Item S04 S.4
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County of Monroe
y,4 ' �, "tr, BOARD OF COUNTY COMMISSIONERS
Mayor Michelle Coldiron,District 2
Mayor Pro Tem David Rice,District 4
-Ile Flonda,Keys Craig Cates,District 1
Eddie Martinez,District 3
w Mike Forster,District 5
County Commission Meeting
June 16, 2021
Agenda Item Number: S.4
Agenda Item Summary #3366
BULK ITEM: No DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Richard Strickland(305) 809-5200
N/A
AGENDA ITEM WORDING: Approval of Resolution accepting the proposal of PNC Bank,
National Association to provide the County with a revolving line of credit of up to $10 million to
finance and refinance, on an interim basis, costs related to the Concourse A Expansion at the Key
West International Airport; approving the form of a line of credit agreement; approving the form of a
master note to secure draws under the line of credit agreement, providing a pledge of the net
revenues derived from the operation of the Airport and certain other available monies to secure
repayment of the master note, and authorization for the Mayor, the Clerk, the County Administrator
and the Airport Director to sign all necessary documents.
ITEM BACKGROUND: There is a need for interim financing of various capital improvements at
the Key West International Airport in connection with the Concourse A Expansion Project. In
response to the Request for Proposals, four(4)responses were received at the May 5th opening.
Based on review by County staff and the financial advisor for the Airport, Frasca& Associates,
LLC, PNC Bank, National Association had the most beneficial proposal for the County.
The essential terms of the proposal being recommended are as follows:
• Amount: NTE$10 million;
• Financing rate: 1 Month LIBOR+ 0.39% for a taxable facility;
• PNC Capped its bank legal fees at$12,500 and had no other upfront fees;
• Prepayable without penalty;
• Source of funds for repayment: Net revenues and eligible PFCs derived from the operation
of the Airport.
Using the loan has the benefit of freeing up Airport short-term cash.
This agenda item seeks approval of the resolution and necessary related documents, copies of which
are attached, together with authority for the Mayor, the Clerk and County staff to finalize
negotiations with the lender to put the documents into final form.
PREVIOUS RELEVANT BOCC ACTION: On October 20, 2020, the BOCC authorized the
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issuance of the RFP for competitive solicitations.
CONTRACT/AGREEMENT CHANGES:
new Resolution and agreement
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
KWIA LOC - Approving Resolution
EXHIBIT A -Proposal of PNC Bank, National Association
EXHIBIT B - Line of Credit Agreement
FINANCIAL IMPACT:
Effective Date: July 1, 2021
Expiration Date: June 29, 2023
Total Dollar Value of Contract: Not to exceed$10 million
Total Cost to County: -0-
Current Year Portion:
Budgeted:
Source of Funds: Net revenues and eligible PFCs derived from the operation of the Airport
CPI: no
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: Yes If yes, amount: $10 million
Grant:
County Match: n/a
Insurance Required: no
Additional Details:
REVIEWED BY:
Beth Leto Completed 06/01/2021 5:53 PM
Richard Strickland Completed 06/08/2021 12:07 PM
Pedro Mercado Completed 06/08/2021 12:37 PM
Purchasing Completed 06/08/2021 12:39 PM
Budget and Finance Completed 06/08/2021 2:23 PM
Maria Slavik Completed 06/08/2021 2:31 PM
Liz Yongue Completed 06/08/2021 3:10 PM
Board of County Commissioners Pending 06/16/2021 9:00 AM
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MONROE COUNTY, FLORIDA
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
ACCEPTING THE PROPOSAL OF PNC BANK,
NATIONAL ASSOCIATION TO PROVIDE THE COUNTY
WITH A REVOLVING LINE OF CREDIT OF UP TO
$10,000,000 TO FINANCE AND REFINANCE, ON AN
INTERIM BASIS, COSTS RELATED TO THE
CONCOURSE A EXPANSION AT THE KEY WEST
INTERNATIONAL AIRPORT; APPROVING THE FORM
OF A LINE OF CREDIT AGREEMENT WITH PNC BANK,
NATIONAL ASSOCIATION, IN ORDER TO EVIDENCE
SUCH LINE OF CREDIT; APPROVING THE FORM OF A
MASTER NOTE TO SECURE DRAWS UNDER THE LINE
OF CREDIT AGREEMENT; PROVIDING A PLEDGE OF
THE NET REVENUES DERIVED FROM THE
OPERATION OF THE AIRPORT AND CERTAIN OTHER
AVAILABLE MONEYS TO SECURE REPAYMENT OF
THE MASTER NOTE; 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) There is a need for interim financing of various capital improvements at the
Key West International Airport (the "Airport") in connection with the Concourse A
Expansion (the "Project"), as such Project is more particularly described in the plans and
specifications on file with Monroe County, Florida (the "County").
(B) The County previously solicited proposals from various financial
institutions, via a competitive process, to provide the County with a revolving line of credit
to finance and refinance costs of the Project on an interim basis.
(C) County staff and the financial advisor for the Airport, Frasca & Associates,
LLC (the "Financial Advisor"), have reviewed all of the proposals received and the
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proposal (the "Proposal") received from PNC Bank, National Association (the
"Noteholder"), a copy of which is attached hereto as Exhibit A, has been determined to be
the most beneficial proposal for the County.
(D) The County deems it to be in its best interest to accept the Proposal of the
Noteholder to provide it with a revolving line of credit (the "Line of Credit") and to issue
its Taxable Master Airport Revenue Note (PNC Bank, National Association Line of
Credit), Series 2021 (the "Master Note") to the Noteholder to secure and evidence the Line
of Credit.
(E) The County and the Noteholder shall enter into a Line of Credit Agreement
(the "Line of Credit Agreement") substantially in the form attached hereto as Exhibit B that is
will contain various terms of and provisions for the Line of Credit and the Master Note. 0
(F) Each Draw (as defined in the Line of Credit Agreement) under the Line of
Credit shall be solely secured by and payable from the Pledged Funds (as defined in the
Line of Credit Agreement), which consist of the Net Revenues and Eligible PFCs derived U
from the operation of the Airport, as such terms are defined in the Line of Credit CL
Agreement, and as of the date hereof, such Pledged Funds are not pledged or subject to any
liens or other encumbrances. W
(G) The Master Note, when delivered by the County pursuant to the terms of the
Line of Credit Agreement, and the Draws made thereagainst, shall not be or constitute an y
indebtedness of the County, the State of Florida or any political subdivision or agency W
thereof, within the meaning of any constitutional, statutory or charter limitations of
indebtedness, but shall be solely secured by and payable from a lien on and pledge of the
Pledged Funds and 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 Draws or the interest thereon.
(H) Due to the potential volatility of the market for obligations such as the Master
Note and the complexity of the transactions relating to the Master Note and the Line of
Credit, it is in the best interest of the County to sell the Master Note by a negotiated sale to
the Noteholder pursuant to the Proposal, the Line of Credit 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 Master Note and the Line of Credit
Agreement
SECTION 2. DEFINITIONS. When used in this Resolution, the terms
defined in the Line of Credit 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.
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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 Master Note by the Noteholder, the
provisions of this Resolution shall be a part of the contract of the County with the
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 Line of
Credit Agreement set forth to be performed by or on behalf of the County shall be for the
benefit, protection and security of the Noteholder. The Draws to be made against the ca
Master Note regardless of the time or times of their issuance or maturity, shall be of equal
rank without preference,priority or distinction of such Draws over any other thereof except
as provided therein or in the Line of Credit Agreement.
SECTION 5. ACCEPTANCE OF PROPOSAL. The County hereby
accepts the Proposal of the Noteholder to provide the County with a revolving line of credit
of up to $10,000,000, a copy of which Proposal is attached hereto as Exhibit A. The Mayor,
the County Administrator, and the Clerk are each hereby authorized to execute and deliver W
the Proposal to the Noteholder, all of the terms and provisions of which are hereby
approved and all actions previously taken by the Mayor, the Clerk, the County
Administrator, the Airport Director and other officials and employees of the County and
professionals to the County with respect to the Proposal are hereby ratified and approved.
The interest rate with respect to the Line of Credit is variable and shall be established from
time to time in accordance with the terms of the Proposal and the Line of Credit Agreement. 2
SECTION 6. APPROVAL OF FORM OF LINE OF CREDIT
AGREEMENT. The repayment of each Draw under the Line of Credit Agreement shall
be pursuant to the terms and provisions of the Line of Credit Agreement and the Resolution.
The terms and provisions of the Line of Credit Agreement in substantially the form
attached hereto as Exhibit B are hereby approved, with such changes, insertions and
additions as the Mayor and Clerk may approve; provided, however, such Line of Credit
may not exceed $10,000,000. The County hereby authorizes the Mayor to execute and
deliver, and the Clerk to attest and affix the County seal to, the Line of Credit Agreement
substantially in the form attached hereto as Exhibit B, with such changes, insertions and
additions as they may approve, their execution thereof being evidence of such approval.
SECTION 7. SECURITY FOR THE MASTER NOTE. The Master Note,
when delivered by the County pursuant to the terms of the Line of Credit Agreement, and
the Draws made thereagainst, 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 solely secured
by and payable from a lien on and pledge of the Pledged Funds. The Noteholder shall
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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 Draws or the interest thereon.
The Draws and the Master Note are special and limited obligations solely payable as to
principal and interest from the Pledged Funds.
SECTION 8. APPROVAL OF MASTER NOTE. In order to evidence and
secure Draws under the Line of Credit Agreement, it is necessary to provide for the
execution and delivery of the Master Note. The Mayor is authorized to execute and deliver,
and the Clerk is authorized to attest and affix the seal to, the Master Note substantially in
the form attached to the Line of Credit Agreement as Exhibit B, with such changes,
insertions and additions as they may approve, their execution thereof being evidence of
such approval. The Clerk is hereby designated the registrar and paying agent for the Master
Note. The Clerk shall keep adequate books and records to identify the holder of the Master 0
Note.
SECTION 9. DRAWS TO BE MADE BY CERTAIN AUTHORIZED
OFFICERS. Any Authorized Officer is authorized to make Draws under the Line of
Credit Agreement pursuant to the terms and provisions of the Line of Credit Agreement
and to execute such Draw Requests that are required by the Noteholder;provided,however,
the following must be satisfied prior to any such Draw being made: W
(A) the interest rate on the Draw must equal the Interest Rate (as determined in
accordance with the Line of Credit Agreement);
(B) the principal amount of the Draw, together with all other outstanding and
unpaid principal amounts of Draws previously or simultaneously made under the Line of
Credit Agreement, does not exceed $10,000,000;
(C) the proceeds of the Draw are scheduled to be applied to finance or refinance
Costs of the Project, as more particularly described in the Line of Credit Agreement;
(D) no Event of Default shall have occurred and be continuing under the Line of
Credit Agreement; and
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(E) all other conditions required under the Line of Credit Agreement for making
a Draw have been satisfied.
SECTION 10. GENERAL AUTHORIZATION. The Mayor, the Clerk, the
County Administrator and the Airport Director are authorized to execute and deliver such
documents, instruments and contracts, whether or not expressly contemplated hereby, 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
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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 11. 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 12. 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 June 2021.
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Mayor Michelle Coldiron
Mayor Pro Tem David Rice
Commissioner Craig Cates
Commissioner Mike Forster
Commissioner Eddie Martinez CL
BOARD OF COUNTY COMMISSIONERS
(Seal) OF MONROE COUNTY, FLORIDA
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Attest: Kevin Madok, Clerk
By: By:
Deputy Clerk Mayor
ASSISTA ATTORNEY
t7te 6/8/21
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EXHIBIT A
PROPOSAL OF PNC BANK, NATIONAL ASSOCIATION
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EXHIBIT B
FORM OF LINE OF CREDIT AGREEMENT
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EXHIBIT A
PROPOSAL OF PNC BANK, NATIONAL ASSOCIATION
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May 5, 2021 0
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Re: Monroe County, Florida (Key West International Airport): Request for Proposals - Line of
Credit for$10 Million KWIA 05/05/2021
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Good morning,
On behalf of The PNC Financial Services Group ("PNC"), attached please find PNC Bank, N.A.'s ("PNC
Bank") response to Monroe County, Florida (the"County") Request for Proposals for a Taxable or Non-
Bank Qualified Tax-Exempt Revolving Bank Line of Credit(the "Line") to provide the County with interim
financing at the Airport as it begins the design/build phase of the Concourse A Expansion ("Project") in an y
aggregate amount not to exceed $10,000,000 at any given time. PNC Bank is excited for the opportunity
to show support and assist the County in the completion of this transaction.
PNC brings a team-oriented approach to each financing, offering deep industry experience and sound
technical expertise. Furthermore, PNC Bank believes in developing full relationships with its clients. We
work hard to comprehensively understand our clients' unique financial needs and leverage the complete
capabilities of the bank to respond with thorough, thoughtful solutions.
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Once again, PNC is pleased to be able to support the County in this credit financing solution and aims to
have the transaction completed in a timely fashion. If you have any questions or need any additional 0
information, please do not hesitate to contact us.
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Regards,
Nick Ayotte
Senior Vice President, Public Finance 0
The PNC Financial Services Group
16740 San Carlos, Blvd
Ft. Myers, FL 33908
(T): 239.437.3736
nicholas.ayotte(c�pnc.com
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PNC BANK, NATIONAL ASSOCIATION
Preliminary Summary of Terms and Conditions for Loan Facilities
Monroe County, Florida
May 5, 2021
REVOLVING LINE OF CREDIT
This Term Sheet is not a commitment or an offer to lend and does not create any obligation on the part of the Bank or any affiliate
thereof. Neither the Bank nor any affiliate thereof will be deemed to have extended any commitment to the Borrower unless and until
a formal commitment letter is issued and has been executed, delivered and accepted. This outline is only a brief description of the
principal terms of suggested loan facilities and is intended for discussion purposes only. 2
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This Term Sheet is delivered to you on the understanding that any of the terms of substance hereunder shall not be disclosed,directly
or indirectly,to any other person except your officers,agents and advisors who are directly involved in the consideration of this matter
unless required to do so by applicable law or prior written consent has been given by the Bank.
