Resolution 020-2018MONROE COUNTY, FLORIDA'
RESOLUTION NO. 020 -2018
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
$40,000,000 TO FINANCE AND REFINANCE VARIOUS
CAPITAL IMPROVEMENTS, REPAIRS AND OTHER
EXTRAORDINARY EXPENDITURES RESULTING
FROM RECENT HURRICANE DAMAGE WITHIN THE
COUNTY; 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 MASTER
NOTES TO SECURE DRAWS UNDER THE LINE OF
CREDIT AGREEMENT; AUTHORIZING THE
REPAYMENT OF DRAWS UNDER THE LINE OF
CREDIT AGREEMENT FROM LEGALLY AVAILABLE
NON -AD VALOREM REVENUES BUDGETED AND
APPROPRIATED FOR SUCH PURPOSE; 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) Hurricane Irma caused catastrophic damage throughout Monroe County,
Florida (the "County ") and the County is experiencing extraordinary expenditures and
costs related to repairs, improvements, protective and security costs and collection,
disposal and general clean -up of debris (the "Extraordinary Expenditures ").
(B) Due to the current unavailability of sufficient budgeted funds, cash flow
issues and anticipated delays in the expected reimbursement of a portion of the
Extraordinary Expenditures by federal and state agencies, there is presently a need by the
County to finance a portion of the Extraordinary Expenditures on an interim basis.
(C) The County's financial advisor, Public Financial Management, Inc. (the
"Financial Advisor "), previously solicited proposals from various financial institutions to
provide the County with a revolving line of credit to finance and refinance Extraordinary
Expenditures and the proposal (the "Proposal ") received from PNC Bank, National
Association (the "Noteholder "), a copy of which is attached hereto as Exhibit A, is 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 Tax - Exempt Master Revenue Note (PNC Bank, National Association Line of Credit),
Series 2018 (the "Tax- Exempt Master Note ") and Taxable Master Revenue Note (PNC
Bank, National Association Line of Credit), Series 2018 (the "Taxable 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 will contain various terms of and provisions for the Line of Credit and the Tax -
Exempt Master Note and the Taxable Master Note (collectively, the "Master Notes ").
(F) Each Draw (as defined in the Line of Credit Agreement) under the Line of
Credit shall be repaid from Non -Ad Valorem Revenues (as defined in the Line of Credit
Agreement) budgeted and appropriated in the manner and to the extent set forth in the
Line of Credit Agreement and the Noteholder cannot compel the County to use its
ad valorem taxing power to pay said amounts.
(G) Due to the potential volatility of the market for tax - exempt and taxable
obligations such as the Master Notes and the complexity of the transactions relating to
such Master Notes and the Line of Credit, it is in the best interest of the County to sell the
Master Notes 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 Notes 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.
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.
2
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of the Master Notes 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 Master Notes and the Draws to be
made thereagainst regardless of the time or times of their issuance or maturity, shall be of
equal rank without preference, priority or distinction of the Master Notes or 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 $40,000,000, a copy of which Proposal is attached hereto as Exhibit A.
The Mayor and the Clerk are each hereby authorized to execute and deliver 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 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.
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, including but not limited to, the
amount of the Line of Credit; provided, however, such Line of Credit may not exceed
$40,000,000. 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 LINE OF CREDIT; LIMITED
OBLIGATION. The obligation of the County to repay amounts, if any, drawn under the
Line of Credit Agreement is a limited and special obligation payable from Designated
Revenues in the manner and to the extent set forth in the Line of Credit Agreement and
shall not be deemed a pledge of the faith and credit or taxing power of the County and
such obligation shall not create a lien on any property whatsoever of or in the County
other than the Designated Revenues. The Designated Revenues shall consist of proceeds
of Draws pending the application thereof and all legally available Non -Ad Valorem
3
Revenues budgeted and appropriated by the Board in amounts sufficient to pay the
Draws, all to the extent described in the Master Notes and the Line of Credit Agreement.
SECTION 8. APPROVAL OF MASTER NOTES. 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 Notes. The Mayor is authorized to execute and
deliver, and the Clerk is authorized to attest and affix the seal to, the Master Notes
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 Registrar and Paying Agent
for the Master Notes. The Clerk shall keep adequate books and records to identify the
holder of the Master Notes.
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:
(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 $40,000,000;
(C) the proceeds of the Draw are scheduled to be applied to finance or refinance
all or a portion of the costs of Extraordinary Expenditures, 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 or the Resolution; and
(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,
and the County Administrator 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
terms, covenants, provisions and agreements herein and therein contained, or as
0
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 17th day of January
2018.
Mayor David Rice Yes
Mayor Pro Tern Sylvia Murphy Yes
Commissioner Heather Carruthers Yes
Commissioner Danny Kolhage Yes
Commissioner George Neu gent Yes
BOARD OF COUNTY COMMISSIONERS
(Seal): ,' rf OF MONROE COUNTY, FLORIDA
Attest : - Kevin Madok, Clerk
v
B B
Deputy Clerk Mayor
M
a:
lam.
h
C)
..
W
E3O
r�
MONROE COUNTY ATTORNEY
A RO Eq A T F9 M:
YNTHIA L. ALL
ASSIST NT COUNTY ATTORNEY
Date I I k 9 o I
5
EXHIBIT A
PROPOSAL OF PNC BANK, NATIONAL ASSOCIATION
Exhibit A
Alk
i�v PN
December 19, 2017
Monroe County Purchasing Department
1100 Simonton Street
Suite 2 -213
Key West, FL 33040
FAO Kevin Madok, County Clerk
Cynthia Hall, Assistant County Attorney
Sergio Masvidal, PFM
Pete Verona, PFM
Re: Monroe County, Florida — Request for Proposals: Revolving, Taxable or Tax Exempt (NBQ)
$40,000,000 Line of Credit
Good afternoon,
On behalf of The PNC Financial Services Group ( "PNC "), attached please find PNC Bank, N.A.'s ( "PNC
Bank ") response to Monroe County, Florida's (the "County ") Request for Proposals for a Revolving, Taxable
or Tax Exempt (NBQ) Line of Credit (the "Line" or "Credit Facility ") in an amount not to exceed $40,000,000
(the "RFP "). PNC Bank is excited for the opportunity to assist the County in the completion of this
transaction.
In response to the RFP PNC Bank is offering a floating rate, Taxable or Tax Exempt NBQ, Revolving Line
of Credit Facility for a total of 54 months. PNC is offering the requested 18 -month revolving period followed
by a three -year term out and is also offering the option for an extended revolving period, not to exceed 54
months for maximum flexibility.
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.
Once again, -PNC is pleased to be able to support the County in this credit financing solution and aims to
get the transaction completed in a timely fashion. If you have any questions or need any additional
information, please do not hesitate to contact me.
Regards,
Nick Ayotte - Vice President, Public Finance
PNC Bank, National Association
16740 San Carlos Blvd
Ft. Myers, FL 33908
(T): 239 - 437 -3736
(F): 239- 433 -0359
This Summary of Terms and Conditions is not a commitment or an offer to lend and does
not create any obligation on the part of the Bank. The Bank will not be deemed to extend
any commitment to the Borrower unless and until a formal commitment letter is issued. This
outline is only a brief description of the principal terms of the suggested loan and is
intended for discussion purposes only.
