Closing documents $60,000 Loan by Wells Fargo Bank CLOSING DOCUMENTS
$601000,000
LOAN BY
QUELLS FARGO BANK,NATIONAL ASSOCIATION
to
CITY OF MIAMI BEACH, FLORIDA
May 30. 2014
J
4298190/1/MIAMI
LIST OF CLOSING DOCUMENTS
1. Certified copy of Resolution INTO. 2014-2899.
2. Loan Agreement.
3. Tax-Exempt Promissory Note.
4. Taxable Promissory Note.
5. Closing Certificate of the City.
6. Closing and Disclosure Certificate of the Bank.
7. Notice of Sale to Division of Bond Finance.
8. State of Florida Division of Bond Finance Form BF-2003!BF-2004.
9. Opinion of Squire Sanders (US) LLP.
10. Opinion of City Attorney.
4298190/l/MIAMI
RESOLUTION NO. 2014-28599
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING A LOAN IN AN
AGGREGATE PRINCIPAL. AMOUNT NOT TO EXCEED 560,000,000
OUTSTANDING AT ANY TIME FROM WELLS FARGO BANK,NATIONAL
ASSOCIATION, TO PAY COSTS OF CAPITAL PROJECTS; AUTHORIZING
THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND
PROMISSORY NOTES TO EVIDENCE THE OBLIGATION OF THE CITY
TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE REPAYMENT
OF THE LOAN; AUTHORIZING OTHER ACTIONS IN CONNECTION WITH
THE LOAN AND THE FINANCNG PROGRAM; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City of Miami Beach, Florida (the "City") is duly authorized, pursuant
to the Constitution of the State of Florida, Chapter 166, Part I1, Florida Statutes, as amended,
Chapter 159, Part VII, Florida Statutes, as amended, and the Charter of the City (collectively, the
"Act"), to borrow money to finance capital projects; and
WHEREAS, the City is in need of interim financing to pay costs of capital projects (the
"Financing Program"); and
WHEREAS, in connection with the Financing Program, Wells Fargo Bank, National
Association (the "Bank"), has offered to the City a loan through two revolving lines of credit in
an aggregate principal amount not to exceed 560;000,000 outstanding at anv time (the "Loan")-
and
WHEREAS, the City has determined that it is in the best interests of the Citv to
undertake the Financing Program through the Loan; and
WHEREAS, to evidence its obligation to repay the Loan, the City will execute and
deliver to the Bank a Loan Aereem.ent (the "Loan Agreement") and a Tax-Exempt Note and a
Taxable Note(such notes collectively, the"Notes"); and
WHEREAS, to repay the Loan, the City wishes to covenant to budget and appropriate
Non-Ad Valorem Revenues (as defined in the .Loan Agreement), in accordance with and subject
to the limitations contained in the Loan Agreement and the Notes.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. DEFINITIONS.
Tenns defined in the preambles shall have the meanings set forth in such preambles. All
capitalized terms used in this resolution (the "Resolution") which are defined in the Loan
Agreement shall have the meanings assigned in the Loan Agreement, unless the context
affirmatively requires otherwise.
4297297M MIAINAI
SECTION 2. FINDINGS.
The preambles are incorporated as findincs. In addition, it is found, determined and
declared that:
(A) The Financing Program and the Loan are permitted under the Act, are
necessary and desirable, are in the public interest and will serve a proper public purpose.
(B) In accordance with Section 21 S.3S5, Florida Statutes, as amended,
undertaking the Financing Program on a negotiated basis through the Loan is in the best interest
of the City (rather than a sale through competitive bidding) because it offers (1) borrowing at
lower rates than those which the City could command in the market, and (ii) flexibility of
financing which could not be obtained in a sale through competitive bidding.
SECTION 3. LOAN AUTHORIZED.
The Loan in an aggregate principal amount not to exceed 560;000,000 outstanding at any
time to undertake the Financing: Program, as described in this Resolution and in the manner
provided in the Loan Agreement, is authorized and approved.
SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN
AGREEMENT.
The Loan Agreement, in substantially the form attached as Exhibit "A" to this
Resolution, with such changes, alterations and corrections as may be approved by the Mayor of
the City (the "Mayor"), after consultation with the Chief Financial Officer of the City(the"Chief
Financial Officer") and the City Attorney of the City (the "City Attorney"), such approval to be
presumed by the execution by the Mayor of the Loan Agreement, is approved by the City. The
City authorizes and directs the Mayor to execute and the City Clerk or Deputy City Clerk of the
City (the "City Clerk") to attest under the seal of the City the Loan Agreement and to deliver the
same to the Bank.
SECTION 5. ISSUANCE OF NOTES.
The Loan shall be evidenced by the Notes. The Notes, in substantially the forms attached
to the Loan. Agreement, with such changes, alterations and corrections as may be approved by
the Mayor, after consultation with the Chief Financial Officer and the City Attorney, such
approval to be presumed by the execution by the Mayor of the Notes, are approved by the City.
The City authorizes and directs the Mayor to make and execute the Notes and to issue and
deliver the Notes to the Bank.
SECTION 6. SECURITY FOR THE LOAN.
The Loan shall be payable solely from Non-Ad Valorem Revenues, in accordance with
and subject to the limitations contained in the Loan Agreement and the Notes. .Neither the Loan
nor the Notes shall be a general obligation of the City, or a pledge of its faith, credit or taxing
2
4297297/1/MIAMI
l
power within the meaning of any constitutional or statutory provisions or limitations, but shall be
payable solely as provided in the Loan Agreement and Notes. The City shall not be obligated to
exercise its taxing power to pay the principal of the Loan and the Notes, the related interest or
other payments or costs.
SECTION 7. GENERAL AUTHORITY.
The City's officials, officers, attorneys, agents and employees are authorized to do all
acts and things and execute and deliver any and all documents necessary by this Resolution, the
Loan Agreement or the Notes, or desirable or consistent with the requirements of this Resolution,
the Loan Agreement or the Notes, in order to obtain the Loan, accomplish the Financing
Program and provide for the full, punctual and complete performance of all the terms, covenants
and agreements contained in the Loan Agreement, the Notes and this Resolution, including the
execution of any necessary Tax Compliance Certificate and the execution and filing of any
necessary form or other document with the Internal Revenue Service with respect to any
Advance under the Tax-Exempt Note.
SECTION 8. SEVERABILITY OF INVALID PROVISIONS.
If any one or more of the provisions contained in this Resolution shall be held contrary to
any express provisions of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be deemed separable from
the remaining covenants, agreements or provisions and shall in no way affect the validity of any
of the other provisions of this Resolution or of the Loan Agreement or the Notes.
SECTION 9. REPEALING CLAUSE.
All resolutions or parts of such resolutions of the City in conflict with .the`.provOi0tis�.
contained in this Resolution are, to the extent of such conflict, supersededd real'ed. f`:
SECTION 10. EFFECTIVE DATE.
This Resolution shall become effective immediately upon a..option.,
PASSED AND ADOPTED this day of &a . 2014.
4' ayor
Attest: �" f
V�
APPROVED AS TO
�'f j FORM&LANGUAGE
-_.� {� &FOR EXECUTION
City Cler
City Attorne Date
4297297(1/MIAMI
q
EXHIBIT"A"
LOAN AGREEMENT
(including Notes)
A-1
4297297/1/MIAMI
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of
2014 (the "Closing Date"), and is by and between the City of Miami Beach, Florida; a municipal
corporation in the State of Florida, and its successors and assigns (the "Borrower"), and Wells
Fargo Bank, National Association, and its successors and assigns, as holder(s) of the hereinafter
defined Notes (the "Bank").
The parties hereto, intending to be legally bound hereby and in consideration of the mutual
covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITIOti OF TERMS
Section 1.01. Definitions. The words and terms used in this Agreement shall have the
meanings as set forth in the recitals above and the following words and terms as used in this
Agreement shall have the following meanings:
"Advance" means a borrowing of money under the Notes, pursuant to Section 5.03 hereof.
"Agreement" means this Loan Agreement and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Authot'zed Individual" means any one of the individuals identified on Attaclunent B.
"Bond Counsel" means Squire Sanders (US) LLP or such other attorney-at-law or firm of
such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and
political subdivisions thereof and acceptable to the Bank.
"Budgeted Revenues" means the Non-Ad Valorem Revenues budgeted and appropriated
pursuant to Section 3.06 hereof.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is,lawfully closed.
Code" means the Internal Revenue Code of 1956, as amended, and any Treasury
Regulations, whether temporary, proposed or final.promulgated thereunder or applicable thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
"Essential Government Services" means the provision of public safety and general
governmental services by the Borrower, the expenditures for which are set forth as the line items
entitled "General Government Expenditures" and "Public Safety Expenditures" as reflected in the
City of Miami Beach Statement of Revenues, Expenditures and Changes in Fund Balances -
Governmental Funds and as reported in the City's latest Comprehensive Annual Financial Report.
"Event of Default"means an Event of Default specified in Article VI of this Agreement.
429729812;MIAMI
"Loan"means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means, in the aggregate, 560,000,000 principal amount.
"'Ton-Ad Valorem Revenues" means in any fiscal year of the Borrower, all revenues
received by the Borrower in such fiscal year that are not derived from ad valorem taxation.
"Notes" means the Borrower's Promissory Notes in the forms attached hereto as
Attachments A-1 and A-2.
"Notice Address"means.
As to the Borrower: As set forth on Attachment B
As to the Bank: As set forth on Attachment B
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the Notice Address, or such other
office as the Bank may designate to the Borrower in writing.
"Project" means the capital improvements approved by the Mayor and City Commission of
the Borrower being financed by the Loan.
"State"means the State of Florida.
"Tax Compliance Certificate p
means the Tax Compliance Certificate to be executed and
delivered concurrently with the first Advance, if any, under the Tax-Exempt Note.
"Taxable dote" means the Note attached hereto as Attachment A-2.
"Tax-Exempt Note"means the Note attached hereto as Attachment A-1.
Section 1.02. Titles and Headings. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
a part hereof shall not in any way modify or restrict any of the teens and provisions hereof, and
shall not be considered or given any effect in construing this Agreement or any provision hereof or
in ascertaining intent, if any question of intent should arise.
ARTICLE lr
REPRESENTATIONS OF BORROWER
The Borrower represents and warrants to the Bank that:
Section 2.01. Powers of Borrower. The Borrower is a municipal corporation in the State,
duly organized and validly existing under the laws of the State. The Borrower has the power to
borrow the amount provided for in this Agreement, to execute and deliver the Notes and this
Agreement, to secure the Notes in the manner contemplated hereby and to perform and observe all
4297298121MIAN11
the terms and conditions of the Notes and this Agreement on its part to be performed and
observed. The Borrower may lawfully borrow funds hereunder in order to pay Costs of the
Project.
Section 2.02. Authorization of Loan. The Borrower had, has, or will have, as the case
may be, at all relevant times, full legal right, power, and authority to execute this Agreement, to
make the dotes, and to carry out and consummate all other transactions contemplated hereby, and
the Borrower has complied and will comply with all provisions of applicable law in all material
matters relating to such transactions. The Borrower has duly authorized the borrowing of the
amount provided for in this Agreement, the execution and delivery of this Agreement, and the
making and delivery of the Notes to the Bank and to that end the Borrower warrants that it will
take all action and will do all things which it is authorized by law to take and to do in order to
fulfill all covenants on its part to be performed and to provide for and to assure payment of the
Notes. The Notes have been duly authorized, executed, issued and delivered to the Bank and
constitute legal, valid and binding obligations of the Borrower enforceable in accordance with the
terms thereof and the terms hereof, and are entitled to the benefits and security of this Agreement.
All approvals, consents, and orders of and filings with any governmental authority or agency
which would constitute a condition precedent to the issuance of the votes or the execution and
delivery of or the performance by the Borrower of its obligations under this Agreement and the
Notes have been obtained or made and any consents, approvals, and orders to be received or
filings so made are in fill force and effect.
Section 2.03. No Violation of Law or Contract. The Borrower is not in default in any
material respect under any agreement or other instrument to which it is a party or by which it may
be bound, the breach of y which could result in a material and adverse impact on the financial
condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and
under the dotes. The making and perfonning by the Borrower of this Agreement and the Notes
will not violate any applicable provision of law, and will not result in a material breach of any of
the terms of any agreement or instrument to which the Borrower is a party or by which the
Borrower is bound, the breach of which could result in a material and adverse impact on the
financial condition of the Borrower or the ability of the Borrower to perfonn its obligations
hereunder and under the Notes.
Section 2.04. Pending or Threatened Litigation. There are no actions or proceedings
pending against the Borrower or affecting the .Borrower or, to the knowledge of the Borrower,
threatened, which, either in any case or in the aggregate, might result in any material adverse
change in the financial condition of the Borrower, or which questions the validity of this
Agreement or the Notes or of any action taken or to be taken in connection with the transactions
contemplated hereby or thereby.
Section 2.05. Financial Infonnation. The financial information regarding the Borrower
furnished to the Bank by the Borrower in connection with the Loan is accurate, and there has been
no material and adverse change in the financial condition of the Borrower from that presented in
such information.
J
4297298/2/MIAMI
ARTICLE III
COVENANTS OF THE BORROWER
Section 3.01. Affirmative Covenants. For so long as any of the principal amount of or
interest on the votes is outstanding or is available to be advanced hereunder or any duty or
obligation of the Borrower hereunder or under the Notes remains unpaid or unperformed, the
Borrower covenants to the Bank as follows:
(a) Payment. The Borrower shall pay the principal of and the interest on the Notes at
the time and place, and in the manner and from the sources provided herein and in the Notes.
(b) Use of Proceeds. Proceeds from the Notes will be used only to pay,costs of the
Project and to pay closing costs of the Loan.
(c) Notice of Defaults. . The Borrower shall within ten (10) days after it acquires
knowledge -thereof. notify the Bank in writing at its Notice Address upon the happening,
occurrence, or existence of any Event of Default, and any event or condition which with the
passage of time or jiving of notice, or both, would constitute an Event of Default, and shall
provide the Bank with such written notice, a detailed statement by a responsible officer of the
Borrower of all relevant facts and the action being taken or proposed to be taken by the Borrower
with respect thereto.
(d) Maintenance of Existence. The Borrower will take all legal action necessary to
maintain its existence until all amounts due and owing from the Borrower to the Bank under this
Agreement and the Notes have been paid in full.
(e) Records. The Borrower agrees that any and all records of the Borrower with
respect to the Loan and the Project shall be open to inspection by the Bank or its representatives at
all reasonable times at the offices the Borrower.
(f) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of
any actual or potential contingent liabilities or pending or threatened litigation of any amount that
could reasonably be expected to have a material and adverse effect upon the financial condition of
the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the
Notes.
(g) Insurance. The Borrower shall maintain such liability, casualty and other insurance
as is reasonable and prudent for similarly situated governmental entities of the State of Florida.
(h) Compliance with Laws. The Borrower shall comply with all applicable federal,
state and local laws and regulatory requirements, the violation of which could reasonably be
expected to have a material and adverse effect upon the financial condition of the Borrower or
upon the ability of the Borrower to perform its obligation hereunder and under the Notes.
(1) Payment of Document Taxes. Ill the event the Notes or this Agreement should be
subject to the excise tax on documents or the intangible personal property tax of the State, the
Borrower shall pay such taxes or reimburse the Bank for any such taxes paid by it.
4
4297298i21MIAMI
(j) Financial Information. The Borrower will cause an audit to be completed of its
books and accounts and shall furnish to the Bank audited year-end financial statements of the
Borrower together with a report by an independent certified public accountant acceptable to the
Bank stating without qualification unacceptable to the Bank that the audit was conducted in
accordance with generally accepted auditing standards and stating that such financial statements
present fairly in all material respects the financial position of the Borrower and the results of its
operations and cash flows for the periods covered by the audit report, all in conformity with
generally accepted accounting principles applied on a consistent basis. The Borrower shall adopt
an annual budget as required by law. The Borrower shall provide the owner of the dotes with (i) a
copy of its annual operating budget for each fiscal year ending after September 30, 2014 promptly
upon request therefor by the Bank, and (ii) its audited financial statements described above and its
comprehensive annual financial report (if one is prepared by the Borrower) for each fiscal year
ending on and after September 30, 2014 within 210 days after the end thereof.
