Resolution 249-2020 MONROE COUNTY, FLORIDA
RESOLUTION NO. 249-2020
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
ACCEPTING THE PROPOSAL OF TRUIST BANK TO
PROVIDE THE COUNTY WITH A TERM LOAN IN
ORDER TO FINANCE THE ACQUISITION,
INSTALLATION AND IMPLEMENTATION OF A NEW
ENTERPRISE RESOURCE PLANNING SYSTEM FOR
THE CLERK OF THE CIRCUIT COURT; APPROVING
THE FORM OF A LOAN AGREEMENT; AUTHORIZING
THE ISSUANCE OF A PROMISSORY NOTE PURSUANT
TO SUCH LOAN AGREEMENT IN THE AGGREGATE
PRINCIPAL AMOUNT OF NOT TO EXCEED $4,000,000
IN ORDER TO EVIDENCE SUCH LOAN; AUTHORIZING
THE REPAYMENT OF SUCH NOTE FROM A
COVENANT TO BUDGET AND APPROPRIATE
LEGALLY AVAILABLE NON-AD VALOREM
REVENUES; DELEGATING CERTAIN AUTHORITY TO
CERTAIN OFFICIALS OF THE COUNTY; AUTHORIZING
THE EXECUTION AND DELIVERY OF OTHER
DOCUMENTS IN CONNECTION THEREWITH; AND
PROVIDING FOR AN EFFECTIVE DATE FOR THIS
RESOLUTION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
SECTION 1. FINDINGS AND AUTHORIZATIONS. It is hereby found
and determined that:
(A) The Clerk of the Circuit Court of Monroe County, Florida requires certain
capital improvements for its operations in the form of a new Enterprise Resource Planning
system (the "ERP System")
(B) The acquisition, installation and implementation of the ERP System (the
"Series 2020 Project") will improve and maintain the health, safety and welfare of the
citizens of the County and satisfy a public purpose.
(C) The County, with the assistance of its Financial Advisor, PFM Financial
Advisors LLC (the "Financial Advisor"), issued a Request for Quote soliciting proposals
from various financial institutions to provide a term loan to the County to finance costs of
the Series 2020 Project and pay costs related to the incurrence of such term loan.
(D) Truist Bank (the "Noteholder") submitted its proposal (the "Proposal") to
provide the County with a term loan (the "Loan") to finance costs of the Series 2020
Project,which Proposal complied with the solicitation and was the most favorable proposal
received by the County and is attached hereto as Exhibit A.
(E) The County deems it to be in its best interest to accept the Noteholder's
Proposal to provide the County with the Loan to finance costs of the Series 2020 Project
and to enter into a Loan Agreement with the Noteholder (the "Loan Agreement")
substantially in the form attached hereto as Exhibit B.
(F) The Loan shall be evidenced by the Monroe County, Florida Special
Obligation Revenue Note, Series 2020 (the "Series 2020 Note") to be issued pursuant to
the Loan Agreement and shall be repaid solely from the Non-Ad Valorem Revenues (as
defined in the Loan Agreement) budgeted and appropriated by the County in the manner
and to the extent set forth in the Loan Agreement and the ad valorem taxing power of the
County will never be necessary or authorized to pay said amounts.
(G) Due to the potential volatility of the market for tax-exempt obligations such
as the Series 2020 Note, the complexity of the transactions relating to such Series 2020
Note and the Loan Agreement and the competitive solicitation process that the County took
with respect to the financing of the Series 2020 Project, it is in the best interest of the
County to sell the Series 2020 Note by a negotiated sale to the Noteholder pursuant to the
Proposal, the Loan Agreement and the provisions hereof, rather than at a specified
advertised date, thereby permitting the County to obtain the best possible price, terms and
interest rate for the Series 2020 Note and the Loan Agreement.
(H) It is not reasonably anticipated that more than $10,000,000 of tax-exempt
obligations as defined under Section 265(b)(3) of the Internal Revenue Code of 1986, as
amended, will be issued by the County during calendar year 2020.
SECTION 2. DEFINITIONS. When used in this Resolution, the terms
defined in the Loan Agreement shall have the meanings therein stated, except as such
definitions may be hereinafter amended and defined.
The words "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms shall refer to this Resolution.
Words importing the singular number include the plural number, and vice versa.
SECTION 3. AUTHORITY FOR THIS RESOLUTION. This Resolution
is adopted pursuant to the provisions of the Act.
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of the Series 2020 Note by the Noteholder,
the provisions of this Resolution shall be a part of the contract of the County with the
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Noteholder and shall be deemed to be and shall constitute a contract between the County
and the Noteholder. The provisions, covenants and agreements herein and in the Loan
Agreement to be performed by or on behalf of the County shall be for the benefit,protection
and security of the Noteholder.
SECTION 5. ACCEPTANCE OF PROPOSAL. The County hereby
accepts the Proposal of the Noteholder to provide the County with a term loan in the
aggregate principal amount of not exceeding $4,000,000, a copy of which Proposal is
attached hereto as Exhibit A. All actions previously taken by the Mayor, the Clerk, the
County Administrator and other officials and employees of the County and professionals
to the County with respect to the Proposal are hereby ratified and approved.
SECTION 6. APPROVAL OF FORM OF LOAN AGREEMENT AND
SERIES 2020 NOTE. The County hereby approves a term loan from the Noteholder in
the principal amount of not to exceed $4,000,000. The Mayor and the Clerk shall
determine, upon the advice of the Financial Advisor, the specific principal amount of the
Loan. The terms and provisions of the Loan Agreement in substantially the form attached
hereto as Exhibit B are hereby approved, with such changes, insertions and additions as the
Mayor and the Clerk may approve. The County hereby authorizes the Mayor to execute
and deliver, and the Clerk to attest and affix the County seal to, the Loan Agreement
substantially in the form attached hereto as Exhibit B, with such changes, insertions and
additions as the Mayor and the Clerk may approve,their execution thereof being conclusive
evidence of such approval. In order to evidence the loan under the Loan Agreement, it is
necessary to provide for the execution of the Series 2020 Note. The Mayor and the Clerk
are authorized to execute and deliver the Series 2020 Note substantially in the form
attached to the Loan Agreement as Exhibit A with such changes, insertion and additions as
they may approve, their execution thereof being evidence of such approval.
SECTION 7. LIMITED OBLIGATION. The obligation of the County to
repay the Series 2020 Note is a limited and special obligation payable from Non-Ad
Valorem Revenues solely in the manner and to the extent set forth in the Loan Agreement
and shall not be deemed a pledge of the faith and credit or taxing power of the County and
such obligation shall not create a lien on any property whatsoever of or in the County. The
Non-Ad Valorem Revenues shall consist of legally available Non-Ad Valorem Revenues
budgeted and appropriated by the Board to pay debt service on the Series 2020 Note, all in
the manner and to the extent described in the Loan Agreement.
SECTION 8. DESIGNATION OF THE SERIES 2020 NOTE AS A
QUALIFIED TAX-EXEMPT OBLIGATION. The County hereby designates the
Series 2020 Note as a "qualified tax-exempt obligation" under Section 265(b)(3) of the
Code. This designation is based upon the findings of the County set forth in Section 1(H)
hereof and the Mayor and the Clerk are each authorized to certify such finding upon the
issuance of the Series 2020 Note.
