2016-29452 Reso RESOLUTION NO. 2016-29452
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE EXTENSION
OF THE TERM OF THE LOAN IN AN AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $60,000,000 OUTSTANDING AT ANY TIME
FROM WELLS FARGO BANK, NATIONAL ASSOCIATION;
AUTHORIZING THE EXECUTION AND DELIVERY OF AMENDED AND
RESTATED LOAN AGREEMENT AND PROMISSORY NOTES IN
CONNECTION WITH SUCH EXTENDED LOAN; AUTHORIZING OTHER
ACTIONS IN CONNECTION WITH THE EXTENDED LOAN AND THE
FINANCING 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 II, 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, in connection with the City's interim financing of capital projects (the
"Financing Program"), on May 30, 2014, the City and Wells Fargo Bank, National
Association (the "Bank"), entered into a loan through two revolving lines of credit in an
aggregate principal amount not to exceed $60,000,000 outstanding at any time (the
"Original Loan"); and
WHEREAS, the Original Loan had a maturity date of May 30, 2016 and on May
12, 2016, the maturity date was extended until July 29, 2016; and
WHEREAS, the parties have determined to extend the term of the Original Loan
for an additional two year period under the provisions of the Loan Agreement and the
Notes hereinbelow described (the "Extended Loan"); and
WHEREAS, in connection with the extension of the term of the Original Loan, the
City will execute and deliver to the Bank an Amended and Restated Loan Agreement
(the "Loan Agreement") and an Amended and Restated Tax-Exempt Note and an
Amended and Restated Taxable Note (such notes collectively, the "Notes"); and
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. DEFINITIONS.
Terms 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.
010-8224-5158/1/AMERICAS
SECTION 2. FINDINGS.
The preambles are incorporated as findings. In addition, it is found, determined
and declared that the Financing Program and the Extended Loan are permitted under
the Act, are necessary and desirable, are in the public interest and will serve a proper
public purpose.
SECTION 3. EXTENDED LOAN AUTHORIZED.
The Extended Loan in an aggregate principal amount not to exceed $60,000,000
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 Extended 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. 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
Extended 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
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010-8224-5158/1/AMERICAS
form or other document with the Internal Revenue Service with respect to any Advance
under the Tax-Exempt Note.
SECTION 7. 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 8. REPEALING CLAUSE.
All resolutions or parts of such resolutions of the City in conflict with the
provisions contained in this Resolution are, to the extent of such conflict, superseded
and repealed.
SECTION 9. EFFECTIVE DATE.
This Resolution shall become effective immediately upon adoption.
PASSED AND ADOPTED this S day of 714ne , 2016.
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Attest:
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010-8224-5158/1/AMERICAS
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Authorizing The
Extension Of The Term Of The Loan In An Aggregate Principal Amount Not To Exceed $60,000,000
Outstanding At Any Time From Wells Fargo Bank, National Association; Authorizing The Execution And
Delivery Of Amended And Restated Loan Agreement And Promissory Notes In Connection With Such
Extended Loan; Authorizing Other Actions In Connection With The Extended Loan And The Financing
Program;And Providing For An Effective Date.
Key Intended Outcome Supported:
Ensure well-maintained infrastructure.
Supporting Data (Surveys, Environmental Scan, etc.): According to the 2014 Community
Satisfaction Survey, only 25% of residents rated the City's storm drainage (to avoid flooding) as
"excellent" or"good."
Issue:
Shall the City Commission Adopt the Resolution?
Item Summary/Recommendation:
The City's current Line of Credit("LOC")was executed on May 30, 2014 to provide the City liquidity to continue to
award contracts for new water, sewer, stormwater, and general fund projects. On that date, the City and Wells
Fargo Bank entered into a loan through two revolving lines of credit in an aggregate principal amount not to
exceed $60 million outstanding at any time. The loan agreement allowed for tax-exempt draws up to $59 million
and taxable draws up to$1 million. To date,the City has not drawn on this line of credit.
This loan had a maturity date of May 30, 2016, and on May 12, 2016, the maturity date was extended until July
29, 2016.We informed you of this 60 day extension in LTC#210-2016 issued on May 17, 2016.
Both the City and Wells Fargo have determined to extend the term of the original loan agreement for an additional
two year period effective July 30, 2016. The amended loan agreement will continue to allow for tax-exempt
draws up to$59 million and taxable draws up to$1 million. The rates will continue to be the same as the original
agreement except for the annual fees for unused credit. This fee increased 5 basis points (.05%) to 25 basis
points from 20 basis points from the original contract.
