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RESOLUTION NO. 07--68
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST.
LUCIE COUNTY, FLORIDA, SUPPLEMENTING RESOLUTION NO. 94-196 AND
RESOLUTION NO. 06-348, PROVIDING FOR THE BORROWING OF NOT
EXCEEDING $16,000,000 TO FINANCE THE COST OF WATER
IMPROVEMENTS WITHIN INDIAN RIVER ESTATES MUNICIPAL SERVICES
BENEFIT UNIT IN THE COUNTY AS PREVIOUSLY AUTHORIZED BY THE
BOARD; APPROVING THE PROPOSAL OF WACHOVIA BANK, NATIONAL
ASSOCIATION, TO MAKE A TERM LOAN TO THE COUNTY IN SUCH
PRINCIPAL AMOUNT; PROVIDING FOR THE ISSUANCE OF A $16,000,000
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2007 A (INDIAN RIVER
ESTATES MSBU), AS EVIDENCE OF THE COUNTY'S OBLIGATION TO REPAY
SUCH TERM LOAN; PROVIDING FOR THE EXECUTION AND DELIVERY OF A
LOAN AGREEMENT BETWEEN THE COUNTY AND THE BANK
CONTAINING TERMS AND CONDITIONS RELATING TO SUCH LOAN;
PROVIDING FOR THE PAYMENT OF THE BOND FROM CERTAIN PLEDGED
REVENUES, INCLUDING SPECIAL ASSESSMENTS; AUTHORIZING FURTHER
OFFICIAL ACTION IN CONNECTION WITH THE DELIVERY OF THE BOND
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 and Section 5.01(F) of the Master Resolution, and is supplemental to the
Master Resolution and the Indian River Estates MSBU Series Resolution.
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 Master Resolution, the Indian River Estate MSBU Series
Resolution or the Loan Agreement.
"Bank" means Wachovia Bank, National Association.
"Bond Resolution" means, collectively, the Master Resolution, the Indian River Estates
MSBU Series Resolution, this resolution and all resolutions amendatory hereof and supplemental
hereto.
"Chairman" means the Chairman of the Board.
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"Clerk" means the Clerk of the Circuit Court of St. Lucie County, Florida, or, in the Clerk's
absence, any Deputy Clerk.
"County Administrator" means the County Administrator of the County.
"Indian River Estates Bond" means the Special Assessment Improvement Bond, Series
2007 A (Indian River Estates MSBU), of the County, in substantially the form attached to the Loan
Agreement as Exhibit A.
"Indian River Estates MSBU Series Resolution" means Resolution No. 06-348, adopted
November 14, 2006, authorizing obligations to be issued to finance the Indian River Estates MSBU
Project, and supplementing the Master Resolution.
"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' execution thereof.
"Master Resolution" means Resolution No. 94-196, adopted on September 20, 1994, as
amended by Resolution No. 95-183, adopted on September 5,1995, and as further amended from
time to time.
"Paying Agent" means the Clerk of the Circuit Court of the County.
"Proposal" means the proposal submitted to the County by the Bank, dated October 11,
2006, as supplemented.
Section 3. Findings. It is hereby found, declared, and determined by the Board:
(A) The County has heretofore authorized (1) the creation of the Indian River Estates
MSBU; (2) the undertaking of the Indian River Estates MSBU Project; and (3) the levy and
collection of the Indian River Estates MSBU Assessments to pay the Indian River Estates MSBU
Project Costs.
(B) It is necessary to borrow moneys to be applied together with the Indian River
Estates MSBU Assessments to pay other Indian River Estates MSBU Project Costs.
(C) The Bank has made the Proposal to the County for the Loan, and, based upon
bids received and the advice of the Financial Advisor, it is in the best interests of the County
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and the owners of the properties subject to the Indian River Estates MSBU Assessments that the
Proposal be accepted.
(D) It is necessary and desirable and in the best interest of the County to authorize
and approve the execution and delivery of the Loan Agreement, the Indian River Estates Bond,
and the taking of all other action in connection with the consummation of the Loan.
Section 4. Authorization of Indian River Estates Bond. Subject and pursuant to the
provisions hereof and in accordance with the provisions of the Loan Agreement, the issuance by
the County of the Special Assessment Improvement Bond, Series 2007 A (Indian River Estates
MSBU), in the principal amount of not exceeding Sixteen Million Dollars ($16,000,000) 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 Indian River Estates Special Assessments, is hereby authorized.
Section 5, Approval of Form of Loan Agreement and Indian River Estates Bond. The
Loan Agreement and the Indian River Estates Bond, in substantially the forms attached hereto
as Exhibit A, with such changes thereto as are accepted by the officer executing such
documents, upon the advice of the County Attorney and the Financial Advisor, are hereby
approved, and the Chairman or Vice-Chairman and Clerk or Deputy Clerk are hereby
authorized to execute and deliver the Loan Agreement and the Indian River Estates Bond to the
Bank without further authorization from this Board.
Section 6. Authorization of Ot.'ter Action. The Chairman, the Vice-Chairman, the Clerk,
the Deputy Clerk, the County Administrator, and the County Attorney are each designated agents
of the County in connection with the execution and delivery of the Loan Agreement and the Indian
River Estates Bond 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 Indian River Estates Bond to the Bank, including, but not limited to,
the making of modifications to the Loan Agreement and the Indian River Estates Bond to conform
the provisions thereof to the provisions of the Proposal, the Master Resolution, the Series
Resolution, and this Supplemental Resolution.
Section 7, Application of Proceeds of Loan. The proceeds of the Loan shall be applied
in accordance with the provisions of Article IV of the Series Resolution.
Section 8. Repeal of Inconsistent Provisions. All resolutions or parts thereof in conflict
with this resolution are hereby repealed to the extent of such conflict.
