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Item M5RESOLUTION NO. A RESOLUTION AUTHORIZING A $10,000,000 LINE OF CREDIT FROM BANK OF AMERICA, N.A.; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A PROMISSORY NOTE AND A LOAN AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA (the 'Borrower") that: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the Constitution and laws of the State of Florida. Section 2. Definitions. Words and phrases used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed hereto in the Loan Agreement (hereinafter defined) and, in addition, the following words and phrases shall have the following meanings when used herein: "Authorized Signatory" means the County Clerk. "Loan Amount" means $10,000,000. Section 3. Authorization of Transaction. In order to obtain funds to pay any unanticipated expenditures of the Borrower necessitated by a hurricane, tropical storm or other similar event, the Borrower is authorized to obtain an eight -month line of credit (the "Loan") from and borrow from Bank of America, N.A. (the "Bank") the amount of not to exceed the LoanAmount. Because of the characteristics of the transaction and the need for immediate funding, it is in the best interest of the Borrower to obtain the loan through negotiation with the Bank. In addition, after the expiration. of the initial Loan, the Borrower is authorized to enter into two subsequent transactions with the Bank, one in 2009 and one in 2010, upon terms substantially the same as those approved hereby. Section 4. Loan Agreement and Promissoa Note. The Borrower is authorized to execute a Loan Agreement with the Bank in substantially the form attached hereto as Exhibit A (the "Loan Agreement") and to make the Promissory Note in the form attached to the Loan Agreement, provided that the principal amount of the Promissory Note may not exceed the Loan Amount. The forms and terms of the Loan Agreement and Promissory Note are hereby approved by the Borrower and the Authorized Signatory is authorized to execute the same, with such changes as may be approved by the Authorized Signatory, such approval to be conclusively evidenced by the execution thereof by the Authorized Signatory. Section 5. Severabiliv. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 6. ARplicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State of Florida. Section 7. Authorizations. All officials and employees of the Borrower are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Borrower that are necessary or desirable in connection with the completion of the Loan. Section 8. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 9. Effective Date. This Resolution shall take effect immediately upon its adoption. ADOPTED at a meeting of the Board of County Commissioners on the of July, 2008. (SEAL) ATTEST: Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: _ Mayor 2 MONROE COUNTY ATTO R VED AS T(YFX Rate ZANNE A. HUTTON LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of the Closing Date identified on Attachment B, and is by and between the political subdivision of the State of Florida identified on Attachment B hereto, and its successors and assigns (the "Borrower"), and Bank of America, N.A., a national banking association, and its successors and assigns, as holder(s) of the hereinafter defined Note (the "Bank"). The parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS Section 1.01 Definitions. The words and terms used in this Agreement shall have the meanings as set forth in the recitals above and the following words and terms as used in this Agreement shall have the following meanings: "Advance" means a borrowing of money under the Note, pursuant to Section 5.03 hereof. "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Authorized Individual" means any one of the following: Danny L. KoIhage, Clerk of the Court, Marva Green, Assistant Clerk of the Court, Sandra Carlile, Finance Director and Kevin Madok, Assistant Finance Director. "Bond Counsel" means an attorney -at -law or firm of such attorneys having expertise in the legal aspects of the issuance of indebtedness by states and political subdivisions thereof. "Borrower" is defined on Attachment B hereto "BQ Note" means the Tax -Exempt Note if it indicates that it is a BQ Note. "Budgeted Revenues" means, to the extent provided in Section 3.07 hereof, the Non -Ad Valorem Revenues. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Bank is lawfully closed. "Closing Date" means the date so indicated in the Notes. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Costs" means, with respect to the Project, any lawful expenditure of the Borrower which meets the further requirements of this Agreement. ":Event of Default" shall mean an event of default specified in Article VI of this Agreement. "]Loan" shall mean the loan by the Bank to the Borrower contemplated hereby. ' Loan Amount" is identified on Attachment B. "loon -Ad Valorem Revenues" means all revenues of the Borrower not derived from ad valorem taxation and which are lawfully available to be used to pay debt service on the Notes. "Notes" means the Borrower's Promissory Notes in the forms attached hereto as Attachments "A-1 "and "A-2. " "Notice Address" means, As to the Borrower: As set forth on Attachment B As to the Bank: Bank of America, N.A. 9000 Southside Boulevard Building 100 Jacksonville, FL 32256 or to such other address as either party may have specified in writing to the other using the procedures specified in Section 7.06. "Principal Office" means, with respect to the Bank, the office located at 9000 Southside Boulevard, Building 