Item C1
JUL-10-2005 03:56A FROM:
TO: 2854
P.l
RESOLUTION NO.
A RESOLUTION AUTHORIZING A $10,000,000 LINE OF
CREDIT FROM BANK OF AMERICA, N.A.; APPROVING THE
FORM OF AND AUTHORIZING TIlE EXECUTION OF A
PROMISSORY NOTE AND A LOAN AGREEMENT; AND
PROVIDING AN EFFECTNE DATE.
BE IT RESOLVED BY TIlE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA (the "Borrower") that:
Settion 1. Authoritv for this Resolution. This Resolution is adopted pursuant 10 the
Constitution and laws of the State of Florida.
Setlion 2. Definitions. Words and phrascs used herein in capitalized fonn and not otherwise
defined herein shall have the meanings ascribed hereto in the Loan Agreement (hereinafter defined)
and, in addition, the following words and phrases shall have the following meanings when used
herein:
"Authorized Signatory" means the Mayor.
"Loan Amount" means SIO,ooo,ooo.
Sectioa 3. Authorization of Traosaction. In order to obtain funds to pay any
unanticipated expenditures of the Borrower necessitated by a hurricane, tropical storm or other
similar event, the Borrower is authorized to obtain an eight-month line of credit (the "Loan") from
and borrow from Bank of America, N .A. (the "Bank") the amount of not 10 exceed the LoanAmount.
Because of the characteristics of the transaction and the need for immediate funding, it is in the best
interest of the Borrower to obtain the loan through negotiation with the Bank. In addition, after the
expiration of the initial Loan, the BOlTOwer is authorized to enter into two subsequent transactions
with the Bank, one in 2009 and one in 20 I 0, upon terms substantially the same as those approved
hereby.
Setlioa of. LoanAllI'eement and Promissorv Note. Thc BoDOWer isautborized to execute
a Loan Agreement with the Bank in substantially the fonn attached hereto as Exhibit A (the "Loan
Agreement") and to make the Promissory Note in the fonn attached to the Loan Agreement, provided
that the principal amount of the Promissory Note may not exceed the Loan Amount. The forms and
terms of the Loan Agreement and Promissory Note are hereby approved by the BolTOwer and the
Authorized Signatory is authorized to execute the same, with such changes as may be approved by
the Authorized Signatory. such approval to be conclusively evidenced by the execution thereof by
the Authorized Signatory.
Section 5. Severabilitv. If my provision of this Resolution shall be held or deemed to
be or shall, in fact. be illegal, inoperative or unenforceable in any contexl, the same shall nOI affect
any other provision herein or render any other provision (or such provision in any other context)
invalid, inoperative or unenforceable to any extent whatever.
c. . ,
JUL-10-2005 03:57R FROM:
TO: 2854
P.2
Section 6. ADDlicable Provisions of Law. This Resolution shall be governed by and
consb'ued in accordance with the laws of the State of Florida.
SectIon 7. AuthorizatioDS. All officials and employees of the Borrower are authorized
and empowered, collectively or individually, to take all action and steps and to execute all
instrwnew, docwnents, and eonllaels on behalf of the Bonower that are necessary or desirable in
connection with the completion of the Loan.
Section 8. Renealer. All resolutions or parts thereof in conflict herewith are hereby
repealed.
Section 9. Effective Date. This Resolution shall take effect immediately upon its
adoption.
ADOPTED at a meeting of the BOard of County Commissioners on tbe _ of July, 2008.
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
(SEAL)
By:
Mayor
AITEST: DANNY L. KOLHAGE. Clerk
Deputy Clerk
DOl'
2
'JUL-l~-~~ ~~:q~H ~~UM:
IU:CtS~
1"".1
LOAN AGREEMENT
This LOAN AGREEMENT (the" Agreement") is made and entered into as of the Closing
Date identified on Attachment B, and is by and betWeen the political subdivision of the State of
Florida identified on Attachment B hereto, and its successors and assigns (the "Borrower"), and
Bank of America, N.A., a national banking association, and its successors and assigns, as
holder(s) of the hereinafter defined Note (the "Bank").
The parties bereto. 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 I. 0 I Definitions. The warda and terms used in this Agreement shall have the
mcaninga as set forth in the recitals above and the following words and terms as used in this
Agreement shall have the following meanings:
"Advance" means a borrowing of money under the Note, pursuant to Section 5.03 hereof.
"Agreement" shall mean this Loan Agreement and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Authorized Individual" means any one. of the following: Danny L. Kolbage, Clerk of the
Court, Marva Green, AssiStant Clerk of the Court, Sandra Carlile, Finance Director and Kevin
Madok, Assistant Finance Director.
"Bond Counsel" means an 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.
"Borrower" is defined on Attachment B hereto
"BQ Note" means the Tax-Exempt Note if it indicates that it is a BQ Note.
"Budgeted Revenues" means, 10 the extent provided in Section 3.07 hereof, the Non-Ad
Valorem Revenues.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Closing Date" means the date so indicated in the Notes.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Rellulatilllls, whether lemporary, proposed or final, promulgated thereunder or applicable therero.
C .\
'..JUL-.l.IO-Cl!JtJ::> t:)");'1l::JH 1"'t(U1~';
TO: 2854
P.2
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
"Event of Default" shall mean an event of default specified in Article VI of this
Agreement.
"Loan" shall mean the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" is identified on Al1achment B.