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SECTION 9. GENERAL AUTHORIZATION. The Mayor,the Clerk,and
the County Administrator are authorized to execute and deliver such documents,
instruments and contracts, whether or not expressly contemplated hereby, that are
necessary or desirable to carry out the transactions contemplated herein, and the County
Attorney, Bond Counsel, the Financial Advisor and other employees or agents of the
County are hereby authorized and directed to do all acts and things required hereby or
thereby as may be necessary for the full, punctual and complete performance of all the
terms, covenants,provisions and agreements herein and therein contained, or as otherwise
may be necessary or desirable to effectuate the purpose and intent of this Resolution.
SECTION 10. REPEAL OF INCONSISTENT DOCUMENTS. All
prior ordinances, resolutions or parts thereof in conflict herewith are hereby superseded
and repealed to the extent of such conflict.
SECTION 11. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 16th day of September
2020.
Mayor Heather Carruthers Yes
Mayor Pro Tem Michelle Coldiron Yes
Commissioner Craig Cates Yes
g'/ Commissioner Sylvia Murphy Yes
Commissioner David Rice Yes
BOARD OF COUNTY COMMISSIONERS
1 '11OF OF MONROE COUNTY, FLORIDA
Attest: Kevin Madok, Clerk z
By: V"-_-, _-07,[JQ By: '" a, o
As Deputy Clerk Mayor -o
7.<- x rn
n N n
r
D ••
IV O
Approval as to form and content:
Monroe Countty'Attomey's Office
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9-- 1-2020
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EXHIBIT A
PROPOSAL OF TRUIST BANK
BB&T Branch Banking & Trust Company
Governmental Finance
5130 Parkway Plaza Boulevard
Charlotte,North Carolina 28217
Phone(704)954-1700
Fax(704)954-1799
August 26, 2020
Mr. Kevin Madok
Monroe County, FL
1100 Simonton St
Key West,FL 33040
Dear Mr. Madok:
Truist Bank ("Lender") is pleased to offer this proposal for the financing requested by Monroe County, FL
("Borrower").
PROJECT: 2020 Special Obligation Term Loan
AMOUNT: $4,000,000.00
MATURITY DATE: April 1,2025
INTEREST RATE: 1.11%
TAX STATUS: Tax Exempt—Bank Qualified
PAYMENTS: Interest: Semi-Annual
Principal. Annual
INTEREST RATE
CALCULATION- 30/360
SECURITY: Covenant to Budget and Appropriate legally available'non-ad valorem revenues of
the Borrower
PREPAYMENT
TERMS: Prepayable in whole at any time without penalty
RATE
EXPIRATION: October 10,2020
DOCUMENTATION/
LEGAL REVIEW
FEE: $7,500
FUNDING: The financing shall be fully funded at closing and allow for a maximum of four
Funding disbursements in the form of wires or checks.
DOCUMENTATION: It shall be the responsibility of the Borrower to retain and compensate counsel to
appropriately structure the financing documents according to Federal and State
statutes. Documents shall include provisions that will outline appropriate changes
to be implemented in the event that this transaction is determined to be taxable or
non-bank qualified in accordance with the Internal Revenue Code. These
provisions must be acceptable to Lender. In the event of default, any amount due,
and not yet paid, shall bear interest at a default rate equal to the interest rate on the
2020 Special Obligation Term Loan plus 2% per annum from and after five (5)
days after the date due.
Lender shall also require the Borrower to provide an unqualified bond counsel
opinion, a no litigation certificate, and evidence of IRS Form 808 filing. Lender
and its counsel reserve the right to review and approve all documentation before
closing. Lender will not be required to present the bond for payment.
REPORTING
REQUIREMENTS: Lender will require financial statements to be delivered within 270 days after the
conclusion of each fiscal year-end throughout the term of the financing or in
accordance with state requirements.
Lender shall have the right to cancel this offer by notifying the Borrower of its election to do so (whether this
offer has previously been accepted by the Borrower) if at any time prior to the closing there is a material
adverse change in the Borrower's financial condition, if we discover adverse circumstances of which we are
currently unaware, if we are unable to agree on acceptable documentation with the Borrower or if there is a
change in law(or proposed change in law)that changes the economic effect of this financing to Lender.
Costs of counsel for the Borrower and any other costs will be the responsibility of the Borrower..
The stated interest rate assumes that the Borrower expects to borrow no more than $10,000,000 in the current
calendar year and that the financing will qualify as qualified tax-exempt financing under the Internal Revenue
Code. Lender reserves the right to terminate this bid or to negotiate a mutually acceptable interest rate if the
financing is not qualified tax-exempt financing.
We appreciate the opportunity to offer this financing proposal. Please call me at (803) 251-1328 with your
questions and comments. We look forward to hearing,from you.
Sincerely,
Truist Bank
Andrew G. Smith
Senior Vice President
Exhibit B: PFM Disclosures to Qualified Providers
PFM is soliciting your interest in the above-named transaction pursuant to Securities and Exchange
Commission Release No. 34-89074(June 16, 2020)granting a temporary conditional exemption from
the broker requirements of Section 15(a) of the Securities Exchange Act of 1934 for certain activities
of registered municipal advisors. In connection with such solicitation please be advised of the
following.
• PFM ("we" or "us") represents solely the interests of the City with respect to the above-
referenced transaction and does not represent your interests.
• We have not conducted any due diligence on your behalf.
• Neither PFM nor the City have engaged a broker-dealer to act as a placement agent with respect
to this transaction.
• You may choose to engage the services of a broker-dealer to represent your interests.
Acknowledgment of Receipt:
Name:'
Title: V
Exhibit C:Certificate of Qualified Provider
August 24 2020
The undersigned, on behalf of[Name of Qualified Provider] (the "Purchaser"), in connection with the
purchase of the Agreement or Term Loan (the "Transaction") hereby represents and warrants as
follows:
1. The Purchaser is a "Qualified Provider" as required by Securities and Exchange Commission
Release No. 34-89074(June 16, 2020) which is defined as (i)a bank as defined in Section
3(a)(6) of the Exchange Act of 1934; (ii) a wholly-owned subsidiary of a bank engaged in
commercial lending and financing activities, such as an equipment lease financing
corporation;or(iii) a federally-or state-chartered credit union.
2. The Purchaser is capable of independently evaluating the investment risks of the transaction;
and
3. The Purchaser is not purchasing the Transaction with a view to distributing them.
4. 4.The Purchaser will not transfer any portion of the Transaction within one year of their
issuance date, except to another purchaser that meets the definition of Qualified Provider in
clause (1) above.
IN WITNESS WHEREOF,the undersigned has executed this certificate as of the date first mentioned
above.
[QUALIFIED PROVIDER NAME]
By: 1"-111Z4111r114
I / r
Name:
Title:
9
Monroe County Purchasing Policy and Procedures
ATTACHMENT D.12
VENDOR CERTIFICATION REGARDING SCRUTINIZED COMPANIES LISTS
Project Description(s):
4-
Respondent Vendor Name: 13 S-1-T—
Vendor FEIN:
Vendor's Authorized Representative Name and Title: � V 11�2 Address: w
City: (df State: _zip: 2—q2,c,
Phone Number: e�v:�
Email Address:
Section 287.135,Florida Statutes prohibits a company front bidding on,submitting a proposal for,or entering into
or renewing a contract for goods or services of any amount if,at the time of contracting or renewal, the company
is on the Scrutinized Companies that Boycott Israel List, created pursuant to Section 215.4725, Florida Statutes,
or is engaged in a Boycott of Israel. Section 287.135,Florida Statutes, also prohibits a company from bidding on.
submitting a proposal for,or entering into or renewing a contract for goods or services of$1 000,000 or more,that
are on either the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities
in the Iran Petroleum Energy Sector Lists which were created pursuant to s.215.473,Florida Statutes,or is engaged
in business operations in Cuba or Syria.
