$50,000,000 Loan by JPMorgan Chase Bank, N.A. to CMB Transcript of document Squire Sanders(US)LLP
200 South Biscayne Boulevard,
Suite 4100
t"' ' �9
Miami,Florida 33131
R F a F
O+l 305 577 7000
2012 OCT 17 M I I: 21 F +1 305 577 7001
P;t 1 1 Squiresanders.com
GiTY C,LERi-y J 0F F jCE Luis Reiter
T+1 305 577 7710
Luis.reiter @squiresan ers.com
SQUIRE LEGAL
DC
COUNSEL
Sjkt�D_ El� WORLDWI.DE
TO: Rafael E. Granado V/
Patricia D. Walker
Jose Smith
Julie Santamaria
Mark-David Ad ms
FROM Luis Reiter .
RE: $50,000,000 Loan by JPMorgan Chase Bank,N.A. to City of Miami Beach, Florida
DATE: October 16, 2012
Enclosed please find the transcript of closing documents for the above referenced
financing.
LR:ge
Encl.
MIAMI/4283142.1
•
•
® CLOSING DOCUMENTS
$5010003000
•
LOAN BY
JPMORGAN CHASE BANK, N.A.
to
•
CITY OF MIAMI BEACH, FLORIDA
October 12, 2012
•
•
•
•
•
® MIAMI/4282781.1
•
LIST OF CLOSING DOCUMENTS
1. Certified copy of Resolution No. 2012-28028.
2. Loan Agreement.
3. Tax-Exempt Promissory Note.
•
4. Taxable Promissory Note.
5. Closing Certificate of the City.
® 6. Closing and Disclosure Certificate of the Bank.
7. Notice of Sale to Division of Bond Finance.
8. State of Florida Division of Bond Finance Form BF-2003/BF-2004.
® 9. Opinion of Squire Sanders (US) LLP.
10. Opinion of City Attorney.
•
•
•
•
® MIAMI/4282781.1
•
RESOLUTION NO. 2012-28028
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING A LOAN IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $50,000,000
OUTSTANDING AT ANY TIME FROM JPMORGAN CHASE BANK, N.A.,
TO PAY COSTS OF CAPITAL PROJECTS; AUTHORIZING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND
PROMISSORY NOTES TO EVIDENCE THE OBLIGATION OF THE CITY
TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE REPAYMENT
OF THE LOAN; AUTHORIZING,OTHER ACTIONS IN CONNECTION WITH
THE LOAN AND THE 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 costs of capital projects (the
"Financing Program"); and
WHEREAS, in connection with the Financing Program, JPMorgan Chase Bank, N.A.
® (the "Bank"), has offered to the City a loan through two revolving lines of credit in an aggregate
principal amount not to exceed $50,000,000 outstanding at any time (the "Loan"); and
WHEREAS, the City has determined that it is in the best interests of the City to
undertake the Financing Program through the Loan; and
WHEREAS, to evidence its obligation to repay the Loan, the City will execute and
deliver to the Bank a Loan Agreement (the "Loan Agreement") and a Tax-Exempt Note and a
Taxable Note (such notes collectively, the "Notes"); and
WHEREAS, to repay the Loan; the- City wishes to covenant to budget and appropriate
® Non-Ad Valorem Revenues (as defined in the Loan Agreement), in accordance with and subject
to the limitations contained in the Loan Agreement and the Notes.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
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.
® MIAMI/4281905.2
SECTION 2. FINDINGS.
The preambles are incorporated as findings. In addition, it is found, determined and
declared that:
(A) The Financing Program and the Loan are permitted under the Act, are
necessary and desirable, are in the public interest and will serve a proper public purpose.
(B) In accordance with Section 218.385, Florida Statutes, as amended,
undertaking the Financing Program on a negotiated basis through the Loan is in the best interest
of the City (rather than a sale through competitive bidding) because it offers (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. LOAN AUTHORIZED.
The Loan in an aggregate principal amount not to exceed $50,000,000 outstanding at any
time to undertake the Financing Program, as described in this Resolution and in the manner
provided in the Loan Agreement, is authorized and approved.
SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN
AGREEMENT.
® The Loan Agreement, in substantially the form attached as Exhibit "A" to this
Resolution, with such changes, alterations and corrections as may be approved by the Mayor of
the City (the "Mayor"), after consultation with the Chief Financial Officer of the City (the "Chief
Financial Officer") and the City Attorney of the City (the "City Attorney"), such approval to be
presumed by the execution by the Mayor of the Loan Agreement, is approved by the City. The
® City authorizes and directs the Mayor to execute and the City Clerk or Deputy City Clerk of the
City (the "City Clerk") to attest under the seal of the City the Loan Agreement and to deliver the
same to the Bank.
SECTION 5. ISSUANCE OF NOTES.
The Loan shall be evidenced by the Notes. The Notes, in substantially the forms attached
to the Loan Agreement, with such changes, alterations and corrections as may be approved by
the Mayor, after consultation with the Chief Financial Officer and the City Attorney, such
approval to be presumed by the execution by the Mayor of the Notes, are approved by the City.
The City authorizes and directs the Mayor to make and execute the Notes and to issue and
• deliver the Notes to the Bank.
SECTION 6. SECURITY FOR THE LOAN.
The Loan shall be payable solely from Non-Ad Valorem Revenues, in accordance with
® and subject to the limitations contained in the Loan Agreement and the Notes. Neither the Loan
nor the Notes shall be a general obligation of the City, or a pledge of its faith, credit or taxing
power within the meaning of any constitutional or statutory provisions or limitations, but shall be
2
®
MIAMI/4281905.2
payable solely as provided in the Loan Agreement and Notes. The City shall not be obligated to
exercise its taxing power to pay the principal of the Loan and the Notes, the related interest or
other payments or costs.
SECTION 7. GENERAL AUTHORITY.
The City's officials, officers, attorneys, agents and employees are authorized to do all
• acts and things and execute and deliver any and all documents necessary by this Resolution, the
Loan Agreement or the Notes, or desirable or consistent with the requirements of this Resolution,
the Loan Agreement or the Notes, in order to obtain the Loan, accomplish the Financing
Program and provide for the full, punctual and complete performance of all the terms, covenants
and agreements contained in the Loan Agreement, the Notes and this Resolution, including the
• execution of any necessary Tax Compliance Certificate and the execution and filing of any
necessary form or other document with the Internal Revenue Service with respect to any
Advance under the Tax-Exempt Note.
SECTION 8. SEVERABILITY OF INVALID PROVISIONS.
• If any one or more of the provisions contained in this Resolution shall be held contrary to
any express provisions of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such
covenants r agreements provisions shall be null and void and shall be deemed separable from
g
the remaining covenants, agreements or provisions and shall in no way affect the validity of any
® of the other provisions of this Resolution or of the Loan Agreement or the Notes.
SECTION 9. REPEALING CLAUSE.
All resolutions or parts of such resolutions of the City in conflict with the 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.
• PASSED AND ADOPTED this �7111day of Seq+c*bei , 2012. A1,31.9 Ui 10 .3T
Attest:
*. INCORP ORATED' a �J�' A t� � d VAC)??3MII_
' n.. 'OY 4 '0.Y 1/"1. .. - .".'�r•�•V.'tlf"lO!', YI`�-�' �ii;
Cl 6k
lA
Cit y I ••'' _ r--�
H L
9� 1
3 City Attorn (��, Date
MIAMI/4281905.2 U_
i
EXHIBIT"A"
I
®. LOAN AGREEMENT
i (including Notes)
•
•
•
•
A-1
MIAMI/4281905.2
•
LOAN AGREEMENT
® This LOAN AGREEMENT (the "Agreement") is made and entered into as of
2012 (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 JPMorgan Chase Bank, N.A., 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 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 (US) LLP or such other attorney-at-law or firm of
such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and
political subdivisions thereof and acceptable to the Bank.
•
"Budgeted Revenues" means the Non-Ad Valorem.Revenues budgeted and appropriated
pursuant to Section 3.06 hereof.
"Business Day"-means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
• "Essential Government Services" means the provision of public safety and general
governmental services by the Borrower, the expenditures for which are set forth as the line items
entitled "General Government Expenditures" and."Public Safety Expenditures" as reflected in the
City of Miami Beach Statement of Revenues, Expenditures and Changes in Fund Balances -
Governmental Funds and as reported in the City's latest Comprehensive Annual Financial Report.
• "Event of Default" means an Event of Default specified in Article VI of this Agreement.
MIAMI/4281906.3
•
i
"Loan"means the loan by the Bank to the Borrower contemplated hereby.
• "Loan Amount"means, in the aggregate, $50,000,000 principal amount.
"Non-Ad Valorem Revenues" means in any fiscal year of the Borrower, all revenues
received by the Borrower in such fiscal year that are not derived from ad valorem taxation.
"Notes" means the Borrower's Promissory Notes in the forms attached hereto as
Attachments A-1 and A-2.
"Notice Address" means,
As to the Borrower: As set forth on Attachment B
• As to the Bank: As set forth on Attachment B
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the Notice Address, or such other
® office as the Bank may designate to the Borrower in writing.
