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HomeMy WebLinkAbout01-219RESOLUTION NO. 01- ~.__~q A RESOLUTION OF THE BOARD OF COUNTY COMMISSIOI, LUCIE COUNTY, FLORIDA, AUTHORIZING THE ACQUIS INSTALLATION OF ENERGY SAVING EQUIPMENT IN PROI BUILDINGS OF THE COUNTY, INCLUDING THE COURTE COURTHOUSE ANNEX, ROGER POITRAS BUILDING, ADMIlX BUILDING, CIVIC AUDITORIUM, ST. LUCIE COUNTY ] CENTER (ROCK ROAD JAIL), AGRICULTURE CEN EMERGENCY OPERATIONS CENTER; PROVDING BORROWING OF $3,010,595.36 TO FINANCE THE COST APPROVING THE PROPOSAL OF FIRST UNION NATIONAl MAKE A TERM LOAN TO THE COUNTY IN SUCH PRINCIPA PROVDING FOR THE ISSUANCE OF A $3,010,595.36 IMP REVENUE NOTE, SERIES 2001 (ENERGY EFFICIENCY PR EVIDENCE OF THE COUNTY'S OBLIGATION TO REPAY 5 LOAN; PROVIDING FOR THE PAYMENT OF THE NOTE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BEq COUNTY AND THE BANK CONTAINING TERMS AND C RELATING TO SUCH LOAN; COVENANTING TO BU] APPROPRIATE FROM NON-AD VALOREM REVENUES NECESSARY TO PAY THE PRINCIPAL OF AND INTERES~ NOTE; AUTHORIZING FURTHER OFFICIAL ACTION IN C( WITH THE DELIVERY OF THE NOTE AND THE LOAN Al AND PROVDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMI LUCIE COUNTY, FLORIDA: Section 1. Authority for this Resolution. This Resolution is ad( provisions of the Act. Section 2. Definitions. The following terms shall have the folio' used in this resolution unless the context clearly requires otherwise. Wore number shall include the plural number in each case and vice versa, and wo~ shall include firms and corporations. Capitalized terms used herein and shall have the meaning set forth in the Loan Agreement. "Act" means Chapter 125, Florida Statutes as amended, Ordina Board, as amended, and other applicable provisions of law. "Bank" means First Union National Bank, Deerfield Beach, Florida. "Board" means the Board of County Commissioners, as the gO 7746V2/28902-00107/R-AUTH 7746V2/28902-00107/R-AUTH SSIONERS OF ST. ,pted pursuant to the ving meanings when Is importing singular ds importing persons .or otherwise defined ce No. 87-77 of the vetoing body of the 'ERS OF ST. [TION AND 'ERTY AND OUSE AND 'ISTRATION )ETENTION FER, AND FOR THE THEREOF; BANK, TO ] AMOUNT; IOVEMENT OJECT), AS UCH TERM AND THE ~WEEN THE OND1TIONS )GET AND AMOUNTS ? ON SUCH )NNECTION ]REEMENT; "Chairman" means the Chairman of the Board, or in the Chairman Chairman. "Clerk" means the Clerk of the Circuit Court of St. Lucie Count' Clerk's absence, any Deputy Clerk. "County" means St. Lucie County, Florida, a political subdivision ot "County Administrator" means the County Administrator of the Cou "Covenant" means the covenant to budget and appropriate mom contained in Section 10 of the Loan Agreement. "Loan" means the advance of moneys from the Bank to the County Agreement. "Loan Agreement" means the Loan Agreement between the Bank aa forth the terms and details of the Loan, in substantially the form attached with such modifications and changes thereto as shall be approved by the advice of the County Attorney, such approval to be evidenced by the £ thereof. '2qote" means the Improvement Revenue Note, Series 2001 (Energ. of the County, which shall be in substantially the form attached to the Exhibit A, with such modifications and changes thereto as shall be approx upon the advice of the County Attomey, such approval to be evidencet execution thereof. "Paying Agent" means the Clerk of the Circuit Court of the County. "Project" means the acquisition and installation of energy saving e and buildings of the County, including the Courthouse and Courthouse t Building, Administration Building, Civic Auditorium, St. Lucie County De Road Jail), Agriculture Center and Emergency Operations Center, and all co "Proposal" means the proposal submitted to the County by the Bard 2001. "Project Costs" means all or a portion of the cost of undertaking the not limited to: engineering, legal, accounting, and financial expenses; expe costs and of revenues; expenses for plans, specifications and surveys; J financial advisors or consultants; administrative expenses relating so reimbursement to the County for any sums heretofore expended for the fore 7746V2/25902-00107/R-AUTH 's absence, the Vice Florida, or, in the the State of Florida. :ys to pay the Note >ursuant to the Loan the County setting hereto as Exhibit A, Chairman, upon the hairman's execution 7 Efficiency Project), Loan Agreement as ed by the Chairman, by the Chairman's [uipment in property amex, Roger Poitras tention Center (Rock sts incidental thereto. dated September 7, roject including, but :nses for estimates of bes of fiscal agents, lely to the Project; going purposes to the extent permitted under the Code; and such other costs and expenses as incidental to the financing of the Project. "Resolution" means this resolution and all resolutions ame supplemental hereto. Section 3. Findings. It is hereby found, declared, and determined b' (A) It is necessary and in the best interests of the health, safel County and its inhabitants that the County undertake the Project. The pursuant to the provisions of the Act to undertake the Project. (B) The County is without adequate, currently available funds and it is necessary and desirable and in the best interests of the County that necessary for the Project. The County is authorized pursuant to the pro~ borrow moneys necessary to pay the Project Costs. (C) The County has requested and received proposals fr~ institutions in connection with the Project, and, based upon the advice of tl & Co., Financial Advisor to the County, determines that it is in the best in that the Proposal be accepted. (D) It is necessary and desirable and in the best interests of the into the Covenant to secure repayment of the Loan. (E) It is necessary and desirable and in the best interests of the and approve the execution and delivery of the Loan Agreement and the Nc all other action in connection with the consummation of the Loan. (F) The County does not expect to issue more than $10 milli¢ interest on which is excluded from gross income under the provisions calendar year ending December 31, 2000, and is therefore, entitled to de~ "qualified tax-exempt obligation" pursuant to Section 265(b)(3)(B) of the C Section 4. Authorization Of Note; Designation Under Code Sect pursuant to the provisions hereof and in accordance with the provisions of and the Proposal, the issuance by the County of its Improvement Revenl (Energy Efficiency Project), in a principal amount of Three Million Ten Th Ninety-five and 36/100 Dollars ($3,010,595.36) to be dated, to bear inter mature, to be subject to redemption and to have such other characteristics as Agreement and the Proposal, and to be secured solely by the Covenant, The Note is hereby designated a "qualified tax-exempt obligation" nay be necessary or ~datory hereof and 'the Board: ~ and welfare of the :ounty is authorized o pay Project Costs, it borrow the moneys risions of the Act to ,m various lending te William R. Hough terests of the County County that it enter County to authorize rte, and the taking of ~n in obligations, the of the Code, in the ignate the Note as a )de. ion 265. Subject and the Loan Agreement ~e Note, Series 2001 )usand Five Hundred :st, to be payable, to provided in the Loan is hereby authorized. )ursuant to Section 265(b)(3)(B) of the Code. Section 5. Approval of Proposal. 