100, Jacksonville, Florida, 32256, or such other office as the Bank may designate to the Borrower in writing. "Project" means expenditures incurred by the Borrower as a result of a hurricane, tropical storm or similar occurrence. "State" means the State of Florida. "Taxable Note" means the Note attached hereto as Attachment" A- 1. " "Tax -Exempt Note" means the Note attached hereto as Attachment" A-2. " Section 1.02 Titles and Headings. The titles and headings of the articles and sections of this Agreement have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and -2- shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. ARTICLE II REPRESENTATIONS OF BORROWER The Borrower represents and warrants to the Bank that: Section 2.01 Powers of Borrower. The Borrower is apolitical subdivision of the type identified. on Attachment B hereto, duly organized and validly existing under the laws of the State. The Borrower has the power to borrow the amount provided for in this Agreement, to execute and deliver the Notes and this Agreement, to secure the Notes in the manner contemplated hereby and to perform and observe all the terms and conditions of the Notes and this Agreement on its part to be performed and observed. The Borrower may lawfully borrow funds hereunder in order to pay Costs of the Project. Section 2.02 Authorization of Loan. The Borrower had, has, or will have, as the case may be, at all relevant times, full legal right, power, and authority to execute this Agreement, to make the :Notes, and to carry out and consummate all other transactions contemplated hereby, and the Borrower has complied and will comply with all provisions of applicable law in all material matters relating to such transactions. The Borrower has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Notes to the Bank and to that end the Borrower warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Notes. The Notes has been duly authorized, executed, issued and delivered to the Bank and constitutes legal, valid and binding obligation of the Borrower enforceable in accordance with the terms thereof and the terms hereof, and is entitled to the benefits and security of this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Notes or the execution and delivery of or the performance by the Borrower of its obligations under this Agreement and the Notes have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 No Violation of Law or Contract. The Borrower is not in default in any material respect under any agreement or other instrument to which it is a party or by which it may be bound, the breach of which could result in a material and adverse impact on the financial condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and under the Notes. The making and performing by the Borrower of this Agreement and the Notes will not violate any applicable provision of law, and will not result in a material breach of any of the terms of any agreement or instrument to which the Borrower is a party or by which the Borrower is bound, the breach of which could result in a material and adverse impact on the financial condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and under the Notes. -3- Section 2.04 Pending or Threatened Litigation. There are no actions or proceedings pending against the Borrower or affecting the Borrower or, to the knowledge of the Borrower, threatened, which, either in any case or in the aggregate, might result in any material adverse change in the financial condition of the Borrower, or which questions the validity of this Agreement or the Notes or of any action -taken or to be taken in connection with the transactions contemplated hereby or thereby. Section 2.05 Financial Information. The financial information regarding the Borrower furnished. to the Bank by the Borrower in connection with the Loan is accurate, and there has been no material and adverse change in the financial condition of the Borrower from that presented in such information. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. For so long as any of the principal amount of or interest on the Notes is outstanding or is available to be Advanced hereunder or any duty or obligation of the Borrower hereunder or under the Notes remains unpaid or unperformed, the Borrower covenants to the Bank as follows: (a) Payment. The Borrower shall paythe principal of and the interest on the Notes at the time and place and in the manner provided herein and in the Notes. (b) Use of Proceeds. Proceeds from the Notes will be used only to pay costs of the Project and to pay closing costs of the Loan. (c) Notice of Defaults. The Borrower shall within ten (10) days after it acquires knowledge thereof, notify the Bank in writing at its Notice Address upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Borrower of all relevant facts and the action being taken or proposed to be taken by the Borrower with respect thereto. (d) Maintenance of Existence. The Borrower will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Borrower to the Bank under this Agreement and the Notes have been paid in full. (e) Records. The Borrower agrees that any and all records of the Borrower with respect to the Loan and the Project shall be open to inspection by the Bank or its representatives at all reasonable! times at the offices the Borrower. (f) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to have a material and adverse effect upon the financial condition -4- of the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the Notes. (g) Insurance. The Borrower shall maintain such liability, casualty and other insurance as is reasonable