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HomeMy WebLinkAbout03-217 RESOLUTION NO. 03-217 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA, PROVIDING FOR THE BORROWING OF NOT EXCEEDING $3,000,000 TO PROVIDE FINANCING FOR THE COST OF ACQUIRING ENVIRONMENTALLY SENSITIVE LANDS; PROVIDING FOR THE APPROVAL OF A PROPOSAL TO MAKE A TERM LOAN TO THE COUNTY FOR SUCH PURPOSE; PROVIDING FOR THE ISSUANCE OF AN IMPROVEMENT REVENUE NOTE, SERIES 2003B (ENVIRONMENT ALLY SENSITIVE LANDS), AS EVIDENCE OF THE COUNTY'S OBLIGATION TO REPAY SUCH TERM LOAN; PROVIDING AS SECURITY FOR THE PAYMENT OF THE NOTE A COVENANT TO BUDGET AND APPROPRIATE FROM LEGALLY AVAILABLE NON-AD V ALOREM REVENUES OF THE COUNTY; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BETWEEN THE COUNTY AND THE BANK; AUTHORIZING FURTHER OFFICIAL ACTION IN CONNECTION WITH THE DELIVERY OF THE NOTE AND THE LOAN AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Act. Section 2. Definitions. The following terms shall have the following meanings when used in this resolution unless the context clearly requires otherwise. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Loan Agreement. "Act" means Chapter 125, Florida Statutes as amended, Ordinance No. 87-77 of the Board, as amended, and other applicable provisions oflaw. "Bank" means SunTrust Bank, Orlando, Florida. "Board" means the Board of County Commissioners, as the governing body of the County. "Chairman" means the Chairman of the Board, or in the Chairman's absence, the Vice Chairman. "Clerk" means the Clerk of the Circuit Court of St. Lucie County, Florida, or, in the Clerk's absence, any Deputy Clerk. "County" means St. Lucie County, Florida, a political subdivision of the State of Florida. " "County Administrator" means the County Administrator of the County. "Covenant" means the covenant to budget and appropriate moneys to pay the Note contained in Section 10 of the Loan Agreement. "Loan" means the advance of moneys from the Bank to the County pursuant to the Loan Agreement. "Loan Agreement" means the Loan Agreement between the Bank and the County setting forth the terms and details of the Loan, in substantially the form attached hereto as Exhibit A, with such modifications and changes thereto as shall be approved by the Chairman, upon the advice of the County Attorney, such approval to be evidenced by the Chairman's execution thereof. "Note" means the Improvement Revenue Note, Series 2003B (Environmentally Sensitive Lands), of the County, which shall be in substantially the form attached to the Loan Agreement as Exhibit A, with such modifications and changes thereto as shall be approved by the Chairman, upon the advice of the County Attorney, such approval to be evidenced by the Chairman's execution thereof. "Paying Agent" means the Clerk of the Circuit Court of the County. "Project" means the acquisition of environmentally sensitive lands within the County. "Proposal" means the proposal ofthe Bank, a copy of which is attached hereto as Exhibit B. "Project Costs" means all or a portion of the cost of undertaking the Project including, but not limited to: engineering, legal, accounting, and financial expenses; expenses for estimates of costs and of revenues; expenses for plans, specifications and surveys; fees of fiscal agents, financial advisors or consultants; administrative expenses relating solely to the Project; reimbursement to the County for any sums heretofore expended for the foregoing purposes to the extent permitted under the Code; and such other costs and expenses as may be necessary or incidental to the financing of the Project. "Resolution" means this resolution and all resolutions amendatory hereof and supplemental hereto. Section 3. Findings. It is hereby found, declared, and determined by the Board: (A) It is necessary and in the best interests of the health, safety and welfare of the County and its inhabitants that the County undertake the Project. The County is authorized pursuant to the provisions of the Act to undertake the Project. (B) The County is without adequate, currently available funds to pay Project Costs, and it is necessary and desirable and in the best interests of the County that it borrow the moneys 2 10159VJ/28902-00001/R-ENVIRON LANDS 20038 '. .' necessary for the Project. The County is authorized pursuant to the provisions of the Act to borrow moneys necessary to pay the Project Costs. (C) The County has requested and expects to receive proposals from the Bank in connection with the Project, and determines that it is in the best interests of the County to accept the Proposal of the Banle (D) It is necessary and desirable and in the best interests of the County that it enter into the Covenant to secure repayment of the Loan. (E) It is necessary and desirable and in the best interests of the County to authorize and approve the execution and delivery of the Loan Agreement and the Note, and the taking of all other action in connection with the consummation ofthe Loan. Section 4. Authorization of Note. Subject and pursuant to the provisions hereof and in accordance with the provisions ofthe Loan Agreement and the Proposal, the issuance by the County of its hnprovement Revenue Note, Series 2003B (Environmentally Sensitive Lands), in a principal amount of $3,000,000, to be dated, to bear interest, to be payable, to mature, to be subject to redemption and to have such other characteristics as provided in the Loan Agreement and the Proposal, and to be secured solely by the Covenant, is hereby authorized. Section 5. Approval of Proposal. The Proposal is hereby accepted. The County Attorney and Bond Counsel, are hereby authorized and directed to proceed to prepare the necessary documents to consummate the Loan. Section 6. Approval of Form of Loan Agreement and Note. The Loan Agreement and the Note are hereby approved, and the Chairman and Clerk are hereby authorized to execute and deliver the Loan Agreement and the Note to the Bank. Section 7. Authorization of Other Action. The Chairman, the Clerk, the County Administrator, the Management and Budget Director, and the County Attorney are each designated agents of the County in connection with the execution and delivery of the Loan Agreement and the Note and are authorized and empowered, collectively or individually, to take all action and steps to execute and deliver any and all instruments, documents or contracts on behalf of the County which are necessary or desirable in connection with the execution and delivery of the Loan Agreement and the Note to the Bank, including, but not limited to, the making of modifications to the Loan Agreement and the Note to conform the provisions thereofto the provisions ofthe Proposal. Section 8. Application of Proceeds of Loan. The proceeds of the Loan shall be applied solely to the payment of Project Costs. Section 9. Repeal of Inconsistent Provisions. All resolutions or parts thereof in conflict with this resolution are hereby repealed to the extent of such conflict. 