(k) Proceeds of Bonds. Proceeds of bonds issued by the Borrower in connection with
any portion of the Project shall first be applied to repay the Advance(s) relating. to such portion of
the Project.
Section 3.02. Additional Debt Pavable from Non-Ad Valorem Revenues. For so long as
any of the principal amount of or .interest on the Notes is outstanding or is available to be
advanced hereunder or any duty or obligation of the Borrower hereunder or under the dotes
remains unpaid or unperformed, the Borrower covenants to the Bank that, without the prior
written consent of the Bank, but subject to the last sentence of Section 5.03(4) of this Agreement,
the Borrower shall not hereafter request any Advance hereunder or incur any indebtedness payable
from any Zion-Ad Valorem Revenues (which includes any increases in the outstanding amount
under any line of credit or similar arrangement), other than, any lion-Ad Valorem Revenues
accounted for in' an enterprise fiend under governmental accounting principles (`Enterprise
Revenues"), which could, but for such future indebtedness, be lawfully used to pay principal of or
interest on the Motes (any and all such indebtedness payable from Non-Ad Valorem Revenues,
other than Enterprise Revenues, whether now existing or incurred in the future, is referred to as
"Competing Debt"), unless (i) the amount of Non-Ad Valorem Revenues, other than Enterprise
Revenues, if any; received by the Borrower during the fiscal year of the Borrower most recently
concluded prior to the date of such Advance or the incurrence of such indebtedness for which
audited financial statements are available, minus the excess, if any, of the expenditures by the
Borrower for Essential Government Services for such fiscal year over the amount of ad valorem
taxes (other than any ad valorem taxes levied pursuant to referendum approval by the electorate)
received by the Borrower in such fiscal year, equals or exceeds 200% of the maximum amount of
principal and interest scheduled to be payable on the Notes (including the amount of the Advance
being requested) and all Competing Debt (including the proposed debt) during the then current or
any future fiscal year and (ii) an Authorized Individual certifies in writing to the Bank that to the
best of his or her knowledge no event has occurred which would cause him or her to believe that
the amount of von-Ad Valorem Revenues, other than any Enterprise Revenues, to be received in
any future fiscal year minus the excess, if any, of the expenditures by the Borrower for Essential
Government Services for such fiscal year over the amount of ad valorem taxes (other than any ad
valorem. taxes levied pursuant to referendum approval by the electorate) received by the Borrower
in such fiscal year, would be less than 200% of the amount of principal and interest scheduled to
be payable on the Notes and all Competing Debt during such fiscal year. For purposes of
calculating the foregoing, (A) if any indebtedness bears a rate of interest that is not fixed for the
5
4297298/2!MIAMI
entire term of the debt (excluding any provisions that adjust the interest rate upon a change in tax
law or in the tax treatment of interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of(1) to the extent applicable, the average rate of
actual interest borne by such indebtedness during the most recent complete month prior to the date
of issuance of such proposed indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue
Bond Index last published in the month preceding the date of issuance of such proposed
indebtedness plus one percent, (iii) for taxable debt, the _yield on a U.S. Treasury obligation with a
constant maturity closest to but not before the maturity date of such indebtedness, as reported in
Statistical Release H.15 of the Federal Reserve on the last day of the month preceding the date of
issuance of such proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken any other action
which has the effect of fixing or capping the interest rate on such indebtedness for the entire term
thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such
swap or cap, and provided further that if The Bond Buyer Revenue Bond Index or Statistical
Release H.15 of the Federal Reserve is no longer available or no longer contains the necessary
data, such other comparable source of comparable data as selected by the Bank shall be utilized in
the foregoing calculations; and (B) any Advances hereunder shall be assumed to be payable over
ten years on a level debt service basis.
Nothing in this Agreement limits the Borrower's ability to incur indebtedness payable
from Enterprise Revenues.
Section 3.03. Bank Fees and Expenses. The Borrower hereby agrees to pay the fee and
expenses of counsel to the Bank in connection with the issuance of the Notes in the amount of
S said amount to be due and payable upon the execution and delivery of this
Agreement.
In addition, the Borrower will pay the Bank a fee (the "Unused Facility Fee") equal to
0.20% of the unfunded amount of the Loan, calculated on the basis of a 360 day year and the
actual number of days elapsed, payable in arrears as of last day of each March, June, September
and December, commencing _ 2014, and on the date on which this Agreement
tenninates, subject in each case to a fifteen (1 S) day grace period.
Section 3.04. Registration and Exchange of Notes: Persons Treated as Banks. The Notes
are owned by the Bank. "The ownership of the Notes may only be transferred, and the Borrower
will transfer the ownership of the Notes, upon written request of the Bank specifying the name,
address and taxpayer identification. number of the transferee, and the Borrower will keep a record
setting forth the identification. of the owner of the Notes. The Bank will not transfer the Notes
except in compliance with all applicable laws and the Bank may only transfer both Notes to the
same transferee and at the same time.
Section 3.05. Notes Mutilated, Destroyed, Stolen or Lost. In case a Note shall become
mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new Note having
the salve terns as the Note mutilated, destroyed, stolen or lost, in exchange and in substitution for
such mutilated Note; or in lieu of and in. substitution for the Note destroyed, stolen or lost and
upon the Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably.
satisfactory to the Borrower and paying such expenses as the Borrower may incur.
6
4297298/2/MIAMI
Section 3.06. Payment of Principal and Interest; Limited Obligation. The Borrower
promises that it will promptly pay the principal of and interest on the Notes at the place, on the
dates and in the manner provided therein, provided that the Borrower may be compelled to pay the
principal of and interest on the Notes solely from the Non-Ad Valorem Revenues budgeted and
appropriated for such purpose as provided herein, and nothing in the Notes or this Agreement shall
be construed as pledging any other funds or assets of the Borrower to such payment. .Nothing
herein shall, however, prevent the Borrower fiom using any lawfully available fiends to pay its
obligations hereunder and under the Notes. The City pledges and grants a lien on the Budgeted
Revenues to secure the City's payment obligations hereunder and under the Notes. Except with
respect to the Budgeted Revenues, the covenant to budget and appropriate does not create a lien
upon or pledge of the Non-Ad Valorem Revenues. The Borrower is not and shall not be liable for
the payment of the principal of and interest on the Notes or for the performance of any pledge,
obligation or agreement for payment undertaken by the Borrower hereunder or under the Notes
from any property other than the Budgeted Revenues. The Bank shall not have any right to resort
to legal or equitable action to require or compel the Borrower to make any payment required by
the Notes or this Loan Agreement from any source other than the Budgeted Revenues.
The Borrower covenants that, so long as Notes shall remain unpaid or any other amounts
are owed by the Borrower under this Agreement or the dotes; it will budget and appropriate in its
annual budget; by amendment, if required, from the Non-Ad Valorem Revenues, amounts
sufficient to pay the principal of and interest on the Motes and other amounts owed under this
Agreement as the same shall become due. L7 the event that the amount previously budgeted for
such purpose is ever insufficient to pay such principal and interest on the Notes and other amounts
owed under this Agreement, the Borrower covenants to take immediate action to amend its budget
so as to budget and appropriate an amount from the Non-Ad Valorem Revenues sufficient to pay
such debt service on the Notes and such other amounts. Such covenants to budget and appropriate
from Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue
until such lion-Ad Valorem Revenues sufficient to make all required paynnents have been
budgeted, appropriated and used to pay such debt service on the Notes and such other amounts.
The Bank and the Borrower acknowledge the existence of Section 166.241, Florida Statutes,
which prescribes the budgetary process of the Borrower and which prohibits any expenditure or
contractual obligation therefor from being made or incurred except in pursuance of budgeted
appropriations.
Notwithstanding any provisions of this Agreement to the contrary, the Borrower shall not
be obligated to maintain or continue any of the activities of the Borrower which generate Non-Ad
Valorem Revenues. In addition, in any fiscal year of the Borrower, the Borrower may pay or
make provision for payment of the expenses of providing Essential Government Services of the
Bore over due or coming due in such fiscal year from Non-Ad Valorem Revenues prior to being
required to use any Non-Ad valorem Revenues to pay amounts due hereunder and under the
Notes.
riv Non-Ad Valorem Revenues which are restricted by a contract in existence on the date
hereof from being used to pay principal and interest on the Notes shall not be subject to the
covenant to budget and appropriate. Any Non-Ad Valorem Revenues which are prohibited by a
general or special law of the State in existence on the date hereof from being used to pay principal
and interest on. the Notes shall not be subject to the covenant to budget and appropriate. Any
source of Non-Ad Valorem Revenues which is created after the date hereof and which is
7
4297298/2/MIAMI
prohibited by a general or special law of the State from being used to pay principal and interest on
the Notes shall not be subject to the covenant to budget and appropriate.
Section 3.07. Officers and Employees of the Borrower Exempt from Personal Liabilitv.
No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the
Votes or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against
any officer (which includes elected and appointed officials), agent or employee, as such, of the
Borrower past, present or future. it being expressly understood (a) that the obligation of the
Borrower under this Agreement and under the Notes is solely a corporate one, limited as provided
in the preceding Section )3.06, (b) that no personal liability whatsoever shall attach to, or is or shall
be incurred by, the officers, agents, or employees, as such, of the Borrower, or any of them, under
or by reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom, and (c) that any and all such personal liability of and any and all such rights and claims
against, every such officer, agent, or employee, as such, of the Borrower under or by reason of the
obligations, covenants or agreements contained in this Agreement and under the Notes. or implied
therefrom, are waived and released as a condition of, and as a consideration for, the execution of
this Agreement and the issuance of the Notes on the part of the Borrower.
Section 3.0S. Business Days. In any case where the due date of interest on or principal of
the Notes is not a Business Day, then payment of such principal or interest need not be made on
such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given until the payment is actually received by the Bank.
Section 3.09. Tax Representations. Warranties and Covenants of the Borrower. The
Borro,N er agrees to comply with the provisions of the Tax Compliance Certificate, if one is ever
executed_
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder are subject to the following conditions
precedent:
Section 4.01. Representations and Warranties. The representations and warranties set
forth. in this Agreement and the Notes are and shall be true and correct on and as of the date
hereof.
Section 4.02. No Default. On the date hereof the Borrower shall be in compliance with all
the terms and provisions set forth in this Agreement and the Notes on its part to be observed or
performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would
constitute such an Event of Default, shall have occurred and be continuing at such time.
Section 4.03. Supporting Documents. On or prior to the date hereof, the Bank shall have
received the following supporting documents, all of which shall be satisfactory in form and
substance to the Bank (such satisfaction to be evidenced by the purchase of the Notes by the
Ban.k):
S
4297298.12111IAMI
(a) The opinion of the City Attorney of the Borrower regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Notes;
(b) The opinion of Bond Counsel regarding the validity and enforceability of the
Agreement and the Notes and the exemption of the Notes from certain taxes imposed under the
laws of the State; and
(c) Such additional supporting documents as the Bank may reasonably request.
ARTICLE X
FUNDING THE LOAN
Section 5.01. The Loan. The Bank hereby agrees to loan to the Borrower the amount of
up to the Loan Amount to be evidenced by the Notes to provide funds to finance the Costs of the
Project upon the terms and conditions set forth in this Agreement and the Motes. Each Note sets
forth the maximum principal amount which may be outstanding at any time thereunder. The
Borrower agrees to repay the principal amount borrowed plus interest thereon, upon the tenns and
conditions set forth in this Agreement and the Notes.
Section 5.02. Description and Payment Terms of the Notes. To evidence the Loan, the
Borrower shall issue and deliver to the Bank the Notes in the forms attached hereto as
Attachments A-1 and A-2.
Section 5.03. Advances on Notes.
(a) The Borrower may borrow from time to time up to the Loan Amount by requesting
Advances hereunder. Each Advance shall be for at least S250,000, that the initial
Advance on the Tax-Exempt Note shall be for at least 555,000, and no more than one Advance
may be requested in any month. Amounts advanced and repaid on the Notes may be re-advanced,
provided that after cumulative Advances of the Tax-Exempt Note equal 559,000,000, no further
Advance will be requested by the Borrower thereon nor will the Bank have any obligation to fund
any such Advance, unless the Borrower and the Bank have on or prior to the date of such Advance
received an opinion of Bond Counsel to the effect that taking into account the fact that cumulative
advances will exceed 559,000,000, the interest on the Tax-Exempt Note will remain excluded
from gross income for federal income tax purposes and the Note is not an item of tax preference
under Section 57 of the Code.
(b) The .Bank shall not be obligated to Advance any funds unless (i) no Event of
Default has occurred and is continuing. and (ii) the Borrower delivers to the Bank a written
request for such Advance in the form of Attachment C, executed by an Authorized Individual,
indicating the amount of the Advance requested, the date on which such Advance is to be made
(which shall be not less than two Business Days after the date such request is received by the
Bank) and stating that the representations and warranties of the Borrower contained herein are true
and correct as of such date. The Bank will not fund any Advance unless the conditions set forth
in (i) and (ii) above are satisfied, provided that the Bank may in its sole discretion waive any or all
such conditions.
9
4297298/2;MIANilI
(c) No Advance will be requested by the Borrower on the Tax-Exempt Note, and the
Bank will have no obligation to fund any such Advance, unless the Borrower and the Bank have
on or prior to the date of such Advance received an opinion of Bond Counsel to the effect that the
interest on the Tax-Exempt Note is excluded from gross income for federal income tax purposes
and the Note is not an item of tax preference under Section 57 of the Code.
(d) No Advance will be made unless the request for Advance is accompanied by a
certification signed by an Authorized Individual indicating that the Borrower has satisfied the
requirements of this .Agreement and of any and all other agreement(s) binding upon the Borrower
that limit or condition the Borrower's ability to incur indebtedness such as the Notes, and
including calculations demonstrating such compliance. As of the date of this Agreement, the
Borrower is also bound by covenants contained in certain loan agreements, dated as of August 1,
2001, with the Citv of Gulf Breeze, Florida and U.S. Bank National Association, as successor
Trustee. Notwithstanding anything to the contrary contained in this Agreement, the requirements
of Section 3.02 of this Agreement with respect to all Advances may be satisfied by a certification
delivered to the Bank at the time of any Advance to the extent such certification assumes that the
full Loan Amount has been borrowed under such Advance so long as the City certifies at the time
of any future Advances that it has not, since the date of such certification, incurred any Competing
.Debt.
ARTICLE VI
EVENTS OF DEFAULT
Section. 6.01 . General. An "Event of Default" shall be deemed to have occurred under this
ALT:eement if:
(a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or 0) or Section
3.02; or
(c) The Borrower shall default in the performance of or compliance with any term or
covenant contained in this Agreement and the Notes, other than a tenn or covenant a default in the
performance of which or noncompliance with which is elsewhere specifically dealt with, which
default or non-compliance shall continue and not be cured within thirty (30) days after (1) Gvritten.
notice thereof to the Borrower by the Bank, or (ii) the Bank is notified of such noncompliance or
should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement,
whichever is earlier; or
(d) Any representation or warranty, made in writing by or on behalf of the Borrower in
this Agreement or the Notes shall prove to have been false or incorrect in any material respect on
the date made or reaffirmed; or
(e) The Borrower admits in writing its inability to pay its debts generally as they
become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of a receiver or trustee for itself, or
10
42972980MIAMI
(f) The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is
adjudged a bankrupt on a petition in bankruptcy filed by or against the Borrower, or an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
consent of the Borrower; a receiver or trustee of the Borrower or of the whole or any part of its
property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or
set aside or stayed within ninety(90) days from the date of entry thereof, or
(g) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
States of America or the State; or
(h) The Borrower shall default in the due and punctual payment or performance of
covenants related to any other obligation for the payment of money to the Bank or any other
subsidiary or affiliate of any bank holding company of which the Bank is a subsidiary; or
(i) The Borrower shall default in the due and punctual payment of any Competing
Debt or an event of default exists with respect to any Competing Debt which results in the
acceleration of the time for payment of such debt or entitles the holder of such Competing Debt to
accelerate the time for payment of such debt.