"Project"means the capital improvements approved by the Mayor and City Commission of
the Borrower being financed by the Loan.
"State"means the State of Florida.
"Tax Compliance Certificate" means the Tax Compliance Certificate to be executed and
delivered concurrently with the first Advance, if any,under the Tax-Exempt Note.
"Taxable Note"means the Note attached hereto as Attachment A-2.
• "Tax-Exempt Note" means the Note attached hereto as Attachment A-1.
Section 1.02. Titles and Headings. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and
• shall not be considered or given any effect in construing this Agreement or any provision hereof or
in ascertaining intent, if any question of intent should arise.
ARTICLE 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
MIAMI/4281906.3 2
•
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.
Section 2.04. Pending or Threatened Liti ation. 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.
MIAMI/4281906.3 3 .
•
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.
(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.
MIAMI/4281906.3 4
•
(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, 2012 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, 2011 within 210 days after the end thereof.
•
(k) Proceeds of Bonds. Proceeds of bonds issued by the Borrower in connection with
any portion of the Project shall first be applied to repay the Advance(s) relating to such portion of
the Project.
• Section 3.02. Additional Debt 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, 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 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, if any
indebtedness bears a rate of interest that is not fixed for the entire term of the debt (excluding any
MIAMI/4281906.3 5
•
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 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.
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
$5,500.00, said amount to be due and payable upon the execution and delivery of this Agreement.
In addition, the Borrower will pay the Bank a fee (the "Unused Facility Fee") equal to
0.20% of the unfunded amount of the Loan, calculated on the basis of a 360 day year and the
actual number of days elapsed, payable in arrears as of last day of each March, June, September
and December, commencing December 31, 2012, and on the date on which this Agreement
terminates, subject in each case to a fifteen (15)day grace period.
• Section 3.04. Registration and Exchange of Notes; Persons Treated as Banks. The Notes
are owned by the Bank. The ownership of the Notes may only be transferred, and the Borrower
will transfer the ownership of the Notes, upon written request of the Bank specifying the name,
address and taxpayer identification number of the transferee, and the Borrower will keep a record
setting forth the identification of the owner of the Notes. The Bank will not transfer the Notes
• except in compliance with all applicable laws and the Bank may only transfer both Notes to the
same transferee and at the same time.
Section 3.05. Notes Mutilated, Destroyed, Stolen or Lost. In case a Note shall become
mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new Note having
the same terms as the Note mutilated, destroyed, stolen or lost, in exchange and in substitution for
• such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and
upon the Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably
satisfactory to the Borrower and paying such expenses as the Borrower may incur.
Section 3.06. Payment of Principal and Interest; Limited Obli ag_tion. 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
MIAMI/4281906.3 6
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
•I 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.
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.
MIAMI/4281906.3 7
•
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.
• 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;
MIAMI/4281906.3 8
(b) The opinion of Bond Counsel regarding the validity and enforceability of the .
Agreement and the Notes and the.exemption of the Notes from certain taxes. imposed under the
• laws of the State; and
(c) Such additional supporting documents as the Bank may reasonably request.
ARTICLE V
FUNDING THE LOAN
Section 5.01. The Loan. The Bank hereby agrees to loan to the Borrower the amount of
up to the Loan Amount to be evidenced by the Notes to provide funds to finance the Costs.of the
Project upon the.terms and conditions set forth in this Agreement and the Notes. Each Note sets
forth the maximum principal amount which may be outstanding at any time thereunder. The
Borrower agrees to repay the principal amount borrowed plus interest thereon, upon the terms and
conditions set forth in this Agreement and the Notes.
Section 5.02. Description and Payment Terms of the Notes. To evidence the Loan, the
Borrower shall issue_ and deliver to the Bank .the Notes in the forms attached hereto as
Attachments A1.and A-2.
Section 5.03. Advances on Notes.
(a) The Borrower may borrow from time to time up to the Loan Amount by requesting
Advances hereunder. Each Advance shall be for at least $250,000, 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 may be re-advanced,
provided that after cumulative Advances of the Tax-Exempt Note equal $49,000,000, 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 $49,000,000, the interest on the Tax-Exempt Note will remain excluded
from gross income for federal income tax purposes and the Note is not an item of tax preference
under Section 57 of the Code.
• (b) The Bank shall not be obligated to Advance any funds unless (i) no Event of
Default has occurred and is continuing, and (ii) the Borrower delivers to the Bank a written
request for such Advance in the form of Attachment C. executed by an Authorized Individual,
indicating the amount of the Advance requested, the date on which such Advance is to be made
(which shall be not less than two Business Days after the date.such request is received by the
Bank).and stating that the representations and warranties of the Borrower contained herein are true
and correct as of such date. -The Bank will not fund any Advance. unless the conditions set forth
in (i) and (ii) above are satisfied, provided that the Bank may in its sole discretion waive any or all
such conditions.
(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
MIAMI/4281906.3 9
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.
ARTICLE VI
•
EVENTS OF DEFAULT
Section 6.01. General. An"Event of Default shall be deemed to have occurred under this
Agreement if:
• (a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or 0) or Section
3.02; or
• (c) The Borrower shall default in the performance of or compliance with any term or
covenant contained in this Agreement and the Notes, other than a term or covenant a default in the
performance of which or noncompliance with which is elsewhere specifically dealt with, which
default or non-compliance shall continue and not be cured within thirty (30) days after (i) written
notice thereof to the Borrower by the Bank, or (ii) the Bank is notified of such noncompliance or
• should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement,
whichever is earlier; or
(d) Any representation or warranty made in writing by or on behalf of the Borrower in
this Agreement or the Notes shall prove to have been false or incorrect in any material respect on
the date made or reaffirmed; or
(e) The Borrower admits in writing its inability to pay its debts generally as they
become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of a receiver or trustee for itself, or
® (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
•
MIAM U4281906.3 10
•
(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
® I States of America or the State;or
I
(h) The Borrower shall default in the due and punctual payment or performance of
covenants related to any other obligation for the payment of money to the Bank or any other
subsidiary or affiliate of any bank holding company of which the Bank is a subsidiary; or
• (i) The Borrower shall default in the due and punctual payment of any Competing
Debt or an event of default exists with respect to any Competing Debt which results in the
acceleration of the time for payment of such debt or entitles the holder of such Competing Debt to
accelerate the time for payment of such debt.
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Notes, immediately and without notice, upon the
occurrence of any Event of Default, the Bank may declare all obligations of the Borrower under
this Agreement and the 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
® MISCELLANE®US
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
® j exercise of any such right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and
therein provided are cumulative and not exclusive of any remedies provided by law or in equity.
Section 7.02. Amendments, Changes or.Modifications to the Agreement. This Agreement
• shall not be amended, changed or modified except in writing signed by the Bank and the
Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifying and/or amending this Agreement at the Borrower's request or behest.
Section 7.03. Counterparts. This Agreement may be executed in any number of
.counterparts, each of which, when so executed and delivered, shall be an original; but such
• counterparts shall together constitute but one and the same Agreement, and, in making proof of
this Agreement, .it shall not be necessary to produce or account for more than one such
counterpart.
Section 7.04. Severability. If any clause, provision or section of this Agreement shall be
held illegal or invalid by any court, the invalidity of such clause, provision or section shall not
affect any other provisions or sections hereof, and this Agreement shall be construed and enforced
to the end that the transactions contemplated hereby be-effected and the obligations contemplated
E
MIAMI/4281906.3 11
I
hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained
herein.
Section 7.05. Term of Ag_reemerit. 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-23 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.
M IAM U4281906.3 12
•
•
i
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: Matti Herrera Bower
Title: Mayor
Attest
By:
Name: Rafael E. Granado
• Title: City Clerk
JPMORGAN CHASE BANK,N.A.
• By:
Name: Ralph Hildevert
Title: Authorized Officer
•
•
MIAMI/4281906.3 13
ATTACHMENT A-1
TAX-EXEMPT PROMISSORY NOTE .
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of JPMorgan Chase Bank, N.A., or registered assigns (hereinafter, the
"Bank"), the principal sum of $49,000,000 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
n f the United States of America at such lace as the Bank
may
constituting lawful money o p Y
designate to the Borrower.
The Applicable Rate is 74% of the sum of the LIBOR Rate (hereinafter defined) plus
0.85%.
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
2014(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
M1AMU4281906.3 .
I
(4) "LIBOR Rate" means the fluctuating rate of interest for U.S. dollar
• deposits with a one month term, as reported on Reuters Screen LIBOR01 page as of
11:00 AM London time on the second London business day prior to the first date of each
Interest Period. If the foregoing rate is unavailable for any reason, then the rate shall be
determined by the Bank from -any other successor or substitute page of the Moneyline
Telerate Service or any other publication or interest rate reporting service of recognized
standing which provides rate quotations comparable to those currently provided on such
• page, as determined by the Bank from time to time for purposes of providing quotations
of interest rates applicable to U.S. dollar deposits in the London interbank market.
(5) "Prime Rate" means a rate of interest 'equal to the announced prime
commercial lending rate per annum of JPMorgan Chase Bank, N.A. 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.