3 101 59V 1/28902-0000 I/R-ENVIRON LANDS 2003B ,,' Section 10. Severability. If anyone or more ofthe covenants, agreements, or provisions of this resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements, or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and in no way affect the validity of all other provisions of the Resolution or of the Note or Loan Agreement delivered hereunder. Section 11. Effective Date. This resolution shall take effect immediately upon its adoption. Passed and Adopted this 9th day of September 2003, at a regular meeting duly called and held. ST. LUCIE COUNTY, FLORIGA (SEAL) ATTEST: /" By: ~.~ Chairman the Board ofCoUi'lty Commissioners TO FORM AND 4 10159VI/28902-00001/R-ENVIRON LANDS 2003B 10159V 1/28902-0000 I/R-ENVIRON LANDS 2003B EXHIBIT A FORM OF LOAN AGREEMENT A-I 9769v 1/28902-00090/ A-LOAN AGREE LOAN AGREEMENT between ST. LUCIE COUNTY, FLORIDA and SUNTRUST BANK Dated September 15,2003 Relating to St. Lucie County, Florida $3,000,000 Improvement Revenue Note, Series 2003B (Environmentally Sensitive Lands) '. TABLE OF CONTENTS Page SECTION 1. DEFINITIONS. ...... ...... ............ ...... ....... .... ...... .................. ....... ....... ....... ....... ...... ...... .............. 1 SECTION 2. INTERPRETATION............................................................................................................... 4 SECTION 3. THE LOAN ............................................................................................................................ 4 SECTION 4. DESCRIPTION OF NOTE .....................................................................................................4 SECTION 5. EXECUTION OF NOTE ........................................................................................................4 SECTION 6. REGISTRATION AND TRANSFER OF NOTE.................................................................... 4 SECTION 7. NOTE MUTILATED, DESTROYED, STOLEN OR LOST................................................... 5 SECTION 8. FORM OF NOTE ...................................................................................................................6 SECTION 9. SECURITY FOR NOTE; NOTE NOT DEBT OF THE COUNTY......................................... 6 SECTION 10. COVENANTS OF THE COUNTY....................................................................................... 6 SECTION 11. REPRESENTATIONS AND WARRANTIES...................................................................... 7 SECTION 12. CONDITIONS PRECEDENT............................................................................................... 8 SECTION 13. NOTICES........................................................................................................................... .. 8 SECTION 14. EVENTS OF DEFAULT DEFINED..................................................................................... 9 SECTION 15. REMEDIES........................................................................................................................ 10 SECTION 16. NO RECOURSE................................................................................................................. 10 SECTION 17. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS ............................ 10 SECTION 18. AMENDMENTS, CHANGES AND MODIFICATIONS................................................... 10 SECTION 19. BINDING EFFECT............................................................................................................ 11 SECTION 20. SEVERABILITy................................................................................................................ 11 SECTION 21. EXECUTION IN COUNTERPARTS ......................................................... ....... ................. 12 SECTION 22. APPLICABLE LAW.......................................................................................................... 12 9769vl/28902-00090/ A-LOAN AGREE '. This TERM LOAN AGREEMENT is made and entered into as of September 15, 2003, by and between ST. LUCIE COUNTY, FLORIDA (the "County"), and SUNTRUST BANK, a Georgia banking corporation (the "Bank"). WITNESSETH: Whereas, the County has previously determined that it is necessary, desirable and in the best interests of the County and its inhabitants that the County undertake the Project hereinafter described, and that the Project will serve public purposes of the County; and Whereas, the County has determined that it is without adequate currently available funds to pay the Project Costs and that it will be necessary that funds be made available to the County in order to undertake the Proj ect; and Whereas, pursuant to the Proposal, a copy of which is attached hereto as Exhibit B, the Bank has proposed to lend the County the aggregate principal amount of $3,000,000 to finance the Project Costs; and Whereas, the County has determined that it is in the best interest of the health, safety, and welfare of the County and the inhabitants thereof that the County enter into the Covenant to secure the obligation of the County to repay the principal of and interest on the Note when due and to make the other payments provided for herein; and Whereas, the obligation of the County to repay principal of and interest on the Note will not constitute a general obligation or indebtedness of the County as a "bond" within the meaning of any provision of the Constitution of the State, but shall be and is hereby declared to be a special, limited obligation ofthe County, secured solely by the Covenant in the manner provided herein; and Whereas, the County is not authorized and cannot be compelled to levy taxes on any property of or in the County to pay the principal of or interest on the Note or to make any other payments provided for herein. Furthermore, neither the Note nor the interest thereon shall be or constitute a lien upon the Project or upon any other property of or in the County; Now, Therefore, in consideration of the premises and the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: Section 1. Definitions. Capitalized terms used and not defined herein shall have the meaning assigned in Schedule1 and Schedule 2 to Exhibit A hereto. The following terms shall have the following meanings herein, unless the text otherwise expressly requires: "Act" means Chapter 125, Part I, Florida Statutes, as amended, Ordinance No. 87-77 of the Board, as amended, and other applicable provisions of law. "Authorized County Representative" means the County Administrator or his designee. 