ADOPT THE RESOLUTION.
Advisory Board Recommendation:
Financial Information: FY16: $45,000 Fund 425; $45,000 Fund 427; $14,150 Fund 510 & remainder
subject to availability in the FY17 budget process.
Source of Amount Account Approved
Funds: 1 $168,750 425-4160-000730
2 $135,000 427-4155-000730
3 $ 33,750 427-0427-000312
4 $ 87,300 510-1780-000720
OBPI Total $424,800 24 months fees & Interest +
Legal & Fin. Advisor fees
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Allison R. Williams, ext. 6808
Sign-Offs:
Department Director Chief Financial Officer ity Manager
ARW ►/W JLM
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A MIAMIBEACH AGENDA ITEM R7 P
DATE 6'g' IC-
® MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
CO MISSIO MEMORANDUM
TO: Mayor Philip Levine and Members of • e City Corn Ission
FROM: Jimmy L. Morales, City Manager
DATE: June 8, 2016
SUBJECT: A RESOLUTION OF THE MA 11R AND CITY COMMISSION
OF THE CITY OF MIAMI BEA 1,1 , FLORIDA, AUTHORIZING
THE EXTENSION OF THE TERM OF THE LOAN IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$60,000,000 OUTSTANDING AT ANY TIME FROM WELLS
FARGO BANK, NATIONAL ASSOCIATION; AUTHORIZING
THE EXECUTION AND DELIVERY OF AMENDED AND
RESTATED LOAN AGREEMENT AND PROMISSORY NOTES
IN CONNECTION WITH SUCH EXTENDED LOAN;
AUTHORIZING OTHER ACTIONS IN CONNECTION WITH
THE EXTENDED LOAN AND THE FINANCING PROGRAM;
AND PROVIDING FOR AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution
KEY INTENDED OUTCOMES SUPPORTED
Ensure well-maintained infrastructure.
BACKGROUND
The City's current Line of Credit ("LOC") was executed on May 30, 2014 to provide the
City liquidity to continue to award contracts for new water, sewer, stormwater, and
general fund projects. On that date, the City and Wells Fargo Bank entered into a loan
through two revolving lines of credit in an aggregate principal amount not to exceed $60
million outstanding at any time. The loan agreement allowed for tax-exempt draws up to
$59 million and taxable draws up to $1 million. To date, the City has not drawn on this
line of credit.
This loan had a maturity date of May 30, 2016, and on May 12, 2016, the maturity date
was extended until July 29, 2016. We informed you of this 60 day extension in LTC
#210-2016 issued on May 17, 2016.
Both the City and Wells Fargo have determined to extend the term of the original loan
agreement for an additional two year period effective July 30, 2016. The amended loan
agreement will continue to allow for tax-exempt draws up to $59 million and taxable
draws up to $1 million. The rates will continue to be the same as the original agreement
except for the annual fees for unused credit. This fee increased 5 basis points (.05%) to
Commission Memo Re Line of Credit Extension
June 8, 2016
Page 2 of 3
25 basis points from 20 basis points from the original contract.
Below is a schedule summarizing the terms of the amended agreement compared to the
original agreement.
Amended Original
Agreement Agreement
Credit Amount $60,000,000 $60,000,000
Term 24 Months 24 Months
Upfront Fee $0 $0
Annual Fee for Unused Credit 25 bps ($150,000) 20 bps ($120,000)
Annual Interest on Draws:
Tax-Exempt(up to$59 million) 70%x(LIBOR +0.50%) 70%x(LIBOR +0.50%)
Taxable(up to$1 million) LIBOR +0.75% LIBOR +0.75%
Total cost w/o borrowing
Annual Cost $150,000 $120,000
Total cost w/$60M borrowing:*
Tax-Exempt(annual cost) $392,350 $392,350
Taxable (annual cost) $12,000 $12,000
* Based on Libor rate of 0.45%as of 5/27/16.
Proceeds from the LOC will be used for interim financing of stormwater, water & sewer,
and capital projects approved by the Commission in anticipation of future bond issues.
The proceeds from any future bond issuance for capital projects shall be used to pay
down the LOC if any draws were necessary. Proceeds may also be used to finance
certain equipment/vehicle purchases. The City may prepay the line of credit prior to
maturity at any time without penalty.
The City also may use the proposed LOC to award scheduled water and sewer,
stormwater, and capital projects while spending existing bond funds. This strategy
should expedite the expenditure of existing funds, minimize the need to draw against the
line of credit and facilitate the issuance of future tax-exempt bonds while building the
required debt service coverage.