"Non-Ad Valorem Revenues" means all revenues of the Borrower not derived from ad
valorem taxation and which are lawfully available to be used to pay debt service on the Notes.
"Notes" means the Borrower's Promissory Notes in the forms attached hereto as
Attachments "A-)"and "A-2."
"Notice Address" means,
As 10 the Borrower: As set forth on Attachment B
As to the Bank:
Bank of America, N.A.
9000 Soutbside Boulevard
Building 100
Jacksonville, FL 32256
or to such other address as either party may bave specified in writing 10 the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the office located at 9000 Southside
Boulevard, Building 100, Jacksonville, Florida, 32256, or such other office as the Bank may
designate to the Borrower in writing.
"Project" means expenditures incurred by the Borrower as a result of a hurricane, tropical
storm or similar occurrence.
"State" means the State of Florida.
"Taxable Note" means the Note attached hereto as Attachment" A.I. "
"Tax-Exempt Note" means the Note attached hereto as Attachment" A-2."
Section).02 Titles and Headin~. 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 pan hereof, shall not in any way modit}1 or restrict any of the terms and provisions hereof, and
-2-
oJl..IL... .&.LI..L.LlLI-' l;.I...).~ r~ul"I.
IU:Cl:l':>4
P.3
shall nOI be considered or given any effect in conslnling this Agreement or any provision hereof
or in ascertaining intent, if any question of intent should arise.
ARTICLE II
REPRESENTATIONS OF BORROWER
The Borrower represents and warrants to the Bank that:
Section 2.01 Powers of Borrower The Borrower is a political subdivision of the type
identified on Attachment B hereto, duly organized and validly existing under the laws of the State.
The Borrower has the power to borrow the amount provided for in this Agreement, to execute and
deliver the Notes and this Agreement, to secure the Notes in the manner contemplated hereby and
10 perform and observe all the terms and condition! of the Notes lIId this Agreement on its JllII1
to be performed and observed. The Borrower may lawfully borrow funds hereunder in order to
pay Costs of the Project.
Section 2.02 Authorization of Loan The Borrower had, baa, or wilI have, as the case
may be, at all relevant times, ful11ega1 right, power, and authority to execute this Agreement, to
make the Notes, and to carry out and consummate all other transactions contemplated hereby, and
the Borrower bas complied and will comply with all provisions of applicahle law in all material
matters relating to such transactions. The Borrower has duly authorized the borrowing of the
amount provided for in this Agreement, the execution and delivery of this Agreement, and the
making and delivery of the Notes to the Bank and 10 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 coven_ts on its part to be performed and to provide for and to assure payment of the
Notes. The Notes bas been duly authorized, executed, issued and delivered to the Bank and
constitutes legal, valid and binding obligation of the Borrower enforceable in accordance with the
terms thereof 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 Notes or the execution and
delivery of or the performance by the Borrower of its obligations under this Agreement and the
Notes bave been obtained or made and any consents, approvals, and orders to be received or
filings so made are in filII force and effect.
Seclion 2.03 No Violation of Law or Contract The Borrower is not in default in any
matcrial respecI under any agreement or other instrumenlto 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 obI igations hereunder and
under the NOles. The making and performing by the Borrower of this Agreement and the Notes
will not violate any applicable provisioll of law. and will not result in a material breach of any of
the terms of any agreement or instrument 10 which the Borrower is a party or by which the
Borrower is bound, the breach of which could resull in a malerial and adverse impact on the
financial condition of the Borrower or the ability of the Borrower 10 perform its obligations
hereunder and under the Notcs.
-3-
.~...- ...~ L...~-' ~..J."'~M .-r<.,-".I.
IU:~
P.4
Section 2.04 Pendinll or Threatened Litiution 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 malerial adverse
change in the financial condition of the Borrower, or which questions the validity of this
Agreement or the Notes or of any action taken or to be taken in connectioo with the transactions
contemplated hereby or thereby.
Section 2. OS Financial Information. The financial information regarding the Borrower
furnished to the Bank by the Borrower in cOMec:tion 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 .'1
COVENANTS OF THE ISSUER
Section 3.01 Affirmative Covenants. For so 1000g as any of the principal amount of or
interest on the Notes is oulStanding or is available to be Advanced hereunder or any duty or
obligation of the Borrower hereunder or under the Notes remains unpaid or unperformed, the
Borrower covenants to the Banlc as follows:
(a) PaYment The Borrower shall pay the principal of and the interest on the Notes at the
time and place and in the manner provided herein and in the Notes.
(b) Use of Proceeds. Proceeds from the Notes will be used only to pay costs of the
Projec:t and to pay closing costs of the Loan.
(c) Notice of Defaults. The Borrower shall within ten (10) days after it acquires
knowledge thereof; notify the Bank in writing at its Notice Address upon the happening. occurrence.
or existence of any Event of Default, and any event or condition which with the passage of time or
giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such
written notice, a detailed statement by a responsible officer of the Borrower of all relevant facts and
the aetion being taken or proposed to be taken by the Borrower with respect thereto.
(d) Maint""an~e ofExilltence. The Borrower will take all reasonable legal action within
its control in order to maintain its existence until all amounts due and owing from the Borrower to
the Bank under this Agreement and the Notes have been paid in full.