9769vl/28902-00090/A-LOAN AGREE "Authorized Investments" means any investment, obligation, agreement or other financial instrument to the extent not inconsistent with the terms of the investment policy of the County and applicable law. "Bank" means SunTrust Bank, a Georgia banking association, with offices located at 200 S. Orange Avenue, Orlando, Florida. "Board" means the Board of County Commissioners of the County, as the governing body ofthe County. "Bond Counsel" means Squire, Sanders & Dempsey L.L.P. "Business Day" means any day of the year other than a day on which the Bank, or the County are lawfully closed for business. "Chairman" means the Chairman of the Board, or, in the Chairman's absence, the Vice- Chairman of the Board, or such other person as may be duly authorized to act on the Chairman's behalf. "Clerk" means the Clerk of the Circuit Court for St. Lucie, County, or, in the Clerk's absence, any Deputy Clerk duly authorized to execute documents or take other action, as the case may be, on the Clerk's behalf. "Code" means the Internal Revenue Code of 1986, as amended. "County" means St. Lucie County, Florida. "County Administrator" means the County Administrator, as the chief operating officer of the County. "Covenant" means the covenant of the Board to budget and appropriate funds to pay the Note and the interest thereon, as set forth in Section 10(A) hereof. "Default" means an Event of Default as defined and described in Section 16 hereof. "Disbursement Date" means September 15,2003. "Fiscal Year" means the period from each October 1 to the succeeding September 30. "Loan" means the advance of moneys from the Bank to the County pursuant to this Loan Agreement. "Loan Agreement" means this agreement between the Bank and the County setting forth the terms and details ofthe Loan. 2 9769vl/28902-00090/ A-LOAN AGREE " "Non-Ad Valorem Revenues" means all revenues received by the County (a) from sources other than the levy of ad valorem taxes upon property, and (b) not restricted by law so as to be unable to be applied to pay the principal of and interest on the Note. "Note" means the Improvement Revenue Note, Series 2003B (Environmentally Sensitive Lands), of the County, substantially in the form attached hereto as Exhibit A. "Paying Agent" means the Clerk of the Circuit Court of the County. "Person" or words importing persons, means firms, associations, partnerships (including without limitation, general and limited partnerships), joint ventures, societies, estates, trusts, corporations, public or governmental bodies, other legal entities, and natural persons. "Pledged Revenues" means the Non-Ad Valorem Revenues budgeted, appropriated and deposited into the Sinking Fund pursuant to the Covenant. "Principal Amount" means Three Million Dollars ($3,000,000). "Project" means the acquisition of environmentally sensitive lands within the County. "Project Costs" means all or a portion of the cost of undertaking the Project including, but not limited to: engineering, legal, accounting, and financial expenses; expenses for estimates of costs and of revenues; expenses for plans, specifications and surveys; fees of fiscal agents, financial advisors or consultants; administrative expenses relating solely to the Project; reimbursement to the County for any sums heretofore expended for the foregoing purposes to the extent permitted under the Code; and such other costs and expenses as may be necessary or incidental to the financing of the Project. "Register" means the books maintained by the Registrar in which are recorded the name and address of the Registered Owner of the Note. "Registered Owner" means the person in whose name the ownership of the Note IS registered on the books maintained by the Registrar. The Registered Owner shall be the Ban1e "Registrar" means the Person maintaining the Register. The Registrar shall initially be the Clerk. "Regulations" means the Income Tax Regulations promulgated by the Internal Revenue Service under Sections 103 and 141 through 150 ofthe Code. "Resolution" means Resolution No. 03-217, adopted by the Board on September 9, 2003. "Sinking Fund" means the fund created pursuant to Section 9 hereof. "State" means the State of Florida. 3 9769vl/28902-000901 A-LOAN AGREE t, Section 2. 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. This Loan Agreement and all the terms and provisions hereof (a) have been negotiated between the County and the Bank; (b) shall not be construed strictly in favor of or against either party hereto; and (c) shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. Section 3. The Loan. A. Loan. The Bank hereby makes and the County hereby accepts the Loan, upon the terms and conditions set forth herein. B. Disbursement of Proceeds. Proceeds of the Loan shall be made available to the County by deposit to or for the order of the County by 2:00 p.m. on the Disbursement Date in immediately available funds. Section 4. Description Of Note. The obligation of the County to repay the Loan shall be evidenced by the Note. The Note shall be dated as of the Disbursement Date; shall mature as set forth therein; shall be in registered form; and shall bear interest from its date until payment of the principal amount thereof, at the Interest Rate. Interest shall be payable as set forth on Exhibit A, calculated on the basis of 360-day year consisting of twelve 30-day months, from its date as to principal at the Interest Rate shown on Exhibit A hereto. The Note may be prepaid in whole or in part prior to maturity upon the terms and conditions contained in the Note. Section 5. Execution of Note. The Note shall be executed in the name of the County by the Chairman and attested by the Clerk, and its corporate seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Note may be signed and sealed on behalf of the County by any person who at the actual time of the execution of the Note shall hold the appropriate office in the County, although at the date thereof the person may not have been so authorized. The Note may be executed by the facsimile signatures of the Chairman and/or Clerk, provided that at least one of the foregoing signatures must be a manual signature. Section 6. Registration and Transfer of Note. The Note shall be and shall have all the qualities and incidents of a negotiable instrument under the Uniform Commercial Code-Investment Securities Laws of the State of Florida, and each Registered Owner, in accepting the Note, shall be conclusively deemed to have agreed that such Note shall be and have all of the qualities and incidents of negotiable instruments thereunder. There shall be a Registrar who shall be responsible for maintaining the Register. The person in whose name ownership of the Note is shown on the Register shall be deemed the Registered Owner thereof by the County and the Registrar, who may treat the Registered Owner as the absolute owner of the Note for all purposes, whether or not the Note shall be overdue, and any notice to the contrary shall not be binding upon the County or the Registrar. 