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Section 9. Severability. If anyone or more of the 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 Indian River Estates Bond
or Loan Agreement delivered hereunder.
Section 10. Amendment. This resolution may not be amended or repealed except with the
prior written consent of the Bank.
Section 11. Effective Date. This resolution shall take effect immediately upon its adoption.
Passed and Adopted this 13th day of February 2007, at a regular meeting duly called and
held.
A TIEST:
B~Z;/ ~~£~
l~ k of the Circuit Court, ex-officio
Clerk of the Board
APPROVED AS TO FORM AND
CORRECTNESS:
~~
Ä.fðJ.. County Attorney
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EXHIBIT A
FORM OF LOAN AGREEMENT
(WIlli BOND ATTACHED)
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LOAN AGREEMENT
between
ST. LUCIE COUNTY, FLORIDA
and
W ACHOVIA BANK, NATIONAL ASSOCIATION
Dated February 28, 2007
Relating to
St. Lucie County, Florida
Not Exceeding
$16,000,000
Special Assessment Improvement Bond, Series 2007 A
(Indian River Estates MSBU)
EXECUTION
T.^.IJUì Of CONTBNTS
Page
SECTION 1. DEFINITIONS ...................................................................................................................1
SECTION 2. INTERPRETATION .......................................................................................................... 5
SECTION 3. THE LOAN ........................................................................................................................5
SECTION 4. DESCRIPTION OF INDIAN RIVER ESTATES BOND................................................. 5
SECTION 5. EXECUTION OF INDIAN RIVER ESTATES BOND.................................................... 5
SECTION 6. REGISTRATION AND TRANSFER OF INDIAN RIVER ESTATES BOND .............. 6
SECTION 7. INDIAN RIVER ESTATES BOND MUTILATED, DESTROYED, STOLEN OR LOST7
SECTION 8. FORM OF INDIAN RIVER ESTATES BOND................................................................ 7
SECTION 9. SECURITY FOR INDIAN RIVER ESTATES BOND; INDIAN RIVER ESTATES
BOND NOT DEBT OF THE COUNTY..................................................................................................7
SECTION 10. COVENANTS OF THE COUNTY ................................................................................ 7
SECTION 11. REPRESENTATIONS AND WARRANTIES ............................................................... 8
SECTION 12. CONDITIONS PRECEDENT......................................................................................... 9
SECTION 13. TAX COMPLIANCE.......................................................................................................9
SECTION 14. NOTICES... ... .... ... ....... ... ...................... ... ... ....... ... .... .... ....... .... .... ... ... .......... ... .... ... ....... ... 10
SECTION 15. EVENTS OF DEFAULT DEFINED .............................................................................10
SECTION 16. REMEDIES .....................................................................................................................11
SECTION 17. NO RECOURSE.............................................................................................................11
SECTION 18. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS .................... 11
SECTION 19. AMENDMENTS, CHANGES AND MODIFICATIONS.......................................... 11
SECTION 20. BINDING EFFECT ........................................................................................................11
SECTION 21. SEVERABILITY .............................................................................................................12
SECTION 22. EXECUTION IN COUNTERPARTS...........................................................................12
SECTION 23. APPLICABLE LAW ...................................................................................................... 13
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This LOAN AGREEMENT is made and entered into as of February 28, 2007, by and
between ST. LUCIE COUNTY, FLORIDA (the "County"), and W ACHOVIA BANK, NATIONAL
ASSOCIATION (the "Bank").
'NITNBSSBTH:
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 Indian River
Estates MSBU Project hereinafter described, and that the Indian River Estates MSBU Project will
serve essential public purposes of the County; and
WHEREAS, the County has previously determined that it is desirable to initially draw
monies under a non-revolving line of credit to pay the Indian River Estates MSBU Project Costs
and then to provide permanent financing for the Indian River Estates MSBU Project, 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 not to exceed $16,000,000
to finance the Indian River Estates MSBU Project Costs; and
WHEREAS, the County has validated Special Assessment Improvement Bonds (Indian
River Estate MSBU) in the aggregate principal amount not to exceed $16,000,000, and the Circuit
Court of the Nineteenth Judicial Circuit of Florida, in and for St. Lucie County, Florida entered a
final judgment validating said Bonds and all proceedings of the County in connection therewith
on January 5, 2007, with the final appeal date of February 5, 2007, passing with no appeal; 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 issue the Indian River
Estates Bond and pledge the Indian River Estates Pledged Revenues to secure the obligation of
the County to repay the principal of and interest on the Indian River Estates Bond when due; and
WHEREAS, the obligation of the County to repay principal of and interest on the Indian
River Estates Bond 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 of the County, secured solely by a lien upon
and pledge of the Indian River Estates Pledged Revenues in the manner provided herein. 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 Indian River Estates Bond or to make any other
payments provided for herein. Furthermore, neither the Indian River Estates Bond nor the
interest thereon shall be or constitute a lien upon the Indian River Estates MSBU Project or upon
any other property of or in the County other than the Indian River Estates MSBU Special
Assessments in the manner provided herein;
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. Unless the context otherwise requires, the capitalized terms
used in this Loan Agreement shall have the meanings specified in this Section. Capitalized terms
not otherwise defined in this Section shall have the meanings specified in the Resolution. Words
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importing singular number shall include the plural number in each case and vice versa, and
words importing persons shall include firms and corporations.
"Act" means Chapter 125, Part I, Florida Statutes; as amended, Ordinance No. 87-77 duly
enacted by the Board, as amended, and other applicable provisions of law.
"Advances" mean the principal amounts of the Loan obtained by the County through
Requisitions submitted on or before February 1, 2009.
"Agreement" means this Loan Agreement between the Bank and the County setting forth
the terms and details of the Loan.