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Notes, immediately and without notice, upon the
occurrence of any Event of Default, the Bank may declare all obligations of the Borrower under
this Agreement and the votes to be immediately due and payable without further action of any
kind and upon such declaration the Notes and the interest accrued thereon shall become
immediately due and payable. In addition, and regardless whether such declaration is or is not
made, the Bank may terminate its commitment to make Advances hereunder and may also seek-
enforcement of and exercise all remedies available to it under any applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Waiver: CL1mUlatlye Remedies. No failure or delay on the part of the
Bank in exercising any right, power, remedy hereunder or under the dotes shall operate as a
waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and
therein provided are cumulative and not exclusive of any remedies provided by law or in equity.
Section 7.02. Amendments. Changes or Modifications to the Agreement. This Agreement
shall not be amended, chanced or modified except in writing signed by the Bank and the
Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifying and/or amending this Agreement at the Borrower's request or behest.
Section 7.03. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and in making proof of
11
429729WWAIAMI
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
Section 7.04. Severability. If any clause, provision or section of this A3Yeement shall be
held illegal or invalid by any court, the invalidity of such clause, provision or section shall not
affect any other provisions or sections hereof, and this Agreement shall be construed and enforced
to the end that the transactions contemplated hereby be effected and the obligations contemplated
hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained
herein.
Section 7.05. Tenn of Agreement. Except as otherwise specified in this Agreement, this
Agreement and all representations, warranties, covenants and agreements contained herein or
made in writing by the Borrower in connection herewith shall be in full force and effect from the
date hereof and shall continue in effect as long as the Notes are outstanding.
Section 7.06. :Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall be deemed to have
been duly given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic telephone line facsimile transmission or other similar electronic or digital
transmission method (provided customary evidence of receipt is obtained); the day after it is sent,
if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail,
return receipt requested, postage prepaid. In each case notice shall be sent to the Notice Address.
Section 7.07. Applicable Law; Venue. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State. The parties waive any objection to venue in any
judicial proceeding brought in connection herewith lying in Miami-Dade County, Florida.
Section 7.08. Binding Effect_ Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors in interest and permitted assigns of the parties. The Borrower
shall have no rights to assign any of its rights or obligations hereunder without the prior written
consent of the Bank.
Section 7.09. No Third Party Beneficiaries. It is the intent and agreement of the parties
hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party
hereto shall have any rights or privileges hereunder.
Section 7.10. Attorneys Fees. To the extent legally pennissible, the Borrower and the
Bank agree that in any suit, action or proceeding brought in connection with this Agreement or the
Notes (including any appeal(s)), the prevailing party shall be entitled to recover costs and
attorneys' fees from the other party.
Section 7.11. Entire Agreement. .Except as otherwise expressly provided, this Agreement
and the Notes embodv the entire agreement and understanding between the parties hereto and
supersede all prior agreements and understandings relating to the subject matter hereof.
Attachments A-1, A-2, B and C hereto are a part hereof.
Section 7.12.. Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or further documents, agreements
1.2
429729812/MIAMI
or instruments and shall cooperate with one another in all respects for the purpose of out the
transactions contemplated by this Agreement.
Section 7.13. Waiver of Jury Trial. This Section 7.13 concerns the resolution of any
controversies or claims between the Borrower and the Bank, whether arising in contract; tort or by
statute, that arise out of or relate to this Agreement or the Notes (collectively a "Claim"). The
parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of
any Claim. This provision is a material inducement for the parties entering into this Agreement.
Section 7.14. Patriot Act. The Bank hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
the Bank to identify the Borrower in accordance with such Act.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
between them as of the date of first set forth above.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: :Mayor
Attest
By:
Name: Rafael E. Granado
Title: City Clerk
WELLS FARGO BANK. NATIONAL
ASSOCIATION
By:
Name: Lance Aylsworth
Title: Vice President
1
4297298!2,iMIAMI
ATTACHMENT A-1
TAX-EXEMPT PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
`Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of $59,000,000 or such lesser amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annum equal to the Applicable Rate (hereinafter defined) (subject to adjustment as hereinafter
provided)based upon a year of 360 days for the actual number of days elapsed.
Principal of and. interest on this dote are payable in immediately available fiends
constituting lawful money of the United States of America at such place as the Bank may
designate to the Borrower.
The Applicable Rate is 70% of the sum of the LIBOR Rate (hereinafter defined) plus
0.50%.
The Borrower shall y a the Bank interest hereon in arrears on the first Business Day as
p
defined in the Loan Agreement hereinafter defined) of each month, and the entire unpaid
principal balance hereof, together «-ith all accrued and unpaid interest hereon, on
2016 (the"Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank, and the balance thereof shall apply to the principal sum due.
As used in this Note,
(1) "Code" means the Internal Revenue Code of 1986, as amended; and any
Treasury Regulations, whether temporary, proposed or final. promulgated thereunder or
applicable thereto;
(2) "Determination of Taxability" means interest on this Note is determined or
declared, by the Internal Revenue Service or a court of competent jurisdiction to be
includable in the gross income of the Bank for federal income tax purposes under the
Code, which determination or declaration has become final and not subject to further
contest or appeal under applicable law.
(3) "Interest Period" means (a) the period commencing on the date of the
original issuance of this Note and ending on the day preceding the first Business Day of
the following month; and (b) thereafter, each period commencing on the first Business
Day of each month and ending on the day preceding the first Business Day of the
following month.
A-1-1
429729312/MIAMI
(4) "LIBOR Rate" means the rate of interest per annum determined by Bank
based on the rate for United States dollar deposits for delivery of fiinds for one (1) month
as reported on Reuters Screen LIBOR01 page (or any successor page) at approximately
11:00 a.m., London time, on the second London Business Day prior to the first day of
each Interest Period, or, for any day not a London Business Day, the immediately
preceding London Business Day (or if not so reported, then as determined by Bank from
another recognized source or interbank quotation).
(5) "London Business Day" means any day that is a day for trading by and
between banks in Dollar deposits in the London interbank market.
(6) "Prime .Rate" means a rate of interest equal to the announced prime
commercial lending rate per annum of Wells Fargo Bank, National Association. The
Prime Rate is a reference rate for the information and use of the Bank in establishing the
actual rate to be charged to the Borrower. The Prime Rate is purely discretionary and is
not necessarily the lowest or best rate charged any customer. The Prime Rate shall be
adjusted from time to time without notice or demand as of the effective date of any
announced chancre thereof.
(7) "Taxable Rate"means a rate equal to the Prime Rate times that percentage
which after the Determination of Taxability will result in the same federal after-tax yield
to the Bank as before said Detennination of Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on this
Note shalt be increased to the Taxable Rate, effective retroactively to the date on which the
interest payable on this Note is includable for federal income tax purposes in the gross income of
the .Bank. In addition, the Bank shall be paid an amount equal to any additions to tax; interest
and penalties, and any arrears in interest that are required to be paid to the United States of
America by the Bank as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest shall be paid by the Borrower within sixty (60)
days following the Determination of Taxability and demand by the Bank.
In the alternative, in the event that interest on this Note during any period becomes
partially taxable as a result of a Determination of Taxability applicable to less than all of this
Note, then the interest rate on this Note shall be increased during such period by an amount equal
to: (A-B) x C where:
(A) "A." equals the Taxable Rate (expressed as a percentage):
(B) "B" equals the interest rate on this Note (expressed as a percentage); and
(C) "C" equals the portion of this Note the interest on which has become
taxable as the result of such tax chancre (expressed as a decimal).
In addition, the Bank shall be paid an amount equal to any additions to tax, interest and penalties,
and any arrears in interest that are required to be paid to the United States of America by the
Bank as a result of such Determination of Taxability. All such additional interest, additions to
A-1-2
4297298/2 MiAM1
tax, penalties and interest shall be paid by the Borrower within sixty (60) days following the
Determination of Taxability and demand by the Bank.
In the event that the maximum effective federal corporate tax rate (the "Maximum
Corporate Tax Rate") during any period with-respect to which interest shall be accruing on this
Note on a tax-exempt basis, changes from the Maximum Corporate Tax Rate then in effect;
which causes a reduction in yield on this Note, the interest rate on this Note that is bearing
interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
Applicable Rate then in effect by a fraction equal to (1-A divided by 1-B), where A equals the
Maximum Corporate Tax Rate in effect as of the date of adjustment and B equals the Maximum
Corporate Tax Rate in effect on the date of the original issuance of this Note.
So long as any portion of the principal amount of this Note or interest hereon remains
unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any
federal or Florida public body or govermnental agency which changes the basis of taxation of
interest on this Note or causes a reduction in yield on this Note (other than by reason of a change
described above) to the Bank, including without limitation the imposition of any excise tax or
surcharge thereon, or (b) if, as result of action by any federal or Florida public body or
governmental agency, any payment is required to be made by, or anv federal. Florida state or
Florida local income tax deduction is denied to, the Bank (other than by reason of a change
described above or by reason of any action or failure to act on the part of the Bank), by reason of
the ownership of this Note, the Borrower shall reimburse the Bank within five (5) days after
receipt by the Borrower of written demand for such payment, and, to the extent permitted by law,
the Borrower agrees to indemnify the Bank against any loss. cost, charge or expense with respect
to any such change. The detenmination of the after-tax yield calculation shall be calculated by
the Bank, and such calculation, in the absence of manifest error, shall be binding on the
Borrower and the Bank. .
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
and in any such default and acceleration, the Borrower shall also be obligated to pay (hut only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder which is not paid when due shall bear interest
at the Default Rate. For purposes of this Note, "Default Rate"means the higher of(1) the Prime
Rate plus 4% and (2) the Adjusted One-Month .LIBOR Rate plus 4%. `'Adjusted One-Month
LIBOR Rate" means the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the
immediately preceding London business day for U.S. dollar deposits with a one month term,
divided by (b) one minus the `'Reserve Requirement" applicable to U.S. dollar deposits in the
A-1-3
4297298i2NIAN11
London interbank market with a maturity equal to one month. The Default Rate shall be
determined as of the day immediately following the date on which any amount payable to the
Bank hereunder is not paid when due.
Anything provided herein. or in this Mote to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum .Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount(the"Excess Interest") that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
"Maximum Rate" means the maximum rate of interest permitted for non-rated
Governmental bonds as set forth in Section 215.S4('); Florida Statutes, as may be amended from
time to time.
The Borrower to the extent permitted by law hereby waives presentment„demand, protest
and notice-of dishonor.
THIS NOTE AND THE NTEREST HEREON DOES NOT AND SHALL. NOT
CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
PLJRSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT. NOR
ANY AD VALOREN,1 TAXNG POWER OF THE BORROWER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
NCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the :Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder as provided in the Loan Agreement.
All terms, conditions and provisions of Resolution No. 2014- adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured. by a lien upon and pledge of the
"Budgeted Revenues" as described in the.Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
A-1-
4
4297298/2/MIAMI
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN FITNESS WHEREOF, the Borrower has caused this Note to be executed in, its name
as of the date hereinafter set forth.
The date of this Promissory Note is .12014.
CITY OF MIAMI BEACH, FLORIDA
By:
J
Name: Philip Levine
Title: Mayor
r
I
A-1-5
4297298/2/MIAMI
ATTACHMENT A-2
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
`Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of S1,000,000 or such lesser amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annurn equal to the Applicable Rate (hereinafter defined) based upon a year of 360 days for the
actual number of days elapsed.
Principal of and interest on this Note are payable in immediately available funds
constituting lawful money of the United States of America at such place as the Bank may
designate to the Borrower.
The Applicable Rate is the sum of the LIBOR Rate (hereinafter defined) plus 0.75%.
The Borrower shall pay the Bank interest hereon in arrears on the first Business Day (as
defined in the Loan Agreement hereinafter defined) of each month, and the entire unpaid
pn.ticipal balance hereof, together with all accrued and unpaid interest hereon, on
2016 (the"Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank. and the balance thereof shall apply to the principal sum due.
"LIBOR Rate" means the rate of interest per annum determined by Bank based on the
rate for United States dollar deposits for delivery of funds for one (1) month as reported on
Reuters Screen LIBOR01 page (or any successor page) at approximately 11:00 a.m., London
time, on the second London Business Day prior to the first day of each Interest Period, or, for
any day not a London Business Day, the immediately preceding London Business Day (or if not
so reported, then as determined by Bank from another recognized source or interbank quotation).
"'London Business Dav" means any day that is a day for trading by and between banks in
Dollar deposits in the London interbank market.
"Interest.Period"means (a) the period commencing on the date of the original issuance of
this Note and ending on the day preceding the first Business Day of the following month; and(b)
thereafter, each period commencing on the first Business Dav of each month and ending on the
day preceding.the first Business Day of the following month.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
.A-2-1
4297298/2/MIAMI
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including, such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claim_ s, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder"which is not paid when due shall bear interest
at the Default Rate. For purposes of this Note, "Default Rate" means the higher of(1) the Prime
Rate plus 4% and (2) the Adjusted One-Month LIBOR Rate plus 4%.
"Prime Rate" means a rate of interest equal to the announced prime commercial lending
rate per annum of Wells Fargo Bank, National Association. The Prime Rate is a reference rate
for the information and use of the Bank in establishing the actual rate to be charged to the
Borrower. The Prime Rate is purely discretionary and is not necessarily the lowest or best rate
charged any customer. The Prime Rate shall be adjusted from time to time without notice or
demand as of the effective date of any announced change thereof.
"Adjusted One-Month LIBOR Rate"means the sum of 2.50% plus the quotient of(a) the
LIBOR Rate on the immediately preceding London business day for U.S. dollar deposits with a
one month term, divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar
deposits in the London interbank market with a maturity equal to one month. The Default Rate
shall be determined as of the day immediately following the date on which any amount payable
to the Bank hereunder is not paid when due.
Anything provided herein or in this Note to the contrary notwithstanding; in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this `rote shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount (the "Excess Interest") that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date. in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Batik a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
`MMaximum Rate" means the maximum rate of interest permitted for non-rated
govenunental bonds as set forth in Section 21 x.84(3), Florida Statutes, as may be amended from
time to time.
The Borrower to the extent pennitted by law hereby waives presentment, demand, protest
and notice of dishonor.
THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
A-2-2
4297298/2/MIAMI
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXNG POWER OF THE BORROWER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDE,"TAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the teens and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder.
All tenns, conditions and provisions of Resolution No. 2014- adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein.shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues"' as described in the Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution; delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any cons titutiona] or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is , 2014.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: Mayor
-_-J
429729812;M IAM
ATTACHMENT B
1. Authorized Individual(s): Patricia D. Walker, Chief Financial Officer
Georgina P. Echert, Assistant Finance Director
2. Notice Address of.Borrower: City of Miami Beach, Florida
1700 Convention Center Drive
rd
3 Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank: Wells Fargo Bank, National Association
200 South Biscayne Boulevard
14th Floor
Miami, Florida 33131
Attention: Lance Aylsworth, Vice President
B-1,
4297298/2WIAMI
ATTACHMENT C
REQUEST FOR ADVANCE
Date:
To- Wells Fargo Bank, National Association
From: City of Miami Beach, Florida
Amount of Advance on Tax-Exempt Note: S
Amount of Advance on Taxable Note: S
Date of Advance:
Purpose of Advance(description and amount):
_ S
_ S
- S
The above-named Borrower requests an Advance under the Loan Agreement dated as of
2014 (the "Loan Agreement") and the Promissory identified above in the
amount set forth above. The representations and warranties of the Borrower contained in the
Loan Agreement are true and correct as of the date hereof.
Attached hereto are the showings, if any, required. by Section 5.03 of the Loan Agreement,
including the opinion(s) of Bond Counsel required thereunder.
Proceeds of the Advance should be wired as follows:
CITY OF MIAMI BEACH, FLORIDA
By:
Name: _
Title:
C-1
429729812/MIAMI
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of May 30,
2014 (the "Closing Date"), and is by and between the City of Miami Beach, Florida, a municipal
corporation in the State of Florida, and its successors and assigns (the "Borrower"), and Wells
Fargo Bank, National Association, and its successors and assigns, as holder(s) of the hereinafter
defined Notes (the "Bank").
