HomeMy WebLinkAbout09-284 RESOLUTION N0.09-284
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST.
LUCIE COUNTY, FLORIDA, SUPPLEMENTING RESOLUTION NO. 94-196;
PROVIDING FOR THE BORROWING OF $1,250,000 TO REFUND AMOUNTS
PREVIOUSLY DRAWN UNDER A SUNTRUST LINE OF CREDIT TO
FINANCE THE COST OF WATER IMPROVEMENTS WITHIN THE
HARMONY HEIGHTS MUNICIPAL SERVICES BENEFIT UNIT IN THE
COUNTY AS PREVIOUSLY AUTHORIZED BY THE BOARD; PROVIDING
FOR A TERM LOAN FROM SUNTRUST BANK TO THE COUNTY IN SUCH
PRINCIPAL AMOUNT PURSUANT TO THE COMMITMENT OF SUNTRUST
DATED JUNE 9, 2006; PROVIDING FOR THE ISSUANCE OF A $1,250,000
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2009A (HARMONY
HEIGHTS 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, Section 5.01(F) of the Master Resolution and Resolution No. 06-264, adopted
on August 22, 2006 (the "Commitment Resolution"), .and is supplemental to the Master Resolution
and the Commitment 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 or the Loan Agreement.
"Act" means .Chapter 125, Part I, Florida .Statutes; County Ordinance No. 87-77, as
amended; and other applicable provisions of law.
"Bank" means SunTrust Bank, a corporation organized and existing under the laws of the
State of Georgia, acting through its offices in West Palm Beach, Florida.
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"Board" means the Board of County Commissioners, as the governing body of the County.
"Bond Resolution" means, collectively, the Master Resolution, the Commitment
Resolution, this resolution and all resolutions amendatory thereof or hereof and supplemental
thereto or hereto.
"Chairman" means the Chaixman 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 Clexk's
absence, any Deputy Clerk.
"Commitment" means the commitment submitted to the County by the Bank, dated June 9,
2006.
"Commitment Resolution" means Resolution No. 06-264, adopted August 22, 2006,
accepting the Bank's Commitment to provide both interim and permanent loans to the County to
finance various MSBU Projects.
"County" means St. Lucie County, Florida, a political subdivision of the State of Florida.
"County Administrator" means the County Administrator of the County.
"Harmony Heights MSBU" means the MSBU established pursuant to Resolution No. 04-
140, adopted by the Board on May 4, 2004.
"Harmony Heights MSBU Assessment Resolutions" means, collectively, Resolution No. 07-
232, adopted August 7, 2007, approving the preliminary assessment roll, and a resolution to be
adopted adjusting and equalizing the final assessments levied against the affected properties.
"Harmony Heights MSBU Assessments" means the special assessments levied within the
Harmony Heights MSBU pursuant to the Harmony Heights MSBU Assessment Resolutions.
"Harmony Heights MSBU Bond" means the Special Assessment Improvement Bond, Series
2OO9A (Harmony Heights MSBU), of the County, which shall be in substantially the form attached
to the Loan Agreement as Exhibit A.
"Harmony Heights MSBU Project" means the water utility improvements within the
Harmony Heights MSBU in order to connect the properties to the regional water utility system.
"Harmony Heights MSBU Project Costs" means all or a portion of the cost of undertaking
the Harmony Heights MSBU Project including, but not limited to: construction costs of the
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improvements; acquisition of any lands, 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, capitalization of interest
for a reasonable period of time after. date of issuance and delivery of the Harmony Heights MSBU
Bond, establishment of reasonable reserves for payment of Debt Service; expenses and .costs of
issuance; reimbursement to the County for any sums heretofore expended for the foregoing
purposes; repayment of the advance made under the Line Of Credit; and such other costs and
expenses as may be necessary or incidental to the financing or refinancing of the Harmony Heights
MSBU Project.
"Line of Credit" means the principal amount of $10,000,000 made available by the Bank to
the County to finance the engineering and construction of capital projects within municipal
services benefit units and approved by the County pursuant to the provisions of the Commitment
Resolution, and a Loan Agreement, dated as of September 18, 2006, between the County and the
Bank.
"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.
"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.
"Prior Loan ' means the. advance of moneys to the County pursuant to the Line of Credit
for advances made for Harmony Heights MSBU Project Costs.
Section 3. Findings. It is hereby found, declared, and determined by the Board:
(A) The County has heretofore authorized (1) the creation of the Harmony Heights
MSBU; (2) the undertaking of the Harmony Heights MSBU Project; and (3) the levy. and
collection of the Harmony Heights MSBU Assessments, pursuant to the Preliminary
Assessment Roll, to pay the Harmony Heights MSBU Project Costs. The final Assessment Roll,
equalizing and adjusting the Harmony Heights MSBU Assessments will be adopted on or
before April, 2010. The County has outstanding the Prior Loan, the proceeds of which were
used to finance Harmony Heights MSBU Project Costs.