I. PARTIES
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BORROWER: Monroe County, Florida (the"Borrower'). CL
BANK: PNC Bank, National Association ("PNC'or the"Bank').
II. CREDIT FACILITY,SECURITY AND FINANCING DOCUMENTS
CREDIT FACILITY: PNC will provide a variable rate Revolving Line of Credit (the "Credit Facility')
pursuant to which the Bank will make loans to the Borrower(the"Loans"). Loans y
under the Line of Credit may be taxable or tax-exempt(NBQ or BQ).
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COMMITMENT AMOUNT: Up to$10,000,000
PURPOSE: The proceeds of the Loans under the Credit Facility may be used for interim
financing at the Key West International Airport as it begins the design/build phase
of the Concourse A Expansion (the"Project").
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MATURITY: Up to 2 or 3 years from the Closing Date(the"Maturity Date").
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AMORTIZATION: Available for borrowing, repaying and re-borrowing until the Maturity Date.
Outstanding Loans and all other payment obligations owed to the Bank under the CL
Credit Facility shall be due and payable on the Maturity Date.
INTEREST: The variable rates outlined below are reset monthly. The Interest Payment Dates
can be made monthly, quarterly or semiannually based on the outstanding
balances.
SECURITY: The Credit Facility will be secured by the Net Revenues of the Key West
International Airport (the "Airport") and eligible Passenger Facility Charges
(PFCs"). Borrower will covenant to use its best efforts to obtain authorization to
pledge PFC Revenues as security for the Credit Facility.
MONROE COUNTY, FLORIDA
t3PNC
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FINANCING
DOCUMENTATION: The Credit Facility shall include standard conditions precedent to purchase and
closing, representations and warranties, indemnities, covenants, events of default
and remedies. The Note, any loan agreement, and the other documents required
for closing are herein collectively referred to as the"Financing Documents."
CLOSING DATE: The closing date is expected to occur on or about July 1,2021 (the"Closing Date"),
and shall be subject to the satisfaction of the conditions precedent set forth in the
Credit Facility and the conditions precedent described herein. m
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III. INTEREST RATES AND OTHER KEY PROVISIONS
VARIABLE INTEREST RATES:
2 YEAR OPTION: The Loans under the Credit Facility shall initially bear interest at a
variable rate equal to either: CL
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Taxable Rate: 1 Month LIBOR+ .39% ,
(or) W
Tax-Exempt(NBQ/BQ) Rate: (79%X 1 Month LIBOR)+.31%
UNUTILIZED FEE(2 YEAR): The Borrower shall pay an unutilized fee to the Bank quarterly in arrears on the
last day of each calendar quarter in an amount equal to the product of(i) 0.10% y
per annum and(ii)the difference between the amount of the Credit Facility and the
amount advanced by the Bank for each day in the term of the Credit Facility. The
Unutilized Fee shall be calculated based upon a year of 360 days and the actual
number of days elapsed.
3 YEAR OPTION: The Loans under the Credit Facility shall initially bear interest at a
variable rate equal to either:
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Taxable Rate: 1 Month LIBOR+.48% 4-
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(or) 76
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Tax-Exempt(NBQ/BQ) Rate: (79%X 1 Month LIBOR)+ .38%
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UNUTIuzED FEE(3 YEAR): The Borrower shall pay an unutilized fee to the Bank quarterly in arrears on the '
last day of each calendar quarter in an amount equal to the product of(i) 0.12%
per annum and(ii)the difference between the amount of the Credit Facility and the
amount advanced by the Bank for each day in the term of the Credit Facility. The
Unutilized Fee shall be calculated based upon a year of 360 days and the actual
number of days elapsed.
The Loans under the Credit Facility shall bear interest at the Variable Interest Rate
so long as no Event of Default has occurred.
DRAWS: Minimum draw amounts are $500,000 and in denominations of $100,000
thereafter.
MONROE COUNTY, FLORIDA
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INDEX FLOOR: In the event that the Index or any successor index at any time would be determined
less than 0.0%, such Index rate shall be deemed to be 0.0%.
LIBOR REPLACEMENT: According to statements by the United Kingdom's Financial Conduct Authority and
various United States financial regulatory authorities, LIBOR may no longer be
published or available for use as a benchmark index for the full term of the Credit
Facility. The Financing Documents will contain provisions to replace LIBOR in
such circumstances with an alternate benchmark index together with certain
related adjustments,and permit conforming changes relating to such replacement.
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COMPUTATION BASIS: Interest will be calculated on the daily Loans outstanding on a 360 day year for the
actual number of days elapsed and will be due monthly in arrears on the last day W
of each interest period for all Loans based on LIBOR. Interest rate will reset daily.
DEFAULT RATE: The Default Rate equals the greatest of(i)the PNC Prime Rate plus 3.0%; (ii)the
Overnight Bank Funding Rate plus 3.5%; and (iii) 7.0%. CJ
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EVENT OF TAXABILITY: In the event a determination of taxability shall occur due to action (or inaction)
caused by the Borrower,in addition to the amounts required to be paid with respect W
to any Tax Exempt Loans, the Borrower shall be obligated to pay to the Bank an
amount equal to the positive difference,if any, between the amount of interest that
would have been paid during the period of taxability if the Loans had borne interest
at a taxable rate and the interest actually received by the Bank with respect to the
Loans. Ch
IV. OTHER FEES AND EXPENSES
COMMITMENT/CLOSING FEE: Waived
PREPAYMENT: Prepayable without penalty and the Note can be cancelled at any time providing
all outstanding principal and accrued interest is paid in full.
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EXPENSES: All expenses incurred by the Bank, including security interests, if applicable, and
audit and reasonable legal fees (inside and outside), and any other expenses in 76
reference to structuring, documenting, closing, monitoring or enforcing the
Financing Documents, if applicable, shall be for the account of the Borrower and 0
payable at closing and otherwise on demand. Subject to a conflict waiver granted CL
by the County,the Bank prefers to utilize Bryant Miller Olive PA as Bank Counsel
Bank Counsel legal fees (review-only / no opinion) will not exceed $12,500 if
awarded the bank loan.All expenses(including counsel fees) shall be paid by the
Borrower regardless of whether the transaction is closed.
All fees and expenses, including those of Bank counsel, are subject to increase if
the transaction is not closed within 90 days from the date the Bank receives the
mandate from the Borrower. In addition, the fees and expenses payable to Bank
counsel may be increased if the security and/or structure of the transaction
changes materially once documentation has commenced.
V. FINANCIAL/NEGATIVE COVENANTS
AND FINANCIAL REPORTING Affirmative and negative covenants, including the financial covenants and
reporting covenants listed below, will be specified by the Bank for inclusion in the
MONROE COUNTY,FLORIDA
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Financing Documents. Covenants are expected to include but may not be limited
to (a) limitation on sale of assets; (b) limitation on additional indebtedness, liens
and leases; (c) limitation on loans and advances and (d) limitations on
amendments to the Financing Documents.
FINANCIAL COVENANTS:
• Debt Service Coverage of at least 1.20x,tested annually.
• Additional debt to require Bank approval,with the exception of long term
financing to refinance the Credit Facility.
FINANCIAL REPORTING: CJ
• Annual audited financial statements for the Borrower within 210 days of
fiscal year end;
• Covenant Compliance and No Event of Default certification signed by the
Chief Executive Officer or Chief Financial Officer of the Borrower,which
shall be submitted simultaneously with annual audit requirement stated
above.
• Quarterly unaudited financial statements and enplanement statistics of
the Borrower and its affiliates due within 60 days of each quarter end. CL
• Annual budget of the Borrower and its affiliates due within 30 days of '
fiscal year-end.
• Such other financial information as requested by the Bank. W
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NEGATIVE PLEDGE: The Borrower will covenant not to pledge PFC Revenues to other Lenders or
Bondholders unless a parity pledge is also extended to the Bank.
VI. CONDITIONS
PRECEDENT TO CLOSING The Financing Documents shall include conditions precedent customary for
transactions of this nature including,without limitation,the following:
Documentation satisfactory to Bank Counsel; delivery of enforceability and Ne
approving opinions; authorizing resolutions (which may be an existing authorizing
resolution); financial statements; certification of representations and warranties;
and certification as to no default or event of default. It is assumed that future draws
of the Credit Facility will not be considered new issuances for tax purposes. If this CL
is correct, subsequent opinions will not be required for each draw. If future draws
are deemed to be new issuances for tax purposes, opinions will be required and
additional fees paid by the Borrower may apply.
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VII. EVENTS OF DEFAULT/
REMEDIES: The Credit Facility shall include events of default customary for transactions of this
nature, including,without limitation: payment default,covenant defaults, breach of
representations, invalidity or repudiation of any Financing Document or any
material provision thereof, judgment default, bankruptcy or insolvency, and
pension plan defaults.
Upon the occurrence of an Event of Default, in addition to all other customary
remedies, all payment obligations shall bear interest at the Default Rate and may
be declared immediately due and payable.
MONROE COUNTY, FLORIDA
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VIII. CHOICE OF LAW/.JURY TRIAL/
OTHER PROVISIONS
GOVERNING LAW: The Credit Facility, and any other documents to which the Bank shall become a
party will be governed by the laws of the State of Florida.
USA PATRIOT ACT NOTICE: Pursuant to the requirements of the USA PATRIOT Act(Title III of Pub. 107 56),
the Bank is required to obtain, verify and record information that identifies the
Borrower and, potentially, other loan parties, which information may include,
without limitation,the name and address of the Borrower and any such loan parties
and other information that will allow the Bank to identify the Borrower and other
loan parties in accordance with the USA PATRIOT Act.
TRIAL: To the extent permitted by law, the parties to the Credit Facility agree to waive a
jury trial in any proceeding including the Bank.
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TRANSFERs/ASSIGNMENTS: While the Bank is providing the Credit Facility for its own account without a present
intent to transfer them,the Bank reserves the right in its sole discretion to assign, W
sell, pledge or participate interests in the Credit Facility without the consent of the
Borrower.
ADDITIONAL TERMS: The terms and conditions contained in this proposal are not intended to be y
comprehensive. The definitive Financing Documents may include additional terms
and conditions required by the Bank, subject to mutual agreement of the parties,
which are not included herein.
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NO ADVISORY OR
FIDUCIARY ROLE: The Borrower acknowledges and agrees that: (i) the Bank has not assumed any
advisory or fiduciary responsibility to the Borrower with respect to the transaction
contemplated hereby and the discussions, undertakings and procedures leading
thereto(irrespective of whether the Bank or any of its affiliates has provided other
services or is currently providing other services to the Borrower on other matters);
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(ii)the only obligations the Bank has to the Borrower with respect to the transaction ,-
contemplated hereby are expressly set forth in this term sheet; and (iii) the
Borrower has consulted its own legal,accounting,tax,financial and other advisors, y
as applicable,to the extent it has deemed appropriate. 0
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MONROE COUNTY, FLORIDA
QPNC
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ADDITIONAL PROPOSAL
REQUIREMENTS:
Financial Institution's Ratings and Financial Data
Senior debt A3 A- A A(high)
Subordinated debt A3 BBB+ A- A
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Preferred stock Baal BBB- BBB BBB (high)
Senior debt A2 A A+ AA(low)
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Subordinated debt A3 A- A A(high) CL
Long-term deposits Aa2 A AA- AA(low)
Short-term deposits P-1 A-1 F1+ R-1 (middle) 0
Short-term notes P-1 A-1 F1 R-1 (middle)
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LT Counterparty Risk Assessment Al
ST Counterparty Risk Assessment P-1 - - -
As of December 31, 2020:
Total Risk Based Capital Ratio: 15.6%
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Tier 1 Risk Based Capital Ratio: 13.2% 4-
0
Tier 1 Leverage Capital Ratio: 9.5% Ch
0
0.
Capital Structure CL
PNC's regulatory capital structure consists of the following capital instruments:common stock, preferred
stock,trust preferred capital securities, and qualifying subordinated debt.As of December 31, 2020, PNC's
common stock had a par value of$5 with 800 million shares authorized, and 543 million shares issued.At
the time of reporting, 119 million of the issued shares were held in treasury at cost. In addition, PNC had
$206 million in principal amount of an outstanding junior subordinated debenture associated with$200
million of trust preferred securities that were issued by a subsidiary statutory trust. Lastly, PNC had $3.6
billion in subordinated debt that qualified as Tier 2 capital for the Basel III ratio at year end December 31,
2020.The interest rates on the subordinated debt range from 2.70%to 4.20% and maturities range from
2022 through 2029. For more information on PNC's capital instruments, please refer to the 2020 Form 10-K
Part II, Item 5, Note 12, and Note 10.
MONROE COUNTY, FLORIDA
(DPNC
Packet Pg. 2764
S.4.b
Capital Adequacy
PNC's overall capital planning objective is to maintain sufficient capital resources, both in terms of quantity
and quality,to cover all of the firm's risks and allow the firm to operate effectively through a range of
economic environments. PNC's internal capital adequacy process(CAP) supports this overall objective by
taking into account capital stress testing results, capital and liquidity positions and other risk considerations.
In addition, PNC's CAP has a sound risk management infrastructure, including but not limited to,the
thorough review and consideration of alternative economic scenarios as well as other risks.The Board of
Directors, its Risk Committee, and senior management use the firm's CAP results to assess the level of
capital that is appropriate for the firm to maintain in light of the range of risks facing the firm,the firm's
business strategy, and its risk appetite. Sound capital stress testing practices and methodologies are a key
0
component of PNC's CAP. W
In addition to the CAP, PNC is subject to the Federal Reserve's capital plan rule, annual capital stress
testing requirements and Comprehensive Capital Analysis and Review(CCAR) process, as well as the
applicable Dodd-Frank capital stress testing requirements of the Federal Reserve and the OCC.As part of
the CCAR process,the Federal Reserve undertakes a supervisory assessment of PNC's capital adequacy.
This assessment is based on a review of a comprehensive capital plan submitted by PNC to the Federal
CL
Reserve that describes the company's planned capital actions during the nine-quarter review period, as well ,
as the results of stress tests conducted by both the company and the Federal Reserve under different
hypothetical macroeconomic scenarios, including supervisory severely adverse scenario provided by the W
Federal Reserve.