7746V2/28902-00107/R-AIJTH The recommendation of Willi tn R. Hough & Co., 3 Financial Advisor to the County, to accept the Proposal is hereby appro~ hereby accepted. The County Attorney and Bond Counsel, are hereby autho proceed to prepare the necessary documents to consummate the Loan. Section 6. Approval of Form of Loan Agreement and Note. The the Note are hereby approved, and the Chairman and Clerk are hereby auth{ deliver the Loan Agreement and the Note to the Bank. Section 7. Authorization of Other Action. The Chairman, th Administrator, and the County Attorney are each designated agents of the ( with the execution and delivery of the Loan Agreement and the Note an~ empowered, collectively or individually, to take all action and steps to ex¢ and all instruments, documents or contracts on behalf of the County wh desirable in connection with the execution and delivery of the Loan Agree~ the Bank, including, but not limited to, the making of modifications to the the Note to conform the provisions thereof to the provisions of the Proposal. Section 8. Application of Proceeds of Loan. The proceeds applied solely to the payment of Project Costs. Section 9. Repeal of Inconsistent Provisions. All resolution', conflict with this resolution are hereby repealed to the extent of such conflic] Section 10. Severability. If any one or more of the covenants, agre, of this resolution should be held contrary to any express provision of law or of express law, though not expressly prohibited, or against public policy, o~ whatsoever be held invalid, then such covenants, agreements, or provisions and shall be deemed separate from the remaining covenants, agreements or way affect the validity of all other provisions of the Resolution or of the Not delivered hereunder. Section 11. Amendment. This resolution may not be amended or the prior written consent of the Bank. Section 12. Effective Date. This resolution shall take effect adoption. . P~gsed And Adopted this 25t~ day of September 2001, at a reguh '~and held:&~' . ?(SEAL) ~'d. The Proposal is rized and directed to Loan Agreement and ~rized to execute and : Clerk, the County ~ounty in connection l are authorized and cute and deliver any [ch are necessary or nent and the Note to Loan Agreement and )f the Loan shall be or parts thereof in nents, or provisions :ontrary to the policy ' shall for any reason .hall be null and void ~rovisions, and in no or Loan Agreement epealed except with mediately upon its meeting duly called 4 Cha~rhq~f~~ard of Count3~ 7746V2/28902-00107/R-AUTH ATTEST: By: Commissioners Clerk, Clerk of the Boarcl APPROVED AS T3 FORM AND County Attorney ~ 7746V2128902-00107/R-AU'I~ 7746V2/28902-00107/P,.-AUTH EXHIBIT A FORM OF LOAN AGREEMENT 3156 TERM LOAN AGREEMENT between ST. LUCIE COUNTY, FLORIDA and FIRST UNION NATIONAL BANK Dated September 28, 2001 Relating to St. Lucie County, Florida $3,010,595.36 Improvement Revenue Note, Series 2001 (Energy Efficiency Project) 7763v2/28902-OOIO7/A-LOAN AGMT TABLE OF CONTENTS Page SECTION 1. DEFINITIONS ....................................................................................................................... 1 SECTION 2. INTERPRETATION ............................................................................................................... 4 SECTION 3. THE LOAN ............................................................................................................................ 4 SECTION 4. DESCRIPTION OF NOTE ...................................................................................................... 4 SECTION 5. EXECUTION OF NOTE ........................................................................................................ 5 SECTION 6. REGISTRATION AND TRANSFER OF NOTE ..................................................................... 5 SECTION 7. NOTE MUTILATED, DESTROYED, STOLEN OR LOST ................................................... 6 SECTION 8. FORM OF NOTE ................................................................................................................... 6 SECTION 9. SECURITY FOR NOTE; NOTE NOT DEBT OF THE COUNTY ....................................... 6 SECTION 10. COVENANTS OF THE COUNTY ..................................................................................... 7 SECTION 11. REPRESENTATIONS AND WARRANTIES ........................................................................ 8 SECTION 12. CONDITIONS PRECEDENT .............................................................................................. 9 SECTION 13. NOTICES ............................................................................................................................. 9 SECTION 14. EVENTS OF DEFAULT DEFINED ................................................................................... 10 SECTION 15. REMEDIES ......................................................................................................................... 11 SECTION 16. NO RECOURSE .................................................................................................................. 11 SECTION 17. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIE AYS ............................. 11 SECTION 18. AMENDMENTS, CHANGES AND MODIFICATIONS ..................................................... 11 SECTION 19. BINDING EFFECT ............................................................................................................. 11 SECTION 20. SEVERABIL1TY ................................................................................................................. 11 SECTION 21. EXECUTION IN COUNTERPARTS .................................................................................. 12 SECTION 22. APPLICABLE LAW ........................................................................................................... 12 7763v2/28902-00107/A-LOAN AGMT This TERM LOAN AGREEMENT is made and entered into as ot and between ST. LUCIE COUNTY, FLORIDA (the "Countf'), and FIR~ BANK (the "Bank"). WITNESSETH: Whereas, the County has previously determined that it is necess~ best interests of the County and its inhabitants that the County undertak~ described, and that the Project will serve public purposes of the County; an( Whereas, the County has determined that it is without adequate cu] pay the Project Costs and that it will be necessary that funds be made a~ order to undertake the Project; and Whereas, pursuant to the Proposal, a copy of which is attached Bank has proposed to lend the County the aggregate principal amount of: the Project Costs; and Whereas, the County has determined that it is in the best interest welfare of the County and the inhabitants thereof that the County enter int the obligation of the County to repay the principal of and interest on the No the other payments provided for herein; and Whereas, the obligation of the County to repay principal of and int~ constitute a general obligation or indebtedness of the County as a "bond" provision of the Constitution of the State, but shall be and is hereby declar~ obligation of the County, secured solely by the Covenant in the manner pro Whereas, the County is not authorized and cannot be compell{ property of or in the County to pay the principal of or interest on the Nc payments provided for herein. Furthermore, neither the Note nor the int, constitute a lien upon the Project or upon any other property of or in the Co Now, Therefore, in consideration of the premises and the mutual and other good and valuable consideration, the receipt and sufficient acknowledged, the parties do hereby agree as follows: Section 