HomeMy WebLinkAbout10-214~PV~ ~n
~'lJ-~' RESOLUTION N0.10-214
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST.
LUCIE COUNTY, FLORIDA SUPPLEMENTING RESOLUTION NO. 10-052;
AUTHORIZING AND AWARDING THE NEGOTIATED SALE OF THE
COUNTY'S SPECIAL ASSESSMENT IMPROVEMENT REVENUE BOND
(NORTH LENNARD ROAD3 MSBU PROJECT), SERIES 2010C; APPROVING
THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF
A LOAN AGREEMENT BETWEEN THE COUNTY AND JPMORGAN CHASE
BANK, N.A. AS THE INITIAL PURCHASER OF THE BOND; DESIGNATING
THE BOND AS A "QUAI IFIED TAX-EXEMPT OBLIGATION FOR PURPOSES
OF SECTION 265(b)(3)(B) OF THE CODE; PROVIDING CERTAIN OTHER
MATTERS RELATED THERETO 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 Chapter 125, Part I, Florida Statutes, Ordinance No. 87-77 of the Board of County
Commissioners (the "Board") of St. Lucie County, Florida (the "County"), as amended, and
Resolution No, 94-196, adopted on September 20, 1994, as supplemented and amended from time
to time (the "Master Resolution") and other applicable provisions of law.
Section 2. Definitions. Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in Resolution No. 10-052 adopted by the Board on February 2, 2010 (the
"Series Resolution') and the Master Resolution, as the case may be.
"Bank" means JPMorgan Chase Bank, N.A.
"Chairman" means the Chairman of the Board, or in the Chairman's absence, the Vice
Chairman.
"Clerk" means the Clerk of the Circuit Court of the County or, in the Clerk's absence, any
Deputy Clerk.
"Commitment" means the Commitment dated May 14, 2010 received by the County from
the Bank, for the purchase of the Series 2010C Bond and attached hereto as Exhibit B.
"County Administrator" means the County Administrator of the County, as the chief
administrative officer.
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"Loan Agreement" means the 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 or changes thereto as may be necessary or desirable, in the opinion of the Chairman,
upon the advice and recommendation of Public Financial Management, Inc., the Count}~s
Financial Advisor, the County Attorney, and Bond Counsel, to conform the terms thereof to the
terms of the Commitment or to secure for the County any additional rights or privileges not
inconsistent with the terms of the Commitment, such approval to be presumed by the execution
and delivery thereof by the County to the Bank.
"Series 20100 Bond" means the County's Special Assessment Improvement Bond (North
Lennard Road3 Project), Series 20100.
Section 3. Findings. It is hereby found, declared, and determined by the Board.
(A) The Board previously adopted the Series Resolution authorizing the issuance of the
Series 20100 Bond to finance the North Lennard Road3 MSBU Project.
(B) The County issued a request for proposals on March 29, 2010 and received four
proposals from various financial institutions to lend not to exceed $266,000 in aggregate principal
amount to finance the North Lennard Road3 MSBU Project Costs (the "Loan').
(C) Following review and recommendation from Public Financial Management, Inc.,
the Counts Financial Advisor, the Board has determined that the Bank's Commitment presented
the proposal most favorable to the County.
(D) Because of the complex nature of the Loan, the Series 20100 Bond and the Loan
Agreement, the nature of the security for the Loan, the fact that the Series 20100 Bond is not
expected to be rated or insured and the need for an expeditious sale of the Series 20100 Bond to
timely provide funds for the North Lennard Road3 MSBU Project Costs, it is in the best interests of
the City to sell the Series 20100 Bond to the Bank pursuant to a negotiated sale and in accordance
with the terms hereof and the Commitment.
(E) The Board now desires to approve award the sale of the Series 20100 Bond to the
Bank.
(F) `The Board further desires to approve the form of and authorize the execution and
delivery of the Loan Agreement to provide for the terms of the Loan and the sale of the Series
20100 Bond to the Bank.
(G) It is necessary and desirable and in the best interests of the health, safety and
welfare of the County and its residents to provide for the securing of the County's obligation to
repay the Loan by executing and delivering the Loan Agreement, and issuing the Series 20100
Bond in connection therewith.
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Section 4. Approval of Commitment; Sale of the Series 20100 Bond. The County
Administrator, upon the recorrunendation of the Financial Advisor, is hereby delegated the
authority to accept the Commitment on behalf of the County. The County Attorney and Bond
Counsel, are hereby authorized and directed to proceed to prepare the necessary documents to
consummate the Loan. The negotiated sale of the Series 20100 Bond to the Bank is hereby
authorized.
Section 5. Approval of Form of and Execution and Delivery of Loan Agreement. The
form of the Loan Agreement attached thereto as Exhibit A and incorporated herein by this
reference, is hereby approved, and the Chairman and Clerk are hereby authorized to execute and
deliver such documents and to take such other actions as shall be necessary to consummate the
Loan.
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Section 6. Designation as "Qualified Tax-Exempt Obligation. The Series 20100 Bond is
hereby designated as a "qualified tax-exempt obligation' for purposes of Section 265(b)(3)(B) of the
Code.
Section 7. Repeal of Inconsistent Provisions. All resolutions or parts thereof in conflict
with this resolution are hereby repealed to the extent of such conflict.
Section 8. 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 this resolution or of the Series 20100 Bond or Loan
Agreement delivered hereunder.
Section 9. Amendment. After the issuance of the Series 20100 Bond, the resolution may
not be amended or repealed except with the prior written consent of the Bank.
[Remainder of page intentionally left blank]
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Section 9. Effective Date. This resolution shall take effect immediately upon its adoption.
(SEAL)
ATTEST:
By:
Passed and Adopted this 27th day of July 2010, at a regular meeting duly called and held.
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the cuit Court, ex-officio
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ST. LUCIE CO LORIUA
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By:
Chairman, o d of County
Commissioners
APPROVED AS TO FORM AND
CORRECTNESS:
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,~5~" County Attorney
{ 25048/001 /00450521. DOC v2 f
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BMO DRAFT #2
July 16, 2010
LOAN AGREEMENT
between
ST. LUCIE COUNTY, FLORIDA
and
JPMORGAN CHASE BANK, N.A.
Dated August J 2010
Relating to
St. Lucie County, Florida
Special Assessment Improvement Bond, Series 2010C
(North Lennard Road3 MSBU)
TABLE OF CONTENTS
Page
SECTION 1. DEFINTITONS .....................................................................................................................2
SECTION 2. INTERPRETATION ........................................................................................................... .5
SECTION 3. THE LOAN ......................................................................................................................... .5
SECTION 4. DESCRIPTION OF SERIES 2010C BOND; PAYMENT OF THE SERIES 2010C
BOND .......................................................................................................................................................... .5
SECTION 5. APPLICATION OF PROCEEDS ...................................................................................... .6
SECTION 6. EXECUTION OF SERIES 2010C BOND ......................................................................... .6
SECTION 7. REGISTRATION AND TRANSFER OF SERIES 2010C BOND ................................... .6
SECTION 8. SERIES 2010C BOND MUTILATED, DESTROYED, STOLEN OR LOST ..................7
SECTION 9. FORM OF SERIES 2010C BOND ......................................................................................8
SECTION 10. SECURITY FOR SERIES 2010C BOND; COVENANT TO BUDGET AND
APPROPRIATE NON-AD VALOREM REVENUES ............................................................................8
SECTION 11. COVENANTS OF THE COUNTY ..................................................................................9
SECTION 12. REPRESENTATIONS AND WARRANTIES .............................................................. 10
SECTION 13. CONDITIONS PRECEDENT ........................................................................................ 11
SECTION 14. NOTICES .......................................................................................................................... 12
SECTION 15. EVENTS OF DEFAULT DEFINED ............................................................................... 13
SECTION 16. REMEDIES ....................................................................................................................... 14
SECTION 17. WAIVER OF JURY TRIAL ............................................................................................. 14
SECTION 18. NO RECOURSE .............................................................................................................. 14
SECTION 19. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS .................... 14
SECTION 20. AMENDMENTS, CHANGES AND MODIFICATIONS ........................................... 14
SECTION 21. BINDING EFFECT .......................................................................................................... 14
SECTION 22. SEVERABII,ITY ............................................................................................................... 14
SECTION 23. EXECUTION IN COUNTERPARTS ............................................................................ 15
SECTION 24. APPLICABLE LAW ........................................................................................................ 15
LOAN AGREEMENT
This LOAN AGREEMENT is made and entered into on the _ day of August, 2010, by
and between ST. LUCIE COUNTY, FLORIDA (the "County"), and JPMORGAN CHASE
BANK, N.A. (the "Bank").