Capital Ratios
Ch
The Basel III Common equity Tier 1 capital,Tier 1 risk-based capital and Leverage ratios now reflect the full
phase-in of all Basel III adjustments, effective January 1, 2018.The Basel III Total risk-based capital ratio
includes$40 million of non-qualifying trust preferred capital securities that are subject to a phase-out period
that runs through 2021.All current period capital ratios are calculated using the regulatory capital .0
methodology applicable to us during 2020.These Basel III capital ratios may be impacted by any additional
regulatory guidance or analysis by PNC as to the application of the rules to PNC. Fully implemented Basel
III results are available and presented as estimates in the Basel III Pillar 3 Disclosures linked below. PNC
utilizes the fully implemented Basel III capital ratios to assess the impact to its capital position as if the
impact of CECL had been fully phased in at December 31, 2020.
CL
At December 31,2020, PNC and PNC Bank,our sole banking subsidiary,were both considered "well
capitalized," based on applicable U.S. regulatory capital ratio requirements.To qualify as"well
capitalized," PNC must have Basel III capital ratios of at least 6%for Tier 1 risk-based capital and 10%for
Total risk-based capital, and PNC Bank must have Basel III capital ratios of at least 6.5%for Common
equity Tier 1 risk-based capital, 8%for Tier 1 risk-based capital, 10%for Total risk-based capital and a CL
Leverage ratio of at least 5%. For PNC Bank's capital ratios, see PNC Bank's Call Report for the period
ended December 31, 2020.
Please see below for the web link for PNC's 4Q20 Basel III Pillar 3 Disclosures containing additional
information on PNC's capital structure, reporting, adequacy and coverage.
*Website Location:www.pnc.com >About Us> Financial Information > Regulatory Disclosures> Basel III
Pillar 3 Disclosures>4Q20 Basel III Pillar 3 Disclosures> Page 5, Capital
*Website Link below: https://thepncfinancialservicesgrout)inc.gcs-web.com/static-files/5ba23bb4-c2eb-
4022-868d-2e65c352a2d6
MONROE COUNTY, FLORIDA
Gpwe�
Packet Pg. 2765
S.4.b
A five (5) year history of our Tier One Risk Based Capital and Total Risk Based Capital which will
include the quarter ended December 2015.
PNC Bank N.A. ($ in millions): 2020 2019 2018 2017 2016 2015
Tier One $35,232 $32,215 $30,046 $28,942 $29,425 $29,425
Total $42,440 $39,074 $36,510 $34,756 $35,842 $36,482
From PNC's year end 1OK filings which are located at: www.sec.aov. Once you are at website, click under
company filings and insert PNC. Note: This information is for PNC Bank N.A. only.
CJ
0
References: W
City of Ft. Lauderdale: $70,500,000 Line of Credit
Contacts:
Susan Grant-Director of Finance
(954) 828-5145
sugrant fortlauderdale.govCL
Linda Short-Deputy Director of Finance
(954) 828-5267
LShort@fortlauderdale.gov W
Monroe County, Florida: $40,000,000 Line of Credit
Contact:
Kevin Madok-Clerk of the Circuit Court&Comptroller
(305)292-3550 y
Madok-Kevin a&MonroeCounty-FL.Gov
Peace River Manasota Regional Water Supply Authority: $5,000,000 Line of Credit
Contact:
Ann Lee-Director of Finance
941-316-1776
alee(a�regianalwater.arg
tJ
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Entity and Litigation Information 4-
In accordance with Section 2-347(h)of the Monroe County Code, the Proposer must provide the following information:
(1)A list of the person's or entity's shareholders with five (5) percent or more of the stock or, if a general partnership, a list
0.
of the general partners; or, if a limited liability company, a list of its members; or, if a solely owned proprietorship, names(s)
of owner(s); None CL
(2)A list of the officers and directors of the entity;
Please visit: https://www.pnc.com/en/about-pnc/company-profile/leadership-team.html?lnksrc=topnav
(3)The number of years the person or entity has been operating and, if different,the number of years it has been providing UJI
the services, goods, or construction services called for in the bid specifications (include a list of similar projects);
Please visit: https://www.pnc.com/en/about-pnc/company-profile/legacy-project/corporate-histar(.html
(4)The number of years the person or entity has operated under its present name and any prior names;
1983. Please visit: https:HNww.l)nc.com/en/about-pnc/company-profile/legacy-project/corporate-history.htmi
MONROE COUNTY, FLORIDA
G PN C
Packet Pg. 2766
S.4.b
(5)Answers to the following questions regarding claims and suits:
a. Has the person, principals,entity,or any entity previously owned,operated or directed by any of its officers,major
shareholders or directors, ever failed to complete work or provide the goods for which it has contracted? If yes,
provide details; Not aware of any specific cases and can confirm the answer is no for the PNC team responding to
this RFP.
b. Are there any judgments, claims, arbitration proceeding or suits pending or outstanding against the person,
principal of the entity,or entity,or any entity previously owned, operated or directed by any of its officers, directors,
or general partners? If yes, provide details; Please see responses below.
c. Has the person, principal of the entity, entity, or any entity previously owned, operated or directed by any of its
officers, major shareholders or directors, within the last five (5) years, been a party to any lawsuit, arbitration, or CJ
mediation with regard to a contract for services, goods or construction services similar to those requested in the
specifications with private or public entities? If yes, provide details; Please see responses below. W
d. Has the person, principal of the entity, or any entity previously owned, operated or directed by any of its officers,
owners, partners, major shareholders or directors, ever initiated litigation against the county or been sued by the
county in connection with a contract to provide services, goods or construction services? If yes, provide details;
Please see responses below.
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e.Whether,within the last five(5)years,the owner, an officer, general partner, principal,controlling shareholder or
major creditor of the person or entity was an officer, director, general partner, principal, controlling shareholder or r
major creditor of any other entity that failed to perform services or furnish goods similar to those sought in the W
request for competitive solicitation. PNC will not attest on behalf of non-PNC entities and can confirm the answer
is no for the PNC team responding to this RFP.
0
Responses for items b, c and d are as follows: y
LAWSUITS AND CIVIL INVESTIGATIONS AGAINST PNC BANKIPNC6
Please see the"Legal Proceedings"section of the reports of The PNC Financial Services Group, Inc. ("PNC')to the United
States Securities and Exchange Commission on Forms 10-K and 10-Q. In addition to the proceedings or other matters
described therein, PNC and its subsidiaries, particularly its principal banking subsidiary, PNC Bank, N.A., in the normal
course of business, are subject to various other pending and threatened legal proceedings in which claims for monetary
damages and other relief are asserted.We do not anticipate, at the present time, that the ultimate aggregate liability, if any,
arising out of such other legal proceedings will have a material adverse effect on our financial position or ability to perform
the requested services. In addition, as a result of the regulated nature of our business and that of a number of our
subsidiaries, particularly in the banking and securities areas,we and our subsidiaries are the subject from time to time of CL
investigations and other forms of regulatory inquiry, often as part of industry-wide regulatory reviews of specified activities.
Our practice is to cooperate fully with these investigations and inquiries.
VIOLATIONS OF UNSPECIFIED LAWS OR OTHER REQUIREMENTS WHILE PERFORMING CONTRACTS �
In the normal course of its business, PNC Bank, N.A. ("PNC Bank") is and has been subject to various pending and
threatened legal proceedings in which claims for monetary damages and other relief are asserted in connection with alleged CL
violations of work requirements on contracts performed by PNC Bank. PNC Bank does not anticipate, at the present time,
that the ultimate aggregate liability, if any, arising out of such legal proceedings or alleged violations will have a material F®
adverse effect on our financial position or ability to perform the requested services. Moreover, PNC Bank has never been 6-3
debarred by any governmental contracting entity from being permitted to bid on future contracts.
UJ
MONROE COUNTY, FLORIDA
GPNC
Packet Pg. 2767
S.4.b
AGREEMENT BY THE BORROWER:
The Borrower hereby desires to engage the Bank in the origination of the Credit Facility
pursuant to the terms and conditions stated herein.
Recognizing that this Term Sheet is non-binding on the Bank unless and until a
commitment is issued, please evidence your interest in proceeding on the foregoing
terms and conditions by signing and returning a copy of the document to the Bank on or
prior to June 16,2021 at which point the Bank will continue with due diligence and credit
underwriting for the foregoing transaction.
ACCEPTED AND AGREED TO:
MONROE COUNTY,FLORIDA
0
By:
Print Name:
Title:
tJ
Date: CL
0
0
CL
0
0.
L_
CL
MONROE COUNTY, FLORIDA
10
Packet Pg. 2768
S.4.b
Exhibit 2
Frasca& Associates, LLC Disclosures to Qualified Providers
Frasca & Associates, LLC ("FRASCA") is soliciting your interest in the above-described
transaction. In connection with such solicitation please be advised of the following:
• FRASCA represents solely the interests of the County with respect to the above-referenced
transaction and does not represent your interests.
• We have not conducted any due diligence on your behalf.
CO
• Neither FRASCA nor the County have engaged a broker-dealer to act as placement agent
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with respect to this transaction.
• You may choose to engage the services of a broker-dealer to represent your interests.
Acknowledgement of Receipt: y
Name:
ca
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Title:
0
0.
0
CL
LU
Packet Pg. 2769
S.4.b
Exhibit 3
Certificate of Qualified Provider
Date: May 3rd 2021
The undersigned, on behalf of PNC Bank,N.A. (the "Purchaser"), in connection with the
purchase of the Agreement or Line of Credit (the "Transaction") hereby represents and warrants
as follows:
1. The Purchaser is a"Qualified Provider"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
0
3. The Purchaser is not purchasing the Transaction with a view to distributing it.
0
4. The Purchaser does not have present intent to transfer any portion of the Transaction
within one-year of its issuance date, except to another purchaser that meets the definition
of Qualified Provider in clause (1) above.
CO
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first
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mentioned above.
PNC Bank,N.A. 0.
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By:
LU
Name:
Title:
Packet Pg. 2770
S.4.b
EXHIBIT 4
RESPONSE FORM
Respondent's name, address and e-mail address
PNC Bank,N.A.
16740 San Carlos Blvd,
Ft. Myers, FL 33908
Nick Ayotte
Nicholas.avottec, nc.com
EIN 22-1146430
RESPOND TO: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS c/o
PURCHASING DEPARTMENT
CL
GATO BUILDING, ROOM 2-213
1100 SIMONTON STREET
KEY WEST, FLORIDA 33040 Zi
I acknowledge receipt of Addenda No.(s) 1, 2 and 3
I have included:
o The Submission Response Form X
o Lobbying and Conflict of Interest Clause X 76
o Non-Collusion Affidavit X
o Drug Free Workplace Form X
o Public Entity Crime Statement X
o Vendor Certification Regarding Scrutinized Companies Lists X
In addition, I have included a current copy of the following professional and occupational licenses: U
a.
0
76
(Check mark items above, as a reminder that they are included.)
Mailing Address: Tel: 239.437.3736 0.
(if different from above)
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Fax:
Date: 5/5/2021
Signed: Witness.
(Seal)
Ah Ade
(Name)
(Title)
Packet Pg. 2771
S.4.b
LOBBYING AND CONFLICT OF INTEREST CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO. 0 10-1990 MONROE
COUNTY, FLORIDA
ETHICS CLAUSE
ns
"PNC Banlc,National Association"
(Company)
... warrants that he/she 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. 0 10-1990 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,jor consideration paid to the
former County officer or employee".
(Signature) Date:
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STATE OF: r
COUNTY OF: Q
Subscribed and sworn to (or affirmed) before me on
(date by A/1 C,40A S / J- 0 e--- (name of affiant). He/She 's personally
I nown t me or has produced as
ns
identification. (type of identification)
Kristine M.Bundy
�' NOTARY PUBLIC NOTARY PUBLIC
STATE OF FLORIDA
(SEAL) y:_ ° Comm#GG326858 My commission expires:
ONCE 19��' Expires 5/17/2023
22 Packet Pg. 2772
S.4.b
NON-COLLUSION AFFIDAVIT
I,Nick Ayotte, according to law on my oath, and under penalty of perjury, depose and say that:
1. I am Nick Ayotte
of the firm of PNC Bank,N.A.
the bidder making the Proposal for the project described in the Request for Qualifications
0
for:
Monroe County,Florida - Key West Airport$1 OMM Line of Credit
and that I executed the said proposal with full authority to do so:
2. The prices in this bid have been arrived at independently without collusion, consultation, U
communication, or agreement for the purpose of restricting competition, as to any matter CL
relating to such prices with any other bidder or with any competitor;
3. Unless otherwise required by law, the prices which have been quoted in this bid have not W
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
4. 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 y
competition;
5. 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 a ar ' g co tr is for said project.
t
(Signature of espondent) (Date) U
CL
STATE OF: y
0
COUNTY OF: L'L e-
CL
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
who, after first being sworn by me, (name of individual signing) affixed his/her signature in the space
provided above on this day of Motv 20V LU
NOTARY PUBLIC
My Commission Expires: ��
vmKristine M.Bundy
(Seal) NOTARY PUBLIC
STATE OF FLORIDA
Corner#GG326858
Expires 6/17/2023
23 1 Packet Pg. 2773
S.4.b
DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute, Sec. 287.087 hereby certifies that:
PNC Bank,N.A.
(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.
a)
2. Inform employees about the dangers of drug abuse in the workplace, the business's 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.
U
3. Give each employee engaged in providing the commodities or contractual services that are underCL
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 o
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 y
state, for a violation occurring in the workplace no later than five(5)days after such conviction.
76
5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance o
rrehabilitation program if such is available in the employee's community, for any employee who is so
convicted.
nz
6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of
this section.
CL
As the person authorized to sign the statement, I certify that this firm complies fully with the above 0
requirements.
0
CL
Respondent's Sig atu
Date
V",Vlsllw�
Kristine M.Bundy
NOTARY PUBLIC NOTARY PUBLIC
aSTATE OF FLORIDA
yComm#GG326858
Expires 5/17/2023 oZQ
My Commission Expires:
(Seal)
24 Packet Pg. 2774
S.4.b
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, Florida Statutes, 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 PNC Bank,N.A.