"Authorized County Representative" means the County Administrator or his delegate.
"Authorized Investments" means any obligations, deposit certificates, or other evidences
of indebtedness legal for investment pursuant to law, to the extent not inconsistent with the terms
of the investment policy of the County.
"Bank" means Wachovia Bank, National Association, a national banking association, with
offices located at 450 South Australian Avenue, 7th Floor, West Palm Beach, Florida 33401.
"Board" means the Board of County Commissioners of the County, as the governing body
of the County.
"Bond Counsel" means Bryant Miller Olive P.A.
"Breakage Fee" means the fee detailed in Exhibit B and Schedule 3 that would be incurred
by the County for prepayment of the Loan after the Conversion Date.
"Business Day" means any day of the year other than a day on which the Bank, or the
County are lawfulIy closed for business.
"Chainnan" 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
beha If.
"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.
"Conversion Date" means February 1, 2009.
"County" means St. Lucie County, Florida.
"County Administrator" means the County Administrator, as the chief operating officer of
the County.
"Default" means an Event of Default as defined and described in Section 16 hereof.
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"Disbursement Date" means any date on which proceeds of the Loan are disbursed to the
County pursuant to a Requisition.
"Fiscal Year" means the period from each October 1 to the succeeding September 30.
"Fixed Rate" means the interest rate determined in accordance with Exhibit A and Exhibit
B and applicable to the Loan subsequent to the Conversion Date.
"Indian River Estates Bond" means the Special Assessment Improvement Bond, Series
2007 A (Indian River Estates MSBU), of the County, which shall be in substantially the form
attached to the Loan Agreement as Exhibit A.
"Indian River Estates MSBU" means the Indian River Estates Municipal Services Benefit
Unit created pursuant to Resolution No. 02-309, of the Board adopted December 10, 2002.
"Indian River Estates MSBU Assessment Resolutions" means the resolutions adopted by
the Board with respect to the Indian River Estates MSBU providing for the levy and collection of
the Indian River Estates MSBU Special Assessments within the Indian River Estates MSBU,
including Resolution No. 02-309, adopted December 10, 2002, Resolution No. 06-321, adopted
October 17, 2006, and any resolution supplemental thereto or amendatory thereof.
"Indian River Estates MSBU Project" means the acquisition and construction of potable
water improvements within the Indian River Estates MSBU and all costs incidental thereto as
permitted by the Assessment Act.
"Indian River Estates MSBU Special Assessments" means the special assessments levied
within the Indian River Estates MSBU pursuant to the Indian River Estates MSBU Assessment
Resolutions.
"Indian River Estates Pledged Revenues" means with respect to the Indian River Estates
Bond, (i) the Indian River Estates MSBU Special Assessments, (ii) the moneys on deposit in the
Indian River Estates Sub accounts established for the Indian River Estates Bond, and (iii) the
Investment Earnings allocable to such Indian River Estates MSBU Special Assessments (the
"Indian River Estates Investment Earnings").
"Indian River Estates Subaccounts" means the separate accounts established and
maintained pursuant to the provisions of the Resolution for the benefit of the Owners of the
Indian River Estates Bonds.
"Initial Disbursement Date" means the date on which the first Advance is made pursuant
to a Requisition.
"Interest Rate" means the rate per annum set forth in the form Bond attached hereto as
Exhibit A, subject to adjustment as provided in Schedule I to the Indian River Estates Bond.
"Loan" means the advance of moneys from the Bank to the County pursuant to the Loan
Agreement.
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"Loan Agreement" means this agreement between the Bank and the County setting forth
the terms and details of the Loan.
"Master Resolution" means Resolution No. 94-196, adopted by the Board on September
20, 1994, as amended by Resolution No. 95-183, adopted on September 5, 1995, and as further
amended from time to time.
"Maturity Date" means the last date on which all remaining, outstanding principal of the
Indian River Estates Bond is due as shown on Exhibit A hereto.
"MSBU" means a Municipal Services Benefit Unit created pursuant to resolution of the
Board adopted from time to time.
"Paying Agent" means the Clerk of the Circuit Court of the County.
"Payment Date" or "Interest Payment Date" means the dates on which interest on the
Indian River Estates Bond is payable, as shown on Exhibit A, hereto.
"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 (i) the Indian River Estates MSBU Special Assessments (ii) the
monies on deposit in the Indian River Estates sub-accounts established for the Indian River Estate
Bonds, and (iii) the investment earnings allocable to such Indian River Estates MSBU Special
Assessments.
"Prepayment Date" means any date of prepayment of the principal of the Loan by the
County, whether in whole or in part.
"Principal Amount" means Sixteen Million Dollars ($16,000,000).
"Proposal" means the proposal submitted to the County by the Bank, dated October 11,
2006, as supplemented.
"Register" means the books maintained by the Registrar in which are recorded the name
and address of the Registered Owner of the Indian River Estates Bond.
"Registered Owner" means the person in whose name the ownership of the Indian River
Estates Bond is registered on the books maintained by the Registrar. The initial Registered Owner
shall be the Bank.
"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 of the Code.
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"Requisition" means a request for an Advance from the Bank, duly executed and
delivered by the Authorized County Representative, in substantially the form attached hereto as
Exhibit C.
"Resolution" means, collectively, the Master Resolution the Series Resolution, and the
Supplemental Resolution, and all resolutions amendatory thereof and supplemental thereto.
"Series Resolution" means Resolution No. 06-348, adopted by the Board on November 14,
2006.
"State" means the State of Florida.
"Supplemental Resolution means Resolution No. 07-068, adopted by the Board on
February 13, 2007.
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. beim. 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 by the
Bank to the County by deposit of the principal amount set forth in a Requisition to or for the
order of the County by 2:00 p.m. on a Disbursement Date in immediately available funds.
