Resolution 2020-31321 •
RESOLUTION NO. 2020-31321
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 $41,000,000
FROM JPMORGAN CHASE BANK, N.A., TO REFUND THE
OUTSTANDING 2010 PARKING BONDS AND THE CHASE
EQUIPMENT LEASE PURCHASE FINANCING; AUTHORIZING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND
PROMISSORY NOTE TO EVIDENCE THE OBLIGATION OF THE CITY
TO REPAY SUCH LOAN; PROVIDING SECURITY FOR THE
REPAYMENT OF THE LOAN; AUTHORIZING THE REFUNDING OF
SUCH OBLIGATIONS TO BE REFUNDED; AND THE EXECUTION AND
DELIVERY OF AN ESCROW DEPOSIT AGREEMENT; APPOINTING
AN ESCROW AGENT; AUTHORIZING THE EXECUTION AND
DELIVERY OF AMENDMENTS TO THE TD BANK LOAN AGREEMENT
AND THE RJ CAPITAL LOAN AGREEMENT; AUTHORIZING OTHER
ACTIONS IN CONNECTION WITH THE LOAN AND THE REFUNDING
PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach, Florida (the "City") has previously issued its
$4,155,000 outstanding principal 'amount of City of Miami Beach, Florida Parking
Revenue Refunding Bonds, Series 2010A, and $27,405,000 outstanding principal
amount of City of Miami Beach, Florida Parking Revenue Bonds, Series 2010B
(collectively, the "Outstanding 2010 Parking Bonds"); and
WHEREAS, the City has also previously entered into an equipment lease
purchase financing with JPMorgan Chase, N.A. f/k/a Chase Equipment Finance, Inc.
pursuant to a Master Lease—Purchase Agreement dated as of May 25, 2010 (the
"Chase Equipment Lease Purchase Financing" and together with the Outstanding 2010
Parking Bonds, the "Obligations to be Refunded"); and
WHEREAS, the City has determined that it is financially beneficial to authorize
the refunding of the Obligations to be Refunded as more particularly described in this
Resolution (the "Refunding Program"); and
WHEREAS, in connection with the Refunding Program, in response to a request
for proposals from the City, JPMorgan Chase Bank, N.A. (the "Bank"), has offered to the
City a loan in an aggregate principal amount not to exceed $41,000,000 (the "Loan");
and
WHEREAS, the City has determined that it is in the best interests of the City to
undertake the Refunding 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 Promissory
Note (the "Note"); 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
Note; and
WHEREAS, in connection with entering into the Loan, the City has determined
that it is necessary to amend (i) that certain Loan Agreement dated as of December 22,
2016 between the City and TD Bank, N.A. ("TD Bank"), and (ii) that certain Loan
Agreement dated as of December 5, 2018 between the City and Raymond James
Capital Funding, Inc. ("RJ Capital"), as more particularly described in Exhibits "C" and
"D" hereto.
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 or the Note shall have the meanings assigned therein,
unless the context affirmatively requires otherwise.
SECTION 2. FINDINGS.
The preambles are incorporated as findings. In addition, it is found, determined
and declared that in accordance with Section 218.385, Florida Statutes, as amended,
undertaking the Refunding Program on a negotiated basis through the Loan is in the
best interest of the City (rather than a sale through competitive bidding) because of (i)
the character of the Loan, (ii) the prevailing market conditions, (iii) the economic
conditions due to COVID-19, and (iv) the recommendations of RBC Capital Markets,
LLC, the City's financial advisor.
SECTION 3. LOAN AUTHORIZED.
The Loan in an aggregate principal amount not to exceed $41,000,000 and an
interest rate not to exceed, except upon a Determination of Taxability or an Event of
Default, 3.50% per annum to undertake the Refunding 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"),
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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 NOTE.
The Loan shall be evidenced by the Note. The Note, in substantially the form
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 Note,
are approved by the City. The City authorizes and directs the Mayor to make and
execute the Note and to issue and deliver the Note 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
Note. Neither the Loan nor the Note shall be a general obligation of the City, or a
pledge of its faith, credit or taxing power within the meaning of any constitutional or
statutory provisions or limitations, but shall be payable solely as provided in the Loan
Agreement and Note. The City shall not be obligated to exercise its taxing power to pay
the principal of the Loan and the Note, the related interest or other payments or costs.
SECTION 7. REFUNDING AUTHORIZED; ESCROW DEPOSIT
AGREEMENT; ESCROW AGENT.
The refunding, defeasance and payment at maturity and redemption, as
applicable, of the Outstanding 2010 Parking Bonds and the refunding and prepayment
in full of the Chase Equipment Lease Purchase Financing are hereby authorized and
approved.
The Outstanding 2010 Parking Bonds shall be paid at maturity and redeemed, as
applicable, as set for in the Escrow Deposit Agreement (the "Escrow Deposit
Agreement") to be executed and delivered by the City and U.S. Bank National
Association, which is hereby appointed escrow agent thereunder (the "Escrow Agent").
The Escrow Deposit Agreement, in substantially the form attached as Exhibit "B" to this
Resolution, 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 Escrow Deposit
Agreement, is approved by the City. The City authorizes and directs the Mayor to
execute and the City Clerk to attest under the seal of the City the Escrow Deposit
Agreement and to deliver the same.
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SECTION 8. AUTHORIZATION OF EXECUTION AND DELIVERY OF
AMENDMENT TO TD BANK LOAN AGREEMENT AND RJ
CAPITAL LOAN AGREEMENT.
The First Amendment to Loan Agreement between the City and TD Bank and the
First Amendment to Loan Agreement between the City and RJ Capital (collectively, the
"Amendments"), in substantially the forms attached as Exhibit "C" and "D" to this
Resolution, respectively, 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.
Amendments, is approved by the City. The City authorizes and directs the Mayor to
execute and the City Clerk to attest under the seal of the City the Amendments and to
deliver the same.
SECTION 9. GENERAL AUTHORITY.
The Mayor, City Manager of the City, Chief Financial Officer, Deputy Finance
Director of the City, City Attorney and other City 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, the Note, the Escrow
Deposit Agreement or the Amendments, or desirable or consistent with the
requirements of this Resolution, the Loan Agreement, the Note, the Escrow Deposit
Agreement or the Amendments, in order to obtain the Loan, accomplish the Refunding
Program and provide for the full, punctual and complete performance of all the terms,
covenants and agreements contained in the Loan Agreement, the Note, the Escrow
Deposit Agreement, the Amendments and this Resolution, including the execution and
delivery of a tax compliance certificate and a Form 8038-G to be filed with the Internal
Revenue Service.
SECTION 10. SEVERABILITY OF INVALID PROVISIONS.
If any one or more of the provisions contained in this Resolution shall be held
contrary to any express provisions of law or contrary to the policy of express law,
though not expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or provisions shall be null
and void and shall be deemed separable from the remaining covenants, agreements or
provisions and shall in no way affect the validity of any of the other provisions of this
Resolution or of the Loan Agreement, the Note, the Escrow Deposit Agreement or the
Amendments.
SECTION 11. 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.
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SECTION 12. EFFECTIVE DATE.
This Resolution shall become effective immediately upon adoption.
PASSED and ADOPTED this a'1 day of July, 2020.
ATTEST:
Dan Gelber, Mayor
- Rafael E. Granado, City Clerk
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EXHIBIT "A"
LOAN AGREEMENT
(including Note)
A-1
010-9089-5027/4/AMERICAS
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of
August , 2020 (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 of the hereinafter defined Note (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:
"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 Patton Boggs (US) LLP or such other attorney-at-
law or firm of such attorneys having expertise in the legal aspects of the issuance of
indebtedness by states and political subdivisions thereof and acceptable to the Bank.
"Budgeted Revenues" means the 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.
"Chase Equipment Lease Purchase Financing" means the equipment lease
purchase financing entered into between the Borrower and Chase Equipment Finance,
Inc. pursuant to the Master Lease-Purchase Agreement dated as of May 25, 2010.
"Default Rate" has the meaning given to such term in the Note.
"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.
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"Event of Default" means an Event of Default specified in Article VI of this
Agreement.
"Governmental Authority" means the government of the United States of America
or any political subdivision thereof or any governmental or quasi-governmental entity,
including any court, department, commission, board, bureau, agency, administration,
central bank, service, district or other instrumentality of any governmental entity or other
entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or
administrative powers or functions of or pertaining to government, or any arbitrator,
mediator or other person with authority to bind a party at law.
"Loan" means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means $ principal amount.
"Maturity Date" means September 1, 2040.
"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.
"Note" means the Promissory Note in the form attached hereto as Attachment A.
"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.
"Refunded Bonds". means the $4,155,000 outstanding principal amount of City of
Miami Beach, Florida Parking Revenue Refunding Bonds, Series 2010A, and
$27,405,000 outstanding principal amount of City of Miami Beach, Florida Parking
Revenue Bonds, Series 2010B.
"Refunding Requirements" means the amount necessary to defease and pay at
maturity and redeem, as applicable, the Refunded Bonds, prepay in full the Chase
Equipment Lease Purchase Financing and pay closing costs of the Loan.
"Resolution" means Resolution No. 2020- adopted by the Mayor and City
Commission of the Borrower on July_, 2020.
"State" means the State of Florida.
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010-9089-1515/3/AMERICAS
"Tax Compliance Certificate" means the Tax Compliance Certificate to be
executed and delivered concurrently with the Note.
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 Note and this Agreement, to secure the Note in the manner contemplated
hereby and to perform and observe all the terms and conditions of the Note and this
Agreement on its part to be performed and observed. The Borrower may lawfully
borrow funds hereunder in order to pay the Refunding Requirements.
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 Note, 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 Note 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
Note. The Note has been duly authorized, executed, issued and delivered to the Bank
and constitutes the legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms and the terms hereof, and is 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 Note or the execution and delivery of or the performance by the
Borrower of its obligations under this Agreement and the Note 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 Note. The making and performing by
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010-9089-1515/3/AMERICAS
the Borrower of this Agreement and the Note 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 Note.
Section 2.04. Pending or Threatened Litigation. There are no actions or
proceedings pending against the Borrower or affecting the Borrower or, to the
knowledge of the Borrower, threatened, which, either in any case or in the aggregate,
might result in any material adverse change in the financial condition of the Borrower,
or which questions the validity of this Agreement or the Note or of any action taken or
to be taken in connection with the transactions contemplated hereby or thereby.
Section 2.05. Financial Information. The financial information regarding the
Borrower furnished to the Bank by the Borrower in connection with the Loan is
accurate, and there has been no material and adverse change in the financial condition
of the Borrower from that presented in such information.
ARTICLE III
COVENANTS OF THE BORROWER
Section 3.01. Affirmative Covenants. For so long as any of the principal
amount of or interest on the Note is outstanding or any duty or obligation of the
Borrower hereunder or under the Note 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
Note at the time and place, and in the manner and from the sources provided herein
and in the Note.
(b) Use of Proceeds. Proceeds from the Note will be used only to pay the
Refunding Requirements.
(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 Note have been paid in full.
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(e) Records. The Borrower agrees that any and all records of the Borrower
with respect to the Loan 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 obligationhereunder and under the Note.
(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 Note.
(i) Payment of Document Taxes. In the event the Note or this Agreement
should be subject to the excise tax on documents or the intangible personal property tax
of the State, the Borrower shall pay such taxes or reimburse the Bank for any such
taxes paid by it.
(j) Financial Information. The Borrower will cause an audit to be completed
of its books and accounts and shall furnish to the Bank audited year-end financial
statements of the Borrower together with a report by an independent certified public
accountant acceptable to the Bank stating without qualification unacceptable to the
Bank that the audit was conducted in accordance with generally accepted auditing
standards and stating that such financial statements present fairly in all material
respects the financial position of the Borrower and the results of its operations and cash
flows for the periods covered by the audit report, all in conformity with generally
accepted accounting principles applied on a consistent basis. The Borrower shall adopt
an annual budget as required by law. The Borrower shall make publicly available (i) a
copy of its annual operating budget for each fiscal year ending after September 30,
2020 within 60 days after its adoption, 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, 2020 within 210 days
after the end thereof.
(k) Immunity. To the fullest extent permitted by law, the Borrower will not
assert any immunity it may have as a public entity under the laws of the State from
lawsuits with respect to the Note and this Agreement; provided, however, that nothing
contained herein shall be deemed a waiver in any respect to the Borrower's immunity
with respect to tort liabilities.
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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 Note is outstanding or any duty
or obligation of the Borrower hereunder or under the Note remains unpaid or
unperformed, the Borrower covenants to the Bank that, without the prior written consent
of the Bank, the Borrower shall not hereafter 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 Note (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 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 Note 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 Note and
all Competing Debt during such fiscal year.
For purposes of calculating the foregoing, (A) if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions that
adjust the interest rate upon a change in tax law or in the tax treatment of interest on the
debt or upon a default), then the interest rate on such indebtedness shall be assumed to
be the highest of (i) to the extent applicable, the average rate of actual interest borne by
such indebtedness during the most recent complete month prior to the date of issuance
of such proposed indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue
Bond Index last published in the month preceding the date of issuance of such
proposed indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S.
Treasury obligation with a constant maturity closest to but not before the maturity date
of such indebtedness, as reported in Statistical Release H.15 of the Federal Reserve on
the last day of the month preceding the date of issuance of such proposed
indebtedness, plus three percent, provided that if the Borrower shall have entered into
an interest rate swap or interest rate cap or shall have taken any other action which has
the effect of fixing or capping the interest rate on such indebtedness for the entire term
thereof, then such fixed or capped rate shall be used as the applicable rate for the
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010-9089-1515/3/AMERICAS
period of such swap or cap up to the notional amount of such swap, 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; (B) with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a certification
delivered to the Bank at the time of any advance to the extent such certification
assumes that the full loan amount under such line of credit or similar arrangement has
been borrowed at the time of such advance; and (C) with respect to any indebtedness
(including, without limitation, in clause (B)) which has 25% or more of the aggregate
principal amount coming due in any one year ("Balloon Indebtedness"), including the
Loan, at the option of the Borrower, principal and interest thereon shall be assumed to
be payable over a period of twenty years on a level debt service basis computed at the
interest rate provided in (A)(ii) above if the Balloon Indebtedness is tax-exempt, and
(A)(iii) above if the Balloon Indebtedness is taxable.
Nothing in this Agreement limits the Borrower's ability to incur indebtedness
payable from Enterprise Revenues.
Section 3.03. Bank Counsel 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 Note in the amount of $8,500.00, said amount to be due and payable upon the
execution and delivery of this Agreement.