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(B) The County has completed the Harmony Heights MSBU Project and collected
prepayments of Harmony Heights MSBU Assessments, and it is necessary to borrow moneys to
be applied together with the prepayments of the Harmony Heights MSBU Assessments to
repay the Prior Loan and to pay other Harmony Heights MSBU Project Costs.
(C) Pursuant to the Commitment Resolution, the Commitment of the Bank to
provide permanent financing for MSBU Projects, including the Harmony Heights MSBU
Project, has been accepted by the County.
(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 Harmony Heights MSBU
Bond, and the taking of all other action in connection with the consummation of the Loan.
(E) The Board has accepted the Commitment of the Bank to provide the Loan. Because
of the complex nature of the Loan, the Harmony Heights MSBU Bond and the Loan Agreement,
the nature of the security for the Loan, and the fact that the Harmony Heights MSBU Bond is not
expected to be rated or insured, it is in the best interests of the County to sell the Harmony Heights
MSBU Bond to, and to obtain the Loan from, the Bank pursuant to a negotiated placement and in
accordance with the terms of the Commitment.
(F) The obligation of the County to repay the Harmony Heights MSBU Bond in
accordance with its terms and to make the payments required under the Loan Agreement is
hereby declared to be and shall be a special, limited obligation of the County, secured solely by
the Harmony Heights MSBU Assessments. The obligation of the County to repay the Harmony
Heights MSBU Bond in accordance with its terms and to make any other payments, if any,
required under the Harmony Heights MSBU Bond or the Loan Agreement shall not be or
constitute a general obligation or indebtedness of the County and neither the Harmony Heights
MSBU Bond nor the Loan Agreement shall be or constitute a "bond" of the County within the
meaning of Article VII, Section 12, Florida Constitution (1968). Neither the Bank nor any
successor owner of the Harmony Heights MSBU Bond shall be entitled to compel the levy of ad
valorem taxes by the County to pay the principal of and interest on the Harmony Heights
MSBU Bond or to make any payments required under the terms of the Loan Agreement.
Furthermore, the obligation of the County to repay the Harmony Heights MSBU Bond in
accordance with its terms and to make the payments, if any, required under the Loan
Agreement shall not constitute a lien upon or pledge of an interest in the Harmony Heights
MSBU Project or any other property of or in the County, but shall constitute a lien only upon
the Harmony Heights MSBU Assessments.
(G) The County does not expect to issue more than $30 million in obligations, the
interest on which is excluded from gross income under the provisions of the Code, in the calendar
year ending December 31, 2009, and is entitled to designate the Harmony Heights MSBU Bond as a
"qualified tax-exempt obligation" pursuant to Section 265(b)(3)(B) of the Internal Revenue Code of
1986, as amended (the "Code").
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Section 4. Authorization of Harmony Heights MSBU Bond. Subject and pursuant to the
provisions hereof and in accordance with the provisions of the Loan Agreement and the
Commitment, the issuance by the County of the Special Assessment Improvement Bond, Series
2009A (Harmony Heights MSBU), in a principal amount not to exceed One Million Two Hundred
Fifty Thousand Dollars ($1,250,000), to be in the exact principal amount, 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 Harmony Heights MSBU Bond and the Loan Agreement, and to be secured
solely by the Harmony Heights MSBU Assessments, is hereby authorized.
Section 5. Approval of Form of Loan Agreement and Harmony Heights MSBU Bond.
The Loan Agreement and the Harmony Heights MSBU Bond are hereby approved, and the
Chairman and Clerk are hereby authorized to execute and deliver the Loan Agreement and the
Harmony Heights MSBU Bond to the Bank.
Section 6. Authorization of Other Action. The Chairman, the 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 Harmony Heights MSBU Bond
and the repayment of the. Prior Loan 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 Harmony Heights MSBU Band to the Bank
and the repayment of the Prior Loan, including, but not limited to, the making of modifications to
the Loan Agreement and the Harmony Heights MSBU Bond to conform the provisions thereof to
the provisions of the Commitment.
Section 7. Application of Proceeds of Loan. The proceeds of the Loan shall be applied
solely to repayment of the Prior Loan and payment of Harmony Heights MSBU Project Costs.
Section 8. Designation Under Code Section 265(b)(3)(B). The Harmony Heights MSBU
Bond is hereby designated as a "qualified tax-exempt obligation" pursuant to Section 265(b)(3) of
the Code.
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.
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Section 10. Severability. If any one 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 Harmony Heights MSBU
Bond or Loan Agreement delivered hereunder.
Section 11. Amendment. This resolution may not be amended or repealed except with the
prior written consent of the Bank.