SECTION 4. DESCRIPTION OF INDIAN RIVER ESTATES BOND. The obligation of the
County to repay the Loan shall be evidenced by the Indian River Estates Bond. The Indian River
Estates Bond shall be dated as of the Initial 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 a 360-day year consisting of twelve 30-day months, from its date as to principal at
the Interest Rate shown on Exhibit A hereto. Prior to and through the Conversion Date, the
Indian River Estates Bond may be prepaid without penalty. Subsequent to the Conversion Date,
the Indian River Estates Bond may be prepaid in whole or in part subject to the Breakage Fee
described in Schedule 3 to Exhibit A hereto.
SECTION 5. EXECUTION OF INDIAN RIVER ESTATES BOND. The Indian River
Estates Bond shall be executed in the name of the County by the Chairman or Vice Chairman and
attested by the Clerk or Deputy Clerk, and its corporate seal or a facsimile thereof shall be affixed
thereto or reproduced thereon. The Indian River Estates Bond may be signed and sealed on
behalf of the County by any person who at the actual time of the execution of such Indian River
Estates Bond shall hold the appropriate office in the County, although at the date thereof the
person may not have been so authorized. The Indian River Estates Bond may be executed by the
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facsimile signatures of the Chairman or Vice Chairman and/or Clerk or Deputy Clerk, provided
that at least one of the foregoing signatures must be a manual signature.
SECTION 6. REGISTRATION AND TRANSFER OF INDIAN RIVER ESTATES BOND.
The Indian River Estates Bond 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 Indian River Estates Bond, shall be
conclusively deemed to have agreed that such Indian River Estates Bond 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 Indian River Estates Bond 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 Indian River Estates Bond for all purposes,
whether or not the Indian River Estates Bond shall be overdue, and any notice to the contrary
shall not be binding upon the County or the Registrar.
Ownership of the Indian River Estates Bond may be transferred only upon the Register.
Upon surrender to the Registrar for transfer or exchange of the Indian River Estates Bond
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 Indian River Estates Bond of the same amount, maturity and interest
rate as the Indian River Estates Bond surrendered.
The Indian River Estates Bond 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 Indian River Estates Bond. 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 Indian
River Estates Bond shall be delivered.
The new Indian River Estates Bond delivered upon any transfer or exchange shall be a
valid obligation of the County, evidencing the same debt as the Indian River Estates Bond
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 Indian River Estates Bond surrendered.
Whenever the Indian River Estates Bond shall be delivered to the Registrar for
cancellation, upon payment of the principal amount thereof, or for replacement, transfer or
exchange, such Indian River Estates Bond shall be cancelled and destroyed by the Registrar, and
counterparts of a certificate of destruction evidencing such destruction shall be furnished to the
County.
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SECTION 7. INDIAN RIVER ESTATES BOND MUTILATED, DESTROYED, STOLEN OR
LOST. In case the Indian River Estates Bond shall be mutilated, or be destroyed, stolen or lost,
upon the Registered Owner furnisillng 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 Indian River
Estates Bond of like tenor as the Indian River Estates Bond so mutilated, destroyed, stolen or lost,
in lieu of or substitution for the Indian River Estates Bond, if any, destroyed, stolen or lost, or in
exchange and substitution for such mutilated Indian River Estates Bond, upon surrender of such
mutilated Indian River Estates Bond, if any, to the Registrar and the cancellation thereof;
provided however, if the Indian River Estates Bond shall have matured or be about to mature,
instead of issuing a substitute Indian River Estates Bond, the County may pay the same, upon
being indemnified as aforesaid, and if such Indian River Estates Bond be lost, stolen or destroyed,
without surrender thereof. Any Indian River Estates Bond surrendered under the terms of this
Section 7 shall be cancelled by the Registrar.
Any such new Indian River Estates Bond 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 Indian River Estates Bond, the lost, stolen or destroyed Indian River Estates Bond be at any
time found by anyone, and such new Indian River Estates Bond shall be entitled to equal and
proportionate benefits and rights as to security for payment to the same extent as the Indian River
Estates Bond originally issued hereunder.
SECTION S. FORM OF INDIAN RIVER ESTATES BOND. The Indian River Estates Bond
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
and approved by the Chairman, with the advice of the County Attorney and Bond Counsel. Such
approval of the Indian River Estates Bond shall be presumed by execution thereof by the
Chairman.
SECTION 9. SECURITY FOR INDIAN RIVER ESTATES BOND; INDIAN RIVER
ESTATES BOND NOT DEBT OF THE COUNTY. The County's obligation to pay the principal of
and interest on the Indian River Estates Bond shall be secured forthwith so]ely by a lien upon and
pledge of the Indian River Estates Pledged Revenues. The principal of and interest on the Indian
River Estates Bond shall not constitute a genera] obligation or indebtedness of the 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 Indian River Estates
Bond. The Indian River Estates Bond shall not be secured by, nor constitute, a lien upon the
Indian River Estates MSBU Project or upon any money if or in the County, but shall be secured
so]ely by the Indian River Estates Pledged Revenues in the manner provided herein.
SECTION 10. COVENANTS OF THE COUNTY. Until the principal of and interest on the
Indian River Estates Bond shall have been paid in full or until (a) there shall have been set apart
in the Indian River Estates Bonds Subaccount in the Sinking Fund, a sum sufficient to pay when
due the entire principal of and interest accrued and to accrue on the Indian River Estates Bond to
the Maturity Date, or (b) provision for payment of the Indian River Estates Bond shall have been
made in accordance with the provisions of this Loan Agreement, the County covenants with the
Registered Owner of the Indian River Estates Bond as follows:
A. Collection of l.ssescments. The County will collect the Indian River Estates MSBU
Special Assessments in the manner specified in Section 197.3632, Florida Statutes, and will apply
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and deposit the proceeds of the Indian River Estates MSBU Special Assessments into the Sinking
Fund created and established pursuant to the Series Resolution.