1. Definitions. The following terms shall have the loll unless the text otherwise expressly requires: Act" means Chapter 125, Part I, Florida Statutes, as amended, On Board, as amended, and other applicable provisions of law. "Authorized County Representative" means the County Administra 7763v2/28902-00107/A-LOAN AGMT September 28, 2001, by T UNION NATIONAL try, desirable and in the the Project hereinafter 'ently available funds to ~ilable to the County in lereto as Exhibit B, the ;3,010,595.36 to finance ~f the health, safety, and the Covenant to secure e when due and to make rest on the Note will not ithin the meaning of any :d to be a special, limited ~ided herein; and :d to levy taxes on any ,te or to make any other :rest thereon shall be or anty; ovenants herein set forth y of which are hereby owing meanings herein, linance No. 87-77 of the tor or his designee. "Authorized Investments" means any investment, obligation, agre instnnnent to the extent not inconsistent with the terms of the investment applicable law. "Bank" means First Union National Bank, a national banking located at 1950 Hillsboro Boulevard, 2nd Floor, Deerfield Beach, Florida 33 "Board" means the Board of County Commissioners of the Count' of the County. "Bond Counsel" means Squire, Sanders & Dempsey L.L.P. ''Business Day" means any day of the year other than a day on County are lawfully closed for business. "Chairman" means the Chairman of the Board, or, in the Chaim Chairman of the Board, or such other person as may be duly authorized 1 behalf. "Clerk" means the Clerk of the Circuit Court for St. Lucie, Cc absence, any Deputy Clerk duly authorized to execute documents or take maybe, on the Clerk's behalf. "Code" means the Internal Revenue Code of 1986, as amended. "County" means St. Lucie County, Florida. "County Administrator" means the County Administrator, as the ~ the County. "Covenant" means the covenant of the Board to budget and app~ Note and the interest thereon, as set forth in Section 10(A) hereof. / "Default" mear~ an Event of Default as defined and described in Sc "Disbursement Date" means September 28, 2001, or such other d~ the Loan are disbursed :o the County. "Fiscal Year" rr.eans the period from each October 1 to the succeed "Interest Rate" means the annual interest rate of four and thirtee~ (4.13%), subject to adjustment as provided in Schedule 1 to the Note. "Loan" means the advance of moneys fi:om the Bank to the Corn Agreement. 7763V2/28902-00107/A-LOA-N AGMT 2 ~ment or other financial ~olicy of the County and Lssociation, with offices 442. ~, as the governing body which the Bank, or the tan'S absence, the Vice- o act on the Chairman's unty, or, in the Clerk's )ther action, as the case fief operating officer of opriate funds to pay the ..ction 16 hereof. Lte on which proceeds of ing September 30. one hundredths percent ty pursuant to this Loan "Loan Agreement" means this agreement between the Bank and th~ terms and details of the Loan. "Maturity Date" means the date on which the final principal paym with accrued interest, is due as shown on Exhibit A hereto. "Non-Ad Valorem Revenues" means all revenues received by the other than the levy of ad valorem taxes upon property, and (b) not restr unable to be applied to pay the principal of and interest on the Note. "Note" means the Improvement Revenue Note, Series 2001 (Enerl the County, substantially in the form attached hereto as Exhibit A. "Paying Agent" means the Clerk of the Circuit Court of the County "Payment Date" means the dates on which interest on, and principa as shown on Exhibit A, hereto. "Person" or words importing persons, means firms, associations without limitation, general and limited partnerships), joint ventures, corporations, public or governmental bodies, other legal entities, and natur "Pledged Revenues" means the Non-Ad Valorem Revenues bud deposited into the Sinking Fund pursuant to the Covenant. "Prepayment Date" means any date of prepayment of the princi County, whether in whole or in part. "Principal Amount" means Three Million Ten Thousand Five Hun. and 36/100 ($3,010,595.36). roject means the acqms~t~on and installation of energy saving eq buildings of the County, including the Courthouse and Courthouse Annex, Administration Building, Civic Auditorium, St. Lucie County Detention £ Agriculture Center and Emergency Operations Center. "Project Costs" means all or a portion of the cost of undertaking tl not limited to: engineering, legal, accounting, and financial expenses; ex costs and of revenues; expenses for plans, specifications and surveys; fees c advisors or consultants; administrative expenses relating solely to the Proje~ County for any sums heretofore expended for the foregoing purposes to th~ the Code; and such other costs and expenses as may be necessary or incidl the Project. "Proposal" means the proposal submitted to the County by the Ba 2001. 7763v2/28902-00107/A-LOAN AGMT County setting forth the ~nt on the Note, together County (a) fi'om sources cted by law so as to be y Efficiency Project), of of, the Note is payable, parmerships (including ocieties, estates, tmsts, persons. geted, appropriated and >al of the Note by the red Ninety-five Dollars aipment in property and Roger Poitras Building, enter (Rock Road Jail), e Project including, but penses for estimates of f fiscal agents, financial :t; reimbursement to the :extent permitted under total to the financing of nk, dated September 7, "Register" means the books maintained by the Registrar in which address of the Registered Owner of the Note. "Registered Owner" means the person in whose name the registered on the books maintained by the Registrar. The Registered Owner "Registrar" means the Person maintaining the Register. The Regis, Clerk. "Regulations" means the Income Tax Regulations promulgated Service under Sections 103 and 141 through 150 of the Code. "Resolution" means Resolution No. 01- , adopted by the Boar{ and all resolutions amendatory thereof and supplemental thereto "Sinking Fund" means the fund created pursuant to Section 9 hereo: "State" means the State of Florida. Section 2. Interpretation. Unless the context clearly reqttir~ masculine gender shall be construed to include correlative words of the fern and vice versa, and words of the singular number shall be construed to incl the plural number and vice versa. This Loan Agreement and all the terms have been negotiated between the County and the Bank; (b) shall not be c, of or against either party hereto; and (c) shall be construed to effectuate the and to sustain the validity hereof. Section 3. The Loan. A. Loan. The Bank hereby makes and the County hereby acc terms and conditions set forth herein. B. Disbursement of Proceeds. Proceeds of the Loan shall b{ Bank to the County by deposit of the principal amount thereof to or for thc 2:00 p.m. on the Disbursement Date in immediately available funds. Section 4. Description Of Note. The obligation of the County to evidenced by the Note. The Note shall be dated as of the Disbursement forth therein; shall be in registered form; and shall bear interest from its principal amount thereof, at the Interest Rate. Interest shall be payable as calculated on the basis of 360-day year consisting of twelve 30-day mot principal at the Interest Rate shown on Exhibit A hereto. The Note may b~ part prior to maturity upon the terms and conditions contained in the Note. a :e recorded the name and ~nership of the Note is shall be the Bank. trar shall initially be