Section 12. Effective Date. This resolution shall take effect immediately upon its adoption.
Passed and Adopted this 22nd day of September 2009, at a regular meeting duly called and
held.
ST. LUCIE COUNTY, FLORIDA
(SEAL)
By:
Chair, Board of Co ty
Commissioners
ATTEST:
e k f the ircuit Court, ex-officio .~1
erk of the Board
APPROVED AS TO FORM AND
CORRECTNESS:
County Attorney
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EXHIBIT A
FORM OF LOAN AGREEMENT
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AGENDA
TERM LOAN AGREEMENT
between
ST. LUCIE COUNTY, FLORIDA
and
SUNTRUST BANK
Dated September 23, 2009
Relating to
St. Lucie County, Florida
$1,250,000
Special Assessment Improvement Bond, Series 2009A
(Harmony Heights MSBU)
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS ........................................................................................................1
SECTION 2. INTERPRETATION .............................................................................................:.4
SECTION 3. THE LOAN 5
SECTION 4. DESCRIPTION OF HARMONY HEIGHTS MSBU BOND ..............................5
SECTION 5. EXECUTION OF HARMONY HEIGHTS MSBU BOND ..................................5
SECTION 6. REGISTRATION AND TRANSFER OF HARMONY HEIGHTS MSBU
BOND .............................................................................................................................................5
SECTION 7. HARMONY HEIGHTS MSBU BOND MUTILATED, DESTROYED,
STOLEN OR LOST ........................................................................................................................6
SECTION 8. FORM OF HARMONY HEIGHTS MSBU BOND .............................................7
SECTION 9. SECURITY FOR HARMONY HEIGHTS MSBU BOND; HARMONY
HEIGHTS MSBU 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 ...............................................................................................................9
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 ..................................................................................................11
SECTION 22. EXECUTION IN COUNTERPARTS ................................................................12
SECTION 23. APPLICABLE LAW ...........................................................................................13
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This TERM LOAN AGREEMENT is made and entered into as of September 23, 2009, by
and between ST. LUCIE COUNTY, FLORIDA (the "County"), and SUNTRUST BANK (the
„B~„
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 Harmony
Heights MSBU Project hereinafter described, and that the Harmony Heights MSBU Project .will
serve essential public purposes of the County; and
WHEREAS, the County has previously determined to pay the Harmony Heights MSBU
Project Costs with the proceeds of the Prior Loan, and it is necessary that funds be made available
to the County in order to retire the Prior Loan and to provide permanent financing for the
Harmony Heights MSBU Project, and
WHEREAS, pursuant to the Commitment, a copy of which is attached hereto as Exhibit B,
the Bank has proposed to lend the County funds to permanently finance draws on the Line of
Credit, including funds necessary to finance the Harmony Heights MSBU 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 pledge the Harmony
Heights MSBU Assessments to secure the obligation of the County to repay the principal of and
interest on the Harmony Heights MSBU Bond when due; and
WHEREAS, the obligation of the County to repay principal of and interest on the
Harmony Heights MSBU 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 Harmony Heights MSBU Assessments 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 Harmony Heights MSBU Bond or to make any
other payments provided for herein. Furthermore, neither the Harmony Heights MSBU Bond
nor the interest thereon shall be or constitute a lien upon the Harmony Heights MSBU 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. 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 duly
enacted by the Board, as amended, and other applicable provisions of law.
"Authorized County Representative" means the County Administrator or her delegate.
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"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 and applicable law.
"Bank" means SunTrust Bank, a Georgia banking corporation, with offices located at 501
South Flagler Drive, 2nd 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., or any other attorney at law or a firm
of attorneys, designated by the Board, of nationally recognized standing in matters pertaining
to the tax-exempt nature of interest on bonds issued by states and their political subdivisions,
duly admitted to the practice of law before the highest court of any state of the United States of
America selected by the County.
"Business Day" means any day of the year other than a day on which the Bank, or the
County are lawfully closed for business.
"Chair" means the Chair of the Board of County Commissioners of the County, or, in the
Chair's absence, the Vice-Chairman of the Board of County Commissioners, or such other person
as may be duly authorized to act on the Chair'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.
"Commitment" means the commitment submitted to the County by the Bank, dated June
9, 2006, and accepted and approved by the Commitment Resolution.
"Commitment Resolution" means Resolution No. 06-264, adopted August 22, 2006,
accepting the Bank's Commitment to provide both interim and permanent loans to the County to
finance various MSBU Projects.
"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.
"Disbursement Date" means September 23, 2009, or such other date on which proceeds of
the Loan are disbursed to the County.
"Fiscal Year" means the period from each October 1 to the succeeding September 30.
"Harmony Heights MSBU" means the MSBU established pursuant to Resolution No. 04-
140, adopted by the Board on May 4, 2004.