and prudent for similarly situated governmental entities of the State of Florida. (h) Compliance with Laws. The Borrower shall comply with all applicable federal, state and local laws and regulatory requirements, the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under the Notes. (i) Payment of Document Taxes. In the event the Notes or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Borrower shall pay such taxes or reimburse the Bank for any such taxes paid by it. (j) Financial Information. The Borrower will provide the Bank with such financial information regarding the Borrower as the Bank may reasonably request from time to time. Section 3.02 Negative Covenants For so long as any of the principal amount of or interest on the Notes is outstanding or is available to be Advanced hereunder or any duty or obligation of the Borrower hereunder or under the Notes remains unpaid or unperformed, the Borrower covenants to the Bank .as follows: (a) No Pledge of Non Ad Valorem Revenues. Without the prior written consent of the Bank, the Borrower shall not hereafter incur any indebtedness payable from any Non -Ad Valorem Revenues, other than any Non Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could, but for such future indebtedness, be lawfullyused to pay principal of or interest on the Notes (any and all such indebtedness payable from Non -Ad Valorem Revenues, other than any Non Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, whether now existing or incurred in the future, is referred to as "Competing Debt"), unless (i) the amount of Non -Ad Valorem Revenues, other than any Non Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles., which could lawfully be used to pay principal and interest on the Bonds received by the Borrower during the 24 complete months most recently concluded prior to the incurrence of such indebtedness (the "24 Prior Months"), equals or exceeds 300% of the maximum amount of principal and interest scheduled to be payable on the Notes and all Competing Debt (including the proposed debt) during the then current or any future period of 12 consecutive months and (ii) the Mayor of the Borrower certifies in writing to the Bank that to the best of his or her knowledge no event has occurred which would cause him or her to believe that the amount of Non -Ad Valorem Revenues, other than any Non Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could lawfully be used to pay principal and interest on the Bonds to be received in any future period of 12 consecutive months would be less than 150% of the amount of principal and interest scheduled to be payable on the Bonds and all Competing Debt during such 12 months. For purposes of calculating the foregoing, if any indebtedness bears a variable rate of interest, then the interest rate on such indebtedness shall be assumed to be the higher of (i) the average rate of actual interest borne by such indebtedness during the most recent complete month -5- prior to the date of issuance of such proposed indebtedness, (ii) 7% per annum, provided that if the Borrower shall have entered into an interest rate swap or interest rate cap or shall have taken any other action which has the effect of fixing or capping the interest rate on such indebtedness for the entire term thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such swap or cap. In addition, for purposes of the foregoing it shall be assumed that the entire $10,000,000 of the Loan is drawn as of the date such indebtedness is proposed to be incurred and is being repaid over a term of 20 years in equal monthly installments or principal and interest, using an assumed interest rate of 6% per annum. (b) No Adverse Borrowings. The Borrower shall not issue or incur any indebtedness or obligation if such would materially and adversely affect the ability of the Borrower to pay debt service on the Notes or any other amounts owing by the Borrower under this Agreement. Section 3.03. Bank Fees and Expenses. The Borrower hereby agrees to pay (i) a fee to the Bank in the amount of $25,000.00 and (ii) the fee of counsel to the Bank in connection with the issuance of the Notes in the amount of $4,500, said amounts to be due and payable upon the issuance of the Notes. Section 3.04. Registration and Exchange of Notes,• Persons Treated as Banks. The Notes are owned by Bank of America, N.A. The ownership of the Notes may only be transferred, and the Borrower will transfer the ownership of the Notes, upon written request of the Bank specifying the name., address and taxpayer identification number of the transferee, and the Borrower will keep a record setting forth the identification of the owner of the Notes. The Bank will not transfer the Notes except in compliance with all applicable laws. Section 3.05. Notes Mutilated, Destroyed. Stolen or Lost. In case the Notes shall become mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new, in exchange and in substitution for such mutilated Notes, or in lieu of and in substitution for the Notes destroyed, stolen or lost and upon the Bank furnishing the Borrower proof of ownership thereof and indemnity reasonably satisfactory to the Borrower and paying such expenses as the Borrower may incur. Section 3.06. Payment of Principal and Interest• Limited Obligation. The Borrower promises that it will promptly pay the principal of and interest on the Notes at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof, provided that the Borrower may be compelled to pay the principal of and interest on the Notes solely from the Non Ad Valorem Revenues budgeted and appropriated for such purpose as provided