Tax-exempt draws against the line of credit will have a variable interest rate equal to
70% of the sum of the Libor rate plus 0.50%, and taxable draws will have a variable rate
equal to the sum of the Libor rate plus 0.75%. The current Libor rate is 0.45% as of May
27, 2015. Should the city borrow today on a tax-exempt basis the rate would be 0.45%
+ 0.50%, or 0.95% (less than 1%).
There will not be any bank origination fees from Wells Fargo. However, there will be an
annual fee of 25 basis points (0.25%) on the unused portion of the line of credit
("Unused Facility fee", $150,000 if there are no draws). The City will also need to pay for
any closing costs as well as the fees for the bank's legal counsel, the City's Bond
Counsel, and the City's Financial Advisor which is estimated to be $75,000.
Commission Memo Re Line of Credit Extension
June 8, 2016
Page 3of3
The Resolution also authorizes the Mayor, the City Manager, the Chief Financial Officer,
and other City employees to take all necessary actions and execute documents as may
be necessary in connection with the loan and the financing program.
ANALYSIS
The City has the legal authority to obtain a line of credit pursuant to the Constitution of
the State of Florida, Chapter 166, Part II, 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.
This line of credit would be secured by a covenant to budget and appropriate non-ad
valorem revenues.
Under this approach, the City could utilize the line of credit to meet its financial
commitment needs and be in compliance with state law while spending its existing
bonds proceeds or have the capacity to award new projects in advance of longer term
financing.
In recommending the renewal of this line of credit versus other financing options, the
City's CFO worked in conjunction with the City's Financial Advisors who concurred on
this type of financing and on the competitive of the rates. This line of credit offers
attractive legal terms and a low cost of funds. Bank fees and rate calculations for lines
of credit have generally increased over the past two years due to increased federal
regulations.
This Resolution authorizes City's officials, officers, attorneys, agents and employees 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.
CONCLUSION
The Administration recommends that the Mayor and City Commission of the City of
Miami Beach, Florida, adopt the attached resolution, authorizing the extension of the
term of the loan in an aggregate principal amount not to exceed $60,000,000
outstanding at any time from Wells Fargo Bank, National Association; authorizing the
execution and delivery of amended and restated loan agreement and promissory notes
in connection with such extended loan; authorizing other actions in connection with the
extended loan and the financing program; and providing for an effective date.
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EXHIBIT "A"
LOAN AGREEMENT
(including Notes)
A-1
010-8224-5158/1/AMERICAS
AMENDED AND RESTATED LOAN AGREEMENT
This AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") is made
and entered into as of , 2016 (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 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 Amended and Restated Loan Agreement and any and all
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 Patton Boggs (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 Nod-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.
010-8224-5000/1/AMERICAS
"Event of Default" means an Event of Default specified in Article VI of this Agreement.
"Governmental Authority" means the government of the United States of America or any
political subdivision thereof or any governmental or quasi-governmental entity, including any
court, department, commission, board, bureau, agency, administration, central bank, service,
district or other instrumentality of any governmental entity or other entity exercising executive,
legislative,judicial, taxing, regulatory, fiscal, monetary or administrative powers or functions of or
pertaining to government, or any arbitrator, mediator or other person with authority to bind a party
at law.
"Loan" means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means, in the aggregate, $60,000,000 principal amount.
"Maturity Date" means , 2018.
"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 Tax-Exempt Note and the Taxable Note 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.
"Resolution" means Resolution No. 2016- adopted by the Mayor and City
Commission of the Borrower on , 2016.
"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 Amended and Restated Taxable Promissory Note attached
hereto as Attachment A-2.
"Tax-Exempt Note" means the Amended and Restated Tax-Exempt Promissory Note
attached hereto as Attachment A-1.
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010-8224-5000/1/AMERICAS
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 II
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
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 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 on 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.
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010-8224-5000/1/AMERICAS
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.
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 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
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.
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010-8224-5000/1/AMERICAS
(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
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.
(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, 2016 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, 2016 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.
(1) Immunity. To the fullest extent permitted by law, the Borrower will not assert any
immunity it may have as a public entity under the laws of the State from lawsuits with respect to
the Notes and this Agreement; provided, however, that nothing contained herein shall be deemed a
waiver in any respect to the Borrower's immunity with respect to tort liabilities.