MONROE COUNTY, FLORIDA
SUMMARY OF TERMS AND CONDITIONS
December 19, 2017
Borrower Monroe County, Florida ( "County" or the "Borrower ")
Bank PNC Bank, National Association (the "Bank ")
Amount Subject to credit approval and documentation, PNC proposes to
provide:
Credit Facility: A Taxable or Tax - Exempt (NBQ) Revolving Line of
Credit for up to $40,000,000 (the "Line" or "Credit Facility ")
Purpose The proceeds of the Credit Facility will be drawn upon to provide
funding for costs of repairs and improvements, including debris
pickup, related to Hurricane Irma, and to pay the costs of issuance
related to the Line. This offering is for a private placement on the
Bank's balance sheet (no CUSIP number).
Collateral The payment of the principal and interest shall be secured by a CB &A
pledge from the County's legally available Non -Ad Valorem Revenues
and also payable from federal, state, county or municipal grants
moneys, receipt or reimbursements received by the County relative to
the clean -up, collection and disposal of debris as well as other
extraordinary expenses caused by the 2017 hurricanes. Such
covenants and agreement plus an Anti - Dilution Test will be the same
as per the County's other CB &A debt at 1.20 times while this Credit
Facility remains outstanding.
Amortization, Interest &
Maturity Taxable or NBQ Tax - Exempt Revolving Line of Credit Facility:
The initial revolving period will be 18 months from the Closing Date
with any outstanding balance at the end of the revolving period
amortized over a 36 month period. The County will have the option to
extend this revolving period beyond the first 18 months to a maximum
of 54 months (the "Final Maturity Date "). Semi - annual interest -only
payments, based on the drawn amounts, every April 1st and October
Monroe County, Florida - $40,000,000 Taxable or Tax Exempt (NBQ) Revolving Line of
Credit Facility
Summary of Terms and Conditions
1 commencing on April 1 2018 (30/360) until the Final Maturity
Date which will be 54 months from the Closing Date. Full outstanding
balances with all accrued interest will be due and payable, in full, at
the Final Maturity Date.
Minimum draws amounts will be in no less than $2,000,000 and in
denominations of $1,000,000 thereafter. Draws are also limited to one
draw per month and must be made on the 1 Month Libor reset date.
Variable Interest
Rates (30/360)
Option 1 Taxable:
1 Month Libor + 85 basis points
Option 2 Tax - Exempt NBQ:
(70% x 1 Month Libor) + 54 basis points
Option 3 Tax - Exempt NBQ:
(80% x 1 Month Libor) + 71 basis points
Event of Taxability For Options 2 and 3, in the event determination of taxability shall
occur for any reason, in addition to the amounts required to be paid
with respect to the Loan, the Issuer shall be obligated to pay to the
Purchaser 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 Loan had borne interest at a taxable rate and the
interest actually received by the Purchaser with respect to the Loan,
together with penalties, interest and other costs incurred by the
Purchase in connection therewith.
Margin Rate Factor For Option 2, in the event of a change in the Purchaser's corporate
tax rate during any period where interest is accruing on a tax - exempt
basis causes a reduction in the tax equivalent yield on the Loan, the
interest payable on the Loan shall be increased to compensate for
such change in the effective yield to a rate calculated by multiplying
the interest rate on the Loan by the ratio equal to (1 minus A) divided
(1 minus B), where A equals the Purchaser's corporate tax rate in
effect as of the date of the corporate tax rate adjustment as announced
by the IRS and B equals the Purchaser's corporate tax rate in effect
on the date of the original issuance of the Loan. The Margin Rate
Factor will not be applicable for Option 3.
Fixed Interest Rates Because draw schedules are not available and future estimated
balances and repayments are unknown, a fixed rate cannot be given
at this time. However, the Bank is willing to offer a fixed rate during
the term -out provision closer to when the County establishes a
clearer picture of a term out balance and period.
Monroe County, Florida - $40,000,000 Taxable or Tax Exempt (NBQ) Revolving Line of
Credit Facility
Summary of Terms and Conditions
Unutilized Fees At any time if less than 50% of the Credit Facility is drawn upon, fees
for unutilized amounts will be paid quarterly in arrears at 12 basis
points per annum (30/360)
Libor Floor Libor will have a floor rate of 0.00%
Default Rate Prime + 3.00% or maximum allowable by law, whichever is less.
Prepayment Prepayment at any time and without penalty. The County must give
the Bank written prepayment notice no less than five (5) business days
prior to a repayment and the Prepayment must be made on a 1 -Month
Libor reset date.
Covenants Affirmative and negative covenants will be specified by. the Bank for
inclusion in the Credit Facility Agreement including but not limited to
those listed in the County's existing CB &A debt.
Expenses All expenses incurred by the Bank shall be paid by, the Borrower.
These include, but are not limited to, fees and expenses of legal
counsel (inside and outside) and any other expenses in connection
with documenting, closing, monitoring or enforcing the Credit Facility
and shall be payable at closing or otherwise on demand. Payment by
Borrower of expenses described above shall not be contingent upon
the closing of the Credit Facility. Legal fees will be for the account of
the Borrower after documentation of the transaction has started. If the
County Attorney is comfortable, Mr. Duane Draper of Bryant Miller
Olive P.A. will again serve as bank counsel and review -only fees for
the Credit Facility will be no greater than $12,500. Please also see
Condition 6 below.
Representations
And Warranties The Borrower shall make representations and warranties standard for
this type of transaction, in form and substance satisfactory to the Bank.
Conditions Precedent Including, but not limited to, the following all of which shall be in form
and substance satisfactory to the Bank:
1) All documentation relating to the Credit Facility in form and
substance satisfactory to the Bank.
2) Satisfactory review of other agreements relating to the Credit
Facility.
3) Evidence that Borrower is authorized to enter into this transaction.
Monroe County, Florida - $40,000,000 Taxable or Tax Exempt (NBQ) Revolving Line of
Credit Facility
Summary of Terms and Conditions
4) No material adverse change in the condition, financial or
otherwise, operations, properties, assets or prospects of the
Borrower.
5) No material threatened or pending litigation against the Borrower
or additional material contingent obligations of the Borrower.
6) Delivery of initial opinions of counsel will be required. It is
assumed that future draws of the Credit Facility will not be
considered reissuances. If this is correct, subsequent opinions
will not be required for each draw. If futures draws are deemed to
be reissuances, opinions will be required and additional fees paid
by the Borrower may apply.
7) Payment of all legal fees.
8) The County must provide the Bank with mathematical
demonstration of the Anti - Dilution Test.
Reporting
Requirements Annual audited financial statements for the borrower within 210 days
of the Borrower's fiscal year end.
Budgets, forecasts and other items as may be reasonably requested
by the Bank which are prepared by the Borrower and submitted to the
Bank no later than the first day of each Fiscal Year.
Events of Default 1) Payment default.
2) Breach of Representations or Warranties.
3) Violation of covenant(s).
4) Bankruptcy, insolvency.
5) Any Default with any other NAV Revenue indebtedness or any
condition which results in the acceleration of other indebtedness
of the Borrower.
6) Loan documents unenforceable.
7) Adverse judgments.
8) Change of control.
9) Cessation of business.
10) Default under governing bond documents:
Other Events of Default as appropriate. The Borrower shall notify the
Bank within 10 days of its knowledge of an Event of Default.
