Loan by Bank of America, N.A. $20,000,000~°Dq- ~ ~o y,~
CLOSING DOCUMENTS
$20, 000, 000
LOAN BY
BANK OF AMERICA, N. A.
to
CITY OF MIAMI BEACH, FLORIDA
May 21, 2009
LIST OF CLOSING DOCUMENTS
1. Notice of Sale sent to Division of Bond Finance.
2. Resolution.
3. Loan Agreement.
4. Promissory Note (Taxable).
5. Promissory Note (Tax-Exempt).
5. Certificate of the Issuer.
6. State of Florida Division of Bond Finance Form BF-2003/BF-2004B.
7. Disclosure Statement of Bank.
8. Opinion of City Attorney.
RESOLUTION NO. 2049-2707b
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING LOANS IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $60,000,000
OUTSTANDING AT ANY TIME FROM SUNTRUST BANK, BANK OF
AMERICA, N.A., AND WACHOVIA BANK, NATIONAL ASSOCIATION,
TO PAY COSTS OF WATER, SEWER AND STORMWATER PROJECTS;
AUTHORIZING THE EXECUTION AND DELIVERY OF LOAN
AGREEMENTS AND PROMISSORY NOTES TO EVIDENCE THE
OBLIGATION OF THE CITY TO REPAY SUCH LOANS; PROVIDING
SECURITY FOR THE REPAYMENT OF THE LOANS; AUTHORIZING
OTHER ACTIONS IN CONNECTION WITH THE LOANS 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, the City is in need of interim financing to pay the Costs of the Project (as
such terms are defined in the Loan Agreements described below) (the "Financing Program"); and
WHEREAS, in connection with the Financing Program, each of SunTrust Bank, Bank of
America, N.A., and Wachovia Bank, National Association (each, a "Bank" and collectively, the
"Banks") has offered to the City a separate Line of credit in a principal amount not to exceed
$20,000,000 outstanding at any time (each, a "Loan" and collectively, the "Loans"), resulting in
Loans available to the City in an aggregate principal amount not to exceed $60,000,000
outstanding at any time; and
_ _..
WHEREAS, the City liar determined that rt is m the best intez~esEs of the `City to
undertake the Financing Program through the Loans; and
WHEREAS, to evidence its obligation to repay each Loan, the City will execute and
deliver to each Bank a Loan Agreement (each, a "Loan Agreement" and collectively, the "Loan
Agreements") and aTax-Exempt Note and a Taxable Note (alI six of such notes collectively, the
"Notes"); and
WHEREAS, to repay the Loans, 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 Agreements and the Notes.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
MIAMI/4239 t 38.2
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
Agreements shall have the meanings assigned in the Loan Agreements, unless the context
affirmatively requires otherwise.
SECTION 2. FINDINGS.
The preambles are incorporated as findings. In addition, it is found, determimed and
declared that:
(A} The Financing Program and the Loans 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 218.385, Florida Statutes, as amended,
undertaking the Financing Program on a negotiated basis through the Loans is in the best interest
of the City (rather than a sale through competitive bidding) because the offer (i) 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. LOANS AUTHORIZED.
The Loans 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 Agreements, are authorized and approved.
SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN
AGREEMENTS.
~... ...._.._....... ,.__._ _ _... _ .. _ ... _. •!}EGG - 7l .. ~ Li 73
T1ie Loan Agreements; in' substantially tliie foiiris attached- as Exhibits -"A, B and ' C
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 Agreements, are 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 respective Banks.
SECTION 5. ISSUANCE OF NOTES.
The Loans shall be evidenced by the Notes. The Notes, in substantially the forms
attached to each 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
MIAMI/4239138.2
2
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 respective Banks.
SECTION 5. SECURITY FOR THE LOANS.
The Loans shall be payable solely from Non-Ad Valorem Revenues, in accordance with
and subject to the limitations contained in the Loan Agreements and the Notes. Neither the
Loans nor the Notes shall be a general obligation of the City, or a pledge of its faith, credit or
taxing power within the meaning of any constitutional or statutory provisions or limitations, but
shall be payable solely as provided in the Loan Agreements and Notes. The City shall not be
obligated to exercise its taxing power to pay the principal of the Loans and the Notes, the related
interest or other payments or costs.
SECTION 7. GENERAL AUTHORITY.