Section 3.02. Additional Debt Payable 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 incur 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 future 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
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010-8224-5000/1/AMERICAS
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 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
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
$8,000.00, 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
0.25% 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 30, 2016, and on the date on which this Agreement
terminates, subject in each case to a fifteen (15) day grace period.
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010-8224-5000/1/AMERICAS
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.
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 from using any lawfully available funds 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.
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010-8224-5000/1/AMERICAS
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
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 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 3.08. 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.
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010-8224-5000/1/AMERICAS
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
Bank):
(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
v' finance the Costs of the
up to the Loan Amount to be evidenced by the Notes to provide funds to ance t e C s
p Y p
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 from time to time up to the Loan Amount by requesting
Advances hereunder prior to the Maturity Date. Each Advance shall be for at least $250,000,
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010-8224-5000/1/AMERICAS
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 (i) amounts outstanding at any one time under the Tax-
Exempt Note can not exceed $59,000,000 and amounts outstanding at any one time under the
Taxable Note can not exceed $1,000,000, and (ii) 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 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 the representations and warranties of the Borrower
contained herein are true and correct, 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 no Event of Default has occurred and is continuing and 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.
(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 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
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.
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010-8224-5000/1/AMERICAS
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(i) the principal of or interest on
the Loan when the same shall become due and payable, or (ii) any other amount payable
hereunder when the same shall be due and payable and such failure shall continue for twenty (20)
days after written notice thereof to the Borrower by the Bank; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or (j) 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
(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
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010-8224-5000/1/AMERICAS
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; or
(j) a debt moratorium, debt restructuring, debt adjustment or comparable restriction is
imposed on the repayment when due and payable of the principal of or interest on any debt of the
Borrower by the Borrower or any Governmental Authority with appropriate jurisdiction; or
(k) any material provision of this Agreement, the Notes or the Resolution shall at any
time for any reason cease to be valid and binding on the Borrower as a result of any legislative or
administrative action by a Governmental Authority with competent jurisdiction or shall be
declared in a final non-appealable judgment by any court with competent jurisdiction to be null
and void, invalid, or unenforceable, or the validity or enforceability thereof shall be publicly
contested by the Borrower.
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 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, all amounts due and payable hereunder and the Notes shall bear interest at the Default Rate
(as defined in the Notes) and 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
and the Notes 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
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
12
010-8224-5000/1/AMERICAS
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. 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 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
or instruments and shall cooperate with one another in all respects for the purpose of out the
transactions contemplated by this Agreement.
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010-8224-5000/1/AMERICAS
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
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
5(3tift'
City Attorney i A( Data
14
010-8224-5000/1/AMERICAS
ATTACHMENT A-1
AMENDED AND RESTATED
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 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 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
010-8224-5000/1/AMERICAS
(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). Notwithstanding anything in this
Note to the contrary, if the LIBOR Rate as determined above would be less than zero
percent (0.0%), than the LIBOR Rate shall be deemed to be zero percent (0.0%).
(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
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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 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,
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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
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with an Amended and Restated 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. 2016- 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
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010-8224-5000/1/AMERICAS
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 Amended and Restated Promissory Note is , 2016.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: Mayor
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010-8224-5000/1/AMERICAS
ATTACHMENT A-2
AMENDED AND RESTATED
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 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 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).
Notwithstanding anything in this Note to the contrary, if the LIBOR Rate as determined above
would be less than zero percent (0.0%), than the LIBOR Rate shall be deemed to be zero percent
(0.0%).
"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.
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010-8224-5000/1/AMERICAS
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%.
"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.
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010-8224-5000/1/AMERICAS
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 an Amended and Restated 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. 2016- 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 Amended and Restated Promissory Note is , 2016.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Philip Levine
Title: Mayor
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010-8224-5000/1/AMERICAS
ATTACHMENT B
1. Authorized Individual(s): Allison R. Williams, Chief Financial Officer
2. Notice Address of Borrower: City of Miami Beach, Florida
1700 Convention Center Drive
3`d Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank: Wells Fargo Bank,National Association
200 South Biscayne Boulevard
14`h Floor
Miami, Florida 33131
Attention: Lance Aylsworth, Vice President
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010-8224-5000/1/AMERICAS
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: $
Amount of Advance on Taxable Note: $
Date of Advance:
Purpose of Advance (description and amount):
- $
- $
- $
The above-named Borrower requests an Advance under the Amended and Restated Loan
Agreement dated as of - , 2016 (the "Loan Agreement") and the Amended and
Restated 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 and no Event of Default has occurred and is continuing.
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:
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