As the person authorized to sign on behalf of Respondent,. I hereby certify that the company identified above in
the Section entitled"Respondent Vendor Name"is not listed on the Scrutinized Companies that Boycott Israel List
or engaged in a boycott of Israel and for Projects of$1,000,000 or more is not listed on either the Scrutinized
Companies with Activities in Sudan List,the Scrutinized Companies with Activities in the Iran Petroleum Energy
Sector List,or engaged in business operations in Cuba or Syria.
I understand that pursuant to Section 287.135, Florida Statutes,the submission of a false certification may subject
company to civil penalties, attorney's fees, and/or costs. I further understand that any contract with the County
may be terminated, at the option of the County, if the company is found to have submitted a false certification or
has been placed on the Scrutinized Companies that Boycott Israel List or engaged in a boycott of Israel or placed
on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the
Iran Petroleum Energy Sector List or been engaged in business operations in Cuba or Syria,
Certified By: 47171 who is authorized to sign
on behalf of the above re I'e d
Authorized Signature:_ 7Y
Print Name:--;1
Title: V-117
Note: The List are available at the following Department of Management Services Site:
littp://www.diiis.iiivflorida-coiii/busijiess operations/sitate PUrchasinti/vendor iiiforiiiationlconvicted_suspended
discriminatory coL 4plaints vendor lists
Revised BOCC 3/18/2020
Page 82 of 92
EXHIBIT D
Monroe County Purchasing Policy and Procedures
ATTACHMENT D.8
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list following a conviction for public
entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may
not submit a bid on a contract with a public entity for the construction or repair of a public building or
public work, may not submit bids on leases of real property to public entity, may not be awarded or
perform work as a CONTRACTOR, supplier, subcontractor, or CONTRACTOR under a contract with
any public entity, and may not transact business with any public entity in excess of the threshold amount
provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being
placed on the convicted vendor list."
I have read the above and state that neither (Respondent's name) nor any
Affiliate has been placed on the convicted vendor list within the last 36 months.
(Signature)/
Date:
STATE OF:
COUNTY OF:
Subscribed and sworn to (or affirmed) before me by means ofA physical presence or 0 online
notarization, on (date) by
(name of affiant). He/She is personally known to me or
has produced (type of identification) as identification.
NOTARY PUBLIC
My Commission Expires:
CARL CARLOS
tjoury PUWIC,$we of South Carolina
My Commission Expires 11812025
Revised BOCC 3/18/2020
Page 78 of 92
Monroe County Purchasing Policy and Procedures
ATTACHMENT D.9
SWORN STATEMENT UNDER ORDINANCE NO. 010-1990
MONROE COUNTY, FLORIDA
ETHICS CLAUSE
(Company)
"...warrants that he/it has not employed, retained or otherwise had act on his/her behalf any former
County officer or employee in violation of Section 2 of Ordinance No. 010-1990 or any County officer or
employee in violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this provision
the County may, in its discretion, terminate this Agreement without liability and may also, in its discretion,
deduct from the Agreement or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration paid to the former County officer or employee."
(SignatuKe)
Date: 20
STATE OF: r�, V,
COUNTY OF: ILI
Subscribed and sworn to (or affirmed) before me, by means of2kphysical presence or 0 onlinp,7'
notarization, on
(date) by = (name of affiant). He/She is personally
known to me or has produced (type of identification) as
identification. CARL CARLOS
Notary Public,State of South Carolina
My Commission Expires 11812025
NOTARY PUBLIC
My Commission Expires:
Revised BOCC 3/18/2020
Page 79 of 92
Monroe County Purchasing Policy and Procedures
ATTACHMENT D.10
NON-COLLUSION AFFIDAVIT
oft of 1 according to law on my oath,
and under penalty of perjury, depose and say that
a. I am of the firm of
�-'- 5ti the bidder making the
Proposal for the project described in the Request for Proposals for
k e- 4 and that I executed the said proposal
with full authority to do so; "
b. the prices in this bid have been arrived at independently without collusion, consultation,
communication or agreement for the purpose of restricting competition, as to any matter
relating to such prices with any other bidder or with any competitor;
C. unless otherwise required by law, the prices which have been quoted in this bid have not
been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder
prior to bid opening, directly or indirectly, to any other bidder or to any competitor; and
d. no attempt has been made or will be made by the bidder to induce any other person,
partnership or corporation to submit, or not to submit, a bid for the purpose of restricting
competition;
e. the statements contained in this affidavit are true and correct, and made with full
knowledge that Monroe County relies upon the truth of the statements contained in this
affidavit in awarding contracts for said project.
(Signatdr
Date:
I<
STATE OF:
COUNTY OF:
Subscribed and sworn to (or affirmed) before me, by means of, physical presence or ton'line'
notarization, on (date) by
Cuff X— (name of affiant). He/She is personally known to me or has
produced (type of identification) as
identification.
NOTARY PUBLIC
My Commission Expires:
Revised BOCC 3/18/2020
Page 80 of 92 CARL CARLOS
%* Public,State Of S*"lh Wil"ry
My Commission Expires 11812025
Monroe County Purchasing Policy and Procedures
ATTACHMENT D.11
DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 287,087 hereby certifies that:
(Name of Business)
1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing,
possession, or use of a controlled substance is prohibited in the workplace and specifying the
actions that will be taken against employees for violations of such prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business' policy of
maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee
assistance programs, and the penalties that may be imposed upon employees for drug abuse
violations.
3. Give each employee engaged in providing the commodities or contractual services that are under
bid a copy of the statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employees that, as a condition of working
on the commodities or contractual services that are under bid, the employee will abide by the
terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo
contendere to, any violation of Chapter 893(Florida Statutes) or of any controlled substance law
of the United States or any state, for a violation occurring in the workplace no later than five (5)
days after such conviction,
5, Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or
rehabilitation program if such is available in the employee's community, or any employee who is
so convicted.
6. Make a good faith effort to continue to maintain a drug-free workplace through implementation
of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with the above
requirements.
(Signatu(e)
Date:
STATE OF:
COUNTY OF:
Subscribed and sworn to (or affirmed) before me, by means of O',physical presence or 0 online
notarization, on (date) by
(name of affiant). He/She is personally known to me or
has produced (type of identification) as identification.