WITNESSETH:
WHEREAS, the County has previously determined that it is necessary, desirable and in
the best interests of the County and its inhabitants that the County undertake the North
Lennard Road3 MSBU Project (as defined in the herein described North Lennard Road3 MSBU
Series Resolution), and that the North Lennard Road3 MSBU Project will serve the essential
public purposes of the County; and
WHEREAS, the County has previously determined to pay the North Lennard Road3
MSBU Project Costs with the proceeds of the County's Special Assessment Improvement Bond,
Series 2010C (North Lennard Road3 MSBU Project) (the "Series 2010C Bond"); and
WHEREAS, the County issued a request for proposals on March 29, 2010 and received
four proposals from various financial institutions to lend not to exceed $5,200,000 in aggregate
principal amount to finance the North Lennard Road3 MSBU Project Costs (the "Loan"); and
WHEREAS, following review and recommendation from Public Financial
Management, Inc., the County's financial advisor, the County Commission has determined that
the Bank presented the proposal most favorable to the County (the "Commitment"); and
WHEREAS, the County has accepted the Commitment and the Bank is willing to
provide the Loan to the County, as provided in the Bond Resolution (as defined below) and
herein, but only upon the terms and conditions hereof and thereof; and
WHEREAS, the Series 2010C Bond will be secured by the North Lennard Road3
Pledged Revenues; and
WHEREAS, the obligation of the County to repay the principal of, interest on and other
amount becoming due under each of the Series 2010C 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 North Lennard Road3
Pledged Revenues (as such term is defined herein) in the manner provided herein; and
WHEREAS, in the event and only to the extent North Lennard Road3 Pledged
Revenues are insufficient to meet the Debt Service requirements of the Series 2010C Bond, the
County has agreed to covenant to budget and appropriate sufficient Non-Ad Valorem
Revenues,
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
set forth and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Bond Resolution. As used herein, the following
terms shall have the following meanings, 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.
"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 JPMorgan Chase Bank, N.A., a national bank, with offices located at 420
S. Orange Avenue, Suite 250, Orlando, Florida 32801.
"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.
"Bond Resolution" means, collectively, the Master Resolution, as supplemented from
time to time, particularly as supplemented by the North Lennard Road3 MSBU Series
Resolution and the Commitment Resolution, and all resolutions amendatory thereof and
supplemental thereto.
"Business Day" means any day of the year other than a day on which the Bank or the
County are lawfully closed for business.
"Chairman" means the Chairman of the Board of County Commissioners of the County,
or, in the Chairman's absence, the Vice-Chairman of the Board of County Commissioners, or
such other person as may be duly authorized to act on the Chairman's behalf.
"Clerk" means the Clerk of the Circuit Court for St. Lucie, County, ex-officio Clerk of
the Board of County Commissioners of the 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
May 14, 2010, and accepted and approved by the Commitment Resolution.
"Commitment Resolution" means collectively, Resolution No. 10-~ adopted July 27,
2010 which supplemented the North Lennard Road3 MSBU Series Resolution, accepting the
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Bank's Commitment to provide the Loan to the County to finance the North Lennard Road3
MSBU Project Costs.
"County" means St. Lucie County, Florida.
"County Administrator" means the County Administrator, as the chief operating officer
of the County.
"Debt Service" means all principal of, interest on and other amount coming due on the
Series 2010C Bond.
"Default" means an Event of Default as defined and described in Section 16 hereof.
"Default Rate" means the Interest Rate plus percent (_%); provided, however,
that the Default Rate shall not exceed the Maximum Rate.
"Disbursement Date" means August J 2010 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.
"Interest Payment Date" means each February 1 and August 1, commencing February 1,
2011 and continuing until and including the Maturity Date.
"Interest Rate" means the rate per annum born by the Series 2010C Bond, which shall
be a fixed rate of interest equal to _%, calculated on the basis of a 360-day year consisting of
twelve (12) thirty (30) day months, and subject to adjustment as provided in the Series 2010C
Bond.
"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 August 1, 2025.
"Maximum Rate" means twelve percent (12%) per annum.
"MSBU" means a Municipal Services Benefit Unit created pursuant to resolution of the
Board adopted from time to time.
"Non-Ad Valorem Revenues" means all legally available non-ad valorem revenues of
the County budgeted, appropriated and deposited in the Sinking Fund; provided, however,
that Non-Ad Valorem Revenues shall be received by the County (a) be received by the County
from sources other than the levy of ad valorem taxes upon property, and (b) not be restricted
by law so as to be unable to be applied to pay the Debt Service on the Series 2010C Bond, and
to make the other payments, if any, required under the Series 2010C Bond or under this Loan
Agreement.
"North Lennard Road3 MSBU" means the MSBU established pursuant to Resolution No.
00-105, adopted by the Board on June 6, 2000.
"North Lennard Road3 MSBU Assessment Resolutions" means the resolutions adopted
by the Board with respect to the North Lennard Road3 MSBU providing for the levy and
collection of the North Lennard Road3 MSBU Special Assessments within the North Lennard
Road3 MSBU, including Resolution No. 00-105, adopted June 6, 2000, Resolution No. 10-048
adopted February 2, 2010, and any resolution supplemental thereto or amendatory thereof.
"North Lennard Road3 MSBU Series Resolution" means Resolution No. 10-052 adopted
by the Board on February 2, 2010, which supplemented the Master Resolution and authorized the
issuance of the Series 2010C Bond to finance the North Lennard Road3 MSBU Project Costs.
"North Lennard Road3 MSBU Special Assessments" means the special assessments levied
within the North Lennard Road3 MSBU pursuant to the North Lennard Road3 Assessment
Resolutions.
"North Lennard Road3 Pledged Revenues" means with respect to the Series 2010C Bond,
(i) the North Lennard Road3 MSBU Special Assessments, (ii) the moneys on deposit in the North
Lennard Road3 Subaccounts established for the Series 2010C Bond, and (iii) the Investment
Earnings allocable to such North Lennard Road3 MSBU Special Assessments (the "North
Lennard Road3 Investment Earnings').
"Paying Agent" means the Clerk of the County.
"Payment Date" means collectively, Principal Payment Dates, Prepayment Dates,
Interest Payment Dates and the Maturity Date.
"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; provided, however, no Prepayment Date shall be prior to
August J 2011.
"Principal Payment Date" means August 1, 2011 and each August 1 thereafter until and
including the Maturity Date.
"Principal Amount" means Dollars ($ ).
"Register" means the books maintained by the Registrar in which are recorded the
name and address of the Registered Owner of the Series 2010C Bond.
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"Registered Owner" means the person in whose name the ownership of the Series
2010C Bond is registered on the books maintained by the Registrar. The initial Registered
Owner for the Series 2010C Bond 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.
"Series 2010C Bond" means the Special Assessment Improvement Bond, Series 2010C
(North Lennard Road3 MSBU), of the County, which shall be in substantially the form attached
as Exhibit A hereto.
"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.
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., Eastern Time, on the Disbursement Date in immediately available funds.
SECTION 4. DESCRIPTION OF SERIES 2010C BOND• PAYMENT OF THE SERIES
2010C BOND. The obligation of the County to repay the Loan shall be evidenced by the Series
2010C Bond. The Series 2010C Bond shall be dated as of the Date of Delivery thereof; shall
mature on the Maturity Date; and shall be in registered form. The Series 2010C Bond shall be
and constitute an Additional Bond under the Bond Resolution.
Interest and Principal Pauments. The Series 2010C Bond shall bear interest from the Date
of Delivery until payment of the entire outstanding principal amount due thereon. The Interest
Rate on the Series 2010C Bond shall be a fixed rate of interest equal to % per annum as
may be adjusted in accordance with Schedule 1 to the Series 2010C Bond. Interest on the Series
2010C Bond shall be calculated using a 360-day year consisting of twelve 30-day months.
Interest on the Series 2010C Bond shall be paid semiannually on each Interest Payment
Date, commencing February 1, 2011. The principal amount of the Series 2010C Bond will be
due and payable on each Principal Payment Date and on the Maturity Date. 'The amount of
principal and interest, without taking into account any adjustment required by the provisions
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of Schedule 1 to the Series 2010C Bond, shall be the amount indicated on Schedule 2 to the
Series 2010C Bond.
The Series 2010C Bond shall bear interest at the Interest Rate; provided, however, that if
any principal of or interest on the Series 2010C Bond is not paid when due, from the date three
(3) days after such default, the Series 2010C Bond and any amount so in default shall bear
interest at the Default Rate until such default is cured. Anything provided herein or in the
Series 2010C Bond to the contrary notwithstanding, in no event shall the Series 2010C Bond
bear interest in excess of the Maximum Rate. In the event the Interest Rate exceeds the
Maximum Rate, the Series 2010C Bond shall continue to bear interest at the Maximum Rate
regardless of the reduction of the Interest Rate to a rate less than the Maximum Rate until such
time as interest shall accrue on the Series 2010C Bond in an amount (the "Excess Interest") that
would have accrued thereon had the Interest Rate not been limited by the Maximum Rate.