(Proposer's name) nor any Affiliate has been placed on the convicted vendor list within the last thirty-six
(36)months. c�
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(Signature)
Date:
0
STATE OF:
COUNTY OF: U -e--
CL
0
Subscribed anWt
orn to (or affirmed) before me on the day of y
0
�2 , byF C k e— (name of affiant). He/S e is ersonally known 0.
to me or has produced (type of i CL
identification.
My Co emission Expires: a 3
NOTARY
PUBLIC
Kristine M.Bundy
(SEAL) ti NOTARY PUBLIC
STATE OF FLORIDA
a Comm#GG326858
8 ® Expires 5/17/2023
Packet Pg. 2775
S.4.b
VENDOR CERTIFICATION REGARDING SCRUTINIZED COMPANIES LISTS
Project Description(s): Key West Airport$10MM Line of Credit
Respondent Vendor Name: PNC Bank,N.A.
Vendor FEIN: 22-114-6430
Vendor's Authorized Representative Name and Title:Nick Ayotte, Senior Vice President U
Address: 16740 San Carlos Blvd
City: Ft, Myers State: FL Zip: 33908
Phone Number 239.437.3736 Email Address: nicholas.avotteRmpnc.com
Section 287.135, Florida Statutes prohibits a company from bidding on, submitting a proposal for, or U
z
entering into or renewing a contract for goods or services of any amount if, at the time of contracting or CL
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 W
prohibits a company from bidding on, submitting a proposal for, or entering into or renewing a contract for o
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 U
were created pursuant to s.215.473,Florida Statutes,or is engaged in business operations in Cuba or Syria. y
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 CL
the COUNTY may be terminated,at the option of the COUNTY, if the company is found to have submitted
76
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 0
Companies with Activities in the Iran Petroleum Energy Sector List or been engaged in business operations
in Cuba or Syria. '
Certified By:Nick Ayotte,who is autho ized sign n half of the above referenced company.
Authorized Signature:
Print Name: Nick Ayotte
Title: Senior Vice President
Note: The List are available at the following Department of Management Services Site:
littp://www.dms.myflorida.com/business Aerations/state purchasing/vendor information/convicted susp
ended discriminatoL-� cornplaints vendor lists
Packet Pg. 2776
EXHIBIT B
FORM OF LINE OF CREDIT AGREEMENT
0
c
Packet Pg. 2777
0
LINE OF CREDIT AGREEMENT
BETWEEN
MONROE COUNTY, FLORIDA
AND
PNC BANK, NATIONAL ASSOCIATION
Dated as of July 1, 2021
Packet Pg. 2778
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS ...................................................................................2
SECTION 1.02. INTERPRETATION..........................................................................7
SECTION 1.03. TITLES AND HEADINGS ...............................................................7
ARTICLE II u
REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR 0
NOTES
SECTION 2.01. REPRESENTATIONS BY THE COUNTY...................................... 8
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER...................................9
SECTION 2.03. PROVISION OF CERTAIN FINANCIAL INFORMATION ..........9
SECTION 2.04. MASTER NOTE AND DRAWS NOT TO BE
INDEBTEDNESS OF THE COUNTY OR STATE.................... 9
SECTION 2.05. PAYMENT COVENANT................................................................ 10
SECTION 2.06. RATE COVENANT. ....................................................................... 10
ARTICLE III
DESCRIPTION OF MASTER NOTE AND DRAWS; PAYMENT TERMS;
OPTIONAL PREPAYMENT
4-
0
SECTION 3.01. DESCRIPTION OF THE MASTER NOTE AND DRAWS........... 13
SECTION 3.02. OPTIONAL PREPAYMENT.......................................................... 15
SECTION 3.03. ALTERNATE LIBOR RATE PROVISIONS. ................................ 15
ARTICLE IV Fn
CONDITIONS FOR DRAWS w
SECTION 4.01. CONDITIONS FOR DRAWS ......................................................... 16
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT................................................................. 18
SECTION 5.02. REMEDIES...................................................................................... 19
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THIS AGREEMENT..................................................................20
SECTION 6.02. COUNTERPARTS...........................................................................20
i
Packet Pg. 2779
SECTION 6.03. SEVERABILITY .............................................................................20
SECTION 6.04. TERM OF AGREEMENT...............................................................20
SECTION 6.05. NOTICE OF CHANGES IN FACT.................................................20
SECTION 6.06. NOTICES .........................................................................................21
SECTION 6.07. APPLICABLE LAW........................................................................21
SECTION 6.08. INCORPORATION BY REFERENCE...........................................21
[SECTION 6.09. ASSIGNMENT. ...............................................................................21
SECTION 6.11. USA PATRIOT ACT COMPLIANCE NOTIFICATION...............22
SECTION 6.12. BUSINESS DAYS ...........................................................................22
EXHIBITS
A - FORM OF DRAW CERTIFICATE
B - FORM OF MASTER NOTE
C - FORM OF DRAW REQUEST
D - LIBOR REPLACEMENT RIDER
c
ii
Packet Pg. 2780
This LINE OF CREDIT AGREEMENT (this "Agreement") is made and entered
into as of July 1, 2021, by and between MONROE COUNTY, FLORIDA, a political
subdivision of the State of Florida duly organized and validly existing under the laws of
the State of Florida, and its successors and assigns (the "County"), and PNC BANK,
NATIONAL ASSOCIATION, a national banking association duly organized and validly
existing under the laws of the United States of America and authorized to do business in
the State of Florida, and its successors and assigns (the "Noteholder");
WITNESSETH:
WHEREAS, the County has determined to acquire, construct and equip various
capital improvements at the Key West International Airport in connection with the
Concourse A Expansion, as more particularly described in the plans and specifications on
file with the County (the "Project");
WHEREAS, there is presently a need by the County to finance a portion of the
Costs (as defined herein) of the Project on an interim basis, prior to the issuance of long-
term indebtedness; �`
WHEREAS, the County is authorized by the provisions of Chapter 125, Florida
Statutes, and other applicable provisions of law (the "Act") to, among other things, borrow
money to finance and refinance Costs of the Project;
WHEREAS, the Noteholder is willing to make available to the County, and the
County is willing to enter into, a revolving line of credit arrangement pursuant to the terms
and provisions of this Agreement in an aggregate principal amount of not exceeding
$10,000,000 at any one time (unless such not to exceed amount is subsequently reduced by
a written amendment hereto pursuant to Section 6.01 hereof) under which the County may
draw moneys from time to time to finance or refinance Costs of the Project; and '
WHEREAS, any indebtedness incurred 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 solely secured by and payable W
from the Pledged Funds (as defined herein), as herein provided, and 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 any amounts due hereunder or the
interest thereon.
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:
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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 Chapter 125, Florida Statutes, and other applicable provisions of
law.
"Agreement" shall mean this Line of Credit Agreement, dated as of July 1, 2021,
by and between the County and the Noteholder and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Airport" shall mean the real property and airport and aviation facilities
constituting the existing Key West International Airport, the Project, and all additional
projects and capital improvements to the Airport. ,
"Airport Director" shall mean the Senior Director of Airports for the County, or W
his or her duly authorized designee.
"Authorized Officer" shall mean the Mayor, the Clerk, the County Administrator
or the Airport Director. C
"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 or Sunday or a legal
holiday on which commercial banks are authorized or required by law to be closed for
business in New York, New York.
"Clerk" shall mean the Clerk of the Circuit Court of Monroe County, Florida and
Ex-Officio Clerk of the Circuit Court of the Board, or his or her authorized designee,
including any Deputy Clerk.
"Costs," when used in connection with the Project, shall mean all expenses
associated with the acquisition, construction, installation, reconstruction, renewal or
replacement thereof, including without limitation: (i) land and interests therein, property
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rights, and easements of any nature whatsoever; (ii) physical construction, reconstruction,
renewal, replacement or completion; (iii) acquisition and installation of machinery,
equipment and other tangible personal property; (iv) planning, architectural, engineering,
surveying, legal, environmental and other consultant services; (v) fees and expenses
associated with the issuance County debt; (vi) interest accruing on County debt for such
period of time as the County deems appropriate; and (vii) all other expenses that are
properly attributable thereto under generally accepted accounting principles, including
reimbursement to the County for any moneys advanced for such purpose and interest on
any interfund loan for such purposes.
"County" shall mean Monroe County, Florida, a political subdivision of the State
of Florida duly organized and validly existing under the laws of the State of Florida.
"County Administrator" shall mean the County Administrator of the County, or
his or her authorized designee.
"Date of Issuance" shall mean, in the case of each Draw the date such Draw is
CL
funded. The Date of Issuance for each Draw will be set forth in the corresponding Draw
Request.
"Default Rate" shall mean the lesser of(i) the greater of(A) the Prime Rate plus
three percent(3%)per annum, or(B)the Overnight Bank Funding Rate plus three and one-
half percent(3.5%)per annum, or (C) seven percent (7%)per annum, or(ii) the maximum
rate permitted by law.
"Draw" or "Drawing" shall mean a borrowing of money against the Master Note
4-
in accordance with this Agreement. 0
"Draw Certificate" shall mean the certificate of the County required to be
delivered with respect to each Draw pursuant to Section 4.01(a) hereof, the form of which
is attached hereto as Exhibit A. 63
"Draw Request" shall mean the written request of the County to the Noteholder to
make a Draw against the Master Note pursuant to Section 4.01(a) hereof and approved by a
the Noteholder, the form of which is attached hereto as Exhibit C.
"Eligible PFC Revenues" shall mean PFC Revenues which shall be legally
available to pay the principal of and interest on the Master Note in accordance with the
PFC Act and the PFC Authority.
"Event of Default" shall have the meaning ascribed thereto in Section 5.01 hereof.
"Final Maturity Date" shall mean June 30, 2023.
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"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.
"Government Grant," when used with respect to the Airport, shall mean any sum
of money heretofore or hereafter received by the County from the United States of America
or any agency thereof or from the State of Florida or any agency or political subdivision
thereof as or on account of a grant or contribution, not repayable by the County, for or with
respect to the construction, acquisition or other development of an addition, extension or
improvement to any part of the Airport or any costs of any such construction, acquisition
or development. Government Grant shall not include any grants or contributions received
by the County for purposes of, or which may be used, without violating any obligation of
the County or condition of such grant, for the purposes of (i) funding Operating and
Maintenance Costs or (ii) paying debt service on debt obligations of the County. Any
grants or contributions described in the preceding sentence shall be considered "Gross
Revenues."
"Gross Revenues" shall mean for any period all moneys paid or accrued for the
use of and for services and facilities furnished by, or in connection with the ownership or
operation of, the Airport, or any part thereof or the leasing or use thereof, including, but W
not limited to (i) rentals, (ii) concession fees, (iii)use charges, (iv) landing fees, (v) license
and permit fees, (vi) service fees and charges, (vii) moneys from the sale of fuel, and or
other merchandise, and(viii)investment earnings;provided,however, that Gross Revenues 2
shall not include (A) proceeds received from the sale of debt, (B) proceeds from the sale
or taking by eminent domain of any part of the Airport, (C) gifts or Government Grants,
(D) ad valorem tax revenues, (E) any insurance proceeds received by the County (other
than insurance proceeds paid as compensation for business interruption), (F) amounts
received which are required to be paid to any other governmental body, including, but not
limited to taxes and impact fees, (G) PFC Revenues, and (H) any noise abatement charges
received for disbursement to others.
"Interest Rate" shall mean (i) the LIBOR Rate, or, (ii) if the London interbank
offered rate is no longer available or in certain other circumstances described in the LIBOR
Replacement Rider attached hereto as Exhibit D which is incorporated herein by reference,
the interest rate determined in accordance with the LIBOR Replacement Rider; provided,
however, in any event the Interest Rate shall never exceed the maximum rate allowable
under applicable law.
"LIBOR Rate" shall mean a variable rate of interest for Draws against the Master
Note equal to the sum of One Month LIBOR plus 39 basis points (0.39%).
"LIBOR Reserve Percentage" shall mean, as of any day, the maximum effective
percentage in effect as of such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements (including,
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without limitation, supplemental, marginal and emergency reserve requirements) with
respect to eurocurrency funding (currently referred to as "Eurocurrency liabilities").
"Master Note" shall mean the Monroe County, Florida Taxable Master Airport
Revenue Note (PNC Bank, National Association Line of Credit), Series 2021 authorized
to be issued by the Resolution and more particularly described in Section 3.01 hereof.
"Mayor" shall mean the Mayor of the Board or, in his or her absence or
unavailability, the Mayor Pro Tem of the Board or such other person as may be duly
authorized to act on either's behalf.
"Net Revenues" shall mean Gross Revenues less Operating and Maintenance
Costs.
"Noteholder" shall mean PNC Bank, National Association and its successors and
assigns.
"One-Month LIBOR" shall mean, for each Reset Date, the interest rate per annum CL
determined by the Noteholder by dividing (i) the rate which appears on the Bloomberg
Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which US
dollar deposits are offered by leading banks in the London interbank deposit market), or
the rate which is quoted by another source selected by the Noteholder as an authorized E
information vendor for the purpose of displaying rates at which US dollar deposits are
offered by leading banks in the London interbank deposit market (an "Alternate Source"),
at approximately 11:00 a.m., London time, two (2) Business Days prior to such Reset Date,
as the one (1) month London interbank offered rate for U.S. Dollars commencing on such
Reset Date (or if there shall at any time, for any reason, no longer exist a Bloomberg Page
BBAM1 (or any substitute page) or any Alternate Source, a comparable replacement rate
determined by the Noteholder at such time(which determination shall be conclusive absent
manifest error)), by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.