4 9769vl/28902-00090/ A-LOAN AGREE '. Ownership of the Note may be transferred only upon the Register. Upon surrender to the Registrar for transfer or exchange of the Note accompanied by an assignment or written authorization for exchange, whichever is applicable, duly executed by the Registered Owner or its attorney duly authorized in writing, the Registrar shall deliver in the name of the Registered Owner or the transferee or transferees, as the case may be, a new fully registered Note of the same amount, maturity and interest rate as the Note surrendered. The Note presented for transfer, exchange, redemption or payment (if so required by the County or the Registrar) shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the County or the Registrar, duly executed by the Registered Owner or by his duly authorized attorney. The County and the Registrar may charge the Registered Owner a sum sufficient to reimburse them for any expenses incurred in making any exchange or transfer after the first such exchange or transfer following the delivery of such Note. The Registrar or the County may also require payment from the Registered Owner or his transferee, as the case may be, of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Such charges and expenses shall be paid before any such new Note shall be delivered. The new Note delivered upon any transfer or exchange shall be a valid obligation of the County, evidencing the same debt as the Note surrendered, shall be secured under this Loan Agreement, and shall be entitled to all of the security and benefits hereof to the same extent as the Note surrendered. Whenever the Note shall be delivered to the Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, such Note shall be cancelled and destroyed by the Registrar, and counterparts of a certificate of destruction evidencing such destruction shall be furnished to the County. Section 7. Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall be mutilated, or be destroyed, stolen or lost, upon the Registered Owner furnishing the Registrar satisfactory indemnity and complying with such other reasonable regulations and conditions as the County may prescribe and paying such expenses as the County may incur, the Registrar shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in lieu of or substitution for the Note, if any, destroyed, stolen or lost, or in exchange and substitution for such mutilated Note, upon surrender of such mutilated Note, if any, to the Registrar and the cancellation thereof; provided however, if the Note shall have matured or be about to mature, instead of issuing a substitute Note, the County may pay the same, upon being indemnified as aforesaid, and if such Note be lost, stolen or destroyed, without surrender thereof. Any Note surrendered under the terms of this Section 7 shall be cancelled by the Registrar. Any such new Note issued pursuant to this section shall constitute an original, additional contractual obligation on the part of the County whether or not, as to the new Note, the lost, stolen or destroyed Note be at any time found by anyone, and such new Note shall be entitled to equal and proportionate benefits and rights as to security for payment to the same extent as the Note originally issued hereunder. 5 9769vl/28902-00090/ A-LOAN AGREE " Section 8. Form of Note. The Note shall be in substantially the form of Exhibit A hereto, with such variations, omissions and insertions as may be necessary, desirable and authorized or permitted by this Loan Agreement. Section 9. Security for Note; Note Not Debt of the County. The payment ofthe principal of and interest on the Note shall be secured forthwith solely by a lien upon and pledge of the Pledged Revenues. The principal of and interest on the Note shall not constitute a general obligation or indebtedness ofthe County, and the Registered Owner shall never have the right to or compel the levy of taxes upon any property of or in the County for the payment of the principal of and interest on the Note. The Note shall not be secured by, nor constitute, a lien upon the Project or upon any money of or in the County, but shall be secured solely by the Pledged Revenues in the manner provided herein. There is hereby created and established an "Improvement Revenue Note, Series 2003B (Environmentally Sensitive Lands) Sinking Fund', which shall be maintained on the books of the County as a separate account (but need not be maintained as a separate bank or deposit account). On or before each Payment Date, the County will, pursuant to the Covenant, budget, appropriate and deposit into the Sinking Fund from Non-Ad Valorem Revenues amounts sufficient to pay the principal and interest due in the Note on such Payment Date. Moneys in the Sinking Fund shall be used only to pay principal of and interest on the Note and for no other purpose. Section 10. Covenants of the County. Until the principal of and interest on the Note shall have been paid in full or until provision for payment of the Note shall have been made in accordance with the provisions of this Loan Agreement, the County covenants with the Registered Owner of the Note as follows: A. Covenant to Budget and Appropriate. The County will budget and appropriate in each Fiscal Year from Non-Ad Valorem Revenues amounts sufficient to provide for the timely payment of the principal of and interest on the Note. The County will include in its annual budget, by amendment if necessary, such amounts of Non-Ad Valorem Revenues as shall be needed in order to provide for payment of the principal of and interest on the Note, when due. The obligation of the County under this Covenant shall be deemed to be junior and subordinate to any lien upon any specific source of Non-Ad Valorem Revenues, whether now existing or hereafter created, and shall not be deemed to preclude the County from hereafter pledging any specific source of Non-Ad Valorem Revenues to secure the payment of any debt or obligation of the County hereafter issued, so long as such future issuance will not have the effect of impairing the obligation of the County under this Loan Agreement and the Note or of making unavailable sufficient amounts of reasonably anticipated Non-Ad Valorem Revenues to make timely payment of the principal of and interest on the Note. B. Payments. The County will make timely payments of all principal and interest on the Note when due by wire transfer to the Bank. 6 9769v1/28902-00090/ A-LOAN AGREE , . C. Financial Statements. Not later than 210 days following the end of each Fiscal Year, the County will provide the Bank a copy of the audited financial statements of the County, and if prepared, the Comprehensive Annual Financial Report. D. Annual Budget and Other Information. The County will prepare its annual budget in accordance with the Act, and will provide to the Bank (i) a copy of its final annual budget for each Fiscal Year within 30 days of adoption thereof by the Board and (ii) such other public information as the Bank may reasonably request. E. Tax Compliance. The