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"Harmony Heights MSBU Assessment Resolutions" means, collectively, Resolution No.
07-232, adopted August 7, 2007, approving the preliminary assessment roll, and a resolution to be
adopted adjusting and equalizing the final assessments levied against the affected properties.
"Harmony Heights MSBU Assessments" means the special assessments levied within the
Harmony Heights MSBU pursuant to the Harmony Heights MSBU Assessment Resolutions.
"Harmony Heights MSBU Bond" means the Special Assessment Improvement Bond,
Series 2009A (Harmony Heights MSBU), of the County, which shall be in substantially the form
attached hereto as Exhibit A.
"Harmony Heights MSBU Project" means the water utility improvements within the
Harmony Heights MSBU in order to connect the properties to the regional water utility system.
"Harmony Heights MSBU Project Costs" means all or a portion of the cost of undertaking
the Harmony Heights MSBU Project including, but not limited to: construction costs of the
improvements; acquisition of any .lands, 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, capitalization of
interest for a reasonable period of time after date of issuance and delivery of the Harmony
Heights MSBU Bond, establishment of reasonable reserves for payment of Debt Service; expenses
and costs of issuance; reimbursement to the County for any sums heretofore expended for the
foregoing purposes; repayment of the advance made under the Line Of Credit; and such other
costs and expenses as may be necessary or incidental to the financing or refinancing of the
Harmony Heights MSBU Project.
Interest Rate means the rate per annum set forth in the form of Bond attached hereto as
Exhibit A, subject to adjustment as provided in Schedule I to the Harmony Heights MSBU Bond.
"Line of Credit" means the principal amount of $10,000,000 made available by the Bank to
the County to finance the engineering and construction of capital projects within municipal
services benefit units and approved by the County pursuant to the provisions of the Commitment
Resolution, and a Loan Agreement, dated as of September 18, 2006, between the County and the
Bank.
"Loan" means the advance of moneys from the Bank to the County pursuant to the Loan
Agreement.
"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
Harmony Heights MSBU Bond is due as shown on Exhibit A hereto.
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"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" means the dates on which interest on the Harmony Heights MSBU 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.
"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 One Million Two Hundred Fifty Thousand Dollars
($1,250,000).
"Prior Loan" means the advance of moneys to the County pursuant to the Line of Credit
for advances made for Harmony Heights MSBU Project Costs.
"Register' means the books maintained by the Registrar in which are recorded the name
and address of the Registered Owner of the Harmony Heights MSBU Bond.
"Registered Owner" means the person in whose name the ownership of the Harmony
Heights MSBU Bond is registered on the books maintained by the Registrar. The 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.
"Resolution" means, collectively, the Master Resolution and Resolution No. 09-284,
adopted by the Board on September 22, 2009, and all resolutions amendatory thereof and
supplemental thereto.
"State" means the State of Florida.
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.
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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. by the
Bank to the County by deposit of the principal amount thereof to or for the order of the County
by 12:00 p.m. on the Disbursement Date in immediately available funds.
SECTION 4. DESCRIPTION OF HARMONY HEIGHTS MSBU BOND. The obligation of
the County to repay the Loan shall be evidenced by the Harmony Heights MSBU Bond. The
Harmony Heights MSBU Bond 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 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. The Harmony Heights MSBU Bond may
be prepaid in whole or in part prior to maturity without penalty.
SECTION 5. EXECUTION OF HARMONY HEIGHTS MSBU BAND. The Harmony
Heights MSBU Bond shall be executed in the name of the County by the Chair and attested by the
Clerk, and its corporate seal or a facsimile thereof shall be affixed thereto or reproduced thereon.
The Harmony Heights MSBU Bond may be signed and sealed on behalf of the County by any
person who at the actual time of the execution of such Harmony Heights MSBU Bond shall hold
the appropriate office in the County, although at the date thereof the person may not have been
so authorized. The Harmony Heights MSBU Bond may be executed by the facsimile signatures
of the Chair and/or Clerk, provided that at least one of the foregoing signatures must be a manual
signature.
SECTION 6. REGISTRATION AND TRANSFER OF HARMONY HEIGHTS MSBU
BOND. The Harmony Heights MSBU 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 Harmony Heights MSBU Bond,
shall be conclusively deemed to have agreed that such Harmony Heights MSBU 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 Harmony Heights MSBU 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 Harmony Heights MSBU Bond for all
purposes, whether or not the Harmony Heights MSBU Bond shall be overdue, and any notice to
the contrary shall not be binding upon the County or the Registrar.
Ownership of the Harmony Heights MSBU Bond may be transferred only upon the
Register. Upon surrender to the Registrar for transfer or exchange of the Harmony Heights
MSBU 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 Harmony Heights MSBU Bond of the same amount, maturity
and interest rate as the Harmony Heights MSBU Bond surrendered.