The parties hereto, intending to be legally bound hereby and in consideration of the mutual
covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
Section 1.01. Definitions. The words and terms used in this Agreement shall have the
meanings as set forth in the recitals above and the followincy words and terms as used in this
Agreement shall have the following meanings:
Advance" means a borrowing of money under the Notes, pursuant to Section 5.03 hereof.
"'Agreement" means this Loan Agreement and any and al.l. modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Authorized Individual" means any one of the individuals identified on Attachment B.
"Bond Counsel" means Squire Sanders (US) LLP or such other attorney-at-law or firm of
such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and
political subdivisions thereof and acceptable to the Bank.
"Budgeted Revenues" means the Non-Ad Valorem Revenues budgeted and appropriated
pursuant to Section 3.06 hereof.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
"Essential Government Services" means the provision of public safety and general
governmental services by the Borrower, the expenditures for which are set forth as the line items
entitled "General Government Expenditures" and "Public Safety Expenditures" as reflected in the
City of Miami Beach Statement of Revenues, Expenditures and Changes in Fund Balances -
Governmental Funds and as reported in the City's latest Comprehensive Annual Financial Report.
"Event of Default" means an Event of Default specified in Article VI of this Agreement.
4297298/3/MIAMI
"Loan" means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means, in the aggregate, 560,000,000 principal amount.
"Non-Ad Valorem Revenues" means in any fiscal year of the Borrower, all revenues
received by the Borrower in such fiscal year that are not derived from ad valorem taxation.
"Notes" means the Borrower's Promissory Notes in the forms attached hereto as
Attachments A-1 and A-2.
"Notice Address" means,
As to the Borrower: As set forth on Attachment B
As to the Bank: As set forth on Attachment B
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the Notice Address, or such other
office as the Bank may designate to the Borrower in writing.
"'Project" means the capital improvements approved by the Mayor and City Commission of
the Borrower being Financed by the Loan.
"State" means the State of Florida.
"'Tax Compliance Certificate" means the Tax Compliance Certificate to be executed and
delivered concurrently with the first Advance, if any, under the Tax-Exempt Note.
''Taxable Note" means the Note attached hereto as Attachment A-2.
"Tax-Exempt Note" means the Note attached hereto as Attachment A-1.
Section 1.02. Titles and Headings. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and
shall not be considered or given any effect in construing this Agreement or any provision hereof or
in ascertaining intent, if any question of intent should arise.
ARTICLE 11
REPRESENTATIONS OF BORROWER
The Borrower represents and warrants to the Bank that:
Section 2.01. Powers of Borrower. The Borrower is a municipal corporation in the State,
duly organized and validly existing under the laws of the State. The Borrower has the power to
borrow the amount provided for in this Agreement, to execute and deliver the Notes and this
Agreement, to secure the Notes in the manner contemplated hereby and to perform and observe all
2
4297298l3/MIAMI
the terms and conditions of the Notes and this Agreement on its part to be performed and
observed.' The Borrower may lawfully borrow fiends hereunder in order to pay Costs of the
Project.
Section 2.02. Authorization of Loan. The .Borrower had, has, or will have, as the case
may be, at all relevant times, full legal right, power, and authority to execute this Agreement, to
make the Notes, and to carry out and consummate all other transactions contemplated hereby, and
the Borrower has complied and will comply with all provisions of applicable law in all material
matters relating to such transactions. The Borrower has duly authorized the borrowing of the
amount provided for in this Agreement, the execution and delivery of this Agreement, and the
making and delivery of the Notes to the Bank and to that end the Borrower warrants that it will
take all action and will do all things which it is authorized by law to take and to do in order to
fulfill all covenants on its part to be performed and to provide for and to assure payment of the
Notes. The Notes have been duly authorized, executed, issued and delivered to the Bank and
constitute legal, valid and binding obligations of the Borrower enforceable in accordance with the
terms thereof and the terms hereof, and are entitled to the benefits and security of this Agreement.
All approvals, consents, and orders of and filings with any governmental authority or agency
which would constitute a condition precedent to the issuance of the Notes or the execution and
delivery of or the performance by the Borrower of its obligations under this Agreement and the
Notes have been obtained or made and any consents, approvals, and orders to be received or
filings so made are in full force and effect.
Section 2.03. No Violation of Law or Contract. The Borrower is not in default in any
material respect under any agreement or other instrument to which it is a party or by which it may
be bound, the breach of which could result in a material and adverse impact oil the financial
condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and
under the Notes. The making and performing by the Borrower of this Agreement and the Notes
will not violate any applicable provision of law, and will not result in a material breach of any of
the terms of any agreement or instrument to which the Borrower is a party or by which the
Borrower is bound, the breach of which could result in a material and adverse impact on the
Financial condition of the Borrower or the ability of the Borrower to perform its obligations
hereunder and under the Notes.
Section 2.04. Pending or Threatened Litigation. There are no actions or proceedings
pending against the Borrower or affecting the Borrower or, to the knowledge of the Borrower,
threatened, which, either in any case or in the aggregate, might result in any material adverse
change in the financial condition of the Borrower, or which questions the validity of this
Agreement or the Notes or of any action taken or to be taken in connection with the transactions
contemplated hereby or thereby.
Section 2.05. Financial Information. The financial information regarding the Borrower
furnished to the Bank.by the Borrower in connection with the Loan is accurate, and there has been
no material and adverse change in the financial condition of the Borrower from that presented in
such information.
4297298/3/MIAMI
ARTICLE I.II
COVENANTS OF THE BORROWER
Section 3.01. Affirmative Covenants. For so long as any of the principal amount of or
interest on the Notes is outstanding or is available to be advanced hereunder or any duty or
obligation of the Borrower hereunder or under the Notes remains unpaid or unperformed, the
Borrower covenants to the Bank as follows:
(a) Payment. The Borrower shall pay the principal of and the interest on the Notes at
the time and place, and in the manner and from the sources provided herein and in the Notes.
(b) Use of Proceeds. Proceeds from the Notes will be used only to pay costs of the
Project and to pay closing costs of the Loan.
(c) Notice of Defaults. The Borrower shall within ten (10) days after it acquires
knowledge thereof, notify the Bank in writing at its Notice Address upon the happening,
occurrence, or existence of any Event of Default, and any event or condition which with the
passage of time or giving of notice, or both, would constitute an Event of Default, and shall
provide the Bank with such written notice, a detailed statement by a responsible officer of the
Borrower of all relevant facts and the action being taken or proposed to be taken by the Borrower
with respect thereto.
(d) Maintenance of Existence. The Borrower will take all legal action necessary to
maintain its existence until all amounts due and owing from the Borrower to the Bank under this
Agreement and the Notes have been paid in full.
(e) Records. The Borrower agrees that any and all records of the Borrower with
respect to the Loan and the Project shall be open to inspection by the Bank or its representatives at
all reasonable times at the offices the Borrower.
(f) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of
any actual or potential contingent liabilities or pending or threatened litigation of any amount that
> adverse effect upon the financial condition of
could reasonably be expected to have a material and ad ers p
the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under-the
Notes.
(g) Insurance. The Borrower shall maintain such liability, casualty and other insurance
as is reasonable and prudent for similarly situated governmental entities of the State of Florida.
(h) Compliance with Laws. 'The Borrower shall comply with all applicable federal,
state and local laws and regulatory requirements, the violation of which could reasonably be
expected to have a material and adverse effect upon the financial condition of the Borrower or
upon the ability of the Borrower to perform its obligation hereunder and under the Notes.
i Payment of Document
Taxes. In the event the Notes or this Agreement should be
( ) v b
subject to the excise tax on documents or the intangible personal property tax of the State; the
Borrower shall pay such taxes or reimburse the Bank for any such taxes paid by it.
4
4297298/3/MIAMI
(j) Financial Information. The Borrower will cause an audit to be completed of its
books and accounts and shall furnish to the Bank audited year-end financial statements of the
Borrower together with a report by an independent certified public accountant acceptable to the
Bank stating without qualification unacceptable to the Bank that the audit was conducted in
accordance with generally accepted auditing standards and stating that such financial statements
present fairly in all material respects the financial position of the Borrower and the results of its
operations and cash flows for the periods covered by the audit report, all in conformity with
generally accepted accounting principles applied on a consistent basis. The Borrower shall adopt
an annual budget as required by law. The Borrower shall provide the owner of the Notes with (i) a
copy of its annual operating budget for each fiscal year ending after September 30. 2014 promptly
upon request therefor by the Bank, and (ii) its audited financial statements described above and its
comprehensive annual financial report (if one is prepared by the Borrower) for each fiscal year
ending on and after September 30, 2014 within 210 days after the end thereof.
(k) Proceeds of Bonds. Proceeds of bonds issued by the Borrower in connection with
any portion of the Project shall first be applied to repay the Advance(s) relating to such portion of
the Project.
Section 3.02. Additional Debt Pavable from Non-Ad Valorem Revenues. For so long as
any of the principal amount of or interest on the Notes is outstanding or is available to be
advanced hereunder or any duty or obligation of the Borrower hereunder or under the Notes
remains unpaid or unperformed, the Borrower covenants to the Bank that, without the prior
written consent of the Bank, but subject to the last sentence of Section 5.03(d) of this Agreement,
the Borrower- shall not hereafter request any Advance hereunder or intro•any indebtedness payable
from any Non-Ad Valorem Revenues (which includes any increases in the outstanding amount
under any line of credit or similar arrangement), other than any Non-Ad Valorem Revenues
accounted for in an enterprise fund under governmental accounting principles (`'Enterprise
Revenues"), which could, but for such fixture indebtedness, be lawfully used to pay principal of or
interest on the Notes (any and all such indebtedness payable from Non-Ad Valorem Revenues,
other than Enterprise Revenues, whether now existing or incurred in the future, is referred to as
"Competing Debt"), unless (i) the amount of Non-Ad Valorem Revenues, other than Enterprise
Revenues, if any, received by the Borrower during the fiscal year of the Borrower most recently
concluded prior to the date Of such Advance or the incurrence of such indebtedness for which
audited financial.statements are available, rnninus the excess, if any, of the expenditures by the
Borrower for Essential Government Services for such fiscal year over the amount of ad valorem
taxes (other than any ad valorem taxes levied pursuant to referendum approval by the electorate)
received by the Borrower in such fiscal year, equals or exceeds 200% of the maximum amount of
principal and interest scheduled to be payable on the Notes (including the amount of the Advance
being requested) and all Competing Debt (including the proposed debt) during the then current or
any future fiscal year and (ii) an Authorized Individual certifies in writing to the Bank that to the
best of his or her knowledge no event has occurred which would cause him or her to believe that
the amount of Non-Ad Valorem Revenues, other than any Enterprise Revenues, to be received in
any future fiscal year minus the excess, if any, of the expenditures by the Borrower for Essential
Government Services for such fiscal year over the amount of ad valorem taxes (other than any ad
valorem taxes levied pursuant to referendum approval by the electorate) received by the Borrower
in such fiscal year, would be less than 200% of the amount of principal and interest scheduled to
be payable on the Notes and all Competing Debt during such fiscal year. For purposes of
calculating the foregoing, (A) if any indebtedness bears a rate of interest that is not fixed for the
4297298/3/MIAMI
entire term of the debt (excluding any provisions that adjust the interest rate upon a change in tax
law or in the tax treatment of interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of(i) to the extent applicable, the average rate of
actual interest borne by such indebtedness during the most recent complete month prior to the date
of issuance of such proposed indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue
Bond Index last published in the month preceding the date of issuance of such proposed
indebtedness plus one percent; (iii) for taxable debt, the yield on a U.S. Treasury obligation with a
constant maturity closest to but not before the maturity date of such indebtedness, as reported in
Statistical Release H.15 of the Federal Reserve on the last day of the month preceding the date of
issuance of such proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken any other action
which has the effect of fixing or capping the interest rate on such indebtedness for the entire term
thereof; then such fixed or capped rate shall be used as the applicable rate for the period of such
swap or cap, and provided further that if The Bond Buyer Revenue Bond Index or Statistical
Release H.15 of the Federal Reserve is no longer available or no longer contains the necessary
data, such other comparable source of comparable data as selected by the Bank shall be utilized in
the foregoing calculations; and (B) any Advances hereunder shall be assumed to be payable over
ten years on a level debt service basis.
Nothing in this Agreement limits the Borrower's ability to incur indebtedness payable
from Enterprise Revenues.
Section 3.03. Bank Fees and Expenses. The Borrower hereby agrees to pay the fee and
expenses of counsel to the Bank in connection with the issuance of the Notes in the amount of
.S4,000.00, said amount to be due and payable upon the execution and delivery of this Agreement.
In addition, the Borrower will pay the Bank a fee (the '`Unused Facility Fee") equal to
0.20% of the unfunded amount of the Loan, calculated on the basis of a 360 day year and the
actual number of days elapsed; payable in. arrears as of last day of each March, June, September
and December, commencing June 30. 2014, and on the date on which this Agreement terminates,
subject in each case to a fifteen (15) day grace period.
Section 3.04. Registration and Exchange of Notes; Persons Treated as Banks. The Notes
are owned by the Bank. The ownership of the Notes may only be transferred, and the Borrower
will transfer the ownership of the Notes, upon written request of the Bank specifying the name,
address and taxpayer identification number of the transferee, and the Borrower will keep a record
setting forth the identification of the owner of the Notes. The Bank will not transfer the Notes
except in compliance with all applicable laws and the Bank may only transfer both Notes to the
same transferee and at the same time.
Section 3.05. Notes Mutilated. Destroyed. Stolen or Lost. In case a Note shall become
mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new Note having
the same terms as the Note mutilated, destroyed, stolen or lost; in exchange and in substitution for
such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and
upon the Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably
satisfactory to the Borrower and paying such expenses as the Borrower may incur.
6
4297298/3/MIAMI
Section 3.06. Payment of Principal and Interest; Limited Obligation. The Borrower
promises that it will promptly pay the principal of and interest on the Notes at the place, on the
dates and in the manner provided therein, provided that the Borrower may be compelled to pay the
principal of and interest on the Notes solely from the Non-Ad Valorem Revenues budgeted and
appropriated for such purpose as provided herein, and nothing in the Notes or this Agreement shall
be construed as pledging any other fiends or assets of the Borrower to such payment. Nothing
herein shall, however, prevent the Borrower from using any lawfully available fiends to pay its
obligations hereunder and under the Notes. The City pledges and grants a lien on the Budgeted
Revenues to secure the City's payment obligations hereunder and under the Notes. Except with
respect to the Budgeted Revenues, the covenant to budget and appropriate does not create a lien
upon or pledge of the Non-Ad Valorem Revenues. The Borrower is not and shall not be liable for
the payment of the principal of and interest on the Notes or for the performance of any pledge,
obligation or agreement for payment undertaken by the Borrower hereunder or under the Notes
from any property other than the Budgeted Revenues. The Bank shall not have any right to resort
to legal or equitable action to require or compel the Borrower to make any payment required by
the Notes or this Loan Agreement from any source other than the Budgeted Revenues.-
The Borrower covenants that, so long as Notes shall remain unpaid or any other amounts
are owed by the Borrower under this Agreement or the Notes, it will budget and appropriate in its
annual budget, by amendment, if required, from the Non-Ad Valorem Revenues, amounts
sufficient to pay the principal of and interest on the Notes and other amounts owed under this
Agreement as the same shall become due. In the event that the amount previously budgeted for
such purpose is ever insufficient to pay such principal and interest on the Notes and other amounts
owed under this Agreement, the Borrower covenants to take immediate action to amend its budget
so as to budget and appropriate an amount from the Non-Ad Valorem Revenues sufficient to pay
such debt service on the Notes and such other amounts. Such covenants to budget and appropriate
from Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue
until such Non-Ad Valorem Revenues sufficient to make all required payments have been
budgeted, appropriated and used to pay such debt service on the Notes and such other amounts.
The Bank and the Borrower acknowledge the existence of Section 166.241, Florida Statutes,
which prescribes the budgetary process of the Borrower and which prohibits any expenditure or
contractual obligation therefor from being made or incurred except in pursuance of budgeted
appropriations.
