HomeMy WebLinkAbout12-009 EDRESOLUTION N0.12-009
A RESOLUTION OF THE ST. LUCIE COUNTY EROSION
DISTRICT AUTHORIZING ISSUANCE OF THE ST. LUCIE
COUNTY EROSION DISTRICT SPECIAL ASSESSMENT
REVENUE BOND, SERIES 2012 (SOUTH HUTCHINSON
ISLAND BEACH AND DUNE RESTORATION PROJECT),
FOR PURPOSES OF FINANCING COSTS ASSOCIATED
WITH THE SOUTH HUTCHINSON ISLAND BEACH AND
DUNE RESTORATION PROJECT; APPROVING AND
ACCEPTING THE PROPOSAL OF TD BANK, N.A. TO
PROVIDE A LOAN IN THE NOT TO EXCEED AMOUNT OF
$4,904,000; APPROVING THE FORM OF LOAN AGREEMENT;
AUTHORIZING THE PROPER OFFICIALS OF THE EROSION
DISTRICT TO DO ANY OTHER THINGS NECESSARY OR
ADVISABLE IN CONNECTION WITH THE EXECUTION OF
THE BOND AND THE SECURITY THEREFOR; PROVIDING
CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE ST. LUCIE
COUNTY EROSION DISTRICT AS FOLLOWS:
SECTION 1. AUTHORITY. This Resolution of the St. Lucie County Erosion District
(the "District") is adopted pursuant to District Resolution No. 11-004 adopted by the District on
June 21, 2011, Chapter 2004409, Laws of Florida, as may be amended from time to time (the
"Act") and other applicable provisions of law.
SECTION 2. FINDINGS AND AUTHORIZATION OF PROJECT. It is
ascertained, determined and declared as follows:
(A) The District and St. Lucie County, Florida (the "County") have collaborated
extensive undertakings related to a beach and dune restoration project (the "Project") involvi
the area generally described as South Hutchinson Island.
(B) The plan of finance for the costs associated with the Project (the "Project Cost"
involves three primary funding sources: (i) revenues derived from the County-wide "Zone E
taxing district administered by the District, (ii) grant funding made available from the Florid
Department of Environmental Protection ("DEP"), and (iii) special assessments, sometime
referred to as non-ad valorem assessments, levied upon real property within the Soutl
Hutchinson Island Beach and Dune Restoration Special Assessment District pursuant to Distric
Resolution Nos. 12-05 and 12-08 (collectively, the "Assessments").
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(C) The District is authorized by the Act to levy and collect the Assessments and to
borrow money, issue bonds, notes or other obligations secured by such Assessments to finance
all or some portion of the Project Cost.
(D) On August 13, 2012, the District issued a request for proposals seeking a
loan with which to finance that portion of the Project Cost to be paid by the Assessments.
(E) TD Bank, N.A. (the "Bank") submitted a proposal dated August 29, 2012, a copy
of which is attached hereto as Exhibit A (the "Proposal").
(F) In accordance with the Proposal, the Bank is willing to provide the District with a
loan in an amount not-to-exceed $4,904,000 (the "Loan") based on the terms set forth in the
Proposal.
(G) The Proposal is hereby determined to be the best proposal and contain the lowest
overall borrowing costs to the District.
(H) The Loan shall be evidenced by a single revenue bond issued by the District to
the Bank entitled St. Lucie County Erosion District Special Assessment Revenue Bond, Series
2012 (South Hutchinson Island Beach and Dune Restoration Project) (the 'Bond").
(H) Due to the nature of the security for the Bond, the size of the Loan, the
willingness of the Bank to purchase the Bond at interest rates favorable to the District and the
critical importance of timing of the sale of the Bond, it is hereby determined under Section
218.385 that it is in the best interest of the public and the District to accept the offer of the Bank
to purchase the Bond at a negotiated sale pursuant to the terms of the Proposal and the Bond.
(I) The Project is a capital project appropriately undertaken by the District under the
Act and the District hereby authorizes the Project and the capital expenditures necessary to
complete the Project.
(J) The District hereby determines that it is necessary, desirable and in the best
interests of the District and its inhabitants that the District undertake the Project and that the
Project will serve the essential public purposes of the District.
SECTION 3. APPROVAL OF PROPOSAL. The Proposal, a copy of which is attached
hereto as Exhibit A, is hereby approved and accepted. The Chair of the District (the "Chair") is
hereby authorized and directed to execute and deliver the Proposal to the Bank on behalf of the
District. The Chair is authorized to execute the Rate Lock Agreement contemplated by the
Proposal; provided, however, that the annual rate of interest applicable to the Bond as set forth
in the rate lock agreement and the Bond shall not exceed 2.25%.
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SECTION 4. AUTHORIZATION OF BOND. The District hereby approves and
authorizes issuance of the Bond for purposes of providing financing for the acquisition and
construction of the Project. The Bond shall be dated, bear interest, be payable, mature, be
subject to prepayment and have such other characteristics as provided in the form of Loan
Agreement between the St. Lucie County Erosion District and TD Bank attached hereto as
Exhibit B (the "Loan Agreement") and shall be secured by the Assessments as described
hereunder. The Chair is hereby authorized to determine the final amount of the Loan based
upon the amount of Assessments which have been prepaid prior to issuance of the Bond;
provided, however, that such amount shall not exceed $4,904,000. The District hereby
authorizes the Chair to execute and deliver, and the County Clerk or any assistant or deputy
County Clerk (the "Clerk") to attest, on behalf of the District, the Loan Agreement and the Bond
in substantially the forms attached hereto as Exhibit B, with such changes, insertions, and
additions as they may approve, their execution thereof being evidence of such approval, for
purposes of providing financing for the Project and paying costs associated with issuing the
Bond. The approval of execution given herein includes the approval of the District to allow the
Chair to execute and deliver, and the Clerk to attest, any requested documents on behalf of the
District with respect to the issuance of the Bond.