Section 3.04. Registration and Exchange of Note; The Borrower shall keep a
registration book setting forth the identification of the owner of the Note. The Bank's
right, title and interest in and to the Note and any amounts payable by the Borrower
thereunder may be assigned and reassigned in whole only by the Bank, without the
necessity of obtaining the consent of the Borrower; provided, that any such assignment,
transfer or conveyance shall be made only to (a) an affiliate of the Bank or (b) a bank,
insurance company or their affiliate, provided that any such entity is purchasing the
Note for its own account with no present intention to resell or distribute the Note, subject
to each investor's right at any time to dispose of the Note as it determines to be in its
best interests or (c) a "qualified institutional buyer," as defined in Rule 144A of the
Securities Act of 1933, or an "accredited investor," as defined in Rule 501 of Regulation
D. Upon notification by the Bank to the Borrower of the Bank's intent to assign and sell
its right, title and interest in and to the Note as herein provided, the Borrower agrees
that it shall execute and deliver to the assignee, a Note in the principal amount so
assigned, registered in the name of the assignee, executed and delivered by the
Borrower in the same manner as provided herein and with a schedule attached thereto
setting forth the amounts to be paid on each principal payment date with respect to the
Note. In all cases of an assignment of the Note, the Borrower shall at the earliest
practical time enter the change of ownership in the registration book kept by the
Borrower; provided, however, the written notice of assignment must be received by the
Borrower at the Borrower's address set forth in Attachment B hereto no later than the
close of business on the fifteenth (15th) day (whether or not a Business Day) of the
calendar month next preceding an interest payment date in order to have such transfer
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recorded on the registration book of the Borrower on such next succeeding interest
payment date.
Section 3.05. Note Mutilated, Destroyed, Stolen or Lost. In case the 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, 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 Note at
the place, on the dates and in the manner provided therein, provided that the Borrower
may be compelled to pay the principal of and interest on the Note solely from the Non-
Ad Valorem Revenues budgeted and appropriated for such purpose as provided herein,
and nothing in the Note 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 Note. The City pledges and grants a lien on the Budgeted
Revenues to secure the City's payment obligations hereunder and under the Note.
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 nor does it
preclude the Borrower from pledging its Non-Ad Valorem Revenues. Such covenant to
budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the
payment of obligations secured by a pledge of such Non-Ad Valorem Revenues
heretofore or hereafter entered into (including the payment of debt service on bonds
and other instruments). The Borrower is not and shall not be liable for the payment of
the principal of and interest on the Note or for the performance of any pledge, obligation
or agreement for payment undertaken by the Borrower hereunder or under the Note
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 Note or this Loan Agreement from any source other than the
Budgeted Revenues.
Subject to the provisions of this Section 3.06, the Borrower covenants that, so
long as the Note shall remain unpaid or any other amounts are owed by the Borrower
under this Agreement or the Note, 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 Note and other amounts owed under this Agreement
as the same shall become due (the "Budgeted Revenues"). In the event that the
amount previously budgeted for such purpose is ever insufficient to pay such principal
and interest on the Note 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 Note and such other amounts. Such covenant to budget and appropriate
from Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall
8
010-9089-1515/3/AMERICAS
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 Note 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 Note.
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 Note shall not be
subject to the covenant to budget and appropriate, to the extent provided therein. 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
Note 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 Note shall not be subject to the covenant to budget and appropriate.
Section 3.07. Officers and Employees of the Borrower Exempt from Personal
Liability. No recourse under or upon any obligation, covenant or agreement of this Loan
Agreement or the Note 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
Note 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 Note, 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 Note 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 Note 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.
9
010-9089-1515/3/AMERICAS
Section 3.09. Tax Representations, Warranties and Covenants of the Borrower.
The Borrower agrees to comply with the provisionsof the Tax Compliance Certificate.
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 Note 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 Note 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 Note 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
Note;
(b) The opinion of Bond Counsel regarding the validity and enforceability of
the Agreement and the Note, the exclusion of interest on the Note from gross income
for federal income tax purposes and the exemption of the Note from certain taxes
imposed under the laws of the State;
(c) The opinion of Bond Counsel regarding the defeasance of the Refunded
Bonds; and
(d) Such additional supporting documents as the Bank may reasonably
request.
ARTICLE V
THE LOAN
Section 5.01. The Loan. The Bank hereby agrees to loan to the Borrower the
amount of the Loan Amount to be evidenced by the Note to provide funds to finance the
Refunding Requirements upon the terms and conditions set forth in this Agreement and
the Note. The proceeds of the Loan shall be applied as provided in a certificate of an
Authorized Individual. The Borrower agrees to repay the principal amount borrowed
10
010-9089-1515/3/AMERICAS
plus interest thereon, upon the terms and conditions set forth in this Agreement and the
Note.
Section 5.02. Description and Payment Terms of the Note. To evidence the
Loan, the Borrower shall issue and deliver to the Bank the Note in the form attached
hereto as Attachment A.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. General. An "Event of Default" shall be deemed to have occurred
under this Agreement if:
(a) The Borrower shall fail to make any payment of (i) the principal of or
interest on the Loan when the same shall become due and payable, or (ii) any other
amount payable hereunder when the same shall be due and payable and such failure
shall continue for a period of twenty (20) days; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or (j) or
Section 3.02; or
(c) The Borrower shall default in the performance of or compliance with any
term or covenant contained in this Agreement and the Note, 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;
provided, however, that such continued breach shall not be an Event of Default at the
end of such thirty (30) day period, so long as (i) such breach is, in the sole judgment of
the Bank, capable of cure; (ii) the Borrower is proceeding diligently to cure such breach;
and (iii) such breach, in any event, is cured within one hundred twenty (120) days of
such written notification by the Bank; or
(d) Any representation or warranty made in writing by or on behalf of the
Borrower in this Agreement or the Note 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,
11
010-9089-1515/3/AMERICAS
judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days
from the date of entry thereof; or
(g) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of
the United States of America or the State; or
(h) The Borrower shall default in the due and punctual payment or
performance of covenants related to any other obligation for the payment of money to
the Bank or any other subsidiary or affiliate of any bank holding company of which the
Bank is a subsidiary; or
(i) The Borrower shall default in the due and punctual payment of any
Competing Debt or an event of default exists with respect to any Competing Debt which
results in the acceleration of the time for payment of such debt or entitles the holder of
such Competing Debt to accelerate the time for payment of such debt; or
(j) A debt moratorium, debt restructuring, debt adjustment or comparable
restriction is imposed on the repayment when due and payable of the principal of or
interest on any debt of the Borrower by the Borrower or any Governmental Authority
with appropriate jurisdiction; or
(k) Any material provision of this Agreement, the Note or the Resolution shall
at any time for any reason cease to be valid and binding on the Borrower as a result of
any legislative or administrative action by .a Governmental Authority with competent
jurisdiction or shall be declared in a final non-appealable judgment by any court with
competent jurisdiction to be null and void, invalid, or unenforceable, or the validity or
enforceability thereof shall be publicly contested by the Borrower.
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Note, 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 Note to be immediately due and payable
without further action of any kind and upon such declaration the Note and the interest
accrued thereon shall become immediately due and payable. In addition, and
regardless whether such declaration is or is not made, all amounts due and payable
hereunder and the Note shall bear interest at the Default Rate and may also seek
enforcement of and exercise all remedies available to it under any applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Waiver; Cumulative Remedies. No failure or delay on the part
of the Bank in exercising any right, power, remedy hereunder or under the Note 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
12
010-9089-1515/3/AMERICAS
or thereunder. The remedies. herein and therein provided are cumulative and not
exclusive of any remedies provided by law or in equity.
Section 7.02. Amendments, Changes or Modifications to the Agreement. This
Agreement and the Note 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 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 Note is 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.
13
010-9089-1515/3/AMERICAS
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 Note (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 Note 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 and B 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 Note
(collectively a "Claim"). The parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of any Claim. This provision is a material
inducement for the parties entering into this Agreement.
Section 7.14. Patriot Act. The Bank hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and
other information that will allow the Bank to identify the Borrower in accordance with
such Act.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective between them as of the date of first set forth above.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By: _
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
APPROVED AS TO JPMORGAN CHASE BANK, N.A.
FORM&LANGUAGE
&FOR EXECUTION
By:
kt- Ogu- (zi ( t) Caitlin Tarr, Associate
City Attorney1144
14Date ` 14
��
010-9089-1515/3/AMERICAS
ATTACHMENT A
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 $ , together with interest
on the principal balance outstanding at the rate per annum equal to % computed
based upon a 360-day year of twelve 30-day months.
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 Borrower shall pay the Bank interest hereon in arrears on March 1 and
September 1 of each year, commencing on September 1, 2020, and principal hereon as
set forth in Schedule A attached hereto.
All payments by the Borrower pursuant to this Note shall apply first to accrued
interest and the balance thereof shall apply to the principal sum due.
The principal of and interest on this Note may be prepaid at the option of the
Borrower, in whole or in part, at any time, on and after September 1, 202_, without
prepayment penalty or premium.
This Note shall be subject to mandatory tender for purchase on September 1, 2030
(the "Tender Date") at a purchase price equal to the principal amount of this Note then
outstanding; provided, however, that at the written request of the Borrower delivered to the
Bank no later than sixty (60) days prior to the Tender Date, the Bank may, in its sole
discretion, extend the Tender Date to a later date as shall be acceptable to the Bank, and
subject to any change in the interest rate or other terms as the Bank may require in
connection with such extension.
In the event a Determination of Taxability (as defined below) shall have occurred,
the rate of interest on this Note shall be increased to the Taxable Rate (as defined below),
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 that are not part of the Taxable Rate. 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
010-9089-1515/3/AMERICAS
For purposes of the foregoing paragraph, "Determination of Taxability" means the
following, which shall be the result of actions or inactions of the Borrower: (i) the issuance
by the Internal Revenue Service of a statutory notice of deficiency or other written
notification which holds in effect that the interest payable on this Note is includable for
federal income tax purposes in the gross income of the holder thereof, which notice or
notification is not contested by either the Borrower or the Bank, or (ii) a determination by a
court of competent jurisdiction that the interest payable on this Note is includable for
federal income tax purposes in the gross income of the Bank, which determination either is
final and non-appealable or is not appealed within the requisite time period for appeal, or
(iii) the admission in writing by the Borrower to the effect that interest on this Note is
includable for federal income tax purposes in the gross income of the Bank. A
Determination of Taxability does not include and is not triggered by a change in law by the
U.S. Congress that causes the interest to be includable in the Bank's gross income.
"Taxable Rate" means a rate of interest that will result in the same after-tax yield to the
Bank as before said Determination of Taxability.
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
by the Bank as a result of such Determination of Taxability that are not part of the Taxable
Rate. 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.
Upon the occurrence and during the continuance of an Event of Default, (as defined
in the Loan Agreement), 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.
A-2
010-9089-1515/3/AMERICAS
Upon the occurrence and during the continuance of an Event of Default, the Note
shall bear interest at the Default Rate. For purposes of this Note, "Default Rate" means
the Prime Rate plus 4.00% but not to exceed the maximum rate permitted by law.
"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.
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. All terms, conditions and provisions of
the Loan Agreement and Resolution No. 2020- adopted by the Mayor and City
Commission of the Borrower 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.
A-3
010-9089-1515/3/AMERICAS
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 August_, 2020.
CITY OF MIAMI BEACH, FLORIDA
By:
Dan Gelber, Mayor
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION '
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A-4
010-9089-1515/3/AMERICAS
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ATTACHMENT B
1. Authorized Individuals: John Woodruff, Chief Financial Officer
Allison R. Williams, Deputy Finance Director
2. Notice Address of City of Miami Beach, Florida
Borrower: 1700 Convention Center Drive
3rd Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank: JPMorgan Chase Bank, N.A.
8181 Communications Pkwy
Building B, Floor 6
Plano, Texas 75024
Attention: Caitlin Tarr, Associate
B-1
010-9089-1515/3/AMERICAS
EXHIBIT "B"
ESCROW DEPOSIT AGREEMENT
B-1
010-9089-5027/4/AMERICAS
CITY OF MIAMI BEACH, FLORIDA
and
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
ESCROW DEPOSIT AGREEMENT
Relating to
PARKING REVENUE REFUNDING BONDS,
SERIES 2010A
and
PARKING REVENUE BONDS,
SERIES 2010B
DATED AS OF , 2020
010-9089-1856/2/AMERICAS
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (the "Agreement") made and entered
into as of , 2020, by and between the CITY OF MIAMI BEACH, FLORIDA
(the "City") and U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent (the "Escrow
Agent").
WITNESSETH:
WHEREAS, the City has heretofore issued its $17,155,000 aggregate principal
amount City of Miami Beach, Florida Parking Revenue Refunding Bonds, Series 2010A,
dated November 16, 2010, presently outstanding in the principal amount of $4,155,000,
as more particularly described in Schedule A attached hereto and made a part hereof
(the "Outstanding Series 2010A Bonds"), and its $27,405,000 aggregate principal
amount City of Miami Beach, Florida Parking Revenue Bonds, Series 2010B, dated
November 16, 2010, of all of which are presently outstanding, as more particularly
described in Schedule A attached hereto and made a part hereof (the "Outstanding
Series 2010B Bonds"), pursuant to the provisions of Resolution No. 2010-27491,
adopted by the Mayor and City Commission of the City (the "Commission") on
September 20, 2010 (the "Refunded Bonds Bond Resolution"); and
WHEREAS, the City desires to refund, defease and pay at maturity or redeem,
as applicable, the Outstanding Series 2010A Bonds and the Outstanding Series 2010B
Bonds (hereinafter referred to as the "Refunded Bonds"); and
WHEREAS, the City has issued its Promissory Note in the principal amount of
$ to JPMorgan Chase Bank, N.A. (the "Note"), pursuant to the provisions
of Resolution No. 2020- , adopted by the Commission on , 2020, a
portion of the proceeds of which Note is to be deposited with the Escrow Agent to
provide for the refunding, defeasance and payment at maturity or redemption, as
applicable, of the Refunded Bonds; and
WHEREAS, in order to provide for the proper and timely application of the
moneys deposited hereunder to the payment of the Refunded Bonds, it is necessary for
the City to enter into this Agreement with the Escrow Agent;
NOW, THEREFORE, the City and the Escrow Agent, in consideration of the
foregoing and the mutual covenants herein set forth and in order to secure the payment
of the principal of and interest on all of the Refunded Bonds according to their tenor and
effect, do hereby agree as follows:
010-9089-1856/2/AMERICAS
ARTICLE I
CREATION AND CONVEYANCE OF TRUST ESTATE
Section 1.01.Creation and Conveyance of Trust Estate. The City hereby grants,
warrants, remises, releases, conveys, assigns, transfers, aliens, pledges, sets over and
confirms unto the Escrow Agent and to its successors in the trust hereby created, and to
it and its assigns forever, all and singular the property hereinafter described, to wit:
DIVISION I
All right, title and interest in and to $ in moneys deposited directly
with the Escrow Agent and derived from the proceeds of the Note upon issuance and
delivery of the Note and execution of and delivery of this Agreement.
DIVISION II
Any and all other property of every kind and nature from time to time hereafter,
by delivery or by writing of any kind, conveyed, pledged, assigned or transferred as and
for additional security hereunder by the City, or by anyone on behalf of the City to the
Escrow Agent for the benefit of the Refunded Bonds.