B. Reserved.
C. Payments. The County will punctually pay from the Indian River Estates Bonds
Subaccount in the Sinking Fund all principal of and interest on the Indian River Estates Bond
when due by wire transfer or other medium acceptable to the County and the Bank.
D. Pinancial Statements. Not later than the earlier of 180 days following the end of
each fiscal year or 45 days after it is prepared, the County will provide the Bank a copy of the
Comprehensive Annual Financial Report of the County and such other information regarding the
levy and collection of the Indian River Estates MSBU Special Assessments as the Bank may
reasonably request in writing.
E. AnnuGI Budget and Otl-.er 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.
F. 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 Bond to the same extent
as on the date of issuance of the Indian River Estates Bond. The Indian River Estates Bond is not a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code.
G. Other Covenants. The County shall comply with such additional covenants as
may be specified in Exhibit B attached hereto.
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. f.Hthorization of Loan Agrecment 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 Indian River
Estates Bond in accordance with their respective terms. This Loan Agreement and the Indian
River Estates Bond 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. Indian Ri'¡er Estates MSBU Special Assessments. The County has duly adopted
the Indian River Estates MSBU Assessment Resolutions and complied with all requirements of
applicable law in connection with the levy of the Indian River Estates MSBU Special Assessments.
8
{5000/09/001 OI256.DOCv5}
D. Pinarlcial Statements. The financial statements of the County for the Fiscal Year
ended September 30, 2005, previously provided to the Bank have been 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 been no material adverse change in the financial condition, revenues, properties or
operations of the County.
SECTION 12. CONDITIONS PRECEDENT. The obligation of the Bank to make the Loan
is subject to the satisfaction of each of the following conditions precedent on or before the
Disbursement Date:
A. .^cction. The Bank shall have received a copy of the Resolution certified as
complete and correct as of the dosing date, together with an executed Loan Agreement, the
executed Indian River Estates Bond, and the customary dosing certificates.
B. Incumscncy 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 financing documents on behalf of the County.
C. Opinion of CmlRsd to the COlmty. The Bank shall have received a written
opinion of counsel to the County addressing matters relating 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 Indian River Estates Bond and the related financing documents; and (4)
the absence of litigation against the County relating to its existence or powers, or the proceedings
for the authorization and issuance of the Indian River Estates Bond, 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 Indian River Estates
Bond to the same extent as if such opinion were addressed to the Bank.
E. Representations and Warranties; No Dcfault. 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 resu]t 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. TAX COMPLIANCE. Neither the County, nor any third party over whom
the County has contra], wiIl make any use of the proceeds of the Indian River Estates Bond at any
time during the term hereof which would cause the Indian River Estates Bond to be a "private
activity bond" within the meaning of Section 103(13)(1) of the Code or an "arbitrage bond" within
the meaning of Section 103(13)(2) of the Code. The County covenants throughout the term of the
Indian River Estates Bond, to comply with the requirements of the Code and the Regulations, as
amended from time to time.
9
{5000/09/001 01256.DOCv5}
SECTION 14. 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:
County:
Copy to:
Bank:
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982-5652
Attention: County Administrator
St. Lucie County, Florida
2300 Virginia Avenue
Fort Piece, Florida 34982-5652
Attention: County Attorney
Wachovia Bank, National Association
Government Banking
450 South Australian Avenue, 7th Floor
West Palm Beach, Florida 33401
Attention: Paul Vincent, Senior Vice President
PH: (561) 650-2362 and FX: 650-2367
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 15. 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 of the following events:
A. failure by the County to make any payment of principal of or interest on the Bond
within three (3) days of the applicable Payment Date or the Maturity Date.
B. 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
fifteen (15) 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;
C. 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;
D. 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;
{5000/09/00101256.DOCv5)
10
E. 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
F. 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.
SECTION 16. REMEDIES. 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 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 Notes. To the extent permitted by
applicable law, each of the County and the Bank, knowingly, voluntarily and intentionally
waives any right each may have to a trial by jury in respect of any Iitigation based on, or arising
out of, under or in connection with this Loan Agreement, the Indian River Estates Bond or any
agreement contemplated to be executed in connection with this Loan Agreement, or any course
of conduct, course of dealing, statements (whether verbaI or written) or actions of any party
with respect hereto. This provision is a material inducement to the Bank to enter into this Loan
Agreement.
If an Event of Default described above occurs, interest on the Indian River Estates Bond
shall be equal to the Bank's prime rate pIus two per cent (2%).
SECTION 17. NO RECOURSE. No recourse shall be had for the payment of the principal
of and interest on the Indian River Estates Bond or for any claim based on the Indian River
Estates Bond or on this Loan Agreement, against any present or former member or officer of the
Board or any person executing the Indian River Estates Bond.
SECTION 18. PAYMENTS DUE ON SA TURDA YS, 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 19. AMENDMENTS, CHANGES AND MODIFICATIONS.
Agreement may be amended only in writing signed by both parties hereto.
This Loan
SECTION 20. 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.
11
{5000109I00I 0 1256DOCv5}
SECTION 21. SEVERABILI1Y. 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.
SECTION 22. 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.