The City's officials, ofFicers, attorneys, agents and employees aze authorized to do all
acts and things and execute and deliver any and all documents necessary by this Resolution, the
Loan Agreements or the Notes, or desirable or consistent with the requirements of this
Resolution, the Loan Agreements or the Notes, in order to obtain the Loans, accomplish the
Financing Program and provide for the full, punctual and complete performance of all the terms,
covenants and agreements contained in the Loan Agreements, 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 aTax-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, -agreementsJor provisions' shall be null -and void and shall be ~deeiiied 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 Agreements or the Notes.
SECTION 9. 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 10. EFFECTIVE DATE.
This Resolution shall become effective immediately upon adoption.
M1AMU4239138.2
3
Resolution 2009-27076
PASSED AND ADOPTED this I3thday of _~p , 2009.
Attest:
City Clerk
Robert Parcher
~ do hereby certify that the above
and foregoing is a true and correct
_ _ ~ _..._ ._ _... ~. copy of the original theieof._ .....:. __. __ .._ _ .
on file in this offit~e.
~JITNFSS my hand and sear of said CITY
this. / ~ ~i day of D.20~
CITY of City
~of~~i~mi B c~ Florida
Mayor
Matti Herrera Bowyer
M1AMU4239138.2
4
APPROVED AS TO
FORM & LANGUAGE
Bond Finance -Local Bond Monitoring: Notice of Sale Confirmation Page 1 of 1
STATE OF FLORIDA -DIVISION OF BOND FINANCE LOCAL BOND
MONITORING
NOTICE OF SALE STATUS
Natice of Sale submission successful.
SUBMIT DATE: 05/20/2009
BOND ISSUE NAME: City of Miami Beach, Florida $60,000,000 Promissory
Notes
SALE DATE: 5/21/2009
CLOSING DATE: 5/21/2009
Print this page
https://bondissue.sbafla.com/nosprocess.aspx?redirectPage=nosprocess.aspx 5/20/2009
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of the Closing
Date identified on Attachment B, and is by and between the City of Miami Beach, Florida, a
municipal corporation of the State of Florida, and its successors and assigns (the "Borrower"),
and the fmancial institution identified on Attachment B, 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" shall mean this 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 Sanders & Dempsey L.L.P. 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, to the extent provided in Section 3.06 hereof, the Non-Ad
Valorem Revenues.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Closing Date" means the date so indicated in the Notes.
"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" shall mean an event of default specified in Article VI of this
Agreement.
"Loan" shall mean the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" is identified on Attachment B.
"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.
"Other Bank Notes" is defined on Attachment B.
"Other Banks" is defined on Attachment B.
"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 expenditures incurred by the Borrower with respect to any portion of the
System.
"State" means the State of Florida.
"System" means the stormwater management utility system owned and operated by the
Borrower and the water transmission and distribution system and the sewage collection and
transmission system owned and operated by the Borrower.
"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."
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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 political subdivision of the type
identified on Attachment B hereto, 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 has 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
-3-
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 Liti atg ion• 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 ISSUER
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.
-4-
(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 shah 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 ofby 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, 2009 promptly upon requesttherefor
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, 2009 within 270 days after the end thereof.
(k) Depository Relationship. So long as the Bank is a qualified public depository under
Chapter 280, Florida Statutes, or so long as the Bank is not required to be a qualified public
depository in order for the Borrower to lawfully deposit funds with the Bank, the Borrower shall
maintain on deposit with the Bank in time or demand deposits, or in other accounts acceptable to the
Bank (for example, investment accounts in any affiliate with the Bank), at least $4,000,000.00. This
requirement is in addition to any similar requirement that maybe contained in any other agreement
between the Borrower and the Bank.
Section 3.02 Negative 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:
-5-
(a) No Pledge of Non-Ad Valorem Revenues. Without the prior written consent of the
Bank, 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, which could, but for
such future indebtedness, be lawfully used to pay principal of or interest on the Notes ("Enterprise
Revenues") (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 ofNon-
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, 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) the average rate of actual interest borne by such indebtedness during the most recent
complete month prior to the date ofissuance of such proposed indebtedness, (ii) fortax-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 ofthe 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.
Except as provided in Section 3.02(c), nothing in this Agreement limits the Borrower's ability
to incur indebtedness payable from Enterprise Revenues.
-6-
(b) No Adverse Bonowin~s. The Borrower shall not issue or incur any indebtedness or
obligation if such would materially and adversely affect the ability of the Borrower to pay debt
service on the Notes or any other amounts owing by the Borrower under this Agreement.