DIVISION III
All property which is by the express provisions of this Agreement required to be
subject to the pledge hereof and any additional property that may, from time to time
hereafter, by delivery or by writing of any kind, by the City, or by anyone in its behalf, be
subject to the pledge hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate (as such term is
hereinafter defined), including all additional property which by the terms hereof has or
may become subject to the encumbrances of this Agreement, unto the Escrow Agent,
and its successors and assigns, forever in trust, however, for the sole benefit and
security of the holders from time to time of the Refunded Bonds, but if the principal of
and interest on all of the Refunded Bonds shall be fully and promptly paid upon the
maturity or redemption thereof, as applicable, in accordance with the terms thereof, then
this Agreement shall be and become void and of no further force and effect except as
otherwise provided herein; otherwise the same shall remain in full force and effect, and
upon the trusts and subject to the covenants and conditions hereinafter set forth.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. In addition to words and terms elsewhere defined in
this Agreement, the following words and terms as used in this Agreement shall have the
following meanings, unless some other meaning is plainly intended.
"Trust Estate", "trust estate" or "pledged property" shall mean the property, rights
and interests described or referred to under Divisions I, II and III in Article I above.
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010-9089-1856/2/AMERICAS
Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Words importing the singular
number shall include the plural number and vice versa unless the context shall
otherwise indicate. The word "person" shall include corporations, associations, natural
persons and public bodies unless the context shall otherwise indicate. Reference to a
person other than a natural person shall include its successors.
ARTICLE III
ESTABLISHMENT OF ESCROW DEPOSIT TRUST FUND; FLOW OF FUNDS
Section 3.01.Creation of Escrow Deposit Trust Fund and Deposit of Moneys.
There is hereby created and established with the Escrow Agent a special and
irrevocable trust fund designated "City of Miami Beach, Florida Parking Revenue Bonds,
Series 2010 Escrow Deposit Trust Fund" (the "Escrow Deposit Trust Fund"), to be held
by the Escrow Agent for the sole benefit of the holders of the Refunded Bonds and
accounted for separate and apart from the other funds of the City and, to the extent
required by law, of the Escrow Agent.
Concurrently with the delivery of this Agreement, the City herewith causes to be
deposited with the Escrow Agent and the Escrow Agent acknowledges receipt of
immediately available moneys for deposit in the Escrow Deposit Trust Fund in the
amount of$ , all of which shall be held uninvested and will provide moneys
sufficient to pay the principal of and interest on the Refunded Bonds, upon the maturity
or redemption thereof, as applicable, as more particularly described in Schedule B
attached hereto and made a part hereof.
Notwithstanding the foregoing, if the amounts deposited in the Escrow Deposit
Trust Fund are insufficient to make said payments of principal and interest, the City
shall cause to be deposited into the Escrow Deposit Trust Fund the amount of any
deficiency immediately upon notice from the Escrow Agent.
Section 3.02. Irrevocable Trust Created. The deposit of moneys or other property
hereunder in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit of
said moneys and other property hereunder for the sole benefit of the holders of the
Refunded Bonds, subject to the provisions of this Agreement. The holders of the
Refunded Bonds, subject to the provisions of this Agreement, shall have an express lien
on all moneys and other property in the Escrow Deposit Trust Fund. The moneys
deposited in the Escrow Deposit Trust Fund and other property hereunder shall be held
in trust by the Escrow Agent, and shall be applied for the payment of Refunded Bonds,
as more specifically set forth in Schedule B hereto.
Section 3.03.Transfers from Escrow Deposit Trust Fund. The Escrow Agent, in
its capacity of Bond Registrar (as defined in the Refunded Bonds Bond Resolution) with
respect to the Refunded Bonds (the "Refunded Bonds Bond Registrar"), no later than
the payment date for the Refunded Bonds, as specified in Schedule B hereof, shall pay
from such moneys the principal of and interest on the Refunded Bonds, as specified in
Schedule B hereof. The City previously instructed the Refunded Bonds Bond Registrar,
to call the Refunded Bonds for redemption on September 1, 2020, pursuant to a
3
010-9089-1856/2/AMERICAS
conditional notice of redemption, at a redemption price of 100% of the principal amount
thereof in accordance with the Refunded Bonds Bond Resolution, except that the
Outstanding Series 2010A Bonds maturing on September 1, 2020 shall be paid at
maturity, and the Refunded Bonds Bond Registrar has previously provided conditional
notice of redemption in accordance with the Refunded Bonds Bond Resolution. The
City shall perform, and shall cause the Refunded Bonds Bond Registrar to perform, as
applicable, the responsibilities, described in the Refunded Bonds Bond Resolution, in
connection with the payment at maturity or redemption, as applicable, of the Refunded
Bonds.
Section 3.04. Escrow Deposit Trust Fund Constitutes Trust Fund. The Escrow
Deposit Trust Fund created and established pursuant to this Agreement shall be and
constitutea trust fund for the purposes provided in this Agreement and shall be kept
separate and distinct from all other funds of the City and, to the extent required by law,
of the Escrow Agent and used only for the purposes and in the manner provided in this
Agreement.
Section 3.05.Transfer of Funds After All Payments Required by this Agreement
are Made. After all of the transfers by the Escrow Agent to the payment of the principal
of and interest on the Refunded Bonds provided in Schedule B have been made, all
remaining moneys and securities in the Escrow Deposit Trust Fund shall be transferred
to the City for the payment of principal of or interest on the Note; provided, however,
that no such transfers shall be made until all of the principal of and interest on the
Refunded Bonds have been paid.
ARTICLE IV
CONCERNING THE ESCROW AGENT
Section 4.01. Liability of Escrow Agent. The Escrow Agent shall not be liable in
connection with the performance of its duties hereunder except for its own negligence,
misconduct or default. The Escrow Agent shall not be liable for the accuracy of the
calculations as to the sufficiency of moneys to pay the Refunded Bonds. So long as the
Escrow Agent applies any moneys to pay the Refunded Bonds as provided herein, and
complies fully with the terms of this Agreement, the Escrow Agent shall not be liable for
any deficiencies in the amounts necessary to pay the Refunded Bonds caused by such
calculations.
The duties and obligations of the Escrow Agent shall be determined by the
express provisions of this Agreement. The Escrow Agent may consult with counsel with
respect to any matter relevant to this Agreement, who may or may not be counsel to the
City, and be entitled to receive from the City reimbursement of the reasonable fees and
expenses of such counsel, and in reliance upon the opinion of such counsel have full
and complete authorization and protection in respect of any action taken, suffered or
omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall
deem it necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action under this Agreement, such matter may be deemed to
be conclusively established by a certificate signed by an authorized officer of the City
and the Escrow Agent may in good faith conclusively rely upon such certificate.
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010-9089-1856/2/AMERICAS
The Escrow Agent shall have no lien, security interest or right of set-off
whatsoever upon any of the moneys in the Escrow Deposit Trust Fund for the payment
of fees or expenses for the services rendered by the Escrow Agent under this
Agreement.
Section 4.02. Permitted Acts. The Escrow Agent and its affiliates may become
the owner of all or may deal in the Refunded Bonds as fully and with the same rights as
if it were not the Escrow Agent.
Section 4.03. Payment to Escrow Agent. The City shall pay to the Escrow Agent
reasonable compensation for all services rendered by it hereunder and also its
reasonable expenses, charges and other disbursements and those of its attorneys,
agents and employees incurred in and about the administration and execution of the
trusts hereby created, and the performance of its powers and duties hereunder,
including, without limitation, all advances, counsel fees and other expenses reasonably
made or incurred by the Escrow Agent in connection with such services, all as provided
in Schedule C hereto.
ARTICLE V
MISCELLANEOUS
Section 5.01.Amendments to this Agreement. This Agreement is made for the
benefit of the holders from time to time of the Refunded Bonds and shall not be
repealed, revoked, altered or amended without the written consent of all such holders of
the Refunded Bonds, the Escrow Agent and the City; provided, however, that the City
and the Escrow Agent may, without the consent of, or notice to, such holders, enter into
such agreements supplemental to this Agreement which shall not adversely affect the
rights of such holders and shall not be inconsistent with the terms and provisions of this
Agreement for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement; or
(b) to grant to or confer upon the Escrow Agent for the benefit of the holders
of the Refunded Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Escrow Agent.
The Escrow Agent shall be entitled to rely upon an unqualified opinion of a
nationally recognized counsel in the field of law relating to municipal bonds with respect
to compliance with this Section.
Prior to any repeal, revocation, alteration or amendment of this Agreement, the
City shall provide written notice of such proposed repeal, revocation, alteration or
amendment to S&P Global Ratings and Moody's Investors Service, Inc. at their
addresses set forth below:
S&P Global Ratings
55 Water Street
New York, New York 10041
Attn: Municipal Ratings Desk/Refunded Bonds
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010-9089-1856/2/AMERICAS
Moody's Investors Service, Inc.
7 World Trade Center
250 Greenwich Street, 23rd Floor
New York, New York 10007
Section 5.02.Severability. If any one or more of the covenants or agreements
provided in this Agreement on the part of the City or the Escrow Agent to be performed
should be determined by a court of competent jurisdiction to be contrary to law, such
covenant or agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in no way affect the
validity of the remaining provisions of this Agreement.
Section 5.03.Agreement Binding. All the covenants, proposals and agreements
in this Agreement contained by or on behalf of the City or by or on behalf of the Escrow
Agent shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed or not.
Section 5.04. Notices to Escrow Agent and City. Any notice, demand, direction,
request or other instrument authorized or required by this Agreement to be given to or
filed with the Escrow Agent or the City, shall be deemed to have been sufficiently given
or filed for all purposes of this Agreement if personally delivered and receipted for, or if
sent by registered or certified United States mail, return receipt requested, addressed
as follows:
(a) As to the City:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Chief Financial Officer
(b) As to the Escrow Agent:
U.S. Bank National Association
500 West Cypress Creek Road, Suite 460
Fort Lauderdale, Florida 33309
Attention: Corporate Trust Services
Any party hereto may, by notice sent to the other parties hereto, designate a
different or additional address to which notices under this Agreement are to be sent.
Section 5.05.Termination. This Agreement shall terminate when all transfers
and payments required to be made by the Escrow Agent under the provisions hereof
shall have been made.
Section 5.06. Execution by Counterparts. This Agreement may be executed in
several counterparts, all or any of which shall be regarded for all purposes as one
original and shall constitute and be but one and the same instrument.
6
010-9089-1856/2/AMERICAS
Section 5.07. Notice of Defeasance. The Chief Financial Officer is hereby
instructed to (i) mail, or cause the Refunded Bonds Bond Registrar to mail, to the
Holders, and (ii) file, or cause to be filed, with the Municipal Securities Rulemaking
Board, a notice of defeasance of the Refunded Bonds, substantially in the form attached
hereto as Schedule D.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officers and, with respect to the City, its official
seal to be hereunto affixed and attested as of the date first above written.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
By:
Vice President
U.S. Bank National Association, as Refunded Bonds Bond Registrar, hereby
agrees to the provisions of this Agreement applicable to the Refunded Bonds Bond
Registrar.
U.S. BANK NATIONAL ASSOCIATION,
as Refunded Bonds Bond Registrar
By:
Vice President
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
C -LB(e: 7(711°
City Attorney n ,� n Date
7 I�r
010-9089-1856/2/AMERICAS
SCHEDULE A
REFUNDED BONDS
Series Maturity Date Principal Amount Interest Rate
2010A 09/01/2020 $ 1,725,000 5.000%
2010A 09/01/2021 1,810,000 5.000
2010A 09/01/2022 620,000 4.000
2010B 09/01/2022 1,170,000 4.000
2010B 09/01/2023 960,000 4.125
2010B 09/01/2024 1,000,000 4.250
2010B 09/01/2025 350,000 5.000
2010B 09/01/2030* 6,690,000 4.625
2010B 09/01/2040* 17,235,000 5.000
* Term bond.
A-1
010-9089-1856/2/AMERICAS
SCHEDULE B
SCHEDULE OF PAYMENTS ON
REFUNDED BONDS
Series Date Principal Interest Total
2010A 09/01/2020 $ 4,155,000
2010B 09/01/2020 27,405,000
B-1
010-9089-1856/2/AMERICAS
SCHEDULE C
ESCROW AGENT FEES AND EXPENSES
(i) In consideration of the services to be rendered by the Escrow Agent under the
Agreement, the City upon execution hereof agrees to pay the Escrow Agent a
one-time fee of $500.00 to be paid at closing for all services to be incurred as
Escrow Agent in connection with such services, plus agrees to pay as incurred
reimbursement at cost for ordinary out-of-pocket expenses. The term "ordinary
out-of-pocket expenses" means expenses of holding, investing and disbursing
the Escrow Deposit Trust Fund as provided herein and includes, but is not limited
to publication costs, postage and legal fees as incurred.
(ii) The City shall also reimburse the Escrow Agent for any extraordinary expenses
incurred by it in connection herewith. The term "extraordinary expenses"
includes (a) expenses arising out of the assertion of any third party to any
interest in the Escrow Deposit Trust Fund or any challenge to the validity hereof,
including reasonable attorneys' fees and (b) expenses (other than ordinary
expenses) not occasioned by the Escrow Agent's misconduct or negligence.
(iii) The fees and expenses payable by the City under clause (i) or(ii) above shall not
be paid from the Escrow Deposit Trust Fund, but shall be paid by the City from
legally available funds of the City.
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010-9089-1856/2/AMERICAS
SCHEDULE D
NOTICE OF DEFEASANCE
City of Miami Beach, Florida
Parking Revenue Refunding Bonds, Series 2010A
and
City of Miami Beach, Florida
Parking Revenue Bonds, Series 2010B
Dated: November 16, 2010
Maturity Date Principal CUSIP
Series (September 1,) Amount Numbers*
2010A 2020 $ 1,725,000 593235FM1
2010A 2021 1,810,000 593235FN9
2010A 2022 620,000 593235FP4
2010B 2022 1,170,000 593235FR0
2010B 2023 960,000 593235FS8
2010B 2024 1,000,000 593235FT6
2010B 2025 350,000 593235FU3
2010B 2030*, 6,690,000 593235FV1
2010B 2040* 17,235,000 593235FW9
* Term bond.
NOTICE IS HEREBY GIVEN that monies have been deposited with U.S. Bank
National Association, as Escrow Agent, for the payment of the principal and interest on
the above bonds (collectively, the "Bonds"). U.S. Bank National Association, as Bond
Registrar for the Bonds, has called the Bonds for redemption on September 1, 2020
(the "Redemption Date") at a redemption price of 100% of the principal amount thereof,
except that the Series 2010A Bonds maturing on September 1, 2020 referenced above
shall be paid at maturity.
The amount so deposited as aforesaid has been calculated to be adequate to
pay the principal of and interest on the Bonds through and including the Redemption
Date. The Bonds are therefore deemed not to be "Outstanding" within the meaning of
Resolution No. 2010-27491 adopted by the Mayor and City Commission of the City of
Miami Beach, Florida on September 20, 2010.
CITY OF MIAMI BEACH, FLORIDA
Dated: , 2020
By:
John Woodruff,
Chief Financial Officer
* No representation is made as to the correctness of these CUSIP numbers either as printed on the
Bonds or contained in this Notice.