NOTARY PUBLIC
/ " - -5,
My Commission Expires: " 'I () ,
Revised BOCC 3/18/2020
Page 81 of 92 CARCAR LC Notary Public,Rate Of S00 CMIARS
My commission Expires 111812025
EXHIBIT B
FORM OF LOAN AGREEMENT
EXHIBIT B
FORM OF LOAN AGREEMENT
BETWEEN
MONROE COUNTY, FLORIDA
AND
TRUIST BANK
Dated as of September , 2020
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS ...................................................................................2
SECTION 1.02. INTERPRETATION.......................................................................... 5
SECTION 1.03. TITLES AND HEADINGS ............................................................... 5
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR
SERIES 2020 NOTE
SECTION 2.01. REPRESENTATIONS BY THE COUNTY......................................6
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER...................................6
SECTION 2.03. SERIES 2020 NOTE SHALL NOT BE INDEBTEDNESS OF
THE COUNTY OR STATE.........................................................7
SECTION 2.04. COVENANT TO BUDGET AND APPROPRIATE NON-AD
VALOREM REVENUES.............................................................7
SECTION 2.05. PAYMENT COVENANT.................................................................. 8
SECTION 2.06. ANTI-DILUTION.............................................................................. 8
SECTION 2.07. TAX COVENANT.............................................................................9
SECTION 2.08. OTHER COVENANTS. ....................................................................9
ARTICLE III
DESCRIPTION OF SERIES 2020 NOTE; PAYMENT TERMS; OPTIONAL
PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2020 NOTE.............................. 10
SECTION 3.02. OPTIONAL PREPAYMENT.......................................................... 11
SECTION 3.03. ADJUSTMENT TO INTEREST RATE.......................................... 12
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
SECTION 4.01. EVENTS OF DEFAULT ................................................................. 14
SECTION 4.02. REMEDIES...................................................................................... 14
ARTICLE V
MISCELLANEOUS
SECTION 5.01. ENTIRE AGREEMENT; AMENDMENTS TO THIS
AGREEMENT............................................................................ 15
i
SECTION 5.02. COUNTERPARTS........................................................................... 15
SECTION 5.03. SEVERABILITY ............................................................................. 15
SECTION 5.04. TERM OF AGREEMENT............................................................... 15
SECTION 5.05. NOTICE OF CHANGES IN FACT................................................. 15
SECTION 5.06. NOTICES ......................................................................................... 15
SECTION 5.07. NO THIRD-PARTY BENEFICIARIES.......................................... 16
SECTION 5.08. APPLICABLE LAW........................................................................ 16
SECTION 5.09. WAIVER OF JURY TRIAL............................................................ 16
SECTION 5.10. INCORPORATION BY REFERENCE........................................... 17
EXHIBIT A - FORM OF SERIES 2020 NOTE
ii
This LOAN AGREEMENT (this "Agreement") is made and entered into as of
September , 2020, by and between MONROE COUNTY, FLORIDA, a political
subdivision of the State of Florida, and its successors as may be provided by law (the
"County"), and TRUIST BANK, a state banking corporation duly organized and existing
under the laws of the State of North Carolina and authorized to do business in the State of
Florida, and its successors and assigns (the "Noteholder");
WITNESSETH:
WHEREAS, the County is authorized by provisions of the Florida Constitution,
Chapter 125, Florida Statutes and other applicable provisions of law (collectively, the
"Act") to, among other things, acquire, construct, equip, own, sell, lease, operate and
maintain various capital improvements and public facilities to promote the health, welfare
and economic prosperity of the residents of the County and to borrow money to finance
and refinance the acquisition, construction, equipping and maintenance of such capital
improvements and public facilities; and
WHEREAS, the Clerk of the Circuit Court of Monroe County, Florida requires
certain capital improvements for its operations in the form of a new Enterprise Resource
Planning system; and
WHEREAS, the acquisition, installation and implementation of such Enterprise
Resource Planning system (the "Series 2020 Project") will improve and maintain the
health, safety and welfare of the citizens of the County and satisfy a public purpose; and
WHEREAS, the County, with the assistance of its Financial Advisor (as defined
herein), issued a Request for Proposals soliciting proposals from various financial
institutions to provide a term loan to the County to finance costs of the Series 2020 Project
and pay costs of issuance; and
WHEREAS, the proposal submitted by the Noteholder was the most favorable
proposal received by the County; and
WHEREAS, the Noteholder is willing to make a term loan to the County, and the
County is willing to incur such term loan, pursuant to the terms and provisions of this
Agreement in an aggregate principal amount of $ to finance costs of the
Series 2020 Project and pay costs of issuance.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
That 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 terms defined in this Article I shall, for
all purposes of this Agreement, have the meanings in this Article I specified, unless the
context clearly otherwise requires.
"Act" shall mean the Florida Constitution, Chapter 125, Florida Statutes, and other
applicable provisions of law.
"Ad Valorem Revenues" shall mean all revenues of the County derived from the
levy and collection of ad valorem taxes.
"Agreement" shall mean this Loan Agreement, dated as of September , 2020,
between the County and the Noteholder and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Board" shall mean the Board of County Commissioners of Monroe County,
Florida.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., Tampa, Florida or
any other attorney at law or firm of attorneys, of nationally recognized standing in matters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which the Noteholder is authorized or required to be closed.
"Clerk" shall mean the Clerk of the Circuit Court of Monroe County, Florida and
Ex-Officio Clerk of the Board of County Commissioners of the Monroe County, Florida
and such other person as may be duly authorized to act on her or his behalf, including any
Deputy Clerk.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and applicable
rules and regulations.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
County. Counterparty would also include any guarantor of such entity's obligations under
such Hedge Agreement.
"County" shall mean Monroe County, Florida, a political subdivision of the State
of Florida.
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"County Administrator" shall mean the County Administrator of the County or,
in his or her absence or unavailability, any Assistant County Administrator or a designee
of the County Administrator.
"Debt" means at any date (without duplication) all of the following to the extent
that they are secured by or payable in whole or in part from any Non-Ad Valorem Revenues
(A) all obligations of the County for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments; (B) all obligations of the County to pay the deferred
purchase price of property or services, except trade accounts payable under normal trade
terms and which arise in the ordinary course of business; (C) all obligations of the County
as lessee under capitalized leases; and (D) all indebtedness of other Persons to the extent
guaranteed by, or secured by, Non-Ad Valorem Revenues of the County; provided,
however, if with respect to any obligation contemplated in (A), (B), or (C) above, the
County has covenanted to budget and appropriate sufficient Non-Ad Valorem Revenues as
a secondary source of funds to satisfy such obligation but has not secured such obligation
with a lien on or pledge of any Non-Ad Valorem Revenues then, and with respect to any
obligation contemplated in (D) above, such obligation shall not be considered "Debt" for
purposes of this Loan Agreement unless the County has actually used Non-Ad Valorem
Revenues to satisfy such obligation during the immediately preceding Fiscal Year or
reasonably expects to use Non-Ad Valorem Revenues to satisfy such obligation in the
current or immediately succeeding Fiscal Year. After an obligation is considered "Debt"
as a result of the proviso set forth in the immediately preceding sentence, it shall continue
to be considered "Debt" until the County has not used any Non-Ad Valorem Revenues to
satisfy such obligation for two consecutive Fiscal Years.
"Default Rate" shall mean the lesser of(A) the then applicable Interest Rate plus
200 basis points (2.00%) per annum, or (B) the maximum rate allowable under applicable
law.
"Determination of Taxability" shall mean the circumstance of interest paid or
payable on the Series 2020 Note becoming includable for federal income tax purposes in
the gross income of the Noteholder as a consequence of any act or omission of the County.
A Determination of Taxability will be deemed to have occurred upon (A) the receipt by
the County or the Noteholder of an original or a copy of an Internal Revenue Service
Technical Advice Memorandum or Statutory Notice of Deficiency or other official letter
or correspondence from the Internal Revenue Service which holds that any interest payable
on the Series 2020 Note is includable in the gross income of the Noteholder; (B) the
issuance of any public or private ruling of the Internal Revenue Service that any interest
payable on the Series 2020 Note is includable in the gross income of the Noteholder, or
(C) receipt by the County or the Noteholder of an opinion of a Bond Counsel that any
interest on the Series 2020 Note has become includable in the gross income of the
Noteholder for federal income tax purposes. For all purposes of this definition, a
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Determination of Taxability will be deemed to occur on the date as of which the interest
on the Series 2020 Note is deemed includable in the gross income of the Noteholder.
"Fiscal Year" shall mean the 12-month period commencing on October 1 of any
year and ending on September 30 of the immediately succeeding year.
"Fitch" shall mean Fitch Ratings, and any successors or assigns thereto.