(c) No System Debt. The Borrower will not incur any indebtedness (i.e., obligations
created by exercise of the borrowing power of the Borrower, and not including trade payables
incurred in the ordinary course of operation of the System) payable from revenues of the System
("System Debt") unless (i) at the time such System Debt is incurred the Borrower is incompliance
with the terms of any ordinance, resolution or contract which limits the Borrower's ability to incur
System Debt, assuming for such purpose that in addition to any existing System Debt and the
proposed System Debt, there is also outstanding $60,000,000 of System Debt (of which 64% is
payable from the stormwater system revenues and 36% of which is payable from water and sewer
system revenues, or such other portions as maybe agreed upon in writing by the Borrower, the Bank
and the Other Banks), which is bearing interest at a rate equal to The Bond Buyer 20 Revenue Bond
Index rate published most recently prior to the date such System Debt is to be incurred and which
is being repaid in 20 equal annual installments due on the date one year after the date such proposed
System Debt is to be incurred and each anniversary of such date, (ii) concurrent with the incurrence
of such indebtedness the entire outstanding principal and interest of the Notes and the Other Bank
Notes are repaid and this Agreement is terminated or (iii) the total principal and interest scheduled
to be paid on all indebtedness of the System in any fiscal year of the Borrower is not greater after the
incurrence of such indebtedness than it was before the incurrence of such indebtedness.
Section 3.03. Bank Fees and Expenses. The Borrower hereby agrees to pay (i) a closing fee
to the Bank in the amount of $20,000.00 and (ii) the fee of counsel to the Bank in connection with
the issuance of the Notes in the amount of $5,833.33, said amounts to be due and payable upon the
issuance of the Notes.
In addition, the Borrower will pay the Bank an annual fee (the "Unused Facility Fee") equal
to 80 basis points (0.80%) 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, 2009, and on the date on which this Agreement
terminates.
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
-7-
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 Obli ation. 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 Loan
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 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 anypayment 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 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 payprincipal 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
-8-
on the Notes shall not be subject to the covenant to budget and appropriate. Any source ofNon-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 Davs. 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
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.
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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 attorney for the Borrower, regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Notes;
(b) 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 funds to finance the Costs of
the Project upon the terms and conditions set forth in this Agreement. 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 Exhibit A.
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 $100,000, provided that the initial Advance
on the Tax-Exempt Note shall be for at least $50,000, and no more than one Advance may be
requested in any month. Amounts advanced and repaid on the Notes maybe re-advanced, provided
that (i) cumulative Advances on the Tax-Exempt Note may not exceed $40,000,000 and (ii) after
cumulative Advances of the Tax-Exempt Note equal $20, 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 $20,000,000, 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, (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
and (iii) the Borrower has simultaneously requested an advance from each payee of any ofthe Other
Bank Notes in an aggregate amount equal to the Advance requested hereunder. The Bank will not
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fund any Advance unless the conditions set forth in (i), (ii) and (iii) above are satisfied, provided
that the Bank may in its sole discretion waive any or all such conditions if, and only if, the Bank has
received the prior written consent of each payee under the Other Bank Notes.
(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 loan agreements, dated August 16, 1994, with
Sunshine State Governmental Finance Commission and August 1, 2001, with City of Gulf Breeze,
Florida and SunTrust Bank.
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), (j) or (k); 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 of the Other Bank Notes or any 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 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 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. None of this Section
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7.02, Section 5.03(b) and Section 7.14 hereof maybe amended except with the prior written consent
of the Other Banks
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.
Section 7.04 Severabilitv. 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 constnzed 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: Assi nment. 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 Partv 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 except as otherwise provided in Section 7.14
hereof.
Section 7.10 Attornevs 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.
-13-
Section 7.11 Entire Agreement. Except as otherwise expresslyprovided, 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, 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.
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 The Other Banks. The Borrower and both of the Other Banks have entered
into Loan Agreements (the "Other Agreements"), of even date herewith, whereby both of the Other
Banks have extended the City lines of credit in the amount of $20,000,000.00.
In the event that any amount is owed to the Bank hereunder and such amount is then due and
payable, and an amount is also owed to either or both of the Other Banks under the Other
Agreements which amount is then due and payable, then the City and the Bank will cooperate with
each other and with the Other Banks to ensure that any partial payment made by the City to the Bank
and the Other Banks will be shared by the Bank and the Other Banks pro-rata based upon the relative
amounts then due to each.