• (6) "Taxable Rate" means a rate equal to the Prime Rate times that percentage
which after the Determination of Taxability will result in the same federal after-tax yield
to the Bank as before said Determination of Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on this
® Note shall be increased to the Taxable Rate, effective retroactively to the date on which the
interest payable on this Note is includable for federal income tax purposes in the gross income of
the Bank. In addition, the Bank shall be paid an amount equal to any additions to tax, interest
and penalties, and any arrears in interest that are required to be paid to the United States of
America by the Bank as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest.shall be paid by the Borrower within sixty (60)
• days following the Determination of Taxability and demand by the Bank.
In the alternative, in the event that interest on.this Note during any period becomes
partially taxable as a result of a Determination of Taxability applicable to less than all of this
Note,then the interest rate on this Note shall be increased during such period by an amount equal
• to: (A-B)x C where:
(A) "A"equals the Taxable Rate (expressed as a percentage);
(B) "B" equals the interest rate on this Note (expressed as a percentage);and
(C) "C" equals the portion of this Note the interest on which has become
taxable as the result of such tax change (expressed as a decimal).
In addition, the Bank shall be paid an amount equal to any additions to tax, interest and penalties,
and any arrears in interest that are required to be paid to the United States of America by the
Bank as a result of such Determination of Taxability. All such additional interest, additions to
® tax, penalties and interest shall be paid by the Borrower within sixty,(60) days following the
Determination of Taxability and demand by the Bank.
A-1-2
MIAM1/4281906.3
•
In the event that the maximum effective federal corporate tax rate (the "Maximum
Corporate Tax Rate") during any period with respect to which interest shall be accruing on this
Note on a tax-exempt basis, changes from the Maximum Corporate Tax Rate then in effect,
which causes a reduction in yield on this Note, the interest rate on this Note that is bearing
interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
,Applicable Rate then in effect by a fraction equal to (1-A divided by 1-B), where A equals the
Maximum Corporate Tax Rate in effect as of the date of adjustment and B equals the Maximum
• Corporate Tax Rate in effect on the date of the original issuance of this Note.
So long as any portion of the principal amount of this Note or interest hereon remains
unpaid (a) if any law, rule, regulation or executive order is enacted or promulgated by any
federal or Florida public body or governmental agency which changes the basis of taxation of
interest on this Note or causes a reduction in yield on this Note (other than by reason of a change
described above) to the Bank, including without limitation the imposition of any excise tax or
surcharge thereon, or (b) if, as result of action by any federal or Florida public body or
governmental agency, any payment is required to be made by, or any federal, Florida state or
Florida local income tax deduction is denied to, the Bank (other than by reason of a change
described above or by reason of any action or failure to act on the part of the Bank), by reason of
• the ownership of this Note, the Borrower shall reimburse the Bank within five (5) days after
receipt by the Borrower of written demand for such payment, and, to the extent permitted by law,
the Borrower agrees to indemnify the Bank against any loss, cost, charge or expense with respect
to any such change. The determination of the after-tax yield calculation shall be_calculated by
the Bank, and such calculation', in the absence of manifest error, shall be binding on the
• Borrower and the Bank.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the
Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable;
and in any such default and acceleration, the Borrower shall also be obligated to pay (but only
from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of
collection and enforcement hereof, including such fees as may be incurred on appeal or incurred
in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
® but without limitation, claims, disputes and proceedings seeking adequate protection or relief
from the automatic stay.
Any amount payable to the Bank hereunder which is not paid when,due shall bear interest
at the Default Rate. For purposes of this Note, "Default Rate"means the higher of(1) the Prime
• Rate plus 4% and (2) the Adjusted One-Month LIBOR Rate plus 4%. "Adjusted One-Month
LIBOR Rate" means the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the
immediately preceding London business day for U.S. dollar deposits with a one month term,
divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar deposits in the
London interbank market with a maturity equal to one month. The Default Rate shall be
• determined as of the day immediately following the date on which any amount payable to the
Bank hereunder is not paid when due.
A-1-3
M1AM1/4281906.3
•
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 a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
• Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder as provided in the Loan Agreement.
All terms, conditions and provisions of Resolution No. 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.
A-1-4
M1AMU4281906.3
•
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
® as of the date hereinafter set forth.
The date of this Promissory Note is 52012.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Matti Herrera Bower
Title: Mayor
A-1-5
MIAMU.4281906.3
•
i
ATTACHMENT A-2
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation-created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of JPMorgan Chase Bank, N.A., 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 0.85%.
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
2014 (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 fluctuating rate of interest for U.S. dollar deposits with a one
month term, as reported on Reuters Screen LIBOR01 page as of 11:00 AM London time on the
second London business day prior to the first date of each Interest Period. If the foregoing rate is
unavailable-for any reason, then the rate shall be determined by the Bank from any other
successor or substitute page of the Moneyline Telerate Service or any other publication .or
interest rate reporting service of recognized standing which provides rate quotations comparable
to those currently provided on such page, as determined by the Bank from time to time for
purposes of providing quotations of interest rates applicable to U.S. dollar deposits in the London
interbank market.
"Interest Period" means (a) the period commencing on the date of the original issuance of
this Note and ending on the day preceding the first Business Day of the following month; and (b)
thereafter, each period commencing on the first Business Day of each month and ending on the
day preceding the first Business Day of the following month.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
whole or in part, on the first Business Day of each month, without prepayment premium or
® penalty.
A-2-1
MIAMI/4281906.3
III•
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 JPMorgan Chase Bank, N.A. 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 oft 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
A-2-2
M LAM L/4281906.3
•
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE .
PAYMENT OF*THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to-time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth. in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder.
® All terms, conditions and provisions of Resolution No. 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 's payable solely from and- is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not'be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
® This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
® manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF,.the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
The date of this Promissory Note is _, 2012.
CITY OF MIAMI BEACH, FLORIDA
By:
Name: Matti Herrera Bower
Title: Mayor
•
A-2-3
MIAMI/4281906.3
•
ATTACHMENT B
1. Authorized Individual(s): Patricia D. Walker, Chief Financial Officer
Georgina P. Echert, Assistant Finance Director
2. Notice Address of Borrower: City of Miami Beach, Florida
® 1700 Convention Center Drive
3`d Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank:. JPMorgan Chase Bank,N.A.
1450 Brickell Avenue
33 d Floor
Miami, Florida 33131
Attention: Ralph Hildevert, Vice President
•
•
•
•
•
MIAMI/4281906.3 B-1
•
ATTACHMENT C
REQUEST FOR ADVANCE
Date:
To: JPMorgan Chase Bank,N.A.
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):
I®
• -$
The above-named Borrower requests an Advance under the Loan Agreement and Promissory
Note identified above in the amount set forth above. The representations and warranties of the
Borrower contained in the Loan Agreement are true and correct as of the date hereof.
® Attached hereto are the showings, if any, required by Section 5.03 of the Loan Agreement,
including the opinion(s) of Bond Counsel required thereunder.
Proceeds of the Advance should be wired as follows:
® CITY OF MIAMI BEACH, FLORIDA
By:
Name:
Title:
MIAMI/4281906.3 C-1
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of October 12,
® 2012 (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 JPMorgan
Chase Bank, N.A., 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
mea gs g
Agreement shall have the following meanings:
• "Advance" means a borrowing of money under the Notes, pursuant to Section 5.03 hereof.
"Agreement" means this Loan Agreement and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
•
"Authorized Individual" means any one of the individuals identified on Attachment B.
"Bond Counsel" means Squire Sanders (US) LLP or such other attorney-at-law or firm of
such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and
political subdivisions thereof and acceptable to the Bank.
• "Budgeted Revenues" means the Non-Ad Valorem Revenues budgeted and appropriated
pursuant to Section 3.06 hereof.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
•
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
•
"Essential Government Services" means the provision of public safety and general
governmental services by the Borrower, the expenditures for which are set forth as the line items
entitled "General Government Expenditures" and "Public Safety Expenditures" as reflected in the
City of Miami Beach Statement of Revenues, Expenditures and Changes in Fund Balances -
® Governmental Funds and as reported in the City's latest Comprehensive Annual Financial Report.
"Event of Default" means an Event of Default specified in Article VI of this Agreement.
• MIAMI/4281906.4
"Loan" means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means, in the aggregate, $50,000,000 principal amount.
"Non-Ad Valorem Revenues" means in any fiscal year of the Borrower, all revenues
received by the Borrower in such fiscal year that are not derived from ad valorem taxation.
"Notes" means the Borrower's Promissory Notes in the forms attached hereto as
Attachments A-1 and A-2.
"Notice Address" means,
As to the Borrower: As set forth on Attachment B
As to the Bank: As set forth on Attachment B
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the Notice Address, or such other
• office as the Bank may designate to the Borrower in writing.
"Project"means the capital improvements approved by the Mayor and City Commission of
the Borrower being financed by the Loan.
® "State" means the State of Florida.
"Tax Compliance Certificate" means the Tax Compliance Certificate to be executed and
delivered concurrently with the first Advance, if any, under the Tax-Exempt Note.
"Taxable Note"means the Note attached hereto as Attachment A-2.