"Hedge Agreement" shall mean an agreement in writing between the County and
the Counterparty pursuant to which (1) the County agrees to pay to the Counterparty an
amount, either at one time or periodically,which may,but is not required to,be determined
by reference to the amount of interest(which may be at a fixed or variable rate)payable on
debt(or a notional amount) specified in such agreement during the period specified in such
agreement and (2) the Counterparty agrees to pay to the County an amount, either at one
time or periodically, which may, but is not required to, be determined by reference to the
amount of interest(which may be at a fixed or variable rate)payable on debt (or a notional
amount) specified in such agreement during the period specified in such agreement.
"Hedge Payments" shall mean any amounts payable by the County on the debt or
the related notional amount under a Qualified Hedge Agreement; excluding, however, any
payments due as a penalty or by virtue of termination of a Qualified Hedge Agreement or
any obligation of the County to provide collateral.
"Interest Rate" shall mean a fixed interest rate equal to 1.11% per annum. The
Interest Rate is subject to adjustment pursuant to Section 3.03 and Section 4.02 hereof.
"Maturity Date" shall mean April 1, 2025.
"Mayor" shall mean the Mayor of the Board and in her or his absence or
unavailability, the Mayor Pro Tem of the Board and such other person as may be duly
authorized to act on his or her behalf.
"Maximum Annual Debt Service" shall mean the maximum annual debt service
to come due during any Fiscal Year of the County on the outstanding Series 2020 Note.
"Moody's" shall mean Moody's Investors Service, and any successor or assigns
thereto.
"Non-Ad Valorem Revenues" shall mean all revenues of the County, other than
Ad Valorem Revenues, which are legally available to make the payments required herein
"Noteholder" shall mean Truist Bank, and its successors and assigns.
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"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or other
legal entity.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with respect to
which the County has received written notice from at least two of the Rating Agencies that
the rating of the Counterparty is not less than "A," without regard to gradations or other
modifiers.
"Rating Agencies" shall mean Fitch, Moody's and Standard and Poor's.
"Resolution" shall mean Resolution No. adopted by the Board on September
16, 2020, which among other things authorized the execution and delivery of this Loan
Agreement and the issuance of the Series 2020 Note.
"Series 2020 Note" shall mean the Monroe County, Florida Special Obligation
Revenue Note, Series 2020, authorized to be issued by the Resolution and more particularly
described in Article III hereof.
"Series 2020 Project" shall have the meaning ascribed thereto in the recitals
hereof.
"Standard and Poor's" shall mean S&P Global Ratings, and any successors and
assigns thereto.
"State" shall mean the State of Florida.
SECTION 1.02. INTERPRETATION. Unless the context clearly requires
otherwise, words of masculine gender shall be construed to include correlative words of
the feminine and neuter genders and vice versa, and words of the singular number shall be
construed to include correlative words of the plural number and vice versa. Any capitalized
terms used in this Agreement not herein defined shall have the meaning ascribed to such
terms in the Resolution. This Agreement and all the terms and provisions hereof shall be
construed to effectuate the purpose set forth herein and to sustain the validity hereof.
SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the
articles and sections of this Agreement, which 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.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS;
SECURITY FOR SERIES 2020 NOTE
SECTION 2.01. REPRESENTATIONS BY THE COUNTY. The County
represents, warrants and covenants that:
(a) The County is a political subdivision of the State. Pursuant to the Resolution,
the County has duly authorized the execution and delivery of this Agreement, the
performance by the County of all of its obligations hereunder, and the issuance of the Series
2020 Note in the principal amount of$
(b) The County has complied with all of the provisions of the constitution and
laws of the State, including the Act, and has full power and authority to enter into and
consummate all transactions contemplated by this Agreement or under the Series 2020
Note, and to perform all of its obligations hereunder and under the Series 2020 Note and,
to the best knowledge of the County, the transactions contemplated hereby do not conflict
with the terms of any statute, order, rule, regulation, judgment, decree, agreement,
instrument or commitment to which the County is a party or by which the County is bound.
(c) The County is duly authorized and entitled to issue the Series 2020 Note and
enter the Agreement and, when executed and delivered, the Series 2020 Note and the
Agreement will each constitute a legal, valid and binding obligation of the County
enforceable in accordance with its respective terms, subject as to enforceability to
bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally, or by the exercise of judicial discretion in accordance with
general principles of equity.
(d) There are no actions, suits or proceedings pending or, to the best knowledge
of the County, threatened against or affecting the County, at law or in equity, or before or
by any governmental authority, that, if adversely determined, would materially impair the
ability of the County to perform the County's obligations under this Agreement or under
the Series 2020 Note, or which would have a materially adverse effect on the County
(financial or otherwise).
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER. The Noteholder hereby represents, warrants
and agrees that it is a state banking corporation duly organized and existing under the laws
of the State of North Carolina and is authorized to execute and deliver this Agreement and
to perform its obligations hereunder, and such execution and delivery will not constitute a
violation of its charter, articles of association or bylaws. Pursuant to the terms and
provisions of this Agreement, the Noteholder agrees to provide a term loan to the County
6
as evidenced hereby and by the Series 2020 Note for the purpose of financing costs of the
Series 2020 Project and paying costs of issuance of the Series 2020 Note.
SECTION 2.03. SERIES 2020 NOTE SHALL NOT BE INDEBTEDNESS
OF THE COUNTY OR STATE. The Series 2020 Note, when delivered by the County
pursuant to the terms of this Agreement, shall not be or constitute an indebtedness of the
County, the State of Florida or any political subdivision or agency thereof, within the
meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be
payable solely as herein provided. The Noteholder shall never have the right to compel the
exercise of the ad valorem taxing power of the County or taxation in any form on any
property therein to pay the Series 2020 Note or the interest thereon. The Series 2020 Note
is a special and limited obligation secured by and payable as to principal and interest from
the Non-Ad Valorem Revenues, to the extent and in the manner provided herein.
SECTION 2.04. COVENANT TO BUDGET AND APPROPRIATE NON-
AD VALOREM REVENUES. The County covenants and agrees to budget and
appropriate in its annual budget for each Fiscal Year in which any amounts due hereunder
or with respect to the Series 2020 Note remain unpaid or outstanding, by amendment, if
necessary, from Non-Ad Valorem Revenues amounts sufficient to pay principal of and
interest on the Series 2020 Note when due. Such covenant and agreement on the part of
the County to budget and appropriate such amounts of Non-Ad Valorem Revenues shall
be cumulative to the extent not paid and shall continue until such Non-Ad Valorem
Revenues or other legally available funds in amounts sufficient to make all such required
payments shall have been budgeted, appropriated and actually paid. Notwithstanding the
foregoing covenant of the County, the County does not covenant to maintain any services
or programs, now provided or maintained by the County,which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of
such Non-Ad Valorem Revenues, nor does it preclude the County from pledging in the
future its Non-Ad Valorem Revenues, nor does it require the County to levy and collect
any particular Non-Ad Valorem Revenues, nor does it give the Noteholder a prior claim
on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the County.
Such covenant to 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 debt
instruments). However, the covenant to budget and appropriate for the purposes and in the
manner stated herein shall have the effect of making available for the payment of the Series
2020 Note, in the manner described herein,Non-Ad Valorem Revenues and placing on the
County a positive duty to appropriate and budget, by amendment, if necessary, amounts
sufficient to meet its obligations hereunder; subject, however, in all respects to the
restrictions of Section 129.07,Florida Statutes, which generally provide that the governing
body of each county may only make appropriations for each Fiscal Year which, in any one
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year, shall not exceed the amount to be received from taxation or other revenue sources;
and subject, further, to the payment of services and programs which are for essential public
purposes affecting the health, safety and welfare of the inhabitants of the County or which
are legally mandated by applicable law.