Monroe County, Florida - $40,000,000 Taxable or Tax Exempt (NBQ) Revolving Line of
Credit Facility
Summary of Terms and Conditions
Documentation Resolution and other loan documents in form and substance
satisfactory to the Bank must'be executed and delivered containing
representations, warranties, covenants, indemnities., conditions to
lending, events of default and other provisions as are appropriate in
the Bank's opinion and specified by the Bank.
Governing Law State of Florida. Consent to Florida Jurisdiction. Waiver of jury trial.
Indemnification Standard indemnification of the Bank by the Borrower will apply.
Underwriting Should PNC be appointed the winner of this RFP, the Bank requires
a minimum of 2 weeks for the formal underwriting process from the
appointed date.
Expiration This proposal expires January 24, 2018 and the Credit Facility must
close no later than this date unless otherwise extended by the Bank in
writing.
Corporate Information Please refer to the following link for detailed corporate information
including all filings, history, corporate governance, officers, directors
and investor relations:
https: / /www. pnc.com /en/ about -pnc /com pane- profile /corporate-
overview.html
References Ivan Perrone: School Board of Broward County, Florida.
754 - 321 -1980
ivan .perrone(c)-browardschools.com
Erica Paschal: City of Miami, Florida
305 - 416 -1330
E Paschal Ob-miamigov.com
Lisa Chong: City of Pembroke Pines, Florida
954- 435 -6728
Ichong(a)ppines.com
PROPOSER'S QUALIFICATIONS STATEMENT
PROPOSER shall furnish the following information. Failure to comply with this requirement will render
Bid non - responsive and shall cause its rejection. Additional sheets shall be attached as required.
PROPOSER'S Name and Princibal,Addreg: I l
Contact Person's Name and Title: V/ ' C
PROPOSER'S Telephone and Fax Number: � ' 3
PROPOSER'S License Number: El 1W& k—
(Please attach certificate of competency a id /or state re istration
PROPOSER'S Federal Identification Number: wz- 1� �1D®
Number of years your organization has been in business, in type of work:
Names and titles of all officers, partners, or individuals doing business under trade name:
The business is a: SoleProprietorslup u
Name, address, and telephone number of Surety
on this contract: J /
Partnership U Corporation l
and agent who will provide the required bonds
Have you ever failed to complete work awarded to you. If so, when, where and why?
Have you personally inspected the proposed WORK and do you have a complete plan for its
performance?
'29885782v2 7
Will you subcontract any part of this WORK? If so, give details including a list of each sub - contractor(s)
that will perform work in excess of ten percent (10 %) of the contract amount and the work that will be
performed by each subcontractor(s).
The foregoing list of subcontractor(s) may not be amended after award of the contract without the prior
written approval of the Contract Administrator, whose approval shall not be reasonably withheld.
List and describe all bankruptcy petitions (voluntary or involuntary) which have been filed by or against
the Proposer, its parent or subsidiaries or predecessor organizations during the past five-(5) years. Include
in the description the disposition of each such petition.
In the normal course of business, PNC Bank, N.A. ( "PNC Bank ") is subject to various pending or
threatened legal proceedings, including adversary actions by bankruptcy trustees, 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 adversary proceedings will have a material
adverse effect on PNC's financial position or that of The PNC Financial Services Group, Inc.
( "PNC "). Matters that are considered material are reported in the Legal Proceedings section on the
Forms 10 -K and 10 -Q reports filed by PNC.
List and describe all successful Bond claims made to your surety (ies) during the last five (5) years. The
list and descriptions should include claims against the bond of the Proposer and its predecessor
organization(s).
List all claims, arbitrations, administrative hearings and lawsuits brought by or against the Proposer or its
predecessor organizations(s) during the last (5) years. The list shall include all case names; case,
arbitration or hearing identification numbers; the naive of the project over which the dispute arose; and a
description of the subject matter of the dispute.
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. ( "PNC Bank"), 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 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.
29885782x2
List and describe all criminal proceedings or hearings concerning business related offenses in which the
Proposer, its principals or officers or predecessor. organization(s) were defendants.
This response is limited to executive officers and directors of PNC Bank, N.A. ( "PNC Bank ") and
The PNC Financial Services Group, Inc. ( "PNC "), and solely with respect to their activities in the
course of their work in the ordinary course of their activities for PNC. PNC Bank is a National
Bank and an indirect subsidiary of a publicly traded corporation, PNC, whose stock is traded on the
New York Stock Exchange. As of the date of this Proposal, neither PNC, PNC Bank, nor any
executive officer or director of PNC or PNC Bank in the ordinary course of their activities for PNC
or PNC Bank is involved in any Federal, State or other government investigation concerning
criminal violations by PNC or PNC Bank.
29885782v2
EXHIBIT B
FORM OF LINE OF CREDIT AGREEMENT
Exhibit B
LINE OF CREDIT AGREEMENT
1 ll VIN 0i`►I
MONROE COUNTY, FLORIDA
AND
PNC BANK, NATIONAL ASSOCIATION
Dated as of January , 2018
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
REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR
NOTES
SECTION 2.01.
REPRESENTATIONS BY THE COUNTY ....... ...............................
8
SECTION 2.02.
GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER .......................... a........
9
SECTION 2.03.
TAX COVENANT .............................................. ...............................
9
SECTION 2.04.
MASTER NOTES AND DRAWS NOT TO BE
INDEBTEDNESS OF THE COUNTY OR STATE ..................
10
SECTION 2.05.
SECURITY FOR MASTER NOTES AND DRAWS .....................
10
SECTION 2.06.
COVENANT TO BUDGET AND APPROPRIATE NON -AD
VALOREM REVENUES ............................ ...............................
10
SECTION 2.07..
PAYMENT COVENANT ................................. ...............................
11
SECTION 2.08.
ANTI- DILUTION ............................................. ...............................
11
ARTICLE III
DESCRIPTION OF MASTER NOTES AND DRAWS; PAYMENT TERMS,
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE MASTER NOTES AND DRAWS......... 13
SECTION 3.02. OPTIONAL PREPAYMENT ........................... ............................... 15
SECTION 3.03. ADJUSTMENT TO TAX - EXEMPT INTEREST RATES ............. 16
ARTICLE IV
CONDITIONS FOR DRAWS
SECTION 4.01. CONDITIONS FOR DRAWS .......................... ............................... 17
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT .................................. ............................... 19
SECTION 5.02. REMEDIES ....................................................... ............................... 19
i
f-I
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
EXHIBITS
A - FORM OF DRAW CERTIFICATE
B - FORM OF MASTER NOTE
C - FORM OF DRAW REQUEST
ii
THE AGREEMENT .................................... ...............................
21
SECTION 6.02.
COUNTERPARTS ............................................ ...............................
21
SECTION 6.03.
SEVERABILITY .............................................. ...............................
21
SECTION 6.04.
TERM OF AGREEMENT ................................ ...............................
21
SECTION 6.05.
NOTICE OF CHANGES IN FACT .................. ...............................
21
SECTION 6.06.
NOTICES .......................................................... ...............................
22
SECTION 6.07.
APPLICABLE LAW ......................................... ...............................
22
SECTION 6.08.
INCORPORATION BY REFERENCE ............ ...............................
22
SECTION 6.09.
ASSIGNMENT ................................................. ...............................
22
SECTION 6.11.
USA PATRIOT ACT COMPLIANCE NOTIFICATION ...............