the )y the Internal Revenue on September 25, 2001, otherwise, words of inine and neuter genders ude correlative words of aid provisions hereof (a) )nstrued strictly in favor purpose set forth herein epts the Loan, upon the made available by the order of the County by repay the Loan shall be )ate; shall mature as set ate until payment of the set forth on Exhibit A, Lths, from its date as to prepaid in whole or in 4 7763v2/28902-00107/A-LO32q AGMT Section 5. Execution Of Note. The Note shall be executed in thc the Chairman and attested by the Clerk, and its corporate seal or a £acsimil thereto or reproduced thereon. The Note may be signed and sealed on person who at the actual time of the execution of the Note shall hold the County, although at the date thereof the person may not have been so auth~ executed by the facsimile signatures of the Chairman and/or Clerk, provi& foregoing signatures must be a manual signature. Section 6. Registration And Transfer Of Note. The Note shall qualities and incidents of a negotiable instrument under the Uni£orm Corm Securities Laws of the State of Florida, and each Registered Owner, in acc conclusively deemed to have agreed that such Note shall be and have incidents of negotiable instruments thereunder. There shall be a Registrar who shall be responsible for maintaining in whose name ownership of the Note is shown on the Register shall b~ Owner thereof by the County and the Registrar, who may treat the Register{ owner of the Note for all purposes, whether or not the Note shall be overd- contrary shall not be binding upon the County or the Registrar. Ownership of the Note may be transferred only upon the Register Registrar for transfer or exchange of the Note accompanied by an authorization for exchange, whichever is applicable, duly executed by the attomey duly authorized in writing, the Registrar shall deliver in the name, or the transferee or transferees, as the case may be, a new fully registered Iq maturity and interest rate as the Note surrendered. The Note presented for transfer, exchange, redemption or paymet County or the Registrar) shall be accompanied by a written instmment or ii authorization for exchange, in form and with guaranty of signature satisfacl Registrar, duly executed by the Registered Owner or by his duly authorized The County and the Registrar may charge the Registered Owx reimburse them for any expenses incurred in making any exchange or tra~ exchange or transfer following the delivery of such Note. The Registrar require payment fi:om the Registered Owner or his transferee, as the c sufficient to cover any tax, fee or other governmental charge that may thereto. Such charges and expenses shall be paid before any such new Note The new Note delivered upon any transfer or exchange shall be ~ County, evidencing the same debt as the Note surrendered, shall be sc Agreement, and shall be entitled to all of the security and benefits hereof t, Note surrendered. Whenever the Note shall be delivered to the Registrar for cancellati~ principal amount thereof, or for replacement, transfer or exchange, such Nol 7763v2/28902-00107/A-LOAN AGMT ,~ name of the County by : thereof shall be affixed all of the County by any appropriate office in the .rized. The Note may be ~d that at least one of the be and shall have all the nercial Code-Investment epting the Note, shall be all of the qualities and he Register. The person deemed the Registered ~d Owner as the absolute ~e, and any notice to the Upon surrender to the assignment or written Registered Owner or its >f the Registered Owner ote of the same amount, Lt (if so required by the ~stmments of transfer or ory to the County or the attorney. :er a sum sufficient to asfer after the first such >r the County may also ase may be, of a sum be imposed in relation shall be delivered. valid obligation of the '.cured under this Loan the same extent as the a, upon payment of the e shall be cancelled and destroyed by the Registrar, and counterparts of a certificate of dest destruction shall be furnished to the County. Section 7. Note Mutilated, Destroyed, Stolen Or Lost. In mutilated, or be destroyed, stolen or lost, upon the Registered Owner satisfactory indemnity and complying with such other reasonable regulafi{ County may prescribe and paying such expenses as the County may incur.. and deliver a new Note of like tenor as the Note so mutilated, destroyed, s substitution for the Note, if any, destroyed, stolen or lost, or in exchange mutilated Note, upon surrender of such mutilated Note, if any, to the Regi~ thereof; provided however, if the Note shall have matured or be about to m: substitute Note, the County may pay the same, upon being indemnified: Note be lost, stolen or destroyed, without surrender thereof. Any Note sur of this Section 7 shall be cancelled by the Registrar. Any such new Note issued pursuant to this section shall constitu~ contractual obligation on the part of the County whether or not, as to the r or destroyed Note be at any time found by anyone, and such new Note shal proportionate benefits and rights as to security for payment to the same ext~ issued hereunder. Section 8. Form Of Note. The Note shall be in substantially the with such variations, omissions and insertions as may be necessary, de~ permitted by this Loan Agreement. Section 9. Security For Note; Note Not Debt Of The Counl principal of and interest on the Note shall be secured forthwith solely by a the Pledged Revenues. The principal of and interest on the Note shall obligation or indebtedness of the County, and the Registered Owner shall r compel the levy of taxes upon any property of or in the County for the pa~. and interest on the Note. The Note shall not be secured by, nor constitute, upon any money of or in the County, but shall be secured solely by the manner provided herein. xtction evidencing such case the Note shall be furnishing the Registrar ,ns and conditions as the the Registrar shall issue :olen or lost, in lieu of or md substitution for such ;trar and the cancellation tture, instead of issuing a ks aforesaid, and if such :endered under the terms :e an original, additional .ew Note, the lost, stolen I be entitled to equal and mt as the Note originally >rm of Exhibit A hereto, .rable and authorized or y. The payment of the lien upon and pledge of not constitute a general ever have the right to or ment of the principal of lien upon the Project or 'ledged Revenues in the 6 7763v2/28902-00107/A-LOAN AGMT There is hereby created and established an "Improvement Rev (Energy Efficiency Project) Sinking Fund', which shall be maintained on tt a separate account (but need not be maintained as a separate bank or depot, ach Payment Date, the County will, pursuant to the Covenant, deposit int, Non-Ad Valorem Revenues mounts sufficient to pay the principal and k such Payment Date. Moneys in the Sinking Fund shall be used only to pa3 on the Note (including any Breakage Fee) and for no other purpose. Section 10. Covenants Of The County. Until the principal of ~nue Note, Series 2001 .e books of the County as it account). On or before > the Sinking Fund from terest due in the Note in · principal of and interest md interest on the Note shall have been paid in full or until provision for payment of the Note ~hall have been made in accordance with the provisions of this Loan Agreement, the County covef~ants with the Registered Owner of the Note as follows: ' / 1 A. Covenant to Budget and Appropriate. The County will bCdget and