"Tax-Exempt Note" means the Note attached hereto as Attachment A-1.
Section 1.02. Titles and Headings. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
® a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and
shall not be considered or given any effect in construing this Agreement or any provision hereof or
in ascertaining intent, if any question of intent should arise.
ARTICLE 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
MIAMI/4281906.4 2
I ®
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
Y
•
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.
Section 2.04. Pending or Threatened Liti ag_tion. 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.
•
® MIAMI/4281906.4 3
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
`l maintain its existence until all amounts due and owing from the Borrower to the Bank under this
Agreement and the Notes have been paid in full.
(e) Records. The Borrower agrees that any and all records of the Borrower with
respect to the Loan and the Project shall be open to inspection by the Bank or its representatives at
® all reasonable times at the offices the Borrower.
(f) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of
any actual or potential contingent liabilities or pending or threatened litigation of any amount that
could reasonably be expected to have a material and adverse effect upon the financial condition of
the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the
® Notes.
(g) Insurance. The Borrower shall maintain such liability, casualty and other insurance
as is reasonable and prudent for similarly situated governmental entities of the State of Florida.
® (h) Compliance with Laws. The Borrower shall comply with all applicable federal,
state and local laws and regulatory requirements, the violation of which could reasonably be
expected to have a material and adverse effect upon the financial condition of the Borrower or
upon the ability of the Borrower to perform its obligation hereunder and under the Notes.
(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.
MIAMI/4281906.4 4
(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, 2012 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, 2011 within 210 days after the end thereof.
(k) Proceeds of Bonds. Proceeds of bonds issued by the Borrower in connection with
any portion of the Project shall first be applied to repay the Advance(s) relating to such portion of
the Project.
Section 3.02. Additional Debt 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, 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 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, if any
indebtedness bears a rate of interest that is not fixed for the entire term of the debt (excluding any
MIAMI/4281906.4 5
•
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 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.
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
$5,284.00, said amount to be due and payable upon the execution and delivery of this Agreement.
• In addition, the Borrower will pay the Bank a fee (the "Unused Facility Fee") equal to
0.20% of the unfunded amount of the Loan, calculated on the basis of a 360 day year and the
actual number of days elapsed, payable in arrears as of last day of each March, June, September
and December, commencing December 31, 2012, and on the date on which this Agreement
terminates, subject in each case to a fifteen (15) day grace period.
•
Section 3.04. Registration and Exchange of Notes; Persons Treated as Banks. The Notes
are owned by the Bank. The ownership of the Notes may only be transferred, and the Borrower
will transfer the ownership of the Notes, upon written request of the Bank specifying the name,
address and taxpayer identification number of the transferee, and the Borrower will keep a record
® setting forth the identification of the owner of the Notes. The Bank will not transfer the Notes
except in compliance with all applicable laws and the Bank may only transfer both Notes to the
same transferee and at the same time.
Section 3.05. Notes Mutilated, Destroyed, Stolen or Lost. In case a Note shall become
mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new Note having
® the same terms as the Note mutilated, destroyed, stolen or lost, in exchange and in substitution for
such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and
upon the Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably
satisfactory to the Borrower and paying such expenses as the Borrower may incur.
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
MIAMI/4281906.4 6
I •
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.
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.
• MIAMI/4281906.4 7
I •
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.
® 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;
MIAMI/4281906.4 8
(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
u to the Loan Amount to be evidenced b the Notes to provide funds to finance the Costs of the
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. Each Advance shall be for at least $250,000, 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 may be re-advanced,
provided that after cumulative Advances of the Tax-Exempt Note equal $49,000,000, 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 $49,000,000, the interest on the Tax-Exempt Note will remain excluded
from gross income for federal income tax purposes and the Note is not an item of tax preference
under Section 57 of the Code.
(b) The Bank shall not be obligated to Advance any funds unless (i) no Event of
Default has occurred and is continuing, and (ii) the Borrower delivers to the Bank a written
request for such Advance in the form of Attachment C, executed by an Authorized Individual,
indicating the amount of the Advance requested, the date on which such Advance is to be made
(which shall be not less than two Business Days after the date such request is received by the
Bank) and stating that the representations and warranties of the Borrower contained herein are true
and correct as of such date. The Bank will not fund any Advance unless the conditions set forth
in (i) and (ii) above are satisfied, provided that the Bank may in its sole discretion waive any or all
such conditions.
(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
• M1AM1/4281906.4 9
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.
ARTICLE VI
•
EVENTS OF DEFAULT
Section 6.01. General. An"Event of Default" shall be deemed to have occurred under this
Agreement if.
® (a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or 0) or Section
3.02; or
•
(c) The Borrower shall default m the performance of or compliance with an 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
0 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
• MIAMI/4281906.4 10
(g) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
• States of America or the State; or
(h) The Borrower shall default in the due and punctual payment or performance of
covenants related to any other obligation for the payment of money to the Bank or any other
subsidiary or affiliate of any bank holding company of which the Bank is a subsidiary; or
• (i) The Borrower shall default in the due and punctual payment of any Competing
Debt or an event of default exists with respect to any Competing Debt which results in the
acceleration of the time for payment of such debt or entitles the holder of such Competing Debt to
accelerate the time for payment of such debt.
•
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Notes, immediately and without notice, upon the
occurrence of any Event of Default, the Bank may declare all obligations of the Borrower under
this Agreement and the 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.
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. 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
• MIAMI/4281906.4 11
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. Attorney. 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.
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.
• MIAMI/4281906.4 12
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.
e: Matti H era ower
Title: Mayor
Attest
By:
Name: kafael E. Granado
Title: City Clerk
JPMORGAN CHASE BANK,N.A.
•
By:
Name: Ralph Hildevert
Title: Authorized Officer
•
•
•
• MIAMI/4281906.4 13
•
ATTACHMENT A-1
TAX-EXEMPT PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
® "Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of JPMorgan Chase Bank, N.A., or registered assigns (hereinafter, the
"Bank"), the principal sum of $49,000,000 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 74% of the sum of the LIBOR Rate (hereinafter defined) plus
0.85%.
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 April 30, 2014
(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
MIAMI/4281906.4
(4) "LIBOR Rate" means the fluctuating rate of interest for U.S. dollar
deposits with a one month term, as reported on Reuters Screen LIBOR01 page as of
® 11:00 AM London time on the second London business day prior to the first date of each
Interest Period. If the foregoing rate is unavailable for any reason, then the rate shall be
determined by the Bank from any other successor or substitute page of the Moneyline
Telerate Service or any other publication or interest rate reporting service of recognized
standing which provides rate quotations comparable to those currently provided on such
• page, as determined by the Bank from time to time for purposes of providing quotations
of interest rates applicable to U.S. dollar deposits in the London interbank market.
(5) "Prime Rate" means a rate of interest equal to the announced prime
commercial lending rate per annum of JPMorgan Chase Bank, N.A. 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.
(6) "Taxable Rate" means a rate equal to the Prime Rate times that percentage
which after the Determination of Taxability will result in the same federal after-tax yield
to the Bank as before said Determination of Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on this
Note shall be increased to the Taxable Rate, effective retroactively to the date on which the
interest payable on this Note is includable for federal income tax purposes in the gross income of
the Bank. In addition, the Bank shall be paid an amount equal to any additions to tax, interest
and penalties, and any arrears in interest that are required to be paid to the United States of
America by the Bank as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest shall be paid by the Borrower within sixty (60)
days following the Determination of Taxability and demand by the Bank.
In the alternative, in the event that interest on this Note during any period becomes
partially taxable as a result of a Determination of Taxability applicable to less than all of this
Note, then the interest rate on this Note shall be increased during such period by an amount equal
• to: (A-B) x C where:
(A) "A" equals the Taxable Rate (expressed as a percentage);
(B) "B" equals the interest rate on this Note (expressed as a percentage); and
(C) "C" equals the portion of this Note the interest on which has become
taxable as the result of such tax change (expressed as a decimal).
In addition, the Bank shall be paid an amount equal to any additions to tax, interest and penalties,
and any arrears in interest that are required to be paid to the United States of America by the
• Bank as a result of such Determination of Taxability. All such additional interest, additions to
tax, penalties and interest shall be paid by the Borrower within sixty (60) days following the
Determination of Taxability and demand by the Bank.
A-1-2
MIAMI/4281906.4
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.
Agreement)Upon the occurrence of an Event of Default (as defined in the Loa n 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
,r at the Default Rate. For purposes of this Note, "Default Rate" means the higher of(1) the Prime
Rate plus 4% and (2) the Adjusted One-Month LIBOR Rate plus 4%. "Adjusted One-Month
LIBOR Rate" means the sum of 2.50% plus the quotient of (a) the LIBOR Rate on the
immediately preceding London business day for U.S. dollar deposits with a one month term,
divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar deposits in the
London interbank market with a maturity equal to one month. The Default Rate shall be
determined as of the day immediately following the date on which any amount payable to the
Bank hereunder is not paid when due.
A-1-3
MIAMI/4281906.4
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 a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
® Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder as provided in the Loan Agreement.
r All terms, conditions and provisions of Resolution No. 2012-28028 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.