County will take all actions necessary to maintain the exclusion from gross income for purposes of the Code of interest on the Note to the same extent as on the date of issuance ofthe Note. F. Miscellaneous. [To be inserted to reflect conditions in Proposal]. Section 11. Representations and Warranties. The County represents and warrants to the Bank that: A. Organization. The County is a political subdivision, duly organized and existing under the laws of the State of Florida. B. Authorization of Loan Agreement and Related Documents. The County has the power and has taken all necessary action to authorize the execution and delivery of and the performance by the County of its obligations under, this Loan Agreement and the Note in accordance with their respective terms. This Loan Agreement and the Note have been duly executed and delivered by the County and are valid and binding obligations of the County, enforceable against the County in accordance with their respective terms, except to the extent that such enforcement may be limited by laws regarding bankruptcy, insolvency, reorganization or moratorium applicable to the County or by general principles of equity regarding the availability of specific performance. C. Non-Ad Valorem Revenues. The County currently receives the Non-Ad Valorem Revenues and is legally entitled to covenant to budget and appropriate from such Non-Ad Valorem Revenues amounts necessary to pay the principal of and interest on the Note when due. The Non- Ad Valorem Revenues are estimated to be sufficient to pay the principal of and interest on the Note as the same becomes due. The County will take all lawful action necessary to enable the County to continue to receive the Non-Ad Valorem Revenues in at least the amounts necessary to pay principal and interest on the Note to the extent not paid from some other source; provided that the County shall not be required to maintain any specific program or provide any particular services that maybe a source of Non-Ad Valorem Revenues. D. Financial Statements. The financial statements of the County for the Fiscal Year ended September 30, 2002, previously provided to the Bank were prepared in accordance with generally accepted accounting principles and present fairly the financial condition of the County as of such date and the results of its operations for the period then ended. Since such date, there has 7 9769vl/28902-00090/ A-LOAN AGREE been no material adverse change in the financial condition, revenues (including, without limitation, the Non Ad Valorem Revenues), properties or operations ofthe County. Section 12. Conditions Precedent. The obligation ofthe Bank to make the Loan is subject to the satisfaction of each of the following conditions precedent on or before the Disbursement Date: A. Action. The Bank shall have received a copy of the Resolution certified as complete and correct as of the closing date, together with an executed Loan Agreement, the executed Note, and the customary closing certificates. B. Incumbency of Officers. The Bank shall have received an incumbency certificate of the County in respect of each of the officers who is authorized to sign this Loan Agreement and the related fmancing documents on behalf of the County. C. Opinion of County Attorney. The Bank shall have received a written opinion of the County Attorney as to (1) the corporate existence of the County; (2) the due adoption of the Resolution; (3) the due authorization and execution of this Loan Agreement and the Note and the related financing documents; and (4) the absence of litigation against the County relating to (a) its existence or powers, (b) the receipt and application of the Non-Ad Valorem Revenues, or (c) the proceedings for the authorization and issuance of the Note, in form and substance satisfactory to the Bank. D. Opinion of Bond Counsel. The Bank shall have received an approving opinion of Bond Counselor, alternatively, a letter from Bond Counsel authorizing the Bank to rely on the approving opinion of Bond Counsel delivered to the County in respect to the Note to the same extent as if such opinion were addressed to the Bank. E. Representations and Warranties; No Default. The representations and warranties made by the County herein shall be true and correct in all material respects on and as of the Disbursement Date, as if made on and as of such date; no Default shall have occurred and be continuing as of the Disbursement Date or will result from the consummation of the Loan; and the Bank shall have received a certificate from the County to the foregoing effect. F. Other Documents. The Bank shall have received such other documents, certificates and opinions as the Bank or its counsel shall have reasonably requested. Section 13. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered, delivered by telecopier, mailed by registered or certified mail, postage prepaid, or delivered by courier service to the parties at the following addresses: 8 9769vl/28902-00090/ A-LOAN AGREE County: St. Lucie County, Florida County Administration Building 2300 Virginia Avenue Fort Pierce, Florida 34982 Attention: County Administrator, with a required copy to the County Attorney at the same address Banle SunTrust Bank, Central Florida 200 South Orange Avenue Orlando, Florida 32801 Attention: Commercial Loan Department Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Communication via telecopier shall be confirmed by delivery by hand, mail, or courier, as specified above, of an original promptly after such communication by telecopier. Section 14. Events Of Default Defined. The following shall be "Events of Default" under this Loan Agreement, and the terms "Default" and "Events of Default" shall mean (except where the context clearly indicates otherwise), anyone or more ofthe following events: A. Failure by the County to make any payment of principal of or interest on the Note within three (3) days ofthe applicable Payment Date. B. Failure by the County to include in its annual budget or to appropriate and deposit into the Sinking Fund the amounts required to pay the principal of and interest on the Note in the Fiscal Year to which the annual budget relates. C. Failure by the County to observe and perform any other covenant, condition or agreement on its part to be observed or performed under this Loan Agreement for a period of thirty (30) days after written notice of such failure shall have been delivered to the County by the Bank, unless the Bank shall agree in writing to an extension of such time prior to its expiration; D. The making of any warranty, representation or other statement by the County or by an officer or agent of the County in this Loan Agreement or in any instrument furnished in compliance with or in reference to this Loan Agreement which is false or misleading in any material adverse respect; E. Payment default by the County on other debt