In the event that any amount is owed to the Other Banks and such amount is then due and
payable but no amount is then due and payable to the Bank hereunder, the City and the Bank will
cooperate with each other and with the Other Banks to ensure that any payment made by the City
will first be paid to the Other Banks to the extent of the amount then due to it.
The Other Banks are third-party beneficiaries of this Section 7.14 and of Sections 7.02 and
5.03(b) hereof.
Section 7.15 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.
-14-
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: tti errera Bower
Title: Mayox
Attest
By: ~ ~-
Name: Robert E. Percher
Title: City Clerk
BANK OF AMERICA, N.A.
By:
Name: Holly L. Kuhlman
Title: Senior Vice President
-15-
IN WITNESS~'VHERE(JF, the parties have executed this Agreement to be effective
between them as of the date of first set forth above.
CITY OF MIAMI BEACH, FLORIbA
By:
Name: Matti Herrera Bawer
Title:. Mayor
.Attest
By:
Name:. Robert E, Parcher
Title: City Clerk
BANK OF AMERICA, N.R.
sy: ,,
Narne: Holly L. Irnan
Title: Senior Vice President
-IS-
ATTACHMENT B
to
LOAN AGREEMENT
1.Name of Borrower: Ciry of Miami Beach, Florida.
2. Name of Bank: Bank of America, N.A.
3. Type of Political Subdivision: Municipality.
4. Authorized Individual(s): Patricia D. Walker, Chief Financial Officer
Georgina P. Echert, Assistant Finance Director
5. Notice Address of Borrower: 1700 Convention Center Drive
3rd Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
6. Notice Address of Bank: Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, Florida 32256
7. Loan Amount:$20,000,000.00.
8. Closing Date: May 21, 2009.
9.Other Bank Notes: The $20,000,000 promissory notes (taxable and tax-exempt) dated the same
date as the Notes, made by the Borrower, and payable to the Other Banks.
10. Other Banks: Wachovia Bank, National Association and SunTrust Bank.
ATTACHMENT C
REQUEST FOR ADVANCE
Date:
To: Bank of America, N.A.
From: City of Miami Beach, Florida
Date of Loan Agreement and Promissory Note:
Amount of Advance on Tax-Exempt Note:
Amount of Advance on Taxable Note:
Date of Advance:
Purpose of Advance (check all that apply and complete amount):
Wastewater $
Potable Water $
Stormwater $
The above-named Borrower requests an Advance under the Loan Agreement and Promissory Note
identified above in the amount set forth above, and requests that said funds be deposited in the
Borrower's account with the Bank maintained for such purpose pursuant to such Loan Agreement.
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.
Proceeds of the Advance should be wired as follows:
CITY OF MIAMI BEACH, FLORIDA
By:
Name:
Title:
TAX-EXEMPT PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersignedmaker (the "Borrower"),apolitical
subdivision 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 Bank of America, N.A., or
registered assigns (hereinafter, the "Bank"), the principal sum of $20,000,000.00 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 (as 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.
Subject to adjustment as herein provided, the Applicable Rate is the greater of (i) 2.00% and (ii) the
sum of 1.55% plus the LIBOR Rate (hereinafter defined).
The Borrower shall paythe Bank the entire unpaid principal balance hereof, together with all accrued
and unpaid interest hereon, on November 21, 2010 (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" shall mean interest on this Note is determined or
declared, by the Internal Revenue Service or a court ofcompetent 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) "LIBOR Rate" is a fluctuating rate of interest equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published byReuters (or other commercially available
source providing quotations of BBA LIBOR as selected by the Bank from time to time) as
determined for each banking day at approximately 11:00 a.m. London time two (2) London Banking
Days prior to the date in question, for U.S. Dollar deposits (for delivery on the first day of such
interest period) with a one month term. If such rate is not available at such time for any reason, then
the rate for that interest period will be determined by such alternate method as reasonably selected
by the Bank as being comparable to BBA LIBOR. A "London Banking Day" is a day on which banks
in London are open for business and dealing in offshore dollars. Interest will accrue on any day
which is not a Business Day at the rate in effect on the immediately preceding Business Day.
