all taxes imposed by the City on the purchase of water, metered gas, bottled gas and telecommunications service (as such terms are used and/or defmed in the Utilities Tax Ordinance), whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed either by amendment to the Utilities Tax Ordinance or otherwise. A-3 "Sales Tax" shall mean local government half-cent sales tax imposed by Chapter 82-154, Laws of Florida, as amended, and distributed to the City under Part VI of Chapter 218, Florida Statutes, as amended. "Utilities Tax Ordinance" shall mean all proceedings of the City imposing the Electric Utilities Tax and the Non-electric Utilities Tax, including Ordinance No. 97-3 of the City enacted on September 11, 1997, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be enacted. The City may prepay this Bond Anticipation Note in whole or in part, at any time or from time to time, without penalty or premium, by paying to the Noteholder all or part of the principal amount of this Bond Anticipation Note, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Such accrued and unpaid interest shall be payable on the next succeeding Payment Date. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the Noteholder not less than ten (10) business days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond Anticipation Note is to be paid, upon presentation and surrender of the Bond Anticipation Note to the office of the Paying Agent (designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of this Bond Anticipation Note is to be paid, upon presentation of such Bond Anticipation Note at the office of the Paying Agent (designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond Anticipation Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, a partial prepayment may be effected by payment to the Noteholder of the principal without surrender of this Bond Anticipation Note. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of this Bond Anticipation Note shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond Anticipation Note shall continue to bear interest until payment thereof. THIS BOND ANTICIPATION NOTE SHALL NOT BE AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY, CHARTER OR OTHER LIMITATIONS OF INDEBTEDNESS BUT SHALL BE SECURED SOLELY BY AND PAYABLE FROM THE PLEDGED REVENUES. NO HOLDER OF THIS BOND ANTICIPATION NOTE SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF AD VALOREM A-4 TAXING POWER OF THE CITY, OR TAXATION IN ANY FORM OF ANY REAL PROPERTY THEREIN TO PAY THE BOND ANTICIPATION NOTE OR THE INTEREST THEREON. The terms and provisions of the Ordinance are incorporated in this Bond Anticipation Note as though such terms and provisions have been set out in full herein. A-5 IN WITNESS WHEREOF, the City of Sunny Isles Beach, Florida, has caused this Bond Anticipation Note to be signed by its Mayor, either manually or with his facsimile signature, and the seal of the City Commission of the City of Sunny Isles Beach, Florida, to be affixed hereto or imprinted or reproduced hereon, and attested by the Clerk of the City, either manually or with her facsimile signature, and this Bond Anticipation Note to be dated the Dated Date set forth above. (SEAL) CITY OF SUNNY ISLES BEACH, FLORIDA A TrEST: By: Mayor Clerk of the City of Sunny Isles Beach, Florida A-6 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: This Bond Anticipation Note is the Bond Anticipation Note delivered pursuant to the within mentioned Ordinance. CITY OF SUNNY ISLES BEACH Finance Department, as Registrar By: Authorized Officer A-7 ASSIGNMENT FOR V ALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Bond Anticipation Note and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond Anticipation Note on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond Anticipation Note in every particular, without alteration or enlargement, or any change whatever. A-8