Notwithstanding any provisions of this Agreement to the contrary, the Borrower shall not
be obligated to maintain or continue any of the activities of the Borrower which generate Non-Ad
Valorem Revenues. In addition, in any fiscal year of the Borrower, the Borrower may pay or
make provision for payment of the expenses of providing Essential Government Services of the
Borrower due or coming due in such fiscal year from Non-Ad Valorem Revenues prior to being
required to use any Non-Ad valorem Revenues to pay amounts due hereunder and under the
Notes.
Any Non-Ad Valorem Revenues which are restricted by a contract in existence on the date
hereof from being used to pay principal and interest on the Notes shall not be subject to the
covenant to budget and appropriate. Any Non-Ad Valorem Revenues which are prohibited by a
general or special law of the State in existence on the date hereof from being used to pay principal
and interest on the Notes shall not be subject to the covenant to budget and appropriate. Any
source of Non-Ad Valorem Revenues which is created after the date hereof and which is
4297298/3/MIAMI
prohibited by a general or special law of the State from being used to pay principal and interest on
the Notes shall not be subject to the covenant to budget and appropriate.
Section 3.07. Officers and Employees of the Borrower Exempt from Personal Liability.
No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the
Notes or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against
any officer (which includes elected and appointed officials), agent or employee, as such, of the
Borrower past, present or future, it being expressly understood (a) that the obligation of the
Borrower under this Agreement and tinder the Notes is solely a corporate one, limited as provided
in the preceding Section 3.06, (b) that no personal liability whatsoever shall attach to, or is or shall
be incurred by, the officers, agents, or employees, as such, of the Borrower, or any of them, under
or.by reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom, and (c) that any and all such personal liability of, and any and all such rights and claims
against, every such officer, agent, or employee, as such, of the Borrower under or by reason of the
obligations, covenants or agreements contained in this Agreement and under the Notes, or implied
therefrom, are waived and released as a condition or, and as a consideration for, the execution of
this Agreement and the issuance of the Notes on the part of the Borrower.
Section 3.08. Business Days. In any case where the due date of interest on or principal of
the Notes is not a Business Day, then payment of such principal or interest need not be made on
such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given until the payment is actually received by the Bank.
Section 3.09. Tax Representations. Warranties and Covenants of the Borrower. The
Borrower agrees to comply with the provisions of the Tax Compliance Certificate, if one is ever-
executed.
ARTICLE IV
COaNDITIONS OF LENDING
The obligations of the Bank to lend hereunder are subject to the following conditions
precedent:
Section 4.01. Representations and Warranties. The representations and warranties set
forth in this Agreement and the Notes are and shall be true and correct on and as of the date
hereof.
Section 4.02. No Default. On the date hereof the Borrower shall be in compliance with all
the terms and provisions set forth in this Agreement and the Notes on its part to be observed or
performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would
constitute such an Event of Default, shall have occurred and be continuing at such time.
Section 4.03. Supporting Documents. On or prior to the date hereof, the Bank shall have
received the following supporting documents, all of which shall be satisfactory in form and
substance to the Bank (such satisfaction to be evidenced by the purchase of the Notes by the
Bank):
8
4297298/3/MIAMI
(a) The opinion of the City Attorney of the Borrower regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Notes;
(b) The opinion of Bond Counsel regarding the validity and enforceability of the
Agreement and the Notes and the exemption of the Notes from certain taxes imposed under the
laws of the State: and
(c) Such additional supporting documents as the Bank may reasonably request.
ARTICLE V
FUNDING THE LOAN
Section 5.01. The Loan. The Bank hereby agrees to loan to the Borrower the amount of
up to the Loan Amount to be evidenced by the Notes to provide- fiends to finance the Costs of the
Project upon the terms and conditions set forth in this Agreement and the Notes. Each Note sets
forth the maximum principal amount which may be outstanding at any time thereunder. The
Borrower agrees to repay the principal amount borrowed plus interest thereon, upon the terms and
conditions set forth in this Agreement and the Notes.
Section 5.02. Description and Payment Terms of the Notes. To evidence the Loan, the
Borrower shall issue and deliver to the Bank the Notes in the forms attached hereto as
Attachments A-1 and A-2.
Section 5.03. Advances on Notes.
(a) The Borrower may borrow fi-om time to time up to the Loan Amount by requesting
Advances hereunder. Each Advance shall be for at least 5250,000, provided that the initial
Advance on the Tax-Exempt Note shall be for at least $55,000, and no more than one Advance
may be requested in any month. Amounts advanced and repaid on the Notes may be re-advanced,
provided that after cumulative Advances of the Tax-Exempt Note equal $59,000,000, no further
Advance will be requested by the Borrower thereon nor will the Bank have any obligation to fund
any such Advance, unless the Borrower and the Bank have on or prior to the date of such Advance
received an opinion of Bond Counsel to the effect that taking into account the fact that cumulative
advances will exceed $59,000,000, the interest on the Tax-Exempt Note will remain excluded
from Bross income for federal income tax purposes and the Note is not an item of tax preference
under Section 57 of the Code.
(b) The Bank shall not be obligated to Advance any fiends unless (i) no Event of
Default has occurred and is continuing, and (ii) the Borrower delivers to the Bank a written
request for such Advance in the form of Attachment C, executed by an Authorized Individual,
indicating the amount of the Advance requested, the date on which such Advance is to be made
(which shall be not less than two Business Days after the date such request is received by the
Bank) and stating that the representations and warranties of the Borrower contained herein are true
and correct as of such date. The Bank will not fund any Advance unless the conditions set forth
in (i) and (ii) above are satisfied, provided that the Bank may in its sole discretion waive any or all
such conditions.
9
429729813/MIAMI
(c) No Advance will be requested by the Borrower on the Tax-Exempt Note, and the
Bank will have no obligation to hind any such Advance, unless the Borrower and the Bank have
on or prior to the date of such Advance received an opinion of Bond Counsel to the effect that the
interest on the Tax-Exempt Note is excluded from gross income for federal income tax purposes
and the Note is not an item of tax preference under Section 57 of the Code.
(d) No Advance will be made unless the request for Advance is accompanied by a
certification signed by an Authorized Individual indicating that the Borrower has satisfied the
requirements of this Agreement and of any and all other agreement(s) binding upon the Borrower
that limit or condition the Borrower's ability to incur indebtedness such as the Notes, and
including calculations demonstrating such compliance. As of the date of this Agreement, the
Borrower is also bound by covenants contained in certain loan agreements, dated as of August 1,
2001, with the City of Gulf Breeze, Florida and U.S. Bank National Association, as successor
Trustee. Notwithstanding anything to the contrary contained in this Agreement, the requirements
of Section 3.02 of this Agreement with respect to all Advances may be satisfied by a certification
delivered to the Bank at the time of any Advance to the extent such certification assumes that the
frill Loan Amount has been borrowed under such Advance so long as the City certifies at the time
of any Future Advances that it has not, since the date of such certification, incurred any Competing
Debt.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. General. An "Event of Default" shall be deemed to have occurred under this
Agreement if:
(a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or 0) or Section
3.02; or
(c) The Borrower shall default in the performance of or compliance with any term or
covenant contained in this Agreement and the Notes, other than a term or covenant a default in the
performance of which or noncompliance with which is elsewhere specifically dealt with, which
default or non-compliance shall continue and not be cured within thirty (30) days after (i) written
notice thereof to the Borrower by the Bank, or (ii) the Bank is notified of such noncompliance or
should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement,
whichever is earlier; or
(d) Any representation or warranty made in writing by or on behalf of the Borrower in
this Agreement or the Notes shall prove to have been false or incorrect in any material respect on
the date made or reaffirmed; or
(e) The Borrower admits in writing its inability to pay its debts generally as they
become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of a receiver or trustee for itself; or
10
4297298/3/MIAMI
(f) The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is
adjudged a bankrupt on a petition in bankruptcy filed by or against the Borrower, or an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
consent of the Borrower, a receiver or trustee of the Borrower or of the whole or ally part of its
property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or
set aside or stayed within ninety (90) days from the date of entry thereof, or
(g) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable taw or statute of the United
States of America or the State, or
(h) The Borrower shall default in the due and punctual payment or performance. of
covenants related to any other obligation for the payment of money to the Bank or any other
subsidiary or affiliate of any bank holding company of which the Bank is a subsidiary; or
(i) 1-he Borrower shall default in the due and punctual payment of any Competing
Debt or an event of default exists with respect to any Competing Debt which results in the
acceleration of the time for payment of such debt or entitles the holder of such Competing Debt to
accelerate the time for payment of such debt.
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Notes, immediately and without notice, upon the
occurrence of any Event of Default, the Bank may declare al.l obligations of the Borrower under
this Agreement and the Notes to be immediately due and payable without further action of any
kind and upon such declaration the Notes and the interest accrued thereon shall become
immediately due and payable. In addition, and regardless whether such declaration is or is not
made, the Bank may terminate its commitment to make Advances hereunder and may also seek
enforcement of and exercise all remedies available to it under any applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Waiver, Cumulative Remedies. No failure or delay on the part of the
Bank in exercising any right, power, remedy hereunder or under the Notes shall operate as a
waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and
therein provided are cumulative and not exclusive of any remedies provided by law or in equity.
Section 7.02. Amendments, Changes or Modifications to the Agreement. This Agreement
shall not be amended, changed or modified except in writing signed by the Bank and the
Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifying and/or amending this Agreement at the Borrower's request or behest.
Section 7.03. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and, in making proof of
11
4297298/3/MIAMI
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
Section 7.04. Severability. If any clause, provision or section of this Agreement shall be
held illegal or invalid by any court, the invalidity of such clause, provision or section shall not
affect any other provisions or sections hereof, and this Agreement shall be construed and enforced
to the end that the transactions contemplated hereby be effected and the obligations contemplated
hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained
herein.
Section 7.05. Term of Agreement. Except as otherwise specified in this Agreement, this
Agreement and all representations, warranties, covenants and agreements contained herein or
made in writing by the Borrower in connection herewith shall be in full force and effect from the
date hereof and shall continue in effect as long as the Notes are outstanding.
Section 7.06. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall be deemed to have
been duly given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic telephone line facsimile transmission or other similar electronic or digital
transmission method (provided customary evidence of receipt is obtained); the day after it is sent,
if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail.,
return receipt requested, postage prepaid. In each case notice shall be sent to the Notice Address.
Section 7.07. Applicable Law: Venue. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State. The parties waive any objection to venue in any
judicial proceeding brought in connection herewith lying in Miami-Dade County, Florida.
Section 7.08. Bindin7 Effect: Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors in interest and permitted assigns of the parties. The Borrower
shall have no rights to assign any of its rights or obligations hereunder without the prior written
consent of the Bank.
Section 7.09. No Third Party Beneficiaries. It is the intent and agreement of the parties
hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party
hereto shall have any rights or privileges hereunder.
Section 7.10. Attorneys Fees. To the extent legally permissible, the Borrower and the
Bank agree that in any suit, action or proceeding brought in connection with this Agreement or the
Notes (including any appeal(s)), the prevailing party shall be entitled to recover costs and
attorneys' fees from the other party.
Section 7.11. Entire Agreement. Except as otherwise expressly provided, this Agreement
and the Notes embody the entire agreement and understanding between the parties hereto and
supersede all prior agreements and understandings relating to the subject matter hereof.
Attachments A-1, A-2, B and C hereto are a part hereof.
Section 7.12. Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or further documents, agreements
12
4297298/3/MIAMI
or instruments and shall cooperate with one another in all respects for the purpose of out the
transactions contemplated by this Agreement.
Section 7.13. Waiver of Jury Trial. This Section 7.13 concerns the resolution of any
controversies or claims between the Borrower and the Bank, whether arising in contract, tort or by
statute, that arise out of or relate to this Agreement or the Notes (collectively a "Claim"). The
parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of
any Claim. This provision is a material inducement for the parties entering into this Agreement.
Section 7.14. Patriot Act. The Bank hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
the Bank to identify the Borrower in accordance with such Act.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
between them as of the date of first set forth above.
CITY OF MIAMI BEACH, FLORIDA
By: All 11
Name: Philif evine
Title: i\ ablr/
Attest
By:
Name: Rafael E. Granado
Title: City Clerk
WELLS FARGO BANK, NATIONAL
ASSOCIATION
Name: Cnce Aylsworth
Title: Vice. President
13
4297298/3/MIAMI
ATTACHMENT A-1
TAY-EXEMPT PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
la,,vs of the State of Florida. for value received. promises to pay from the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of $59,000,000 or such lesser amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annum equal to the Applicable Rate (hereinafter defined) (subject to adjustment as hereinafter
provided) based upon a year of 360 days for the actual number of days elapsed.
Principal of and interest on this Note are payable in immediately available funds
constituting lawful money of the United States of America at such place as the Bank may
designate to the Borrower.
The Applicable Rate is 70% of the sum of the LIBOR Rate (hereinafter defined) plus
0.50%.
The Borrower shall pay the Bank interest hereon in arrears on the first Business Day (as
defined in the Loan Agreement hereinafter defined) of each month, and the entire unpaid
principal balance hereof, together with all accrued and unpaid interest hereon, on May 30, 2016
(the "Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank, and the balance thereof shall apply to the principal sum due.
As used in this Note,
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final; promulgated thereunder or
applicable thereto,
(2) "Determination of Taxability" means interest on this Note is determined or
declared, by the Internal Revenue Service or a court of competent jurisdiction to be
includable in the gross income of the Bank for federal incorne tax purposes under the
Code, which determination or declaration has become final and not subject to further
contest or appeal under applicable law.
(3) "Interest Period" means (a) the period commencing on the date of the
original issuance of this Note and ending on the day preceding the first Business Day of
the following month; and (b) thereafter, each period commencing on the first Business
Day of each month and ending on the day preceding the first Business Day of the
following month.
A-1-1
4297298/3/MIAMI
(4) '`LIBOR Rate" means the rate of interest per annum determined by Bank
based on the rate for United States dollar deposits for delivery of funds for one (1) month
as reported on Reuters Screen LIBOR01 page (or any successor page) at approximately
11:00 a.m., London time, on the second London Business Day prior to the first day of
each Interest Period, or, for any day not a London Business Day, the immediately
preceding London Business Day (or if not so reported, then as determined by Bank from
another recognized source or interbank quotation).
(5) "London Business Day" means any day that is a day for trading by and
between banks in Dollar deposits in the London interbank market.
(6) "Prime Rate" means a rate of interest equal to the announced prime
commercial lending rate per annurn of `yells Fargo Bank, National Association. The
Prime Rate is a reference rate for the information and use of the Bank in establishing the
actual rate to be charged to the Borrower. The Prime Rate is purely discretionary and is
not necessarily the lowest or best rate charged any customer. The Prime Rate shall be
adjusted from time to time without notice or demand as of the effective date- of any
announced change thereof.
(7) "Taxable Rate" means a rate equal to the Prime Rate times that percentage
which after the Determination of Taxability will result in the same federal after-tax yield
to the Bank as before said Determination of Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on this
Note shall be increased to the Taxable Rate, effective retroactively to the date on which the
interest payable on this Note is includable for federal income tax purposes in the gross income of
the Bank. In addition, the Bank shall be paid an amount equal to any additions to tax, interest
and penalties, and any arrears in interest that are required to be paid to the United States of
America by the Bank as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest shall be paid by the Borrower within sixty (60)
days following the Determination of Taxability and demand by the Bank.
In the alternative, in the event that interest on' this Note during any period becomes
partially taxable as a result of a Determination of Taxability applicable to less than all of this
Note, then the interest rate on this Note shall be increased during such period by an amount equal
to: (A-B) x C where:
(A) "A" equals the Taxable Rate (expressed as a percentage);
(B) "B" equals the interest rate on this Note (expressed as a percentage); and
(C) "C" equals the portion of this Note the interest on which has become
taxable as the result of such tax change (expressed as a decimal).
In addition, the Bank shall be paid an amount equal to any additions to tax, interest and penalties,
and any arrears in interest that are required to be paid to the United States of America by the
Bank as a result of such Determination of Taxability. All such additional interest, additions to
A-1-2
4297298/3/MIAMI
tax, penalties and interest shall be paid by the Borrower within sixty (60) days following the
Determination of Taxability and demand by the Bank.