Upon the occurrence of a Determination of Taxability, the Applicable Rate shall be adjusted to a rate
equal to the greater of (i) 3.00% and (ii) the sum of 2.30% plus the LIBOR Rate (the "Adjusted Interest
Rate"), as of and from the date such Determination of Taxability would be applicable with respect to this
Note (the "Accrual Date"); and (i) the Borrower shall on the next interest payment date (or if this Note shall
have matured, within 30 days after demand by the Bank) hereon pay to the Bank an amount equal to the sum
of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted
Interest Rate from the Accrual Date to such next interest payment date, and (B) the actual interest paid by
the Borrower on this Note from the Accrual Date to such next interest payment date, and (2) any interest and
penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed
upon such Bank and/or former Bank arising as a result of such Determination of Taxability; and (ii) from and
after the Date of the Determination of Taxability, this Note shall continue to bear interest at the Adjusted
Interest Rate for the period such determination continues to be applicable with respect to this Note. This
adjustment shall survive payment of this Note until such time as the federal statute of limitations under which
the interest on this Note could be declared taxable under the Code shall have expired.
The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or
in part at any time 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 maybe 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. If any payment hereunder is not made within fifteen
(15) days after it is due, then the Borrower shall also be obligated to pay as a part of the indebtedness
evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment
shall be due and payable immediately.
Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing
hereunder from and after the occurrence of and during the continuation of an Event of Default, irrespective
of a declaration of maturity.
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 any time under this Note and under
the Taxable Promissory Note, dated of even date herewith and made by the Borrower payable to the Bank
shall not exceed $20,000,000, and provided that amounts borrowed and repaidmay be re-borrowed hereunder
as provided in the Loan Agreement.
All terms, conditions and provisions of the Resolution and 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 Resolution.
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 maybe exchanged or transferred but only as provided in the Loan Agreement.
-2-
It is hereby certified, recited and declared that all acts, conditions and prereq~.dsites required to exist,
happen and be performed precedent to and ni the execution, delivery and the issuance of this Note do exist,
have happened and have been peifonned in due time, form and u~a~uxer 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 Borxower has caused this Note to be executed in its name as of the
date hereuiafter set forth.
The date of this Promissory Note is May 21, 2009.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: M ' Herrera Bo
Title: Mayor
-3-
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersignedmaker (the "Borrower"),apolitical
subdivision 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 Bank of America, N.A., or
registered assigns (hereinafter, the "Bank"), the principal sum of $20,000,000.00 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 (as 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 greater of (i) 3.00% and (ii) the sum of 2.30% plus the LIBOR Rate
(hereinafter defined).
The Borrower shall pay the Bank the entire unpaid principal balance hereof, together with all accrued
and unpaid interest hereon, on November 21, 2010 (the "Maturity Date").
All payments by the Borrowerpursuant 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" is a fluctuating rate of interest equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of
BBA LIBOR as selected by the Bank from time to time) as determined for each banking day at approximately
11:00 a.m. London time two (2) London Banking Days prior to the date in question, for U.S. Dollar deposits
(for delivery on the first day of such interest period) with a one month term. If such rate is not available at
such time for any reason, then the rate for that interest period will be determined by such alternate method
as reasonably selected by the Bank as being comparable to BBA LIBOR. A "London Banking Day" is a day
on which banks in London are open for business and dealing in offshore dollars. Interest will accrue on any
day which is not a Business Day at the rate in effect on the immediately preceding Business Day.
The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or
in part at any time 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 maybe 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. If any payment hereunder is not made within fifteen
(15) days after it is due, then the Borrower shall also be obligated to pay as a part of the indebtedness
evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment
shall be due and payable immediately.
Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing
hereunder from and after the occurrence of and during the continuation of an Event of Default described in
the preceding paragraph, irrespective of a declaration of maturity.
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 ternis 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 and under
the Tax-Exempt Promissory Note, dated of even date herewith and made by the Borrower payable to the
Bank shall not exceed the principal amouat 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 the Resolution and Loan Agreement are by this reference
thereto incorporated herein a5 a part of this Note. Terms used herein in capitalized form and not otherwise
defused herein shall have the meanings ascribed thereto in the Resolution.