(c) Record.. The Borrower agrees that any and all re<:orda of the Borrower with respect
to tbe Loan and the Project shall be open to inspection by the Ban1c or its representatives at all
reasonable times at the offices the Borrower.
(f) Notice of Liabilities. The Borrower shall promptly infonn the Banlc 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 tbe financial condition
-4-
',JUl--~IO-ClOt::l:> 1O,,);"'tJ.H I""I'::UI'I:
TO: 2854
P.5
of the Borrower or upon the ability oflhe Borrower 10 perform its obligation hereunder and under
the Noles.
(g) Insurance. The Borrower shall maintain such liability, casualty and other insurance
as is reasonable and prudent for similarly situated governmental entities of the Stale of Florida.
(h) Compliance with Laws. The Borrower shall comply with all applicable federal,
state and local laws and regulalory requirements, the violation of which could reasonably be
expected 10 have a material and adverse effecl upon the financial condition of the Borrower or
upon the ability of the Borrower 10 perfonn its obligalion hereunder and under the Notes.
(i) Payment of Documenl Taxes. In the event the Noles or this Agreemenl should be
subjecllo the excise tax on documents or the intangible personal property lax of the Slale, the
Borrower shall pay such taxes or reimburse Ihe Bank for any such taxes paid by it.
(j) Financial Infonnation. The Borrower will provide the Bw with such financial
infonnalion regarding the Borrower as the Bank may reasonably request from time to time.
Section 3.02 Ne~ative Covenants. For so long as anyoflhe principal amounl of or interesl
on the Noles is oUlstanding or is available 10 be Advanced helllunder or any duty or obligation of the
Borrower hereunder or under the Noles remains unpaid or unperfonned, the Borrower covenants 10
lhe Bank as follows:
(a) No Pledge of Non Ad Valorem Revenues. Without the prior written consent of the
Bank, the Borrower shan not hereafter incur any indebtedness payable from any Non-Ad Valorem
Revenues, other than any Non Ad Valorem Revenues comprised of the one-cent infrastructure sales
surtax (the "Sales Surtax") and any Non Ad Valorem Revenues accounted for in an enterprise fund
under governmental accounling principles, which could, but for such future indebtedness, be lawfully
used 10 pay principal of or interest on the Notes ("Enterprise Revenues") (any and all such
indebtedness payable from Non-Ad Valorem Revenues, other than Enterprise Revenues or Sales
Surtax, whether now existing or incurred in the future, is referred to as "Competing Debt"), unless
(i) the amount of Non-Ad Valorem RevelRIes, other than Enterprise Revenues or Sales Surtax,
received by the Borrower during the fiscal year of the Borrower most recently concluded prior to
the incurrence of such indebtedness for which audited financial statements are available, equals or
exceeds 150"10 of the maximum amount of principal and interest scheduled 10 be payable on the
Notes and all Competing Debt (including the proposed debt) during the then current or any future
fiscal year and (ii) the Mayor oftbe Borrower certifies in writing 10 the Bank lhallo the best of his
or her knowledge no event has occurred which would cause him or her to believe thaI the amounl
of Non-Ad Valorem Revenues, olher than any Enterprise Revenues or Sales Surtax to be received
in any future fiscal year would be less than 150% of the arnowl of principal and interesl scheduled
10 he payable on the Notes and aU Competing Debt during such fiscal year. For purposes of
calculating the foregoing, if any indebtedness bears a variable rate of inlerest, then the interest rate
on such indebtedness shall be asswned 10 be the higher of (i) lhe average rate of actual interest borne
by such indebtedness during the most recent complele month prior 10 lhe date of issuance of such
proposed indebtedness, (ii) 7% per annum, provided that ifthe Borrower shall have enlered inlo an
inlereSl rale swap or inlcrcsl rale cap or shall have lakm any other action which has !he effect of
-5-
.JUL-..lt:J-C~J ~J."'tCM rrtUl"I.
IU.CD";""t
r.o
fixing or capping the interest rate on such indebtedness for the entire term thereof, then sucb fixed
or capped rate shall be used as the applicable rate for the period of such swap or cap. In addition, for
purposes oftbe foregoing it shall be assumed that the entire 510,000,000 of the Loan is drawn as of
the date such indebtedness is proposed to be incurred and is being repaid over a tenn of 20 years in
equal monthly installments or principal and interest, using an assumed interest rate of6% per annum.
(b) No Adverse BorrowinllS. The Borrower shall not issue or incur any indebtedness
or obligation if sucb would materially and adversely affect the ability of the Borrower to pay debt
service on the Notes or any other amounts owing by the Borrower under this Agreement:
Section 3.03. RAnk Fees and Expenses. The Borrower bereby agrees to pay (i) a fee to the
Bank in the amount of 525,000.00 and (ii) the fee of counsel to the Bank in connection with the
issuance of the Notes in the amount ofS4,SOO, said amounts to be due and payable upon the issuance
.of the Notes.
Section 3. 04. Rellistration and Excbanpe of Notes: Persons Treated as Banks. The Notes
are owned by Bank of America, N. A. The ownersbip of the Notes may only be transferred, and
the Borrower will transfer the ownersbip of the Notes, upon written request oftbe Bank specifYing
the name, address and taxpayer identification number of the transferee, and the Borrower will
keep a record setting forth the identification of the owner of the Notes. The Bank will not transfer
the Notes except in compliance with all applicable laws.
