11/18/2009 Agreement
October 1, 2009
0PNC
Monroe County, Florida
Monroe County Clerks Office
500 Whitehead Street
Key West, FL 33040
Attn: Marva Green
Phone: (305) 295-3139
Email: mgreen@monroe-clerk.com
From: Matthew Gelles
Phone: (215) 585-1434
Subject:
Reference #: 014c001_10176 - Confirmation of Transaction dated as of October 1, 2009
between Monroe County, Florida and PNC Bank, National Association.
Dear Ms. Green:
The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the rate cap
transaction (the "Transaction") entered into between Monroe County, Florida ("COUNTERP ARTY") and PNC
Bank, National Association ("PNC") on the Trade Date specified below. By signing below, COUNTERPARTY
acknowledges that it has consented to receive this Confirmation via electronic mail.
1. The definitions and provisions contained in the 2006 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) and any addenda or revisions thereto (the "Definitions"), are
incorporated into this Confirmation. In the event of any inconsistency between the Definitions and the
provisions of this Confirmation, this Confirmation will govern.
2. This Confirmation will itself evidence a complete and binding agreement between COUNTERPARTY and
PNC as to terms and conditions of the Transaction to which this Confirmation relates, and does not form a
part of, nor is subject to, any ISDA Master Agreement.
3. Each party represents and warrants to agree with the other party as follows:
(a) it is duly organized or formed, validly existing and in good standing under the laws of its
jurisdiction of organization or formation;
(b) it is duly authorized to enter into and perform its obligations hereunder;
(c) nothing herein violates or conflicts with any applicable law or regulation, any of its constitutional
documents, or any contractual agreement binding on it;
(d) all governmental and other consents required heretofore have been obtained and are in full force
and effect;
(e) its obligations hereunder are legally binding and enforceable except as general principles of equity
and bankruptcy or other similar laws affect the enforcement of creditors' rights generally;
(f) it has entered into the Transaction in connection with a line of its business or for purposes of
hedging and not for the purpose of speculation;
Monroe County Florida
October 1, 2009
Page 2
(g) (i) it is acting for its own account as principal and not as agent, (ii) it acknowledges that the other
party is acting only at arm's length and is not its agent, broker, advisor or fiduciary in any respect
for the Transaction, and any agency, brokerage, advisory or fiduciary services that the other party
(or any of its affiliates) may otherwise provide to the party (or to any of its affiliates) shall exc1 ude
the Transaction, (iii) it is relying solely upon its own evaluation of the Transaction (including the
present and future results, consequences, risks, and benefits thereof, whether financial, accounting,
tax, legal, or otherwise) and upon advice from its own professional advisors, (iv) it understands
the Transaction and those risks, has determined they are appropriate for it, and willingly assumes
those risks, and (v) it has not relied and will not be relying upon any evaluation or advice
(including any recommendation, opinion, or representation) from the other party, its affiliates or
the representatives or advisors of the other party or its affiliates (except representations expressly
made herein or an opinion of counsel required hereunder); and
(h) it will, at all times during the term of this Confirmation, maintain as part of its official books and
records a copy of this Confirmation and all other supplements hereto and documents incorporated
by reference herein).
4. COUNTERPARTY agrees to deliver to PNC (within 10 days of the date of this Confirmation): (a) a
certified copy of the resolutions of the board of COUNTERPARTY, evidencing its authority to enter into
this Transaction; and (b) an incumbency certificate with respect to the signatory of this Confirmation;
5. The terms of the particular Transaction to which this Confirmation relates are as follows:
Type of Transaction:
Rate Cap Transaction
Notional Amount:
USD 15,000,000.00
Trade Date:
October 1, 2009
Effective Date:
October 1, 2009
Termination Date:
October 1, 2011, subject to adjustment in accordance with the Following
Business Day Convention.
Fixed Rate Payer:
For purposes of this Rate Cap Transaction, there shall be no Fixed Rate Payer.
Rate Cap
Buyer:
COUNTERPARTY
Rate Cap Premium:
USD 26,900.00
Premium Payment Date: On or around October 19, 2009
Cap Rate:
5.50%
Floating Rate Payer:
PNC
Floating Rate Payer
Payment Dates:
Floating Rate For
Initial Calculation
Period:
Reset Dates:
Floating Rate Option:
Designated Maturity:
Floating Rate Day
Count Fraction:
Business Days:
Early Termination
Event:
Calculation Agent:
Payment to PNC:
Monroe County Florida
October 1, 2009
Page 3
The 1st day of each month, commencing on November 1, 2009 and ending on
the Termination Date (subject to adjustment in accordance with the Modified
Following Business Day Convention), for each month that the Floating Rate
exceeds the Cap Rate on any Reset Date occurring during such month. If on
each of the Reset Dates for any given month the Floating Rate is less than or
equal to the Cap Rate, no payment will be required from PNC for that month.