Upon the Maturity Date, in consideration for the limitation of the rate of interest otherwise
payable on the Series 2010C Bond, the County shall pay to the Registered Owner of the Series
2010C Bond a fee equal to the amount of the unpaid amount of all unpaid deferred Excess
Interest.
Prepau_~ The County may prepay the Series 2010C Bond, in whole or in part, at any
time after August _, 2011, without penalty.
SECTION 5. APPLICATION OF PROCEEDS.. The proceeds derived from the sale of
the Series 2010C Bond shall be applied by the County or by the Bank on the County's behalf,
simultaneously with the delivery of the Series 2010C Bond to the Bank as follows:
(a) $ of the proceeds of the Series 2010C Bond shall be retained
by the County and used to pay the costs and expenses incurred in connection with the
issuance of the Series 2010C Bond;
(b) $ of the proceeds of the Series 2010C Bond shall be deposited
into the North Lennard Road3 Bonds Reserve Subaccount established under the North
Lennard Road3 MSBU Series Resolution; and
(c) $ of the proceeds of the Series 2010C Bond shall be deposited
into the North Lennard Road3 MSBU Project Account established under the North
Lennard Road3 MSBU Series Resolution and used to finance or refinance the North
Lennard Road3 MSBU Project.
SECTION 6. EXECUTION OF SERIES 2010C BOND. The Series 2010C Bond shall be
executed in the name of the County by the Chairman and attested by the Clerk, and its
corporate seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Series
2010C Bond may be signed and sealed on behalf of the County by any person who at the actual
time of the execution of such Series 2010C Bond shall hold the appropriate office in the County,
although at the date thereof the person may not have been so authorized. The Series 2010C
Bond may be executed by the facsimile signatures of the Chairman and/or Clerk, provided that
at least one of the foregoing signatures must be a manual signature.
SECTION 7. REGISTRATION AND TRANSFER OF SERIES 2010C BOND. The
Series 2010C 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
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Florida, and each Registered Owner, in accepting the Series 2010C Bond, shall be conclusively
deemed to have agreed that such Series 2010C Bond shall be and have all of the qualities and
incidents of negotiable instruments thereunder.
There shall be a Registrar, initially the Clerk, who shall be responsible for maintaining
the Register. The person in whose name ownership of the Series 2010C 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 Series 2010C Bond for all
purposes, whether or not the Series 2010C Bond shall be overdue, and any notice to the
contrary shall not be binding upon the County or the Registrar.
Ownership of the Series 2010C Bond may be transferred only upon the Register. Upon
surrender to the Registrar for transfer or exchange of the Series 2010C 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 Series 2010C Bond of the same amount, maturity and interest rate as the Series
2010C Bond surrendered.
The Series 2010C 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 Series 2010C 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
Series 2010C Bond shall be delivered.
The new Series 2010C Bond delivered upon any transfer or exchange shall be a valid
obligation of the County, evidencing the same debt as the Series 2010C 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 Series 2010C Bond surrendered.
Whenever the Series 2010C Bond shall be delivered to the Registrar for cancellation,
upon payment of the principal amount thereof, or for replacement, transfer or exchange, such
Series 2010C 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 8. SERIES 2010C BOND MUTILATED, DESTROYED, STOLEN OR
LOST. In case the Series 2010C 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 Series 2010C
Bond of like tenor as the Series 2010C Bond so mutilated, destroyed, stolen or lost, in lieu of or
substitution for the Series 2010C Bond, if any, destroyed, stolen or lost, or in exchange and
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substitution for such mutilated Series 2010C Bond, upon surrender of such mutilated Series
2010C Bond, if any, to the Registrar and the cancellation thereof; provided however, if the
Series 2010C Bond shall have matured or be about to mature, instead of issuing a substitute
Series 2010C Bond, the County may pay the same, upon being indemnified as aforesaid, and if
such Series 2010C Bond be lost, stolen or destroyed, without surrender thereof. Any Series
2010C Bond surrendered under the terms of this Section 8 shall be cancelled by the Registrar.
Any such new Series 2010C 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 Series 2010C Bond, the lost, stolen or destroyed Series 2010C Bond be at any time found by
anyone, and such new Series 2010C Bond shall be entitled to equal and proportionate benefits
and rights as to security for payment to the same extent as the Series 2010C Bond originally
issued hereunder.
SECTION 9. FORM OF SERIES 2010C BOND. The Series 2010C 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 10. SECURITY FOR SERIES 2010C BOND: COVENANT TO BUDGET
AND APPROPRIATE NON-AD VALOREM REVENUES. The payment of the Debt Service
on the Series 2010C Bond shall be secured forthwith solely by the North Lennard Road3 MSBU
Pledged Revenues. The Debt Service on the Series 2010C 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
Debt Service on the Series 2010C Bond. The Series 2010C Bond shall not be secured by, or
constitute a lien upon or pledge of an interest in the North Lennard Road3 MSBU Project or
upon any other property of or in the County, but shall constitute a lien only upon the North
Lennard Road3 Pledged Revenues in the manner provided herein and in the Bond Resolution.
In the event the North Lennard Road3 Pledged Revenues, together with the funds on
deposit in the North Lennard Road3 Bonds Reserve Subaccount are insufficient to pay the Debt
Service on the Series 2010C Bond, the County covenants and agrees to appropriate in its annual
budget, by amendment, if necessary, from Non-Ad Valorem Revenues, amounts sufficient to
provide for the timely payment of Debt Service on the Series 2010C Bond in such Fiscal Year.
Such covenant shall be cumulative and to the extent not paid shall continue until North
Lennard Road3 Pledged Revenues and Non-Ad Valorem Revenues in amounts sufficient to
make all required payments hereunder when due, shall have been budgeted and appropriated
and actually deposited into the North Lennard Road3 Bonds Subaccount. Notwithstanding the
foregoing, the County does not covenant to maintain any services or programs now provided
or maintained by the County which generate Non-Ad Valorem Revenues. Such covenant to
budget and appropriate does not create any lien upon or pledge of Non-Ad Valorem Revenues
until budgeted, appropriated, and deposited into the North Lennard Road3 Bonds Subaccount
established under the North Lennard Road3 MSBU Series Resolution, nor does it preclude the
County from pledging in the future any specific portion of its Non-Ad Valorem Revenues, nor
does it require the County to levy and collect any particular Non-Ad Valorem Revenues, nor
does it give the Registered Owner a prior claim on the Non-Ad Valorem Revenues as opposed
to claims of general creditors of the County. Such covenant to budget and appropriate Non-Ad
Valorem Revenues is subject in all respects to the payment of obligations of the County secured
by a pledge of all or any specified portion of Non-Ad Valorem Revenues heretofore or
hereafter issued (including the payment of debt service on bonds and other debt instruments);
8
provided, however, this covenant to budget and appropriate for the purposes and in the
manner stated herein shall have the effect of making available for the payment of the Debt
Service on the Series 2010C Bond, in the manner described herein and in the Bond Resolution,
an amount of Non-Ad Valorem Revenues sufficient to make-up for the extent of any
insufficiency in the North Lennard Road3 Pledged Revenues, together with the funds on
deposit in the North Lennard Road3 Bonds Reserve Subaccount to meet the Debt Service
requirement on the Series 2010C Bond, and of placing on the Board a positive duty to budget
and appropriate, by amendment if necessary, amounts sufficient to meet its obligations
hereunder; subject, however, in all respects to the restrictions of Section 129.03, Florida
Statutes, which requires a balanced budget, and Section 125.07, Florida Statutes, which
prohibits a board of county commissioners from expending or contracting for the expenditure
in any Fiscal Year more than the amount budgeted in each fund's budget; and subject, further,
to the payment of the cost of maintaining services and programs which are for essential public
purposes affecting the health, welfare and safety of the inhabitants of the County or which are
legally mandated by applicable law. However, the covenant to budget and appropriate for the
purposes and in the manner stated herein shall have the effect of making available for the
payment of the Series 2010C Bond, in the manner described herein, Non-Ad Valorem
Revenues, and placing on the County a positive duty to appropriate and budget, by
amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject,
however, in all respects to the restrictions of Sections 129.03 and 125.07, Florida Statutes. The
County agrees that its covenant and agreement to budget and appropriate Non-Ad Valorem
Revenues shall be deemed entered into for the benefit of Series 2010C Bondholder(s) and this
obligation may be enforced by a court of competent jurisdiction. The foregoing covenant shall
apply regardless of whether the County collects and receives the North Lennard Road3 MSBU
Special Assessments.