Section 3. OS. Notes Mutilated Destroved Stolen or Lost In case the Notes shall
become mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new, in
exchange and in substitution for such mutilated Notes, or in lieu of and in substitution for the
Notes destroyed, stolen or lost and.upon the Bank fUrnishing the Borrower proof of ownersbip
thereof and indemnity reasonably satisfactory to the Borrower and paying sucb expenses as the
Borrower may incur.
Section 3.06. Pl\vment of Princinal and Intere~t. Limited Oblintion. The Borrower
promises that it will promptly pay the principal of and interest on the Notes at the place, on the
dates and in tbe manner provided tberein according to the true intent and meaning bereof and
thereof, provided that the Borrower may be compelled to pay the principal of and interest on the
Notes solely from the Non Ad Valorem Revenues budgeted and appropriated for sucb purpose as
provided berein, and nothing in the Notes or this Loan Agreement shall be construed as pledging
any other funds or assets of the Borrower to sucb payment or as authorizing such payment to be
made from any other source. Nothing berein shall, bowever, prevent the Borrower from using any
lawfully available funds to pay its obligations bereundcr and under the Notes. The covenant to
budget and appropriate does not create a lien UpoB- or pledge of tbe Non Ad Valorem Rev_.
The Borrower is not and shan not be liable for the payment of the principal ofand interest on the
Notes or for the performance of any pledge, obligation or alP'cemenl for payment undertaken by
tbe Borrower hereunder or under the Notes from any property other than the Budgeted Revenues.
The Bank shall not have any right to resort to legal or equitable action to require or compel tbe
Borrower to make any payment required by tbe Notes or this Loan Agreement from any source
other tban the Budgeted Revenues.
-6-
....... ....LAJ-' ....__. ...,......... I "..." ,-
IU:C:l:O"t
1-'. (
The Borrower covenants that, So iontl as Notes shall remain unpaid or any other amounts
are owed by the Borrower under this Agreement or the Notes, it will appropriate in its annual
budget, by amendment, if required, from the Non Ad Valorem Revenues, amounts sufficient 10
pay the principal of and interest on the Notes and other amounts owed under this Agreement as
the same shall become due, but only, to the extent required in order to avoid a violation of Article
VU, Section 12 of the Florida Constitution, after provision has been made by the County for the
payment of services and programs which are for essential publ~ JlUI'POSCS affecting the health,
welfare and safety of the inhabitants oftbe County or which are legally mandated by applicable
law. In the event that the amount previously budgeted for such purpose is ever insuffic~ to pay
such principal and interest on the N otea and other amounts owed under this Agreement, the
Borrower covenants to take immediate action to amend ilB budget 80 88 10 budget and appropriate
an amount from the Non Ad Valorem Revenues sufficient to pay such debt service on the Notes
and 8UCb other amounts. Such covenants to budget and appropriate from Non Ad Valorem
Revenues shall be cumulative 10 Ihe extent nol paid and shall continue until such Non Ad Valorem
Revenues sufficient to make all required payments have been budgeted, appropriated and used 10
pay auc:h debt service on the Notes and such other amounts subject, however, in all respects to
the restrictions of Section 129.07, Florida Statutes, w~h provides that the governing body of
each county may not make appropriations for any fiscal year which exceed the amount 10 be
received from taxation or other revenue sources and which makes it unlawful for any officer of
any municipal government 10 draw money from the treasury except in pursuance of an
appropriation made by law.
Seclion 3.07 Officers and EmDlovees of the BorrowerExemDt from Personal Liabilitv.
No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the
Notes or for any claim based hereon or thereon or otherwise in respect thereof, shall be had
against any officer (which includes elected and appointed officials), agent or employee, as such,
of the Borrower past, present or future, it being expressly understood (a) that the obligation of
the Borrower under this Agreement and under the Notes ia 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 officen, agents, or employees, as such, oftbe Borrower, or any
of them, under or by reason of the obligations, covenants or agreements contsined in this
Agreement or implied therefrom, and (c) that any and all such personalliahility of, and any and
all such rights and claims against, every such officer, agent, or employee, as such, of the
Borrower under or by reason of the obligations, covenants or agreements contained in this
Agreement and under the Notes, or implied therefrom, are waived and released as a condition of,
and as a consideration for, the execution of this Agreement and the issuance of the Notes on the
part of tbe Borrower.
Section 3.08. Business Davs. In any ease where the due date of interest on or principal
of the Notes is not a Business Day. then payment of such principal or interest need not be made
on such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given until the payment is actually received by the Bank.
Section 3.09. Tax Renresenlations. Wamnties and Covenants of lhe Borrower. The
proYlJloDS of tills Section 3.09 shan apply only to tile Tn-Exempt Note,
-7-
'....\.Jl... .LV '--VV..... V....J.""T...JI""l r-"uII.
tu:c:::l::S:>"'+
".<<
(a) The Borrower hereby covenants and represents thaI il has taken and caused to be taken
and shall malee and take and cause to be made and taken all actions that may be required of it for
the interest on the Note to be and remain excluded from the gross income of the Bank for federal
income tax purposes, and thal to tbe best of its Icnowledge it has not taken or permitted to be taken
on its bebalt; and covenants that to the best of its ability and within its contro~ it shall not malee or
take, or permit to be madc or taken 011 its bcbalf, any action whicb, if made or taken, wouldadverse\y
affect sucb exclusion under the provisions of the Code.