To be Determined
Weekly, on each Wednesday for value Thursday (or any other day specified by
The Securities Industry and Financial Markets Association) or if any Thursday
is not a U.S. Government Securities Business Day, the next succeeding u.s.
Government Securities Business Day, except that, the Reset Date for the initial
Calculation Period shall be the Effective Date. For the avoidance of doubt, in
the event the Effective Date falls on a Wednesday, the rate for such Reset Date
shall be the rate issued on the Wednesday immediately preceding such Reset
Date.
The USD-SIFMA Municipal Swap Index
One (1) Week
Actual! Actual
New York
COUNTERPARTY shall have the right, but not the obligation, to terminate this
Transaction if at any time PNC's long term unsecured debt obligations falls
below A3 or A- as determined by Moody's or S&P respectively or there shall
occur a suspension or withdrawal of both ratings.
PNC
COUNTERPARTY will pay PNC the Rate Cap Premium on or around October
19, 2009 per the following wire instructions:
PNC Bank, Pittsburgh
ABA #: 043-000-096
Account#: 196030010411
Account Name: Investment Operations
Attn.: Derivative Products
Monroe County Florida
October 1, 2009
Page 4
Payment
Instructions:
Payments to COUNTERPARTY shall be made in immediately available funds
to:
Bank:
ABA #:
Account #:
Account of:
PAYMENT ADVICE NOTIFICATION SHALL BE DELIVERED VIA E-
MAIL TO THE FOLLOWING ADDRESS(ES):
E-Mail Address:mgreen@monroe-clerk.com
Each party (i) consents to the recording, by the other party or its agents, of telephone conversations between officers,
employees or agents ofthe consenting party or its affiliates and officers, employees or agents of the other party or its
affiliates who quote, agree to or otherwise discuss terms of this Transaction or potential Transactions, or other
matters relating to this Confirmation, and (ii) agrees to give notice of such recording to such officers, employees and
agents of it and its affiliates.
This Confirmation shall be governed by the laws of the State of New York, without reference to choice of law
doctrine. No modification, amendment or waiver of any of the terms of this Confirmation will be effective unless
made in a writing signed by the party to be charged, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
With respect to any suit, action or proceedings relating to this Transaction, each party irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New York, the United States District Courts located in the
Borough of Manhattan in New York City and the United States District Court located in Miami, Florida.
USA Patriot Act. PNC hereby notifies COUNTERPARTY that pursuant to the requirement of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the "Act"), it is required to obtain,
verify and record information that identifies COUNTERPARTY, which information includes the name and
address of COUNTERPARTY and the other information that will allow PNC to identify COUNTERPARTY
in accordance with the Act.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDINGS RELATING TO THIS CONFIRMATION OR THE TRANSACTION TO
WHICH THIS CONFIRMATION RELATES.
It is agreed by the parties that the use of electronic signatures and the keeping of records in electronic form be
granted the same legal effect, validity and enforceability as a signature affixed by hand or the use of a paper-based
record keeping system (as the case may be) to the extent and as provided for in any applicable law.
This Confirmation may be executed in counterparts, each of which shall be an original and both of which when
taken together shall constitute the same agreement. Transmission by facsimile, e-mail or other form of electronic
transmission of an executed counterpart of this Confirmation shall be deemed to constitute due and sufficient
delivery of such counterpart.
Monroe County Florida
October 1, 2009
Page 5
Please confirm that the foregoing correctly sets forth the terms of our agreement concerning the Transaction by
signing this Confirmation where indicated below and returning a signed copy to Steve Och either by fax (at
(412)768-2466), or by overnight delivery (c/o PNC Bank, National Association, One PNC Plaza - 9th Floor, 249
Fifth Avenue, Pittsburgh, PA 15222, Attn: Steve Och), or bye-mail to:derh._confirms@pnc.com. provided that
you wish to return your signed copy bye-mail, please first contact your derivatives marketer.
Please retain a signed copy of this Confirmation for your records. Should you have any questions, please call Steve
Och at (412) 768-5919.
Yours Sincerely,
Accepted and agreed as of the date first above written:
PNC BANK, NATIONAL ASSOCIATION
(SEAL)
ATTE.Sr: OANNY L. KOLH~~ -A- r J
. (1._ IL"CL. c..- . Q\S -. ''i,,-YvL~
8~~ . ,/
;.:::. O!:PIJTY CLERK \ 'I'i1/ 09