appropriate in each Fiscal Year from Non-Ad Valorem Revenues amounts sufficient t,) provide for the timely payment of the principal of and interest on the Note. The County will include in its annual budget, by amendment if necessary, such amounts of Non-Ad Valorem Revenu~,~s as shall be needed in order to provide for payment of the principal of and interest on the Note, x~ of the County under this Covenant shall be deemed to be junior and subc any specific source of Non-Ad Valorem Revenues, whether now existing shall not be deemed to preclude the County from hereafter pledging any Sl; Valorem Revenues to secure the payment of any debt or obligation of the so long as such future issuance will not have the effect of impairing the under this Loan Agreement and the Note or of making unavailable sufficie~ anticipated Non-Ad Valorem Revenues to make timely payment of the pri the Note. B. Pawnents. The County will make timely payments of all the Note when due by wire transfer to the Bank. C. Financial Statements. Not later than 180 days following th~ , the County will provide the Bank a copy of the Comprehensive Annual County. D. Annual Budget and Other Information. The County will pre accordance with the Act, and will provide to the Bank (i) a copy of its fina Fiscal Year within 30 days of adoption thereof by the Board and (ii) such as the Bank may reasonably request. E. Tax Compliance. The County will take all actions neces~, exclusion from gross income for purposes of the Code of interest on the lx on the date of issuance of the Note and (2) the status of the Note as obligation" within the meaning of Section 265(b)(3) of the Code. hen due. The obligation rdmate to any lien upon or hereafter created, and ecific source of Non-Ad County hereafter issued, )bligation of the County tt amounts of reasonably ncipal of and interest on >rincipal and interest on end of each Fiscal Year Financial Report of the )are its annual budget in annual budget for each ~ther public information ary to maintain (1) the )te to the same extent as "qualified tax-exempt 7 7763v2/28902-OOlO7/A-LOAN AGMT F. Coverage. While the Note is outstanding and unpaid, th~ Valorem Revenues (excluding amounts necessary for payment for service the health, safety and welfare of County residents or payments mandated two most recent Fiscal Years of the County must always equal or exce¢ (1.5x) the annual debt service payments on all outstanding and proposed d specified portion of Non-Ad Valorem Revenues. The County will certify compliance with this requirement. G. Other Covenants. The County shall comply with such add be required by the Bank pursuant to its Proposal and specified in Exhibit B Section 11. Representations And Warranties. The County re the Bank that: A. Organization. The County is a political subdivision, dul under the laws of the State of Florida. B. Authorization of Loan Agreement and Related Docume~ power and has taken all necessary action to authorize the execution ~ performance by the County of its obligations under, this Loan Agre, accordance with their respective terms. This Loan Agreement and th executed and delivered by the County and are valid and binding obl enforceable against the County in accordance with their respective terms, such enforcement may be limited by laws regarding bankruptcy, insol~ moratorium applicable to the County or by general principles of equity reg specific performance. C. Non-Ad Valorem Revenues. The County currently receiv Revenues and is legally entitled to covenant to budget and appropriate fi:or Revenues amounts necessary to pay the principal of and interest on the N Ad Valorem Revenues are estimated to be sufficient to pay the principal ot as the same becomes due. The County will take all lawful action necessary, continue to receive the Non-Ad Valorem Revenues in at least the arr principal and interest on the Note to the extent not paid fi:om some other ~ County shall not be required to maintain any specific program or provide ar may be a source of Non-Ad Valorem Revenues. D. Financial Statements. The financial statements of the Co~ ended September 30, 2000, previously provided to the Bank were prep~ generally accepted accounting principles and present fairly the financial ce of such date and the results of its operations for the period then ended. S: been no material adverse change in the financial condition, revenues (inclu the Non Ad Valorem Revenues), properties or operations of the County. average of the Non-Ad ~ and programs affecting ,y applicable law) for the one and one-half times :bt secured by all or any annually to the Bank its itional covenants as may attached hereto. 3resents and warrants to organized and existing s. The County has the nd delivery of and the ~'a'nent and the Note in , Note have been duly igations of the County, except to the extent that rency, reorganization or arding the availability of ~s the Non-Ad Valorem ~ such Non-Ad Valorem >te when due. The Non- and interest on the Note ~ to enable the County to ounts necessary to pay '.ource; provided that the y particular services that mty for the Fiscal Year tred in accordance with ndition of the County as nce such date, there has ding, without limitation, 8 7763v2/28902-00107/A-LOAN AGMT Section 12. Conditions Precedent. Thc obligation of the Bank to to the satisfaction of each of the following conditions precedent on or Date: A. Action. The Bank shall have received a copy of the Resolu and correct as of the closing date, together with an executed Loan Agree~ and the customary closing certificates. B. Incumbency of Officers. The Bank shall have received an the County in respect of each of the officers who is authorized to sign this related financing documents on behalf of the County. C. Opinion of County Attorney. The Bank shall have receive~ County Attorney as to (1) the corporate existence of the County; (2) Resolution; (3) the due authorization and execution of this Loan Agreem~ related f'mancing documents; and (4) the absence of litigation against ti existence or powers, or the proceedings for the authorization and issuance substance satisfactory to the Bank. D. Opinion of Bond Counsel. The Bank shall have received Bond Counsel or, alternatively, a letter fi:om Bond Counsel authorizing approving opinion of Bond Counsel delivered to the County in respect extent as if such opinion were addressed to the Bank. E. Representations and Warranties; No Default. The repres made by the County herein shall be tree and correct in all material re Disbursement Date, as if made on and as of such date; no Default sha continuing as of the Disbursement Date or will result fi:om the consummal Bank shall have received a certificate fi:om the County to the foregoing effe F. Other Documents. The Bank shall have received such oth~ and opinions as the Bank or its counsel shall have reasonably requested. Section 13. Notices. All notices, certificates or other communic~ sufficiently given and shall be deemed given when hand delivered, delive] by registered or certified mail, postage prepaid, or delivered by courier seJ following addresses: St. Lucie County, Florida County Administration Building 2401 S. E. Monterey Road Smart, Florida 34996 Attention: County Administrator, with a required copy to the County Attorney at the same address First Union National Bank make the Loan is subject >efore the Disbursement ./on certified as complete nent, the executed Note, ncumbency certificate of Loan Agreement and the I a written opinion of the