SECTION 11. COVENANTS OF THE COUNTY. Until the principal of and interest on
the Series 2010C Bond shall have been paid in full or until (a) there shall have been set apart in
the North Lennard Road3 Bonds Subaccount a sum sufficient to pay when due the entire
principal of and interest accrued and to accrue on the Series 2010C Bond to the Maturity Date,
or (b) provision for payment of the Series 2010C Bond shall have been made in accordance with
the provisions of this Loan Agreement, the County covenants with the Registered Owner of the
Series 2010C Bond as follows:
A. Collection of Assessments. The County will levy the North Lennard Road3
MSBU Special Assessments in amounts sufficient to pay the Debt Service on the Series 2010C
Bond in each year; will collect the North Lennard Road3 MSBU Special Assessments in the
manner specified in Section 197.3632, Florida Statutes; and will apply and deposit the proceeds
of the North Lennard Road3 MSBU Special Assessments into the North Lennard Road3 Bonds
Subaccount, and, as may be necessary, the North Lennard Road3 Bonds Reserve Subaccount.
The County will maintain the North Lennard Road3 Bonds Subaccount and North Lennard
Road3 Bonds Reserve Subaccount as separate, special accounts 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. Anything herein notwithstanding, the County shall continue to
meet the requirements of Section 5.01(A) and (B) of the Master Resolution and the North
Lennard Road3 Assessment Resolutions.
B. Reserve Account. On the Disbursement Date the County will deposit $
of Series 2010C Bond proceeds into the North Lennard Road3 Bonds Reserve Subaccount, to
cause the amount on deposit therein to equal [maximum annual debt service on the Series
9
2010C Bond], as required by the Commitment. The County covenants to maintain such
amount therein required pursuant to the Commitment and the Bond Resolution, and that such
moneys on deposit in the North Lennard Road3 Bonds Reserve Subaccount shall only be used
to pay Debt Service on the Series 2010C Bond if, at any time the amount of North Lennard
Road3 Pledged Revenues on deposit in the North Lennard Road3 Bonds Subaccount is
insufficient to pay the Debt Service on the Series 2010C Bond.
C. Payments. The County will punctually pay from the North Lennard Road3
Subaccounts all Debt Service on the Series 2010C 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 180 days following the end of
each fiscal year, 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 North Lennard Road3 MSBU Special Assessments as the Bank may reasonably request in
writing.
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. Neither the County, nor any third party over whom the
County has control, will make any use of the proceeds of the Series 2010C Bond or of the North
Lennard Road3 MSBU Project at any time during the term of the Series 2010C Bond which
would cause the Series 2010C Bond to be (a) a "private activity bond" within the meaning of
Section 103(b)(1) of the Code, or (b)an "arbitrage bond" within the meaning of Section
103(b)(2) of the Code or (c) cease to be a "qualified tax-exempt obligation" within the meaning
of Section 265(b)(3)(B). The County covenants throughout the term of the Series 2010C Bond to
comply with the requirements of the Code and the Regulations, as amended from time to time,
and to take all actions necessary to maintain the exclusion from gross income for purposes of
the Code of interest on the Series 2010C Bond.
G. Agreement to Pay Certain Expenses. The County shall pay (i) all reasonable
costs and expenses incurred by the Bank and its counsel in connection with the preparation,
execution and delivery of this Loan Agreement and the Series 2010C Bond and any other
documents and instruments that may be delivered in connection therewith, (ii) all reasonable
costs and expenses incurred by the Bank arising in connection with this Loan Agreement and
the Series 2010C Bond, including, without limitation, in connection with any amendment
hereto or thereto, the enforcement hereof or thereof, or the protection of the rights of the Bank
hereunder or thereunder, and (iii) any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery of this Loan
Agreement and the Series 2010C Bond.
SECTION 12. REPRESENTATIONS AND WARRANTIES. The County represents
and warrants to the Bank that:
A. Organization. The County is a political subdivision of the State of Florida, duly
organized and existing under the laws of the State of Florida.
10
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 Series 2010C
Bond in accordance with their respective terms. This Loan Agreement and the Series 2010C
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. North Lennard Road3 MSBU Special Assessments. The County has duly
adopted the North Lennard Road3 MSBU Assessment Resolution levying the preliminary
assessments and will, by [ , 2010], adopt the a resolution levying the final assessments,
with all adjustments thereto, thereby complying with all requirements of applicable law in
connection with the levy of the North Lennard Road3 Special Assessments.
D. Financial Statements. The financial statements of the County for the Fiscal Year
ended September 30, 2009, previously provided to the Bank have been prepared in accordance
with generally accepted accounting principles and present fairly the financial condition of the
County as of such date and the results of its operations for the period then ended. Since such
date, there has been no material adverse change in the financial condition, revenues, properties
or operations of the County.
E. Compliance with Section 215.84, Florida Statutes. The County represents,
warrants and covenants that the Interest Rate on the Series 2010C Bond, as currently calculated
in accordance with Section 215.84, Florida Statutes, in compliance with the provisions of such
statute.
SECTION 13. 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 copies of the Bond Resolution and the
North Lennard Road3 MSBU Assessment Resolutions certified as complete and correct as of
the closing date, together with an executed Loan Agreement, the executed Series 2010C 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.
G _Oyinion 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 Bond Resolution; (3) the due authorization and execution of
this Loan Agreement and the Series 2010C Bond and the related financing documents; and (4)
the absence of litigation against the County relating to (a) its existence or powers, and (b) the
proceedings for the authorization and issuance of the Series 2010C Bond, in form and substance
satisfactory to the Bank.
11
D. Opinion of Bond Counsel. The Bank shall have received from Bond Counsel a
letter authorizing the Bank to rely on the approving opinion of Bond Counsel delivered to the
County in respect to the Series 2010C Bond to the same extent as if such opinion were
addressed to the Bank. The opinion, in form and substance satisfactory to the Bank, shall, at a
minimum, address (i) the enforceability of the Bond Resolution and the Loan Agreement, (ii)
that the Bond Resolution creates a valid lien on North Lennard Road3 MSBU Pledged and
Non-Ad Valorem Revenues budgeted, appropriated and deposited in the North Lennard
Road3 Bonds Subaccount, (iii) the status of interest on the Series 2010C Bond being excluded
from gross income for federal income tax purposes under the provisions of Section 103 of the
Code and (iv) the designation of the Series 2010C Bond as a "qualified tax-exempt obligation"
under Section 265(b)(3)(B) of the Code.
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. Validation Tudgment. The Bank shall have received evidence of the entry of
judgment of validation of the Series 2010C Bond by the Circuit Court in and for St. Lucie
County, Florida and the related Certificate of No Appeal.
G. Other Documents. The Bank shall have received such other documents,
certificates and opinions as the Bank or its counsel shall have reasonably requested.
SECTION 14. NOTICES. All notices, certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when hand delivered, delivered by
telecopier, mailed by registered or certified mail, postage prepaid, or delivered by courier
service to the parties at the following addresses:
County: 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
12
Copy to: St. Lucie County, Florida
2300 Virginia Avenue
Fort Piece, Florida 34982-5652
Attention: Clerk of the Circuit Court
Bank: JPMorgan Chase Bank, N.A.
420 South Orange Avenue, Suite 250
Orlando, Florida 32801
Attention: Leif G. Chase, Senior Vice President
Email: leif.g.chase@chase.com .
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
Series 2010C Bond, the County's Special Assessment Improvement Bond, Series 2010A (North
Lennard Road1 MSBU) and Special Assessment Improvement Bond, Series 2010B (North
Lennard Road2 MSBU) within three (3) days of the applicable Payment Date.
B. failure by the County to observe and perform any other covenant, condition or
agreement on its part to be observed or performed under this Loan Agreement for a period of
fifteen (15) days after written notice of such failure shall have been delivered to the County by
the Bank, unless the Bank shall agree in writing to an extension of such time prior to its
expiration;
C. the making of any warranty, representation or other statement by the County or
by an officer or agent of the County in this Loan Agreement or in any instrument furnished in
compliance with or in reference to this Loan Agreement which is false or misleading in any
material adverse respect;
D. the filing of a petition against the County under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, if an order for relief is entered under such
petition or such petition is not dismissed within sixty (60) days of such filing;
E. the filing by the County of a voluntary petition in bankruptcy or seeking relief
under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or
the consent by the County to the filing of any petition against it under such law; or
13
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 Series 2010C Bond.
SECTION 17. WAIVER OF JURY TRIAL. To the extent permitted by applicable law,
each of the County and the Bank, knowingly, voluntarily and intentionally waives any right each
may have to a trial by jury in respect of any litigation based on, or arising out of, under or in
connection with this Loan Agreement, the Series 2010C Bond or any agreement contemplated to
be executed in connection with this Loan Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party with respect hereto. This provision
is a material inducement to the Bank to enter into this Loan Agreement.
SECTION 18. NO RECOURSE. No recourse shall be had for the payment of the
principal of and interest on the Series 2010C Bond or for any claim based on the Series 2010C
Bond or on this Loan Agreement, against any present or former member or officer of the Board
or any person executing the Series 2010C Bond.
SECTION 19. 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 20. AMENDMENTS CHANGES AND MODIFICATIONS. This Loan
Agreement may be amended only in writing signed by both parties hereto.
SECTION 21. 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 22. 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.
14
SECTION 23. EXECUTION IN COUNTERPARTS. This Loan Agreement may be
simultaneously executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 24. APPLICABLE LAW. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State.