The Borrower aclcnowledges that the continued exclusion of interest on the Note from gross
income for federal income tax purposes depends, in part. upon compliance with the arbitrage
limitations imposed by Sections 103(b X2) and 148 of the Code. The Borrower herebyaclcnowledges
responsibility to take all reasonable actions necessary to comply with these requirements. The
Borrower hereby agrees and covenants that it shall not permit at any time or limes any of the
proceeds of the Note or other funds of the Borrower to be intentionally used, directly or indiIectly,
to acquire or to replace funds whicb were used directly or indirectly to. acquite any higher yielding
invCSImeDlS (as defined in Section 148 of the Code). the acquisition of which would cause the Note
to be an arbitrage bond for purposes of Sections I 03(b )(2) and 148 of the Code. The Borrower
further agrees and covenants that it shall do and perform all acts and things necessary in order to
ISsure that the requirements of Sections 103(b)(2)and 148 of the Code are met.
SpecifICally, without intending to limit in any way the generality of the foregoing. the
Borrower covenants and agrees;
(I) 10 pay to the Uniled States of America at the times required pursuant to
Section 148( f) of the Code, the exccss of the amount eamcd on all non-purpose investments
(as defined in Section I 48(f)(6) of the Code)( other than investments anributed 10 an excess
described in this sentence) over the amount wbich would have been earned if such
non-purpose investments were invested at a rate equal to the yield on the Note, plus any
income attributable to such excess (the "Rebate Amounl.)~
(2) 10 maintain and Ietain all Iecords pertaining to and to be responsible for
making or causing to be made all determinations and calculations oftbe Rebate Amount and
required payments of the Rebate Amount as shall be necessary to comply with the Code; and
(3) to comply with all representations andrestrictions contained in any Certificate
as to Arbitrage and OtherT ax Maners executed by the Borrower in connection with the Note.
The Borrower understands that the foregoing covenants impose continuing obligations on
it 10 comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter I of the
Code so long as such requirements are applicable.
(b) The Borrower will comply with, and timely malee or cause to be made all filings
required by. all effective rules, rulings or regulations promulgated bytbe Department of the Treasury
or the Internal Revenue Service.
-8-
.",,--",- .LI:J L..LIIU-' 1:J..J'"'T"'Tn rf"i.U1""
IU:C:::t::O"t
"'.~
(c) The Borrower will not use, invest, direct or permit tile investment of tile proceeds of
the Note or any investment earnings thereon in a manner that will result in the Note becoming a
"private activity bond" within the meaning of Sections 141 and 145 of tile Code.
(d) The BolTOwer will not use or permit to be used more than ten percent (10%) ofthe
pnx:eeds of the Note (including any amounts used to pay costs associated with issuing the Note).
including all investment income earned on such proceeds directly or indirectly, in any trade or
business carried on by any penon who is not the Borrower or a state or political subdivision or
instrumentality thereof as those terms are used in Section 103 of the Code (an "Exempt Person").
(e) The Borrower will not use or permit the use of any portion of the proceeds of the
Note. including all inves1ment income earned on such proceeds. directly or indirectly, to make or
finance loans to persons who are not Exempt Persons.
(t) The Borrower has not entered into, and willllOt enter into. any mangement with any
person or organization (other than an Exempt Person) which provides for such person or
organization to manage, operate, or provide services with respeelto more than 10% of the property
financed with the proceeds of the Note (a "Service Contract"), unless the guidelines set forth in
Revenue Procedure 97-13 (or the guidelines set forth in Revenue Procedure 93-19. to tile extent
applicable. or any new, revised or additional guidelines applicable to Service Contracts) (the
"Guidelines"). are satisfied, except to the extent it obtains a private letter ruling from the Internal
Revenue Service or an opinion of nationally recognized Bond Counsel which allows fur a variation
from the Guidelines.
(g) The Borrower will not cause the Note to be treated lIlI "federally guaranteed" fur
purposes of Section 149 of the Code. as may be modified in any applicable rules. rulings. policies,
proced..es. regulations or other official statements promulgated or proposed by the Department of
the Treasury or the Internal Revenue Service with respect to "federally guaranteed" obligations
described in Section 149 of the Code. For purposes of this paragraph, the Note shall be treated as
"federally guanmteed" if (i) all or any portion of tile principal or interest is or will be guaranteed
direcllyor indirectly by the United States of America or any agency or instrumentality thereol; or (ii)
S% or more of tile proceeds of the Note will be (A) used in making loans the payment of principal
or interest with respeet to which is to be guaranteed in whole or in pert by the United States of
America or any agency or instrumentality thereof. or (8) invested directly or indirectly in federally
insured deposits or accounts, and (iii) such guarantee is nol described in Section 149(b)(3) of the
Code.
The terms "debt service." "eross proceeds." "net proceeds." .proceeds. " and "yield" have the
meanings assigned to them for purposes of Section 148 of the Code.
Section 3.10. Seclion 265 Desi8llation ofTax-ExelJlPl Note. 11,..d only If, the T8ll-
Exempt Note Is a BQ Note, tben the provlllons 01 this SectIon 3.10 shaD apply.