he due adoption of the :nt and the Note and the Le County relating to its of the Note, in form and an approving opinion of the Bank to rely on the ;o the Note to the same rotations and warranties ~pects on and as of the [1 have occurred and be ion of the Loan; and the et. r documents, certificates tions hereunder shall be 'ed by telecopier, mailed vice to the parties at the 9 7763v2/28902-00107/A-LOAN AGMT 1950 Hillsboro Boulevard, 2nd Floor Deerfield Beach, Florida 33442 Attention: Government Banking Any of the above parties may, by notice in writing given to the others, different addresses to which subsequent notices, certificates or other coml~ Communication via telecopier shall be confn'med by delivery by hand, ma~ above, of an original promptly after such communication by telecopier. Section 14. Events Of Default Del'med. The following shall be this Loan Agreement, and the terms "Default" and "Events of Default" the context clearly indicates otherwise), any one or more of the following A. Failure by the County to make any payment of principal within three (3) days of the applicable Payment Date. B. Failure by the County to include in its annual budget or into the Sinking Fund the amounts required to pay the principal of and Fiscal Year to which the annual budget relates. C. Failure by the County to observe and perform any otho agreement on its part to be observed or performed under this Loan Agreen (30) days after written notice of such failure shall have been delivered to unless the Bank shall agree in writing to an extension of such time prior to D. The making of any warranty, representation or other statet an officer or agent of the County in this Loan Agreement or in any compliance with or in reference to this Loan Agreement which is false or n adverse respect; E. Payment default by the County on other debt secured by Nc or by a covenant to budget and appropriate form Non-Ad Valorem Revenu, F. The filing of a petition against the County under any ba~ arrangement, insolvency, readjustment of debt, dissolution or liquidation whether now or hereafter in effect, if an order for relief is entered und petition is not dismissed within sixty (60) days of such filing; G. The filing by the County of a voluntary petition in banl under any provision of any bankruptcy, reorganization, arrangement, ins debt, dissolution or liquidation law of any jurisdiction, whether now or consent by the County to the filing of any petition against it under such la~ H. The admission by the County of its insolvency or bankrup designate any further or mnications shall be sent. 1, or courier, as specified "Events of Default" under s aall mean (except where e' ?ents: f or interest on the Note , appropriate and deposit ir terest on the Note in the : covenant, condition or ~ent for a period of thirty the County by the Bank, ts expiration; tent by the County or by instrument furnished in [isleading in any material n-Ad ValOrem Revenues ~S. ffd'uptcy, reorganization, law of any jurisdiction, er such petition or such xuptcy or seeking relief )lvency, readjustment of tereafter in effect, or the or cy or its inability to pay its debts as they become due or that it is generally not paying its debts as s~ mh debts become due, or the County's becoming insolvent or bankrupt or making an assignment fo the benefit of creditors, 10 7763v2/28902-00107/A-LOAN AGMT or the appointment by court order of a custodian (including without limital or trustee) of the County or any of its property taking possession thereof in effect or such possession continuing for more than sixty (60) days. In addition, upon the occurrence of an Event of Default describe H, above, and upon the occun'ence of any other Event of Default and tl the County, by the Bank, the principal of and interest on the Note shall and payable. Any amount due hereunder not paid when due shall bear interes to the interest rate on the Note plus 3% per annum. Section 15. Remedies. The Bank may sue to protect and en_fi including the right to specific performance, existing under the laws of th~ United States of America, or granted and contained in this Loan Agreen compel the performance of all duties required by this Loan Agreement or be performed by the County, the Board or by any officer thereof, and ma this Loan Agreement to the fifll extent permitted or authorized by the law~ the United States of America, including acceleration of all amounts outs Agreement or the Note. The County waives its right to trial by jury in the in state or federal courts to enforce the terms of the Note or of this Loan, waives its fight to trial by jury in any such proceedings. interest present Section 16. No Recourse. No recourse shall be had for the payme on the Note or for any claim based on the Note or on this Loan or former member or officer of the Board or any person executing t2 Section 17. Payments Due On Saturdays, Sundays And Holid the date for making any payment or the last date for performance of any ~ right, as provided in this Loan Agreement, shall be other than a Business D performance shall be made on the succeeding Business Day with the sm done on the nominal date provided in this Loan Agreement, provided that obligation hereunder shall accrue at the applicable rate to and including the Section 18. Amendments, Changes And Modifications. This amended only in writing signed by both parties hereto. Section 19. Binding Effect. To the extent provided herein, this binding upon the County and the Bank and shall inure to the benefit of the their respective successors and assigns. Section 20. Severability. In the event any court of competent provision of this Loan Agreement invalid or unenforceable such holdin render unenforceable, any other provision hereof. ion a receiver, liquidator nd such order remaining d in paragraphs F, G or firty (30) days notice to mediately become due at the default rate equal ~rce any and all rights, State of Florida, of the .ent, and to enforce and ~y any applicable laws to take all steps to enforce of the State of Florida or tanding under this Loan ~vent of any proceedings ~greement, and the Bank at of the principal of and Agreement, against any ae Note. ays. In any case where ct or the exercise of any ~y, then such payment or ae force and effect as if interest on any monetary date of such payment. ,oan Agreement may be ,oan Agreement shall be 2ounty and the Bank and risdiction shall hold any shall not invalidate or 11 7763v2/28902-00107/A-LOAN AGMT Section 21. Execution In Counterparts. This Loan Agreemenl executed in several counterparts, each of which shall be an original and all but one and the same instrument. Section 22. Applicable Law. This Loan Agreement shall be gove accordance with the laws of the State. In Witness Whereof, the parties hereto have duly executed this L date first above written. ST. LUCIE COUNT (SE m) ATTEST: By: Clerk of the Circuit Court, ex-officio Clerk of the Board of County Commissioners By: Chairman, Board of County APPROVED AS TO CORRECTNESS: County Attorney FIRST UNION NA~ By: Title: may be simultaneously of which shall constitute med by and construed in Agreement as of the f, FLORIDA Commissioners FORM AND IONAL BANK 12 7763v2/28902-00107/A-LOAN AGMT EXHIBIT A FORM OF NOTE No. R-1 ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 20~ (Energy Efficiency Project) RATE OF INTEREST MATURITY DATE 4.13% October 1, 2012 REGISTERED OWNER: First Union National Bank PRINCIPAL AMOUNT: Three Million Ten Thousand Five Hundred Nin and 