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The Harmony Heights MSBU 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 Harmony Heights MSBU 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
Harmony Heights MSBU Bond shall be delivered.
The new Harmony Heights MSBU Bond delivered upon any transfer or exchange shall be
a valid obligation of the County, evidencing the same debt as the Harmony Heights MSBU 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 Harmony Heights. MSBU Bond
surrendered.
Whenever the Harmony Heights MSBU Bond shall be delivered to the Registrar for
cancellation, upon payment of the principal amount thereof, or for replacement, transfer or
exchange, such Harmony Heights MSBU 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.
SECTION 7. HARMONY HEIGHTS MSBU BOND MUTILATED, DESTROYED, STOLEN
OR LOST. In case the Harmony Heights MSBU Bond 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
Harmony Heights MSBU Bond of like tenor as the Harmony Heights MSBU Bond so mutilated,
destroyed, stolen or lost, in lieu of or substitution for the Harmony Heights MSBU Bond, if any,
destroyed, stolen or lost, or in exchange and substitution for such mutilated Harmony Heights
MSBU Bond, upon surrender of such mutilated Harmony Heights MSBU Bond, if any, to the
Registrar and the cancellation thereof; provided however, if the Harmony Heights MSBU Bond
shall have matured or be about to mature, instead of issuing a substitute Harmony Heights
MSBU Bond, the County may pay the same, upon being indemnified as aforesaid, and if such
Harmony Heights MSBU Bond be lost, stolen or destroyed, without surrender thereof. Any
Harmony Heights MSBU Bond surrendered under the terms of this Section 7 shall be cancelled
by the Registrar.
Any such new Harmony Heights MSBU 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 Harmony Heights MSBU Bond, the lost, stolen or destroyed Harmony Heights
MSBU Bond be at any time found by anyone, and such new Harmony Heights MSBU Bond shall
be entitled to equal and proportionate benefits and rights as to security for payment to the same
extent as the Harmony Heights MSBU Bond originally issued hereunder.
6
{ 5000/99/00379241.DOCv2 }
SECTION 8. FORM OF HARMONY HEIGHTS MSBU BOND. The Harmony Heights
MSBU 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.
SECTION 9. SECURITY FOR HARMONY HEIGHTS MSBU BOND; HARMONY
HEIGHTS MSBU BOND NOT DEBT OF THE COUNTY. The payment of the principal of and
interest on the Harmony Heights MSBU Bond shall be secured forthwith solely by the Harmony
Heights MSBU Special Assessments. The principal of and interest on the Harmony Heights
MSBU Bond shall not constitute a general 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 Harmony Heights MSBU
Bond. The Harmony Heights MSBU Bond shall not be secured by, or constitute a lien upon or
pledge of an interest in the Harmony Heights MSBU Project or upon any other property of or
in the County, but shall constitute a lien only upon the Harmony Heights MSBU Assessments
ui the manner provided herein.
SECTION 10. COVENANTS OF THE COUNTY. Until the principal of and interest on the
Harmony Heights MSBU Bond shall have been paid in full or until (a) there shall have been set
apart in the Sinking Fund a sum sufficient to pay when due the entire principal of and interest
accrued and to accrue on the Harmony Heights MSBU Bond to the Maturity Date, or (b)
provision for payment of the Harmony Heights MSBU Bond shall have been made in accordance
with the provisions of this Loan Agreement, the County covenants with the Registered Owner of
the Harmony Heights MSBU Bond as follows:
A. Collection of Assessments. The County will levy the Harmony Heights MSBU
Assessments in amounts sufficient to pay the principal and interest on the Harmony Heights
MSBU Bond in each year; will collect the Harmony Heights MSBU Assessments in the manner
specified in Section 197.3632, Florida Statutes; and will apply and deposit the proceeds of the
Harmony Heights MSBU Assessments into the "Harmony Heights MSBU Bond Sinking Fund",
hereby created and established (the "Sinking Fund"), and a Reserve Account therein. The
County will maintain the Sinking Fund as a separate, special fund on the books and records of the
County, and will continuously secure the moneys on deposit therein in the manner required for
deposits of public funds.
B. Reserve Account. On the Disbursement Date the County will deposit amounts
required pursuant to the Commitment into the Reserve Account and covenants to maintain such
amounts therein required pursuant to the Commitment, such moneys to be used to pay principal
of and interest on the Harmony Heights MSBU Bond if, at any time the amount on deposit in the
Sinking Fund is insufficient to pay the debt service on the Harmony Heights MSBU Bond.
C. Payments. The County will punctually pay from the Sinking Fund all principal of
and interest on the Harmony Heights MSBU Bond when due by wire transfer or other medium
acceptable to the County and the Bank.
D. Financial Statements. Not later than the earlier of 210 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 Harmony Heights MSBU Assessments as the Bank may reasonably
request in writing.