The reasonably anticipated amounl oC lu-exempt obligations (otber than obligations
described in clause (ii) oCSection 26S(b)(3)(C) olthe Code), which have been or will be issued by
the Borrower and all entilies which are subordinate 10 or which issue obligations on behalC oC the
-9-
IU:dJ~
P.10
Borrower during the calendar year in which the amount advanced under the Tax-Exempt Note first
equals or exceeds $50,000 does not exceed $10,000,000. The Borrower designates the Note as a
"qualified tax-exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The
Borrower covenants aod agrees not to take any action or to fail to take any action if such action or
failure would cause the Note to no longer be a "qualified tax-exempt obligation."
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Bank to lend hemmder are subject to the following conditions
precedent:
Section 4.01 Rqlresentations 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 dall:
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 aod 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 S~J Documents. On or prior to the date hereof, the Bank shall have
received the following supponing 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 attorney for the Borrower, regarding the due authorization,
execution, delivery, validity aod enforceability of this Agreement and the Note;
(b) Such additional supporting documents as the Bank may reasonably request.
ARTICLE V
FUNDING THE LOAN
Section 5.01 The Loan. The Bank hereby agrees to Loan to the Borrower the amount
ofop to the Loan Amount to be evidenced by the Note, to provide funds to finance the Costs of
the Project upon the terms and conditions set fOrth in this Agreement. The Borrower agrees to
repay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth
in this Agreement and the Note.
Section 5.02 Description and Pl\vment 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 Exhibit A.
Section 5.03. Adv......_ on Note.
-10-
",UL... ~~. L...UI'.J"') U...)."JM rl'\lJl"'.
IU:C'854
P.ll
(a) The Borrower may borrow from time to time up to the Loan Amount by requesting
Advances hereunder. provided that no Advance will be made after the date six months after the
Closing Date. Amounts Advanced and repaid may not be re-advanced. Each Advance sball be for
at least $10,000, provided that the initial Advance on the Tax-Exempt Note shall be for at least
$50.000, and no more than two Advances may be requested in anymon1h.
(b) The Bank shall not be obligated to Advance any funds unless (i) no Event of Default
has occurred and is continuing, (ii) the Bonower delivers to the Bank a written request for such
Advance in the form of Attachment C, executed by an Authorized Individual. indicating the amount
of the Advance requested. the date on which such Advance is to be made (which shall be not less
than two Business Days after the date such request is received by the BanIc) and stating that the
representations and warranties of the Borrower contained herein are true and correct as of such date.
(c) No Advance will be made on the Tax-Exempt Note unless the BanIc bas received
an opinion of counsel acceptable to the Bank to the effect that the interest on the Note is excluded
from gross income for federal income tax purposes and the Note is not an item of tax preference
under Section 57 of the Code. and if the Note is a BQ Note, the Note is a "qualified tax-exempt
obligation" under Section 265 of the Code; and
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 General An "Event of Default" shall be deemed to have occurred under
this Agreement if:
(a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable, whether by maturity, by acceleration at the
discretion of the Bank as provided for in Section 6.02. or otberwise; or
(b) The Borrower shall default in the performance of or cOIJ1lliancc 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) notice
thereof to the Borrower by Ihe Bank, or (ii) the Bank is notified of such noncompliance or should
have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement, whichever
is earlier; or
(c) 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 reaffinned; or
(d) 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 ofits creditors
or consents to Ihe appointment of a receiver or trustee for itself; or
-11-
........L..~..J.......J...,........",'......,.
IU:ctr.:>4
P.12
(e) The Borrower is adjudged insolvent by a cowt 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 ofthe Borrower or of the whole or any part of its
property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or
set aside or stayed within ninety (90) days from the date of entry thereof; or
(f) 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
(g) The Borrower shall default in the due and punctual payment or performance of
covenants related to any indebtedness of the Borrower or under any obligation for the payment
of money to the Bank or any other subsidiary or affiliate of Bank of America Corporation.
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 lcind
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 nOl made, the Bank may
also seek enforcement of and exercise all remedies available to it under any applicable law.
ARTICLE VO
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 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 Chanlre.C or Modifications to the Atrreement. This Agreement
shall not be amended, changed or modified except in writing signed by the Bank and the
Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifYing andlor amending this Agreement at the Borrower's request or behest.
Section 7.03 Countel1larls. 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 tile same Agreement, and, in making proof of
this A~ment, it shall not be necessary 10 produce or account for more than one such
counterpart.
-12.
oI.U '-uu.... u.,J.,un ,f';,u!-'.
IU:d:bq
P.i3
Section 7.04 Severability. If any clause, provision or section of Ibis Agreement shall be
held illegal or invalid by any court, Ibe invalidity of such clause, provision or section shall not
affect any olher provisions or sections hereof, and Ibis Agreement shall be construed and enforced
10 Ibe end that the transactions contemplated hereby be effected and the obligations contemplated
hereby be cnfon1ed, as if such illegal 01" invalid clause, provision or section had not been
contained herein.
Section 7.05 Term of Allreement Except as otherwise specified in this Agreement, Ibis
Agreement and all representations, warranties, covenants and agreements contained herein or
made in writing by the Borrower in connection herewilb shall be in full force and effect from Ibe
date hereof and shall continue in effect until as long as Ibe 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 pcnonally delivered; when transmitted if transmitted by
telecopy, electronic telephone line facsimile transmisaion or olber similar electronic or digital
transmission method (provided customary evidence of receipt is obtained); the day after it is sent,
if sent by overniaht 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 Stale. The panies waive any objection to venue in any
judicial proceeding brought in connection herewith lying in Miami-Dade County, Florida.