D-1
010-9089-1856/2/AMERICAS
EXHIBIT "C"
FIRST AMENDMENT TO TD BANK LOAN AGREEMENT
C-1
010-9089-5027/4/AMERICAS
FIRST AMENDMENT (this "Amendment") dated as of August 3, 2020, to the LOAN
AGREEMENT dated as of December 22, 2016 (the "Loan Agreement") 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 TD Bank, N.A., and its successors and assigns (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
AMENDMENTS
Section 1.01. Definitions. Capitalized terms used in this Amendment shall have the
meanings as set forth in the Loan Agreement.
Section 1.02. Amendments. The second paragraph under Section 3.02 of the Loan
Agreement is hereby amended and restated to read as follows:
"For purposes of calculating the foregoing, (A) if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions
that adjust the interest rate upon a change in tax law or in the tax treatment of
interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of (i) to the extent applicable,
the average rate of actual interest borne by such indebtedness during the most
recent complete month prior to the date of issuance of such proposed
indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue Bond Index last
published in the month preceding the date of issuance of such proposed
indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S. Treasury
obligation with a constant maturity closest to but not before the maturity date of
such indebtedness, as reported in Statistical Release H.15 of the Federal
Reserve on the last day of the month preceding the date of issuance of such
proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken
any other action which has the effect of fixing or capping the interest rate on such
indebtedness for the entire term thereof, then such fixed or capped rate shall be
used as the applicable rate for the period of such swap or cap up to the notional
amount of such swap, 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; (B) with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a
certification delivered to the Bank at the time of any advance to the extent such
certification assumes that the full loan amount under such line of credit or similar
arrangement has been borrowed at the time of such advance; and (C) with
respect to any indebtedness (including, without limitation, in clause (B)) which
has 25% or more of the aggregate principal amount coming due in any one year
("Balloon Indebtedness"), at the option of the Borrower, principal and interest
thereon shall be assumed to be payable over a period of twenty years on a level
debt service basis computed at the interest rate .provided in (A)(ii) above if the
Balloon Indebtedness is tax-exempt, and (A)(iii) above if the Balloon
Indebtedness is taxable."
010-9091-7560/2/AMERICAS
ARTICLE II
MISCELLANEOUS
Section 2.01. Effect of Amendment. Except as specifically amended by this
Amendment, the Loan Agreement shall remain in full force'and effect and is hereby ratified and
affirmed by the Borrower and the Bank.
Section 2.02. Governing Law. This Amendment is a contract made under the laws of
the State of Florida and shall be governed and construed in accordance with such laws.
Section 2.03. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.
Section 2.04. Binding Effect. This instrument shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns subject to the
limitations contained herein.
Section 2.05. Section Headings. Section headings in this Amendment are for
convenience of reference only, shall not constitute part of this Amendment and shall not be
used to continue the meaning or intent of the provisions hereof.
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
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
TD BANK, N.A.
By:
Robert Catoe, Vice President
2
010-9091-7560/2/AMERICAS
EXHIBIT "D"
FIRST AMENDMENT TO RJ CAPITAL LOAN AGREEMENT
•
D-1
010-9089-5027/4/AMERICAS
FIRST AMENDMENT (this "Amendment") dated as of August 3, 2020, to the LOAN
AGREEMENT dated as of December 5, 2018 (the "Loan Agreement") 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 Raymond James Capital Funding, Inc., and its successors and
assigns (the "Lender").
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
AMENDMENTS
Section 1.01. Definitions. Capitalized terms used in this Amendment shall have the
meanings as set forth in the Loan Agreement.
Section 1.02. Amendments. The second paragraph under Section 3.02 of the Loan
Agreement is hereby amended and restated to read as follows:
"For purposes of calculating the foregoing, (A) if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions
that adjust the interest rate upon a change in tax law or in the tax treatment of
interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of (i) to the extent applicable,
the average rate of actual interest borne by such indebtedness during the most
recent complete month prior to the date of issuance of such proposed
indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue Bond Index last
published in the month preceding the date of issuance of such proposed
indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S. Treasury
obligation with a constant maturity closest to but not before the maturity date of
such indebtedness, as reported in Statistical Release H.15 of the Federal
Reserve on the last day of the month preceding the date of issuance of such
proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken
any other action which has the effect of fixing or capping the interest rate on such
indebtedness for the entire term thereof, then such fixed or capped rate shall be
used as the applicable rate for the period of such swap or cap up to the notional
amount of such swap, 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 Lender shall be utilized in the
foregoing calculations; (B)with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a
certification delivered to the Lender at the time of any advance to the extent such
certification assumes that the full loan amount under such line of credit or similar
arrangement has been borrowed at the time of such advance; and (C) with
respect to any indebtedness (including, without limitation, in clause (B)) which
has 25% or more of the aggregate principal amount coming due in any one year
("Balloon Indebtedness"), at the option of the Borrower, principal and interest
thereon shall be assumed to be payable over a period of twenty years on a level
debt service basis computed at the interest rate provided in (A)(ii) above if the
010-9091-9392/2/AMERICAS
Balloon Indebtedness is tax-exempt, and (A)(iii) above if the Balloon
Indebtedness is taxable."
ARTICLE II
MISCELLANEOUS
Section 2.01. Effect of Amendment. Except as specifically amended by this
Amendment, the Loan Agreement shall remain in full force and effect and is hereby ratified and
affirmed by the Borrower and the Lender. The Borrower hereby reaffirms its agreement to
observe and perform each covenant and obligation of the Borrower contained in the Loan
Agreement. In order to induce the Lender to execute and deliver this Amendment, the Borrower
hereby makes each of the representations and warranties contained in the Loan Agreement as
of the date hereof, except those made as of a specific date. The Borrower shall pay the fees
and expenses of, or incurred by counsel to, the Lender in connection with the review and
delivery of this Amendment.
Section 2.02. Governing Law. This Amendment is a contract made under the laws of
the State of Florida and shall be governed and construed in accordance with such laws.
Section 2.03. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.
Section 2.04. Binding Effect. This instrument shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns subject to the
limitations contained herein.
Section 2.05. Section Headings. Section headings in this Amendment are for
convenience of reference only, shall not constitute part of this Amendment and shall not be
used to continue the meaning or intent of the provisions hereof.
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
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
RAYMOND JAMES CAPITAL FUNDING, INC.
By:
Chad E. Colby, Senior Vice President and
Managing Director
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
2 7 (2( (1-6
010-9091-9392/2/AMERICAS CityAttomey Date
Resolutions -C7 C
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 29, 2020
SUBJECT: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 $41,000,000 FROM JPMORGAN
CHASE BANK, N.A., TO REFUND THE OUTSTANDING 2010 PARKING
BONDS AND THE CHASE EQUIPMENT LEASE PURCHASE FINANCING;
AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN
AGREEMENT AND PROMISSORY NOTE TO EVIDENCE THE
OBLIGATION OF THE CITY TO REPAY SUCH LOAN; PROVIDING
SECURITY FOR THE REPAYMENT OF THE LOAN; AUTHORIZING THE
REFUNDING OF SUCH OBLIGATIONS TO BE REFUNDED; AND THE
EXECUTION AND DELIVERY OF AN ESCROW DEPOSIT AGREEMENT;
APPOINTING AN ESCROW AGENT; AUTHORIZING THE EXECUTION
AND DELIVERY OF AMENDMENTS TO THE TD BANK LOAN AGREEMENT
AND THE RJ CAPITAL LOAN AGREEMENT; AUTHORIZING OTHER
ACTIONS IN CONNECTION WITH THE LOAN AND THE REFUNDING
PROGRAM;AND PROVIDING FOR AN EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends adopting the Resolution.
BACKGROUND/HISTORY
As an emergency response to the COVID-19 economic crisis, the Federal Reserve lowered the
federal funds interest rate to 0%to 0.25%,which are historic lows. The federal funds rate is used as
a benchmark for short-term lending for financial institutions and as a peg to many consumer interest
rates on credit cards, loans, and mortgages. Given this favorable interest rate environment, the
City's Finance Department, conjunction with the City's Financial Advisor, RBC Capital Markets
("Financial Advisor"), has identified opportunities to achieve debt service savings from lower interest
rates.
As set forth more fully below, the Administration proposes that the City Commission authorize a loan
with JPMorgan Chase Bank, N.A. ("JPMorgan"), in an aggregate principal amount not to exceed
$41,000,000, to refund the City's outstanding Parking Revenue Refunding Bonds, Series 2010A and
Parking Revenue Bonds, Series 2010B (collectively, the "Outstanding 2010 Parking Bonds") and
the City's 2010 equipment lease purchase financing with JPMorgan Chase, N.A., formerly known as
Page 224 of 2461
Chase Equipment Finance, Inc. (the "Chase Equipment Lease Purchase Financing"), which loan
would be secured by a covenant to budget and appropriate from non-ad valorem revenues of the
City. The details of the proposed loan are discussed more fully below.
On May 8, 2020,the Finance and Economic Resiliency Committee("FERC") reviewed the proposed
refunding of the Outstanding 2010 Parking Bonds and Chase Equipment Lease Purchase
Financing, and favorably recommended that the Administration proceed with negotiations with
potential lenders.
ANALYSIS
The tax-exempt and taxable public markets experienced significant volatility due to the economic
disruption and uncertainty caused by COVID-19.A public offering requires significant time to prepare
for a financing due to rating.agency processes and the preparation of the disclosure document for
investors. Many banks are currently only making liquidity loans for clients due to overwhelming
demand from corporate and government needs for cash. However, there are a few banks that are
still able to make longer-term fixed rate loans that would enable the City to achieve savings from
refinancing certain of its debt obligations. Bank loans enable the City to move quickly to lock in
savings as they do not require ratings or offering documents for investors, and bank rates are very
competitive compared to public offerings in the current market.
The City's Finance Team and Financial Advisor have identified the following savings opportunities,
which are discussed in greater detail below. The refunding of these obligations was recommended to
the FERC on May 8, 2020, and the FERC recommended that Administration move forward with
negotiating the refundings with potential lenders.
Combined Refinancing of Outstanding 2010 Parking Bonds and Chase Equipment Lease
Purchase Financing Lease
The City's $31.5 million in Outstanding 2010 Parking Bonds are callable on 9/1/2020, and have
interest rates ranging from 4.00-5.00% with a final maturity on 9/1/2040. A bank would not currently
lend with a pledge of parking revenues alone, but the City can refinance the bonds with a loan
secured by a covenant to budget and appropriate from legally available non-ad valorem revenues
("CBA")and include excess parking revenues available under the bond resolution as non-ad valorem
revenues to pay debt service. The City can combine a refunding of its$7.3 million Chase Equipment
Lease Purchase Financing, which was used to purchase energy savings equipment from Ameresco,
Inc. in 2010, with the Outstanding 2010 Parking Bonds (the "Refunding Program") as one larger
transaction(the"Loan").
The Administration and its Financial Advisor negotiated with lenders on the refundings to obtain
indicative interest rates and terms, and requested a term sheet from the bank with the most attractive
combination of rates and terms, which is JPMorgan. Following are the results of these discussions
with potential lenders:
Page 225 of 2461
Indicative Interest Rates for Refunditngs
O utaandi rig 2010 Parting Bonds&Cle se Equipment Lease Purchase F inancing
05/28/2020
Interest Interest Rate wro
Lender Rate Slructure Prepayable? Prepayment Penalty Prepayment Considerations
If par prepayment structure
is selected can refnance
on or ater 2023 or2025 ,
• .2.45%W per call on vithout penalty. For al
9/1123 Anytime%ittrout structures,ifnot prepaid
JPMorgan Yes, vi make- 2.38%W per call on penalty at early, must refinance at end
Chase 20696, 10 year put vfrde { 91125 9/123 or 9/1/25 of 10 yeers.
TwistTtrwgh fnal Yes, W make-'. 10 sear call No refnandng risk but
(SunTrust/ 240%; maturity 8040) Wide s ;2,47%, 100% . higher interest rate.
BR&T) . i Yes, vi make- Would add a tens Must refinance et end of 10
224%, 10 year put ride basis points n a sears.
O1herLendersCan>eded but Unable to Provide Indicative Rate or Unable to Consider CBA CredrisatttesTime:
Bof\ CenterState Raymond James Wells Fargo
BBVA PNC ID Bank
The Loan will refinance the Outstanding 2010 Parking Bonds with a shorter-term fixed rate of 10
years and the same amortization as the obligations being refunded. JPMorgan's proposal is
recorrmended as it provides the lowest interest cost through the 10 year fixed rate period. The City
will need to refinance the Loan at the end of the 10-year fixed interest rate period, which would be
subject to market conditions at that time, but the Loan would only have 10 years remaining. Most
tax-exempt bonds with a 10 year call feature are refinanced around 10 years even though they have
a longer final maturity.
Based on current market conditions and assuming a 2.00% interest rate through final maturity, the
net present value savings from refinancing the Outstanding 2010 Parking. Bonds would be
approximately $8.7 million. which is 28% of bonds refunded. To provide cash flow relief due to the
impact of COVED-19, the refunding would be structured to provide upfront savings of approximately
$2.4 million on 9/1/2020 and X2.6 million on 9/1/2021, and $220,000 annually thereafter. The final
maturity of the refunding will not be later than 2040, which is the final maturity of the Outstanding
2010 Parking Bonds.
The Chase Equipment Lease Purchase Financing lease has an interest rate of 4.18% and is
currently callable. The net present value savings on the Chase Equipment Lease Purchase
Financing portion of the Loan are approximately$360.000, which is 5% of the lease refunded. The
savings would be approximately$117,000 on 9/1/2020, $176,000 on 9/1/21 and breakeven in 2022-
2025.
The interest rate for the Loan with JPMorgan will be set justhefore closing on August 4 and is
subject to change until locked. Below is a surrlrnary of the savings based on an estimated rate of
2.00%.
Page 226 of 2461
Chase Equipment Lea w Series 2010 ASB Parking Bonds
518/20 Finance 7!14120 518/20 Finance 7114/20
_Committee Estimate Committee Estimate
Amount Refinanced $7.330,000 $7,123.558 $31,550.000
Current Interest Rate 4.18% 4.91%
Closing Date 08/03/2020 08/0412020 08/0312020 08/04/2020
Estimated New Interest Rate 2.09% 2.00% 209% 200%
Net Present Value Savings $388,000 $381.000 $7,900,000 $8,751.000
NPV Savings as a Si of Bonds Refunded 5% 5% 25% 28%
Annual Savings
2020 3295,934 5117.372 52.300,000 $2.435.923
2021 - 178.885 2,500,000 2.594,423
2022 - - 200.000 2220,378
2023 - - 200,000 220,378
2024 - - 200.000 220.378
20125 - - 200,000 220.376
2028 - - 200,000 220,376
2027 - - 200,000 220.378
2028 - - 200,000 220,378
2029 - - 200.000 220.376
2030 - - 200.000 220.378
2031 - - 200.000 220.378
2022 - - 200,000 220,378
2033 - - 200,000 220,378
2034 - - 200,000 220.376
2035 - - 200,000 220.378
2038 - - 200,000 220.378
2037 - - 200,000 220.378
2038 - - 200,000 220.378
2039 - - 200.000 220.376
2040 - 200.000 220.376
5295.934 5294.058 58,800.000 $9.217,458
Mate.Rein-liar y,taftreled old sat#-`i to ctonya tried un nolol tuetftiet IS it its to ciosity wt A.{faa t 4.20,23. Rarking rafoafny teased rst
a lO yaw fixer rata pt wit•fur ram inhered rale assorted fir the Ire of Or f ewuitg City would nand to refinance Or bout as the err of
Ian 10 ymr is for the rINTICWilg 10 yaws of the ban. Mat present vd,e aviigs for Artvesw lmser aro trgw flan ttr strnd saVintie es ret
pitatent Katlrr 4 aluilatiun of6w till sarlve N.hitt,aro bro iwve,in yttam 2021 20251 ttru*jln the filial rtnt.riy of the lo.. t in 2C25 tJ tltkeyi
Amara at Or bort tats. Actual itterast rates and sewhi F WI vary.