[Remainder of page intentionally left blank]
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Loan Agreement
as of the date first above written.
(SEAL)
ATTEST:
By:
ST. LUCIE COUNTY, FLORIDA
By:
Chairman, Board of County
Commissioners
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
APPROVED AS TO FORM AND
CORRECTNESS:
By:
JPMORGAN CHASE BANK, N.A.
By:
Title:
County Attorney
~ 25048/001 /00450499. D OC v 2 )
16
EXHIBIT A
FORM OF BOND
No. R-1
ST. LUCIE COUNTY, FLORIDA
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2010C
(NORTH LENNARD ROAD3 MSBU)
RATE OF INTEREST MATURITY DATE DATE OF ISSUE
August 1, 2025 August J 2010
REGISTERED OWNER: JPMorgan Chase Bank, N.A.
PRINCIPAL AMOUNT:
St. Lucie County, Florida (the "County"), for value received, hereby promises to pay to the
Registered Owner designated above, or registered assigns, solely from the special funds
hereinafter mentioned, on the Maturity Date specified above, the Principal Amount shown
above, upon presentation and surrender hereof at the office of the Clerk of the County as
Registrar and Paying Agent, and to pay solely from such funds, interest thereon from the date of
this Bond or from the most recent Interest Payment Date to which interest has been paid,
whichever is applicable, until payment of such Principal Amount, at the Rate of Interest per
annum set forth above, such interest being payable on February 1, 2011, and thereafter on August
1 and February 1 of each year by check or draft mailed on or before the Interest Payment Date, to
the Registered Owner at his address as it appears, at 5:00 P.M. Eastern Time on the fifteenth day
of the month preceding the applicable Interest Payment Date, on the registration books of the
County kept by the Registrar; provided, that such payment shall, at the written request of such
Registered Owner be by wire transfer, direct debit or 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.
This Bond is one of a Series of Bonds, originally authorized to be issued in the aggregate
principal amount of $ , of like date, tenor and effect, except as to number, interest rate,
and date of maturity, issued to finance the cost of the acquisition and construction of roadway
improvements within the North Lennard Road3 Municipal Service Benefit Unit (the "North
Lennard Road3 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, and other applicable provisions of law,
Resolution No. 94-196, duly adopted by the Board of County Commissioners on September 20,
1994, as amended and supplemented, and particularly as supplemented by Resolution No. 10-049
adopted by the Board on February 2, 2010, as supplemented by Resolution No. ,adopted on
July 27, 2010 (hereinafter collectively called the "Resolution') and the Loan Agreement dated
August J 2010 between the County and JPMorgan Chase Bank, N.A. (the "Loan Agreement"),
and is subject to all the terms and conditions of said Resolution and Loan Agreement.
Capitalized terms used herein shall have the meaning specified in the Resolution and the Loan
Agreement.
A-1
This Bond is payable from and secured solely by a lien upon and pledge (i) of the
proceeds derived from assessments levied against the lands and real estate within the County to
be specially benefitted by the North Lennard Road3 MSBU Project authorized by the North
Lennard Road3 MSBU Assessment Resolutions, including interest and penalties on such
assessments and any moneys received upon the foreclosure of the liens of such assessments or
sales, if any, of tax deeds or tax certificates with respect to such assessments (the "North Lennard
Road3 MSBU Special Assessments"), (ii) the moneys on deposit in the North Lennard Road3
Subaccounts in the Funds and Accounts created pursuant to the Resolution, and (iii) the North
Lennard Road3 Investment Earnings (collectively, the "North Lennard Road3 Pledged
Revenues"), all in the manner provided in and subject to the terms and conditions of the
Resolution; provided, however, that the County has covenanted in the Resolution and the Loan
Agreement to budget and appropriate in its annual budget for each Fiscal Year, by amendment
if necessary, Non Ad Valorem Revenues in amounts sufficient to provide for the timely
payment of the principal of, interest on and other amounts due under this Bond in such Fiscal
Year. Such covenant shall be cumulative and shall continue until Non Ad Valorem Revenues
in amounts sufficient to make all required payments hereunder when due, shall be budgeted
and appropriated and actually deposited into the North Lennard Road3 Bonds Subaccount.
Notwithstanding the foregoing, the County does not covenant to maintain any services or
programs now provided or maintained by the County which generate Non Ad Valorem
Revenues. Such covenant to budget and appropriate does not create any lien upon or pledge of
Non Ad Valorem Revenues until budgeted, appropriated, and deposited into the North
Lennard Road3 Bonds Subaccount, nor does it preclude the County from pledging in the future
any specific portion of its Non Ad Valorem Revenues, nor does it require the County to levy
and collect any particular Non Ad Valorem Revenues, nor does it give the Registered Owner a
prior claim on the Non Ad Valorem Revenues as opposed to claims of general creditors of the
County. Such covenant to budget and appropriate Non Ad Valorem Revenues is subject in all
respects to the payment of obligations of the County secured by a pledge of all or any specified
portion of Non Ad Valorem Revenues heretofore or hereafter issued (including the payment of
debt service on bonds and other debt instruments); provided, however, the covenant to budget
and appropriate for the purposes and in the manner stated herein and in the Resolution shall
have the effect of making available for the payment of debt service on this Bond, in the manner
described herein and in the Resolution, sufficient amounts of Non Ad Valorem Revenues and
of placing on the Board a positive duty to budget and appropriate, by amendment if necessary,
amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the
restrictions of Section 129.03, Florida Statutes, which requires a balanced budget, and Section
125.07, Florida Statutes, which prohibits a board of county commissioners from expending or
contracting for the expenditure in any Fiscal Year more than the amount budgeted in each
fund's budget; and subject, further, to the payment of the cost of maintaining services and
programs which are for essential public purposes affecting the health, welfare and safety of the
inhabitants of the County or which are legally mandated by applicable law. However, the
covenant to budget and appropriate for the purposes and in the manner stated herein shall
have the effect of making available for the payment of the Series 2010C Bond, in the manner
described herein, Non-Ad Valorem Revenues, and placing on the County a positive duty to
appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations
hereunder; subject, however, in all respects to the restrictions of Sections 129.03 and 125.07,
Florida Statutes. The County agrees that its covenant and agreement to budget and
appropriate Non-Ad Valorem Revenues shall be deemed entered into for the benefit of Series
2010C Bondholder(s) and this obligation may be enforced by a court of competent jurisdiction.
The foregoing covenant shall apply regardless of whether the County collects and receives the
North Lennard Road3 MSBU Special Assessments.
A-2
This Bond does not constitute a general obligation or indebtedness of the County as a
"bond" within the meaning of the State constitution, and it is expressly agreed by the Registered
Owner of this Bond that such Registered Owner shall never have the right to require or compel
the exercise of the ad valorem taxing power of the County, or the taxation of any property of or in
the County, for the payment of the principal of and interest on this Bond or for the making of any
sinking fund, reserve or other payments provided for in the Resolution.
It is further agreed between the County and the Registered Owner of this Bond, that this
Bond and the obligation evidenced hereby shall not constitute a lien upon the North Lennard
Road3 MSBU Project or any part thereof, or on any other property of or in the County, but shall
constitute a lien only on the North Lennard Road3 Pledged Revenues, in the manner provided in
the Resolution.
The Bonds are issuable only as fully registered Bonds in the denominations or Maturity
Amounts of $5,000 or integral multiples thereof. This Bond is transferable, and exchangeable for
Bonds of other authorized denominations, at the office of the Registrar, by the Registered Owner
or by a person legally empowered to do so, upon presentation and surrender hereof to the
Registrar, together with a request for exchange or an assignment signed by the Registered Owner
or by a person legally empowered to do so, in a form satisfactory to the Registrar, all subject to
the terms, limitations and conditions provided in the Resolution. No charge will be made for
transfer or exchange, but the County or the Registrar may require payment of an amount
sufficient to cover any tax or other governmental charge payable in connection therewith. The
County and the Registrar may deem and treat the Registered Owner as the absolute owner of this
Bond for the purpose of receiving payment of or on account of principal or interest and for all
other purposes, and neither the County nor the Registrar shall be affected by any notice to the
contrary.
The County has entered into certain covenants with the Registered Owner of the Bond of
this Series for the terms of which reference is made to the Resolution and the Loan Agreement. In
particular, the County has reserved the right to defease the lien of the Bonds of this issue upon
the North Lennard Road3 Pledged Revenues upon making provision for payment of the Bond as
provided in the Resolution and the Loan Agreement.
Reference is made to the Resolution and the Loan Agreement for a more complete
description of the provisions, among others, with respect to the nature and extent of the security
for the Bond, the rights, duties and obligations of the County, the Registrar and the Registered
Owner, and the terms and conditions upon which the Bonds are issued and secured. The
Registered Owner of this Bond, by acceptance hereof, assents to all of the provisions of the
Resolution.