Section 7.08 Bindinll Effect: AssillllDlent. 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 assilPl any of its riahts or obligations hereunder without the prior
wrillen consent of Ibe Banlc.
Section 7.09 No Third Party Beneficiaries. It is Ibe intent and agreement of !be parties
hereto that this Agreement is solely for the benefit of the parties hereto and no penon 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 Ibat in any suit, action or proceeding brought in connection wilb this Agreement or
the Note (including any appcal(s)), the prevailing party shall be entitled to recover costs and
attorneys' fees from the other party.
Section 7. II Entire Allfeement. Except as olberwise expressly provided, Ibis 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, Band C hereto are a pan hereof.
Section 7.12 Further Assurances. The parties to this Agreement will execute and
deliver, or cause 10 be executed and delivered, such additional or further documents, agreements
-13-
....l'.J L.IUIC..J...J !:J,J...,.QM rro:lJI.l.
TD:28S4
P.14
or inslnunents and shall cooperale willi one another in all respects for the purpose of out the
transactions contemplated by this Agreement.
Section 7.13 Waiver of Jurv Trial. This Section 7.13 concerns the resolution ohny
controversies or claims between the Borrower and the Bank. whetber arising in contract, tort or by
statute, tllat arise out of or relate to Ibis AgreernCllt or the Note (collectively a "Claim"). The panies
irrevocably and voluntari Iy 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.
IN WITNESS WHEREOF. the panies have executed this Agreement to be effeclive between
them as of the date of first set forth above.
MONROE COUNTY. FLORIDA
By:
Name: Mario DiOennaro
Title: Mayor
AlIest
By:
Name: Danny L. Kolhage
Title: Clerk
BANK OF AMERICA, N.A.
By:
Name: Holly L. Kuhlman
Title: Senior Vice President
-14-
'oJUL-.1t:J-Ct:JtOJ t:JJ."'tIH r-rUJI'I.
TO: 2854
P.1S
PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersignedmaker (the "Borrower"), apolilical
subdivision created and existing pursuant to the Constitution and the laws of the State of Florida, for value
reeeived, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A. or
registered assigns (hereinafter, the "Bank"), the principal sum of S I 0,000,000.00 or such lesser amount as
shall be outstanding hereunder, together with interest on the principal balance outstanding althe rate per
annum equal to the Applicablc Rare (as hereinafter dcfined)(subjeetto adjustment as hereinafter provided)
based upon a year of 360 days for the actual number of days elapsed.
Principal of and interest on this Note are payable in immediately available funds constituting lawful
money of the United States of America at such place as the Bank may designate to the Borrower.
The Applicable Rate is:
(a) Iftbis is a Tax-Ex~t Note (as hereinafter designated),lhe sum of 1.00% plus 63.7"11. of the
L1BOR Rate (hereinafter defined);
(b) If this is aBQ Note (as hereinafterdcsignated), thesurn of 0.80% plus 63. 7"A. of the L1BORRate;
(c) If this Note is neither a Tax-Exempt Note nor a BQ Note, the sumofO. 75% plus tbe LIBOR Rale.
The Borrower sball pay lbe Banktbc entire unpaid principal balance bereof, together with all accrued
and unpaid interest hereon, on the day tbat is six months after the date of this NOIe (the "Maturity Date").
All paynw:nts by the Borrowerpursuant to this Note shall apply first to accrued interest, then to other charges
due the Bank, and the balance tbereof shall apply to the principal sum due.
As used in this Note,
(J) "Code" meaDS the Internal Revenue Code of 1986, as amended, and any Treasury
RegulatioDS, whether temporary, proposed or final, promulgated lbcreundcr or applicable thereto;
(2) "Determination of Taxability" shall mean, if Ibis Note is a Tax-Exempt Note or a
BQ Note, interest on this Note is determined or declared, by the Internal Revenue Service or a court
of competent jurisdiction to be includable in the gross income of the Bank for federal income tall
purposes under the Code.
(3) "LIBOR Rate" is a fluctuating rate of interest equal to the one monlh London
Interbank Offered Rate as published in the "Money Rates" secdon ofD\Q ltYJIl ~ llIiImIl (or,
if such source is not available, or if"" rate ismisquoted lherein, such alternate source as determined
by the Bank) (the "Index"). Any change in Ihe Index, and Ibus, the inlerest rate on this Note, will
take effect on the effeetive date as indicated in D\Q ~ ~ llIiImIl (or any alternate soun:e
described herein). Interest will accrue on any day which is 1101 a Business Day at Ihe rate in effeet
on lhe imnw:dialely preceding Business Day.