One-Month LIBOR shall never be less than 0.00% for purposes of this Agreement. One-
Month LIBOR shall be adjusted automatically without notice to the County on and as of
(a) each Reset Date or (b) the effective date of any change in the LIBOR Reserve
a�
Percentage. E
"Operating and Maintenance Costs" shall mean any and all costs incurred by the
County in operating, maintaining and administering the Airport, including, but not limited
to, the general administrative and legal costs of the County related to operation,
maintenance, management, security and development of the Airport; costs associated with
equipment, vehicles, supplies, materials, services and support for the operation,
maintenance, management and security of the Airport; any costs of litigation or a legal
judgment against the County; all costs incurred in planning or applying for, obtaining,
maintaining and defending permits; accounting, legal and engineering expenses; ordinary
and current rentals of equipment or other property; refunds of moneys lawfully due to
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others; pension, retirement, health and hospitalization funds; payments in lieu of taxes and
impact fees; and fees for management of the Airport or any portion thereof, but does not
include any costs or expenses in respect of original construction or improvement other than
expenditures necessary to prevent an interruption or continuance of an interruption of
service or of Gross Revenues or minor capital expenditures necessary for the proper and
economical operation or maintenance of the Airport, or any provision for interest,
depreciation, amortization or similar charges.
"Overnight Bank Funding Rate" shall mean, for any day, the rate comprised of
both overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed
banking offices of depository institutions, as such composite rate shall be determined by
the Federal Reserve Bank of New York ("NYFRB"), as set forth on its public website from
time to time, and as published on the next succeeding Business Day as the overnight bank
funding rate by the NYFRB (or by such other recognized electronic source (such as
Bloomberg) selected by the Noteholder for the purpose of displaying such rate); provided,
that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall
be such rate on the immediately preceding Business Day; provided, further, that if such CL
rate shall at any time, for any reason, no longer exist, a comparable replacement rate
determined by the Noteholder at such time(which determination shall be conclusive absent
manifest error). If the Overnight Bank Funding Rate determined as above would be less
than zero, then such rate shall be deemed to be zero. The rate of interest charged shall be E
adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate
without notice to the County.
"Passenger Facility Charges" or "PFCs" shall mean the passenger facility
charges relating to the Airport authorized from time to time under the PFC Act.
"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. F5
"PFC Act" shall mean the Aviation Safety and Capacity Expansion Act of 1990,
Pub. L. 101-508, Title IX, Subtitle B, §§9110 and 9111, recodified as 49 U.S. §40117, as
amended or replaced from time to time. E
"PFC Authority" shall mean the FAA's Records of Decision, as the same may be
amended from time to time, issued by the FAA relating to Passenger Facility Charges
imposed or to be imposed by the County at the Airport.
"PFC Regulations" shall mean Part 158 of the Federal Aviation Regulations (14
C.F.R. Part 158), as amended from time to time, and any other regulation(s) issued with
respect to the PFC Act.
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"PFC Revenues" shall mean all revenues received by the County from time to time
from the Passenger Facility Charges pursuant to PFC Authority imposed by the County at
the Airport pursuant to the PFC Act and the PFC Regulations, including any investment
income with respect thereto and including proceeds thereof and gains from sales of
investments after such revenues have been remitted to the County as provided in the PFC
Regulations.
"Pledged Funds" shall mean the Net Revenues and the Eligible PFC Revenues.
"Prime Rate" means the rate publicly announced by the Noteholder from time to
time as its prime rate. The Prime Rate is determined from time to time by the Noteholder
as a means of pricing some loans to its borrowers. The Prime Rate is not tied to any external
rate of interest or index, and does not necessarily reflect the lowest rate of interest actually
charged by the Noteholder to any particular class or category of customers.
"Reset Date" shall mean the first Business Day of each month.
"Resolution" shall mean Resolution No. adopted by the Board on June ,
16, 2021, which, among other things, authorized the execution and delivery of this TCD
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Agreement and the issuance of the Master Note. W
"State" shall mean the State of Florida. E
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 W
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 NOTES
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 and the
Master Note, the performance by the County of all of its obligations hereunder and under
the Master Note, and the issuance of the Master Note.
W
(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 the Resolution, this Agreement, or under the
Master Note, and to perform all of its obligations hereunder and under the Master Note.
CL
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 Master Note and
execute and deliver this Agreement and, when this Agreement is executed and delivered
and the Master Note are issued in accordance with the terms of this Agreement, this
Agreement and the Master Note will each constitute a legal, valid and binding obligation
of the County enforceable in accordance with their 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 w
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 E
the Master Note.
(e) The financial information concerning the Airport heretofore delivered to the
Noteholder is complete and correct and fairly presents the financial condition of the Airport
for the period(s) referred to and has been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the period(s)
involved. There are no liabilities (of the type required to be reflected on balance sheets
prepared in accordance with generally accepted accounting principles), direct or indirect,
fixed or contingent, of the Airport as of the date of such financial information which are
not reflected therein. There has been no material adverse change in the financial condition
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or operations of the Airport since the date of such information (and no such material
adverse change is pending or threatened, to the County's knowledge), and the County has
not guaranteed the obligations of, or made any investment in or loans to, any Person from
any portion of the Pledged Funds except as disclosed in such information.
(f) As of the date hereof, the County is in compliance with all covenants
contained in this Agreement and there is no Event of Default occurring hereunder.
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER. The Noteholder hereby represents, warrants
and agrees that it 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
articles of incorporation or bylaws. Pursuant to the terms and provisions of this Agreement,
the Noteholder agrees to establish a revolving line of credit on behalf of the County
pursuant to which it will make one or more loans to the County for the purpose of financing
or refinancing or reimbursing Costs of the Project.
0.
SECTION 2.03. PROVISION OF CERTAIN FINANCIAL
INFORMATION. The County covenants and agrees to provide the following financial
information to the Noteholder so long as the Master Note is outstanding hereunder:
(a) Within 210 days after the close of each Fiscal Year, annual audited financial
statements of the County which shall include, as an enterprise fund, financial information
concerning the Airport.
(b) With the delivery of the financial statements pursuant to Section 2.03(a), a U
4-
certificate executed by an Authorized Officer certifying that the County is in compliance
with all covenants contained in this Agreement and that there is no Event of Default then
occurring hereunder. '
(c) Within 30 days after the close of each Fiscal Year, the adopted annual budget
of the County which shall include, as an enterprise fund, financial information concerning w
the Airport.
(d) Within 60 days after the close of each quarter, commencing with the quarter
ending September 30, 2021, quarterly financial statements of the Airport and enplanement
statistics.
(e) Upon reasonable request of the Noteholder, such other financial information
regarding the Airport or the County as may be requested by the Noteholder.
SECTION 2.04. MASTER NOTE AND DRAWS NOT TO BE
INDEBTEDNESS OF THE COUNTY OR STATE. The Master Note, when delivered
by the County pursuant to the terms of this Agreement, and the Draws made thereagainst,
shall not be or constitute an indebtedness of the County, the State of Florida or any political
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subdivision or agency thereof,within the meaning of any constitutional, statutory or charter
limitations of indebtedness, but shall be solely secured by and payable from a lien on and
pledge of the Pledged Funds. 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 Draws or the interest thereon. The Draws and the Master Note
are special and limited obligations solely payable as to principal and interest from the
Pledged Funds. The County does hereby irrevocably pledge the Pledged Funds to the
payment of the principal of and interest on the Draws in accordance with the provisions
hereof. The pledge of and lien on such Pledged Funds shall attach with respect to each
Draw at the time it is made.
SECTION 2.05. PAYMENT COVENANT. The County covenants that it
shall duly and punctually pay the principal of and interest on the Draws at the dates and
place and to the extent and in the manner provided herein and in the Master Note according
to the true intent and meaning hereof and thereof and all other amounts due under this
Agreement. Failure to comply with this Section 2.05 shall result in an Event of Default
under Section 5.01(a) hereof. z
c.
SECTION 2.06. RATE COVENANT. For each Fiscal Year, the County shall W
fix, establish, maintain and collect such rates, fees, rentals and charges for the services and
facilities of the Airport, and revise the same from time to time, whenever necessary, so as
always to provide in each Fiscal Year Pledged Funds equal to at least 120% of the annual
debt service becoming due in such Fiscal Year with respect to all amounts drawn and
outstanding against the Master Note and any other outstanding indebtedness secured by
and payable from the Pledged Funds. For purposes of this Section 2.06, annual debt service
with respect to the Master Note shall be calculated for each Fiscal Year assuming that the
maximum principal amount that was outstanding against the Master Note during such
Fiscal Year is amortized on a level annual debt service basis over 30 years from the
commencement of such Fiscal Year and assuming that such principal amount bears interest
at The Bond Buyer Revenue Bond Index, or if unavailable, a similar index.
Such rates, fees, rentals and other charges shall not be so reduced so as to be
insufficient to provide adequate Pledged Funds for the purposes provided therefor by this
Agreement.
If, in any Fiscal Year, the County shall fail to comply with the requirements
contained in this Section 2.06, it shall constitute an Event of Default under Section 5.01(c)
hereof and the Noteholder shall not be obligated to honor any further Draws hereunder.
Upon such Event of Default, the County shall cause a nationally recognized airport
consultant to review its rates, fees, rentals, charges, income, Gross Revenues, PFCs,
Operating and Maintenance Costs and methods of operation and to make written
recommendations as to the methods by which the County may promptly seek to comply
with the requirements set forth in this Section 2.06. The County shall forthwith commence
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to implement such recommendations to the extent required so as to cause it to thereafter
comply with said requirements.
SECTION 2.07. ADDITIONAL INDEBTEDNESS. The County will not
issue or incur any indebtedness that is secured by and payable from the Pledged Funds
without the prior written consent of the Noteholder. The County may, without the consent
of the Noteholder, issue any additional indebtedness secured by the Pledged Funds if the
proceeds of such additional indebtedness will be applied to pay, in full, all amounts due to
the Noteholder with respect to the Master Note.
SECTION 2.08 OTHER COVENANTS. (a) The County irrevocably
covenants, binds and obligates itself not to sell, lease, encumber or in any manner dispose
of the Airport as a whole or any substantial part thereof(except as provided below) until
all amounts due and owing hereunder shall have been paid in full. The foregoing provision
notwithstanding, the County shall have and hereby reserves the right to sell, lease or
otherwise dispose of any of the property comprising a part of the Airport in the following
manner, if any one of the following conditions exist: (i) such property is not necessary for
the operation of the Airport, (ii) such property is not useful in the operation of the Airport,
(iii) such property is not profitable in the operation of the Airport, or (iv) in the case of a
lease of such property,will be advantageous to the Airport and will not materially adversely
affect the security for the Noteholder.
Notwithstanding provisions of this Section 2.08(a), the County may make contracts
or grant licenses for the operation of, or grant easements or other rights with respect to, any
part of the Airport if such contract, license, easement or right does not, in the opinion of
the County, impede or restrict the operation of the Airport,but any payments to the County
0
under or in connection with any such contract, license, easement or right in respect of the
Airport or any part thereof shall constitute Gross Revenues.
(b) The County will reasonably enforce and collect the rates, fees, rentals and
other charges for the services and facilities of the Airport herein pledged; will take all s
reasonable steps, actions and proceedings for the enforcement and collection of such rates,
charges, rentals and fees as shall become delinquent, to the full extent permitted or
authorized by law; and will maintain accurate records with respect thereof.
(c) The County covenants to do all things necessary on its part to continue the
levy of the Passenger Facility Charges in compliance with the PFC Act and any successor
provision of law and to diligently enforce collection of the Passenger Facility Charges. The
County will at all times comply with all of the requirements and conditions of the PFC Act,
the PFC Regulations and the PFC Authority, and take every necessary action to remain
qualified to levy the Passenger Facility Charges and collect the PFC Revenues. The County
will not take any action which will jeopardize eligibility for receipt of such funds which
may adversely affect the undertakings provided in this Agreement. The County will not
take any action or enter into any agreement which will have the effect of reducing the level
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of Passenger Facility Charges received by the County if such reduction shall materially
adversely affect the County's ability to pay the amounts due hereunder. The County will
use its best efforts to obtain approval of the eligibility of certain PFCs for the Project and
authorization to pledge such PFCs as security for the Master Note.
(d) The County covenants that it will comply with all provisions of the PFC Act
and the PFC Regulations applicable to the County, and all provisions of the PFC
Approvals, and that it will not take any action or omit to take any action with respect to the
PFC Revenues, the Project, the Airport or otherwise if such action or omission would,
pursuant to the PFC Act, the PFC Regulations or the PFC Approvals, cause the termination
of the authority to impose Passenger Facility Charges or prevent the use of the Eligible
PFC Revenues as contemplated by this Agreement and PFC Approvals. The County
covenants that all PFC Revenues will be used in compliance with all provisions of the PFC
Act, the PFC Regulations and the PFC Approvals applicable to the County, and all
provisions thereof.
(e) The County shall not take any action which would cause the Administrator Z
c.
of the Federal Aviation Administration, or any successor to the powers and authority of
such Administrator,to suspend or revoke operating certificates issued for the Airport under W
the Federal Aviation Act of 1958, or any successor statute. The County shall comply with
all valid acts, including the acts, rules, regulations, orders and directives of any
governmental, legislative, executive, administrative or judicial body applicable to the
Airport, unless the same shall be contested in good faith.
(f) The County covenants that it will at all times use reasonable efforts, subject '
to force majeure, to keep the Airport open for landings and takeoffs of aircraft of any type
using facilities similar to those at the Airport and to maintain the powers, duties and
obligations now reposed in it pursuant to law, and will not at any time take or fail to take
any action the effect of which could reasonably be expected to delay or imperil either the
payment of the indebtedness evidenced by the Master Note or the performance or F5
observance of any of the covenants herein contained.
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ARTICLE III
DESCRIPTION OF MASTER NOTE AND DRAWS; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE MASTER NOTE AND DRAWS.
(a) At or prior to the date the County makes the initial Draw against the Master Note
pursuant to Section 4.01(b) of this Agreement, the County shall, pursuant to the authority
granted under the Resolution, issue and deliver a note to the Noteholder, which note shall
be in an amount equal to not exceeding TEN MILLION AND 00/100 DOLLARS
($10,000,000) and shall be designated as the "Monroe County, Florida Taxable Master
Airport Revenue Note (PNC Bank, National Association Line of Credit), Series 2021".