The County may prepay this Bond, in whole or in part, at any time after August , 2011,
without penalty. Notice of such prepayment shall be given in the manner provided in the
Resolution.
This Bond is and has all the qualities and incidents of a negotiable instrument under the
Uniform Commercial Code-Investment Securities Laws of the State of Florida, and the Registered
Owner and each successive Registered Owner of this Bond, shall be conclusively deemed by his
acceptance hereof to have agreed that this Bond shall be and have all the qualities and incidents
of negotiable instruments under the laws of the State of Florida.
A-3
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen and to be performed precedent to and in the issuance of this Bond, exist, have happened
and have been performed in regular and due form and time as required by the laws and
Constitution of the State of Florida applicable thereto, and that the issuance of this Bond, and of
the issue of Bonds of which this Bond is one, does not violate any constitutional or statutory
limitation.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the Certificate of Authentication hereon shall have
been executed by the Registrar.
IN WITNESS WHEREOF, St. Lucie County, Florida has issued this Bond and has caused
the same to be executed by its Chairman, either manually or with her/his facsimile signature, and
the corporate seal of said County or a facsimile thereof to be affixed hereto or imprinted or
reproduced hereon and attested by the manual or facsimile signature of the Clerk, all as of the
Date of Lssue above.
(SEAL) ST. LUCIE COUNTY, FLORIDA
By:
Chairman, Board of County
Commissioners
ATTEST:
By:
Clerk of the Circuit Court, ex officio
Clerk to the Board of County Commissioners
A-4
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within-mentioned
Resolution.
Date of Authentication:
By
A-5
County Clerk, as Registrar
VALIDATION CERTIFICATE
This Bond is one of a series of Bonds validated by judgment of the Circuit Court for St.
Lucie County, Florida rendered on June ~ 2010.
Chairman
A-6
The following abbreviations, when used in the inscription on the face of the within
bond, shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common UNIF GIF MIN ACT -
TEN ENT - as tenants by the entireties (Gust.)
JT TEN - as joint tenants with right Custodian for
of survivorship and not of (Minor)
tenants in common
Additional abbreviations may also be used although not listed above.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers to
(Please insert Social Security or other Identifying Number of Assignee)
the within Bond and does hereby irrevocably constitute and appoint the Bond Trustee
as his agent to transfer the Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature must be guaranteed by in
institution which is a participant in the
Securities Transfer Agent Medallion Program
(STAMP) or similar program.
(Authorized Officer)
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Owner as it appears upon the face
of the within note in every particular, without
alteration or enlargement or change whatever.
A-7
SCHEDULE 1
ADJUSTMENTS TO INTEREST RATE IN CERTAIN EVENTS
Definitions.
For purposes of this Schedule 1, the following definitions shall apply. Capitalized terms
used and not otherwise defined herein shall have the meaning set forth in the Loan
Agreement.
"Prime Rate" shall mean a rate of interest equal to the announced prime commercial
lending rate per annum of the Bank. The Prime Rate is a reference rate for the information and
use of the Bank in establishing the actual rate to be charged to the County. The Prime Rate is
purely discretionary and is not necessarily the lowest or best rate charged any customer. The
Prime Rate shall be adjusted from time to time without notice or demand as of the effective
date of any announced change thereof.
"Taxable Rate" means a rate equal to the Prime Rate times that percentage which after
the Determination of Taxability will result in the same after-tax yield to the Registered Owner
of the Series 2010C Bond as before said Determination of Taxability.
Adjustment of Interest Rate for Full Taxability.
In the event a Determination of Taxability shall have occurred, the rate of interest on the
Series 2010C Bond shall be increased to the Taxable Rate, effective retroactively to the date on
which the interest payable on the Series 2010C Bond is includable for federal income tax
purposes in the gross income of the Registered Owner thereof. In addition, the Registered
Owner of the Series 2010C Bond or any former Registered Owners of the Series 2010C 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 Series 2010C 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 Series 2010C 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 Series 2010C Bond, or (ii) a determination by a court of competent jurisdiction
that the interest payable on the Series 2010C 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 Series 2010C Bond is
includable for federal income tax purposes in the gross income of the Registered Owner
thereof.
Adjustment of Interest Rate for Partial Taxability.
In the event that interest on the Series 2010C Bond during any period becomes partially
taxable as a result of a Determination of Taxability applicable to less than all of the Series 2010C
Bond, then the interest rate on the Series 2010C Bond shall be increased during such period by
an amount equal to: (A-B) x C where:
SCHEDULE 1-1
(A) "A" equals the Taxable Rate (expressed as a percentage);
(B) "B" equals the interest rate on the Series 2010C Bond (expressed as a
percentage); and
(C) "C" equals the portion of the Series 2010C 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 Series 2010C Bond or any former Registered
Owner of the Series 2010C 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 by the Registered Owner or former Registered Owners of the Series 2010C
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.
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
Series 2010C Bond on atax-exempt basis, changes from the Maximum Corporate Tax Rate then
in effect, the interest rate on the Series 2010C 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 Series 2010C 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.
Adjustment of Interest Rate for Other Changes Affecting After-Tax Yield.
So long as any portion of the principal amount of the Series 2010C 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 Series 2010C Bond or causes a reduction in yield on the Series 2010C Bond
(other than by reason of a change described above) to the Registered Owner or any former
Registered Owners of the Series 2010C 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 Series 2010C 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 Series
2010C Bond), including, but not limited to, loss of status as a "qualified tax-exempt obligation"
for purposes of Section 265(b)(3)(B) of the Code, by reason of the ownership of the Series 2010C
Bond, 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 Series 2010C 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
SCHEDULE 2
ST. LUCIE COUNTY
SPECIAL ASSESSMENT IMPROVEMENT BOND, SERIES 2010C
(NORTH LENNARD ROAD3 MSBU)
AMORTIZATION SCHEDULE
Date PaXment Interest Principal Balance
EXHIBIT B
Totals: $ $
SCHEDULE 2-1
EXHIBIT B
COMMITMENT FROM TPMORGAN CHASE BANK. N.A.
Exhibit B
May 14, 2010
CHASE 6
Direct Purchase of Tax-Exempt Bank Qualified Bond issued by St. Lucie County,
Florida in the amount of up to 56,400,000
CHASE O
May 14, 2010
Marie Gouin
OMB Director
2300 Virginia Avenue
Fort Pierce, Florida 34982
Jay Glover
Senior Managing Consultant
300 South Orange Ave.
Orlando, Florida 32801
Dear Ms. Gouin & Mr. Glover:
On behalf of JPMorgan Chase Bank, National Association ("JPMorgan Chase"), eve are pleased to
propose for discussion indicative terms to St. Lucie County, Florida (the "County") for the direct
purchase of a "bank-qualified" tax exempt bond to be issued by the County in an amount up to
$5,200,000, Series 2010A, $900,000 Series 2010B and $300,000 Series 2010C subject to the following
terms and conditions described herein (the "Proposal").
JPMorgan Chase has been the market leader in municipal credit for over 35 years. JPMorgan
Chase ranks among the largest providers of credit facilities in the municipal market today. Our deep
familiarity with this sector is viewed as a strong benefit by the Municipal clients with whom we do
business. We believe that our experience in providing credit support, coupled with our long experience in
deal execution, will ensure an efficient, cost-effective transaction for St. Lucie County. Client references
are available upon request.
The proposed indicative terms provided here for discussion do not represent an offer or
commitment to lend on the part of JPMorgan Chase, and would be subject due diligence, credit analysis
and approval, and documentation of detailed terms and conditions satisfactory to JPMorgan Chase.
Should any part of this proposal conflict with County's structuring parameters, we would be happy to
discuss mutually acceptable alternatives.
Should you have any questions about any aspect of this proposal, please do not hesitate to contact
me at 407-236-5464. Thank you and we look forward to working with St. Lucie County and its financing
team.
Yours sincerely,
~~~ ~ ~ ~~~
Leif G. Chase
Senior Vice President
CHASE Q
St. Lucie County, Florida
Direct Purchase Tax-Exempt Bank Qualified Bond
Summary of Terms and Conditions
gray l4, zolo
This Term Sheet is a statement of indicative terms only, and is provided to facilitate additional discussion.
It is not an offer or commitment by JPMorgan Chase Bank, N.A. (the "Bank") to provide financing. The Bank shall
not have any commitment or obligation hereunder until the Bank shall agree otherwise by written agreement
executed by the parties. This Summary of Terms and Conditions is subject to acceptable legal opinions relating to
bonds issued under the ARRA 2009 and applicable IRS regulations relating to tender option bonds.
Borrower: St. Lucie County, Florida (The "Borrower")
Purchaser: JPMorgan Chase Bank, N.A. ("1PMorgan Chase" or the "Bank"). Please refer to
Exhibit [for information on the Purchaser.
Bond: An amount not [o exceed Series 2010A $5,200,000, Series 20108 $900,000, Series
2010C $300,000 Direct Purchase Tax-Exempt Bank Qualified Bond (the "Bond").