If this NOle is a Tax-Exempt Note or a BQ NOIe, tben upon the occurrence of a Detennination of
Taxability, the interesl rale on Ibis Note shall be adjusted 10 a rale equal to 154% of the interest rate
otherwise borne bcrcby (the" Adjusted Inlerest Rate"), a. of and from the dale sucb Determination of
Taxability would be applicable with respecllo this Note (the" Accrual Date"); and (i) the Borrower shall on
the next inrcrest paynw:nl date (or if lhis Note shall have matured, within 30 days after demand by the Bank)
hereon pay to lhe: Bank an amount equal 10 lbe sum of (I) the difference between (A) th. lotal inlerest Ihat
would have accrued on Ihis Note 3tthe Adjusled Int.....t Rale from the Accrual Date 10 sucb next illleresl
payment date, and (B) the actual interest paid by the Borrower on tbis Note from the Accrual Date to such
....u L.ULl-J LI..J'~11"'l I r\.WII'
IU:ctj::>'f
C'.lb
nellt interest paymenl date, and (2) any i'nterest and penalties required to be paid as a result of illY additional
Stale of Florida and federal income talles imposed upon ouch Bank and/or fonner Bank arising as a result
of such Determination ofTaxability; and (ii) from and after the Date of the Determination ofTall8bility, this
Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues
to he applicable with respect to this Note. This adjustment shaD survive payment oflhis Note until such time
as the federal statute of limitations under which the interest on this Note could be declared taxable under the
Code shall have expired.
The principal of and interest on tbis Note may he prepaid at the option of the Borrower in whole or
in part at any time without prepayment premium or penalty.
Upon tbc occurrence of an Event ofDefllult (as defined in tbc Loan Agreement) tbcn 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 he obligated to pay (but only from the Budgeted Revenues)
as part of the indebtedness evidenced by this Note, all costs of collection and enforcement berenf, including
such fees as may be incurred on appcal or incurred in any proceeding under bankruptcy laws as they now or
hereafter ellist, including specifically but without lirmtation, claims, disputes and procecdinll8 seeking
adequate protection or relief from tbc automatic stay. If any payment hereunder is not made within fifteen
(1 S) days after it is due, then tbc Borrower shall also be obligated to pay as a part of the indebtedness
evidenced by lhis Note a late payment fee in the amount of 4% of delinquent payment. which late paymClll
shall be due and payable immediately.
Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing
hereunder from and after tbc occurrence of and during the continuation of a default described in the
preceding paragraph, irrespective of a declaration of maturity.
The Borrower to the elltent permilled by law hereby waives presentment, demand, protest and notice
of dishonor.
nus NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A
GENERAL INDEBTI!DNESS 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 nus
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 lite Bank (the "Loan Agreement'') and is subject to all the terms and conditions of the Loan
Agreement. PursUlmtto the Loan Agreement, tbc Borrower may rcqueat Advances from lime to time from
the Bank hereWlder, provided Ibal the outstanding principal amount at any time uncIcr this Note shall not
exceed the principal amount set forth in the first paragraph hereof, and provided that amounts borrowed and
repaid may not be re-borrowed hereunder.
All terms, conditions and provisions of the Resolution and Loan Agrccmcnt arc by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise
defmed herein shall have the meanings ascribed thereto in the Resolution.
This Note is payable solely from and is secured by a lien upon and pledge of the "Budll"ted
Revenues" as described in the Loan Agreement. Notwithstanding any ether provision of this Note, the
Borrower is not and shall nol 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 tbc Budgeted Revenues.
2
".......... "'11;.1 ....~....... u..J.-rln II'\LJI"!.
TO: 2854
P.l?
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
II is hereby certified, recited and declared that all acts, coDditions and prerequisites required to exill,
happen and be performed prccedenlto and in the execution, delivery and the issuance of this Note do exisl,
have happened and have been performed in due time, form aDd manner as required by law, and that the
issuance Oflhis Note is in full compliance with and does not exceed or violate any constitutional or statutory
limitation.
If this Note is a Tax-Exempt Note, the Borroww will so indicate by initialing the following blank
(only one of this blank or the following blank may be initialed).
If this Note is a BQ Note, tbe Borrower will so indicate by initialing the following blank
(only one of this blank or the foregoing blank may be initialed).
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in;15 name as oftbe
date hereinafter set forth.
The date of this Promissory Nole is July _,2008.
MONROE COUNTY, FLORIDA
By:
Name: Mario DiGennaro
Title: Maynr
(SEAI.J
ATTEST: DAHN't L ICOUWII
BY
DEPUTV CLERK
3
..,......... ....... ................ .........--.un 11''-''''
ATTACHMENT B
to
LOAN AGREEMENT
between
BANK OF AMERICA, N.A.
and
MONROE COUNTY, FLORIDA
I.Name ofBorrowcr: Monroe County, Florida
2. Type of Political Subdivision: 0 Municipality [XX] County
3.Notice Address ofBorrowcr: 500 Whitehead Street
Key West, Florida 33040
4. Loan Amount:$JO,OOO,OOO.oo
5. Closing Date: July _,2008
IU:~4
P.18
\
",-,,- ""U l.,.UU,"" u-,.,on rr;.U1.I.
IU:clb4
P.19
ATTACHMENT C
REQUEST FOR ADVANCE
Date:
To: Bank of America, N.A.
From:
[Name of Borrower]
Date of Loan Agreement and Promissory Note:
Amount of Advance on Tax-Exempt Note:
Amount of Advance on Taxable Note:
Date of Advance:
The above-named Borrower requests an Advance under the Loan Agreement and Promissory Note
identified above in the amount set forth above, and requests that said funds be deposited in the
Borrower's account with the Bank maintained for such purpose pursuant to such Loan Agreement.
The representations and warranties of the Borrower contained in the Loan Agreement are true and
correct as of the date hereof.
Proceeds of the Advance sbould be wired as fullows:
TIB Bank of the Keys
330 Whitehead Street
Key West, FL 33040
ABA# 067009280
Accoun~0803208406