7
{ 5000/99/00379241.DOCv2 }
E. 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.
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 Harmony Heights MSBU Bond. The Harmony Heights MSBU
Bond has been designated 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 required by the Bank pursuant to the provisions relating to term loans contained in the
Commitment and 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. 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 Harmony
Heights MSBU Bond in accordance with their respective terms. This Loan Agreement and the
Harmony Heights MSBU 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. Harmony Heights MSBU Special Assessments. The County has duly adopted the
Harmony Heights MSBU Assessment Resolution levying the preliminary assessments and will,
by April 2010, adopt the Harmony Heights MSBU Assessment Resolution levying the final
assessments, with all adjustments thereto, thereby complying with all requirements of applicable
law in connection with the levy of the Harmony Heights MSBU Assessments. The Loan further
complies with the provisions of the Commitment, i.e., (1) the principal amount of the Harmony
Heights MSBU Bond does not exceed twenty percent (20%) of the aggregate taxable value of the
parcels subject to the Harmony Heights MSBU Assessments, (2) there are not less than ten (10)
individual parcels subject to the Harmony Heights MSBU Assessments, and (3) no individual
owner of record of parcels subject to the Harmony Heights MSBU Assessments owns parcels
with a combined taxable value greater than forty percent (40%) of the aggregate taxable value of
all parcels subject to the Harmony Heights MSBU Assessments.
the County has adopted the preliminary assessments and will, by [date] duly adopt the
final assessments and adjustments
D. Financial Statements. The financial statements of the County for the Fiscal Year
ended September 30, 2008, previously provided to the Bank have been prepared in accordance
with generally accepted accounting principles and present fairly the financial condition of the
8
{ 5000/99/00379241. DOCv2 }
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. 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 Harmony Heights MSBU Bond, 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 financing documents on behalf of the County.
C. Opinion of Counsel to the County. The Bank shall have received a written
opinion of the County Attorney 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 Harmony Heights. MSBU 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 Harmony Heights MSBU Bond, in form and
substance satisfactory to the Bank.
D. Opinion of Bond Counsel. The Bank shall have received an approving opinion of
Bond Counsel or, 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 Harmony Heights
MSBU Bond 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. TAX COMPLIANCE. Neither the County, nor any third party over whom
the County has control, will make any use of the proceeds of the Harmony Heights MSBU Bond
at any time during the term hereof which would cause the Harmony Heights MSBU Bond to be a
"private activity bond" within the meaning of Section 103(b)(1) of the Code or an "arbitrage
bond" within the meaning of Section 103(b)(2) of the Code or would cause the Harmony Heights
MSBU Bond not to be a qualified tax-exempt obligation under the provisions of Section 265(b) of
the Code. The County covenants throughout the term of the Harmony Heights MSBU Bond, to
comply with the requirements of the Code and the Regulations, as amended from time to time,
with respect to the Loan and the Harmony Heights MSBU Bond.
SECTION 14. NOTICES. All notices, certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when hand delivered, delivered by
9
{ 5000/99/00379241.DOCv2 }
telecopier, mailed by registered or certified mail, postage prepaid, or delivered by courier service
to the parties at the following addresses:
County: St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982-5652
Attention: County Administrator
Copy to: St. Lucie County, Florida
2300 Virginia Avenue
Fort Piece, Florida 34982-5652
Attention: County Attorney
Bank: SunTrust Bank
Institutional and Governmental Banking
501 South Flagler Drive, 2°d Floor
West Palm Beach, Florida 33401
Attention: John Winn, First Vice President
PH: 561/835-2677 and FX: 561/835-2640
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), any one 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 ar
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 oxder for relief is entered under such petition or such
petition is not dismissed within sixty (60) days of such filing;
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
10
{ 5000/99/00379241.DOCv2}
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 or 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 Harmony Heights MSBU Bond.
THE COUNTY AND THE REGISTERED OWNER OF THE HARMONY HEIGHTS
MSBU BOND EACH WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THE
HARMONY HEIGHTS MSBU BOND OR ARISING OUT OF, UNDER OR IN
CONJUNCTION WITH, THE HARMONY HEIGHTS MSBU BOND OR THIS LOAN
AGREEMENT.
SECTION 17. NO RECOURSE. No recourse shall be had for the payment of the principal
of and interest on the Harmony Heights MSBU Bond or for any claim based on the Harmony
Heights MSBU Bond or on this Loan Agreement, against any present or former member or officer
of the Board or any person executing the Harmony Heights MSBU Bond.
SECTION 18. 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 19. AMENDMENTS, CHANGES AND MODIFICATIONS. This Loan
Agreement may be amended only in writing signed by both parties hereto.
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.
SECTION 21. 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.