22
EXHIBITS
A - FORM OF DRAW CERTIFICATE
B - FORM OF MASTER NOTE
C - FORM OF DRAW REQUEST
ii
This LINE OF CREDIT AGREEMENT (the "Agreement ") is made and entered
into as of January , 2018, 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, Hurricane Irma caused catastrophic damage throughout the County
and the County is experiencing extraordinary expenditures and costs related to repairs,
improvements, protective and security costs and collection, disposal and general clean-up
of debris (the "Extraordinary Expenditures "); and
WHEREAS, due to the current unavailability of sufficient budgeted funds, cash
flow issues and anticipated delays in the expected reimbursement of a portion of the
Extraordinary Expenditures by federal and state agencies, there is presently a need by the
County to finance a portion of the Extraordinary Expenditures on an interim basis; and
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 the Extraordinary Expenditures; and
WHEREAS, the County finds it necessary and in the best interests of the County
to finance, and refinance Extraordinary Expenditures from time to time; and
WHEREAS, the County finds that the Extraordinary Expenditures serve a public
purpose under the Act; and
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 $ at any one time (unless otherwise adjusted upward in
accordance with the terms hereof) under which the County may draw moneys from time
to time to finance or refinance Extraordinary Expenditures.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
That the parties hereto, intending. to be legally bound hereby and in consideration
of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS. The terms defined in this Article I shall, for
all purposes of this Agreement, have the meanings in this Article I specified, unless the
context clearly otherwise requires.
"Act" shall mean Chapter 125, Florida Statutes, and other applicable provisions .
of law.
"Ad Valorem Revenues" shall mean all revenues of the County derived from the
levy and collection of ad valorem taxes.
"Agreement" shall mean this Line of Credit Agreement, dated as of
January , 2018, 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.
"Annual Debt Service" shall mean, at any time, the aggregate amount in the then
applicable Fiscal Year of (1) interest required to be paid on the Draws during such Fiscal
Year, except to the extent that such interest is to be paid from proceeds of a Draw for
such purpose, and (2) principal of outstanding Draws maturing in such Fiscal Year. For
purposes of this definition, if a Draw has 25% or more of the aggregate principal amount
thereof coming due in any one Fiscal Year, Annual Debt Service shall be determined as if
the principal of and interest on such Draw were being paid from the date of incurrence
thereof in substantially equal annual amounts over a period of 25 years.
"Authorized Officer" shall mean the Mayor, the Clerk or the County
Administrator, or their duly authorized designees.
"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.
"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.
2
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
applicable rules and regulations.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
County. Counterparty would also include any guarantor of such entity's obligations
under such Hedge Agreement.
"County" shall mean Monroe County, Florida, a political subdivision of the State
of Florida 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
funded. The Date of Issuance for each Draw will be set forth in the corresponding Draw
Request.
"Debt" means at any date (without duplication) all of the following to the extent
that they are secured by or payable in whole or in part from any Non -Ad Valorem
Revenues: (a) all obligations of the County for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments; (b) all obligations of the County to pay the
deferred purchase price of property or services, except trade accounts payable under
normal trade terms and which arise in the ordinary course of business; (c) all obligations
of the County as lessee under capitalized leases; and (d) all indebtedness of other Persons
to the extent guaranteed by, or secured by, Non -Ad Valorem Revenues of the County;
provided, however, if with respect to any obligation contemplated in (a), (b), or (c)
above, the County has covenanted to budget and appropriate sufficient Non -Ad Valorem
Revenues to satisfy such obligation in the event that other revenues or funds pledged to
secure such obligation are insufficient therefor, and with respect to any obligation
contemplated in (d) above, such obligation shall not be considered "Debt" for purposes of
this Loan Agreement unless the County has actually used Non -Ad Valorem Revenues to
satisfy such obligation during the immediately preceding Fiscal Year or reasonably
expects to use Non -Ad Valorem Revenues to satisfy such obligation" in the current or
immediately succeeding Fiscal Year. After an obligation is considered "Debt" as a result
of the proviso set forth in the immediately preceding sentence, it shall continue to be
considered "Debt" until the County has not used any Non -Ad Valorem Revenues to
satisfy such obligation for two consecutive Fiscal Years.
. "Default Rate" shall mean the lesser of (A) the Prime Rate plus three percent
(3 %) per annum or (B) the maximum rate permitted by law.
"Designated Revenues" shall mean, with respect to any Draw, (a) the Non -Ad
Valorem Revenues budgeted and appropriated to pay debt service on the Draw in
3
accordance with Section 2.06 hereof, and (b) the proceeds of the Draw pending the
application thereof.
"Determination of Taxability" shall mean the circumstance of interest paid or
payable on a Draw becoming includable for federal income tax purposes in the gross
income of the Noteholder for any reason. A Determination of Taxability will be deemed
to have occurred upon (a) the receipt by the County or the Noteholder of an original or a
copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice
of Deficiency or other official letter or correspondence from the Internal Revenue Service
which holds that any interest payable on a Draw is includable in the gross income of such
Noteholder; (b) the issuance of any public or private ruling of the Internal Revenue
Service that any interest payable on such Draw is includable in the gross income of the
Noteholder; or (c) receipt by the County or the Noteholder of an opinion of a Bond
Counsel that any interest on the Draw has become includable in the gross income of the
Noteholder for federal income tax purposes. For all purposes of this definition, a
Determination of Taxability will be deemed to occur on the date as of which the interest
on a Draw is deemed includable in the gross income of the Noteholder.
"Draw" or "Drawing" shall mean a borrowing of money against a Master Note
in accordance with this Agreement.
"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.
"Draw Request" shall mean the written request of the County to the Noteholder
to make a Draw against a Master Note pursuant to Section 4.01(a) hereof and approved
by the Noteholder, the form of which is attached hereto as Exhibit C.
"Event of Default" shall have the meaning ascribed thereto in Section 5.01
hereof.
"Extraordinary Expenditures" shall mean the extraordinary expenditures and
costs related to repairs, improvements, protective and security costs and collection,
disposal and general clean -up of debris caused by or as a result of Hurricane Irma, as
more particularly described in the books, records, plans and specifications of the County.
"Final Draw Date" shall mean 20_, as such date may be
extended in accordance with Section 6.04 hereof.
"Final Maturity Date" shall mean 20 , as such date may be
extended in accordance with Section 3.01(d) hereof.
"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.
0
"Fitch" shall mean Fitch Ratings, and any successors or assigns thereto.
"Hedge Agreement" shall mean an agreement in writing between the County and
a Counterparty pursuant to which (a) the County agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on debt (or a notional amount) specified in such agreement during the
period specified in such agreement and (b) the Counterparty agrees to pay to the County
an amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on debt (or a notional amount) specified in such agreement during the
period specified in such agreement.
"Hedge Payments" shall mean any amounts payable by the County on the
notional amount under a Qualified Hedge Agreement; excluding, however, any payments
due as a penalty or by virtue of termination of a Qualified Hedge Agreement or any
obligation of the County to provide collateral.
"Interest Rate" shall mean the applicable Tax - Exempt Interest Rate or Taxable
Interest Rate with respect to a particular Draw.
"LIBOR Reserve Percentage" shall mean the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve requirements) with respect to
eurocurrency funding (currently referred to as "Eurocurrency liabilities ").
"Master Notes" shall mean the Tax - Exempt Master Note and the Taxable Master
Note.
"Maximum Annual Debt Service" shall mean the largest aggregate amount of
the Annual Debt Service coming due in any Fiscal Year in which Draws are outstanding
and unpaid hereunder.
"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.