herein, and nothing in the Notes or this Loan Agreement shall be construed as pledging any other funds or assets of the Borrower to such payment or as authorizing such payment to be made from any other source. Nothing herein shall, however, prevent the Borrower from using any lawfully available funds to pay its obligations hereunder and under the Notes. The covenant to budget and appropriate does not create a lien upon or pledge of the Non Ad Valorem Revenues. The Borrower is not and shall not be liable for the payment of the principal of and interest on the Notes or for the performance of any pledge, obligation or agreement for payment undertaken by the Borrower hereunder or under the Notes from any property other than the Budgeted Revenues. The Bank shall not have any right to resort to legal or equitable action to require or compel the 192 Borrower to make any payment required by the Notes or this Loan Agreement from any source other than the Budgeted Revenues. The Borrower covenants that, so long as Notes shall remain unpaid or any other amounts are owed by the Borrower under this Agreement or the Notes, it will appropriate in its annual budget, by amendment, if required, from the Non Ad Valorem Revenues, amounts sufficient to pay the principal of and interest on the Notes and other amounts owed under this Agreement as the same shall become due, but only, to the extent required in order to avoid a violation of Article VII, Section 12 of the Florida Constitution, after provision has been made by the County for the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the County or which are legally mandated by applicable law. In the event that the amount previously budgeted for such purpose is ever insufficient to pay such principal and interest on the Notes and other amounts owed under this Agreement, the Borrower covenants to take immediate action to amend its budget so as to budget and appropriate an amount from the Non Ad Valorem Revenues sufficient to pay such debt service on the Notes and such other amounts. Such covenants to budget and appropriate from Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such Non Ad Valorem Revenues. sufficient to make all required payments have been budgeted, appropriated and used to pay such debt service on the Notes and such other amounts subject, however, in all respects to the restrictions of Section 129.07, Florida Statutes, which provides that the governing body of each county may not make appropriations for any fiscal year which exceed the amount to be received from taxation or other revenue sources and which makes it unlawful for any officer of any municipal government to draw money from the treasury except in pursuance of an appropriation made by law. Section 3.07 Officers and Em to ees of the Borrower Exem t from Personal Liabili . No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the Notes or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against any officer (which includes elected and appointed officials), agent or employee, as such, of the Borrower past, present or future, it being expressly understood (a) that the obligation of the Borrower under this Agreement and under the Notes is solely a corporate one, limited as provided in the preceding Section 3.06, (b) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the officers, agents, or employees, as such, of the Borrower, or any of them, under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom, and (c) that any and all such personal liability of, and any and all such rights and claims against, every such officer, agent, or employee, as such, of the Borrower under or by reason of the obligations, covenants or agreements contained in this Agreement and under the Notes, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Agreement and the issuance of the Notes on the part of the: Borrower. Section 3.08. Business Days. In any case where the due date of interest on or principal of the Notes is not a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Bank. -7- Section 3.09. Tax Representations, Warranties and Covenants of the Borrower, The provisions of this Section 3.09 shall apply only to the Tax -Exempt Note, (a) The Borrower hereby covenants and represents that it has taken and caused to be taken and shall make and take and cause to be made and taken all actions that may be required of it for the interest on the Note to be and remain excluded from the gross income of the Bank for federal income tax purposes, and that to the best of its knowledge it has not taken or permitted to be taken on its behalf, and covenants that to the best of its ability and within its control, it shall not make or take, or permit to be made or taken on its behalf, any action which, if made or taken, would adversely affect such exclusion under the provisions of the Code. The Borrower acknowledges that the continued exclusion of interest on the Note from gross income for federal income tax purposes depends, in part, upon compliance with the arbitrage limitations imposed by Sections 103 (b)(2) and 148 of the Code. The Borrower hereby acknowledges responsibility to take all reasonable actions necessary to comply with these requirements. The Borrower hereby agrees and covenants that it shall not permit at any time or times any of the proceeds of the Note or other funds of the Borrower to be intentionally used, directly or indirectly, to acquire; or to replace funds which were used directly or indirectly to acquire any higher yielding investments (as defined in Section 148 of the Code), the acquisition of which would cause the Note to be an arbitrage bond for