Because of the character of the Loan, the prevailing market conditions, the economic conditions due
to COVID-19 and the recommendations of the Financial Advisor, it was determined that the
negotiation of the Loan rather than a sale through a competitive bid is in the best interest of the City.
The Resolution for the issuance of the Loan will delegate to the Mayor, relying upon the
recommendation of the Chief Financial Officer and the City's Financial Advisor, the determination of
various terms of the Loan, including the payment of all related costs and expenses in connection with
the issuance of the Bonds and all other actions necessary or desirable in connection with the
issuance of the Loan.
The Resolution authorizes the City's representatives to execute and deliver any and all documents
necessary by the Resolution, the Loan Agreement, the Note, the Escrow Deposit Agreement or the
Amendments, or desirable or consistent with the requirements of the Resolution, the Loan
Agreement, the Note, the Escrow Deposit Agreement or the Amendments, in order to obtain the
Loan, accomplish the Refunding Program and provide for the full, punctual and complete
performance of all the terms, covenants and agreements contained in the Loan Agreement, the Note,
the Escrow Deposit Agreement, the Amendments and the Resolution, including the execution and
delivery of a tax compliance certificate and a Form 8038-G to be filed with the Internal Revenue
Service.
CONCLUSION •
The Administration recommends that the City adopt the Resolution which authorizes the refinancing
of the Outstanding 2010 Parking Bonds and Chase Equipment Lease Purchase Financing lease as
Page 227 of 2461
•
one combined Loan secured by a covenant to budget and appropriate from legally available non-ad
valorem revenues. The final maturity is not extended by this refinancing, and annual debt service is
not increased in any year. Based on current market conditions, the estimated net present value
savings from the proposed refinancings total $9.1 million and would be structured to front load
savings to help mitigate the financial impact from COVID-19.
Applicable Area
Citywide
Is this a"Residents Right Does this item utilize G.A.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
No No
Legislative Tracking_
Finance
Sponsor
Commissioner Steven Meiner
ATTACHMENTS:
Description
D Memo
Resolution and Agreement
Page 228 of 2461
1v' A/Y'J BEACH
City of Miami Beach,1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachf.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 29, 2020
SUBJECT: 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 $41,000,000 FROM JPMORGAN CHASE BANK, N.A.,
TO REFUND THE OUTSTANDING 2010 PARKING BONDS AND THE CHASE
EQUIPMENT LEASE PURCHASE FINANCING; AUTHORIZING THE EXECUTION
AND DELIVERY OF A LOAN AGREEMENT AND PROMISSORY NOTE TO
EVIDENCE THE OBLIGATION OF THE CITY TO REPAY SUCH LOAN; PROVIDING
SECURITY FOR THE REPAYMENT OF THE LOAN;AUTHORIZING THE REFUNDING
OF SUCH OBLIGATIONS TO BE REFUNDED; AND THE EXECUTION AND
DELIVERY OF AN ESCROW DEPOSIT AGREEMENT; APPOINTING AN ESCROW
AGENT; AUTHORIZING THE EXECUTION AND DELIVERY OF AMENDMENTS TO
THE TD BANK LOAN AGREEMENT AND THE RJ CAPITAL LOAN AGREEMENT;
AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE LOAN AND THE
REFUNDING PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE.
Background,
As an emergency response to the COVID-19 economic crisis,the Federal Reserve lowered the federal
funds interest rate to 0% to 0.25%, which are historic lows. The federal funds rate is used as a
benchmark for short-term lending for financial institutions and as a peg to many consumer interest
rates on credit cards, loans, and mortgages. Given this favorable interest rate environment, the City's
Finance Department, conjunction with the City's Financial Advisor, RBC Capital Markets ("Financial
Advisor"), has identified opportunities to achieve debt service savings from lower interest rates.
As set forth more fully below, the Administration proposes that the City Commission authorize a loan
with JPMorgan Chase Bank, N.A. ("JPMorgan"), in an aggregate principal amount not to exceed
$41,000,000, to refund the City's outstanding Parking Revenue Refunding Bonds, Series 2010A and
Parking Revenue Bonds, Series 20108 (collectively, the "Outstanding 2010 Parking Bonds")and the
City's 2010 equipment lease purchase financing with JPMorgan Chase, N.A., formerly known as
Chase Equipment Finance, Inc. (the "Chase Equipment Lease Purchase Financing"), which loan
would be secured by a covenant to budget and appropriate from non-ad valorem revenues of the City.
The details of the proposed loan are discussed more fully below.
On May 8, 2020, the Finance and Economic Resiliency Committee ("FERC") reviewed the proposed
refunding of the Outstanding 2010 Parking Bonds and Chase Equipment Lease Purchase Financing,
and favorably recommended that the Administration proceed with negotiations with potential lenders.
Page 229 of 2461
Commission Memorandum
July 29, 2020
Page 2
Analysis
The tax-exempt and taxable public markets experienced significant volatility due to the economic
disruption and uncertainty caused by COVID-19. A public offering requires significant time to prepare
for a financing due to rating agency processes and the preparation of the disclosure document for
investors. Many banks are currently only making liquidity loans for clients due to overwhelming
demand from corporate and government needs for cash. However,there are a few banks that are still
able to make longer-term fixed rate loans that would enable the City to achieve savings from
refinancing certain of its debt obligations. Bank loans enable the City to move quickly to lock in savings
as they do not require ratings or offering documents for investors, and bank rates are very competitive
compared to public offerings in the current market.
The City's Finance Team and Financial Advisor have identified the following savings opportunities,
which are discussed in greater detail below. The refunding of these obligations was recommended to
the FERC on May 8, 2020, and the FERC recommended that Administration move forward with
negotiating the refundings with potential lenders.
Combined Refinancing of Outstanding 2010 Parking Bonds and Chase Equipment Lease
Purchase Financing Lease
The City's$31.5 million in Outstanding 2010 Parking Bonds are callable on 9/1/2020, and have interest
rates ranging from 4.00-5.00%with a final maturity on 9/1/2040. A bank would not currently lend with
a pledge of parking revenues alone, but the City can refinance the bonds with a loan secured by a
covenant to budget and appropriate from legally available non-ad valorem revenues ("CBA") and
include excess parking revenues available under the bond resolution as non-ad valorem revenues to
pay debt service. The City can combine a refunding of its $7.3 million Chase Equipment Lease
Purchase Financing, which was used to purchase energy savings equipment from Ameresco, Inc. in
2010, with the Outstanding 2010 Parking Bonds (the"Refunding Program") as one larger transaction
(the"Loan").
The Administration and its Financial Advisor negotiated with lenders on the refundings to obtain
indicative interest rates and terms, and requested a term sheet from the bank with the most attractive
combination of rates and terms, which is JPMorgan. Following are the results of these discussions
with potential lenders:
Indicative Interest Rates for Refundings
Outstanding 2010 Parking Bonds&Chase Equipment Lease Purchase Financing
0512812020
Interest Interest Rate wlo
Lender Rate Structure Prepayable? Prepayment Penalty Prepayment Considerations
I If par prepayment structure
is selected,can refinance
on or after 2023 or 2025
i k 2.45%w/par call on without penalty. For all
E 9/1!23 Anytime without structures,if not prepaid
JPMorgan Yes,w/make- 2.38%w/par call on penalty after early,must refinance at end
;Chase 2.08% 10 year put whole__ } 9/1/25 9/1/23 or 9/1/25 of 10 years.
Truist
I Through final ;Yes,w/make-, 10 year call @ . No refinancing risk but
I(SunTrustl' 2.40%l maturity(2040) 1 whole 2.47% ; 100% _..___higher interest rate.
BB&T) iYes,w/make-I Would add a few ' Must refinance at end of 10
2.24%4 10 year put i whole basis points n/a years. -
Other Lenders Contacted but Unable to Provide Indicative Rate or Unable to Consider CBA Credits at this Time:
BofA CenterState Raymond James Wells Fargo
BBVA PNC TD Bank
Page 230 of 2461
Commission Memorandum
July 29, 2020
Page 3
The Loan will refinance the Outstanding 2010 Parking Bonds with a shorter-term fixed rate of 10 years
and the same amortization as the obligations being refunded. JPMorgan's proposal is recommended
as it provides the lowest interest cost through the 10 year fixed rate period. The City will need to
refinance the Loan at the end of the 10-year fixed interest rate period, which would be subject to
market conditions at that time, but the Loan would only have 10 years remaining. Most tax-exempt
bonds with a 10 year call feature are refinanced around 10 years even though they have a longer final
maturity.
Based on current market conditions and assuming a 2.00% interest rate through final maturity, the net
present value savings from refinancing the Outstanding 2010 Parking Bonds would be approximately
$8.7 million, which is 28% of bonds refunded. To provide cash flow relief due to the impact of COVID-
19, the refunding would be structured to provide upfront savings of approximately $2.4 million on
9/1/2020 and $2.6 million on 9/1/2021, and $220,000 annually thereafter. The final maturity of the
refunding will not be later than 2040,which is the final maturity of the Outstanding 2010 Parking Bonds.
The Chase Equipment Lease Purchase Financing lease has an interest rate of 4.18% and is currently
callable. The net present value savings on the Chase Equipment Lease Purchase Financing portion
of the Loan are approximately $360,000, which is 5% of the lease refunded. The savings would be
approximately$117,000 on 9/1/2020, $176,000 on 911121 and breakeven in 2022-2025.
The interest rate for the Loan with JPMorgan will be set just before closing on August 4 and is subject
to change until locked. Below is a summary of the savings based on an estimated rate of 2.00%.
Chase Equipment Lease Series 2010 A&B Parking Bonds
5/8/20 Finance 7/14/20 5/8/20 Finance 7/14/20
Committee Estimate Committee Estimate
Amount Refinanced _ $7,330,000 $7,123,558 $31,560,000 _. .
Current Interest Rate 4.18% 4.91%
Closing Date 06/03/2020 08/04/2020 06/03/2020 08/04/2020
•
Estimated New Interest Rate 2.09°x6 2.00% 2.09% _ 2.00%
•Net Present Value Savings $368,000_. $361,000 $7,900,000 $8,751,000
NPV Savings as a %of Bonds Refunded 5% 5% _ 25% __ 28%
Annual Savings
2020 $295,934 $117,372 $2,300,000 $2,435,923
2021 - 176,685 2,500,000 2,594,423
2022 - - 200,000 220,376
2023 - - .200,000 220,376
2024 - - 200,000 220,376
2025 - - 200,000 220,376
2026 - - 200,000 220,376
2027 - - 200,000 220,376
2028 - - 200,000 220,376
2029 - - 200,000 220,376
2030 - - 200,000 220,376
2031 - - 200,000 220,376
2032 - - 200,000 220,376
2033 - - 200.000 220,376
2034 - - 200,000 220,376
2035 - - 200,000 220,376
2036 - - 200,000 220,376
2037 - - 200,000 220,376
2038 - - 200,000 220,376
2039 - - 200,000 220,376
2040 _ - - 200,00_0 220,376
$295,934 $294,058 $8,600,000 89,217.486
Note:Preliminary,estimated and subject to change based on market conditions prior to closing on August 4,2020. Parking refunding based on
a 10 year fixed rate put with the same interest rate assumed for the life of the financing. City would need to refinance the loan at the end of
the 10 years for the remaining 10 years of the loan. Net present value savings for Arneresco lease are higher than the annual savings as net
-- present value calculation discounts savings(which are breakeven in years 2021-2025)through the final maturity of the loan in 2025 to today's
dollars at the loan rate. Actual interest rates and savings w ill vary.
Page 231 of 2461
Commission Memorandum
July 29, 2020
Page 4
Because of the character of the Loan, the prevailing market conditions, the economic conditions due
to COVI D-19 and the recommendations of the Financial Advisor, it was determined that the negotiation
of the Loan rather than a sale through a competitive bid is in the best interest of the City.
The Resolution for the issuance of the Loan will delegate to the Mayor, relying upon the
recommendation of the Chief Financial Officer and the City's Financial Advisor, the determination of
various terms of the Loan, including the payment of all related costs and expenses in connection with
the issuance of the Bonds and all other actions necessary or desirable in connection with the issuance
of the Loan.
The Resolution authorizes the City's representatives to execute and deliver any and all documents
necessary by the Resolution, the Loan Agreement, the Note, the Escrow Deposit Agreement or the
Amendments, or desirable or consistent with the requirements of the Resolution,the Loan Agreement,
the Note,the Escrow Deposit Agreement or the Amendments, in order to obtain the Loan, accomplish
the Refunding Program and provide for the full, punctual and complete performance of all the terms,
covenants and agreements contained in the Loan Agreement, the Note, the Escrow Deposit
Agreement, the Amendments and the Resolution, including the execution and delivery of a tax
compliance certificate and a Form 8038-G to be filed with the Internal Revenue Service.
Conclusion
The Administration recommends that the City adopt the Resolution which authorizes the refinancing
of the Outstanding 2010 Parking Bonds and Chase Equipment Lease Purchase Financing lease as
one combined Loan secured by a covenant to budget and appropriate from legally available non-ad
valorem revenues. The final maturity is not extended by this refinancing, and annual debt service is
not increased in any year. Based on current market conditions, the estimated net present value
savings from the proposed refinancings total$9.1 million and would be structured to front load savings
to help mitigate the financial impact from COVID-19.
JLM/JW
Exhibit"A"—Loan Agreement(including Note)
Exhibit"B"—Escrow Deposit Agreement
Exhibit "C"— First Amendment to TD Bank Loan Agreement
Exhibit"D"— First Amendment to RJ Capital Loan Agreement
Page 232 of 2461
EXHIBIT"A"
LOAN AGREEMENT
(including Note)
•
A-1
010-9089.5027/4/AMERICAS
Page 238 of 2461
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement) is made and entered into as of
August , 2020 (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 of the hereinafter defined Note (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:
"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 Patton Boggs (US) LLP or such other attorney-at-
law or firm of such attorneys having expertise in the legal aspects of the issuance of
indebtedness by states and political subdivisions thereof and acceptable to the Bank.
"Budgeted Revenues" means the 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.
"Chase Equipment Lease Purchase Financing" means the equipment lease
purchase financing entered into between the Borrower and Chase Equipment Finance,
Inc. pursuant to the Master Lease-Purchase Agreement dated as of May 25, 2010.
"Default Rate" has the meaning given to such term in the Note.