Notwithstanding anything herein to the contrary, the aggregate principal amount of Draws
that may be made and be outstanding against the Master Note at any one time is limited to
$10,000,000 as provided in Section 3.01(c) hereof. The text of the Master Note shall be
substantially in the form attached hereto as Exhibit B, with such omissions, insertions and
variations as may be necessary and desirable to reflect the particular terms of the Master CL
Note. The provisions of the form of Master Note are hereby incorporated in this
Agreement. W
(b) The Master Note shall be dated the date of its delivery. The Master 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
Master Note shall cease to be such officer of the County before the Master Note so signed
and sealed shall have been actually delivered, the Master Note may nevertheless be
delivered as herein provided and may be issued as if the person who signed or sealed the
Master Note had not ceased to hold such office. The Master Note may be signed and sealed
on behalf of the County by such person who at the actual time of the execution of the
Master Note shall hold the proper office, although at the date the Master Note shall actually
be delivered, such person may not have held such office or may have been so authorized.
(c) The County shall be entitled to borrow, repay and re-borrow funds from the
Noteholder in accordance with the terms hereof provided that the aggregate principal E
amount which is outstanding and owed to the Noteholder under this Agreement and against
the Master Note does not exceed TEN MILLION AND 00/100 DOLLARS ($10,000,000)
at any one time. The County and the Noteholder may mutually agree in writing to reduce
the aggregate principal amount that may be borrowed hereunder pursuant to Section 6.01
hereof. In such event, the County shall execute and deliver a new Master Note to evidence
such reduction. Each Draw made against the Master Note shall be designated as "Draw
Number All Draws shall be made by the County in accordance with Article IV
hereof. All Draws made against the Master Note in accordance with Article IV hereof shall
bear interest from the respective Date of Issuance of such Draws, at the Interest Rate.
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(d) All Draws made against the Master Note shall bear interest at the applicable
Interest Rate. The applicable Interest Rate shall be adjusted as of each Reset Date to reflect
changes in the One-Month LIBOR or any applicable replacement index that may be in
effect pursuant to Section 3.03 hereof. If the Default Rate is in effect, it shall be adjusted
as any of the applicable indices thereof change. Interest on all Draws made against the
Master Note shall be payable quarterly in arrears on the first day of January, April, July
and October of each year (each an "Interest Payment Date") so long as any amount under
the Master Note remains outstanding, interest on a particular Draw commencing on the
first Interest Payment Date which next succeeds the date of such Draw. Principal of all
Draws shall be due and payable on the Final Maturity Date. Each Draw must be in a
principal amount no less than$500,000 and must be made in integral multiples of$100,000 U
in excess thereof. When all Draws have been paid in full in accordance with the terms
hereof and no other Draws may be made hereunder, the Noteholder shall cancel the Master
Note and deliver it to the County or shall otherwise provide evidence to the County that
the Master Note have been cancelled. Interest on all Draws made against the Master Note
shall be calculated based upon a year of 360 days and the actual number of days elapsed. U
(e) All payments of principal of and interest on Draws made against the Master '
Note shall be payable in any coin or currency of the United States which, at the time of W
payment, is legal tender for the payment of public and private debts and shall be made to
the Noteholder (i) in immediately available funds, (ii) by delivering to the Noteholder no E
later than the payment date a check or draft of the County, or (iii) in such other manner as
the County and the Noteholder shall agree upon in writing. t
(f) During such period of time thereafter as the aggregate principal amount of
Draws that are outstanding hereunder is less than 100% of the maximum aggregate
principal amount that may be drawn and outstanding hereunder, the County will be charged
a non-use fee equal to 10 basis points (0.10%)per annum (calculated on the basis of a 360-
day year and the actual number of days elapsed) of the principal amount not drawn against
the Master Note for each day. Such fee shall be due and payable quarterly in arrears on
the first day of October, January, April and July of each year, commencing October 1,
2021, so long as the outstanding principal amount of Draws hereunder is less than 100%
of the maximum aggregate principal amount that may be drawn and outstanding hereunder.
In accordance with Section 3.01(c) and Section 6.01 hereof, the County and the Noteholder
may agree in writing to reduce the maximum aggregate principal amount of Draws that
may be made hereunder at any time and the fee described hereunder shall be adjusted
accordingly. If the County terminates its right to make any further Draws hereunder
pursuant to Section 6.04 hereof, the non-use fee shall no longer accrue from the date
specified in the County's notice. Except as provided in this Section 3.01(f) and Section
6.01, the Noteholder shall pay for all of its costs, including any legal fees and expenses,
relating to servicing and enforcing the line of credit. The County shall pay legal fees of
Bryant Miller Olive P.A., counsel for the Noteholder, in the amount not to exceed $12,500
in connection with the initial issuance of the Master Note.
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SECTION 3.02. OPTIONAL PREPAYMENT. The County may prepay and
redeem any Draw or all Draws made against the Master Note, in whole or in part, on any
Reset Date by paying to the Noteholder the principal amount of the Draw to be prepaid,
together with the unpaid interest accrued on the amount of principal so prepaid to the date
of such prepayment, without any prepayment premium or penalty. Each prepayment of a
Draw shall be made on such Reset Date and in such principal amount as shall be specified
by the County in a notice delivered to the Noteholder not less than five (5) Business Days
prior thereto specifying the principal amount of the Draw or Draws to be prepaid and the
date of such prepayment. Notice having been given as aforesaid, the principal amount of
the Draw stated in such notice or the whole thereof, as the case may be, shall become due
and payable on the prepayment date stated in such notice, together with interest accrued U
and unpaid to the prepayment date on the principal amount then being paid. If on the
prepayment date moneys for the payment of Draw or portion thereof to be prepaid,together
with interest to the prepayment date on such amount, shall have been paid to the Noteholder
as above provided, then from and after the prepayment date interest on such portion of the
Draw shall cease to accrue. If said moneys shall not have been so paid on the prepayment ca
date, such principal amount of such Draw or portion thereof shall continue to bear interest CL
until payment thereof at the rate or rates provided for in this Agreement.
SECTION 3.03. ALTERNATE LIBOR RATE PROVISIONS. The LIBOR
Replacement Rider attached as Exhibit D and incorporated herein by this reference E
provides a mechanism for determining an alternative rate of interest in the event that the
London interbank offered rate is no longer available or in certain other circumstances
described in such LIBOR Replacement Rider. The Noteholder does not warrant or accept
any responsibility for and shall not have any liability with respect to, the administration, U
submission or any other matter related to the London interbank offered rate or other rates
in the definition of "One-Month LIBOR" or with respect to any alternative or successor
rate thereto, or replacement rate therefor. To the extent that any term or provision of the
LIBOR Replacement Rider is or may be inconsistent with any term or provision in the
remainder of this Agreement or any other document related hereto, the terms and
provisions of the LIBOR Replacement Rider shall control.
Uj
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ARTICLE IV
CONDITIONS FOR DRAWS
SECTION 4.01. CONDITIONS FOR DRAWS. (a) In connection with any
Draw, the Noteholder shall not be obligated to make any loan under this Agreement unless
at or prior to the date specified for the making thereof the County delivers to the Noteholder
a Draw Request of the County's intention to make a Draw at least five (5) Business Days
prior to the date specified for such Draw, which specified date for such Draw must be a
Reset Date. Such Draw Request shall be substantially in the form attached hereto as
Exhibit C. Such Draw Request must be signed by an Authorized Officer in connection
with each Draw. On or prior to the date of any Draw, the County shall provide the
Noteholder with a certificate signed by an Authorized Officer substantially in the form
attached hereto as Exhibit A.
(b) On or before the date the initial Draw is made against the Master Note, the
County shall have caused to be delivered to the Noteholder the Master Note and the Z
following items in form and substance acceptable to the Noteholder:
(i) An opinion of Bond Counsel to the effect that this Agreement and the
Master Note have each been duly authorized by the County and are enforceable
obligations in accordance with their terms (enforceability of such instruments may
be subject to standard bankruptcy exceptions and the like);
(ii) An opinion of the County Attorney in form and substance acceptable
to the Noteholder and Bond Counsel; and
(iii) Such additional certificates, instruments and other documents as the
Noteholder or its Counsel or Bond Counsel, or the County Attorney may deem
necessary or appropriate.
(c) Upon satisfaction of the conditions set forth in paragraph (a) and (b) above,
the County may borrow, repay and re-borrow funds from the Noteholder in accordance
with the terms hereof provided that the aggregate principal amount which is outstanding
and owed to the Noteholder under this Agreement and against the Master Note does not
exceed TEN MILLION AND 00/100 DOLLARS ($10,000,000) at any one time. The
County shall apply the proceeds of each Draw only to finance or refinance, or reimburse
itself for prior expenditures incurred for, Costs of the Project and costs related to the
preparation, execution and delivery of this Agreement and the issuance of the Master Note.
(d) Each Draw Request shall constitute a covenant and reaffirmation of the
County that the warranties and representations in this Agreement and the Master Note are
still true and correct, that the Resolution, Master Note and this Agreement are in full force
and effect and have not been amended, modified or superseded except as provided pursuant
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to Section 6.01 hereof, that all of the terms and conditions of this Agreement have been
and are being complied with, and that no Event of Default or event which, with the giving
of notice or passage of time or both, would constitute an Event of Default hereunder has
occurred as of the date of the Draw.
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ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. 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 then
due on any Draw;
(b) Any representation or warranty of the County contained in this Agreement
or any certificate provided the Noteholder under Article IV shall prove to be untrue in any
material respect on the date made or deemed made;
(c) Any covenant of the County contained in this Agreement shall be breached
or violated for a period of thirty (30) days after the County's notice of such breach or
violation, unless the Noteholder shall agree in writing to an extension of such time prior to
z
its expiration; ,
(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 E
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;
(e) Final judgment for the payment of money in the amount of $2,500,000 or
more is rendered against the County relating to activities at the Airport, and the County is
liable to pay such judgment pursuant to the provisions of Chapter 768, Florida Statutes, or X
other applicable law, the payment of which would materially adversely affect the County's
ability to meet its obligations hereunder (it being agreed that, if insurance or adequate
reserves are available to make such payment, such judgment would not materially affect
the County's ability to meet its obligation hereunder) and at any time after 90 days from
the entry thereof, (i) such judgment shall not have been discharged, or (ii) the County shall
not have taken and be diligently prosecuting an appeal therefrom and, to the extent that any
final process or proceeding supplementary to enforce such judgment is lawfully available,
such process or proceeding has not been stayed pending determination of such appeal;
(f) The County shall have taken or permitted to be taken any official action, or
shall have duly enacted any ordinance or adopted any resolution, which repudiates, or
otherwise denies, that the County has any further liability or obligation under or with
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respect to any provision hereunder or this Agreement or any material provision of this
Agreement shall be held illegal or invalid by any court; or
(g) This Agreement is determined to be unenforceable by a competent court of
law.
SECTION 5.02. REMEDIES. (a) 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. No failure or delay by the Noteholder
to insist upon the strict performance of any term, covenant or agreement contained herein
or in the Master Note, or to exercise any right, power or remedy consequent upon a breach W
thereof, shall constitute a waiver of any such term, covenant or agreement or of any such
breach, or preclude the Noteholder from exercising any such right, power or remedy at any
later time or times. Except as provided in Section 6.01 hereof, the Noteholder shall never
have the right to declare the Master Note immediately due and payable.
(b) If an Event of Default occurs, the County shall also be obligated to pay as
part of the indebtedness evidenced by the Master Note and Draws thereunder solely from
the Pledged Funds, all costs of collection and enforcement hereof, including such
reasonable attorneys' fees as may be incurred by any Noteholder, including on appeal or
incurred in any proceeding under bankruptcy laws as they now or hereafter exist.
(c) Upon the occurrence and during the continuation of an Event of Default, in
addition to other remedies provided for hereunder, the entire outstanding principal amount
of all Draws made against the Master Note shall bear interest at the Default Rate, the non-
use fee shall continue to accrue so long as the County has not terminated its right to make
Draws pursuant to Section 6.04 hereunder, and the Noteholder shall not be obligated to
honor any further Draws hereunder.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THIS AGREEMENT. This Agreement shall not be amended, changed or modified
without the prior written consent of the Noteholder and the County, it being understood
that the fees and expenses of the Noteholder relating to any amendments which are
requested by the County shall be borne by the County. Notwithstanding the foregoing, if,
in connection with the issuance of any additional indebtedness of the County that is secured
by or payable from the Pledged Funds, the County provides the lender of such additional
indebtedness acceleration rights as a remedy to any event of default, then such provision
shall be deemed to be incorporated by reference herein and upon the request of the
Noteholder, the County and the Noteholder shall promptly amend this Agreement so as to
provide the Noteholder with the same provisions.
SECTION 6.02. COUNTERPARTS. This Agreement may be executed in any
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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, W
and, in making proof of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
SECTION 6.03. SEVERABILITY. This Agreement and the Master Note
constitute the entire agreement of the parties with respect to the subject matter hereof, and
supersede all prior and contemporaneous writings or agreements. 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. F5
SECTION 6.04. TERM OF AGREEMENT. This Agreement shall be in full
force and effect from the date hereof and shall continue in effect as long as any amount is
outstanding against the Master Note. The commitment of the Noteholder to honor Draws
in accordance with the terms hereof shall expire on June 29, 2023. The County may
terminate its right to make Draws hereunder by providing the Noteholder with no less than
ten (10) days prior written notice signed by an Authorized Officer, which notice shall
indicate the date on which Draws may no longer be made. The County may make such
termination at any time regardless of whether an Event of Default has occurred or is
continuing.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Within 10 days of
becoming aware of the same, the County will notify the Noteholder of(a) any change in
any material fact or circumstance represented or warranted by the County in this
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Agreement or in connection with the issuance of the Master Note, and (b) any default or
event which, with notice or lapse of time or both, could become an Event of Default under
this Agreement, specifying in each case the nature thereof and what action the County has
taken, is taking and/or proposed to take with respect thereto.