In the event that the maximum effective federal corporate tax rate (the "Maximum
Corporate Tax Rate") during any period with respect to which interest shall be accruing on this
Note on a tax-exempt basis, changes from the Maximum Corporate Tax Rate then in effect,
which causes a reduction in yield on this Note, the interest rate on this Note that is bearing
interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
Applicable Rate then in effect by a fraction equal to (1-A divided by 1-B), where A equals the
Maximum Corporate Tax Rate in effect as of the date of adjustment and B equals the Maximum
Corporate Tax Rate in effect on the date of the original issuance of this Note.
So long as any portion of the principal amount of this Note or interest hereon remains
unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any
federal or Florida public body or governmental agency which changes the basis of taxation of
interest on.this Note or causes a reduction in yield on this Note (other than by reason of a change
described above) to the Bank, including without limitation the imposition of any excise tax or
surcharge thereon, or (b) if, as result of action by any federal or Florida public body or
governmental agency, any payment is required to be made by; or any federal, Florida state or
Florida local income tax deduction is denied to, the Bank (other than by reason of a change
described above or by reason of any action or failure to act on the part of the Bank), by reason of
the ownership of this Note, the Borrower shall reimburse the Bank within five (5) days after
receipt by the Borrower of written demand for such payment, and, to the extent permitted by law,
the Borrower agrees to indemnify the Bank against any loss, cost, charge or expense with respect
to any such change. The determination of the after-tax yield calculation shall be calculated by
the Bank, and such calculation, in the absence of manifest error, shall be binding on the
Borrower and the Bank.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable:
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder which is not paid when due shall bear interest
at the Default Rate. For purposes of this Note, "Default Rate" means the higher of(1) the Prime
Rate plus 4% and (2) the Adjusted One-Month LIBOR Rate plus 4%. "Adjusted One-Month
LIBOR Rate" means the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the
immediately preceding London business day for U.S. dollar deposits with a one month term,
divided by (b) one minus the `'Reserve Requirement" applicable to U.S. dollar deposits in the
A-1-3
429729813/MIAMI
London interbank market with a maturity equal to one month. The Default Rate shall be
determined as of the day immediately following the date on which any amount payable to the
Bank hereunder is not paid when due.
Anything provided herein or in this Note to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as-interest shall accrue on this Note in an amount (the"Excess Interest") that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
"Maximum Rate" means the maximum rate of interest permitted for non-rated
governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from
time to time.
1
The Borrower to the extent permitted by law hereby waives presentment, demand, protest
and notice of dishonor.
THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at anv time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder as provided in the Loan Agreement.
All terms, conditions and provisions of Resolution No. 2014-28599 adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the.Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
A-1-4
429729813/MIAMI
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be perfonned precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is May 30, 2014.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: Mayor
A-1-5
4297298/3/MIAMI
ATTACHMENT A-2
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of $1,000,000 or such lesser amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annum equal to the Applicable Rate (hereinafter defined) based upon a year of 360 days for the
actual number of days elapsed.
Principal of and interest on this Note are payable in immediately available finds
constituting lawful money of the United States of America at such place as the Bank may
designate to the Borrower.
The Applicable. Rate is the sum of the LIBOR.Rate (hereinafter defined) plus 0.75%.
The Borrower shall pay the Bank interest hereon in arrears on the first Business Day (as
defined in the Loan Agreement hereinafter defined) of each month, and the entire unpaid
principal balance hereof, together with all accrued and unpaid interest hereon, on May 30, 2016
(the "Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank, and the balance thereof shall apply to the principal sum due.
"LIBOR Rate" means the rate of interest per annum determined by Bank based on the
rate for United States dollar deposits for delivery of funds for one (1) month as reported on
Reuters Screen LIBOROI page (or any successor page) at approximately 11:00 a.m., London
time, on the second London Business Day prior to the first day of each Interest Period, or, for
any day not a London Business Day, the immediately preceding London Business Day (or if not
so reported, then as determined by Bank from another recognized source or interbank quotation).
`'London Business Day" means any day that is a day for trading by and between banks in
Dollar deposits in the London interbank market.
"Interest Period" means (a) the period commencing on the date of the original issuance of
this Note and ending on the day preceding the first Business Day of the following month; and(b)
thereafter, each period commencing on the first Business Day of each month and ending on the
day preceding the first Business Day of the following month.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
A-2-1
4297298/3/MIAMI
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder which is not paid when due shall bear interest
at the Default Rate. For purposes of this Note, "Default Rate" means the higher of(1) the Prime
Rate plus 4%and (2) the Adjusted One-Month LIBOR Rate plus 4%.
"Prime Rate" means a rate of interest equal to the announced prime commercial lending
rate per annum of Wells Fargo Bank, National Association. The Prime Rate is a reference rate
for the information and use of the Bank in establishing the actual rate to be charged to the
Borrower. The Prime Rate is purely discretionary and is not necessarily the lowest or best rate
charged any customer. The Prime Rate shall be adjusted from time to time without notice or
demand as of the effective date of any announced change thereof.
o
``Adjusted One-Month LIBOR Rate" means the sum of_.50/o plus the quotient of(a) the
� p q
LIBOR Rate on the immediately preceding London business day for U.S. dollar deposits with a
one month term, divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar
deposits in the London interbank market with a maturity equal to one month. The Default Rate
shall be determined as of the day immediately following the date on which any amount payable
to the Bank hereunder is not paid when due.
Anything provided herein or in this Note to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount (the "Excess Interest") that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
`'Maximum Rate" means the maximum rate of interest permitted for non-rated
governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from
time to tithe.
The Borrower to the extent permitted by law hereby waives presentment, demand, protest
and notice of dishonor.
THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE. A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
A-2-2
4297298/3/MIAMI
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder.
All terms, conditions and provisions of Resolution No. 2014-28599 adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is May 30, 2014.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: Mayor
A-2-33
4297298/3/MIAMI
ATTACHMENT B
1. Authorized Individtial(s): Patricia D. Walker, Chief Financial Officer
Georgina P. Echert. Assistant Finance Director
2. Notice Address of Borrower: City of Miami Beach, Florida
1700 Convention Center Drive
rd Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank: `Dells Fargo Bank;National Association
200 South Biscayne Boulevard
14`f' Floor
Miami, Florida 33131
Attention: Lance Aylsworth, Vice President
B-1
4297298/3/MIAMI
ATTACHMENT C
REQUEST FOR ADVANCE
Date:
To: Wells Fargo Bank, National Association
From: City of Miami Beach, Florida
Amount of Advance on Tax-Exempt Note: S
Amount of Advance on Taxable Note: S
Date of Advance:
Purpose of Advance (description and amount).
_ S
The above-named Borrower requests an Advance under the Loan Agreement dated as of May 30.
2014 (the "Loan Agreement") and the Promissory Note identified above in the amount set forth
above. The representations and warranties of the Borrower contained in the Loan Agreement are
true and correct as of the date hereof.
Attached hereto are the showings, if any; required by Section 5.03 of the Loan Agreement,
including the opinion(s) of Bond Counsel required thereunder.
Proceeds of the Advance should be wired as follows:
CITY OF MIAMI BEACH, FLORIDA
By:
1 Name:
Title:
C-1
4297298/3/MIAMI
TAX-EXEMPT PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of $59,000,000 or such lesser amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annum equal to the Applicable Rate (hereinafter defined) (subject to adjustment as hereinafter
provided) based upon a year of 360 days for the actual number of days elapsed.
Principal of and interest on this Note are payable in. immediately available funds
constituting lawfiil money of the United States of America at such place as the Bank may
designate to the Borrower.
The Applicable Rate is 70% of the sum of the LIBOR Rate (hereinafter defined) plus
0.50%.
The Borrower shall pay the Bank interest hereon in arrears on the first Business Day (as
defined in the Loan Agreement hereinafter defined) of each month, and the entire unpaid
principal balance hereof, together with all accrued and unpaid interest hereon, on May 30, 2016
(the "Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank, and the balance thereof shall apply to the principal sum due.
As used in this Note,
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or
applicable thereto;
(2) "Determination of Taxability"means interest on this Note is determined or
declared, by the Internal Revenue Service or a court of competent jurisdiction to be
includable in the gross income of the Bank for federal income tax purposes under the
Code, which determination or declaration has become final and not subject to further
contest or appeal under applicable law.
(3) "Interest Period" means (a) the period commencing on the date of the
original issuance of this Note and ending on the day preceding the first Business Day of
the following month; and (b) thereafter, each period commencing on the first Business
Day of each month and ending on the day preceding the first Business Day of the
following month.
(4) "LIBOR Rate" means the rate of interest per annum determined by Bank
based on the rate for United States dollar deposits for delivery of funds for one (1) month
as reported on Reuters Screen LIBOR01 page (or any successor page) at approximately
4298186/1/MIAMI
11:00 a.m., London time, on the second London Business Day prior to the first day of
each Interest Period, or, for any day not a London Business Day, the immediately
preceding London Business Day (or if not so reported, then as determined by Bank from
another recognized source or interbank quotation).
(5) `'London Business Day" means any day that is.a day for trading by and
between banks in Dollar deposits in the London interbank market.
(6) "Prime Rate" means a rate of interest equal to the announced prime
commercial lending rate per annum of Wells Fargo Bank, National Association. The
Prime Rate is a reference rate for the information and use of the Bank in establishing the
actual rate to be charged to the Borrower. The Prime Rate is purely discretionary and is
not necessarily the lowest or best rate charged any customer. The Prime Rate shall be
adjusted from time to time without notice or demand as of the effective date of any
announced change thereof.
(7) "Taxable Rate" means a rate equal to the Prime Rate times that percentage
which after the Determination of Taxability will result in the same federal after-tax yield
to the Bank as before said Determination of Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on this
Note shall be increased to the Taxable Rate, effective retroactively to the date on which the
interest payable on this Note is includable for federal income tax purposes in the gross income of
the Bank. In addition, the Bank shall be paid'an amount equal to any additions to tax, interest
and penalties, and any arrears in interest that are.required to be paid to the United States of
America by the Bank as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest shall be paid by the Borrower within sixty (60)
days following the Determination of Taxability.and demand by the Bank.
In the alternative, in the event that interest on this Note during any period becomes
partially taxable as a result of a Determination of Taxability applicable to less than all of this
Note,then the interest rate on this Note shall be increased during such period by an amount equal
to: (A-B) x C where:
(A) "A"equals the Taxable Rate (expressed as a percentage);
(B) "B" equals the interest rate on this Note (expressed as a percentage); and
(C) "C',,equals the portion of this Note the interest on which has become
taxable as the result of such tax change (expressed as a decimal).
In addition, the Bank shall be paid an amount equal to any additions to tax, interest and penalties,
and any arrears in interest that are required to be paid to the United States of America by the
Bank as a result of such Determination of Taxability. All such additional interest, additions to
tax, penalties and interest shall be paid by the Borrower within sixty (60) days following the
Determination of Taxability and demand by the Bank.
2
4298186/1/MIAMI
In the event that the maximum effective federal corporate tax rate (the "Maximum
Corporate Tax Rate") during any period with respect to which interest shall be accruing on this
Note on a tax-exempt basis, changes from the Maximum Corporate Tax Rate then in effect,
which causes a reduction in yield on this Note, the interest rate on this Note that is bearing
interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
Applicable Rate then in effect by a fraction equal to (1-A divided by 1-B), where A equals the
Maximum Corporate Tax Rate in effect as of the date of adjustment and B'equals the Maximum
Corporate Tax Rate in effect on the date of the original issuance of this Note.
So long as any portion of the principal amount of this Note or interest hereon remains
unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any
federal or Florida public body or governmental agency which changes the basis of taxation of
interest on this Note or causes a reduction in yield on this Note (other than by reason of a change
described above) to the Bank, including without limitation_the imposition of any excise tax or
surcharge thereon, or (b) if, as result of action by any federal or Florida public body or
governmental agency, any payment is required to be made by, or any federal, Florida state or
Florida local income tax deduction is denied to, the Bank (other than by reason of a change
described above or by reason of any action or failure to act on the part of the Bank), by reason of
the ownership of this Note, the Borrower shall reimburse the Bank within five (5) days after
receipt by the Borrower of written demand for such payment, and, to the extent permitted by law,
the Borrower agrees to indemnify the Bank against any loss, cost, charge or expense with respect
to any such change. The determination of the after-tax yield calculation shall be calculated by
the Bank, and such calculation, in the absence of manifest error, shall be binding on the
Borrower and the Bank.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder which is not paid when due shall bear interest
at the Default Rate. For purposes of this Note, ``Default Rate" means the higher of(1) the Prime
Rate plus 4% and (2) the Adjusted One-Month LIBOR Rate plus 4%. "Adjusted One-Month
LIBOR Rate" means the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the
immediately preceding London business day for U.S. dollar deposits with a one month term,
divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar deposits in the
London interbank market with a maturity equal to one month. The Default Rate shall be
determined as of the day immediately following the date on which any amount payable to the
Bank hereunder is not paid when due.
J
4298186/1/MIAMI
Anything provided herein or in this Note to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount(the"Excess Interest")that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
"Maximum Rate" means the maximum rate of interest permitted for non-rated
governmental bonds as set forth in Section 215.84(')), Florida Statutes, as may be amended from
time to time.
The Borrower to the extent permitted by law hereby waives`presentment, demand,protest
and notice of dishonor.
THIS NOTE AND TIIE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE A GENERAL INDEBTEDNESS,OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder as provided in the Loan Agreement.
All terms, conditions and provisions of Resolution No. 2014-28599 adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
4
4298186/l/MIAMI
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is May 30, 2014.
CITY OF MIAMI BEACH, FLORIDA
By:
Tfame; evine
Titl or
r
5
42981861i1MIAMI
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
`Borrower"), a municipal corporation created and existing pursuant to..the Constitution and the
laws of the State of Florida, for value received, promises to pay from'-
rom the sources hereinafter
provided, to the order of Wells Fargo Bank, National Association, or registered assigns
(hereinafter, the "Bank"), the principal sum of $1,000,000 or such lesser.,.amount as shall be
outstanding hereunder, together with interest on the principal balance outstanding at the rate per
annum equal to the Applicable Rate (hereinafter defined) based upon a.year of 360 days for the
actual number of days elapsed.
Principal of and interest on this Note are payable in immediately available funds
constituting lawful money of the United States of America -at such place as the Bank may
designate to the Borrower.
The Applicable Rate is the sum of the LIBOR Rate(hereinafter defined)plus 0.75%.
The Borrower shall pay the Bank interest hereon in arrears on the first Business Day (as
defined in the Loan Agreement hereinafter defined) of.each month, and the entire unpaid
principal balance hereof, together with all accrued.and unpaid interest hereon, on May 30, 2016
(the "Maturity Date").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank,and the balance<hereof shall apply to the principal sum due.
"LIBOR Rate" means the rate of interest per annum determined by Bank based on the
rate for United States dollar deposits for delivery of fiends for one (1) month as reported on
Reuters Screen LIBORO1 page (or any successor page) at approximately 11:00 a.m., London
time, on the second London Business Day prior to the first day of each Interest Period, or, for
any day not a London Business Day, the immediately preceding London Business Day (or if not
so reported, then as determined by Bank from another recognized source or interbank quotation).
"London Business Day" means any day that is a day for trading by and between banks in
Dollar deposits in the London interbank market.
"Interest Period" means (a) the period commencing on the date of the original issuance of
this Note and ending on the day preceding the first Business Day of the following month; and(b)
thereafter, each period commencing on the first Business Day of each month and ending on the
day preceding the-first Business Day of the following month.
The principal`of and interest on this Note may be prepaid at the option of the Borrower in
whole or in parts on the first Business Day of each month, without prepayment premium or
penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
4298187/1/MIAMI
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
hereunder which is not aid when due shall bear interest
An amount payable to the Bank hereu p
� PY
at the Default Rate. For purposes of this Note, `'Default Rate" means the higher of(1) the Prime
Rate plus 4%and (2) the Adjusted One-Month LIBOR Rate plus 4%.