This Note is payable solely from and is secured by a Lien upon and pledge of the "Budgeted
Revenues" as descnbed 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 maybe exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, xecited 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 21, 2009.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: M f Herrera Bower
Title: Mayor
-2-
CERTIFICATE OF THE ISSUER
The City of Miami Beach, Florida (the "City") has made its Tax-Exempt Promissory Nate and
its Taxable Promissory Note dated May 21, 2009 and payable to Bank of America, N.A. 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 delivering this certificate, the City has:
(i) in accordance with Section 215.84, Florida Statutes, calculated the interest rate on the Tax-
Exempt Promissory Note based on the interest rate such Note would bear if there had been an
advance thereunder on the date hereof (2.00%}, which interest rate is less than The Bond Buyer
" 20 Bond Index" published immediately preceding May 1, 2009 plus 300 basis points (7.57%);
and
(ii) in accordance with Section 154.825, 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 (3.00%), which interest rate is less than 30-year Treasury
Bond yield published in The Bond Buyer immediately preceding May 1, 2009 plus 500 basis
points (9.05%).
Date May 21, 2009
City of Miami Beach, Florida
By:
Title: a or
Bond Finance -Local Bond Monitoring: Print Form
Page 1 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) 3rd Floor
city Miami Beach
State FL
zip 33139
COUNT(IES) IN WHICH GOVERNMENTAL UNTT HAS JURISDICTION
Miami-Dade
TYPE OF ISSUER
Clty
IS THE ISSUER A COMMUNITY DEVELOPMENT DISTRICT?
ISSUE NAME AMOUNT INTEREST YIELD
CALCULATION
Promissory Notes $60,000,000.00 Variable
AMOUNT AUTHORIZED
$60,000,000.00
DATED DATE (MM/DD/YYYY)
5/21/2009
SALE DATE (MM/DD/YYYY)
5/21/2009
DELIVERY DATE (MM/DD/YYYY~
5/21/2009
LEGAL AUTHORITY FOR ISSUANCE
Ch. 166, F.S.
TYPE OF ISSUE
Bank Loan/Line of Credit
IS THIS A PRIVATE ACTIVITY BOND (PAB)?
Did This Issue Receive a PAB Allocation?
Amount of Allocation
$0.00
SPECIFIC 1~CVENUES(S) PLEDGED
Primary
Other
Secondary
Other
non ad valorem revenues
PURPOSE(S) OF THE ISSUE
Primary
Water
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Secondary
Sewer/Waste Water
Other
IS THIS A REFUNDING ISSUE?
REFUNDED DEBT IIAS BEEN
DID THE REFUNDING ISSUE CONTAIN NEW MONEY? _ .
APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY?
TYPE OF SALE
Negotiated Private Placement
INSURANCE/ENHANCEMENTS
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 BY
E-mail
Page 2 of 5
PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER
Underwriter Sun Trust Bank
Address(1) 777 Brickell Avenue
Address(2) 4th Floor
city MIAMI
State FL
zip 33131
CO-Underwriter Wachovia Bank, N.A.
Address(1) 200 S. Biscayne Blvd.
Address(2) 15th Floor
city MIAMI
State FL
zip 33131
PROVIDE TAE NAME(S~ AND ADDRESS(ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED
THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE.
Bond Counsel Squire, Sanders & Dempsey
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Bond Finance -Local Bond Monitoring: Print Form
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/Consultant
Address(1)
Address(2)
city
State
Zip
Dain Rauscher Inc./RBC Dain Rauscher
100 Second Avenue South
Suite 800
ST PETERSBURG
FL
33704
CO-Financial Advisor/Consultant None
Address(1)
Address(2)
City
State -
Zip
Other Professionals
Address(1)
Address(2)
City
State -
Zip
PAYING AGENT
NONE
REGISTRAR
NONE
Page 3 of 5
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 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 THE 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
$55,000.00
Total Financial Advisor Fees Paid
$45,000.00
Other Fees Paid
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Page 4 of 5
COMPANY NAME FEE PAID SERVICE PROVIDED OR
FUNCTION SERVED
Holland & Knight $13,500.00 bank counsel
Akerman Senterfitt $4,000.00 bank counsel
FILING OF THIS FORM HAS BEEN AUTHORIZED BY THE OFFICIAL OF THE ISSUER IDENTIFIED BELOW
Name
Patricia 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
60000
UNDERWRITERS EXPECTED GROSS SPREAD (PER THOUSAND PAR VALUE)
1
FOR ADDITIONAL INFORMATIONS THE DIVISION OF BOND FINANCE SHOULD CONTACT:
Name MARK RAYMOND
Title lawyer
Phone 561-650-8349
Company HOLLAND & KNIGHT
Address(1) 222 LAKEVIEW AVE
Address(2) SUITE 1000
city WEST PALM BEACH
State FL
zip 33401
INFORMATION RELATING TO PARTY COMPLETING THIS FORM (IF DIFFERENT FROM ABOVE)
Name
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 filing continuing disclosure information required by SEC Rule 15c2-12, based on the following
information:
IF THE ISSUER IS REQUIItED TO PROVIDE CONTINUING DISCLOSURE INFORMATION IN ACCORDANCE WITH SEC
RULE 1SC2-I2, DO YOU WANT THE DIVISION OF BOND FINANCE TO REMIND YOU OF YOUR FILING
DEADLINE?