secured by Non-Ad Valorem Revenues or by a covenant to budget and appropriate from Non-Ad Valorem Revenues. F. The filing of a petition against the County under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, if an order for relief is entered under such petition or such petition is not dismissed within sixty (60) days of such filing; 9 9769vl/28902-00090/ A-LOAN AGREE G. The filing by the County of a voluntary petition in bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or the consent by the County to the filing of any petition against it under such law; or H. The admission by the County of its insolvency or bankruptcy or its inability to pay its debts as they become due or that it is generally not paying its debts as such debts become due, or the County's becoming insolvent or bankrupt or making an assignment for the benefit of creditors, or the appointment by court order of a custodian (including without limitation a receiver, liquidator or trustee) of the County or any of its property taking possession thereof and such order remaining in effect or such possession continuing for more than sixty (60) days. Any amount due hereunder not paid when due shall bear interest at the Default Rate. Section 15. Remedies. The Bank may sue to protect and enforce any and all rights, including the right to specific performance, existing under the laws of the State of Florida, of the United States of America, or granted and contained in this Loan Agreement, and to enforce and compel the performance of all duties required by this Loan Agreement or by any applicable laws to be performed by the County, the Board or by any officer thereof, and may take all steps to enforce this Loan Agreement to the full extent permitted or authorized by the laws of the State of Florida or the United States of America, including acceleration of all amounts outstanding under this Loan Agreement or the Note. The County and the Bank each waives its right to trial by jury in the event of any proceedings in state or federal courts to enforce the terms of the Note or of this Loan Agreement. In addition, upon the occurrence of an Event of Default described in paragraphs F, G or H, of Section 14, and upon the occurrence of any other Event of Default and thirty (30) days notice to the County, by the Bank, the principal of and interest on the Note shall immediately become due and payable. Section 16. No Recourse. No recourse shall be had for the payment ofthe principal of and interest on the Note or for any claim based on the Note or on this Loan Agreement, against any present or former member or officer of the Board or any person executing the Note. Section 17. Payments Due on Saturdays, Sundays and Holidays. In any case where the date for making any payment or the last date for performance of any act or the exercise of any right, as provided in this Loan Agreement, shall be other than a Business Day, then such payment or performance shall be made on the succeeding Business Day with the same force and effect as if done on the nominal date provided in this Loan Agreement, provided that interest on any monetary obligation hereunder shall accrue at the applicable rate to and including the date of such payment. Section 18. Amendments, Changes and Modifications. This Loan Agreement may be amended only in writing signed by both parties hereto. 10 9769vl/28902-00090/A-LOAN AGREE .. Section 19. Binding Effect. To the extent provided herein, this Loan Agreement shall be binding upon the County and the Bank and shall inure to the benefit of the County and the Bank and their respective successors and assigns. Section 20. Severability. In the event any court of competent jurisdiction shall hold any provision of this Loan Agreement invalid or unenforceable such holding shall not invalidate or render unenforceable, any other provision hereof. [END OF PAGE] 11 9769vl/28902-00090/ A-LOA1'\1 AGREE " Section 21. Execution in Counterparts. This Loan Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 22. Applicable Law. This Loan Agreement shall be governed by and construed in accordance with the laws of the State. In Witness Whereof, the parties hereto have duly executed this Loan Agreement as of the date first above written. ST. LUCIE COUNTY, FLORIDA (SEAL) By: Chairman, Board of County Commissioners ATTEST: By: Clerk of the Circuit Court, ex-officio Clerk ofthe Board of County Commissioners APPROVED AS TO FORM AND CORRECTNESS: County Attorney SUNTRUST BANK By: Title: 12 9769vl/28902-00090/A-LOAN AGREE .. EXHIBIT A FORM OF NOTE No. R-l $3,000,000 ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 2003B (Environmentally Sensitive Lands) RATE OF INTEREST MATURITY DATE DATE OF ISSUE September 30, 2004 September 15,2003 REGISTERED OWNER: SUNTRUST BANK PRINCIP AL AMOUNT: Three Million Dollars KNOW ALL MEN BY THESE PRESENTS, that St. Lucie County, Florida (the "County"), for value received, hereby promises to pay to the Registered Owner designated above, or registered assigns, solely from the special funds hereinafter mentioned, on the Maturity Date specified above, the Principal Amount shown above, upon presentation and surrender hereof at the office of the County Finance Director as Registrar and Paying Agent, and to pay solely from such funds interest thereon from the date of this Note or from the most recent Interest Payment Date to which interest has been paid, whichever is applicable, until payment of such Principal Amount, at the Rate of Interest shown above, subject to adjustment as set forth in Schedule 2 attached hereto, such interest being payable on the Maturity Date by wire transfer or other medium acceptable to the County and to such Registered Owner. The principal of, premium, if any, and interest on this Note are payable in lawful money of the United States of America. Interest due hereon shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. This Note is issued to finance the costs of the acquisition of environmentally sensitive lands within the County ("the Project"), under the authority of and in full compliance with the Constitution and Statutes of the State of Florida, including particularly Chapter 125, Florida Statutes, as amended, Ordinance No. 87-77 of the Board, as amended, and other applicable provisions oflaw, and Resolution No. 03-217, duly adopted by the Board of County Commissioners on September 9, 2003 (the "Resolution"), and pursuant to a Loan Agreement between the County and SunTrust Bank, dated September 15, 2003 (the "Loan Agreement"), to which reference should be made to ascertain those terms and conditions. 