The Bond will be designated by the Authority as a "qualified tax-exempt obligation"
under 1RC Section 265(bx3){B) of the Internal Revenue Code, and the Purchaser will
take Physical Delivery of the Bond at closing and will sign a customary investment
letter relating to the private placement of the Bond.
Bond Maturit}• Date: Approximately IS-years after issuance (August 1, 2015 Final Maturity), subject to
bond counsel opinion on useful life of assets being financed
Bond Day~'Year: 30/360 for Fixed Rate Option
Project/Bond Proceeds: Proceeds of the bonds will be used to fund Series 2010A, construction of roadway
improvements within the North Lennard Roadl MSBU and all costs incidental
thereto, 2010B, acquisition and construction of potable water improvements within
the North Lennard Road2 MSBU and all costs incidental thereto and 2010C
acquisition and construction of sanitary sewer improvements within the North
Lennard Road3 MSBU and all costs incidental thereto (the "Project").
Drawdown: The Bond will be fully drawn on the date of issuance.
Bond Amortization/ Semi-annual interest payments and annual principal based on a IS-year amortization
Repayment: schedule at a rate as denoted in the fixed rate section, plus actual accrued interest.
Notwithstanding the foregoing, the Bond shall be required to be repaid in full and
shall be subject to acceleration at the date of Optional Tender Date as described
hereunder or if any payment is not paid by the Borrower when due.
Confidential
Optional Tender: The Bond will be subject to optional tender, for purchase by the Borrower at par plus
accrued and unpaid interest, at the end of the Initial Optional Tender Date as set forth
in Exhibit Il. The tender option is subject to bond counsel opinion and applicable
IRS regulations relating to Tender Option Bonds.
Interest Rates: The interest rate on the Bond, based on the option selected by the Borrower, is set
forth in Exhibit ll. No limitation shall exist in any Trust Indenture or Resolution that
restricts the Bank Rate to any rate lower than such maximum rate permitted by law.
Other Fees: Please see Exhibit l1 for other Fees.
Indicative Pricing The Fixed Rates quoted in Exhibit 11 are indicative as of May 13, 2010. The Fixed
Perishability: Rate(s) are based on the Bank's daily cost of funds and subject to change daily at all
times until Bank shall commit in writing otherwise and the Borrower elects to lock in
a rate prior to the closing date. At the Bank's sole election to issue a binding
commitment letter, affixed-rate lock-in can be achieved prior to closing by separate
confirmation from Bank of the final rate and Borrower's signed acceptance of it,
along with acknowledgment of applicable breakage fees if transaction fails to close.
Security: The Bonds will be secured by 1) a lien upon and pledge of the proceeds derived from
assessments levied against the land and real estate within each respective MSBU,
specifically North Lennard Road 1, North Lennard Road 2 and North Lennard Road 3
Special Assessments, 2) moneys on deposit in each Subaccount (Debt Service
Reserve Fund) equal to one year's debt service on the respective Bond. and 3) St.
Lucie County will have covenanted to budget and appropriate legally available Non-
Ad Valorem Revenues sufficient to cover any deficiency in pledged revenues to
timely pay debt service.
Clawback: Bank will require the inclusion of a customary clawback provision as protection
against the possibility of the interest rate payable on advances exceeding the
maximum permissible rate thereof.
Tax Gross Up: If interest on the Bond is determined to be taxable for any reason or if the Bond
ceases to be a "qualified tax-exempt obligation" under IRC Section 26S(bx3)(B) the
interest on the Bond will increase from the effective date of such taxability or change
in status to the taxable equivalent rate per annum.
Change In Law: If there is a change in the Internal Revenue Code, the regulations promulgated there
under or in the interpretation thereof by any count, administrative authority or other
governmental authority (other than a taxable event) which takes effect after the
Acceptance Date of this letter and which changes the effective yield on the Bond to
the Bank, including but not limited to, changes in federal income tax rates, the
interest rate on the Bond will increase accordingly to compensate for such changes in
effective yield on the Bond.
Prepayment: The Bond may be prepaid in whole or in part on or after the date of the Optional
Tender Date as defined in Exhibit [I. Any prepayment prior to the Optional Tender
Date is subject to an Early Cancellation Fee and "breakage costs", if any. We have
also proposed a fixed rate to the final maturity date of August 1, 2025. The Bond
may be prepaid in whole or in part at any time subject to an Early Cancellation Fee
and "breakage costs", if any.
CHASE Q
Confidential
Conditions Usual and customary conditions to issuance of the Bond including, but not limited to,
Precedent: acceptable legal documentation which shall include an opinion of bond counsel that
the Bond is exempt from federal and State of Florida taxation and that the County has
designated the Bond as a "qualified tax exempt obligation" under Section 265(b) of
the Internal Revenue Code. Further, the Bond will not have a CUSIP or other
disclosure information and it will not be DTC eligible and the Purchaser will take
Physical Delivery of the Bond at closing and will sign a customary investment letter
relating to the private placement of the Bond.
Additionally, the Borrower must have absence of default or unmatured default,
absence of material litigation and lack of material adverse change from the
Borrower's financial condition and operations as reflected in the financial statements
of the Borrower as of 9!30/2009. Additional conditions precedent to the issuance of the
Bond will include:
1. The Bank not becoming aware of any information affecting either the Borrower
or this transaction which is inconsistent in a material manner with what has been
previously disclosed to the Bank and such information is true and correct in all
material respects.
2. The absence of any situation occurring which would, in the opinion of the Bank,
materially adversely affect the Borrower or this transaction.
3. The Borrower currently maintains all necessary approvals, orders, authorizations,
consents, licenses, certificates and permits from all applicable governmental
authorities, which are or may be required to operate its facilities.
4. The Borrower shall have delivered other customary closing documentation,
including, without limitation, -egal opinions of counsel to the borrower,
acceptable to the Bank.
5. The Borrower shall have delivered a Bond and any other documents required to
secured and support the Borrower's obligations under the Facility, and an opinion of
Borrower's Counsel as to the execution and delivery of the Bond and all other loan
documents, each in form and substance acceptable to the Bank.
b. The Bond shall not be separately rated by any bond rating agency.
7. Receipt of satisfactory opinion of bond counsel.
Representations Usual representations and wamdnties for like situated borrowers and the Facility's
and Warranties: type and tenor, including, without limitation, absence of material adverse change,
absence of material litigation, absence of default or potential default and continued
accuracy of representations.
Representations and warranties relating to absence of sovereign immunity (or waiver
of sovereign immunity, if applicable) will also be required for all governmental
entities.
Loan Documents: The terms of this fmancing will be evidenced by agreements, instruments and
documents ("Loan Documents") usual and customary for a Direct Purchase Tax-
Exempt Bond, which is a "Bank Qualified Bond". The Loan Documents must be
acceptable to the Bank and its counsel.
CHASE O
Confidential
Covenants: Delivery of financial statements, reports, accountants' letters, projections, officers'
certificates and other information requested by the Bank; payment of other
obligations; continuation of business and maintenance of existence and material
rights and privileges; compliance with laws and material contractual obligations;
maintenance of property and insurance; maintenance of books and records; right of
the Bank to inspect property and books and records; notices of defaults, litigation and
other material events; compliance with environmental laws, and compliance with all
covenants of the other Related Documents.
The Bond will contain customary negative covenants, including, without limitation,
restrictions on the following: liens and encumbrances; indebtedness and guarantees; sale
and transfer of assets; consolidations and mergers; investments, loans and advances;
capital expenditures; operating leases; transactions with affiliates; changes in line of
business; and prepayment of other debt.
Reporting Unless otherwise requested, the Borrower will provide the following items in an
Covenants: electronic format acceptable to the Bank.
1. Annual, audited, consolidated and consolidating financial statements of the
Borrower within 120 days of the fiscal year end.
2. Together with the above financial statements, the Borrower will provide a no-
default and covenant compliance certificate signed by an Authorized Officer of
the Borrower.
3. Additional information as reasonably requested by the Bank.
Banking Relationship: The Facility is being provided with the understanding that the Borrower will entertain
discussions with the Bank regarding other banking services that may be available to
the Borrower.
Financial Covenants: The Loan Agreement will incorporate by reference covenants contained in the
Resolution/Trust Indenture, and other Related Bond Documents and said covenants
and provisions will be deemed to be for the benefit of the Bank. Any amendments to,
or waiver of, said provisions will require the consent of the Bank.
Events of Default: The Events of Default will be those usual and customary for like situated borrowers
and the Facility's type and tenor, including, without limitation, failure to pay
principal, interest, and other facility obligations when due; failure of representations
and watTanties; breach of covenants in facility loan documents; failure to pay
judgments when due; commencement bankruptcy, or similar proceeding or act of
insolvency; compromise of guaranty, collateral or other credit support; defaults
related to employee benefit plans; merger, dissolution or similar corporate event;
cross-default to payment and terms of other obligations; and material adverse change
in Borrower's financial condition, business or reputation or in market conditions.