ON WHAT DATE IS THE CONTINUING DISCLOSURE INFORMATION REQUHtED TO BE FILED? (MM/DD)
PROVIDE THE FOLLOWING INFORMATION REGARDING THE PERSON(S) RESPONSIBLE FOR FILING CONTINUING
DISCLOSURE INFORMATION REQUIIZEDBY SEC RULE ISC2-I2 AND THE CONTINUING DISCLOSURE
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Bond Finance -Local Bond Monitoring: Print Form
AGREEMENT (INCLUDING OTHER OBLIGATED PARTIES, IF APPROPRIATE).
Name
Title
Phone - -
Company
Address(1)
Address(2)
City
State -
Zip
Fax - -
Email
Page 5 of 5
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DISCLOSURE STATEMENT QF BANK QF AMERICA. N.A.
May 21, 2009
In connection with the Loan Agreement dated May 21, 2009 between City of Miami Beach, Florida
(the "City"}and Bank ofAmerica, N. A. (the "Bank")and the loan :described in the Laan' Agreement (the
"Loan"}, the Bank represents to the City that:
(a} The nature and estimated amounts of expenses to be incurred by the Bank in connection with the
Loan are legal fees of $5, 833.33 (to be paid by the City).
(b} There were no "finders.," as defined in Section 218.386, Florida Statutes, as amended., in
connection with the Loan.
(c) na management fee will be charged by the Bank, but the Bartle will receive aclosng-fee of
$20,400.
(d) 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.
(e} The name and address of the Bank is; Bank of America,. N,A.
9000 Southside Boulevard
Building 1a0
3acksonville, Florida 32256
(f') The City is proposing. to borrow not exceeding $20,000, 000. for the purpose of paying expenditures
incurred by the Borrower with'respect to any portion of the stormwater management utility system owned
and operated by the City and the water transmission and distribution systenn and the sewage collection and
transmission system owned and operated by the City. The source of funds for repayment of the Loan is
non ad valorem revenues of the City budgeted for the #hat purpose. The Loan is required to be. ropaid by
November 21, 2010. 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 520,000,004, plus °the amount afinterest accrued on the amount.
of the Loan, not being available for uses by the City other than repayment of the Loan.
(g) 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 Notes),. the Bank aCso represents that (i) it 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) it has been offered copies of ar full access' to all records, reports, financial
statements and other information concerning the business and financial affairs of the City which the $ank
.deemed to be .significant in making its investment decision, and which. were requested by the Bank in
connection wish the Loan.; {iii) it 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 connecgon with the Laan; and"(iv) it is making the Loan solely for its
own account and not do behalf of others,- and with no present intent to resell or otherwise distribute all
ar any pan of or interest in the Loan.
BANK QF .AMERICA, N. A.
BY
Title: Sepia ice President
OFFICE OF THE CITY ATTORNEY
~ ~ ~~~N~
F L 0 R ! D A
JOSE SMTI'H
City Attorney
Bank of America, N.A.
Jacksonville, Florida
~~
.~'~ .b
•r
May 21, 2009
RE: Loan to Ciry of Miami Beach, Florida
Ladies and Gentlemen:
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
I am the City Attorney to the City of Miami Beach, Florida (the "City'.
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. Resolution No. 2009-27076 has been duly adopted by the City and constitutes the
valid and binding action of the City.
3. The Loan Agreement between the City and Bank of America, N.A. {the `Bank")
dated May 21, 2009, and the Tax-Exempt Promissory Note and the Taxable Promissory Note
(the "Notes"), each dated May 21, 2009, and made by the City payable to the order of the Bank,
have been executed by the City. The Notes, and, assuming that the Loan Agreement is a valid
and binding obligation of the Bank, 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
~' ~Y Yo~~
ry Attorney
1700 Convention Center Drive -- Foarth Floor -Miami Beach, Florida 33139
ML4Mll4240230.1