"Prime Rate" means a rate of interest equal to the announced prime commercial lending
rate per annum of Wells Fargo Bank, National Association. The Prime Rate is a reference rate
for the information and use of the Bank in establishing the actual rate to be charged to the
Borrower. The Prime Rate is purely discretionary and is not necessarily the lowest or best rate
charged any customer. The Prime Rate shall be adjusted from time'to time without notice or
demand as of the effective date of any announced change thereof.
"Adjusted One-Month LIBOR Rate" means the sum of 2.50% plus the quotient of(a) the
LIBOR Rate on the immediately preceding London business day for U.S. dollar deposits with a
one month term, divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar
deposits in the London interbank market with a maturity equal to one month. The Default Rate
shall be determined as of the day immediately following the date on which any amount payable
to the Bank hereunder is not paid when due.
Anything provided herein or in this Note to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount (the "Excess Interest'')that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
"Maximum Rate" means the maximum rate of interest permitted for non-rated
governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from
time to time.
The Borrower to the extent permitted by law hereby waives presentment, demand,protest
and notice of dishonor.
THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE
2
4298187/1/MIAMI
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conj unction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the `'Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement,.the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and =repaid may be' re-borrowed
hereunder.
All terms, conditions and provisions of Resolution No. 2014-28599 adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the Loan Agreement: Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts. conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this dote do exist, have happened and have been performed in due time, fora and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN `UITNESS `- HEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is May 30, 2014.
CITY OF MIAMI BEACH, FLORIDA
Bv: f r
Narile /I-Levine
Titla or
r
4298187/l/MIAMI
CLOSING CERTIFICATE OF THE CITY
We, Philip Levine, Mayor of the City of Miami Beach, Florida (the "City"), and Rafael
E. Granado, City Clerk of the City, DO HEREBY CERTIFY as follows:
(a) All terms used in capitalized form and not defined herein have the meaning
assigned to such terms in the Loan Agreement, dated as of May 30, 2014 (the "Loan
Agreement"), between the City and Wells Fargo Bank,National Association (the "Bank").
(b) The representations of the City contained or incorporated by reference in Article
II and Section 4.02 of the Loan Agreement are true and correct in all material respects.
(c) No Event of Default exists as of the date hereof under the Loan Agreement.
(d) The persons named below are, on the date hereof; the duly qualified officers of
the City and the signatures appearing at the end of this certificate are the genuine signatures of
said officers:
Title Name
Mayor Philip Levine
City Clerk Rafael E. Granado
(e) The City has duly executed and delivered to the Bank the Loan Agreement and its
Tax-Exempt Promissory Note and its Taxable Promissory Note, each dated May 30, 2014.
(f) The interest rate on the Tax-Exempt Promissory Note does not exceed the
maximum rate permitted pursuant to Section 215.84, Florida Statutes. The interest rate on the
Taxable Promissory Note does not exceed the maximum rate permitted pursuant to Section
159.825, Florida Statutes. In making these determinations, the City has:
(i) in accordance with Section 215.84, Florida Statutes, calculated the interest
rate on the Tax-Exempt Promissory dote based on the interest rate. such Note would bear
if there had been an advance thereunder on the date hereof(0.605%), which interest rate
is less than The Bond Buyer "20 Bond Index" published immediately preceding May 1,
2014 plus 300 basis points (7.')')%);
(ii) in accordance with Section 159.825, Florida Statutes, calculated the
interest rate on the Taxable Promissory Note based on the interest rate such Note would
bear if there had been an advance thereunder on the date hereof(0.900%), which interest
rate is less than 30-year Treasury Bond yield published in The Bond Buyer immediately
preceding May 1, 2014 plus 500 basis points (8.46%).
4298188/1/MIAMI
IN WITNESS WHEREOF, we have hereunto set our hands this 30`" day of May, 2014.
CITY OF MIAMI BEACH, FLORIDA
.ly
J
By: -i
Phi IiplLev t v
T a ".orb� °`
Rafael E. Granado
City Clerk
2
4298188/1/MIAMI
CLOSING AND DISCLOSURE CERTIFICATE OF THE BANK
In connection with the Loan Agreement dated as of May 30, 2014 (the "Loan
Agreement") between the City of Miami Beach, Florida (the "City") and Wells Fargo Bank,
National Association (the "Bank") and the loan described in the Loan Agreement (the '`Loan''),
the Bank represents and certifies that:
(a) The Loan Agreement has been duly authorized, .executed and delivered by the
Bank, and assuming the due authorization, execution and delivery by the City, constitutes a legal,
valid and binding agreement of the Bank, enforceable in accordance with its terms, except to the
extent the enforceability thereof may be limited by (1) bankruptcy, insolvency or other laws
affecting creditors' rights generally and (ii) general principles of equity.
(b) Attached hereto is a Bank Assistant Secretary's Certificate evidencing the
authority of the undersigned to execute the Loan Agreement and this Certificate on behalf of the
Bank.
(c) The nature and estimated amounts of expenses to be incurred by the Bank in
connection with the Loan are legal fees of$4,000.00 (to be paid by the City).
(d) There were no "finders," as defined in Section 218.386, Florida Statutes, as
amended, in connection with the Loan.
(e) No manage-ment fee will be charged by the Bank.
(f) No fee, bonus or other compensation will be paid by the Bank in connection with
the making of the Loan to any person not regularly employed or retained by the Bank.
(g) The name and address of the Bank is:
Wells Fargo Bank, National Association
200 South Biscayne Boulevard
14`x'Floor
Miami, Florida 33131
(h) The City is proposing to borrow not exceeding $60,000,000 for the purpose of
paving Costs of the Project (as defined in the Loan Agreement). The source of funds for
repayment of the Loan is Non-Ad Valorem Revenues (as defined in the Loan Agreement) of the
City budgeted and appropriated for the that purpose. The Loan is required to be repaid by May
30, 2016. The interest rate on the Loan is variable and cannot be predicted. Neither can the
amount that may actually be borrowed by the City be predicted. Authorizing this debt could
result in an amount of revenues of the City of up'to $60,000,000, plus the amount of interest
accrued on the amount of the Loan, not being available for use by the City other than for the
repayment of the Loan.
(i) Without modifying in any way the rights and obligations of the Bank and the City
pursuant to the Loan Agreement and the Notes (as defined in the Loan Agreement), the Bank (i)
4298189/1/MIAMI
is sufficiently knowledgeable and experienced in financial and business matters, including the \
purchase and ownership of municipal and other tax-exempt obligations, to be able to determine
what investigation of the business and financial affairs of the City is necessary in order to
evaluate the investment risks associated with the making of the Loan; (ii) has been offered copies
of or full access to all records, reports, financial statements and other information concerning the
business and financial affairs of the City which the Bank deemed to be significant in making its
investment decision, and which were requested by the Bank in connection with the Loan; (iii)
has made such investigation of the business and financial affairs of the City as the Bank deemed
necessary in making its investment decision in connection with the Loan, and acknowledges that
no official statement, placement memorandum,-or other disclosure document has been prepared
and is being delivered in connection with the Loan; and (iv) is making the Loan solely for its
own account and not on behalf of others, and with no present intent to resell or otherwise
distribute all or any part of or interest in the Loan.
Dated: May 30, 2014. WELLS FARGO BANK,NATIONAL
ASSOCIATION
By:
Lance Ayrsworth
Vice President
2
4298189/1/MIAMI
FELLS FARGO BANK,NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
1
I, Beverly W. Jackson, an Assistant Secretary of Wells Fargo Bank, National
Association,a national banking association(the`Bank"),hereby certify as follows:
1. The following is a true and correct extract from resolutions duly adopted by the Board
of Directors of the Bank on November 25, 2003, as amended, and no modification, amendment,
rescission or revocation of such resolutions has occurred affecting such extract as of the date of this
certificate.
RESOLVED, that agreements, instruments, or other documents, including
amendments and modifications thereto, relating to or affecting the property or business and
affairs of the Bank, whether acting for its o�vn account or in a fiduciary or other representative
capacity,may be executed in its name by the persons hereinafter authorized;
FURTHER RESOLVED,that for the purposes of these resolutions,"Executive
Officer" shall mean any person specifically designated as an Executive Officer of the Bank by
resolution of the Board of Directors, and "Signing Officer" shall mean the Chairman of the
Board, the President, any Senior Executive Vice President, any Executive Vice President, any
Senior Vice President, the Treasurer, any Vice President, any Assistant Vice President, any
person whose title includes the word "Officer" (e.g., Commercial. Banking Officer, Personal
Banking Officer, Trust Officer), or any other person whose title has been or is hereafter
designated by the Board of Directors as a title for an officer of the Bank, and such officers are
hereby authorized to sign agreements, instruments and other documents on behalf of the Bank in
accordance with the signing authorities conferred in Parts A,B and C of these resolutions;
B. Vice Presidents and Above
FURTHER RESOLVED,that the Chairman,the President,any Senior Executive Vice
President,any Executive Vice President,any Senior Vice President and any Vice President,acting alone,
may execute on behalf of the Bank:
1. Deeds, leases, assignments, bills of sale, purchase agreements and other instruments
of conveyance to purchase, sell, lease or sublease to or from a third party real
property, or any interest therein,for the Bank's own account;provided,however,that
such agreements, instruments and other documents may also be signed as hereinafter
provided with respect to real property acquired by the Bank in connection with
collateral for a loan.
2. Bonds of indemnity and powers of attorney; provided, however,that proxies to vote
stock in a corporation or to vote other interests in other legal entities and stock and
bond powers may also be signed as hereinafter provided.
- J
C. Signing Officers
FURTHER RESOLVED,that any Signing Officer, acting alone, may execute on behalf
of the Bank,whether acting for its own account or in a fiduciary or other representative capacity:
15. Agreements and proposals to provide services to or receive services from third
parties.
2. The following person is duly appointed and is an acting officer of the Bank,with the
title opposite their name as of the date hereof,such officer is a"Signing Officer"within the meaning of
the foregoing resolution.
Lance Aylsworth Vice President
1111 i` WITNESS VVHEREOF, I have hereunto set my hand and affixed the seal of the Bank this
the 1 Ith day of December,2013.
_T. U, verly Ali.J on
`• N o= Assistant Se re
w Wells Fargo Bank,Nat nal Association
[Seal] = r•'°• •o y
1's'aasra`tre�°��
***Redacted flndicates portions of the resolution which have been omitted because they are not relevant to the transaction for which this
certificate has been requestedl.
#2678988
Bond Finance - Local Bond Monitoring: Notice of Sale Page I of I
STATE OF FLORIDA - DIVISION OF BOND FINANCE LOCAL BOND MONITORING
__-.........._ ...... -............. ____-_-_-' ...... _--____' ______-
Notice of Sale Status
Notice of Sale SUbmission soccessfUl.
Submit Date: 5/28/2014
Bond Issue City of Miami Beach, Florida $59,000,000'tax-Exempt Promissory Note Payable to Wells Fargo Bank, National
Name: Association, and $1,000,000 Taxable Promissory Note Payable to Wells Fargo Bank, National Association.
Sale Date: 5/30/2014
Closing 5/30/2014
Print this page
httns://boodimauc.oboflo-conn/noa.uspz?bondnaiiic=Cityof Miami Beach, Florida $59,UO0,O— 5/28/2014
Bond Finance - Local Bond Monitoriny: Print Form Paye 1 of 5
NAME OF GOVERNMENTAL UNIT
City of Miami Beach, Florida
MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER
Address(I) 1700 Convention Center Drive
Address(2)
city Miami Beach
State FL
zip 33139
COUNT(IES)IN WHICH GOVERNMEN'I'AL UNIT HAS JURISDICTION
Miami-Dade
TYPE OF ISSUER
City
IS THE ISSUER A COMMUNITI' DEVELOPMENT DISTRICT?
ISSUE NAME AMOUNT INTEREST FIELD
CALCULATION
Tax-Exempt Promissory Note
Payable to Wells Fargo Bank, $59,000,000.00 VARI
National Association
Taxable Promissory Note
Payable to Wells Fargo Bank, $1,000,000.00 VARI
National Association
A�IOUN'r Au'rIIoRIiED
$60,000,000.00
D:k'FED DATF,(nrnI/DDh YYY)
5/30/2014
SAI..E D:1TE
5/30/2014
DLLIVERY DA"rE(�l�l/DD/YYYY)
5/30/2014
LEGAL Au moRITl� FOR ISSUANCE
Ch. 166, F.S.
TYPE OF ISSUE
Bank Loan/Line of Credit
Is THIS A PRIVATE ACTIVITY FOND(PACs)?
Did This Issue Receive a PAB Allocation?
Amount of Allocation
$0.00
SPECIFIC REVENUES(S) PLEDGED
Primary
Other
Secondary
https://bondissue.sbafla.com/print.aspY?print_id=eS9kUkVYR3ZLNVE9 5/28/2014
Bond Finance - Local Bond Monitoring: Print Form Page 2 of 5
Other
Non-Ad Valorem Revenues
PURPOSE(S)OF THE ISSUE
Primary
Other
Secondary
Other
General Capital Projects
Is THIS A REFUNDING ISSUE?
RE UNDED DE13T H:ts BEEN
DID-rIIE REFUNDING ISSUE CONTAIN NEw MONEY?
APPRoxi.NIATELY WIIAT PERCENTAGE OF PROCFEDS IS NEW MONrY?
TYPE OF SALE
Negotiated Private Placement
INSURANcr/ENIIANCE:NIENTS
No Credit Enhancement
R;kTING(S)
Moody's
NR
S& P
NR
Fitch
NR
Other
DEBT SERVICE SCHEDULE PROVIDED BY
E-mail
OPTIONAL REDE.NIPTION PROVISIONS PRONADFD BY
E-mail
PROVIDE TfIE N,vNIE AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER
Underwriter Wells Fargo Bank, National Association
Address(') 200 S. Biscayne Blvd
Address(2) 14th Floor
City Miami
State FL
Zip 33131
CO-Underwriter None
Address(l)
Address(2)
C i tv
https://bondissue.sbafla.com/print.aspx?print_id=eS9kUkVYR3ZLNVE9 5/28/2014
Bond Finance - Local Bond Monitoring: Print Form Page 3 of 5
State -
Zip
PROVIDE'I'llE: NANIF(S)AND ADDRFSS(FS)OF AN)?ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED
TLIE UNIT OF LOCAL GOVERNMENT WITLI RFSPLCT TO THE BOND ISSUE.
Bond Counsel Squire Sanders (US) LLP
Address(1) 200 S. Biscayne Blvd
Address(2) Suite 4100
city Miami
State FL
zip 33131
CO-Bond Counsel None
Address(])
Address(2)
C ity
State -
Zip
Financial Advisor/Consultant RBC Capital Markets, LLC
Address(]) 100 Second Avenue South
Address(2) Suite 800
City St. Petersburg
State FL
zip 33701
CO-Financial Advisor/Consultant None
Address(l)
Address(2)
C iris
State -
zip
Other Professionals
Address(l)
Address(2)
City
State -
Zip
PAYING AGENT
REGISTRAR
BF2004-A AND BF2004-B
NOTE: The following items are required to be completed in full for all bond issues except those sold pursuant
to Section 154 Part 111, Sections 159 Parts 11, Ill,or V; or Section 24') Part 1. Florida Statutes.
HAS ANN' FEE, BONUS,OR GRATUrrY BEEN PAID 13Y ANY UNDERWRITER OR FINANCIAL CONSULTANT,IN
CONNEC'T'ION WITH TILE BOND ISSUE,To ANY PERSON NOT REGUL.ARLI' E-NIPLOYED OR ENGAGED B17 SUCI1
UNDERWRITER OR CONSULTANT? IF YES,PLEASE: PROVIDE THE FOLLOWING INFORNIATION'Wrrll REsm"C'I'
To EACH SUCH UNDERWRITER OR CONSULTANT.
HAVE ANY OTHER FEES BEEN PAID BY THE UNIT OF LOCAL GOVERNNIENl'WITLI RESPEC'T'ro TLIE BOND
ISSUE, INCLUDING ANY FEE PAID To ATTORNEYS Or FINANCIAL CONSt LTAN;rS? IF YES, PLEASE PROVIDE
THE To,rAL.FEES PAID To APPLICABLE PARTICIPANTS.