Participations: The Bank does not anticipate engaging a participant in this transaction, however we
reserve the right to utilize a participant at a later date. Therefore the Bank may, in its
sole discretion, sell participations in the Bond and disclose information to prospective
participants and shaze, at its option, any fees with such Participant(s).
Governing Law: All aspects of the credit(s) being discussed including this Term Sheet and any loan
documents would be governed by the laws of the State of Florida.
CHASE Q
Confidential
Counsel: JPMorgan Chase will engage Edwards Angell Palmer & Dodge LLP as the Bank's
legal counsel. Richard Miller and/or Mark-David Adams will be acting in the
capacity of lead attorney representing the Bank. The Bank will agree to cap legal
expenses at $5,000 plus expenses not to exceed $500, based on the scope of the
financing as presented.
Richard J. Miller, P.A. & Mark David Adams, P.A.
Edwards Angell Palmer & Dodge LLP
525 Okeechobee boulevard
Suite 1600
West Palm Beach, Florida 33401
561-820-0274
888-325-9184
nniller,c eapolaw.com
madams^a:eapd law.com
Expenses: Upon the acceptance of a commitment, all legal expenses of the Bank, plus costs and
expenses and other documentation fees incurred as a direct or indirect result of the
preparation and review of the Bond documents and the Bond documents, will be
reimbursed by the Borrower whether or not the Bond closes.
Expected Timing of Satisfactory due diligence, in the Bank's sole discretion, consists of, but may not be
Bank Credit Decision: limited to, a full review of requested financial statements and financing documents
and discussions with management.
Should the Borrower request financing substantially on the terms outlined herein,
Bank's credit decision would be made within approximately two weeks after such
request and completion of due diligence.
Any offer or commitment, if and when made, will be in a separate writing so stating,
following credit decision by Bank. No offer or commitment should be implied or
relied upon prior to the Bank's issuance of an express written commitment.
Yield Protection: The Bond shall contain customary provisions (a) protecting the Bank against
increased costs or loss of yield resuhing from changes in reserve, tax, capital
adequacy, status as a "qualified tax-exempt obligation" under IRC Section
265(b)(3xB), and other requirements of law and from the imposition of or changes in
withholding or other taxes and (b) indemnifying the Bank for "breakage costs"
incurred in connection with, among other things, any prepayment of the Bond in
whole or in part on a day other than the last day of a monthly interest period at the
Optional Tender Date with respect thereto.
Information Sharing: The Borrower agrees that the Bank may provide any information or knowledge the
Bank may have about the Borrower or about any matter relating to the facilities
described in this Term Sheet to JPMorgan Chase & Co., or any of its subsidiaries or
affiliates or their successors, or to any one or more purchasers, potential purchasers,
participants or assignees of facilities described in this letter. The Borrower agrees
that the Bank may at any time sell, assign or transfer one or more interests or
participations in all or any part of its rights and obligations in the facilities described
in this letter to one or more purchasers whether or not related to the Bank.
CHASE d
Confidential
Confidentiality Statement: The terms of this Term Sheet are for Borrower's confidential use and may not be
disclosed by it to any other person other than its employees, attorneys, board
members and fmancial advisors (but not other commercial lenders), and then only in
connection with the transactions being discussed and on a confidential basis, except
where disclosure is required by law, or where the Bank consents to the proposed
disclosure; provided, however, that the Borrower (and each employee, representative
or other agent of the Borrower) may disclose to any and all persons, without
limitation of any kind, the "tax treatment" and "tax structure" (in each case, within
the meaning of Treasury Regulation Section 1.6011-4} of the transactions
contemplated hereby and all materials of any kind (including opinions or other tax
analyses) that are or have been provided to the Borrower relating to such tax
treatment or tax structure, except that, with respect to any document or similar item
that in either case contains information concerning such tax treatment or tax structure
of the transactions contemplated hereby as well as other information, this proviso will
only apply to such portions of the document or similar item that relate to such tax
treatment or tax structure of the transactions contemplated hereby.
The Bank may, from time to time, be providing debt financing, equity capital or other
services (including financial advisory services) to other companies in respect of
which the Borrower may have conflicting interests regarding the transaction
described herein and otherwise. The Bank confirms that it will not use confidential
information obtained from the Borrower by virtue of the potential transaction
contemplated by this commitment or our other relationships with the Borrower in
connection with the performance by Bank of such services for other companies. The
Bank will not use in connection with the potential transaction contemplated by this
commitment, or furnish to you, confidential information obtained from other
companies.
This Term Sheet is intended as an outline only and dues not purport to summarize all the conditions,
covenants, representations, warranties and other provisions which would be contained in definitive legal
documentation jor the financing contemplated hereby.
CHASE Q
Confidential
Exhibit I
INFORMATION ON JPMORGAN CHASE
Bank's credit Public Ratings for JPMorgan Chase Bank, N.A.
Ratings:
S&P Moody's Fitch
Long Term Ratings: AA- Aa 1 AA-
Short Term Ratings: A-I+ P-I F1+
Outlook: Negative Negative Stable
'All three rating agencies upgraded 1PMorgan ratings during February and March 2007. Standard and
Poor's subsequernly downgraded the Bank's bong Term Rating while maintaining the ncgative outlook on
ikcember 19, 2008. Moody's downgraded the Bank's long Tcrtn Rating from Aaa on January 15, 2009
and changcd the outlook from Stable on March 4, 2009.
Annual Report: The Bank's most recent annual report can be accessed via the following website:
http://wwx• jpmorgan. com
Bank Contacts: Leif G. Chase
Senior Vice President
420 S. Orange Ave., Ste 250
Orlando, Fl 32801
(407)236-5464
(407)218-5355
(407)325-1817
EMAIL: leif.g.chase@chase.com
~~~ CHASE ~
Confidential
Exhibit II
Pricing and Other Fee Information
Interest Rates t' ~
Fixed Rate Fixed rates are available and will be based on current market conditions. Depending on the rate-
Option: lock option selected, such rates are subject to change at the end of "tender period". Based on
current rates, the following indicative Fixed Rates (as May 13, 2010) are available and subject to
change daily:
Successive
Initial Optional Rate Lock Optional Tender
Tender Date Period Fixed Rate Period(s)
7 -years 3.87% Par Anytime
thereafter
August 1, 2025 3.63% NA
1. Interest Rates are based on a 360-day year and are quoted on a per annum basis.
2. Rates based on agreed upon Bond amortization. Refer to Exhibit 1^ for Rate Lock Language.
3. Bond will be callable at par on after the 7`" anniversary of the loan.
4. Bond may be prepaid subject to our standard ''breakage costs".
CHASE Q
Confidential
Other Interest or Fees
Default Rate: Base Rate* + 4.00%
* Base Rate (a/k/a the `Corporate Bank Floating Rate') is defined as the higher of (i) IPMorgan Chase Bank's Prime Rate, (ii)
Adjusted One Month l.lBOR Rate and (iii) 7.5%. Adjusted One Month LIBOR Rate is defined as the sum of 2.50% plus the quotient
of (a) the LIBOR Rate on the immediately preceding business day for dollar deposits with a maturity equal to one-month, divided by
(b) one minus the Reserve Requirement applicable to dollar deposits in the London interbank market with a maturity equal to one
month.
CHASE O
Confidential
Exhibit III
Forward Rate Lock [SAMPLE LANGUAGE]
This forward-starting fixed rate lock-in is attached to and made a part of that certain Commitment
Letter dated , 20 issued by the Lender, JPMorgan Chase Bank, N.A., and accepted
by the Borrower,
Rate Lock Date: , 20
Rate Lock Funding Date: , 20_
Rate Lock Amount $
Rate
In order to lock the rate for this transaction, Borrower agrees that if for any reason (other than Lender's
gross negligence or willful misconduct) the full Rate Lock Amount is not funded in accordance with the
terms of the financing documents by the Rate Lock Funding Date, then Borrower shall pay to Lender a
Reinvestment Premium within 5 business days of Lender's written request. "Reinvestment Premium"
means the difference of:
(i) the net present value of the Scheduled Payments discounted at the (Snap term based
nn duration of the loan) Interest Rate Swap rate as reported on the Federal Reserve H.15 report
effective on the Rate Lock Date and
(ii) the net present value of the Scheduled Payments discounted at the (S~+ap term based
on duraticxr of the loan) Interest Rate Swap rate as reported on the Federal Reserve H.l S report as
effective on the Rate Lock Funding Date.
If (i) is greater than (ii) then, no Reinvestment Premium is due. If (ii) is greater than (i), the difference
shall be paid to Lender as stated above. "Scheduled Payments'' means {number and
frequency of payments excluding the balloon, if applicable) installments of $ each and a
$ (amount of the balloon payment) final installment of $ scheduled to be paid on
20_ (maturity date).
t° CHASE ~