SECTION 2.05. PAYMENT COVENANT. The County covenants that it
shall duly and punctually pay from the Non-Ad Valorem Revenues budgeted and
appropriated in accordance with Section 2.04 hereof, the principal of and interest on the
Series 2020 Note at the dates and place and in the manner provided herein and in the Series
2020 Note according to the true intent and meaning thereof and all other amounts due under
this Agreement.
SECTION 2.06. ANTI-DILUTION. During such time as the Series 2020 Note
is outstanding hereunder or any amounts due hereunder or with respect to the Series 2020
Note remain unpaid or outstanding,the County agrees and covenants that upon the issuance
of any subsequent Debt, Non-Ad Valorem Revenues shall cover projected Maximum
Annual Debt Service on the Series 2020 Note and maximum annual debt service on Debt
by at least 1.2x. The calculations required by the immediately preceding sentence shall be
determined using the average of actual receipts for the prior two Fiscal Years based on the
County's annual audited financial statements for such Fiscal Years. In addition, for
purposes of such calculations, Maximum Annual Debt Service on the Series 2020 Note
and maximum annual debt service on Debt shall be determined on an aggregate basis
whereby the annual debt service for each is combined and the overall maximum is
determined.
For the purposes of the covenants contained in this Section 2.06, maximum annual
debt service on Debt means, with respect to Debt that bears interest at a fixed interest rate,
the actual maximum annual debt service, and, with respect to Debt which bears interest at
a variable interest rate, maximum annual debt service on such Debt shall be determined
assuming that interest accrues on such Debt at the current "Bond Buyer Revenue Bond
Index" as published in The Bond Buyer no more than two weeks prior to any such
calculation; provided, however, if any Debt, whether bearing interest at a fixed or variable
interest rate, constitutes Balloon Indebtedness, as defined in the immediately following
sentence, maximum annual debt service on such Debt shall be determined assuming such
Debt is amortized over 25 years on an approximately level debt service basis. For purposes
of the foregoing sentence, "Balloon Indebtedness" means Debt,25% or more of the original
principal of which matures during any one Fiscal Year. In addition, with respect to debt
service on any Debt which is subject to a Qualified Hedge Agreement, interest on such
Debt during the term of such Qualified Hedge Agreement shall be deemed to be the Hedge
Payments coming due during such period of time. With respect to debt service on any Debt
with respect to which the County elects to receive or is otherwise entitled to receive direct
subsidy payments from the United States Department of Treasury, when determining the
interest on such Debt for any particular interest payment date the amount of the
8
corresponding subsidy payment shall be deducted from the amount of interest which is due
and payable with respect to such Debt on the interest payment date and shall not be included
in the determination of Non-Ad Valorem Revenues for purposes of this Section 2.06, but
only to the extent that the County reasonably believes that it will be in receipt of such
subsidy payment on or prior to such interest payment date.
SECTION 2.07. TAX COVENANT. (a) In order to maintain the exclusion
from gross income for purposes of federal income taxation of interest on the Series 2020
Note, the County shall comply with each requirement of the Code applicable to the
Series 2020 Note. In furtherance of the covenant contained in the preceding sentence, the
County agrees to continually comply with the provisions of the Tax Certificate, which is
incorporated fully by reference herein, as a source of guidance for achieving compliance
with the Code.
(b) The County shall make any and all rebate payments required to be made to
the United States Department of the Treasury in connection with the Series 2020 Note
pursuant to Section 148(f) of the Code.
(c) So long as necessary in order to maintain the exclusion from gross income
of interest on the Series 2020 Note for federal income tax purposes, the covenants
contained in this Section shall survive the payment of the Series 2020 Note and the interest
thereon, including any payment or defeasance thereof.
(d) The County shall not take or permit any action or fail to take any action which
would cause the Series 2020 Note to be an "arbitrage bond" within the meaning of Section
148(a) of the Code.
SECTION 2.08. OTHER COVENANTS. The County will furnish to the
Noteholder within 270 days after the close of each Fiscal Year a copy of the annual audited
financial statements of the County, audited by a certified public accountant. The County
shall provide the Noteholder with a copy of the annual budget of the County each year and
any material amendments thereto within 60 days of the final adoption of such budget or
amendments. With reasonable promptness the County shall provide such other information
as may be reasonably requested by the Noteholder from time to time.
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ARTICLE III
DESCRIPTION OF SERIES 2020 NOTE; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2020 NOTE. (a) The
County hereby authorizes the issuance and delivery of the Series 2020 Note to the
Noteholder which Series 2020 Note shall be in an amount equal to MILLION
THOUSAND AND 00/100 DOLLARS ($ ) and shall be
designated as the "Monroe County, Florida Special Obligation Revenue Note, Series
2020." The text of the Series 2020 Note shall be substantially in the form attached hereto
as Exhibit A, with such omissions, insertions and variations as may be necessary and
desirable to reflect the particular terms of the Series 2020 Note. The provisions of the form
of the Series 2020 Note are hereby incorporated in this Agreement.
(b) The Series 2020 Note shall be dated the date of its delivery. The Series 2020
Note shall be executed in the name of the County by the manual signature of the Mayor
and the official seal of the County shall be affixed thereto and attested by the manual
signature of the Clerk. In case any one or more of the officers who shall have signed or
sealed the Series 2020 Note shall cease to be such officer of the County before the Series
2020 Note so signed and sealed shall have been actually delivered, such Series 2020 Note
may nevertheless be delivered as herein provided and may be issued as if the person who
signed or sealed such Series 2020 Note had not ceased to hold such office.
(c) The Series 2020 Note shall bear interest from its date of issuance at the
Interest Rate(calculated on a 30/360 day count basis) as the same may be adjusted pursuant
to Section 3.03 and Section 4.02 hereof. Interest on the Series 2020 Note shall be payable
semi-annually on April 1 and October 1 of each year, commencing April 1, 2021 (each an
"Interest Payment Date") so long as any amount under the Series 2020 Note remains
outstanding. Principal of the Series 2020 Note shall be payable annually on April 1 of each
year, commencing April 1, 2021 (each a "Principal Payment Date"), through and including
the Maturity Date. The aggregate annual principal payments shall be set forth in the Series
2020 Note.
(d) All payments of principal of and interest on the Series 2020 Note shall be
payable in any coin or currency of the United States which, at the time of payment, is legal
tender for the payment of public and private debts and shall be made to the Noteholder in
whose name the Series 2020 Note shall be registered on the registration books maintained
by the County as of the close of business on the fifteenth day (whether or not a Business
Day) of the calendar month next preceding an Interest Payment Date or Principal Payment
Date (i) in immediately available funds, (ii) by delivering to the Noteholder no later than
the applicable Interest Payment Date or Principal Payment Date a wire transfer, or (iii) in
such other manner as the County and the Noteholder shall agree upon in writing. After the
County makes the final payment of the principal of the Series 2020 Note, the Noteholder
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will either provide the County with the cancelled Series 2020 Note or shall otherwise notify
the County in writing that such Series 2020 Note has been fully paid and cancelled. If any
Interest Payment Date or Principal Payment Date is not a Business Day, the corresponding
payment shall be due on the next succeeding Business Day. The County shall maintain
books and records with respect to the identity of the holders of the Note, including a
complete and accurate record of any assignment of this Agreement and the Series 2020
Note as provided in Section 3.01(f).