Total Bond Counsel Fees Paid
https://bondissue.sbafla.com/print.aspx?print—id=eS9kUkVYR')ZLNVE9 5/28/2014
Bond Finance - Local Bond Monitoring: Print Form Page 4 of 5
$30,000.00
Total Financial Advisor Fees Paid
$25,000.00
Other Fees Paid .
SERVICE PROVIDED OR
CoN1P:ANY 1�:Aa1E FEE PAID
FUNCTION SERVED
Akerman LLP $4,000.00 Bank's Counsel
FILING OF THIS FORM HAS BEE\:AUTHORIZED BY THE OFFICIAL OF THE ISSUER IDENTIFIED 13ELOW
Name
. Patricia D. Walker
Title
Governmental Officer primarily responsible for coordinating
issuance of the bonds
FEES CHARGED BY UNDERAVRITER
Management Fee(Per Thousand Par Value)
0
Private Placement Fee
$0.00
U`DERwRITFR's ExPECrED GROSS SPREAD(PER THOUSA\D PAR VALUE)
0
FOR ADDITIONAL,INFORMATION,TLIE DIVISION OF BOND FINANCE SLIOULD CONTACT:
Name Niyala Harrison
Title Associate
Phone 3055777019
Company Squire Sanders (US) LLP
Address(1) 200 S. Biscayne Blvd
Address(2) Suite 4100
City Miami
State FL
Zip 33131
INFORMATION RELATING TO PARTY CO�IPLF:'1'ING THIS FORM(11;DIFFERENT FROM.-AIIO1'E)
Name
Title
Phone
Company
Address(])
Address(2)
City
State -
Zip
In order to better serve local governments,the Division of Bond Finance will remind issuers as their deadlines
approach for filing continuing disclosure information required by SEC Rule 15c2-121 based on the following
information:
IF THE ISSUER IS REQUIRED TO PROVIDE CONTINUING DISCLOSURE INFORMATION IN;ACCORDANCE�vrm SEC
RULE 15c2-12,DO You AFANT'rHE Dlvlsl0\OF BOND FINANCE TO RENII\D YOU OF YOUR F11_1vG
DEADLINE.?
ON WLIA,r DATE IS THE CONTINI_IM; DISCLOSURE INFOR:.1ATlo\REQUIRED To BE FILED?
https://bondissue.sba.la.com/print.aspx?print_id=eS9kUkVYR3ZLNVE9 5/28/2014
Bond Finance - Local Bond Monitoring: Print Form Page 5 of 5
PROVIDE THE FOLLOWING I\FORNIA"rloN REGARDING THE f ERSO\(s) RESPO\SIBU FOR FILING CONTINUING
DISCLOSURE INFORNIA"rION REQUIREDBY SEC RULE 1502-12 AND THE CONTINUING DISCLOSURE
AGREEMENT(INCLUDING OTHER OBLIGATED PARTIES, IF APPROPRIATE).
Name
Title
Phone
Company
Address(1)
Address(?)
City
State -
Zip
Fax
Email
https://bondissue.sbafla.com/print.aspx?print_id=eS9kUkVYR3ZLNVE9 5/28/2014
f ® Squire Sanders(US)LLP
S U' RE ® 200 South Biscayne Boulevard.
SAN®E RS
Suite 4100
\•liami,Florida
33131
O+1 305 577 7000
F *1 30�X77 7001
Squiresanders.com
May 30, 2014
To: Wells Fargo Bank, National Association
Miami, Florida
We have served as bond counsel to our client the City of Miami Beach, Florida (the
"City") and not as counsel to any other person in connection with the issuance by the City of its
$59.000,000 maximum outstanding principal amount Tax Exempt Promissory Note payable to
Wells Fargo Bank, National Association (the "Bank"), and its $1,000,000 maximum outstanding
principal amount Taxable Promissory Note payable to the Bank, each dated the date of this letter
(collectively, the "Notes').
The Notes are being issued pursuant to Resolution No. 2014-28599 adopted by the Mayor
and City Commission of the City on May 21, 2014 (the "Resolution") and a Loan Ado reement
dated as of May 30, 2014 (the "Loan Agreement") between the City and the Bank. Capitalized
terms used herein and not defined have the meanings ascribed to such terms in the Loan
Agreement.
In our capacity as bond counsel, we have examined the transcript of proceedings relating
to the issuance of the Notes, copies of the signed Notes, the Resolution, the Loan Agreement and
such other documents, matters and law as we deem necessary to render the opinions set forth in
this letter.
Based on that examination and subject to the limitations stated below, we are of the
opinion that under existing law:
1. The Notes and the Loan Agreement are valid and binding obligations of the City,
enforceable in accordance with their respective terms.
2. The Notes constitute special, limited obligations of the City, and the principal of
and interest on (collectively, "debt service") the Notes are payable-from and
secured solely by the Budgeted Revenues. The payment of debt service on the
Notes is not secured by an obligation or pledge of any money raised by ad-
valorem taxation, and the Notes do not represent or constitute a general obligation
or a pledge of the faith and credit of the City, the State of Florida or any of its
political subdivisions.
39 Offices in 19 Countries
Squire Sanders(.US)LLP is part of the international legal practice Squire Sanders which operates worldwide throuS111 a number ol'scparate legal
entities.
Please visit squiresanders.com for more information.
4298191/l/MIAMI
Squire Sanders(US)LLP
Y1ay 30, 2014
Palle 2
3. The Notes and the income thereon are exempt from taxation under the laws of the
State of Florida, except estate tales imposed by Chapter 198, Florida Statutes, as
amended, and net income and franchise taxes imposed by Chapter 220, Florida
Statutes. We express no opinion as to any other tax consequences regarding the
Notes.
The opinions stated above are based on an analysis of existing laws, regulations, rulings
and court decisions and cover certain matters not directly addressed by such authorities. In
rendering all such opinions, we assume, without independent verification, and rely upon (i) the
accuracy of the factual matters represented, warranted or certified in the proceedings and
documents we have examined and (ii) the due and legal authorization, execution and delivery of
those documents by, and the valid, binding and enforceable nature of those documents upon, any
parties other than the City.
The rights of the owner of the Notes and the enforceability of the Notes and the Loan
Agreement are subject to bankruptcy, insolvency, arrangement, fraudulent conveyance or
transfer, reorganization., moratorium and other laws relating to or affecting creditors' rights, to
the application of equitable principles, to the exercise of judicial discretion, and to limitations on
legal remedies against public entities.
The opinions rendered in this letter- are stated only as of this date, and no other opinion
shall be implied or inferred as a result of anything contained in or omitted from this letter. Our
engagement as bond counsel with respect to the Notes has concluded on this date.
Respectfully submitted,
\U S C L 7
4298191/1/MIAMI
AAIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachf.gov
Raul J. Aquila, City Attorney
Tel: 305-673-7470, Fax: 305-673-7002
May 30, 2014
Wells Fargo Bank,National Association
Miami, Florida
RE: City of Miami Beach, Florida $59,000,000 Tax-Exempt Promissory Note Payable to
Wells Fargo Bank, National Association, and $1,000,000 Taxable Promissory Note
Payable to Wells Fargo Bank,National Association.
Ladies and Gentlemen:
I am the City Attorney of the City of Miami Beach, Florida(the "City") and have served in such
capacity in connection with the issuance by the City of its $59,000,000 maximum outstanding principal
amount Tax-Exempt Promissory Note payable to Wells Fargo Bank, National Association (the "Bank"),
and its $1,000,000 maximum outstanding principal amount Taxable Promissory Note payable to the
Bank, each dated the date of this letter(collectively,the"Notes").
The Notes are being issued pursuant to Resolution No. 2014-28599 adopted by the Mayor and
City Commission of the City on May 21, 2014 (the "Resolution"), and a Loan Agreement dated as of
May 30, 2014 (the "Loan Agreement") between the City and the Bank. The Notes are being issued for
the purpose of paying Costs of the Project. Capitalized terms used herein and not defined have the
meanings ascribed to such terms in the Loan Agreement.
I am of the opinion as of the date hereof and under existing law, as follows:
1. The City is duly created and validly existing as a municipality pursuant to the
Constitution and laws of the State of Florida.
2. The Resolution has been duly i
y ado ted r y the City and constitutes the valid and binding
action of the City.
3. The Loan Agreement and the Notes have been duly executed and delivered by the City.
The Notes and, assuming that the Loan Abrccment is a valid and binding obligation of the sank,the Loan
Agreement, constitute valid and binding obligations of the City enforceable against the City in accordance
with their terms: provided that the rights of the Bank and the enforceability of the Notes and the Loan
Agreement are subject to the provisions of the bankruptcy laws of the United States of America and to
other applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or
affecting creditors' rights, and their enforcement may be subject to equitable principles that may affect
remedies or other equitable relief.
,Very truly yours,
Raul J. Aguila
City Attorney
Bond Finance -Local Bond Monitoring: Print Foi Pagel of 5
NAME OF GOVERNMENTAL UNIT
City of Miami Beach, Florida
MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER
Address(1) 1700 Convention Center Drive
Address(2)
city Miami Beach
State FL
Zip 33139-
1 COUNT(=)IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION
Miami-Dade
TYPE OF ISSUER
City
IS THE ISSUER A COMMUNITY DEVELOPMENT DISTRICT?
ISSU NAME AMOUNT INTEREST
E YIELD
CALCULATION
Tax-Exempt Promissory Note
Payable to Wells Fargo Bank, $59,000,000.00 Vari VARI
National Association
Taxable Promissory Note
Payable to Wells Fargo Bank, $1,0001-000.00 Vari VARI
National Association
AMOUNT AUTHORIZED
$60,0001000.00
DATED DATE(MM/DD/YYYY)
5/30/2014
SALE DATE(MMIDD/YYYY)
5/30/2014
DELIVERY DATE(MM/DD/YYYY)
5/30/2014
LEGAL AUTHORITY FOR ISSUANCE
Ch. 166, F.S.
TYPE OF ISSUE
Bank Loa n/Line of Credit
Is THIS A PRIVATE ACTIVITY BOND(PAB)?
i
Did This Issue Receive a PAB Allocation?
Amount of Allocation
$0.00
SPECIFIC REVENUES(S)PLEDGED
Primaiy
Other
Secondary
I
litt s://bondissue.sbafla.cona/ rint.as x? rint id=eUMxSOJ2UnJOREU9 6/4/2014
P P p p _
Bond Finance-Local Bond Monitoring: Print Fonn Page 2 of 5
Other
Non-Ad Valorem Revenues `
PURPOSES)OF THE ISSUE
Primary
Other
Secondary
Other
General Capital Projects
IS THIS A REFUNDING ISSUE?
REFUNDED DEBT HAS BEEN
DID THE REFUNDING ISSUE CONTAIN NEW MONEY?
APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY?
TYPE OF SALE
Negotiated Private Placement
INSURANCEXNHANCEMENTS
No Credit Enhancement
RATING(S)
Moody's
NR
S&P
NR
Fitch
NR
Other
DEBT SERVICE SCHEDULE PROVIDED BY
E-mail
OPTIONAL REDEMPTION PROVISIONS PROVIDED 13Y
E-mail
PROVIDE TIIE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCIiASER
Underwriter Wells Fargo Bank, National Association
Address(1) 200 S. Biscayne Blvd
Address(2) 14th Floor
city Miami
State FL
Zip 33131
CO-Underwriter None
Address(1)
Address(2)
city
i
https://bondissue.sbafla.com/printaspx?print id=eUMxSOJ2UnJ'OREU9 6/4/2014
Bond Finance-Local.Bond Monitoring: Print Form Page 3 of 5
State -
Zip
PROVIDE THE NAMES)AND ADDRESS(ES)OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED
THE UNIT OF LOCAL GOVERNMENT WITr3 RESPECT TO THE BOND ISSUE.
Bond Counsel Squire Sanders .(US) LLP
Address(1) 200 S. Biscayne Blvd
Address(2) Suite 4100
city Miami
State FL
Zip 33131
CO-Bond Counsel None
Address(1)
Address(2)
city
State -
zip
Financial Advisor/ConsuItant RBC Capital Markets, LLC
Address(1) 100 Second Avenue South
Address(2) Suite 800
city St. Petersburg
State FL
zip 33701
CO-Financial Advisor/Consultant None
Address(1)
Address(2)
I city
i State -
zip
i
Other Professionals
Address(1)
Address(2)
City
State -
Zip
PAYING AGENT
None
REGISTRAR
None
BF2004-A AND 13F2004-B
NOTE:The following items are required to be completed in full for all bond issues except those sold pursuant
to Section 154 Part III,Sections 159 Parts II,III,or V;or Section 243 Part I,Florida Statutes.
HAS ANY FEE,BONUS,OR GRATUITY BEEN PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT,IN
CONNECTION WITH THE BOND ISSUE,TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY SUCH
UNDERWRITER OR CONSULTANT?IF YES,PLEASE PROVIDE THE FOLLOWING INFORMATION WITH RESPECT
TO EACH SUCH UNDERWRITER OR CONSULTANT.
HAVE ANY OTHER FEES BEEN PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO TIC BOND
ISSUE,INCLUDING ANY FEE PAID TO ATTORNEYS OF FINANCIAL CONSULTANTS?IF YES,PLEASE PROVIDE
THE TOTAL FEES PAID TO APPLICABLE PARTICIPANTS.
Total Bond Counsel Fees Paid
hops:/Ibondissue.sbafla.com/print.aspx?print id=eUMxSOJ2UnJOREU9 6/4/2014
Bond Finance-Local Bond Monitoring: Print Form Page 4 of 5
$30,000.00
!
Total Financial Advisor Fees Paid
$25,000.00
Other Fees Paid
COMPANY NAME FEE PAID SERVICE PROVIDED OR
FUNCTION SERVED
Akerman LLP $4,000.00 Bank's Counsel
! FILING OF THIS FORM HAS BEEN AUTIiORIZED BY THE UFFICIAL OF THE ISSUER IDENTIFIED BFLow
Name
Patricia D. Walker
Title
Governmental Officer primarily responsible for coordinating
issuance of the bonds
FEES CHARGED BY UNDERWRITER
Management Fee(Per Thousand Par Value)
0
Private Placement Fee
$0.00
UNDERWRITER'S EXPECTED GROSS SPREAD(PER THOUSAND PAR VALUE)
0
FOR ADDITIONAL INFORMATION,THE DIVISION OF BOND FINANCE SHOULD CONTACT:
Name Niyala Harrison
Title Associate
Phone 3055777019
Company Squire Sanders (US) LLP
Address(1) 200 S. Biscayne Blvd
Address(2) Suite 4100
City Miami
I
State FL
Zip 33131
INFORMATION RELATING TO PARTY COMPLETING THIS FORM(IF DIFFERENT FROM ABOVE)
i Name
j Title
Phone
Company
Address(1)
Address(2)
City
State -
Zip
In order to better serve local governments,the Division of Bond Finance will remind issuers as their deadlines
approach for fling continuing disclosure information required by SEC Rule 15c2-12,based on the following
infonnation:
IF THE ISSUER IS REQUIRED TO PROVIDE CONTINUING DISCLOSURE INFORMATION IN ACCORDANCE WITH SEC
RULE 150-12,DO YOU WANT THE DIVISION OF BOND FINANCE TO REMIND YOU OF YOUR FILING
DEADLINE?
ON WHAT DATE IS THE CONTINUING DIsCLOSUR)r INFORMATION REQUIRED TO BE FILED?(MM/DD)
https:/Ibondissue.sbafla.com/print.aspx?print_id=eUMxSOJ2UnJOREU9 6/4/2014
Bond Finance-Local Bond Monitoring: Print Fonn Page 5 of 5
PROVIDE THE FOLLOWING INFORMATION REGARDING THE PERSONS)RESPONSIBLE FOR FILING CONTINUING
DISCLOSURE INFORMATION REQUIREDBY SEC RULE 1502-12 AND THE CONTINUING DISCLOSURE
AGREEMENT(INCLUDING OTHER OBLIGATED PART)ifS,Ir APPROPRIATE).
Name
Title
Phone
Company
Address(1)
Address(2)
City
State -
Zip
Fax
Email
i
I
i
I
i
i
i
https://bondissue.sbafla.conVprint.aspx?prin: id=eUMxSOJ2UnJOREU9 6/4/2014