"Essential Government Services" means the provision of public safety and
general governmental services by the Borrower, the expenditures for which are set forth
as the line items entitled "General Government Expenditures" and "Public Safety
Expenditures" as reflected in the City of Miami Beach Statement of Revenues,
Expenditures and Changes in Fund Balances - Governmental Funds and as reported in
the City's latest Comprehensive Annual Financial Report.
010-9089-1515/3/AMERICAS Page 239 of 2461
"Event of Default" means an Event of Default specified in Article VI of this
Agreement.
"Governmental Authority" means the government of the United States of America
or any political subdivision thereof or any governmental or quasi-governmental entity,
including any court, department, commission, board, bureau, agency, administration,
central bank, service, district or other instrumentality of any governmental entity or other
entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or
administrative powers or functions of or pertaining to government, or any arbitrator,
mediator or other person with authority to bind a party at law.
"Loan" means the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" means $ principal amount.
"Maturity Date" means September 1, 2040.
"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.
"Note" means the Promissory Note in the form attached hereto as Attachment A.
"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.
"Refunded Bonds" means the $4,155,000 outstanding principal amount of City of
Miami Beach, Florida Parking Revenue Refunding Bonds, Series 2010A, and
$27,405,000 outstanding principal amount of City of Miami Beach, Florida Parking
Revenue Bonds, Series 2010B.
"Refunding Requirements" means the amount necessary to defease and pay at
maturity and redeem, as applicable, the Refunded Bonds, prepay in full the Chase
Equipment Lease Purchase Financing and pay closing costs of the Loan.
"Resolution" means Resolution No. 2020- adopted by the Mayor and City
Commission of the Borrower on July , 2020.
"State" means the State of Florida.
2
010-943139-1515/3/AMERICAS
Page 240 of 2461
"Tax Compliance Certificate" means the Tax Compliance Certificate to be
executed and delivered concurrently with the Note.
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 Note and this Agreement, to secure the Note .in the manner contemplated
hereby and to perform and observe all the terms and conditions of the Note and this
Agreement on its part to be performed and observed. The Borrower may lawfully
borrow funds hereunder in order to pay the Refunding Requirements.
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 Note, 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 Note 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
Note. The Note has been duly authorized, executed, issued and delivered to the Bank
and constitutes the legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms and the terms hereof, and is 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 Note or the execution and delivery of or the performance by the
Borrower of its obligations under this Agreement and the Note 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 Note. The making and performing by
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the Borrower of this Agreement and the Note 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 Note.
Section 2.04. Pending or Threatened Litiaation. 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 Note or of any action taken or
to be taken in connection with the transactions contemplated hereby or thereby.
Section 2.05. Financial Information. The financial information regarding the
Borrower furnished to the Bank by the Borrower in connection with the Loan is
accurate, and there has been no material and adverse change in the financial condition
of the Borrower from that presented in such information.
ARTICLE III
COVENANTS OF THE BORROWER
Section 3.01. Affirmative Covenants. For so long as any of the principal
amount of or interest on the Note is outstanding or any duty or obligation of the
Borrower hereunder or under the Note 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
Note at the time and place, and in the manner and from the sources provided herein
and in the Note.
(b) Use of Proceeds. Proceeds from the Note will be used only to pay the
Refunding Requirements.
(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 Note have been paid in full.
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(e) Records. The Borrower agrees that any and all records of the Borrower
with respect to the Loan 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 Note.
(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 Note.
(i) Payment of Document Taxes. In the event the Note or this Agreement
should be subject to the excise tax on documents or the intangible personal property tax
of the State, the Borrower shall pay such taxes or reimburse the Bank for any such
taxes paid by it.
(j) Financial information. The Borrower will cause an audit to be completed
of its books and accounts and shall furnish to the Bank audited year-end financial
statements of the Borrower together with a report by an independent certified public
accountant acceptable to the Bank stating without qualification unacceptable to the
Bank that the audit was conducted in accordance with generally accepted auditing
standards and stating that such financial statements present fairly in all material
respects the financial position of the Borrower and the results of its operations and cash
flows for the periods covered by the audit report, all in conformity with generally
accepted accounting principles applied on a consistent basis. The Borrower shall adopt
an annual budget as required by law. The Borrower shall make publicly available (i) a
copy of its annual operating budget for each fiscal year ending after September 30,
2020 within 60 days after its adoption, 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, 2020 within 210 days
after the end thereof.
(k) Immunity. To the fullest extent permitted by law, the Borrower will not
assert any immunity it may have as a public entity under the laws of the State from
lawsuits with respect to the Note and this Agreement; provided, however, that nothing
contained herein shall be deemed a waiver in any respect to the Borrower's immunity
with respect to tort liabilities.
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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 Note is outstanding or any duty
or obligation of the Borrower hereunder or under the Note remains unpaid or
unperformed, the Borrower covenants to the Bank that, without the prior written consent
of the Bank, the Borrower shall not hereafter 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 Note (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 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 Note 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 Note and
all Competing Debt during such fiscal year.
For purposes of calculating the foregoing, (A) if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions that
adjust the interest rate upon a change in tax law or in the tax treatment of interest on the
debt or upon a default), then the interest rate on such indebtedness shall be assumed to
be the highest of(i)to the extent applicable, the average rate of actual interest borne by
such indebtedness during the most recent complete month prior to the date of issuance
of such proposed indebtedness, (ii) for tax-exempt debt, The Bond Buyer Revenue
Bond Index last published in the month preceding the date of issuance of such
proposed indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S.
Treasury obligation with a constant maturity closest to but not before the maturity date
of such indebtedness, as reported in Statistical Release H.15 of the Federal Reserve on
the last day of the month preceding the date of issuance of such proposed
indebtedness, plus three percent, provided that if the Borrower shall have entered into
an interest rate swap or interest rate cap or shall have taken any other action which has
the effect of fixing or capping the interest rate on such indebtedness for the entire term
thereof, then such fixed or capped rate shall be used as the applicable rate for the
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period of such swap or cap up to the notional amount of such swap, 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; (B) with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a certification
delivered to the Bank at the time of any advance to the extent such certification
assumes that the full loan amount under such line of credit or similar arrangement has
been borrowed at the time of such advance; and (C) with respect to any indebtedness
(including, without limitation, in clause (B)) which has 25% or more of the aggregate
principal amount coming due in any one year ("Balloon Indebtedness"), including the
Loan, at the option of the Borrower, principal and interest thereon shall be assumed to
be payable over a period of twenty years on a level debt service basis computed at the
interest rate provided in (A)(ii) above if the Balloon Indebtedness is tax-exempt, and
(A)(iii) above if the Balloon Indebtedness is taxable. ++�
Nothing in this Agreement limits the Borrower's ability to incur indebtedness
payable from Enterprise Revenues.
Section 3.03. Bank Counsel 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 Note in the amount of $8,500.00, said amount to be due and payable upon the
execution and delivery of this Agreement.
Section 3.04. Registration and Exchange of Note; The Borrower shall keep a
registration book setting forth the identification of the owner of the Note. The Bank's
right, title and interest in and to the Note and any amounts payable by the Borrower
thereunder may be assigned and reassigned in whole only by the Bank, without the
necessity of obtaining the consent of the Borrower; provided, that any such assignment,
transfer or conveyance shall be made only to (a) an affiliate of the Bank or (b) a bank,
insurance company or their affiliate, provided that any such entity is purchasing the
Note for its own account with no present intention to resell or distribute the Note, subject
to each investor's right at any time to dispose of the Note as it determines to be in its
best interests or (c) a "qualified institutional buyer," as defined in Rule 144A of the
Securities Act of 1933, or an "accredited investor," as defined in Rule 501 of Regulation
D. Upon notification by the Bank to the,Borrower of the Bank's intent to assign and sell
its right, title and interest in and to the Note as herein provided, the Borrower agrees
that it shall execute and deliver to the assignee, a Note in the principal amount so
assigned, registered in the name of the assignee, executed and delivered by the
Borrower in the same manner as provided herein and with a schedule attached thereto
setting forth the amounts to be paid on each principal payment date with respect to the
Note. In all cases of an assignment of the Note, the Borrower shall at the earliest
practical time enter the change of ownership in the registration book kept by the
Borrower; provided, however, the written notice of assignment must be received by the
Borrower at the Borrower's address set forth in Attachment B hereto no later than the
close of business on the fifteenth (15th) day (whether or not a Business Day) of the
calendar month next preceding an interest payment date in order to have such transfer
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recorded on the registration book of the Borrower on such next succeeding interest
payment date.
Section 3.05. Note Mutilated. Destroyed. Stolen or Lost. In case the 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, 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 Note at
the place, on the dates and in the manner provided therein, provided that the Borrower
may be compelled to pay the principal of and interest on the Note solely from the Non-
Ad Valorem Revenues budgeted and appropriated for such purpose as provided herein,
and nothing in the Note 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 Note. The City pledges and grants a lien on the Budgeted
Revenues to secure the City's payment obligations hereunder and under the Note.
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 nor does it
preclude the Borrower from pledging its Non-Ad Valorem Revenues. Such covenant to
budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the
payment of obligations secured by a pledge of such Non-Ad Valorem Revenues
heretofore or hereafter entered into (including the payment of debt service on bonds
and other instruments). The Borrower is not and shall not be liable for the payment of
the principal of and interest on the Note or for the performance of any pledge, obligation
or agreement for payment undertaken by the Borrower hereunder or under the Note
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 Note or this Loan Agreement from any source other than the
Budgeted Revenues.
Subject to the provisions of this Section 3.06, the Borrower covenants that, so
long as the Note shall remain unpaid or any other amounts are owed by the Borrower
under this Agreement or the Note, 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 Note and other amounts owed under this Agreement
as the same shall become due (the "Budgeted_Revenues"). In the event that the
amount previously budgeted for such purpose is ever insufficient to pay such principal
and interest on the Note 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 Note and such other amounts. Such covenant to budget and appropriate
from Non-Ad Valorem Revenues shall be cumulative to the extent not paid and shall
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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 Note 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 Note.
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 Note shall not be
subject to the covenant to budget and appropriate, to the extent provided therein. 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
Note 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 Note shall not be subject to the covenant to budget and appropriate.
Section 3.07. Officers and Employees of the Borrower Exempt from Personal
Liability. No recourse under or upon any obligation, covenant or agreement of this Loan
Agreement or the Note 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
Note 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 Note, 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 Note 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 Note 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.
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Section 3.09. Tax Representations, Warranties and Covenants of the Borrower.
The Borrower agrees to comply with the provisions of the Tax Compliance Certificate.
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 Note 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 Note 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 Note 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
Note;
(b) The opinion of Bond Counsel regarding the validity and enforceability of
the Agreement and the Note, the exclusion of interest on the Note from gross income
for federal income tax purposes and the exemption of the Note from certain taxes
imposed under the laws of the State;
(c) The opinion of Bond Counsel regarding the defeasance of the Refunded
Bonds; and
(d) Such additional supporting documents as the Bank may reasonably
request.
ARTICLE V
THE LOAN
Section 5.01. The Loan. The Bank hereby agrees to loan to the Borrower the
amount of the Loan Amount to be evidenced by the Note to provide funds to finance the
Refunding Requirements upon the terms and conditions set forth in this Agreement and
the Note. The proceeds of the Loan shall be applied as provided in a certificate of an
Authorized Individual. The Borrower agrees to repay the principal amount borrowed
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plus interest thereon, upon the terms and conditions set forth in this Agreement and the
Note.
Section 5.02. Description and Payment Terms of the Note. To evidence the
Loan, the Borrower shall issue and deliver to the Bank the Note in the form attached
hereto as Attachment A.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. General. An "Event of Default" shall be deemed to have occurred
under this Agreement if:
(a) The Borrower shall fail to make any payment of (i) the principal of or
interest on the Loan when the same shall become due and payable, or (ii) any other
amount payable hereunder when the same shall be due and payable and such failure
shall continue for a period of twenty (20) days; or
(b) The Borrower does not comply with Section 3.01(c), (d), (e), (f) or (j) or
Section 3.02; or
(c) The Borrower shall default in the performance of or compliance with any
term or covenant contained in this Agreement and the Note, 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;
provided, however, that such continued breach shall not be an Event of Default at the
end of such thirty (30) day period, so long as (i) such breach is, in the sole judgment of
the Bank, capable of cure; (ii) the Borrower is proceeding diligently to cure such breach;
and (iii) such breach, in any event, is cured within one hundred twenty (120) days of
such written notification by the Bank; or
(d) Any representation or warranty made in writing by or on behalf of the
Borrower in this Agreement or the Note 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,
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judgments or decrees shall not be vacated or set aside or stayed within ninety(90) days
from the date of entry thereof; or
(g) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of
the United States of America or the State; or
(h) The Borrower shall default in the due and punctual payment or
performance of covenants related to any other obligation for the payment of money to
the Bank or any other subsidiary or affiliate of any bank holding company of which the
Bank is a subsidiary; or
(i) The Borrower shall default in the due and punctual payment of any
Competing Debt or an event of default exists with respect to any Competing Debt which
results in the acceleration of the time for payment of such debt or entitles the holder of
such Competing Debt to accelerate the time for payment of such debt; or
(j) A debt moratorium, debt restructuring, debt adjustment or comparable
restriction is imposed on the repayment when due and payable of the principal of or
interest on any debt of the Borrower by the Borrower or any Governmental Authority
with appropriate jurisdiction; or
(k) Any material provision of this Agreement, the Note or the Resolution shall
at any time for any reason cease to be valid and binding on the Borrower as a result of
any legislative or administrative action by a Governmental Authority with competent
jurisdiction or shall be declared in a final non-appealable judgment by any court with
competent jurisdiction to be null and void, invalid, or unenforceable, or the validity or
enforceability thereof shall be publicly contested by the Borrower.
Section 6.02. Effect of Event of Default.
Except as otherwise provided in the Note, 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 Note to be immediately due and payable
without further action of any kind and upon such declaration the Note and the interest
accrued thereon shall become immediately due and payable. In addition, and
regardless whether such declaration is or is not made, all amounts due and payable
hereunder and the Note shall bear interest at the Default Rate and may also seek
enforcement of and exercise all remedies available to it under any applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Waiver; Cumulative Remedies. No failure or delay on the part
of the Bank in exercising any right, power, remedy hereunder or under the Note 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
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or thereunder. The remedies herein and therein provided are cumulative and not
exclusive of any remedies provided by law or in equity.
Section 7.02. Amendments, Changes or Modifications to the Agreement. This
Agreement and the Note 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 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 Note is 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.
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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 Note (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 Note 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 and B 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 Note
(collectively a "Claim"). The parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of any Claim. This provision is a material
inducement for the parties entering into this Agreement.
Section 7.14. Patriot Act. The Bank hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and
other information that will allow the Bank to identify the Borrower in accordance with
such Act.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective between them as of the date of first set forth above.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
APPROVED AST JPMORGAN CHASE BANK, N.A.
FORM&LANGUAGE
&FOR EXECUTION
By:
Or.(-- 7(i I (Zb Caitlin Tarr, Associate
City Attorney rw iDar s 14
010-9089-1515/3/AMERICAS
Page 252 of 2461
ATTACHMENT A
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 $ , together with interest
on the principal balance outstanding at the rate per annum equal to % computed
based upon a 360-day year of twelve 30-day months.