12
{ 5000/09/00101256.DOCv5}
SECTION 23. 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
A TIEST:
By:
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
APPROVED AS TO FORM AND
CORRECTNESS:
County Attorney
13
{5000/09/001 01256.DOCv5}
{5000109/O01 0 1256.DOCv5}
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
Title:
14
EXHIBIT A
fORM Of BOND
No. R-1
$16,000,000
ST. LUCIE COUNTY, FLORIDA
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2007 A
(INDIAN RIVER ESTATES MSBU)
D,^. TE OF ISSUE
February 28, 2007
CONVERSION D¡\TE
February 1, 2009
MATURITY D,^.TE
November 1, 2028
Rf.TES OF INTEREST:
Variable Rate: One-Month LIBOR as shown on the Telerate System, page 3750, adjusted
monthly minus 50 basis points. Initial Rate and Monthly Adjustments will be based on LIBOR
two business days prior to Date of Issue and Each Monthly Adjustment date.
Fixed Rate: lO-Year U. S. Dollar Swap Offer Rate less 2.2 basis points determined three
days prior to the Conversion Date.
REGISTERED OWNER: Wachovia Bank, National Association
PRINCIPAL AMOUNT: As Shown on Schedule 2 hereto (Not to Exceed Sixteen 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, soIely from the special funds hereinafter mentioned, on November 1, 2009,
and on each November 1 thereafter, to and including the Maturity Date specified above, the
installments of the above Principal Amount as shown on Schedule 2 attached hereto and forming
a part hereof (the "Schedule"), and to pay solely from such funds interest thereon from the date
of this Bond or from the most recent date to which interest has been paid, whichever is
applicable, until payment of such Principal Amount, interest for such period at the applicable
Rate of Interest as shown above, subject to adjustment as set forth in Schedule I attached hereto,
such interest being payable semi-annually on each May 1 and November 1 (an "Interest Payment
Date") commencing May 1, 2009, with all unpaid interest being due on the Maturity Date, by wire
transfer in accordance with written instructions delivered by the Registered Owner to the County
or by such other medium acceptable to the County and to such Registered Owner. The principal
of, premium, if any, and interest on this Bond 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.
A-I
{5000/09/00] 0] 256.DOCv5}
Advances on this Bond may be made through February 1, 2009 and shall be recorded on
Schedule 2 hereto. Prior to February 1, 2009 (the "Conversion Date") this Bond shall bear interest
at the Variable Rate described above, as adjusted on the 28'h day of each month. On and after the
Conversion Date this Bond shall bear interest at a fixed rate, determined as described above. On
the Conversion Date the outstanding balance under this Bond shall convert to a term loan, and
thereafter principal on this Bond shall be payable in annual installments sufficient to amortize
such principal balance over the period from the Conversion Date to November 1, 2028 based on
substantially level aggregate annual debt service. On or before the Conversion Date the
Registered Owner shall provide the County with a replacement Schedule 2, setting forth
aggregate amount advanced hereunder, the Fixed Rate, and the principal and interest payments
from the Conversion Date through maturity. Such replacement Schedule 2 shall be binding
upon the County and the Bank absent manifest error.
This Bond is issued to finance the costs of the acquisition and construction of the Indian
River Estates MSBU Project, under the authority of and in full compliance with the Constitution
and Statutes of the State of Florida, including particularly Chapter 125, Part I, Florida Statutes,
Ordinance No. 87-77 of St. Lucie County, Florida, as amended, and other applicable provisions of
law (collectively, the "Act"), and Resolution 94-196, duly adopted by the Board of County
Commissioners (the "Board") on September 20, 1994, as amended and supplemented
(collectively, the "Master Resolution"), particularly as supplemented by Resolution No. 06-348,
adopted on November 14, 2006 (the "Series Resolution"), and Resolution No. 07-068, adopted on
February 13, 2007 (the "Supplemental Resolution" and, together with the Master Resolution, and
the Series Resolution, the "Resolution"), and pursuant to a Loan Agreement between the County
and Wachovia Bank, National Association, dated February 28, 2007 (the "Loan Agreement"), to
which reference should be made to ascertain those terms and conditions.
This Bond is payable from and secured solely by a lien upon and pledge of the Indian
River Estates Pledged Revenues, all as defined in, in the manner provided in, and subject to the
terms and conditions of the Resolution and the Loan Agreement.
This Bond may be prepaid in whole or in part by lot at any time prior to the Conversion
Date at the price of par plus accrued interest to the date of redemption. Upon and after the
Conversion Date, this Bond may be prepaid in whole or in part by lot at any time at the price of
par plus accrued interest to the date of redemption subject to a Breakage Fee as described in
Schedule 3 attached hereto.
The principal of and interest on this Bond 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 Bond. The principal of and interest on this Bond are not secured by a lien
upon the Indian River Estates MSBU Project, or upon any property of or in the County, but are
secured solely by the Indian River Estates 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 Bond 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
A-2
{5000/09/00 I 01256 DOCv5}
the Loan Agreement to the full extent permitted or authorized by the laws of the State of Florida
or the United States of America.
This Bond may be transferred or assigned by the Registered Owner without the prior
written consent of the County.
Upon the occurrence of an Event of Default, as defined in the Loan Agreement, the
County shall also be obligated to pay, but only from the Indian River Estates Pledged Revenues,
all costs of collection and enforcement hereof, including reasonable 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 Bond, 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 Bond 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 of the Board of County
Commissioners
A TrEST:
By:
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
A-3
{5000109100] 01256.DOCv5 )
SCHEDULES TO
ST. LUCIE COUNTY, FLORIDA
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2007 A
(INDIAN RIVER ESTATES MSBU)
(5000/09/0010 1256.DOCv5}
SCHEDULE 1
ADJUSTMENTS TO INTEREST RATE IN CERTAIN EVENTS
The interest rate on this Bond shall be subject to adjustment in the event of a change in certain tax
laws and regulations as set forth below:
Adjustment to Interest Rate
(a) Caange in Ma)(imum Corporate Ta)( Rate. If the maximum federal corporate income tax
rate for the Bank (or in the case of another institutional holder of the Bond, such holder or its
holding company) and its subsidiaries (collectively, the "Bank") during any period in which
interest is accruing, shall be other than 35%, then the interest on the Bond during such period
shall be modified by multiplying the interest on the Bond (as adjusted) by a fraction equal to (I
- A)/.65 where A equals the maximum marginal corporate income tax rate then in effect.