(e) Except as otherwise provided herein, the Noteholder shall pay for all of its
costs relating to regular servicing the term loan. The County shall pay the fees of the
Noteholder's legal counsel in the amount of$7,500.
(f) The Noteholder's right, title and interest in and to the Series 2020 Note and
any amounts payable by the County thereunder may be assigned and reassigned in whole
only by the Noteholder, without the necessity of obtaining the consent of the County;
provided, that any such assignment, transfer or conveyance shall be made only to (a) an
affiliate of the Noteholder or(b) a bank, insurance company or their affiliate,provided that
any such entity is purchasing the Series 2020 Note for its own account with no present
intention to resell or distribute the Series 2020 Note, subject to each investor's right at any
time to dispose of the Series 2020 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
Noteholder to the County of the Noteholder's intent to assign and sell its right, title and
interest in and to the Series 2020 Note as herein provided, the County agrees that it shall
execute and deliver to the assignee Noteholder, a Series 2020 Note in the principal amount
so assigned, registered in the name of the assignee Noteholder, executed and delivered by
the County in the same manner as provided herein and with an appendix attached thereto
setting forth the amounts to be paid on each Principal Payment Date with respect to the
Series 2020 Note. In all cases of an assignment of the Series 2020 Note, the County shall
at the earliest practical time enter the change of ownership in the registration books;
provided, however, the written notice of assignment must be received by the Clerk at the
County's address set forth in Section 6.05 hereof 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 recorded on the books and records
of the County on such next succeeding Interest Payment Date.
Nothing contained in this Section 3.01(f) shall be interpreted to prohibit the
Noteholder from selling participations in the Series 2020 Note to any investors meeting the
conditions set forth in the immediately preceding paragraph.
SECTION 3.02. OPTIONAL PREPAYMENT. (a) The Series 2020 Note
may be prepaid in whole but not in part on any Business Day at a price equal to 100% of
the principal amount of the Series 2020 Note to be prepaid plus accrued interest thereon to
the date of prepayment without penalty or premium.
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(b) Any prepayment of the Series 2020 Note shall be made on such Business
Day as shall be specified by the County in a notice delivered to the Noteholder not less
than ten (10) days prior thereto specifying the principal amount of the Series 2020 Note to
be prepaid and the date that shall be the date of such prepayment. Notice having been
given as aforesaid, the amount of the outstanding principal of the Series 2020 Note to be
prepaid shall become due and payable on the date of prepayment stated in such notice
together with interest accrued and unpaid to the date of prepayment on the principal amount
then being paid. If on the date of prepayment moneys for the payment of the principal
amount to be prepaid on the Series 2020 Note, together with interest to the date of
prepayment on such principal amount, shall have been paid to the Noteholder as above
provided, then from and after the date of prepayment, interest on such prepaid principal
amount of the Series 2020 Note shall cease to accrue. If said money shall not have been
so paid on the date of prepayment, such principal amount of the Series 2020 Note shall
continue to bear interest until payment thereof at the then applicable Interest Rate. Any
such failure to pay the prepayment price shall not constitute an Event of Default hereunder.
SECTION 3.03. ADJUSTMENT TO INTEREST RATE. (a) In the event of
a Determination of Taxability, the Interest Rate on the Series 2020 Note shall be adjusted
(the "Adjusted Rate") in such manner as shall be determined by the Noteholder, absent
manifest error, as shall be necessary to provide to the Noteholder an after-tax yield on the
then outstanding principal amount of the Series 2020 Note equal to the after-tax yield to
the Noteholder, if such Determination of Taxability had not occurred, from the date such
interest must be included in such gross income; provided, however, such Adjusted Rate
shall never exceed the maximum rate allowable by law. Immediately upon a Determination
of Taxability and in no event later than thirty (30) days after such Determination of
Taxability,the County agrees to pay the Additional Amount to the Noteholder. "Additional
Amount" means (a) the difference between (i) interest on the Series 2020 Note for the
period commencing on the earliest date on which the interest on the Series 2020 Note (or
portion thereof) is deemed to have lost its tax-exempt status (which may be as early as the
date of issuance of the Series 2020 Note) and ending on the effective date of the adjustment
of the Interest Rate to the Adjusted Rate (the "Prior Taxable Period") at a rate per annum
equal to the Adjusted Rate and(ii) the aggregate amount of interest paid on the Series 2020
Note during the Prior Taxable Period at the Interest Rate applicable to the Series 2020 Note
prior to the adjustment to the Adjusted Rate, plus (b) any penalties, fines, fees, costs and
interest paid or payable by the Noteholder to the Internal Revenue Service by reason of
such Determination of Taxability.
(b) If for any reason it shall be determined that any portion of the Series 2020
Note is not a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of
the Code, then the Interest Rate thereon shall be increased to such rate as shall provide the
Noteholder with the same rate of return that the Noteholder would have otherwise received
on the such amounts taking into account the diminished deductibility of interest expense
of the Noteholder under Section 265 of the Code as a result of the non "qualified tax-
12
exempt obligation" status of the Series 2020 Note, together with any penalties, fines, fees,
or costs and interest paid or payable by the Noteholder to the Internal Revenue Service as
a result thereof, provided, however, such increased rate shall never exceed the maximum
rate allowable by law. Upon the written request of the County, the Noteholder shall
provide the County with evidence supporting any such increase.
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ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
SECTION 4.01. EVENTS OF DEFAULT. An "Event of Default" shall be
deemed to have occurred under this Agreement if-
(a) The County shall fail to make timely payment of principal or interest when
due with respect to the Series 2020 Note;
(b) Any representation or warranty of the County contained in Article II of this
Agreement shall prove to be untrue in any material respect when made;
(c) Any covenant of the County contained in this Agreement shall be breached
or violated for a period of 30 days from when the County receives notice from the
Noteholder of such breach or violation;
(d) There shall occur the dissolution or liquidation of the County, or the filing
by the County of a voluntary petition in bankruptcy, or the commission by the County of
any act of bankruptcy, or adjudication of the County as a bankrupt, or assignment by the
County for the benefit of its creditors, or appointment of a receiver for the County, or the
entry by the County into an agreement of composition with its creditors, or the approval
by a court of competent jurisdiction of a petition applicable to the County in any proceeding
for its reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter amended.
SECTION 4.02. REMEDIES. If any event of default shall have occurred and
be continuing, the Noteholder or any trustee or receiver acting for the Noteholder may
either at law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the laws of the State of
Florida, or granted and contained in this Agreement, and may enforce and compel the
performance of all duties required by this Agreement or by any applicable statutes to be
performed by the County or by any officer thereof, including, but not limited to, specific
performance. No remedy herein conferred upon or reserved to the Noteholder is intended
to be exclusive of any other remedy or remedies, and each and every such remedy shall be
cumulative, and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Notwithstanding any other provision
hereof, no Noteholder, trustee or receiver shall ever have the right to declare the Series
2020 Note immediately due and payable. Upon the occurrence of an Event of Default
pursuant to Section 4.01(a) hereof and the continuance of such Event of Default for five
(5) days, the Noteholder may adjust the Interest Rate to the Default Rate which shall be
effective until such Event of Default has been cured.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. ENTIRE AGREEMENT; AMENDMENTS TO THIS
AGREEMENT. (A) This Agreement constitutes the entire agreement between the
Noteholder and the County and all negotiations and oral understandings between the parties
are merged herein. The terms and conditions set forth in this Agreement supersede any
and all previous agreements, promises, negotiations or representations. Any other
agreements, promises, negotiations or representations not expressly set forth or
incorporated into this Agreement are of no force and effect.