" Moody's" shall mean Moody's Investors Service, and any successor or assigns
thereto.
"Non -Ad Valorem Revenues" shall mean all revenues of the County, other than
Ad Valorem Revenues, which are legally available to make the payments required herein.
5
"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 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 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.
"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.
"Prime Rate" means that index rate of interest which the Noteholder from time to
time announces as its prime lending rate, which rate is an index rate for guidance to loan
officers and is not necessarily the best or lowest rate charged borrowing customers of the
Noteholder, or if such rate is no longer announced, such comparable prime rate as shall
be published in the Wall Street Journal.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with respect to
which the County has received written notice from at least two of the Rating Agencies
that the rating of the Counterparty is not less than "A."
"Rating Agencies" shall mean Fitch, Moody's and Standard and Poor's.
"Reset Date" shall mean the first day of each month.
"Resolution" shall _mean Resolution No. adopted by the Board on
January , 2018, which, among other things, authorized the execution and delivery of
this Agreement and the issuance of the Master Notes.
"Standard and Poor's" shall mean S &P Global Ratings, and any successors and
assigns thereto.
"State" shall mean the State of Florida.
0
"Taxable Interest Rate" shall mean a variable rate of interest for Draws against
the Taxable Master Note equal to One Month LIBOR plus 85 basis points (0.85 %).
"Taxable Master Note" shall mean the Monroe County, Florida Taxable Master
Revenue Note (PNC Bank, National Association Line of Credit), Series 2018 authorized
to be issued by the Resolution and more particularly described in Article III hereof.
"Tax Certificate" shall have the meaning ascribed thereto in Section 2.03 hereof.
"Tax- Exempt Interest Rate" shall mean shall mean a variable rate of interest for
Draws against the Tax - Exempt Master Note equal to (80% of One Month LIBOR) plus
71 basis points (0.71 %), as the same may be adjusted as described in Section 3.03 hereof.
"Tax- Exempt Master Note" shall mean the Monroe County, Florida Tax -
Exempt Master Revenue Note (PNC Bank, National Association Line of Credit),
Series 2018 authorized to be issued by the Resolution and more particularly described in
Article III hereof.
SECTION 1.02. INTERPRETATION. Unless the context clearly requires
otherwise, words of masculine gender shall be construed to include correlative words of
the feminine and neuter genders and vice versa, and words of the singular number shall
be construed to include correlative words of the plural number and vice versa. Any
capitalized terms used in this Agreement not herein defined shall have the meaning
ascribed to such terms in the Resolution. This Agreement and all the terms and
provisions hereof shall be construed to effectuate the purpose set forth herein and to
sustain the validity hereof.
SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the
articles and sections of this Agreement, which have been inserted for convenience of
reference only and are not to be considered a part hereof, shall not in any way modify or
restrict any of the terms and provisions hereof, and shall not be considered or given any
effect in construing this Agreement or any provision hereof or in ascertaining intent, if
any question of intent should arise.
7
ARTICLE H
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 Notes, the performance by the County of all of its obligations hereunder
and under the Master Notes, and the issuance of the Master Notes.
(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 Notes, and to perform all of its obligations hereunder and under the Master
Notes. 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 Notes and
execute and deliver this Agreement and, when this Agreement is executed and delivered
and the Master Notes are issued in accordance with the terms of this Agreement, the
Agreement and the Master Notes 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
by any governmental authority, that, if adversely determined, would materially impair the
ability of the County to perform the County's obligations under this Agreement or under
the Master Notes.
(e) The County will furnish to the Noteholder within 210 days after the close
of each Fiscal Year of the County a copy of the annual audited financial statements of the
County. The County shall also provide the Noteholder with a copy of the annual budget
of the County each year within 30 days of the adoption of such budget and any other
information reasonably requested by the Noteholder.
8
(f) The financial information concerning the County heretofore delivered to the
Noteholder is complete and correct and fairly presents the financial condition of the
County 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 County as of the date of such financial information which are
not reflected therein. There has been no material adverse change in the financial
condition or operations of the County since the date of such information (and to the
County's knowledge no such material adverse change is pending or threatened), and the
County has not guaranteed the obligations of, or made any investment in or loans to, any
person except as disclosed in such information.
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 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 Extraordinary Expenditures.
SECTION 2.03. TAX COVENANT. (a) In order to maintain the exclusion
from gross income for purposes of Federal income taxation of interest on the Draws made
against the Tax - Exempt Master Note, the County shall comply with each requirement of
the Code applicable to the Tax - Exempt Master Note and the Draws there against. In
furtherance 'of the covenant contained in the preceding sentence, the County agrees to
continually comply with the provisions of the Certificate as to Arbitrage and Certain Tax
Matters executed in connection with the issuance of the Tax - Exempt Master Note, as the
same may be amended or supplemented from time to time, as a source of guidance for
achieving compliance with the Code (referred to herein as the "Tax Certificate ").
(b) The County shall make any and all rebate payments required to be made to
the United States Department of the Treasury in connection with the Tax - Exempt Master
Note pursuant to Section 148(f) of the Code.
(c) So long as necessary in order to maintain the exclusion from gross income
of interest on Draws against the Tax - Exempt Master Note for Federal income tax
purposes, the covenants contained in this Section shall survive the payments of such
Draws and the interest thereon, including any payment or defeasance thereof.
(d) The County shall not take or permit any action or fail to take any action
which would cause the Tax - Exempt Master Note to be an "arbitrage bond" within the
meaning of Section 148(a) of the Code.
0
SECTION 2.04. MASTER NOTES AND DRAWS NOT TO BE
INDEBTEDNESS OF THE COUNTY OR STATE. The Master Notes, 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 subdivision or agency thereof, within the meaning of any constitutional,
statutory or charter limitations of indebtedness, but shall be payable solely from the
Designated Revenues as herein provided. The Noteholder shall never have the right to
compel the exercise of the ad valorem taxing power of the County, or taxation in any
form on any property therein to pay the Draws or the interest thereon. The Draws and the
Master Notes are special and limited obligations payable as to principal and interest from
the Designated Revenues.
SECTION 2.05. SECURITY FOR MASTER NOTES AND DRAWS. The
Master Notes and Draws shall be secured by and payable from the County's covenants
contained in Section 2.06 hereof and the Designated Revenues. The County does hereby
irrevocably pledge the Designated Revenues 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 Designated Revenues shall attach with respect to each Draw at the time it is
made.
SECTION 2.06. COVENANT TO BUDGET AND APPROPRIATE NON -
AD VALOREM REVENUES. The County covenants and agrees to appropriate in its
annual budget, by amendment, if necessary, from Non -Ad Valorem Revenues lawfully
available in each Fiscal Year, amounts which, together with the 'other Designated
Revenues, shall be sufficient to pay debt ' service on the Draws. Such covenant and
agreement on the part of the County to budget and appropriate such amounts of Non -Ad
Valorem Revenues shall be cumulative to the extent not paid, and shall continue until
such Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to
make all such required payments shall have been budgeted, appropriated and actually
paid. Notwithstanding the foregoing covenant of the County, the County does not
covenant to maintain any services or programs, now provided or maintained by the
County, which generate Non -Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge
of such Non -Ad Valorem Revenues, nor does it preclude the County from pledging in the
future its Non -Ad Valorem Revenues, nor does it require the County to levy and collect
any particular Non -Ad Valorem Revenues, nor does it give the Noteholder a prior claim
on the Non -Ad Valorem Revenues as opposed to claims of general creditors of the
County. Such covenant to appropriate Non -Ad Valorem Revenues is subject in all
respects to the payment of obligations secured by a pledge of such Non -Ad Valorem
Revenues heretofore or hereafter entered into (including the payment of debt service on
bonds and other debt instruments). However, the covenant to budget and appropriate in
its general annual budget for the purposes and in the manner stated herein shall have the
fK
effect of making Non -Ad Valorem Revenues available for the payment of debt service on
the Draws in the manner described herein and in the Resolution and placing on the
County a positive duty to appropriate and budget, by amendment, if necessary, amounts
sufficient to meet its obligations hereunder; subject, however, in all respects to the
restrictions of Section 129.07, Florida Statutes, which provides, in part, that the
governing body of each county make appropriations for each Fiscal Year which, in any
one year, shall not exceed the amount to be received from taxation or other revenue
sources; and subject, further, to the payment of services and programs which are for
essential public purposes affecting the health, welfare and safety of the inhabitants of the
County or which are legally mandated by applicable law.