(b) .^.ltemative Minimum Ta)( Where Interest on the Bond is a Direct Ta)( Preference Item.
If the Bank or its parent holding company pays an alternative minimum tax in any tax year and
the interest on the Bond is a direct tax preference item under section 57(a)(5) or any successor
provision of the Internal Revenue Code then the interest on the Bond for the period during
such tax year in which interest is accruing on the Bond shall be increased during such accrual
period by an amount equal to (A - B) x C where:
(1) A equals the interest on the Bond expressed as a percentage;
(2) B equals the Bank's Adjusted Cost of Funds; and
(3) C equals the maximum marginal rate of the alternative minimum tax expressed as a
decimal (currently .20).
"Banle's .^.djuoted Cost of Punds" means the fraction (expressed as a percentage), determined by
the Bank, of the total interest expense of the Bank for each calendar year divided by the total
average adjusted bases of all assets of the Holder during the calendar year as determined under
Section 265(b)(2)(B) of the Code or any successor provision thereto.
(c) :\Iternatiye Minimum Ta)( 'Naere Interest OR tae Bond is an Indirect Ta)( Preference
Item. If the Bank or its holding company pays an alternative minimum tax in any tax year and
the interest on the Bond 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 Internal Revenue Code then the interest rate for the period during such tax
year in which interest is accruing on the Bond shall be increased during such accrual period by
an amount to (A - B) x C where:
(1) A equals the interest on the Bond expressed as a percentage;
(2) B equals the Bank's Adjusted Cost of Funds; and
(3) 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 Bond which is subject to such indirect alternative minimum tax, then C shall
equal the percentage of such interest on the Bond which is effectively subject to such indirect
alternative minimum tax multiplied by the maximum marginal rate of the alternative
minimum tax expressed as a decimal.
SCHEDULE I-I
{5000109/00 I 0 1256.DOCv5 {
(d) Loss of :Federal Income Tax DedactioR for State Income Taxes. If the federal income tax
deduction for state income taxes paid on the interest on the Bond during any period is reduced
because of any change in the tax laws or regulations then the interest on the Bond shall be
increased during such period by an amount equal to A x B x C x D where:
(1) A equals the fraction (expressed as a decimal) of the total state income tax disallowed as
a result of such tax law change;
(2) B equals the rate of the applicable state income tax (expressed as a decimal);
(3) C equals the maximum federal corporate tax rate then in effect for the Bank (expressed
as a decimal); and
(4) D equals the interest on the Bond (expressed as a percentage).
(e) Partial Taxability. If the interest on the Bond during any period becomes partially
taxable because of any change in the tax laws or regulations, then the interest on the Bond shall
be increased during such period by an amount equal to (A - B) x C where:
(1) A equals the Taxable Rate (expressed as a percentage);
(2) B equals the interest on the Bond (expressed as a percentage); and
(3) C equals the fraction of the interest on the Bond which has become taxable as the result
of such tax change (expressed as a decimal).
(f) Other Change in Tax Laws. If the tax laws or regulations are amended to cause the
interest on the Bond to be taxable, to be subject to a minimum tax or an alternative minimum
tax or to otherwise decrease the after tax yield on the Bond to the Bank (directly or indirectly,
other than a change described in (a) through (e) above or because of a Determination of
Taxability) then the interest on the Bond shall be adjusted to cause the yield on the Bond, after
payment of any increase in tax, to equal what the yield on the Bond would have been in the
absence of such change or amendment in the tax laws or regulations.
The above adjustments shall be cumulative, but in no event shall the interest on the Bond
exceed the maximum permitted by law. The above adjustments to the interest rate on the Bond
shall be effective on the effective date of the applicable change in the tax laws or regulations.
All tax rates and interest rates are expressed as annual rates. However, proper partial
adjustment shall be made if the tax law change is effective after the first day of the Bank's tax
year or if the interest on the Bond does not accrue for the entire tax year of the Bank.
Adjustments which create a circular calculation because the interest on the Bond is affected by
the calculation shall be carried out sequentially, increasing the interest on the Bond accordingly
in each successive calculation using as the new value the increase in the interest rate on the
Bond, until the change on the interest rate on the Bond caused by the next successive
calculation of the adjustment is de minimis. If more than one of paragraphs (a) though (e)
apply, then the interest on the Bond shall be adjusted in the order in which listed above.
Taxable Rate
Notwithstanding the foregoing, in the event of a "Determination of Taxability" (as
hereinafter defined), this Bond shall bear interest at the rate equal to the Taxable Rate (the
"Taxable Rate"), from and after and retroactively to the date as of which such Determination of
Taxability is made and the Bondholder shall be entitled to such additional interest on this
Bond. For purposes hereof, "Determination of Taxability" means the circumstance of the
interest on the Bond becoming includable for federal income tax purposes in the gross income
SCHEDULE 1-2
{5000/09/001 01256.DOCv5)
of the Bank as a consequence of any act, omISSIOn or event whatsoever and regardless of
whether the same was within or beyond the control of the County. A Determination of
Taxability will be deemed to have occurred upon (i) the receipt by the County or the Bank of an
original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory
Notice of Deficiency which holds that the interest on the Bond is includable in the gross income
of the Bank; (ii) the issuance of any public or private ruling of the Internal Revenue Service that
the interest on the Bond is includable in the gross income of the Bank; or (iii) receipt by the
County or Bank of an opinion of a Bank Counsel that the interest on the Bond has become
includable in the gross income of the Bank 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 Bond is deemed includable in the gross income of the Bank.