(B) None of the Series 2020 Note, the Resolution nor this Agreement shall be
amended, changed or modified without the prior written consent of the Noteholder and the
County.
SECTION 5.02. 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 5.03. SEVERABILITY. If any clause, provision or section of this
Agreement shall be held illegal or invalid by any court, the invalidity of such provisions or
sections 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 5.04. TERM OF AGREEMENT. This Agreement shall be in full
force and effect from the date hereof and shall continue in effect as long as the Series 2020
Note is outstanding.
SECTION 5.05. NOTICE OF CHANGES IN FACT. Promptly after the
County becomes aware of the same, the County will notify the Noteholder of any change
in any material fact or circumstance represented or warranted by the County in this
Agreement or in connection with the issuance of the Series 2020 Note.
SECTION 5.06. NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if delivered personally or sent registered or
certified mail, postage prepaid, to Monroe County, Florida, 500 Whitehead Street, Key
West, Florida 33040, Attention: Monroe County Clerk of Court, with a copy to: County
Administrator, 1100 Simonton Street, Suite 205, Key West, Florida 33040, and to the
Noteholder, Truist Bank, 5130 Parkway Plaza Boulevard, Charlotte,North Carolina 28217,
15
Attention: Governmental Finance, Senior Vice President, or at such other address as shall
be furnished in writing by any such party to the other, and shall be deemed to have been
given as of the date so delivered or deposited in the United States mail.
SECTION 5.07. NO THIRD-PARTY BENEFICIARIES. This Agreement is
for the benefit of the County and the Noteholder and their respective successors and
assigns, and there shall be no third-party beneficiary with respect thereto.
SECTION 5.08. APPLICABLE LAW. The substantive laws of the State of
Florida shall govern this Agreement.
SECTION 5.09. WAIVER OF JURY TRIAL. Each party waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by jury in respect
of any proceedings relating to this Agreement.
[Remainder of page intentionally left blank]
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SECTION 5.10. INCORPORATION BY REFERENCE. All of the terms
and obligations of the Resolution are hereby incorporated herein by reference as if said
Resolution was fully set forth in this Agreement and the Series 2020 Note.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth herein.
MONROE COUNTY, FLORIDA
(SEAL)
By:
Mayor
ATTEST: Kevin Madok, Clerk
By:
Deputy Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
County Attorney's Office
TRUIST BANK
By:
Andrew G. Smith, Senior Vice President
17
EXHIBIT A
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA
SPECIAL OBLIGATION REVENUE NOTE
SERIES 2020
Interest Rate Date of Issuance Final Maturity Date
1.11% September , 2020 April 1, 2025
KNOW ALL MEN BY THESE PRESENTS, that Monroe County, Florida (the
"County"), for value received, hereby promises to pay, solely from the Non-Ad Valorem
Revenues described in the within mentioned Agreement to the extent and in the manner
provided in such Agreement, to the order of Truist Bank, or its successors or assigns (the
"Noteholder"), the principal sum of MILLION THOUSAND AND
00/100 DOLLARS ($ ) pursuant to that certain Loan Agreement by and
between the Noteholder and the County, dated as of September , 2020 (the
"Agreement"), and to pay interest on the outstanding principal amount hereof from the Date
of Issuance set forth above, or from the most recent date to which interest has been paid,
at the Interest Rate per annum (calculated on a 30/360 day count basis) identified above
(subject to adjustment as provided in the Agreement) semi-annually on April 1 and October
1 of each year, commencing April 1, 2021 so long as any amount under this Note remains
outstanding. Principal of the Series 2020 Note shall be payable annually on April 1 of each
year, commencing April 1,2021,through and including the Maturity Date identified above.
The principal repayment schedule for this Note is set forth in definitive form on Appendix
I attached hereto. The principal and interest on this Note is payable in any coin or currency
of the United States of America which, at the time of payment, is legal tender for the
payment of public and private debts.
This Note is issued under the authority of and in full compliance with the
Constitution and statutes of the State of Florida, including, particularly, Chapter 125,
Florida Statutes, and other applicable provisions of law, and Resolution No. duly
adopted by the County on September 16, 2020 (the "Resolution"), as such Resolution may
be amended and supplemented from time to time, and is subject to all terms and conditions
of the Resolution and the Agreement. Any capitalized term used in this Note and not
otherwise defined shall have the meaning ascribed to such term in the Agreement.
This Note is being issued to finance costs of the acquisition, installation and
implementation of a new Enterprise Resource Planning system for the Clerk's office and
to pay costs of issuance of this Note, all as more particularly described in the Resolution.
A-1
This Note is payable from the Non-Ad Valorem Revenues in the manner and to the
extent provided and described in the Agreement.
This Note shall bear interest at the Interest Rate identified above. Such Interest Rate
is subject to adjustment as provided in Section 3.03 and Section 4.02 of the Agreement.
The Noteholder shall provide to the County upon request such documentation to evidence
the amount of interest due with respect to the Series 2020 Note upon any such adjustment.
Notwithstanding any provision in this Note to the contrary, in no event shall the
interest contracted for, charged or received in connection with this Note (including any
other costs or considerations that constitute interest under the laws of the State of Florida
which are contracted for, charged or received) exceed the maximum rate of interest allowed
under the State of Florida as presently in effect.
All payments made by the County hereon shall apply first to fees, costs, late charges
and accrued interest, and then to the principal amount then due on this Note.
This Note may be prepaid in whole but not in part on any Business Day at a price
equal to 100% of the principal amount of this Note to be prepaid plus accrued interest
thereon to the date of prepayment, without penalty or premium. Any prepayment of this
Note shall be made on such Business Day as shall be specified by the County in a notice
delivered to the Noteholder not less than ten(10) days prior thereto specifying the principal
amount of this Note to be prepaid and the date that shall be the date of such prepayment.
This Note, when delivered by the County pursuant to the terms of the Agreement
and the Resolution, shall not be or constitute an indebtedness of the County or of the State
of Florida within the meaning of any constitutional, statutory or charter limitations of
indebtedness, but shall be payable from the Non-Ad Valorem Revenues, in the manner and
to the extent provided in the Agreement and the Resolution. The Noteholder shall never
have the right to compel the exercise of the ad valorem taxing power of the County or the
State, or taxation in any form of any property therein to pay the Note or the interest thereon.
This Note shall be and have all the qualities and incidents of a negotiable instrument
under the commercial laws and the Uniform Commercial Code of the State of Florida,
subject to the immediately succeeding paragraph and any provisions for registration and
transfer contained in the Agreement. So long as any of this Note shall remain outstanding,
the County shall maintain and keep books for the registration and transfer of this Note.
The Noteholder's right,title and interest in and to this Note and any amounts payable
by the County hereunder may be assigned and reassigned in accordance with and subject
to the restrictions in the Agreement.
IN WITNESS WHEREOF, the County caused this Note to be signed by the
manual signature of the Mayor and the seal of the County to be affixed hereto or imprinted
A-2
or reproduced hereon, and attested by the manual signature of the County Clerk, and this
Note to be dated the Date of Issuance set forth above.
MONROE COUNTY, FLORIDA
(SEAL)
By:
Mayor
ATTEST: Kevin Madok, Clerk
As Deputy Clerk
Approved as to Form and Legal Sufficiency:
County Attorney's Office
A-3
Appendix I
Principal Repayment Schedule for the
MONROE COUNTY, FLORIDA
SPECIAL OBLIGATION REVENUE NOTE,
SERIES 2020
Payment Date Principal
04/01/2021 $
04/01/2022
04/01/2023
04/01/2024
04/01/2025
A-I-1