36/100 KNOW ALL MEN BY THESE PRESENTS, that St. Lucie Count3 for value received, hereby promises to pay to the Registered Owner desig~ assigns, solely from the special funds hereinafter mentioned, on Octob~ October 1 thereafter, to and including the Maturity Date specified above above Principal Amount, as shown on Schedule 2 attached hereto and fc "Schedule"), and to pay solely fi:om such funds interest thereon from the ~ the most recent date to which interest has been paid, whichever is applicab Principal Amount, interest at the Rate of Interest shown above, subject to Schedule 1 attached hereto, such interest being payable semi-annually on 1 (an "Interest Payment Date") commencing April, 2003, with all unpaid Maturity Date, by wire transfer in accordance with written instructions de] Owner to the County or by such other medium acceptable to the Count3 Owner. The principal of, premium, if any, and interest on this Note are pa2 the United States of America. Interest due hereon shall be calculated on th consisting of twelve 30-day months. The County may prepay this Note at any time by paying to th outstanding principal balance of the Note together with accrued interest t( and the Breakage Fee, if any determined as set forth in Schedule 3 hereto. $3,010,595.36 DATE OF ISSUE .eptember 28, 2001 ty-five Dollars ; Florida (the "County"), ated above, or registered ~r 1, 2003, and on each , the installments of the rming a part hereof (the late of this Note or from lc, until payment of such tdjustment as set forth in :ach April 1 and October merest being due on the ivered by the Registered 'and to such Registered fable in lawful money of basis of a 360-day year Registered Owner the the date of prepayment A-1 7763v2/28902-00107/A-LOAN AGMT This Note is issued to finance the costs of the acquisition and insta equipment in property and buildings of the County, including the Corn Annex, Roger Poitras Building, Administration Building, Civic Audito~ Detention Center (Rock Road Jail), Agriculture Center and Emergency Project"), under the authority of and in full compliance with the Constit~ State of Florida, including particularly Chapter 125, Florida Statutes, as a 87-77 of the Board, as amended, and other applicable provisions of law, ant duly adopted by the Board of County Commissioners (the "Board") on "Resolution"), and pursuant to a Loan Agreement between the County Bank, dated September 28, 2001 (the "Loan Agreement"), to which refer ascertain those terms and conditions. This Note is payable from and secured solely by the Pledged Rever the manner provided in, and subject to the terms and conditions of, the Agreement. The principal of and interest on this Note do not constitute indebtedness of the County, and the Registered Owner shall never hax compel the levy of taxes on any property of or in the County for the paym¢ interest on this Note. The principal of and interest on this Note are not se Project, or upon any property of or in the County, but are secured solely by the manner provided herein and in the Loan Agreement. Reference is mad for the provisions relating to the security for payment of this Note and the the County hereunder. The Registered Owner may sue to protect and enforce any and all ~ to specific performance, existing under the laws of the State of Florida. America, or granted and contained in the Loan Agreement, and to performance of all duties required by the Loan Agreement or by an performed by the County, the Board or by any officer thereof, and may tal Loan Agreement to the full extent permitted or authorized by the laws of t United States of America, including acceleration of all amounts of princi[ together with interest thereon. The County waives its right to trial by. proceedings in state or federal courts to enforce the terms of this Note o~ and the Registered Owner, by its acceptance of this Note, waives its right proceedings. This Note may be transferred or assigned by the Registered Own~ consent of the County provided that (1) the County is given notice of such (10) days prior to the next Interest Payment Date on the Notes and (2) the County an inveslrnent letter in form and substance materially the same as Bank to the County upon the original issuance hereof. 7763v2/28902-00107/A-LOAN AGMT A-2 lafion of energy saving house and Courthouse um, St. Lucie County ~)perations Center (''the ,ion and Statutes of the nended, Ordinance No. . Resolution No. 01- , eptember 25, 2001 (the ~d First Union National ~nce should be made to ues, as defined in and in [esolution and the Loan a general obligation or ~the right to require or at of the principal of and cured by a lien upon the the Pledged Revenues in e to the Loan Agreement duties and obligations of ights, including the right of the United States of ~nforce and compel the ~ applicable laws to be :e all steps to enforce the he State of Florida or the ,al outstanding hereunder ury in the event of any of the Loan Agreement, trial by jury in any such without the prior written transfer not later than ten transferee provides to the he letter provided by the Upon the occurrence of an Event of Default, as defmed in the Loan shall also be obligated to pay fi:om moneys budgeted and appropriated pm costs of collection and enforcement hereof, including attorneys' fees (in¢ appeal). It is hereby certified and recited that all acts, conditions and Constitution and laws of the State of Florida to be performed, to exist an¢ and in the issuance of this Note, have been performed, exist and have hapl form and time as so required. IN WITNESS WHEREOF, St. Lucie County, Florida, has caused by the Chairman or Vice-Chairman of its Board of County Commissior Clerk or Deputy Clerk of the Circuit Court, ex officio Clerk of the Board ot either manually or with their facsimile signatures, and its seal or a facsim impressed, imprinted, lithographed or reproduced hereon, all as of the Date Agreement, the County uant to the Covenant all luding fees incurred on things required by the to happen precedent to ened in regular and due this Note to be executed .ers, and attested by the County Commissioners, [le thereof to be affixed, .flssue above. (SEAL) ATTEST: By: Clerk of the Circuit Court, ex-officio Clerk of the Board of County Commissioners 7763v2/28902-00107/A-LOAN AGMT ST. LUCIE COUNTY, By: Chairman, Board of County Co: A-3 .ORIDA lrnissioners SCHEDULES TO ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 200 (Energy Efficiency Project) Schedule 1 - Schedule 2 - Schedule 3 - 7763v2/25902-00107/A-LOANAGMT Adjustments To Interest Rate In Certain Eve~ Is Amortization Schedule Breakage Fee SCHEDULE 1 ADJUSTMENTS TO INTEREST RATE IN CERTAIN The rate of interest on this Note shall be adjusted, as set forth bek The interest rate on the Note is based on (a) the status of the obligation under Section 103 of the Internal Revenue Code of 1986, as the status of the Note as a "qualified tax-exempt obligation" under Sec' Code; (c) the laws in effect on the Date of Issue of the Note; and (d) income tax rate in effect and applicable to the Registered Owner on t Note. If the Note should be determined not to be (a) a tax-exempt obl: Section 103 of the Code or (b) a "qualified tax-exempt obligation" f( 265(b)(3)(B) of the Code, the interest rate on the Note will be adjusted that such determination became effective in order to preserve to the Regi tax yield that the Registered Owner enjoyed on the Date of Issue of the ] also pay any additions'to tax, penalties, any interest on the Note, and resulting from such a determination. If the (A) laws in effect or (B) the maximum corporate income Date of Issue of the Note should change, the Registered Owner may adju Note retroactive to the date of such change to the extent necessary to pi Owner the after-tax yield that the Registered Owner enjoyed on the Date If any amounts due on the Note are in default, then the interest adjusted to the rate of the Rate of Interest on the Note plus 3% per annur Any additional interest, and any additions to tax, penalties and to the preceding paragraphs shall be payable on the earlier of the first the first interest payment date following the date the Registered Owner: amount due, and thereafter, such increased interest rate shall be pa3 interest would have otherwise been payable. The adjustments provider the obligation of the County to pay any additional amounts hereunder s of the Note until the expiration of the statute of limitations applicable to Revenue Service to determine that the Note was not a tax-exempt obli~ exempt obligation". 