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 Borrower shall pay the Bank interest hereon in arrears on March 1 and
September 1 of each year, commencing on September 1, 2020, and principal hereon as
set forth in Schedule A attached hereto.
All payments by the Borrower pursuant to this Note shall apply first to accrued
interest and the balance thereof shall apply to the principal sum due.
The principal of and interest on this Note may be prepaid at the option of the
Borrower, in whole or in part, at any time, on and after September 1, 202_, without
prepayment penalty or premium.
This Note shall be subject to mandatory tender for purchase on September 1, 2030
(the "Tender Date") at a purchase price equal to the principal amount of this Note then
outstanding; provided, however, that at the written request of the Borrower delivered to the
Bank no later than sixty (60) days prior to the Tender Date, the Bank may, in its sole
discretion, extend the Tender Date to a later date as shall be acceptable to the Bank, and
subject to any change in the interest rate or other terms as the Bank may require in
connection with such extension.
In the event a Determination of Taxability (as defined below) shall have occurred,
the rate of interest on this Note shall be increased to the Taxable Rate (as defined below),
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 that are not part of the Taxable Rate. 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
010-9089-1515/3/AMERICAS Page 253 of 2461
For purposes of the foregoing paragraph, "Determination of Taxability" means the
following, which shall be the result of actions or inactions of the Borrower: (i) the issuance
by the Internal Revenue Service of a statutory notice of deficiency or other written
notification which holds in effect that the interest payable on this Note is includable for
federal income tax purposes in the gross income of the holder thereof, which notice or
notification is not contested by either the Borrower or the Bank, or (ii) a determination by a
court of competent jurisdiction that the interest payable on this Note is includable for
federal income tax purposes in the gross income of the Bank, which determination either is
final and non-appealable or is not appealed within the requisite time period for appeal, or
(iii) the admission in writing by the Borrower to the effect that interest on this Note is
includable for federal income tax purposes in the gross income of the Bank. A
Determination of Taxability does not include and is not triggered by a change in law by the
U.S. Congress that causes the interest to be includable in the Bank's gross income.
"Taxable Rate" means a rate of interest that will result in the same after-tax yield to the
Bank as before said Determination of Taxability.
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
by the Bank as a result of such Determination of Taxability that are not part of the Taxable
Rate. 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.
Upon the occurrence and during the continuance of an Event of Default, (as defined
in the Loan Agreement), 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.
A-2
•
010-9089-1515/3/AMERICAS Page 254 of 2461
Upon the occurrence and during the continuance of an Event of Default, the Note
shall bear interest at the Default Rate. For purposes of this Note, "Default Rate" means
the Prime Rate plus 4.00% but not to exceed the maximum rate permitted by law.
"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.
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. All terms, conditions and provisions of
the Loan Agreement and Resolution No. 2020- adopted by the Mayor and City
Commission of the Borrower 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.
A-3
010-9089.1515/3/AMERICAS Page 255 of 2461
1N 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 August 2020.
CITY OF MIAMI BEACH, FLORIDA
By:
Dan Gelber, Mayor
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
RktionHi;
7(2#11 °ctqn n p Date
A-4
010-9089-1515/3/AMERICAS Page 256 of 2461
SCHEDULE A
Date
(September 1,) Principal
2020 $
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
2039
2040
01 0-9089-1515/3/AMERICAS Page 257 of 2461
ATTACHMENT B
1. Authorized Individuals: John Woodruff, Chief Financial Officer
Allison R. Williams, Deputy Finance Director
2. Notice Address of City of Miami Beach, Florida
Borrower: 1700 Convention Center Drive
aro Floor
Miami Beach, Florida 33139
Attention: Chief Financial Officer
3. Notice Address of Bank: JPMorgan Chase Bank, N.A.
8181 Communications Pkwy
Building B, Floor 6
Plano, Texas 75024
Attention: Caitlin Tarr, Associate
•
B-1
010-9089-1515/3/AMERICAS
Page 258 of 2461
EXHIBIT"B"
ESCROW DEPOSIT AGREEMENT
B-1
010-9089-5027/4/AMERICAS
Page 259 of 2461
CITY OF MIAMI BEACH, FLORIDA
and
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
ESCROW DEPOSIT AGREEMENT
Relating to
PARKING REVENUE REFUNDING BONDS,
SERIES 2010A
and
PARKING REVENUE BONDS,
SERIES 2010B
DATED AS OF , 2020 J
010-9089-1856/2/AMERICAS Page 260 of 2461
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (the "Agreement") made and entered
into as of , 2020, by and between the CITY OF MIAMI BEACH, FLORIDA
(the "City") and U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent (the "Escrow
Agent").
WITNESSETH:
WHEREAS, the City has heretofore issued its $17,155,000 aggregate principal
amount City of Miami Beach, Florida Parking Revenue Refunding Bonds, Series 2010A,
dated November 16, 2010, presently outstanding in the principal amount of$4,155,000,
as more particularly described in Schedule A attached hereto and made a part hereof
(the "Outstanding Series 2010A Bonds"), and its $27,405,000 aggregate principal
amount City of Miami Beach, Florida Parking Revenue Bonds, Series 2010B, dated
November 16, 2010, of all of which are presently outstanding, as more particularly
described in Schedule A attached hereto and made a part hereof (the "Outstanding
Series 2010B Bonds"), pursuant to the provisions of Resolution No. 2010-27491,
adopted by the Mayor and City Commission of the City (the "Commission") on
September 20, 2010 (the "Refunded Bonds Bond Resolution"); and
WHEREAS, the City desires to refund, defease and pay at maturity or redeem,
as applicable, the Outstanding Series 2010A Bonds and the Outstanding Series 2010B
Bonds (hereinafter referred to as the"Refunded Bonds"); and
WHEREAS, the City has issued its Promissory Note in the principal amount of
$ to JPMorgan Chase Bank, N.A. (the "Note"), pursuant to the provisions
of Resolution No. 2020- , adopted by the Commission on , 2020, a
portion of the proceeds of which Note is to be deposited with the Escrow Agent to
provide for the refunding, defeasance and payment at maturity or redemption, as
applicable, of the Refunded Bonds; and
WHEREAS, in order to provide for the proper and timely application of the
moneys deposited hereunder to the payment of the Refunded Bonds, it is necessary for
the City to enter into this Agreement with the Escrow Agent;
NOW, THEREFORE, the City and the Escrow Agent, in consideration of the
foregoing and the mutual covenants herein set forth and in order to secure the payment
of the principal of and interest on all of the Refunded Bonds according to their tenor and
effect, do hereby agree as follows:
010.9089-1856/2/AMERICAS Page 261 of 2461
ARTICLE I
CREATION AND CONVEYANCE OF TRUST ESTATE
Section 1.01.Creation and Conveyance of Trust Estate. The City hereby grants,
warrants, remises, releases, conveys, assigns, transfers, aliens, pledges, sets over and
confirms unto the Escrow Agent and to its successors in the trust hereby created, and to
it and its assigns forever, all and singular the property hereinafter described, to wit:
DIVISION I
All right, title and interest in and to $ in moneys deposited directly
with the Escrow Agent and derived from the proceeds of the Note upon issuance and
delivery of the Note and execution of and delivery of this Agreement.
DIVISION II
Any and all other property of every kind and nature from time to time hereafter,
by delivery or by writing of any kind, conveyed, pledged, assigned or transferred as and
for additional security hereunder by the City, or by anyone on behalf of the City to the
Escrow Agent for the benefit of the Refunded Bonds.
DIVISION III
All property which is by the express provisions of this Agreement required to be
subject to the pledge hereof and any additional property that may, from time to time
hereafter, by delivery or by writing of any kind, by the City, or by anyone in its behalf, be
subject to the pledge hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate (as such term is
hereinafter defined), including all additional property which by the terms hereof has or
may become subject to the encumbrances of this Agreement, unto the Escrow Agent,
and its successors and assigns, forever in trust, however, for the sole benefit and
security of the holders from time to time of the Refunded Bonds, but if the principal of
and interest on all of the Refunded Bonds shall be fully and promptly paid upon the
maturity or redemption thereof, as applicable, in accordance with the terms thereof, then
this Agreement shall be and become void and of no further force and effect except as
otherwise provided herein; otherwise the same shall remain in full force and effect, and
upon the trusts and subject to the covenants and conditions hereinafter set forth.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. In addition to words and terms elsewhere defined in
this Agreement, the following words and terms as used in this Agreement shall have the
following meanings, unless some other meaning is plainly intended.
"Trust Estate", "trust estate" or "pledged property" shall mean the property, rights
and interests described or referred to under Divisions 1, II and III in Article I above.
2
010.9089-1B56/2/AMERICAS Page 262 of 2461
Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Words importing the singular
number shall include the plural number and vice versa unless the context shall
otherwise indicate. The word "person" shall include corporations, associations, natural
persons and public bodies unless the context shall otherwise indicate. Reference to a
person other than a natural person shall include its successors.
ARTICLE III
ESTABLISHMENT OF ESCROW DEPOSIT TRUST FUND: FLOW OF FUNDS
Section 3.01.Creation of Escrow Deposit Trust Fund and Deposit of Moneys.
There is hereby created and established with the Escrow Agent a special and
irrevocable trust fund designated "City of Miami Beach, Florida Parking Revenue Bonds,
Series 2010 Escrow Deposit Trust Fund" (the "Escrow Deposit Trust Fund"), to be held
by the Escrow Agent for the sole benefit of the holders of the Refunded Bonds and
accounted for separate and apart from the other funds of the City and, to the extent
required by law, of the Escrow Agent.
Concurrently with the delivery of this Agreement, the City herewith causes to be
deposited with the Escrow Agent and the Escrow Agent acknowledges receipt of
immediately available moneys for deposit in the Escrow Deposit Trust Fund in the
amount of $ , all of which shall be held uninvested and will provide moneys
sufficient to pay the principal of and interest on the Refunded Bonds, upon the maturity
or redemption thereof, as applicable, as more particularly described in Schedule B
attached hereto and made a part hereof.
Notwithstanding the foregoing, if the amounts deposited in the Escrow Deposit
Trust Fund are insufficient to make said payments of principal and interest, the City
shall cause to be deposited into the Escrow Deposit Trust Fund the amount of any
deficiency immediately upon notice from the Escrow Agent.
Section 3.02. Irrevocable Trust Created. The deposit of moneys or other property
hereunder in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit of
said moneys and other property hereunder for the sole benefit of the holders of the
Refunded Bonds, subject to the provisions of this Agreement. The holders of the
Refunded Bonds, subject to the provisions of this Agreement, shall have an express lien
on all moneys and other property in the Escrow Deposit Trust Fund. The moneys
deposited in the Escrow Deposit Trust Fund and other property hereunder shall be held
in trust by the Escrow Agent, and shall be applied for the payment of Refunded Bonds,
as more specifically set forth in Schedule B hereto.
Section 3.03.Transfers from Escrow Deposit Trust Fund. The Escrow Agent, in
its capacity of Bond Registrar(as defined in the Refunded Bonds Bond Resolution) with
respect to the Refunded Bonds (the "Refunded Bonds Bond Registrar"), no later than
the payment date for the Refunded Bonds, as specified in Schedule B hereof, shall pay
from such moneys the principal of and interest on the Refunded Bonds, as specified in
Schedule B hereof. The City previously instructed the Refunded Bonds Bond Registrar,
to call the Refunded Bonds for redemption on September 1, 2020, pursuant to a
3
010-9089-18.56/2/AMERICAS Page 263 of 2461
•
conditional notice of redemption, at a redemption price of 100% of the principal amount
thereof in accordance with the Refunded Bonds Bond Resolution, except that the
Outstanding Series 2010A Bonds maturing on September 1, 2020 shall be paid at
maturity, and the Refunded Bonds Bond Registrar has previously provided conditional
notice of redemption in accordance with the Refunded Bonds Bond Resolution. The
City shall perform, and shall cause the Refunded Bonds Bond Registrar to perform, as
applicable, the responsibilities, described in the Refunded Bonds Bond Resolution, in
connection with the payment at maturity or redemption, as applicable, of the Refunded
Bonds.
Section 3.04.Escrow Deposit Trust Fund Constitutes Trust Fund. The Escrow
Deposit Trust Fund created and established pursuant to this Agreement shall be and
constitute a trust fund for the purposes provided in this Agreement and shall be kept
separate and distinct from all other funds of the City and, to the extent required by law,
of the Escrow Agent and used only for the purposes and in the manner provided in this
Agreement.
Section 3.05.Transfer of Funds After All Payments Required by this Agreement
are Made. After all of the transfers by the Escrow Agent to the payment of the principal
of and interest on the Refunded Bonds provided in Schedule B have been made, all
remaining moneys and securities in the Escrow Deposit Trust Fund shall be transferred
to the City for the payment of principal of or interest on the Note; provided, however,
that no such transfers shall be made until all of the principal of and interest on the
Refunded Bonds have been paid.
ARTICLE IV
CONCERNING THE ESCROW AGENT
Section 4.01.Liability of Escrow Agent. The Escrow Agent shall not be liable in
connection with the performance of its duties hereunder except for its own negligence,
misconduct or default. The Escrow Agent shall not be liable for the accuracy of the
calculations as to the sufficiency of moneys to pay the Refunded Bonds. So long as the
Escrow Agent applies any moneys to pay the Refunded Bonds as provided herein, and
complies fully with the terms of this Agreement, the Escrow Agent shall not be liable for
any deficiencies in the amounts necessary to pay the Refunded Bonds caused by such
calculations.
The duties and obligations of the Escrow Agent shall be determined by the
express provisions of this Agreement. The Escrow Agent may consult with counsel with
respect to any matter relevant to this Agreement, who may or may not be counsel to the
City, and be entitled to receive from the City reimbursement of the reasonable fees and
expenses of such counsel, and in reliance upon the opinion of such counsel have full
and complete authorization and protection in respect of any action taken, suffered or
omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall
deem itnecessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action under this Agreement, such matter may be deemed to
be conclusively established by a certificate signed by an authorized officer of the City
and the Escrow Agent may in good faith conclusively rely upon such certificate.
4
Page 264 of 2461
010-9089-1856f2/AMERICAS
The Escrow Agent shall have no lien, security interest or right of set-off
whatsoever upon any of the moneys in the Escrow Deposit Trust Fund for the payment
of fees or expenses for the services rendered by the Escrow Agent under this
Agreement.
Section 4.02.Permitted Acts. The Escrow Agent and its affiliates may become
the owner of all or may deal in the Refunded Bonds as fully and with the same rights as
if it were not the Escrow Agent.
Section 4.03.Payment to Escrow Accent. The City shall pay to the Escrow Agent
reasonable compensation for all services rendered by it hereunder and also its
reasonable expenses, charges and other disbursements and those of its attorneys,
agents and employees incurred in and about the administration and execution of the
trusts hereby created, and the performance of its powers and duties hereunder,
including, without limitation, all advances, counsel fees and other expenses reasonably
made or incurred by the Escrow Agent in connection with such services, all as provided
in Schedule C hereto.