A-1-4
MIAMI/4281906.4
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
• as of the date hereinafter set forth.
The date of this Promissory Note is October 12, 2012.
CITY OF MIAMI BEACH, FLORIDA
•
By:
Name: Matti Herrera Bower
• Title: Mayor
•
•
•
•
A-1-5
MIAMI/4281906.4
•
ATTACHMENT A-2
•
TAXABLE PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the
"Borrower"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of JPMorgan Chase Bank, N.A., 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 0.85%.
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 April 30, 2014
(the "Maturity Date").
All payments b the Borrower pursuant to this Note shall apply first to accrued interest,
pY Y p
then to other charges due the Bank, and the balance thereof shall apply to the principal sum due.
"LIBOR Rate" means the fluctuating rate of interest for U.S. dollar deposits with a one
month term, as reported on Reuters Screen LIBOR01 page as of 11:00 AM London time on the
second London business day prior to the first date of each Interest Period. If the foregoing rate is
unavailable for any reason, then the rate shall be determined by the Bank from any other
successor or substitute page of the Moneyline Telerate Service or any other publication or
• interest rate reporting service of recognized standing which provides rate quotations comparable
to those currently provided on such page, as determined by the Bank from time to time for
purposes of providing quotations of interest rates applicable to U.S. dollar deposits in the London
interbank market.
• "Interest Period" means (a) the period commencing on the date of the original issuance of
this Note and ending on the day preceding the first Business Day of the following month; and (b)
thereafter, each period commencing on the first Business Day of each month and ending on the
day preceding the first Business Day of the following month.
The principal of and interest on this Note may be prepaid at the option of the Borrower in
• whole or in part, on the first Business Day of each month, without prepayment premium or
penalty.
A-2-1
• MIAMI/4281906.4
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 JPMorgan Chase Bank, N.A. 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 immediate) preceding London business day for U.S. dollar deposits with a
immediately g Y p
one month term, divided by (b) one minus the "Reserve Requirement" applicable to U.S. dollar
• deposits in the London interbank market with a maturity equal to one month. The Default Rate
shall be determined as of the day immediately following the date on which any amount payable
to the Bank hereunder is not paid when due.
Anything provided herein or in this Note to the contrary notwithstanding, in no event
shall this Note bear interest in excess of the Maximum Rate (hereinafter defined). In the event
the interest rate exceeds the Maximum Rate, this Note shall continue to bear interest at the
Maximum Rate regardless of the reduction of the interest rate to a rate less than the Maximum
Rate until such time as interest shall accrue on this Note in an amount (the "Excess Interest") that
would have accrued hereon had the interest rate not been limited by the Maximum Rate. Upon
the Maturity Date, in consideration for the limitation of the rate of interest otherwise payable on
• this Note, the Borrower shall pay to the Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excess Interest.
"Maximum Rate" means the maximum rate of interest permitted for non-rated
governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from
• time to time.
The Borrower to the extent permitted by law hereby waives presentment, demand, protest
and notice of dishonor.
THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT
® CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE
PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR
A-2-2
MIAMI/4281906.4
PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR
ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE
® PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENTAL HERETO.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith
between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and
® conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request
Advances from time to time from the Bank hereunder, provided that the outstanding principal
amount at any time under this Note shall not exceed the principal sum set forth in the first
paragraph hereof, and provided that amounts borrowed and repaid may be re-borrowed
hereunder.
• All terms, conditions and provisions of Resolution No. 2012-28028 adopted by the
Mayor and City Commission of the Borrower and the Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
® This Note is payable solely from and is secured by a lien upon and pledge of the
"Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision
of this Note, the Borrower is not and shall not be liable for the payment of the principal of and
interest on this Note or otherwise monetarily liable in connection herewith from any property
other than the Budgeted Revenues.
• This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
• manner as required by law, and that the issuance of this Note is in full compliance with and does
not exceed or violate any constitutional or statutory limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name
as of the date hereinafter set forth.
•
The date of this Promissory Note is October 12, 2012.
CITY OF MIAMI BEACH, FLORIDA
•
By:
Name: Matti Herrera Bower
Title: Mayor
•
A-2-3
• MIAMI/4281906.4
•
ATTACHMENT B
1. Authorized Individual(s): Patricia D. Walker, Chief Financial Officer
Georgina P. Echert, Assistant Finance Director
2. Notice Address of Borrower: City of Miami Beach, Florida
® 1700 Convention Center Drive
3rd Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
® 3. Notice Address of Bank: JPMorgan Chase Bank,N.A.
1450 Brickell Avenue
33rd Floor
Miami, Florida 33131
Attention: Ralph Hildevert, Vice President
•
•
•
•
•
•
MIAMI/4281906.4 B-1
ATTACHMENT C
• REQUEST FOR ADVANCE
Date:
® To: JPMorgan Chase Bank,N.A.
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 Loan Agreement dated as of October
129 2012 (the "Loan Agreement") and the Promissory Note identified above in the amount set
forth above. The representations and warranties of the Borrower contained in the Loan
Agreement are true and correct as of the date hereof.
Attached hereto are the showings, if any, required by Section 5.03 of the Loan Agreement,
including the opinion(s) of Bond Counsel required thereunder.
• Proceeds of the Advance should be wired as follows:
•
CITY OF MIAMI BEACH, FLORIDA
By:
Name:
• Title:
® MIAMI/4281906.4 C-1
•
TAX-EXEMPT PROMISSORY NOTE
•
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the "Borrower"), a
municipal corporation created and existing pursuant to the Constitution and the laws of the State of
Florida, for value received, promises to pay from the sources hereinafter provided, to the order of
JPMorgan Chase Bank, N.A., or registered assigns (hereinafter, the "Bank"), the principal sum of
$49,000,000 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 Applic4ble Rate (hereinafter
defined) (subject to adjustment as hereinafter provided) based upon a year of i66-days for the actual
number of days elapsed. j^---- ---- �`,
.. ......_....
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 j _ he Bank �,y designate to the
Borrower.
The Applicable Rate is 74% of the sum of the LIBOR Rate�(�,ereinaker defined)plus 0.85%.
A
The Borrower shall pay the Bank interest hereo 1. ,4br arrears, the first Business Day (as
• defined in the Loan Agreement hereinafter defined) of eai 6nth,and the entire unpaid principal
balance hereof, together with all accrued and unpaid interest.,`hereon, on April 30, 2014 (the
"Maturity Date"). = rj
��
All payments by the Borrower pursua t\to this Note shall apply first to accrued interest, then
to other charges due the Bank, and the balance� lereof shahapply to the principal sum due.
•
Al
As used in this Note,
(1) "Code" means,,.the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether. \temporal, proposed or final, promulgated thereunder or
applicable thereto;
• (2) "De Armin t of Taxability" means interest on this Note is determined or
declared b the to `\ J Rev `ue Service or a court of competent jurisdiction to be
includable in the-gxoss inc /of the Bank for federal income tax purposes under the Code,
which deter6finai*6 or declaration has become final and not subject to further contest or
appeal under p 4table law.
• �.
"Interest Period" means (a) the period commencing on the date of the original
issu4nce._-of"-this N&e and ending on the day preceding the first Business Day of the
foilow ng'mon l ; and (b) thereafter, each period commencing on the first Business Day of
each moeh._a 'ending on the day preceding the first Business Day of the following month.
(4) "LIBOR Rate" means the fluctuating rate of interest for U.S. dollar deposits
with a one month term, as reported on Reuters Screen LIBOROI page as of 11:00 AM
London time on the second London business day prior to the first date of each Interest
Period. If the foregoing rate is unavailable for any reason, then the rate shall be determined
by the Bank from any other successor or substitute page of the Moneyline Telerate Service
or any other publication or interest rate reporting service of recognized standing which
provides rate quotations comparable to those currently provided on such page, as determined
• MIAMI/4282790.1
by the Bank from time to time for purposes of providing quotations of interest rates
applicable to U.S. dollar deposits in the London interbank market.
(5) "Prime Rate" means a rate of interest equal to the announced prime
commercial lending rate per annum of JPMorgan Chase Bank, N.A. 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 annou d change thereof.
(6) "Taxable Rate" means a rate equal to the Prime, Rate�ta 5 that percentage
.�.`"- .�?w:�.,^r`x s7,i�.,..' ,nom w
which after the Determination of Taxability will result in the a `edera afer-tax yield to
the Bank as before said Determination of Taxability.
In the event a Determination of Taxability shall hay .occur N t e ra e of interest on this
fir;;�, ��
Note shall be increased to the Taxable Rate, effective retroactivl6 the d ;eon which the interest
on this Note is includable for federal income to _ oses if�v>> Toss income of the Bank.
payable ?? 'O og
In addition, the Bank shall be paid an amount equal to a dditions tax, interest and penalties,
® and any arrears in interest that are required to be paid to t`' ed States of America by the Bank
as a result of such Determination of Taxability� suc ac tonal interest, additions to tax,
. .
penalties and interest shall be paid by the ot in sixty (60) days following the
Determination of Taxability and demand by ta± Bank.