SECTION 2.07. PAYMENT COVENANT. The County covenants that it
shall duly and punctually pay from the Designated Revenues the principal of and interest
on the Draws at the dates and place and in the manner provided herein and in the Master
Notes according to the true intent and meaning thereof and all other amounts due under
this Agreement. Failure to comply with this Section 2.07 shall result in an Event of
Default under Section 5.01(a) hereof.
SECTION 2.08. ANTI - DILUTION. During such time as any Draw remains
outstanding and unpaid hereunder, the County agrees and covenants with the Noteholder
that Non -Ad Valorem Revenues shall cover projected Maximum Annual Debt Service on
the Draws and maximum annual debt service on Debt by at least 1.2x. The calculations
required by the immediately preceding sentence shall be determined using the average of
actual Non -Ad Valorem Revenues for the prior two Fiscal Years based on the County's
annual audited financial statements. For purposes of such calculation, Maximum Annual
Debt Service on the Draws and maximum annual debt service on Debt shall be done on
an aggregate basis whereby the annual debt service for each is combined and the overall
maximum is determined.
For the purposes of determining maximum annual debt service for Debt pursuant
to the covenants contained in this Section 2.08, annual debt service on Debt means, with
respect to Debt that bears interest at a fixed interest rate, the actual annual debt service,
and, with respect to Debt which bears interest at a variable interest rate, annual debt
service on such Debt shall be determined assuming that interest accrues on such Debt at
the current "Bond Buyer Revenue Bond Index as published in The Bond Buyer no more
than two weeks prior to any such calculation; provided, however, if any Debt, whether
bearing interest at a fixed or variable interest rate, constitutes Balloon Indebtedness, as
defined in the immediately following sentence, annual debt service on such Debt shall be
determined assuming such Debt is amortized over 25 years on an approximately level
debt service basis. For purposes of the foregoing sentence, "Balloon Indebtedness"
means Debt, 25% or more of the original principal of which matures during any one
Fiscal Year. In addition, with respect to debt service on any Debt which is subject to a
Qualified Hedge Agreement, interest on such Debt during the term of such Qualified
11
Hedge Agreement shall be deemed to be the Hedge Payments coming due during such
period of time. With respect to debt service on any Debt with respect to which the
County elects to receive or is otherwise entitled to receive direct subsidy payments from
the United States Department of Treasury, when determining the interest on such Debt
for any particular interest payment date the amount of the corresponding subsidy payment
shall be deducted from the amount of interest which is due and payable with respect to
such Debt on the interest payment date, but only to the extent that the County reasonably
believes that it will be in receipt of such subsidy payment on or prior to such interest
payment date.
[Remainder of page intentionally left blank]
12
ARTICLE III
DESCRIPTION OF MASTER NOTES AND DRAWS; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF. THE MASTER NOTES AND
DRAWS. (a) At or prior to the date the County makes the initial Draw against the Tax -
Exempt 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 MILLION AND
00 /100 DOLLARS ($ ) and shall be designated as the "Monroe County,
Florida Tax - Exempt Master Revenue Note (PNC Bank, National Association Line of
Credit), Series 2018 ". At or prior to the date the County makes the initial Draw against
the Taxable Master Note pursuant to Section 4.01(c) 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 MILLION AND
00 /100 DOLLARS . ($ ) and shall be designated as the "Monroe County,
Florida Taxable Master Revenue Note (PNC Bank, National Association Line of Credit),
Series 2018 ". The text of each 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 each Master Note. The provisions of the
form of Master Note are hereby incorporated in this Agreement.
(b) Each Master Note shall be dated the date of its delivery. Each 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 a Master Note shall cease to be such officer of the County before such Master
Note so signed and sealed shall have been actually delivered, such Master Note may
nevertheless be delivered as herein provided and may be issued as if the person who
signed or sealed such Master Note had not ceased to hold such office. Each Master Note
may be signed and sealed on behalf of the County by such person who at the actual time
of the execution of such Master Note shall hold the proper office, although at the date
such Master Note shall actually be delivered, such person may not have held such office
or may have been so authorized.
(c) Through the Final Draw Date, 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 amount which is outstanding and owed to the Noteholder
under this Agreement and against both Master Notes does not exceed
MILLION AND 00 /100 DOLLARS ($ ) 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. In such event, the County shall execute and deliver new
13
Master Note(s) to evidence such reduction. Each Draw made against the Master Notes
shall be designated as "[Tax- Exempt] [Taxable] Draw Number All Draws shall be
made by the County in accordance with Article IV hereof. All Draws made against the
Tax - Exempt Master Note in accordance with Article IV hereof shall bear interest from
the respective Date of Issuance of such Draws, at the applicable Tax - Exempt Interest
Rate, as the same may be adjusted pursuant to Section 3.03 hereof. All Draws made
against the Taxable Master Note in accordance with Article IV hereof shall bear interest
from the respective Date of Issuance of such Draws at the applicable Taxable Interest
Rate.
(d) Subject to the adjustments set forth in Section 3.03 hereof which shall
apply only to Draws against the Tax - Exempt Master Note, all Draws made against a
Master Note shall bear interest at the applicable Interest Rate. The Interest Rate shall be
adjusted as of each Reset Date to reflect changes in the Prime Rate or One -Month
LIBOR, as the case may be. Interest on all Draws made against the Master Notes shall be
payable semi - annually on April 1 and October 1 of each year (the "Interest Payment
Date ") so long as any amount under the Master Notes remains outstanding, interest on a
particular Draw commencing on the first Interest Payment Date which next succeeds by
[at least 30 days the date the Draw was made.] Principal of all Draws shall be due and
payable on the Final Maturity Date, as it may be extended in accordance with the
immediately succeeding paragraph. Each Draw must be in a principal amount no less
than $2,000,000 and must be made in integral multiples of $1,000,000 in excess thereof.
[Each Draw must be made on a Reset Date.] 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 Notes and deliver them to the County or shall
otherwise provide evidence to the County that such Master Notes have been cancelled.
Interest on all Draws made against the Master Notes shall be calculated on a 30 /360 -day
basis.