9769vl/28902-00090/ A-LOAN AGREE This Note is payable from and secured solely by the Pledged Revenues, as defined in and in the manner provided in, and subject to the terms and conditions of, the Resolution and the Loan Agreement. The principal of and interest on this Note do not constitute a general obligation or indebtedness of the County, and the Registered Owner shall never have the right to require or compel the levy of taxes on any property of or in the County for the payment of the principal of and interest on this Note. The principal of and interest on this Note are not secured by a lien upon the Project, or upon any property of or in the County, but are secured solely by the Pledged Revenues in the manner provided herein and in the Loan Agreement. Reference is made to the Loan Agreement for the provisions relating to the security for payment of this Note and the duties and obligations of the County hereunder. The Registered Owner may sue to protect and enforce any and all rights, including the right to specific performance, existing under the laws of the State of Florida, of the United States of America, or granted and contained in the Loan Agreement, and to enforce and compel the performance of all duties required by the Loan Agreement or by any applicable laws to be performed by the County, the Board or by any officer thereof, and may take all steps to enforce the Loan Agreement to the full extent permitted or authorized by the laws of the State of Florida or the United States of America, including acceleration of all amounts of principal outstanding hereunder together with interest thereon. The County waives its right to trial by jury in the event of any proceedings in state or federal courts to enforce the terms of this Note or of the Loan Agreement, and the Registered Owner, by its acceptance of this Note, waives its right to trial by jury in any such proceedings. This Note may be transferred or assigned by the Registered Owner without the prior written consent of the County provided that (1) the County is given notice of such transfer not later than ten (10) days prior to the next Interest Payment Date on the Notes and (2) the transferee provides to the County an investment letter in form and substance materially the same as the letter provided by the Bank to the County upon the original issuance hereof. Upon the occurrence of an Event of Default, as defined in the Loan Agreement, the County shall also be obligated to pay from moneys budgeted and appropriated pursuant to the Covenant all costs of collection and enforcement hereof, including attorneys' fees (including fees incurred on appeal). It is hereby certified and recited that all acts, conditions and things required by the Constitution and laws of the State of Florida to be performed, to exist and to happen precedent to and in the issuance of this Note, have been performed, exist and have happened in regular and due form and time as so required. IN WITNESS WHEREOF, St. Lucie County, Florida, has caused this Note to be executed by the Chairman or Vice-Chairman of its Board of County Commissioners, and attested by the Clerk or Deputy Clerk of the Circuit Court, ex officio Clerk of the Board of County Commissioners, either manually or with their facsimile signatures, and its seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the Date of Issue above. ST. LUCIE COUNTY, FLORIDA (SEAL) By: Chairman, Board of County Commissioners ATTEST: By: Clerk of the Circuit Court, ex-officio Clerk of the Board of County Commissioners SCHEDULES TO ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 2003B (ENVIRONMENTALLY SENSITIVE LANDS) SCHEDULE 1 TERMS OF NOTE PREPAYMENT PROVISIONS: The County may prepay the principal of the Note in whole or in part at any time without penalty. OTHER PROVISIONS: None. SCHEDULE 2 ADmSTMENTS TO INTEREST RATE IN CERTAIN EVENTS For the purposes of this Schedule 1, the following terms have the meanings below: "Default Rate" means percent ( %). "Determination of Taxability" means the circumstances of interest paid or payable on the Note becoming includable for federal income tax purposes in the gross income of the Noteholder as a consequence of any act, omission or event whatsoever and except as otherwise provided in Subsection A(2), regardless of whether the same was within or beyond the control of the Board or the Issuer. A Determination of Taxability will be deemed to have occurred upon: (1) the receipt by the Board or Noteholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the Note is includable in the gross income of the Noteholder; (2) the issuance of any public or private ruling of the Internal Revenue Service that any interest payable on the Note is includable in the gross income of the Noteholder; or (3) receipt by the Board or Noteholder of an opinion of bond counsel that any interest on the Note 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 the Note is deemed includable in the gross income ofthe Noteholder. However, the County will have a reasonable opportunity to contest the memoranda, notices, rulings or opinions described in clauses (1), (2) and (3) above before a Determination of Taxability will be deemed to have occurred, but, if unsuccessful, such Determination of Taxability shall be retroactive to the applicable date under clause (1), (2) or (3) above. "Federal Rate" means, at any time, the then current maximum marginal rate of federal corporate income taxation imposed pursuant to the Code. "Noteholder" means SunTrust Bank: or the successor holder ofthe Note. "Noteholder's Adjusted Cost of Funds" means the fraction (expressed as a percentage), determined by SunTrust Bank: (in each case from an examination of its financial statements), of the total interest expense of the Noteholder for each calendar year divided by the total average adjusted bases of all assets of the Noteholder during the calendar year as determined under Section 265(b )(2)(B) of the Code or any successor provision. "State Rate" means, at any time, the then current maximum marginal rate of corporate income tax imposed by the State of Florida. "Taxable Rate" means percent ( %) per annum. A. The interest rate under the Note will be adjusted as follows: 1. Alternative Minimum Tax Where Note Interest is a Direct Tax Preference Item. If the Noteholder or its parent holding company pays an alternative minimum tax in any tax year and the interest on the Note is a direct tax preference item under Section 57(a)(5) or any successor provision of the Code, then the interest rate on the Note otherwise applicable for the period during such tax year in which interest on the Note is a direct tax preference item will be increased by an amount equal to (A - B) x C where: (a) A equals the interest rate on the Note otherwise applicable expressed as a percentage; (b) B equals the Noteholder's Adjusted Cost of Funds; and (c) C equals the maximum marginal rate of the alternative minimum tax expressed as a decimal (currently .20); provided, however, that no such interest increase will be paid by the Issuer if such circumstances relate primarily to changes in holdings of the Noteholder or its parent holding company. 