7763v2/28902-00107/A-LOAN AGMT SCHEDULE 1-1 VENTS W~ Note as a tax exempt amended ("Code"); (b) :ion 265(b)(3)(B) of the he maximum corporate te Date of Issue of the .gation for purposes of )r purposes of Section retroactive to the date ~tered Owner the after- qote. The County shall any an'ears in interest tax rate in effect on the st the interest rate on the ,~serve to the Registered )f Issue of the Note. :ate on the Note shall be 1. merest payable pursuant lay of the first month or totifies the County of the 'able on the same dates · for in this schedule and hall survive the payment he ability of the Internal :ion or a "qualified tax- Date SCHEDULE 2 ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 200 (Energy Efficiency Project) AMORTIZATION SCHEDULE Principal Interest 04/01/2003 186,506.38 10/01/2003 139,727.10 62,168.79 04/01/2004 _ 59,283.43 10/01/2004 269,835.41 59,283.43 04/01/2005 - 53,711.33 10/01/2005 280,979.62 53,711.33 04/01/2006 47,909.10 10/01/2006 292,584.07 47,909.10 04/01/2007 41,867.24 10/01/2007 304,667.80 41,867.24 04/01/2008 _ 35,575.85 10/01/2008 317,250.58 35,575.85 04/01/2009 _ 29,024.62 10/01/2009 330,353.03 29,024.62 04/01/2010 _ 22,202.83 10/01/2010 343,996.61 22,202.83 04/01/2011 15,099.30 10/01/2011 358,203.66 15,099.30 04/01/2012 7,702.40 10/01/2012 372,997.48 7,702.40 7763V2/28902-00107/A-LOAN AGMT SCHEDULE 2-2 Total P&I 186,506.38 201,895.89 59,283.43 329,118.84 53,711.33 334,690.95 47,909.10 340,493.17 41,867.24 346,535.04 35,575.85 352,826.43 29,024.62 359,377.65 22,202.83 366,199.44 15,099.30 373,302.96 7,702.40 380,699.88 SCHEDULE 3 ST. LUCIE COUNTY, FLORIDA IMPROVEMENT REVENUE NOTE, SERIES 200 (Energy Efficiency Project) BREAKAGE SCHEDULE In addition to principal, interest and any other amounts the County shall on demand pay the Bank any "Breakag~ for each Break Event. "Break Event" means any voh prepayment or acceleration, in whole or in part, of p occurring prior to the date such principal would, but fo acceleration, have become due ("Scheduled Due Date" which a Break Event occurs ("Break Date"), a Breakage if the rate under "A" below exceeds the rate under "B determined as follows: Breakage Fee = the Present Value of ((A-B)xC) + LIBOF The rate per annum equal to the sum of (i) the (bid side) of the U.S. Treasury security with a rr Maturity Date as reported by the Wall StreE published source) on the 'date the Interest Rate ("Lock in Date"), plus (ii) the corresponding sw~ the Lock in Date for a fixed rate payor to pay Ba of an interest rate swap of that maturity, plus (iii) A rate per annum equal to the sum of (i) the bon~ side) of the U.S. Treasury security with a ma Maturity Date as reported by the Wall Stre~ published source) on the Break Date, plus (ii) thc spread that Bank determines another sWap dealer on the Break Date for paying to Bank the fixed r~ rate swap of the maturity. The sum of the products of (i) each Affected each Affected Principal Period, times (ii) the nm Affected Principal Period divided by 360 (if Actual/360 Computation) or the actual number this Note uses the Actual/Actual Computation). "Affected Principal Amount" for an Affected Principal Period of this Note scheduled to be outstanding during that Aft SCHEDULE 3-1 tue under this Note, Fee" due hereunder ~ntary or mandatory 'incipal of this Note that prepayment or · For each date on :ee shall be due only below and shall be Breakage, where: ~ond equivalent yield aturity closest to the ,t Journal (or other ~f this Note was set p spread of Bank on ~k the fixed rate side .25%. equivalent yield (bid :urity closest to the ;t Journal (or other corresponding swap would quote to Bank ~te side of an interest Principal Amount for mber of days in that this Note uses the )f days in the year (if ; the principal amount ~cted Principal Period determined as of the relevant Break Date before giving effect t, that'Break Date, and for any prepayment, multiplying each sL times the Prepayment Fraction. "Affected Principal Period" is each period from and including a to but excluding the next succeeding Scheduled Due Date, pr such period shall begin on and includes the Break Date. SCHEDULE 3-2 the Break Event on th principal amount Scheduled Due Date ovided that the first "LIBOR Breakage" is any additional loss, cost or expense that respect to any hedge for the fixed rate of this Note base between the London interbank offered rate (for U.S. dollar del: maturity) available in the London interbank market at the begi period in which the Break Date occurs and that which is availal the Break Date. "Maturity Date" is the date on which the final payment of p would, but for any Break Event, have become due. "Prepayment Fraction" is a fraction equal to the principal a~ over the principal amount of this Note outstanding imme~ prepayment on the Break Date. "Present Value" is determined as of the Break Date usin discount rate. In addition, a Break Event shall be deemed to occur hereL ("Borrowing Date") after the date hereof but prior to any accE any advance of principal under this Note is scheduled to be m~ fails to be made on that Borrowing Date (whether due to Borrower's failure to borrow, the termination of any Ica unsatisfied condition precedent, or otherwise), in which case shall be a Break Date, the Affected Principal Amount for that based on the amount of the failed advance, and the Borrower to the Bank any Breakage Fee due hereunder for that Break Ev Breakage Fees are payable as liquidated damages, are a reas¢ the losses, costs and expenses Bank would incur in the event acceleration of this Note, .a, re not a penalty, will not require ( actual damages, and Bank s determination thereof shall be c in the absence of manifest error. For any Break Event her, Breakage Fee provisions supersede any breakage compens Borrower and Bank may have executed with respect to this N~ 7763v2/28902-OOlO7/A-LOAN AGMT SCHEDULE 3-3 lank may incur with on the difference )sits of the relevant ning of the interest de in that market on 'incipal of this Note ~ount being prepaid ]lately prior to that "B" above as the ~der if, on any date leration of this Note, ~de and that advance Borrower's default, n commitment, any that Borrowing Date Break Event shall be shall on demand pay ~nt. ~able pre-estimate of of any prepayment or daim for, or proof of, reclusive and binding ~under, the foregoing ~tion agreement that EXHIBIT B BANK'S PROPOSAL LETTER 7763v2/28902-00107/A-LOAN AGMT B-1