ARTICLE V
MISCELLANEOUS
Section 5.01.Amendments to this Agreement. This Agreement is made for the
benefit of the holders from time to time of the Refunded Bonds and shall not be
repealed, revoked, altered or amended without the written consent of all such holders of
the Refunded Bonds, the Escrow Agent and the City; provided, however, that the City
and the Escrow Agent may, without the consent of, or notice to, such holders, enter into
such agreements supplemental to this Agreement which shall not adversely affect the
rights of such holders and shall not be inconsistent with the terms and provisions of this
Agreement for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement; or
(b) to grant to or confer upon the Escrow Agent for the benefit of the holders
of the Refunded Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Escrow Agent.
The Escrow Agent shall be entitled to rely upon an unqualified opinion of a
nationally recognized counsel in the field of law relating to municipal bonds with respect
to compliance with this Section.
Prior to any repeal, revocation, alteration or amendment of this Agreement, the
City shall provide written notice of such proposed repeal, revocation, alteration or
amendment to S&P Global Ratings and Moody's Investors Service, Inc. at their
addresses set forth below:
S&P Global Ratings
55 Water Street
New York, New York 10041
Attn: Municipal Ratings Desk/Refunded Bonds
5
010-0089-1856/2/AMERICAS Page 265 of 2461
Moody's Investors Service, Inc.
7 World Trade Center
250 Greenwich Street, 23ni Floor
New York, New York 10007
Section 5.02.Severability. If any one or more of the covenants or agreements
provided in this Agreement on the part of the City or the Escrow Agent to be performed
should be determined by a court of competent jurisdiction to be contrary to law, such
covenant or agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in no way affect the
validity of the remaining provisions of this Agreement.
Section 5.03.Agreement Binding. All the covenants, proposals and agreements
in this Agreement contained by or on behalf of the City or by or on behalf of the Escrow
Agent shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed or not.
Section 5.04.Notices to Escrow Agent and City. Any notice, demand, direction,
request or other instrument authorized or required by this Agreement to be given to or
filed with the Escrow Agent or the City, shall be deemed to have been sufficiently given
or filed for all purposes of this Agreement if personally delivered and receipted for, or if
sent by registered or certified United States mail, return receipt requested, addressed
as follows:
(a) As to the City:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Chief Financial Officer
(b) As to the Escrow Agent:
U.S. Bank National Association
500 West Cypress Creek Road, Suite 460
Fort Lauderdale, Florida 33309
Attention: Corporate Trust Services
Any party hereto may, by notice sent to the other parties hereto, designate a
different or additional address to which notices under this Agreement are to be sent.
Section 5.05.Termination. This Agreement shall terminate when all transfers
and payments required to be made by the Escrow Agent under the provisions hereof
shall have been made.
Section 5.06.Execution by Counterparts. This Agreement may be executed in
several counterparts, all or any of which shall be regarded for all purposes as one
original and shall constitute and be but one and the same instrument.
6
010-9089-18560AMERICAS Page 266 of 2461
Section 5.07.Notice of Defeasance. The Chief Financial Officer is hereby
instructed to (i) mail, or cause the Refunded Bonds Bond Registrar to mail, to the
Holders, and (ii)file, or.cause to be filed, with the Municipal Securities Rulemaking
Board, a notice of defeasance of the Refunded Bonds, substantially in the form attached
hereto as Schedule D.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officers and, with respect to the City, its official
seal to be hereunto affixed and attested as of the date first above written. •
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
By:
Vice President
U.S. Bank National Association, as Refunded Bonds Bond Registrar, hereby
agrees to the provisions of this Agreement applicable to the Refunded Bonds Bond
Registrar.
U.S. BANK NATIONAL ASSOCIATION,
as Refunded Bonds Bond Registrar
By:
Vice President
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
c -Q.,Q 1- 7(Z-(12-°GgrAtDorrt� "`
(OP Data7
010-9089-1856/2/AMERICAS Page 267 of 2461
SCHEDULE A
REFUNDED BONDS
Series Maturity Date Principal Amount Interest Rate
2010A 09/01/2020 $ 1,725,000 5.000%
2010A 09/01/2021 1,810,000 5.000
2010A 09/01/2022 620,000 4.000
2010B 09/01/2022 1,170,000 4.000
2010B 09/01/2023 960,000 4.125
2010B 09/01/2024 1,000,000 4.250
2010B 09/01/2025 350,000 5.000
2010B 09/01/2030* 6,690,000 4.625
2010B 09/01/2040* 17,235,000 5.000
* Term bond.
A-1
010-9089-1856/2/AMERICAS Page 268 of 2461
SCHEDULE B
SCHEDULE OF PAYMENTS ON
REFUNDED BONDS
Series Date Principal Interest Total
2010A 09/01/2020 $ 4,155,000
2010B 09/01/2020 27,405,000
B-1
010-9089-1856/2/AMERICAS Page 269 of 2461
SCHEDULE C
ESCROW AGENT FEES AND EXPENSES
(1) In consideration of the services to be rendered by the Escrow Agent under the
Agreement, the City upon execution hereof agrees to pay the Escrow Agent a
one-time fee of $500.00 to be paid at closing for all services to be incurred as
Escrow Agent in connection with such services, plus agrees to pay as incurred
reimbursement at cost for ordinary out-of-pocket expenses. The term "ordinary
out-of-pocket expenses" means expenses of holding, investing and disbursing
the Escrow Deposit Trust Fund as provided herein and includes, but is not limited
to publication costs, postage andilegal fees as incurred.
(ii) The City shall also reimburse the Escrow Agent for any extraordinary expenses
incurred by it in connection herewith. The term "extraordinary expenses"
includes (a) expenses arising out of the assertion of any third party to any
interest in the Escrow Deposit Trust Fund or any challenge to the validity hereof,
including reasonable attorneys' fees and (b). expenses (other than ordinary
expenses) not occasioned by the Escrow Agent's misconduct or negligence.
(iii) The fees and expenses payable by the City under clause (i)or (ii) above shall not
be paid from the Escrow Deposit Trust Fund, but shall be paid by the City from
legally available funds of the City.
C-1
010-9089.1856!2/AMERICAS Page 270 of 2461
SCHEDULE D
NOTICE OF DEFEASANCE
City of Miami Beach, Florida
Parking Revenue Refunding Bonds, Series 2010A
and
City of Miami Beach, Florida
Parking Revenue Bonds, Series 2010B
Dated: November 16, 2010
Maturity Date Principal CUSIP
Series (September 1,) Amount Numbers*
2010A 2020 $ 1,725,000 593235FM1
2010A 2021 1,810,000 593235FN9
2010A 2022 620,000 593235FP4
2010B 2022 1,170,000 593235FR0
2010B 2023 960,000 593235FS8
2010B 2024 1,000,000 593235FT6
2010B 2025 350,000 593235FU3
2010B 2030* 6,690,000 593235FV1
2010B 2040* 17,235,000 593235FW9
* Term bond.
NOTICE IS HEREBY GIVEN that monies have been deposited with U.S. Bank
National Association, as Escrow Agent, for the payment of the principal and interest on
the above bonds (collectively, the "Bonds"). U.S. Bank National Association, as Bond
Registrar for the Bonds, has called the Bonds for redemption on September 1, 2020
(the "Redemption Date") at a redemption price of 100% of the principal amount thereof,
except that the Series 2010A Bonds maturing on September 1, 2020 referenced above
shall be paid at maturity.
The amount so deposited as aforesaid has been calculated to be adequate to
pay the principal of and interest on the Bonds through and including the Redemption
Date. The Bonds are therefore deemed not to be "Outstanding" within the meaning of
Resolution No. 2010-27491 adopted by the Mayor and City Commission of the City of
Miami Beach, Florida on September 20, 2010.
CITY OF MIAMI BEACH, FLORIDA
Dated: , 2020
By:
John Woodruff,
Chief Financial Officer
' No representation is made as to the correctness of these CUSIP numbers either as printed on the
Bonds or contained in this Notice.
D-1
010-9089.185612/AMERICAS Page 271 of 2461
EXHIBIT"C"
FIRST AMENDMENT TO TD BANK LOAN AGREEMENT
C-I
010-9089-5027/4/AMERICAS Page 272 of 2461
FIRST AMENDMENT (this "Amendment") dated as August ust 3, 2020, to the LOAN
AGREEMENT dated as of December 22, 2016 (the "Loan Agreement") 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 TO Bank, N.A., and its successors and assigns (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
AMENDMENTS
Section 1.01. Definitions. Capitalized terms used in this Amendment shall have the
meanings as set forth in the Loan Agreement.
Section 1.02. Amendments. The second paragraph under Section 3.02 of the Loan
Agreement is hereby amended and restated to read as follows:
"For purposes of calculating the foregoing, (A) if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions
that adjust the interest rate upon a change in tax law or in the tax treatment of
interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of (i) to the extent applicable,
the average rate of actual interest borne by such indebtedness during the most
recent complete month prior to the date of 'issuance of such proposed
indebtedness, (ii)for tax-exempt debt, The Bond Buyer Revenue Bond Index last
published in the month preceding the date of issuance of such proposed
indebtedness plus one percent, (iii) for taxable debt, the yield on a U.S. Treasury
obligation with a constant maturity closest to but not before the maturity date of
such indebtedness, as reported in Statistical Release H.15 of the Federal
Reserve on the last day of the month preceding the date of issuance of such
proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken
any other action which has the effect of fixing or capping the interest rate on such
indebtedness for the entire term thereof, then such fixed or capped rate shall be
used as the applicable rate for the period of such swap or cap up to the notional
amount of such swap, 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; (B)with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a
certification delivered to the Bank at the time of any advance to the extent such
certification assumes that the full loan amount under such line of credit or similar
arrangement has been borrowed at the time of such advance; and (C) with
respect to any indebtedness (including, without limitation, in clause (B)) which
has 25% or more of the aggregate principal amount coming due in any one year
("Balloon Indebtedness"), at the option of the Borrower, principal and interest
thereon shall be assumed to be payable over a period of twenty years on a level
debt service basis computed at the interest rate provided in (A)(ii) above if the
Balloon Indebtedness is tax-exempt, and (A)(iii) above if the Balloon
Indebtedness is taxable."
010.9091.756012/AMERICAS
Page 273 of 2461
ARTICLE II
MISCELLANEOUS
Section 2.01. Effect of Amendment. Except as specifically amended by this
Amendment, the Loan Agreement shall remain in full force and effect and is hereby ratified and
affirmed by the Borrower and the Bank.
Section 2.02. Governing Law. This Amendment is a contract made under the laws of
the State of Florida and shall be governed and construed in accordance with such laws.
Section 2.03. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and ail of which shall constitute one instrument.
Section 2.04. Binding Effect. This instrument shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns subject to the
limitations contained herein.
Section 2.05. Section Headings. Section headings in this Amendment are for
convenience of reference only, shall not constitute part of this Amendment and shall not be
used to continue the meaning or intent of the provisions hereof.
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
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
TD BANK, N.A.
By:
Robert Catoe, Vice President
2
010-9091.7560/2/AMERICAS
Page 274 of 2461
EXHIBIT"D"
FIRST AMENDMENT TO RJ CAPITAL LOAN AGREEMENT
D-I
010-9089-5027/4/AMERICAS Page 275 of 2461
FIRST AMENDMENT (this "Amendment") dated as of August 3, 2020, to the LOAN
AGREEMENT dated as of December 5, 2018 (the "Loan Agreement") 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 Raymond James Capital Funding, Inc., and its successors and
assigns (the "Lender").
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
AMENDMENTS
Section 1.01. Definitions. Capitalized terms used in this Amendment shall have the
meanings as set forth in the Loan Agreement.
Section 1.02. Amendments. The second paragraph under Section 3.02 of the Loan
Agreement is hereby amended and restated to read as follows:
"For purposes of calculating the foregoing, (A)if any indebtedness bears a rate of
interest that is not fixed for the entire term of the debt (excluding any provisions
that adjust the interest rate upon a change in tax law or in the tax treatment of
interest on the debt or upon a default), then the interest rate on such
indebtedness shall be assumed to be the highest of (i) to the extent applicable,
the average rate of actual interest borne by such indebtedness during the most
recent complete month prior to the date of issuance of such proposed
indebtedness, (ii)for tax-exempt debt, The Bond Buyer Revenue Bond Index last
published in the month preceding the date of issuance of such proposed
indebtedness plus one percent, (iii)for taxable debt, the yield on a U.S. Treasury
obligation with a constant maturity closest to but not before the maturity date of
such indebtedness, as reported in Statistical Release H.15 of the Federal
Reserve on the last day of the month preceding the date of issuance of such
proposed indebtedness, plus three percent, provided that if the Borrower shall
have entered into an interest rate swap or interest rate cap or shall have taken
any other action which has the effect of fixing or capping the interest rate on such
indebtedness for the entire term thereof, then such fixed or capped rate shall be
used as the applicable rate for the period of such swap or cap up to the notional
amount of such swap, 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 Lender shall be utilized in the
foregoing calculations; (B)with respect to all advances under any line of credit or
similar arrangement, the above requirements shall be deemed satisfied by a
certification delivered to the Lender at the time of any advance to the extent such
certification assumes that the full loan amount under such line of credit or similar
arrangement has been borrowed at the time of such advance; and (C) with
respect to any indebtedness (including, without limitation, in clause (B)) which
has 25% or more of the aggregate principal amount coming due in any one year
("Balloon Indebtedness"), at the option of the Borrower, principal and interest
thereon shall be assumed to be payable over a period of twenty years on a level
debt service basis computed at the interest rate provided in (AXii) above if the
010.091-9392/2/AMERICAS
Page 276 of 2461
Balloon Indebtedness is tax-exempt, and (A)(iii) above if the Balloon
Indebtedness is taxable."
ARTICLE II
MISCELLANEOUS
Section 2.01. Effect of Amendment. Except as specifically amended by this
Amendment, the Loan Agreement shall remain in full force and effect and is hereby ratified and
affirmed by the Borrower and the Lender. The Borrower hereby reaffirms its agreement to
observe and perform each covenant and obligation of the Borrower contained in the Loan
Agreement. In order to induce the Lender to execute and deliver this Amendment, the Borrower
hereby makes each of the representations and warranties contained in the Loan Agreement as
of the date hereof, except those made as of a specific date. The Borrower shall pay the fees
and expenses of, or incurred by counsel to, the Lender in connection with the review and
delivery of this Amendment.
Section 2.02. Governing Law. This Amendment is a contract made under the laws of
the State of Florida and shall be governed and construed in accordance with such laws.
Section 2.03. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.
Section 2.04. Binding Effect. This instrument shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns subject to the
limitations contained herein.
Section 2.05. Section Headings. Section headings in this Amendment are for
convenience of reference only, shall not constitute part of this Amendment and shall not be
used to continue the meaning or intent of the provisions hereof.
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
ATTEST:
By:
Dan Gelber, Mayor
Rafael E. Granado, City Clerk
RAYMOND JAMES CAPITAL FUNDING, INC.
By: _
Chad E. Colby, Senior Vice President and
Managing Director
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
2 r 2.1 Z,
010.9091.939212/AMERICAS CltYAttmer n \ Data
Page 277 of 2461 1 V 1l