purposes of Sections 103(b)(2) and 148 of the Code. The Borrower further agrees and covenants that it shall do and perform all acts and things necessary in order to assure that the requirements of Sections 103(b)(2) and 148 of the Code are met. Specifically, without intending to limit in any way the generality of the foregoing, the Borrower covenants and agrees: (1) to pay to the United States of America at the times required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non -purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non -purpose investments were invested at a rate equal to the yield on the Note, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; and (3) to comply with all representations and restrictions contained in any Certificate as to Arbitrage and Other Tax Matters executed by the Borrower in connection with the Note. The Borrower understands that the foregoing covenants impose continuing obligations on it to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. El (b) The Borrower will comply with, and timely make or cause to be made all filings required by, all effective rules, rulings or regulations promulgated by the Department of the Treasury or the Internal Revenue Service. (c) The Borrower will not use, invest, direct or permit the investment of the proceeds of the Note or any investment earnings thereon in a manner that will result in the Note becoming a "private activity bond" within the meaning of Sections 141 and 145 of the Code. (d) The Borrower will not use or permit to be used more than ten percent (10%) of the proceeds of the Note (including any amounts used to pay costs associated with issuing the Note), including; all investment income earned on such proceeds directly or indirectly, in any trade or business carried on by any person who is not the Borrower or a state or political subdivision or instrumentality thereof as those terms are used in Section 103 of the Code (an "Exempt Person"). (e) The Borrower will not use or permit the use of any portion of the proceeds of the Note, including all investment income earned on such proceeds, directly or indirectly, to make or finance loans to persons who are not Exempt Persons. (f) The Borrower has not entered into, and will not enter into, any arrangement with any person or organization (other than an Exempt Person) which provides for such person or organization to manage, operate, or provide services with respect to more than 10% of the property financed with the proceeds of the Note (a "Service Contract"), unless the guidelines set forth in Revenue :Procedure 97-13 (or the guidelines set forth in Revenue Procedure 93-19, to the extent applicable, or any new, revised or additional guidelines applicable to Service Contracts) (the "Guidelines"), are satisfied, except to the extent it obtains a private letter ruling from the Internal Revenue Service or an opinion of nationally recognized Bond Counsel which allows for a variation from the (guidelines. (g) The Borrower will not cause the Note to be treated as "federally guaranteed" for purposes of Section 149 of the Code, as may be modified in any applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or proposed by the Department of the Treasury or the Internal Revenue Service with respect to "federally guaranteed" obligations described in Section 149 of the Code. For purposes of this paragraph, the Note shall be treated as "federally guaranteed" if (i) all or any portion of the principal or interest is or will be guaranteed directly or indirectly by the United States of America or any agency or instrumentality thereof, or (ii) 5% or more of the proceeds of the Note will be (A) used in making loans the payment of principal or interestwith respect to which is to be guaranteed in whole or in part by the United States of America or any agency or instrumentality thereof, or (B) invested directly or indirectly in federally insured deposits or accounts, and (iii) such guarantee is not described in Section 149(b)(3) of the Code. The terms "debt service," "gross proceeds," "net proceeds," "proceeds," and "yield" have the meanings assigned to them for purposes of Section 148 of the Code. Section 3.10. Section 265 Desi nation of Tax -Exempt Note. If, and only if, the Tax - Exempt Note is a BQ Note, then the provisions of this Section 3.10 shall apply. 0 The reasonably anticipated amount of tax-exempt obligations (other than obligations described in clause (ii) of Section 265(b)(3)(C) of the Code), which have been or will be issued by the Borrower and all entities which are subordinate to or which issue obligations on behalf of the Borrower during the calendar year in which the amount advanced under the Tax -Exempt Note first equals or exceeds $50,000 does not exceed $10,000,000. The Borrower designates the Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The Borrower covenants and agrees not to take any action or to fail to take any action if such action or failure would cause the Note to no longer be a "qualified tax-exempt obligation." ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Representations and Warranties. The representations and warranties set forth in this Agreement and the Note are and shall be true and correct on and as of the date hereof. Section 4.02 No Default. On the date hereof the Borrower shall be in compliance with all the terms and provisions set forth in this Agreement and the Note on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03 Supporting Documents. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in form and substance to the Bank (such satisfaction to be evidenced by the purchase of the Note by the Bank): (a) The opinion of the attorney for the Borrower, regarding the due authorization, execution., delivery, validity and enforceability of this Agreement and the Note; (b) Such additional supporting documents as the Bank may reasonably request. ARTICLE V FUNDING THE LOAN Section 5.01 The Loan, The Bank hereby agrees to Loan to the Borrower the amount of up to the Loan Amount to be evidenced by the Note, to provide funds to finance the Costs of the Project upon the terms and conditions set forth in this Agreement. The Borrower agrees to repay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth in this Agreement and the Note. -10- Section 5.02 Description and Payment Terms of the Note. To evidence the Loan, the Borrower shall issue and deliver to the Bank the Note in the form attached hereto as Exhibit A. Section 5.03. Advances on Note. (a) The Borrower may borrow from time to time up to the Loan Amount by requesting Advances hereunder, provided that no Advance will be made after the date six months after the Closing Date. Amounts Advanced and repaid may not be re -advanced. Each Advance shall be for at least $10,000, provided that the initial Advance on the Tax -Exempt Note shall be for at least $50,000, and no more than two Advances may be requested in any month. (b) The Bank shall not be obligated to Advance any funds unless (i) no Event of Default has occurred and is continuing, (ii) the Borrower delivers to the Bank a written request for such Advance :in the form of Attachment C, executed by an Authorized Individual, indicating the amount of the Advance requested, the date on which such Advance is to be made (which shall be not less than two Business Days after the date such request is received by the Bank) and stating that the representations and warranties of the Borrower contained herein are true and correct as of such date. (c) No Advance will be made on the Tax -Exempt Note unless the Bank has received an opinion of counsel acceptable to the Bank to the effect that the interest on the Note is excluded from gross income for federal income tax purposes and the Note is not an item of tax preference under Section 57 of the Code, and if the Note is a BQ Note, the Note is a "qualified tax-exempt obligation" under Section 265 of the Code; and ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Borrower shall fail to make any payment of the principal of or interest on the Loan when the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) The Borrower shall default in the performance of or compliance with any term or covenant contained in this Agreement and the Note, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Borrower by the Bank, or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement, whichever is earlier; or -11- (c) Any representation or warranty made in writing by or on behalf of the Borrower in this Agreement or the Note shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Borrower admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or (e) The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Borrower, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Borrower, a receiver or trustee of the Borrower or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (0 The Borrower shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State; or (g) The Borrower shall default in the due and punctual payment or performance of covenants, related to any indebtedness of the Borrower or under any obligation for the payment of money to the Bank or any other subsidiary or affiliate of Bank of America Corporation. Section 6.02 Effect of Event of Default. Except as otherwise provided in the Note, immediately and without notice, upon the occurrence of any Event of Default, the Bank may declare all obligations of the Borrower under this Agreement and the Note to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable. In addition, and regardless whether such declaration is or is not made, the Bank may also seek enforcement of and exercise all remedies available to it under any applicable law. ARTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder or under the Note shall operate as a waiver of the Bank' s rights, powers and remedies hereunder, nor shall any single or partial exercise ofany such right, power or remedy preclude any other or further exercise thereof, or the exercise of any otheY right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law or in equity. Section 7.02 Amendments Changes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified except in writing signed by the Bank and the -12- Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in modifying and/or amending this Agreement at the Borrower's request or behest. Section 7.03 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 7.04 Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained. herein. Section 7.05 Term of Agreement. Except as otherwise specified in this Agreement, this Agreement and all representations, warranties, covenants and agreements contained herein or made in writing by the Borrower in connection herewith shall be in full force and effect from the date hereof and shall continue in effect until as long as the Note is outstanding. Section 7.06 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to the Notice Address. Section 7.07 Applicable Law; Venue. This Agreement shall be construed pursuant to and governed by the substantive laws of the State. The parties waive any objection to venue in any judicial proceeding brought in connection herewith lying in Miami -Dade County, Florida. Section 7.08 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Borrower shall have no rights to assign any of its rights or obligations hereunder without the prior written consent of the Bank. Section 7.09 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. Section 7.10 Attorneys Fees. To the extent legally permissible, the Borrower and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement or -13- the Note (including any appeal(s)), the prevailing party shall be entitled to recover costs and attorneys' fees from the other party. Section 7.11 Entire Agreement. Except as otherwise expressly provided, this Agreement and the Note embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof, Attachments A, B and C hereto are a part hereof Section 7.12 Further Assurances. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects for the purpose of out the transactions contemplated by this Agreement. Section 7.13 Waiver of -Jury Trial. This Section 7.13 concerns the resolution of any controversies or claims between the Borrower and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to this Agreement or the Note (collectively a "Claim"). The parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. This provision is a material inducement for the parties entering into this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreementto be effective between them as of the date of first set forth above. MONROE COUNTY, FLORIDA By: Name: Danny L. Kolhage Title: County Clerk BANK OF AMERICA, N.A. By: Name: Title: Senior Vice President -14- TAX-EXEMPT PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the "Borrower"), apolitical subdivision created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, .promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A. or registered assigns (hereinafter, the "Bank"), the principal sum of $10,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate per annum equal to the Applicable Rate (as hereinafter defined) (subject to adjustment as hereinafter provided) based upon a year of 360 days for the actual number of days elapsed. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Bank may designate to the Borrower. The Applicable Rate is: (a) Unless this Note is a BQ Note (as hereinafter designated), the sum -of 1.00% plus 63.7% of the LIBOR Rate (hereinafter defined); and (b) If this is a BQ Note (as hereinafter designated), the sum of 0.80% plus 63.7% of the LIBOR Rate. The Borrower shalt pay the Bank the entire unpaid principal balance hereof, together with all accrued and unpaid interest hereon, on the day that is six months after the date of this Note (the "Maturity Date"), All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges due the Bank, and the balance thereof shall apply to the principal sum due. As used in this Note (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto; (2) "Determination of Taxability" shall mean, if this Note is a Tax -Exempt Note or a BQ Note, interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Bank for federal income tax purposes under the Code. (3) "LIBOR Rate" is a fluctuating rate of interest equal to the one month London Interbank Offered Rate as published in the "Money Rates" section of The Wall Street Journal (or, if such source is not available, or if the rate is misquoted therein, such alternate source as determined by the Bank) (the "Index"). Any change in the Index, and thus, the interest rate on this Note, will take effect on the effective date as indicated in The Wall Street Journal (or any alternate source described herein). Interest will accrue on any day which is not a Business Day at the rate in effect on the immediately preceding Business Day. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to the LIBOR Rate plus 0.75% per annum (the "Adjusted interest Rate"), as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Borrower shall on the next interest payment date (or if this Note shall have matured, within 30 days after demand by the Bank) hereon pay to the Bank an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to such next interest payment date, and (B) the actual interest paid by the Borrower on this Note from the Accrual Date to such next interest payment date, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Bank and/or former Bank arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or in part at any time without prepayment premium or penalty. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Borrower shall also be obligated to pay (but only from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within fifteen (15) days after it is due, then the Borrower shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment shall be due and payable immediately. Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Borrower to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT, NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued in conjunction with a Loan Agreement, dated of even date herewith between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and conditions of the Loan Agreement.. Pursuant to the Loan Agreement, the Borrower may request Advances from time to time from the Bank hereunder, provided that the outstanding principal amount at any time under this Note shall not exceed the principal amount set forth in the first paragraph hereof, and provided that amounts borrowed and repaid may not be re -borrowed hereunder. In addition, the Borrower has of even date made its Taxable Promissory Note, payable to the order of the Bank. At no time may the total combined outstanding principal amount hereunder and under the Taxable Promissory Note exceed $10,000,000. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This Note is payable solely from and is secured by a lien upon and pledge of the 'Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Borrower is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Budgeted Revenues, This Note may be exchanged or transferred but only as provided in the Loan Agreement -2- 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. If this Note is a BQ Note, the Borrower will so indicate by initialing the following blank IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of the date hereinafter set forth. The date of this Promissory Note is July_, 2008. MONROE COUNTY, FLORIDA By: Name: Danny L. Kolhage Title: County Clerk -3- J TAXABLE PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the "Borrower"), apolitical subdivision created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A. or registered assigns (hereinafter, the 'Bank"), the principal sum of $10,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate per annum equal to the Applicable Rate (as hereinafter defined) (subject to adjustment as hereinafter provided) based upon a year of 360 days for the actual number of days elapsed. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Bank may designate to the Borrower. The Applicable Rate is the sum of 0.75% plus the LIBOR Rate. The Borrower shall pay the Bankthe entire unpaid principal balance hereof, together with all accrued and unpaid interest hereon, on the day that is six months after the date of this Note (the "Maturity Date"). All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges due the Bank, and the balance thereof shall apply to the principal sum due. As used in this Note, "LIBOR Rate" is a fluctuating rate of interest equal to the one month London Interbank Offered Rate as published in the "Money Rates" section of The Wall Street Journal (or, if such source is not available, or if the rate is misquoted therein, such alternate source as determined by the Bank) (the "Index"). Any change in the Index, and thus, the interest rate on this Note, will take effect on the effective date as indicated in The Wall Street Journal (or any alternate source described herein). Interest will accrue on any day which is not a Business Day at the rate in effect on the immediately preceding Business Day. The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or in part at any time without prepayment premium or penalty. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Bank may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Borrower shall also be obligated to pay (but only from the Budgeted Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within fifteen (15) days after it is due, then the Borrower shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 4% of delinquent payment, which late payment shall be due and payable immediately. Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Borrower to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE BORROWER BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO, This Note is issued in conjunction with a Loan Agreement, dated of even date herewith between the Borrower and the Bank (the "Loan Agreement") and is subject to all the terms and conditions of the Loan Agreement. Pursuant to the Loan Agreement, the Borrower may request Advances from time to time from the Bank hereunder, provided that the outstanding principal amount at any time under this Note shall not exceed the principal amount set forth in the first paragraph hereof, and provided that amounts borrowed and repaid may not be re -borrowed hereunder. In addition, the Borrower has of even date made its Tax -Exempt Promissory Note, payable to the order of the Bank. At no time may the total combined outstanding principal amount hereunder and under the Taxable Promissory Note exceed $10,000,000. All] terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This Note is payable solely from and is secured by a lien upon and pledge of the 'Budgeted Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Borrower is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise :monetarily liable in connection herewith from any property other than the Budgeted Revenues. This Note may be exchanged or transferred but only as provided in the Loan Agreement. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of the date hereinafter set forth. The date of this Promissory Note is July_, 2008. MONROE COUNTY, FLORIDA By: Name: Danny L. Kolhage Title: County Clerk -2- ATTACHMENT B to LOAN AGREEMENT between BANK OF AMERICA, N.A. and MONROE COUNTY, FLORIDA 1.Name of Borrower: Monroe County, Florida 2. Type of Political Subdivision: [] Municipality [XX] County 3.Notice .Address of Borrower: 500 Whitehead Street Key West, Florida 33040 4. Loan Amount-$10,000,000.00 5. Closing Date: July_, 2008 Date: To: Bank of America, N.A. From: [Name of Borrower] ATTACHMENT C REQUEST FOR ADVANCE Date of Loan Agreement and Promissory Note: Amount of Advance on Tax -Exempt Note: Amount of Advance on Taxable Note: Date of Advance: The above -named Borrower requests an Advance under the Loan Agreement and Promissory Note identified above in the amount set forth above, and requests that said funds be deposited in the Borrower"s account with the Bank maintained for such purpose pursuant to such Loan Agreement. The representations and warranties of the Borrower contained in the Loan Agreement are true and correct as of the date hereof. Proceeds of the Advance should be wired as follows: TIB Bank of the Keys 330 Whitehead Street Key West, FL 33040 ABA# 067009280 Account#60803208406