SECTION 6.06. 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 3491 South Roosevelt Boulevard, Key West, Florida
33040, Attention: Senior Director of Airports, with a copy to: County Administrator, 1100
Simonton Street, Suite 205, Key West, Florida 33040, and a copy to: Clerk of Court, 500
Whitehead Street, Key West, Florida 33040, and to the Noteholder, PNC Bank, National
Association, 16740 San Carlos Boulevard, Fort Myers, Florida 33908, 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 6.07. APPLICABLE LAW. The substantive laws of the State of
Florida shall govern this Agreement.
CL
SECTION 6.08. 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.
SECTION 6.09. ASSIGNMENT. The rights and obligations of the Noteholder
hereunder and under the Master Note may be assigned in whole to another "qualified
institutional buyer" (as that term is defined in the regulations promulgated under the
Securities Act of 1933, as amended)prior to the end of the period during which Draws may
be made, and to any person that is an "accredited investor" (as that term is defined in the
regulations promulgated under the Securities Act of 1933, as amended), after the end of
such period, without the consent of the County. The rights and obligations of the County
hereunder and under the Master Note may not be assigned, transferred, conveyed or
encumbered without the consent of the Noteholder. The County shall maintain a register
of assigns of this Agreement and the Master Note. This Agreement and the Master Note
shall be binding on the parties and their respective permitted successors and assigns.
SECTION 6.10. WAIVER OF JURY TRIAL; APPLICABLE LAW AND
JURISDICTION. (A) To the extent permitted by applicable law, the County and the
Noteholder knowingly, voluntarily and intentionally waive any right it may have to a trial
by jury in respect of any litigation based on, or arising out of, under or in connection with
the Resolution, the Master Note or this Agreement, or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of the County or the Noteholder.
(B) The parties hereto submit to the jurisdiction of Florida courts and federal
courts and agree that venue for any suit concerning this Agreement or the Master Note shall
be in Monroe County, Florida and the Southern District of Florida.
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SECTION 6.11. USA PATRIOT ACT COMPLIANCE NOTIFICATION.
The Noteholder hereby notifies the County that pursuant to the provisions of the USA
PATRIOT Act, it is required to obtain, verify and record information that identifies the
County. The County will provide the Noteholder with all documentation and other
information the Noteholder requests in order to comply with its ongoing obligations under
applicable "know your customer" and anti-money laundering regulations, including the
USA PATRIOT Act.
SECTION 6.12. BUSINESS DAYS. In any case where the due date of interest
on or principal of the Master Note is not a Business Day, then payment of such principal
or interest need not be made on such date but may be made on the next succeeding Business
Day, with the same force and effect if made on the nominal payment date; provided that
credit for payments made shall not be given until the payment is actually received by the
Noteholder.
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:
0
By:
Clerk of the Circuit Court and
Ex-Officio Clerk to the Board NROE COUNTY ATTOnNEY
A PIOVE � FOR
APPROVED AS TO FORM AND
P�OJUAMCADGLEGAL SUFFICIENCY: A5ATTORNEY
Date 6/8/21
By:
County Attorney's Office
PNC BANK, NATIONAL ASSOCIATION
By:
Name: Nick Ayotte
Title: Senior Vice President, Public Finance
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EXHIBIT A
FORM OF DRAW CERTIFICATE
The undersigned, on behalf of Monroe County, Florida (the "County"), in
connection with a Draw (the "Draw")to be funded on the day of ,
in the amount of$ ,pursuant to that certain Line of Credit Agreement dated
as of July 1, 2021 (the "Agreement"), between the County and PNC Bank, National
Association (the "Noteholder"), HEREBY CERTIFIES as follows:
1. The capitalized terms used herein that are not otherwise defined herein shall
have the meanings ascribed thereto in the Agreement.
2. The Resolution is in full force and effect and has not been rescinded, U
repealed, modified or amended since the date of its adoption except as otherwise described
herein.
3. The Agreement is in full force and effect and has not been terminated,
modified or amended since the date of its execution except as otherwise described herein. ca
CL
4. The County has complied in all respects with the terms and provisions of the
Resolution, the Master Note and the Agreement and the County is not in default under any W
provisions of either the Resolution or the Agreement.
5. All of the representations and warranties contained in the Agreement, the
Master Note and the Resolution are true and correct as of the date hereof.
6. The Costs of the Project to be financed or refinanced with proceeds of the
Draw has been duly authorized and approved by the Board.
7. The County has delivered to the Noteholder a Draw Request with respect to
the Draw in accordance with and in compliance with the Agreement; all necessary
approvals of or by the County which are required as a condition precedent to making the
Draw have been satisfied.
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8. The proceeds of the Draw will be used solely to finance or refinance Costs
of the Project to be funded by the Draw and described in the Draw Request referred to in
Paragraph 7 above.
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9. All terms, conditions, representations,warranties and covenants contained in
the Agreement, the Resolution and the Master Note are incorporated by reference as if fully
restated herein.
Executed as of this day of ,
MONROE COUNTY, FLORIDA
By:
Title:
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EXHIBIT B
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA
TAXABLE MASTER AIRPORT REVENUE NOTE
(PNC Bank, National Association Line of Credit), Series 2021
Final
Interest Rate Date of Issuance Maturity Date
Variable July 1, 2021 June 30, 2023
MONROE COUNTY, FLORIDA (the "County"), for value received, hereby
promises to pay, solely from the Pledged Funds described in the within mentioned 0
Agreement, to the order of PNC BANK, NATIONAL ASSOCIATION, or its successors
or assigns (the "Noteholder"), the lesser of the principal sum of TEN MILLION AND
00/100 DOLLARS ($10,000,000.00) or so much thereof as may be advanced and
outstanding (the "Advanced Amount") pursuant to that certain Line of Credit Agreement
by and between the Noteholder and the County, dated as of July 1, 2021 (the "Agreement"),
and to pay interest on such Advanced Amount from the dates amounts are advanced
hereunder and under the Agreement from time to time, or from the most recent date to W
which interest has been paid, at the Interest Rate (as determined and defined in the
Agreement and subject to adjustment as provided in the Agreement) quarterly in arrears on E
January 1, April 1, July 1 and October 1 of each year, commencing with respect to each
advance hereunder on the first January 1, April 1, July 1 and October 1 that follows the
date of such advance until such Advanced Amount shall have been paid. Interest shall be
calculated based upon a year of 360 days and the actual number of days elapsed. The U
Advanced Amount hereof shall be payable on the Final Maturity Date. Such Advanced
Amount and interest 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.
All payments of principal of and interest on the Advanced Amount 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 (1) in
immediately available funds, (2) by delivering to the Noteholder no later than the payment
date a check or draft of the County, or (3) in such other manner as the County and the
Noteholder shall agree upon in writing.
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, Resolution No. duly adopted
by the County on June 16, 2021 (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.
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This Note is being issued to finance or refinance Costs of the Project, as described
in the Agreement. This Note is solely secured by and payable from a lien on and pledge
of the Pledged Funds, all as provided in the Agreement.
The Noteholder shall provide to the County upon request such documentation to
evidence the amount of interest due with respect to any Draw against the Note. Upon the
occurrence and during the continuation of an Event of Default, this Note shall bear interest
at the Default Rate. In the event the London interbank offered rate is no longer available
or in certain other circumstances described in the LIBOR Replacement Rider attached to
the Agreement as Exhibit D, the interest rate will be determined in accordance with such
LIBOR Replacement Rider.
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.
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All payments made by the County hereon shall apply first to accrued interest, and
then to the principal amount then due on this Note.
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS NOTE
THAT THIS NOTE AND THE DRAWS MADE THEREAGAINST, 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 SOLELY SECURED BY AND
PAYABLE FROM A LIEN ON AND PLEDGE OF THE PLEDGED FUNDS. 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 DRAWS OR THE
INTEREST THEREON. THE DRAWS AND THIS NOTE ARE SPECIAL AND
LIMITED OBLIGATIONS SOLELY PAYABLE AS TO PRINCIPAL AND INTEREST
FROM THE PLEDGED FUNDS.
The rights and obligations of the Noteholder hereunder and under the Agreement
may be assigned in whole to a "qualified institutional buyer" (as that term is defined in the
regulations promulgated under the Securities Act of 1933, as amended) prior to the end of
the period during which Draws may be made, and to any person that is an "accredited
investor" (as that term is defined in the regulations promulgated under the Securities Act
of 1933, as amended), after the end of such period, without the consent of the County.
The County may prepay and redeem the Advanced Amount, in whole or in part, in
accordance with the provisions of Section 3.02 of the Agreement.
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Reference to the Resolution and the Agreement and any and all resolutions
supplemental thereto and modifications and amendments thereof and to the Act is made
for a description of the provisions and covenants securing this Note, the nature, manner
and extent of enforcement of such provisions and covenants, and the rights, duties,
immunities and obligations of the County.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and
the issuance of this Note do exist, have happened and have been performed in due time,
form and manner as required by law, and that the issuance of this Note is in full compliance
with and does not exceed or violate any constitutional or statutory limitation. It is further
certified that all of the representations, warranties, terms, conditions, and covenants made
and set forth in the Agreement, the Resolution and in the ancillary and closing documents
relevant to this Note are remade and incorporated fully by reference herein.
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
0.
or reproduced hereon, and attested by the manual signature of the Clerk, and this Note to
be dated the Date of Issuance set forth above.
MONROE COUNTY, FLORIDA
(SEAL)
By:
Mayor
Attest:
By:
Clerk of the Circuit Court and F5
Ex-Officio Clerk to the Board
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
County Attorney's Office
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EXHIBIT C
FORM OF DRAW REQUEST
The undersigned, on behalf of Monroe County, Florida (the "County"), hereby
makes this Draw Request in accordance with Section 4.01(a) of that certain Line of Credit
Agreement dated as of July 1,2021 (the "Agreement"),between the County and PNC Bank,
National Association (the "Noteholder") and in connection with the Monroe County,
Florida Taxable Master Airport Revenue Note (PNC Bank, National Association Line of
Credit), Series 2021, dated as of July 1, 2021 (the "Note").
Draw Amount: $
Undrawn Amount (taking into account the amount of this Draw): $
0
Date of Draw•
Wire Instructions:
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Description of Project Costs to be financed with Draw (attach invoices if available):
c
Executed and made a part of the Agreement and the Note as of this day of
MONROE COUNTY, FLORIDA
By:
Title:
APPROVED:
By:
Title:
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EXHIBIT D
LIBOR REPLACEMENT RIDER
(a) Announcements Related to LIBOR. On March 5, 2021, the ICE Benchmark
Administration, the administrator of LIBOR (the "IBA") and the U.K. Financial Conduct
Authority,the regulatory supervisor for the IBA, announced in a public statement the future
cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month,
3-month, 6-month and 12- month USD LIBOR tenor settings (collectively, the "Cessation
Announcements"). The parties hereto acknowledge that, as a result of the Cessation
Announcements, a Benchmark Transition Event occurred on March 5, 2021 with respect
to USD LIBOR under clauses (1) and (2) of the definition of Benchmark Transition Event
below; provided however, no related Benchmark Replacement Date occurred as of such
date.
(b) Benchmark Replacement. Notwithstanding anything to the contrary herein or in
any other loan document executed between the Noteholder (also referred to as the 'Bank"
in this Rider) and the County in connection with the issuance of the Master Note (a "Loan a
,
Document"), if a Benchmark Transition Event or an Early Opt-in Election, as applicable,
and its related Benchmark Replacement Date have occurred prior to the Reference Time in
respect of any setting of the then-current Benchmark, then, (x) if the Benchmark
Replacement is determined in accordance with clause (1) or (2) of the definition of 2
"Benchmark Replacement" on the Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of such Benchmark setting and subsequent Benchmark settings ca
without any amendment or further action or consent of any other party hereto or to any
other Loan Document; and (y) if a Benchmark Replacement is determined in accordance
with clause (3) of the definition of 'Benchmark Replacement" on the Benchmark
Replacement Date, such Benchmark Replacement will replace such Benchmark for all
purposes hereunder and under any Loan Document in respect of any Benchmark setting at
or after 5:00 p.m. (Eastern time) on the fifth (5th) Business Day after the date notice of
such Benchmark Replacement is provided to the Borrower without any amendment hereto
or to any other Loan Document, or further action or consent of the Borrower.
(c) Benchmark Replacement Conforming Changes. In connection with the
implementation of a Benchmark Replacement, the Bank will have the right to make
Benchmark Replacement Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become effective
without any further action or consent of the Borrower.
(d) Notices; Standards for Decisions and Determinations. The Bank will promptly
notify the Borrower of(i) any occurrence of a Benchmark Transition Event, a Term SOFR
D-1 Packet Pg. 2809
Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark
Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the
effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or
reinstatement of any tenor of a Benchmark pursuant to paragraph (e) below and (v) the
commencement or conclusion of any Benchmark Unavailability Period. Any
determination, decision or election that may be made by the Bank pursuant to this Rider,
including any determination with respect to a tenor, rate or adjustment or of the occurrence
or non-occurrence of an event, circumstance or date and any decision to take or refrain
from taking any action or any selection, will be conclusive and binding absent manifest
error and may be made in its sole discretion and without consent from the Borrower.
(e) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary 0
herein or in any other Loan Document, at any time (including in connection with the
implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term
rate (including Term SOFR or USD LIBOR) and either (A) any tenor for such Benchmark M
is not displayed on a screen or other information service that publishes such rate from time z
to time as selected by the Bank in its reasonable discretion or(B) the regulatory supervisor '
for the administrator of such Benchmark has provided a public statement or publication of W
information announcing that any tenor for such Benchmark is or will be no longer
representative, then the Bank may modify the applicable interest period (the "Interest E
Period") for any Benchmark settings at or after such time to remove such unavailable or
non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above
either (A) is subsequently displayed on a screen or information service for a Benchmark
(including a Benchmark Replacement) or (B) is not, or is no longer, subject to an
announcement that it is or will no longer be representative for a Benchmark (including a
Benchmark Replacement),then the Bank may modify the Interest Period for all Benchmark
settings at or after such time to reinstate such previously removed tenor.