11
{ 5000/99/00379241.DOCv2 }
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
{ 5000/99/00379241.DOCv2 }
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:
Chair, Board of County
Commissioners
ATTEST:
By:
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
APPROVED AS TO FORM AND
CORRECTNESS:
County Attorney
13
{ 5000/99/00379241. DOCv2 }
SUNTRUST BANK
By:
Title:
14
{ 5000/99/00379241.DOCv2 }
EXHIBIT A
FORM OF BOND
No. R-1 $1,250,000
ST. LUCIE COUNTY, FLORIDA
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2009A
(HARMONY HEIGHTS MSBU)
RATE OF INTEREST MATURITY DATE DATE OF ISSUE
December 1, 2022 September 23, 2009
REGISTERED OWNER: SunTrust Bank
PRINCIPAL AMOUNT: One Million Two Hundred Fifty Thousand 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 December 1 of each
year, 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 at the Rate of Interest shown above, subject to adjustment as set forth in
Schedule I attached hereto, such interest being payable semi-annually on each June 1 and
December 1 (an "Interest Payment Date") commencing June 1, 2010, 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.
This Bond is issued to refinance the Prior Loan from the Line of Credit, which financed
the costs of the acquisition and construction of the Harmony Heights 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, and Resolution 94-196, duly
adopted by the Board of County Commissioners (the "Board") on September 20, 1994, as
amended and supplemented, particularly as supplemented by Resolution No. 09-284, adopted on
September 22, 2009 (collectively, the."Resolution"), and pursuant to a Loan Agreement between
the County and SunTrust Bank, dated September 23, 2009 (the "Loan Agreement"), to which
reference should be made to ascertain those terms and conditions.
A-1
{ 5000/99/00379241. DOCv2 }
This Bond is payable from and secured solely by a lien upon and pledge of the Harmony
Heights MSBU Special Assessments (the "Pledged Revenues") all in the manner provided in, and
subject to the terms and conditions of the Resolution and the Loan Agreement.
This Bond is subject to prepayment prior to its date of maturity at the option of the
County at any time without penalty.
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 Harmony Heights MSBU 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 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
the Loan Agreement to the full extent permitted or authorized by the laws of the State of Florida
or the United States of America.
THE COUNTY AND THE REGISTERED OWNER OF THIS HARMONY HEIGHTS
MSBU BOND EACH WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS
HARMONY HEIGHTS MSBU BOND OR ARISING OUT OF, UNDER OR IN
CONJUNCTION WITH, THE HARMONY HEIGHTS MSBU BOND OR THE RELATED
LOAN AGREEMENT.
This Bond 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 Bonds and (2) the
transferee provides to the County an investment letter in form and substance materially the same
as the letter provided by the Registered Owner 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, but only from the Pledged Revenues, 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 Bond, have been performed, exist and have happened in regular and
due form and time as so required.
A-2
{ 5 000/99(003 79241. DOCv2 }
IN WITNESS WHEREOF, St. Lucie County, Florida, has caused this Bond to be executed
by the Chair 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:
Chair of the Board of County
Commissioners
ATTEST:
By:
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
A-3
{ 5000/99/00379241.DOCv2 }
EXHIBIT B
BANK'S COMMITMENT LETTER
B-1
{ 5000(99/00379241.DOCv2 }
SCHEDULES TO
ST. LUCIE COUNTY, FLORIDA
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2009A
(HARMONY HEIGHTS MSBU)
{ 5 000/99/003 79241. DOCv2 }
SCHEDULE 1
ADJUSTMENTS TO INTEREST RATE IN CERTAIN EVENTS
(i) Adiustment of Interest Rate for Full Taxabilitv. In the event a Determination of
Taxability shall have occurred, the rate of interest on the Harmony Heights MSBU Bond shall
be increased to a rate per annum equal to 1.3250 times the interest rate borne by the Harmony
Heights MSBU Bond (the "Taxable Rate"), effective retroactively to the date on which the
interest payable on the Harmony Heights MSBU Bond is includable for federal income tax
purposes in the gross income of the Registered Owner thereof. In addition, the Registered
Owner of the Harmony Heights MSBU Bond or any former Registered Owners of the Harmony
Heights MSBU Bond, as appropriate, shall be paid an amount equal to any additions to tax,
interest and penalties, and any arrears in interest that are required to be paid to the United
States of America by the Registered Owner or former Registered Owners of the Harmony
Heights MSBU Bond as a result of such Determination of Taxability. All such additional
interest, additions to tax, penalties and interest shall be paid by the County within sixty (60)
days following the Determination of Taxability and demand by the Registered Owner. A
"Determination of Taxability" shall mean (i) the issuance by the Internal Revenue Service of a
statutory notice of deficiency or other written notification which holds in effect that the interest
payable on the Harmony Heights MSBU Bond is includable for federal income tax purposes in
the gross income of the Registered Owner thereof, which notice or notification is not contested
by either the County or any Registered Owner of the Harmony Heights MSBU $ond, or (ii) a
determination by a court of competent jurisdiction that the interest payable on the Harmony
Heights MSBU Bond is includable for federal income tax purposes in the gross income of the
Registered Owner thereof, which determination either is final and non-appealable or is not
appealed within the requisite time period for appeal, or (iii) the admission in writing by the
County to the effect that interest on the Harmony Heights MSBU Bond is includable for federal
income tax purposes in the gross income of the Registered Owner thereof.