AgE
In the alternative, in the event that intet n this to during any period becomes partially
! taxable as a result of a Determination abil yi� licable to less than all of this Note, then the
interest rate on this Note shall be in F�
eased during Bch period by an amount equal to: (A-B) x C
where:
j La.
(A) "A" equ the ` ale to (expressed as a percentage);
,.�- Pis:gg..;.,
! B "B" uals din 11
rest rate on this Note (expressed as a percentage); and
( ) ( p
��
(C) "„ ' equals ye »rtion of this Note the interest on which has become taxable
as the result suc ; tax cha ae (expressed as a decimal).
:0 ry: ( p
In addition, the Bank'°s IJ I be paid an amount equal to any additions to tax, interest and penalties,
and any arre interes are required to be paid to the United States of America by the Bank
as a resultof su. L�eterriination of Taxability. All such additional interest additions to tax
y., Yy > >
”' `es I shall be aid b the Borrower within sixty 60 days following the
penalties ar} ��;t v p y y ( ) y g
V
Determination okTax,ability and demand by the Bank.
�6IF
® In the event that tie 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.
® MIAMI/4282790.1 2
•
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 N*,' the Borrower shall
reimburse the Bank within five (5) days after receipt by the Borrower of wri66e ,demand for such
payment, and, to the extent permitted by law, the Borrower agrees t indemnif t Bank against
any loss, cost, charge or expense with respect to any such change. theetermmation of the after-
tax field calculation shall be calculated b the Bank, and su �calcula n, n the absence of
Y y Deb,` �,
• manifest error, shall be binding on the Borrower and the Bank.///
Gr
The principal of and interest on this Note may be prepaid at'-tk' option of the Borrower in whole
or in part, on the first Business Day of each month, withonf prepayment premium or penalty.
Upon the occurrence of an Event of Default (as defineO\ij the Loah h Agreement) then the Bank
• may declare the entire debt then remaining unpaid hereunder in �gdiately due and payable; and in
any such default and acceleration, the Borrowerfis ll--als.o`be o�tigated to pay (but only from the
Budgeted Revenues) as part of the indebtedness ev rived--bytithis Note, all costs of collection and
enforcement hereof, including such fees as r 'ay.�be incut+ed An appeal or incurred in any proceeding
under bankruptcy laws as they now or hereaftd��xist, incJu�ding specifically but without limitation,
• claims, disputes and proceedings seeki g.W te- rote
tion or relief from the automatic stay.
1
Any amount payable to the Bnk hereunder which is not paid when due shall bear interest at
the Default Rate. For purposes of thikNote, "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� °Ro plus the-quotient of (a) the LIBOR Rate on the immediately
• preceding London business''day f `,J. . dollar deposits with a one month term, divided by (b) one
minus the "Reserve Requ rerx�ent�appli�able to U.S. dollar deposits in the London interbank market
with a maturity equal.-to one, ion The Default Rate shall be determined as of the day
immediately follov i g fhet date on;which any amount payable to the Bank hereunder is not paid
when due. l�\ ,✓r
Any ifflg provide N\ f/ein or in this Note to the contrary notwithstanding, in no event shall
this Note bear Jntetest� in excess of the Maximum Rate (hereinafter defined). In the event the
interest rate-ex�ceeds the Maximum Rate, this Note shall continue to bear interest at the Maximum
Rate regardless 4f thereduction 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.
• MIAMI/4282790.1 3
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 OSTS INCIDENTAL
HERETO.
This Note is issued in conjunction with a Loan Agreemenk dated--of-eves date herewith
between the Borrower and the Bank (the "Loan Agreement") and is suet to all the terms and
• conditions of the Loan Agreement. Pursuant to the Loan Agrm�,nt, the 30 ower may request
Advances from time to time from the Bank hereunder, p prided ghat the 6utstanding principal
P , ,,
his Note shall not exceed the rind als set f�i` h in the first paragraph
amount at any time under t p p
hereof, and provided that amounts borrowed and repaid,&4y be re-- oro�ied hereunder as provided
in the Loan Agreement.
• All terms, conditions and provisions of Resolutiori,�No`, �-28028 adopted by the Mayor
errnt are b this reference thereto
and City Commission of the Borrower and t1�� r-1�g� y
incorporated herein as a part of this Note. Terms use herein-in capitalized form and not otherwise
defined herein shall have the meanings ascrib�ddhereto i *4e Loan Agreement.
\ "� 'V
• This Note is payable solely from*and is seor d by a lien upon and pledge of the "Budgeted
Revenues" as described in the Loan fA'greement. Nofiyvithstanding 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 connetion herewith from any property other than the
Budgeted Revenues. ....... -�`
• This Note may be �Xchang or,transferred but only as provided in the Loan Agreement.
�-', it
It is hereby certified;`* kited an�,/d eclared that all acts, conditions and prerequisites required
to exist, happen and q''performe�,,pxe'cedent 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, iiridf t ahe issuance of this Note is in full compliance with and does not exceed or
• violate any co)astitutiona�\oT statutory limitation.
IN VITNE.SS;WH\#kEOF, the Borrower has caused this Note to be executed in its name as
of the date `drei er et forth.
The date th /Promissory Note is October 12, 2012.
_.f
•
CITY OF MIAMI BEACH, FLORIDA
• By:
Nam : Matti Herrera Bower
Title: Mayor
• MIAMI/4282790.1 4
•
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 JPMorgan Chase Bank, N.A., or registered assigns (hereinafter, the
® "Bank"), the principal sum of $1,000,000 or such lesser amount as all be outstanding
hereunder, together with interest on the principal balance outstanding at tv to per annum equal
to the Applicable Rate (hereinafter defined) based upon a year of 360 days for actual number
of days elapsed. `` %�
• Principal of and interest on this Note are payable i mmedi " available funds
constituting lawful money of the United States of America at s place as the Bank may
designate to the Borrower. `
The Applicable Rate is the sum of the LIBOR (herein fined) plus 0.85%.
The Borrower shall pay the Bank interest hereon 'n ; ears on the first Business Day (as
• defined in the Loan Agreement hereinafter defined) o ' ea onth, and the entire unpaid
principal balance hereof, together with all accr "y°°`cl 'd i erest hereon, on April 30, 2014
(the"Maturity Date"). F
All payments by the Borrower pu sto this e shall apply first to accrued interest,
then to other charges due the Bank, andvtbe bala hereof shall apply to the principal sum due.
• '0
"LIBOR Rate" means the ctuating rate ointerest for U.S. dollar deposits with a one
month term, as reported on Reuter:`:, Green LIAORO1 page as of 11:00 AM London time on the
second London business day prior t :,, e first Me of each Interest Period. If the foregoing rate is
unavailable for any reason " en th at 4 all be determined by the Bank from any other
® successor or substitute ps' e ofd he Moneyline Telerate Service or any other publication or
'" ` �reco 'zed standing which provides rate quotations comparable
interest rate reporting s��� e�, g y g p q p
to those currently provided 1% uc},.£)age, as determined by the Bank from time to time for
purposes of provid; �� 3 tations nterest rates a pp licable to U.S. dollar deposits in the London
interbank marke rg
® "Inter st Periotir;;., eans (a) the period commencing on the date of the original issuance of
this Note d e ing on Y=s,V"`day preceding the first Business Day of the following month; and (b)
thereafterl,each M et�"�5d commencing on the first Business Day of each month and ending on the
day precede e fir #Business Day of the following month.
,M
® The prince al 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
• MIAMI/4282791.1
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 JPMorgan Chase Bank, N.A. The Prime Rate is e efcrence rate for the
information and use of the Bank in establishing the actual rate to be charged�tp\the Borrower.
The Prime Rate is purely discretionary and is not necessarily the to bar.b esf te,\_charged any
customer. The Prime Rate shall be adjusted from time to time without,otice or demand as of
the effective date of any announced change thereof.
"Adjusted One-Month LIBOR Rate" means the sum�i<f 2.50,x`0=-plug the quotient of(a) the
LIBOR Rate on the immediately preceding London busipess dany 'or U Sy)dollar deposits with a
one month term, divided by (b) one minus the "Reserv�,,'Require�nt'_',,4pplicable to U.S. dollar
deposits in the London interbank market with a maturity`equal to off`month. The Default Rate
shall be determined as of the day immediately following'°�ied to_pn which any amount payable
to the Bank hereunder is not paid when due. ``
Anything provided herein or in this,Note tort the contrary notwithstanding, in no event
shall this Note bear interest in excess of fl e laimum bate (hereinafter defined). In the event
the interest rate exceeds the Maximuii4,Rate, his`,Note shall continue to bear interest at the
Maximum Rate regardless of the reuction of the Merest rate to a rate less than the Maximum
Rate until such time as interest shah<accrue on this Note in an amount(the "Excess Interest") that
would have accrued hereon had the,interest rat,6 not been limited by the Maximum Rate. Upon
the Maturity Date, in conside�Ataon thr the.-lira/itation of the rate of interest otherwise payable on
this Note, the Borrower sll payto the-Bank a fee equal to the amount of the unpaid amount of
all unpaid deferred Excesjnter t:''
"Maximum/, ate' means& maximum rate of interest permitted for non-rated
governmental bo 'cs as use forth iSection 215.84(3), Florida Statutes, as may be amended from
time to time.