[Notwithstanding the foregoing, the County, in its sole discretion, may elect to
extend the Final Maturity Date of either or both of the Master Notes to ,
20. If the County makes such election, the outstanding principal amount of all Draws
against the Tax - Exempt Master Note an the outstanding principal amount of all
Draws against the Taxable Master Note as of the Final Maturity Date shall be amortized
through , 20_ on an approximately level annual debt service basis,
assuming for purposes of this calculation the applicable Interest Rate then in effect for
each Master Note, with principal being due and payable on 1 of each year
commencing 1, 20_. The principal amortization schedules are subject to the
Noteholder's prior written approval, such approval not to be unreasonably withheld. The
County shall provide the Noteholder with 30 days' prior notice of its election to so extend
the Final Maturity Date. The Noteholder and the County shall mutually agree to the
Interest Rate and any other terms and provisions related to each Master Note so extended
in accordance with this paragraph.]
14
(e) All payments of principal of and interest on Draws made against the Master
Notes 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 (i) in immediately available funds, (ii) by delivering to the Noteholder no
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.
(f) Commencing , 2018, during such period of time thereafter as
the aggregate principal amount of Draws that are outstanding hereunder is less than 50%
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 a 30/360 day basis) of the principal amount not drawn against the
Master Notes. Such fee shall be due and payable quarterly in arrears on the first day of
, and of each year so
long as the outstanding principal amount of Draws hereunder is less than 50% of the
maximum aggregate principal amount that may be drawn and outstanding hereunder. In
accordance with Section 3.01(c) 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.
Except as provided in this Section 3.01(f), the Noteholder shall pay for all of its costs,
including any legal fees and expenses, relating to servicing the line of credit. The County
shall pay legal fees of Bryant Miller & Olive, counsel for the Noteholder, in the amount
of $12,500 in connection with the initial issuance of the Master Notes.
SECTION 3.02. OPTIONAL PREPAYMENT. The County may prepay and
redeem any Draw or all Draws made against a 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 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 date, such principal amount of such Draw or portion
thereof shall continue to bear interest until payment thereof at the rate or rates provided
for in this Agreement.
15
SECTION 3.03. ADJUSTMENT TO TAX- EXEMPT INTEREST RATES.
In the event of a Determination of Taxability, the Tax - Exempt Interest Rate on all Draw
amounts outstanding under the Tax - Exempt Master Note, whether then outstanding or
funded after the Determination of Taxability, shall be immediately increased to the
Taxable Interest Rate; provided, however, such Taxable Interest Rate shall never exceed
the maximum rate allowable by law. Immediately upon a Determination of Taxability,
the County agrees to pay to the Noteholder, the Additional Amount. "Additional
Amount" means (i) the difference between (A) interest on the outstanding Draw amount
for the period commencing on the date on which the interest on such Draw (or portion
thereof) is deemed to have lost its tax - exempt status and ending on the effective date of
the adjustment of the Tax - Exempt Interest Rate to the Taxable Interest Rate (the "Taxable
Period ") at a rate per annum equal to the Taxable Interest Rate and (B) the aggregate
amount of interest paid on the Draw during the Taxable Period at the Tax - Exempt
Interest Rate applicable to the Draw prior to the adjustment to the Taxable Interest Rate,
plus (ii) any penalties, fines, fees, costs and interest paid or payable by the Noteholder to
the Internal Revenue Service by reason of such Determination of Taxability.
[Remainder of page intentionally left blank]
Ir6i
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 seven (7)
business days prior to the date specified for such Draw. 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. The Noteholder shall
have no obligation to fund any Draw under this Agreement unless the principal
amortization schedule contained in the applicable Draw Request is acceptable to it. 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 Tax - Exempt
Master Note, the County shall have caused to be delivered to the Noteholder the
following items in form and substance acceptable to the Noteholder:
(i) A fully executed Tax Certificate relating to the Tax - Exempt Master
Note and such initial Draw;
(ii) A copy of a completed and executed Form 8038 -G to be filed with
the Internal Revenue Service;
(iii) An opinion of Bond Counsel to the effect that (A) the Agreement
and the Tax- Exempt Master Note, as the case may be, have 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), and (B) certain standard assumptions, interest
on the Tax - Exempt Master Note and initial Draw shall be excluded from gross
income for federal income tax purposes and will not be treated as a preference
item for purposes of computing the alternative minimum tax imposed by
Section 55 of the Code (however, the interest on the Tax - Exempt Master Note is
taken into account in determining adjusted current earnings for the purpose of
computing the alternative minimum tax on certain corporations (as defined for
federal tax purposes));
(iv) An opinion of the County Attorney in form and substance acceptable
to the Noteholder and Bond Counsel; and
17
(v) 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) On or before the date the initial Draw is*made against the Taxable Master
Note, the County shall have caused to be delivered to the Noteholder the following items
in form and substance acceptable to the Noteholder:
(i) An opinion of Bond Counsel to the effect that the Agreement and the
Taxable Master Note, as the case may be, have 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.
(d) Upon satisfaction of the conditions set forth in paragraphs (a) and (b)
and/or (c) 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 both Master Notes does not exceed MILLION AND 00 /100
DOLLARS ($ ) at any one time. The County shall apply the proceeds of each
Draw to finance or refinance, or reimburse itself for prior expenditures incurred for, costs
of Extraordinary Expenditures and costs related to the preparation, execution and delivery
of this Agreement and the issuance of the Master Notes.
(e) Each Draw Request shall constitute a covenant and reaffirmation of the
County that the warranties and representations in this Agreement and the Master Notes
are still true and correct, that the Resolution, Master Notes and this Agreement are in full
force and effect and have not been amended, modified or superseded except as provided
pursuant 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. Each Draw Request shall be subject
to credit approval of the Noteholder.
42
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 Article II of 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 Article II of 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 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
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; or
(e) 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
19
agreement contained herein or in the Master Notes, or to exercise any right, power or
remedy consequent upon a breach 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.
(b) If an Event of Default occurs, the County shall also be obligated to pay as
part of the indebtedness evidenced by the Master Notes and Draws thereunder, 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 the
entire outstanding principal amount of all Draws made against the Master Notes shall
bear interest at the Default Rate and the Noteholder shall not be obligated to honor any
further Draws hereunder.
[Remainder of page intentionally left blank]
20
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THE AGREEMENT. This Agreement shall not be amended, changed or modified
without the prior written consent of the Noteholder and the County.
SECTION 6.02. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which, when so executed and delivered, shall be an
original; but such counterparts shall together constitute but one and the same Agreement,
and, in making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
SECTION 6.03. SEVERABILITY. This Agreement and the Master Notes
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.
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 a Master Note. The commitment of the Noteholder to honor Draws
in accordance with the terms hereof shall expire on the Final Draw Date. If the County
wants the Final Draw Date extended it shall request such extension no later than 45 days
prior to the Final Draw Date. The Final Draw Date may be extended upon mutual written
agreement between the County and the Noteholder; provided, however, the Noteholder is
not obligated to grant such extension. Upon any such extension, the County and the
Noteholder shall amend this Agreement and the Master Notes to evidence and
accommodate such extension.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the
County becomes aware of the same, the County will notify the Noteholder of (a) any
change in any material fact or circumstance represented or warranted warranted by the County in
this Agreement or in connection with the issuance of the Master Notes, 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.
21
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 Monroe County, Florida, 500 Whitehead
Street, Key West, Florida 33040, Attention: Monroe County Clerk of Court, with a copy
to: County Administrator, 1100 Simonton Street, Suite 205, Key West, Florida 33040,
and to the Noteholder, PNC Bank, National Association,
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.