In no event, however, shall interest be charged or paid in an amount in excess of the
maximum interest rate permitted to be paid under applicable law.
f.dditional Definitions
"Taxable Rate" means a rate equal to the rate of interest on the Bond times that percentage
which after the Determination of Taxability will result in the same after-tax yield to the
Registered Owner of the Bond as before said Determination of Taxability.
SCHEDULE 1-3
15000/0910010 1256.DOCv5}
SCHEDULE 2
ST. LUCIE COUNTY
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2007 A
(INDIAN RIVER ESTATES MSBU)
AMORTIZATION SCHEDULE
(Put In Amortization When Final Interest Rate Is Set)
SCHEDULE 2
{5000/09/001 0 1256.DOCv5)
SCHEDULE 3
BREAKAGE SCHEDULE
In addition to principal, interest and any other amounts due under this Bond, the
County shall on demand pay the Bank any "Breakage Fee" due hereunder for
each Break Event. "Break Event" means any voluntary or mandatory
prepayment or acceleration, in whole or in part, of principal of this Bond
occurring prior to the date such principal would, but for that prepayment or
acceleration, have become due ("Scheduled Due Date"). For each date on
which a Break Event occurs ("Break Date"), a Breakage Fee shall be due only if
the rate under "A" below exceeds the rate under "B" below and shall be
determined as follows:
Breakage Fee = the Present Value of ((A-B)xC) + LlBOR Breakage, where:
A = The rate per annum equal to the sum of (i) the bond equivalent yield (bid
side) of the U.S. Treasury security with a maturity closest to the Maturity
Date as reported by the Wall Street Journal (or other published source) on
the date the Interest Rate of this Bond was set ("Lock in Date"), pI.u.s (ii)
the corresponding swap spread of Bank on the Lock in Date for a fixed
rate payor to pay Bank the fixed rate side of an interest rate swap of that
maturity, pI.u.s (iii) .25%.
B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid
side) of the U.S. Treasury security with a maturity closest to the Maturity
Date as reported by the Wall Street Journal (or other published source) on
the Break Date, pI.u.s (ii) the corresponding swap spread that Bank
determines another swap dealer would quote to Bank on the Break Date
for paying to Bank the fixed rate side of an interest rate swap of the
maturity.
C = The sum of the products of (i) each Affected Principal Amount for each
Affected Principal Period, ti.m.e.s (ii) the number of days in that Affected
Principal Period divided by 360 (if this Bond uses the Actual/360
Computation) or the actual number of days in the year (if this Bond uses
the Actual/Actual Computation).
"Affected Principal Amount" for an Affected Principal Period is the principal amount of
this Bond scheduled to be outstanding during that Affected Principal Period determined
as of the relevant Break Date before giving effect to the Break Event on that Break
Date, and for any prepayment, multiplying each such principal amount times the
Prepayment Fraction.
"Affected Principal Period' is each period from and including a Scheduled Due Date to
but excluding the next succeeding Scheduled Due Date, provided that the first such
{5000/O9/O01 01256DOCv5}
period shall begin on and includes the Break Date.
"LIBOR Breakage" is any additional loss, cost or expense that Bank may incur with
respect to any hedge for the fixed rate of this Bond based on the difference between
the London interbank offered rate (for U.S. dollar deposits of the relevant maturity)
available in the London interbank market at the beginning of the interest period in which
the Break Date occurs and that which is available in that market on the Break Date.
"Maturity Date" is the date on which the final payment of principal of this Bond would,
but for any Break Event, have become due.
"Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the
principal amount of this Bond outstanding immediately prior to that prepayment on the
Break Date.
"Present Value" is determined as of the Break Date using "B" above as the discount
rate.
In addition, a Break Event shall be deemed to occur hereunder if, on any date
("Borrowing Date") after the date hereof but prior to any acceleration of this Bond, any
advance of principal under this Bond is scheduled to be made and that advance fails to
be made on that Borrowing Date (whether due to Borrower's default, Borrower's failure
to borrow, the termination of any loan commitment, any unsatisfied condition precedent,
or otherwise), in which case that Borrowing Date shall be a Break Date, the Affected
Principal Amount for that Break Event shall be based on the amount of the failed
advance, and the Borrower shall on demand pay to the Bank any Breakage Fee due
hereunder for that Break Event.
Breakage Fees are payable as liquidated damages, are a reasonable pre-estimate of
the losses, costs and expenses Bank would incur in the event of any prepayment or
acceleration of this Bond, are not a penalty, will not require claim for, or proof of, actual
damages, and Bank's determination thereof shall be conclusive and binding in the
absence of manifest error. For any Break Event hereunder, the foregoing Breakage
Fee provisions supersede any breakage compensation agreement that Borrower and
Bank may have executed with respect to this Bond.
{5000/09/O01 OI256.DOCv5}
EXHIBIT B
BANK'S PROPOSAL LEITER
{5000/09/00101256.DOCv5 }
EXHIBIT C
FORM OF REQUISITION
From: St. Lucie County, Florida
To: Wachovia Bank, National Association
Date:
Requisition No.:
Under the terms of the not exceeding $16,000,000 Special Assessment
Improvement Bond, Series 2007 (Indian River Estates MSBU), dated February 28, 2007
and the Loan Agreement related thereto, St. Lucie County hereby requests an Advance
in the amount of $ to be credited to the account of the County,
account # on
The principal balance of the Loan outstanding prior to this Request is the sum of
$ , and the principal balance of the Loan outstanding after this Request will be
$ . which is less than $16,000,000, the maximum amount that may be
outstanding under the Loan.
We understand that you will confirm to us in writing the Rate of Interest for this
Advance.
ST. LUCIE COUNTY, FLORIDA
By:
County Administrator
{5000/09/00101256.DOCv5}