Th:�BorYower to the extent permitted by law hereby waives presentment, demand, protest
and notic�',o_f_dishbi.6� . `k
t
THIS NOTE),JAND THE INTEREST HEREON DOES NOT AND SHALL NOT
CONSTITUTE"� 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
•
MIAMI/4282791.1 2
•
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. 2012-28028 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 c -italized 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 li„ c - hedge of the
"Budgeted Revenues" as described in the Loan Agreement. Notwi sta 'ng any other provision
• of this Note, the Borrower is not and shall not be liable for th yment the principal of and
interest on this Note or otherwise monetarily liable in co tioMberewith om any property
other than the Budgeted Revenues. `
�E uh
This Note may be exchanged or transferred but ; ly as pro e n the Loan Agreement.
It is hereby certified, recited and declared th = Tacts, nditions and prerequisites
required to exist, happen and be performed precedent t a execution, delivery and the
issuance of this Note do exist, have happened �n-,0 performed m due time, form and
manner as required by law, and that the issuance o kthis No# is in full compliance with and does
not exceed or violate any constitutional o�gj- tory lir i�rs'ed' n.
3
IN WITNESS WHEREOF thetBorrow' ,as ca this Note to be executed in its name
as of the date hereinafter set forth. 0 'w
The date of this Promissory:,, ote is Oct;�ber 12, 2012.
• CITY OF MIAMI BEACH, FLORIDA
n.�. "
7
1J Fty: Na e: Matti errera Bower
• y Title: Mayor
MIAMI/4282791.1 3
•
CLOSING CERTIFICATE OF THE CITY
•
We, Matti Herrera Bower, Mayor of the City of Miami Beach, Florida (the "City"), and
Rafael E. Granado, City Clerk of the City, DO HEREBY CERTIFY as follows:
(a) All terms used in capitalized form and not defined herein have the meaning
assigned to such terms in the Loan Agreement, dated as of October 12, 2012 (the "Loan
Agreement"), between the City and JPMorgan Chase Bank,N.A. (the "Bank").
(b) The representations of the City contained or incorporated by reference in Article
II and Section 4.02 of the Loan Agreement are true and correct in all material respects.
•
(c) No Event of Default exists as of the date hereof under the Loan Agreement.
(d) The persons named below are, on the date hereof, the duly qualified officers of
the City and the signatures appearing at the end of this certificate are the genuine signatures of
• said officers:
Title Name
Mayor Matti Herrera Bower
City Clerk Rafael E. Granado
•
(e) The City has duly executed and delivered to the Bank the Loan Agreement and its
Tax-Exempt Promissory Note and its Taxable Promissory Note, each dated October 12, 2012.
(f) The interest rate on the Tax-Exempt Promissory Note does not exceed the
• maximum rate permitted pursuant to Section 215.84, Florida Statutes. The interest rate on the
Taxable Promissory Note does not exceed the maximum rate permitted pursuant to Section
159.825, Florida Statutes. In making these determinations, the City has:
(i) in accordance with Section 215.84, Florida Statutes, calculated the interest
rate on the Tax-Exempt Promissory Note based on the interest rate such Note would bear
• if there had been an advance thereunder on the date hereof(1.01%), which interest rate is
less than The Bond Buyer "20 Bond Index" published immediately preceding October 1,
2012 plus 300 basis points (6.67%);
(ii) in accordance with Section 159.825, Florida Statutes, calculated the
interest rate on the Taxable Promissory Note based on the interest rate such Note would
bear if there had been an advance thereunder on the date hereof(1.06%), which interest
rate is less than 30-year Treasury Bond yield published in The Bond Buyer immediately
preceding October 1, 2012 plus 500 basis points (7.82%).
MIAMI/4282783.I
I
•
IN WITNESS WHEREOF, we have hereunto set our hands this 12th day of October,
2012.
CITY OF MIAMI BEACH, FLORIDA
• By:
Matti Herrera Bower
Mayor
�3 F
By:
IV
INCORP ORATED.' * Rafael E. Granado
City Clerk
Cb
•
•
r
• MIAMI/4282783.1 2
•
CLOSING AND DISCLOSURE CERTIFICATE OF THE BANK
® In connection with the Loan Agreement dated as of October 12, 2012 (the "Loan
Agreement") between City of Miami Beach, Florida (the "City") and JPMorgan Chase Bank,
N.A. (the "Bank") and the loan described in the Loan Agreement (the "Loan"), the Bank
represents and certifies that:
• (a) The Loan Agreement has been duly authorized, executed and delivered by the
Bank, and assuming the due authorization, execution and delivery by the City, constitutes a legal,
valid and binding agreement of the Bank, enforceable in accordance with its terms, except to the
extent the enforceability thereof may.be limited by (i) bankruptcy, insolvency or other laws
affecting creditors' rights generally and (ii) general principles of equity.
•
(b) The following named individual is a duly elected incumbent officer of the Bank
and the signature set opposite his title and name is his signature.
Title Name Signature_
•
Authorized Officer Ralph Hildevert '
(c) The nature and estimated amounts of expenses to be incurred by the Bank in
connection with the Loan are legal fees of$5,284.00 (to be paid by the City).
•
(d) There were no "finders," as defined in Section 218.386, Florida Statutes, as
amended, in connection with the Loan.
(e) No management fee will be charged by the Bank.
•
(f) No fee, bonus or other compensation will be paid by the Bank in connection with
the making of the Loan to any person not regularly employed or retained by the Bank.
(g) The name and address of the Bank is:
JPMorgan Chase Bank,N.A.
1450 Brickell Avenue
33rd Floor
Miami, Florida 33131
Attention: Ralph Hildevert, Vice President
•
(h) The City is proposing to borrow not exceeding $50,000,000 for the purpose of
paying Costs of the Project (as defined in the Loan Agreement). The source of funds for
repayment of the Loan is Non-Ad Valorem Revenues (as defined in the Loan Agreement) of the
City budgeted and appropriated for the that purpose. The Loan is required to be repaid by April
• 303 2014. 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 $50,000,000, plus the amount of interest
MIAMI/4282784.1
accrued on the amount of the Loan, not being available for use by the City other than for the
repayment of the Loan.
® (i) Without modifying in any way the rights and obligations of the Bank and the City
pursuant to the Loan Agreement and the Notes (as defined in the Loan Agreement), the Bank (i)
is sufficiently knowledgeable and experienced in financial and business matters, including the
purchase and ownership of municipal and other tax-exempt obligations, to be able to determine
what investigation of the business and financial affairs of the City is necessary in order to
evaluate the investment risks associated with the making of the Loan; (ii) has been offered copies
of or full access to all records, reports, financial statements and other information concerning the
business and financial affairs of the City which the Bank deemed to be significant in making its
investment decision, and which were requested by the Bank in connection with the Loan; (iii)
has made such investigation of the business and financial affairs of the City as the Bank deemed
® necessary in making its investment decision in connection with the Loan, and acknowledges that
no official statement, placement memorandum, or other disclosure document has been prepared
and is being delivered in connection with the Loan; and (iv) is making the Loan solely for its
own account and not on behalf of others, and with no present intent to resell or otherwise
distribute all or any part of or interest in the Loan.
Dated: October 12, 2012. JPMORGAN CHASE BANK,N.A.
•
By:
stin K.1fack
Authorized Officer
•
•
•
MLWI/4282784.1 2
Bond Finance - Local Bond Monitoring: Notice of Sale Page 1 of 1
•
STATE OF FLORIDA - DIVISION OF BOND FINANCE LOCAL BOND MONITORING
.................._..._. :.._._._.._.........._._....
Home Account Logout
_._....__...._..._...._..__... ..._._..._.__...._...._..............____._......_..._.....__..._..............__._._................._._._...__....._......_.__...__..........____.._.........._....._.._...._.._.....................m...............___._.__............__.._ ___ __.M_._ ._.__ ._____.____._ .__ _____.-_._.__
Notice of Sale Status
Notice of Sale submission successful.
Submit Date: 10/12/2012
Bond Issue City of Miami Beach, Florida $49,000,000 Tax-Exempt Promissory Note Payable to JPMorgan Chase Bank,
Name: N.A., and $1,000,000 Taxable Promissory Note Payable to JPMorgan Chase Bank, N.A.
Sale Date: 10/12/2012
Closing 10/12/2012
Date:
® Print this page
I ®
•
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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)
city Miami Beach
State FL
® Zip 33139
COUNTIES)IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION
Miami-Dade
TYPE OF ISSUER
City
• IS THE ISSUER A COMMUNITY DEVELOPMENT DISTRICT?
ISSUE NAME AMOUNT INTEREST YIELD
CALCULATION
Tax-Exempt Promissory Note
• Payable to JPMorgan Chase $49,000,000.00 VARI
Bank, N.A.
Taxable Promissory Note
Payable to JPMorgan Chase $1,000,000.00 VARI
Bank, N.A.