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 Notes may be assigned in whole to another
financial institution 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 Notes 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 Notes. This Agreement and the Master Notes 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,
knowingly, voluntarily and intentionally waives 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 Notes 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 substantive laws of the State of Florida shall govern this Agreement.
The County submits to the jurisdiction of Florida courts and federal courts and agrees that
venue for any suit concerning this Agreement shall be in Monroe County, Florida and the
Southern District of Florida.
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
22
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth herein.
(SEAL)
MONROE COUNTY, FLORIDA
um
Mayor
ATTEST:
am
Clerk of the Circuit Court and
Ex- Officio Clerk to the Board
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
County Attorney's Office
PNC BANK, NATIONAL ASSOCIATION
By: _
Name:
Title:
23
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 January _, 2018 (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,
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.
4. The County has complied in all respects with the terms and provisions of
the Resolution, the Master Notes and the Agreement and the County is not in default
under any provisions of either the Resolution or the Agreement.
5. All of the representations and warranties contained in the Agreement, the
Master Notes and the Resolution are true and correct as of the date hereof.
6. The Extraordinary Expenditures to be financed or refinanced with proceeds
of the Draw has been duly authorized and approved by the Board.
7. The County is in full compliance with the Tax Certificate relating to the
Tax - Exempt Master Note.
8. 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.
9. The proceeds of the Draw will be used solely to finance or refinance
Extraordinary Expenditures to be funded by the Draw and described in the Draw Request
referred to in Paragraph 8 above.
10. All terms, conditions, representations, warranties and covenants contained
in the Agreement, the Resolution and the Master Notes are incorporated by reference as if
fully restated herein. -
A -1
11. Upon the funding of the Draw, the County shall be in compliance with the
anti- dilution test set forth in Section 2.08 of the Agreement.
Executed as of this day of
MONROE COUNTY, FLORIDA
By: _
Title:
A -2
EXHIBIT B
UNITED STATES OF AMERICA
STATE OF FLORIDA'
MONROE COUNTY, FLORIDA
[TAX - EXEMPT] [TAXABLE] MASTER REVENUE NOTE
(PNC Bank, National Association Line of Credit), Series 2018
Final
Interest Rate Date of Issuance Maturity Date
Variable , 20 (subject to
extension as provided herein)
MONROE COUNTY, FLORIDA (the "County "), for value received, hereby
promises to pay, solely from the Designated Revenues described in the within mentioned
Agreement, to the order of PNC BANK, NATIONAL ASSOCIATION, or its successors
or assigns (the "Noteholder "), the lesser of the principal sum of MILLION
AND 00 /100 DOLLARS ($ ) 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 January , 2018 (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 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]) semi - annually on
April 1 and October 1 of each year, commencing with respect to each advance hereunder
on the first April 1 or October 1 that follows the date of such advance [by at least 30
days,] until such Advanced Amount shall have been paid. Interest shall be calculated on
the basis of a The Advanced Amount hereof shall be payable on the Final Maturity Date
(as the same may be extended as provided in the immediately succeeding paragraph and
in the hereinafter defined Agreement). 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.
[Notwithstanding the foregoing, the County, in its sole discretion, may elect to
extend the Final Maturity Date of this Note to , 20_. If the County
makes such election, the outstanding Advanced Amount as of the original Final Maturity
Date shall be amortized through , 20_ on an approximately level
annual debt service basis, assuming for purposes of this calculation the applicable Interest
Rate then in effect for this Note, with principal being due and payable on 1
of each year commencing 1, 20_. The principal amortization schedule is
subject to the Noteholder's prior written approval, such approval not to be unreasonably
withheld. The County shall provide the No with 30 days' prior notice of its
election to so extend the Final Maturity Date. The Noteholder and the County shall
mutually agree to the Interest Rate and any other terms and provisions related to this Note
so extended in accordance with this paragraph.]
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 January , 2018 (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 term used in this Note and not otherwise
defined shall have the meaning ascribed to such term in the Agreement.
This Note is being issued to finance or refinance the costs of Extraordinary
Expenditures, as described in the Agreement. This Note is secured by the County's
covenant contained, in Section 2.06 of the Agreement to budget and appropriate legally
available Non -Ad Valorem Revenues and a pledge of the Designated Revenues, all as
provided in the Agreement. This Note shall be payable from the Designated Revenues as
described in the Agreement.
This Note shall bear interest at the Interest Rate on a 30 /360 -day year basis. [Such
Interest Rate is subject to adjustment as provided in Section 3.03 of 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 (as defined in the Agreement) against
the Note. Upon the occurrence and during the continuation of an Event of Default (as
defined in the Agreement), this Note shall bear interest at the Default Rate (as defined in
the Agreement).
Notwithstanding any provision in this Note to the contrary, in no event shall the
interest contracted for, charged or received in connection with this Note (including any
other costs or considerations that constitute interest under the laws of the State of Florida
which are contracted for, charged or received) exceed the maximum rate of interest
allowed under the State of Florida as presently in effect.
All payments made by the County hereon shall apply first to accrued interest, and
then to the principal amount then due on this Note.
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS
BOND THAT THE FULL FAITH AND CREDIT OF THE COUNTY, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF, ARE
NOT PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON
THIS BOND AND THAT SUCH HOLDER SHALL NEVER HAVE THE RIGHT TO
ME
REQUIRE OR COMPEL THE EXERCISE OF ANY TAXING POWER OF THE
COUNTY, THE STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION OR
AGENCY THEREOF, TO THE PAYMENT OF SUCH PRINCIPAL AND INTEREST.
THIS BOND AND THE OBLIGATION EVIDENCED HEREBY SHALL NOT
CONSTITUTE A LIEN UPON ANY PROPERTY OF THE COUNTY, BUT SHALL
CONSTITUTE A LIEN ONLY ON, AND SHALL BE PAYABLE SOLELY FROM,
THE DESIGNATED REVENUES TO THE EXTENT AND IN THE MANNER
PROVIDED IN THE AGREEMENT.
The rights and obligations of the Noteholder hereunder and under the Agreement
may be assigned in whole to another financial institution prior to the end of the period
during which Draws (as defined in the Agreement) 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,
on any Reset Date by paying to the Noteholder the Advanced Amount to be prepaid,
together with the unpaid interest accrued on the Advanced Amount so prepaid to the date
of such prepayment, without any prepayment premium or penalty. Each prepayment
shall be made on such 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) days prior thereto
specifying the principal amount of the Advanced Amount to be prepaid and the date of
such prepayment.
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
I' C
imprinted 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)
LOW
Mayor
Attest:
Lo
Clerk of the Circuit Court and
Ex- Officio Clerk to the Board
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
County Attorney's Office
I: Ell !
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 January _, 2018 (the "Agreement "), between the County
and PNC Bank, National Association (the "Noteholder ") and in connection with the
Monroe County, Florida [Tax- Exempt] [Taxable] Master Revenue Note (PNC Bank,
National Association Line of Credit), Series 2018, dated as of , 20 (the
"Note ").
Type of Draw: [Tax- Exempt] [Taxable]
Draw Amount: $
Date of Issuance:
Description of Extraordinary Expenditures:
* Upon any prepayment in accordance with the Agreement, the principal amortization
shall be revised in accordance with the mutual agreement of the County and the
Noteholder. In the absence of any such agreement, prepayments shall be applied in
inverse order of maturity.
Executed and made a part of the Agreement and the Note as of this day of
MONROE COUNTY, FLORIDA
By: _
Title:
APPROVED:
IC
C -1
Title:
C -2