(ii) Adiustment of Interest Rate for Partial Taxabilitv. In the event that interest on
the Harmony Heights MSBU Bond during any period becomes partially taxable as a result of a
Determination of Taxability applicable to less than all of the Harmony Heights MSBU Bond,
then the interest rate on the Harmony Heights MSBU Bond shall 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 Harmony Heights MSBU Bond .(expressed
as a percentage); and
(C) C equals the portion of the Harmony Heights MSBU Bond the interest on
which has become taxable as the result of such tax change (expressed as a
decimal).
In addition, the Registered Owner of the Harmony Heights MSBU Bond or any former
Registered Owner of the Harmony Heights MSBU Bond, as appropriate, shall be paid an
amount equal to any additions to tax, interest and penalties, and any arrears in interest that are
SCHEDULE 1-1
{ 5000/99/00379241. DOCv2 }
required to be paid to the United States by the Registered Owner or former Registered Owners
of the Harmony Heights MSBU Bond as a result of such Determination of Taxability. All such
additional interest, additions to tax, penalties and interest shall be paid by the County within
sixty (60) days following the Determination of Taxability and demand by the Registered
Owner.
(iii) Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In
the event that the maximum effective federal corporate tax rate (the "Maximum Corporate Tax
Rate") during any period with respect to which interest shall be accruing on the Harmony
Heights MSBU Bond on atax-exempt basis, changes from the Maximum Corporate Tax Rate
then in effect, the interest rate on the Harmony Heights MSBU Bond that is bearing interest on
atax-exempt basis shall be adjusted to the product obtained by multiplying the .interest rate
then in effect on the Harmony Heights MSBU Bond by a fraction equal to (1-A divided by 1-B),
where A equals the Maximum Corporate Tax Rate in effect as of the date of adjustment and B
equals the Maximum Corporate Tax Rate in effect immediately prior to the date of adjustment.
(iv) Adjustment of Interest Rate for Other Chan;;es Affecting After-Tax Yield. So
long as any portion of the principal amount of the Harmony Heights MSBU Bond or interest
thereon remains unpaid (a) if any law, rule, regulation or executive order is enacted or
promulgated by any public body or governmental agency which changes the basis of taxation
of interest on the Harmony Heights MSBU Bond or causes a reduction in yield on the Harmony
Heights MSBU Bond (other than by reason of a change described above) to the Registered
Owner or any former Registered Owners of the Harmony Heights MSBU Bond, including
without limitation the imposition of any excise tax or surcharge thereon, or (b) if, as result of
action by any pubic body or governmental agency, any payment is required to be made by, or
any federal, state or local income tax deduction is denied to, the Registered Owner or any
former Registered Owners of the Harmony Heights MSBU Bond (other than by reason of a
change described above or by reason of any action or failure to act on the part of any Owner or
any formers Registered Owner of the Harmony Heights MSBU Bond) by reason of the
ownership of the Harmony Heights MSBUBond, the County shall reimburse any such Owner
within five (5) days after receipt by the County of written demand for .such payment, and the
County agrees to indemnify each such Owner against any loss, cost, charge or expense with
respect to any such change. The determination of the after-tax yield calculation shall be
verified by a firm of certified public accountants regularly employed by the Bank (or the
current Owners of the Harmony Heights MSBU Bond) and acceptable to the County, and such
calculation, in the absence of manifest error, shall be binding on the County and the Registered
Owner.
SCHEDULE 1-2
{ 5000/99/00379241. DOCv2 }
SCHEDULE 2
ST. LUCIE COUNTY
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2009A
(HARMONY HEIGHTS MSBU)
AMORTIZATION SCHEDULE
EXHIBIT B
Date Payment Interest Principal Balance
6/1/2010
12/1/2010
6/1/2011
12/1/2011
6/1/2012
12/1 /2012
6/1/2013
12/1/2013
6/1/2014
12/1/2014
6/1/2015
12/1/2015
6/1/2016
12/1/2016
6/1/2017
12/1/2017
6/1/2018
12/1/2018
6/1/2019
12/1/2019
6/1 /2020
12/1 /2020
6/ 1 /2021
12/1 /2021
6/1 /2022
12/1 /2022
Totals: $ $ $1,250,000.0
0
{ 5000/99/00379241. DOCv2 }