• AMOUNT AUTHORIZED
$50,000,000.00
DATED DATE(MM/DD/VYYY)
10/12/2012
SALE DATE(MM/DD/YYYY)
®
10/12/2012
DELIVERY DATE(MM/DD/YYYY)
10/12/2012
LEGAL AUTHORITY FOR ISSUANCE
® Chapter 166, Part II, F.S. and Chapter 159, Part VII, 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 REVENUES(S)PLEDGED
Primary
Other
Secondary
•
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Bond Finance - Local Bond Monitoring: Print Form Page 2 of 5
Other
Non-Ad Valorem Revenues
PURPOSE(S)OF THE ISSUE
Primary
Other
Secondary
Other
® General Capital Projects
IS THIS A REFUNDING ISSUE?
REFUNDED DEBT HAS BEEN
DID THE REFUNDING ISSUE CONTAIN NEW MONEY?
APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY?
TYPE OF SALE
® Negotiated Private Placement
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
PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER
Underwriter JPMorgan Chase Bank, N.A.
Address(1) 1450 Brickell Avenue
® Address(2) 33rd Floor
city Miami
State FL
Zip 33131
® CO-Underwriter None
Address(1)
Address(2)
city
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Bond Finance - Local Bond Monitoring: Print Form Page 3 of 5
i
State -
Zip
PROVIDE THE 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 (US) LLP
Address(1) 200 S. Biscayne Blvd.
Address(2) Suite 4100
city Miami
• State FL
Zip 33131
CO-Bond Counsel None
Address(1)
Address(2)
City
® State -
Zip
Financial Advisor/Consultant RBC Capital Markets, LLC
Address(1) 801 Brickell Ave.
Address(2) Suite 1500
• city Miami
State FL
Zip 33131
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
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 1,Florida Statutes.
HAS ANY FEES 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
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Bond Finance - Local Bond Monitoring: Print Form Page 4 of 5
•
$30,000.00
Total Financial Advisor Fees Paid
$25,000.00
• Other Fees Paid
COMPANY NAME FEE PAID SERVICE PROVIDED OR
FUNCTION SERVED
Edwards Wildman Palmer $5,284.00 Bank's Counsel
LLP
• FILING OF THIS FORM HAS BEEN AUTHORIZED BY THE OFFICIAL OF THE ISSUER IDENTIFIED BELOW
Name
Patricia D. Walker
Title
• Governmental Officer primarily responsible for coordinating
issuance of the bonds
FEES CHARGED BY UNDERWRITER
Management Fee(Per Thousand Par Value)
0
• Private Placement Fee
$0.00
UNDERWRITERS EXPECTED GROSS SPREAD(PER THOUSAND PAR VALUE)
0
FOR ADDITIONAL INFORMATION,THE DIVISION OF BOND FINANCE SHOULD CONTACT:
• Name Pedro Hernandez
Title Associate
Phone 3055777048
Company Squire Sanders (US) LLP
Address(1) 200 S. Biscayne Blvd.
• Address(2) Suite 4100
city Miami
State FL
Zip 33131
® INFORMATION RELATING TO PARTY 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 REQUIRED TO PROVIDE CONTINUING DISCLOSURE INFORMATION IN ACCORDANCE WITH SEC
RULE 15C2-12,DO YOU WANT THE DIVISION OF BOND FINANCE TO REMIND YOU OF YOUR FILING
DEADLINE?
•
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Bond Finance - Local Bond Monitoring: Print Form Page 5 of 5
ON WHAT DATE IS THE CONTINUING DISCLOSURE INFORMATION REQUIRED TO BE FILED?(MM/DD)
PROVIDE THE FOLLOWING INFORMATION REGARDING THE PERSONS)RESPONSIBLE FOR FILING CONTINUING
• DISCLOSURE INFORMATION REQUIREDBY SEC RULE 15C2-12 AND THE CONTINUING DISCLOSURE
AGREEMENT(INCLUDING OTHER OBLIGATED PARTIES,IF APPROPRIATE).
Name
Title
Phone
Company
• Address(1)
Address(2)
City
State -
Zip
Fax
Email
•
•
•
•
s
•
https://bondissue.sbafla.com/print.aspx?print_id=3742 10/12/2012
• �\ Squire Sanders(US)LLP
S Q U I R E�/ 200 South Biscayne Boulevard,Suite 4100
SANDERSMiami,Florida 33131
O+1 305 577 7000
F +1 305 577 7001
Squiresanders.com
I•
October 12, 2012
JPMorgan Chase Bank,N.A.
Miami, Florida
• Re: City of Miami Beach, Florida $49,000,000 Tax-Exempt Promissory Note Payable to
JPMorgan Chase Bank, N.A., and $1,000,000 Taxable Promissory Note Payable to
JPMorgan Chase Bank,N.A.
We have examined the transcript of proceedings(the"Transcript")relating to the issuance
by the City of Miami Beach, Florida (the "City") of its $49,000,000 maximum outstanding
principal amount Tax-Exempt Promissory Note payable to JPMorgan Chase Bank, N.A. (the
"Bank"), and its $1,000,000 maximum outstanding principal amount Taxable Promissory Note
payable to the Bank, each dated the date of this letter(collectively, the "Notes").
The Notes are being issued pursuant to Resolution No. 2012-28028 adopted by the Mayor
and City Commission of the City on September 27, 2012 (the "Resolution"), and a Loan
Agreement dated as of October 12, 2012 (the "Loan Agreement") between the City and the Bank.
The Notes are being issued for the purpose of paying Costs of the Project. Capitalized terms used
herein and not defined have the meanings ascribed to such terms in the Loan Agreement.
• The documents in the Transcript examined include a certified copy of the Resolution and
the Loan Agreement.
Based on this examination, we are of the opinion that, under existing law:
1. The Loan Agreement and the Notes are valid and legally binding special, limited
obligations of the City, enforceable in accordance with their respective terms, subject to
bankruptcy laws and other laws affecting creditors' rights and to the exercise of judicial discretion.
The Notes are payable as to principal and interest solely from and secured by a pledge of the
Budgeted Revenues in the manner and to the extent provided in the Loan Agreement. Neither the
faith and credit nor the ad valorem taxing power of the City, the State of Florida or any political
• subdivision thereof are pledged to the payment of the principal of, or interest on, the Notes.
2. The Notes and the income thereon are exempt from taxation under the laws of the
State of Florida,except estate taxes imposed by Chapter 198,Florida Statutes,as amended,and net
income and franchise taxes imposed by Chapter 220, Florida Statutes.
•
•
MIAMI/4282785.1
•
October 12, 2012
Page 2
•
In rendering the foregoing opinions, we have assumed (i) the accuracy and truthfulness of
all public records and of all certifications, documents and other proceedings examined by us that
have been executed or certified by public officials acting within the scope of their official
capacities and have not verified the accuracy or truthfulness thereof, (ii) the genuineness of the
signatures appearing upon such public records,certifications,documents and proceedings,and(iii)
the due authorization, execution and delivery by and the binding effect upon and enforceability
against the Bank of the Loan Agreement.
This opinion letter is solely for your benefit and may not be relied upon by any other person
without our prior written approval.
Respectfully submitted,
LL P
•
•
•
•
•
•
•
MIAMI/4282785.1
OFFICE OF THE CITY ATTORNEY
64 0/�00 Wr4ah
IF L 0 R I D A
JOSE SMITH Telephone: (305)673-7470
• 7� egg
City Attorney Facsimile: (305) 673-7002
October 12,2012
JP Morgan Chase Bank,N.A.
Miami,Florida
RE: City of Miami Beach, Florida $49,000,000 Tax-Exempt Promissory Note Payable to JPMorgan Chase
Bank,N.A., and $1,000,000 Taxable Promissory Note Payable to JPMorgan Chase Bank,N.A.
Ladies and Gentlemen:
I am the City Attorney of the City of Miami Beach, Florida (the "City") and have served in such
capacity in connection with the issuance by the City of its $49,000,000 maximum outstanding principal amount
Tax-Exempt Promissory Note payable to JPMorgan Chase Bank, N.A. (the "Bank"), and its $1,000,000
maximum outstanding principal amount Taxable Promissory Note payable to the Bank, each dated the date of
this letter(collectively,the"Notes").
The Notes are being issued pursuant to Resolution No. 2012-28028 adopted by the Mayor and City
Commission of the City on September 27, 2012 (the "Resolution"), and a Loan Agreement dated as of October
12, 2012(the"Loan Agreement")between the City and the Bank. The Notes are being issued for the purpose of
paying Costs of the Project. Capitalized terms used herein and not defined have the meanings ascribed to such
terms in the Loan Agreement.
I am of the opinion as of the date hereof and under existing law, as follows:
1. The City is duly created and validly existing as a municipality pursuant to the Constitution and
laws of the State of Florida.
! 2. The Resolution has been duly adopted by the City and constitutes the valid and binding action
of the City.
3. The Loan Agreement and the Notes have been duly executed and delivered by the City. The
Notes and, assuming that the Loan 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.
ry truly o rs,
J'
tCit y ey
mmmi/A A.Convention Center Drive--Fourth Floor-- Miami Beach, Florida 33139