(f) Benchmark Unavailability Period. Upon the Borrower's receipt of notice of the
commencement of a Benchmark Unavailability Period, the Borrower may revoke any w
request for a loan or advance of, conversion to or continuation of a USD LIBOR loan to be
made, converted or continued during any Benchmark Unavailability Period and, failing
that, the Borrower will be deemed to have converted any such request into a request for a
loan or advance of or conversion to a loan or advance at the Fallback Rate. During any
Benchmark Unavailability Period or at any time that a tenor for the then-current
Benchmark is not an Available Tenor, the component of the Fallback Rate based upon the
then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used
in any determination of the Fallback Rate.
(g) Secondary Term SOFR Conversion. Notwithstanding anything to the contrary
herein or in any other Loan Document and subject to the proviso below in this paragraph,
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if a Term SOFR Transition Event and its related Benchmark Replacement Date have
occurred prior to the Reference Time in respect of any setting of the then-current
Benchmark, then (i) the applicable Benchmark Replacement will replace the then-current
Benchmark for all purposes hereunder or under any Loan Document in respect of such
Benchmark setting (the "Secondary Term SOFR Conversion Date") and subsequent
Benchmark settings,without any amendment or further action or consent of any other party
hereto or to any other Loan Document; and (ii) loans outstanding on the Secondary Term
SOFR Conversion Date bearing interest based on the then-current Benchmark shall be
deemed to have been converted to loans bearing interest at the Benchmark Replacement
with a tenor approximately the same length as the interest payment period of the then-
current Benchmark; provided that, (A) this paragraph (g) shall not be effective unless the
Bank has delivered to the Borrower a Term SOFR Notice and (B) this paragraph (g) shall
not be effective with respect to the Master Note (referred to in this Rider as the "Facility")
if(I) the Borrower has outstanding an interest rate swap with the Bank to hedge, in whole
or part, the floating rate risk under the Facility on the Secondary Term SOFR Conversion
Date, and (II) such swap incorporates LIBOR fallback provisions with a Daily Simple CL
,
SOFR rate as the primary alternative fallback rate for USD LIBOR.
(h) Certain Defined Terms. As used in this Rider:
E
"Available Tenor" means, as of any date of determination and with respect to the then-
current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate or is
based on a term rate, any tenor for such Benchmark that is or may be used for determining
such Benchmark or the length of an Interest Period under the terms of the Facility as of
such date and not including, for the avoidance of doubt, any tenor for such Benchmark that
is then-removed from the concept of "Interest Period" pursuant to paragraph (e) of this
Rider, or (y) if the then-current Benchmark is not a term rate nor based on a term rate, any '
payment period for interest calculated with reference to such Benchmark under the terms
of the Facility as of such date. For the avoidance of doubt, the Available Tenor for the
Daily LIBOR Rate is one month.
"Base Rate" shall mean the higher of(a) the Prime Rate, and (b) the sum of the
Overnight Bank Funding Rate plus 50 basis points (0.50%).
"Benchmark" means, initially, USD LIBOR; provided that if a Benchmark Transition
Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its
related Benchmark Replacement Date have occurred with respect to USD LIBOR or the
then-current Benchmark, then 'Benchmark" means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such prior
benchmark rate pursuant to paragraph (b) of this Rider.
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"Benchmark Replacement" means, for any Available Tenor, the first alternative set forth
in the order below that can be determined by the Bank on the applicable Benchmark
Replacement Date; provided, however, if(i) the Borrower has outstanding an interest rate
swap with the Bank on the Benchmark Replacement Date to hedge, in whole or part, the
floating rate risk under the Facility, and (ii) such swap incorporates LIBOR fallback
provisions with a Daily Simple SOFR rate as the primary alternative fallback rate for USD
LIBOR, then the Benchmark Replacement alternative set forth in clause (1) below shall
not apply to the Facility and the alternative set forth below in clause (2) shall be the first
alternative:
(1) the sum of. (a) Term SOFR and (b) the related Benchmark Replacement
Adjustment; 0
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement
Adjustment;
(3) the sum of. (a) the alternate benchmark rate that has been selected by the Bank as
the replacement for the then-current Benchmark for the applicable Corresponding Tenor,
giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for E
determining a benchmark rate as a replacement for the then-current Benchmark for U.S. ,
dollar-denominated syndicated or bilateral credit facilities at such time, and (b) the related
Benchmark Replacement Adjustment; �a
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is
displayed on a screen or other information service that publishes such rate from time to
time as selected by the Bank in its reasonable discretion; provided, further, that, with
respect to a Term SOFR Transition Event, on the applicable Benchmark Replacement Date,
the 'Benchmark Replacement" shall revert to and shall be determined as set forth in clause
(1) of this definition, all in accordance with paragraph (g) (Secondary Term SOFR
Conversion) above. If the Benchmark Replacement as determined pursuant to clause (1),
(2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed E
to be the Floor for the purposes hereof and of the other Loan Documents.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the
then-current Benchmark with an Unadjusted Benchmark Replacement for any Available
Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of 'Benchmark Replacement,"
the applicable amount(s) set forth below:
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Available Tenor Benchmark Replacement
Adjustment*
One-Week 0.03839% (3.839 basis points)
One-Month 0.11448% (11.448 basis points)
Two-Months 0.18456% (18.456 basis points)
Three-Months 0.26161% (26.161 basis points)
Six-Months 0.42826% (42.826 basis points)
0
* These values represent the ARRC/ISDA recommended spread
adjustment values available here:
hat s://as cts,bbhub,io/professional/sites/10/IBOR-Fallbacks-LIBOR-
Cessation Announcement 202 j 030�
(2) for purposes of clause (3) of the definition of"Benchmark Replacement," the spread
adjustment, or method for calculating or determining such spread adjustment, (which may
be a positive or negative value or zero)that has been selected by the Bank for the applicable
Corresponding Tenor, giving due consideration to (i) any selection or recommendation of
a spread adjustment, or method for calculating or determining such spread adjustment, for
the replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body on the applicable Benchmark
Replacement Date or (ii) any evolving or then-prevailing market convention for
determining a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the applicable Unadjusted
Benchmark Replacement for U.S. dollar-denominated syndicated or bilateral credit
facilities;
a�
provided that, if the then-current Benchmark is a term rate, more than one tenor of such
Benchmark is available as of the applicable Benchmark Replacement Date and the
applicable Unadjusted Benchmark Replacement will not be a term rate, the Available
Tenor of such Benchmark for purposes of this definition of 'Benchmark Replacement
Adjustment" shall be deemed to be the Available Tenor that has approximately the same
length (disregarding Business Day adjustments) as the payment period for interest
calculated with reference to such Unadjusted Benchmark Replacement.
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"Benchmark Replacement Conforming Changes" means, with respect to any
Benchmark Replacement, any technical, administrative or operational changes (including
changes to the definition of 'Base Rate," 'Business Day," the timing and frequency of
determining rates and making payments of interest, the Interest Period, the timing of
borrowing requests or prepayment, conversion or continuation notices, length of lookback
periods, the applicability of breakage provisions and other technical, administrative or
operational matters) that the Bank decides may be appropriate to reflect the adoption and
implementation of such Benchmark Replacement and to permit the administration thereof
by the Bank in a manner substantially consistent with market practice (or, if the Bank
decides that adoption of any portion of such market practice is not administratively feasible
or if the Bank determines that no market practice for the administration of such Benchmark
Replacement exists, in such other manner of administration as the Bank decides is
reasonably necessary in connection with the administration of the Facility and the Loan
Documents).
"Benchmark Replacement Date" means the earliest to occur of the following events with z
respect to the then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of 'Benchmark Transition Event,"
the later of(a) the date of the public statement or publication of information referenced
therein and (b) the date on which the administrator of such Benchmark (or the published
component used in the calculation thereof) permanently or indefinitely ceases to provide
all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of'Benchmark Transition Event," the date
determined by the Bank, which date shall promptly follow the date of the public statement
or publication of information referenced therein;
(3) in the case of a Term SOFR Transition Event, the date that is set forth in the Term
SOFR Notice provided to the Borrower pursuant to this Rider, which date shall be at least
30 days from the date of the Term SOFR Notice; or
(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date
notice of such Early Opt-in Election is provided to the Borrower.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date
occurs on the same day as, but earlier than, the Reference Time in respect of any
determination, the Benchmark Replacement Date will be deemed to have occurred prior to
the Reference Time for such determination and (ii) the 'Benchmark Replacement Date"
will be deemed to have occurred in the case of clause (1) or (2) with respect to any
Benchmark upon the occurrence of the applicable event or events set forth therein with
respect to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).
D-6
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"Benchmark Transition Event" means the occurrence of one or more of the following
events with respect to the then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator
of such Benchmark (or the published component used in the calculation thereof)
announcing that such administrator has ceased or will cease to provide all Available Tenors
of such Benchmark (or such component thereof), permanently or indefinitely, provided
that, at the time of such statement or publication, there is no successor administrator that
will continue to provide any Available Tenor of such Benchmark (or such component
thereof);
(2) a public statement or publication of information by a Governmental Authority
having jurisdiction over the Bank, the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof), the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an
insolvency official with jurisdiction over the administrator for such Benchmark (or such U
component), a resolution authority with jurisdiction over the administrator for such a.
Benchmark (or such component) or a court or an entity with similar insolvency or T_
z
resolution authority over the administrator for such Benchmark (or such component),
which states that the administrator of such Benchmark (or such component) has ceased or W
will cease to provide all Available Tenors of such Benchmark (or such component thereof)
permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide any Available Tenor of
such Benchmark (or such component thereof); or
c
(3) a public statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the calculation
thereof) or a Governmental Authority having jurisdiction over the Bank announcing that
all Available Tenors of such Benchmark (or such component thereof) are no longer 6-3
representative.
For the avoidance of doubt, a 'Benchmark Transition Event" will be deemed to have
occurred with respect to any Benchmark if a public statement or publication of information
set forth above has occurred with respect to each then-current Available Tenor of such
Benchmark (or the published component used in the calculation thereof).
"Benchmark Unavailability Period" means the period (if any) (x) beginning at the time
that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has
occurred if, at such time, no Benchmark Replacement has replaced the then-current
Benchmark for all purposes hereunder and under any Loan Document in accordance with
this Rider, and(y) ending at the time that a Benchmark Replacement has replaced the then-
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Packet Pg. 2815
current Benchmark for all purposes hereunder and under any Loan Document in
accordance with this Rider.
"Corresponding Tenor" with respect to any Available Tenor means, as applicable, either
a tenor (including overnight) or an interest payment period having approximately the same
length(disregarding Business Day adjustment) as such Available Tenor.
"Daily Simple SOFR" means, for any day, SOFR,with the conventions for this rate(which
may include a lookback)being established by the Bank in accordance with the conventions
for this rate selected or recommended by the Relevant Governmental Body for determining
"Daily Simple SOFR" for business loans; provided, that if the Bank decides that any such
convention is not administratively feasible for the Bank, then the Bank may establish
another convention in its reasonable discretion.
"Early Opt-in Election" means, if the then-current Benchmark is USD LIBOR, the
occurrence of:
(1) a determination by the Bank that at least five (5) currently outstanding U.S. dollar-
®
denominated syndicated or bilateral credit facilities at such time contain (as a result of
amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR
or any other rate based upon SOFR) as a benchmark rate, and
(2) the election by the Bank to trigger a fallback from USD LIBOR and the provision
by the Bank of written notice of such election to the Borrower.
"Fallback Rate" means the alternative rate of interest that would have been applicable
under the terms of the Facility (absent this Rider) if the Bank had given notice that USD
LIBOR had become unavailable or, if no such alternative rate is specified, the Base Rate.
"Floor" means the minimum rate of interest, if any,provided under the terms of the Facility
with respect to USD LIBOR or, if no minimum rate of interest is specified, zero.
"Governmental Authority" means the government of the United States of America or any
other nation, or of any political subdivision thereof,whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative,judicial, taxing, regulatory or administrative powers or functions of
or pertaining to government (including any supra-national bodies such as the European
Union or the European Central Bank).
"ISDA Definitions" means the 2006 ISDA Definitions published by the International
Swaps and Derivatives Association, Inc. or any successor thereto, as amended or
supplemented from time to time, or any successor definitional booklet for interest rate
derivatives published from time to time by the International Swaps and Derivatives
Association, Inc. or such successor thereto.
D-8
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"Reference Time" with respect to any setting of the then-current Benchmark means (1) if
such Benchmark is USD LIBOR (other than the Daily LIBOR Rate), 11:00 a.m. (London
time) on the day that is two London banking days preceding the date of such setting, and
(2)if such Benchmark is not USD LIBOR or is the Daily LIBOR Rate, the time determined
by the Bank in its reasonable discretion.
"Relevant Governmental Body" means the Board of Governors of the Federal Reserve
System or the Federal Reserve Bank of New York, or a committee officially endorsed or
convened by the Board of Governors of the Federal Reserve System or the Federal Reserve
Bank of New York, or any successor thereto.
"SOFR" means, with respect to any Business Day, a rate per annum equal to the secured
overnight financing rate for such Business Day published by the SOFR Administrator on
the SOFR Administrator's Website on the immediately succeeding Business Day.
"SOFR Administrator" means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
CL
"SOFR Administrator's Website" means the website of the Federal Reserve Bank of
New York, currently at http://www.newyorkfed_org, or any successor source for the W
secured overnight financing rate identified as such by the SOFR Administrator from time
to time.
"Term SOFR" means, for the applicable Corresponding Tenor as of the applicable
Reference Time, the forward-looking term rate based on SOFR that has been selected or
recommended by the Relevant Governmental Body.
"Term SOFR Notice" means a notification by the Bank to the Borrower of the occurrence
of a Term SOFR Transition Event. '
"Term SOFR Transition Event" means the determination by the Bank that (1) Term
SOFR has been recommended for use by the Relevant Governmental Body, and is X
determinable for each Available Tenor, (2) the administration of Term SOFR is
administratively feasible for the Bank and (3) a Benchmark Transition Event has W
previously occurred resulting in a Benchmark Replacement in accordance with this Rider
that is not Term SOFR.
"Unadjusted Benchmark Replacement" means the applicable Benchmark Replacement
excluding the related Benchmark Replacement Adjustment.
"USD LIBOR" means, for purposes of this Rider only, any interest rate that is based on
the London interbank offered rate for U.S. dollars.
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