2. Alternative Minimum Tax Where Note Interest is an Indirect Tax Preference Item. Ifthe Noteholder or its holding company pays an alternative minimum tax in any tax year and the interest on the Note is not a direct tax preference item under Section 57(a)(5), but is an indirect tax preference item because of the application of Section 56(g) or any successor provision of the Code, then the interest rate on the Note otherwise applicable for the period during such tax year in which interest on the Note is an indirect tax preference item will be increased by an amount equal to (A - B) x C where: (a) A equals the interest rate on the Note otherwise applicable expressed as a percentage; (b) B equals the Noteholder's Adjusted Cost of Funds; and (c) C equals 75% of the maximum marginal rate of the alternative minimum tax expressed as a decimal, or, if the Code is amended to effectively increase or decrease the percentage of interest on the Note which is subject to such indirect alternative minimum tax, then C will equal the percentage of such interest which is effectively subject to such indirect alternative minimum tax; provided, however, that no such increase will be paid by the Issuer if such circumstances relate primarily to changes in holdings of the Noteholder or its parent holding company. 3. Loss of Federal Income Tax Deduction for State Income Taxes. If the federal income tax deduction for state income taxes paid on the interest payments received under the Note during any period is reduced because of any change in the tax laws or regulations, then the interest rate on the Note otherwise applicable will be increased during such period by an amount equal to A x B x C x D where: (a) A equals the fraction (expressed as a decimal) of the total state income tax disallowed as a result of such tax law change; (b) B equals the rate of the applicable state income tax (expressed as a decimal); (c) C equals the maximum federal corporate tax rate then in effect for the Noteholder (expressed as a decimal); and (d) D equals the interest rate on the Note otherwise applicable expressed as a percentage. 4. Partial Taxability. If the interest payments received under the Note during any period become partially taxable because of any change in the tax laws or regulations, then the interest rate on the Note otherwise applicable will be increased during such period by an amount equal to (A - B) x C where: (a) A equals the Taxable Rate (expressed as a percentage); (b) B equals the interest rate on the Note otherwise applicable, expressed as a percentage; and (c) C equals the fraction of the interest rate on the Note which has become taxable as the result of such tax change (expressed as a decimal). 5. Other Change in Tax Laws. If the tax laws or regulations are amended to decrease the Federal Rate, to cause the interest on the Note to be taxable, to be subject to a minimum tax or an alternative minimum tax, or to otherwise decrease the effective after-tax yield on the Note to the Noteholder (directly or indirectly, other than upon a Determination of Taxability or upon a change described in (1) through (4) above) then the interest rate on the Note will be adjusted to cause the effective after-tax yield on the Note to equal what the yield on the Note would have been in the absence of such change or amendment in the tax laws or regulations. If the tax laws or regulations are amended to increase the effective after-tax yield on this Note to the Noteholder (including by way of an increase in the Federal Rate) then the interest rate on the Note will be decreased to cause the effective after-tax yield on this Note to equal what the yield would have been in the absence of such change or amendment in the tax laws or regulations. Upon a Determination of Taxability, the interest rate applicable to the Note shall be the Taxable Rate. B. The above adjustments will be cumulative, but in no event will the interest rate on the Note exceed the maximum rate permitted by law or the Taxable Rate, whichever is lower. The above adjustments to the interest rate on the Note will be effective on the effective date of the applicable change in the tax laws or regulations. Interest on the Note and all other tax rates and interest rates are expressed as annual rates. However, proper partial adjustment will be made if the tax law change is effective after the first day of the Noteholder's tax year or if interest on the Note does not accrue for the entire tax year of the Noteholder. Adjustments which create a circular calculation because the interest rate on the Note is affected by the calculation will be carried out sequentially, increasing the interest rate on the Note accordingly in each successive calculation using as the new value the increase in the interest rate on the Note until the change on the interest rate caused by the next successive calculation of the adjustment is de minimis. If more than one of paragraphs A(1) through A(5) apply, then the interest rate on the Note will be adjusted in the order in which listed above. C. To the extent an adjustment to the interest rate on the Note is not effected within 3 months of the event giving rise to the adjustment, and such delay is not due to the negligence of the Noteholder, the additional interest due as a result of such adjustment will be paid with interest compounded monthly (on principal only) at the rate which is equal to the interest rate on the Note. All unpaid amounts determined to be owing as a result of such calculation will be due and payable within 30 days after delivery of notice of the amount of such adjustment, and will be paid to the Noteholder of record during the period to which the adjustment relates. This obligation will survive the payment and cancellation ofthe Note, but shall not include any adjustment with respect to which the Holder cannot suffer an increase in tax liability. D. Upon the occurrence of a Determination of Taxability, the Note shall bear interest at the Taxable Rate and the County agrees to pay to the Noteholder any penalties or interest or past due taxes payable by such Noteholder (but not due to any negligent delay of the Noteholder) to the Internal Revenue Service by reason thereof. The Note shall be payable with respect to both principal and interest in lawful money of the United States of America at the office ofthe Paying Agent and Registrar; provided, however, that as long as the Bank is the registered owner ofthe Note, such payment shall be made at the office ofthe Bank after receipt from the Bank, at least 10 business days prior to an interest payment date on the Note, of an invoice stating the amount of interest and, if applicable, principal due on the Note. Any amount due and not paid under the Note within three (3) days of the date shall bear interest at the Default Rate until paid. EXHIBIT B BANK'S PROPOSAL LETTER 69vl/28902-00090IA-LOAN AGREE 10159V 1/28902-0000 lIR-ENVIRON LANDS 2003B EXHIBIT B BANK PROPOSAL