SECTION 5. SECURITY FOR BOND. The principal and interest of the Bond issued
hereunder shall be payable solely from and secured by a lien upon and a pledge of the
Assessments. The Bond shall also be secured by the moneys in the Project Fund, Debt Service
Fund and Reserve Account created pursuant to the Loan Agreement until such moneys shall
have been applied or committed as provided in the Loan Agreement.
Until the Bond and all principal and interest due thereupon have been paid in full, the
District shall not issue any other debt obligation with a parity lien upon the Assessments
without the prior written approval of the Bank.
SECTION 6. AUTHORIZATION OF OTHER DOCUMENTS TO EFFECT
TRANSACTION. To the extent that other documents, certificates, opinions, or items are
needed to effect any of the transactions referenced in this Resolution, the Loan Agreement or
the Bond and the security therefore, the Chair and other District and County officials and staff
are hereby authorized to execute and deliver and the Clerk is hereby authorized to attest on
behalf of the District such documents, certificates, opinions, or other items and to take such
other actions as are necessary or advisable for the full, punctual, and complete performance of
the covenants, agreements, provisions, and other terms as are contained herein and in the
documents included herein by reference.
Prior to the issuance of the Bond, the District shall receive from the Bank a Purchaser's
Certificate, the form of which is attached hereto as Exhibit C, and a Disclosure Letter, the form
of which is attached hereto as Exhibit D.
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SECTION 7. LIMITED OBLIGATION. The Bond is a special and limited obligation
of the District secured solely by the Pledged Revenues, and is payable from the Pledged
Revenues, in the manner and to the extent described herein and in the Loan Agreement. The
Bond will not constitute a general debt, liability or obligation of the District or the State of
Florida or any political subdivision thereof within the meaning of any constitutional or
statutory provision. Neither the faith and credit nor the taxing power of the District or of the
State of Florida or any political subdivision thereof is pledged to the payment of the principal of
or interest on the Bond and neither the holder thereof nor any other party shall ever have the
right to compel any exercise of any ad valorem taxing power of the District or of the State of
Florida or any political subdivision thereof, directly or indirectly to enforce such payment. The
Bond shall not constitute a lien upon any property of the District except upon the Pledged
Revenues in the manner and to the extent described herein and in the Loan Agreement.
SECTION 8. REPEAL OF INCONSISTENT DOCUMENTS. All resolutions or parts
thereof in conflict hQrewith are hereby superseded and repealed to the extent of such conflict.
SECTION 9. EFFECT OF PARTIAL INVALIDITY. If any one or more provisions of
this Resolution or the Bond shall for any reason be held to be illegal or invalid, such illegality or
invalidity shall not effect any other provision of this Resolution or the Bond, but this Resolution
and the Bond shall be construed and enforced as if such illegal or invalid provision had not
been contained therein. The Bond shall be issued and this Resolution is adopted with the intent
that the laws of the State of Florida shall govern their construction.
[Remainder of Page Intentionally Left Blank]
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SECTION 10. EFFECTIVE DATE. This Resolution shall take effect immediately upon
its passage and adoption.
AFTER MOTION AND SECOND, the vote on this Resolution was as follows:
Chair Frannie Hutchinson
Vice Chair Tod Mowery AYE
Commissioner Chris Craft AYE
Commissioner Chris Dzadovsky AYE
Commissioner Paula A. Lewis AYE
PASSED AND DULY ADOPTED this 18th day of September, 2012.
ATTEST:
EROSION DISTRICT BOARD
ST. LUCIE COUNTY, FLORIDA
Chair
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APPROVED AS TO FORM AND
EXHIBIT A
PROPOSAL
A-1
Proposal Response Form
1. Contact Information
TD Bank, N.A.
5900 North Andrews Avenue
Ft. Lauderdale, FL 33309
Marcel Summermatter
Vice-President, RM
O: 954-233-2991
F: 954-233-2044
C: 786-390-3114
Delle Joseph, CPA
Senior-Vice President, Team Lead
O: 305-441-5692
F: 786-437-2401
C: 305-332-1855
2a. Interest Rate (Non-Bank-Qualifed) -Additional info in term sheet
a) 1.85% not locked until closing (indicative Rate based on Index)
b) 1.91 % locked until closing based on proposed preliminary RFP amortization
schedule.
2b. Interest Rate (Bank-Qualified) -Additional info in term sheet
a) 1.70% not locked until closing (Indicative Rate based on Index)
b) 1.76% locked until closing based on proposed preliminary RFP amortization
schedule
3. Fees and Expenses
Please see Term Sheet for detail on all fees and expenses
4. Prepayment Provision
Please see Term Sheet for Prepayment Provision. There will be no pre-payment
penalty if loan is prepaid by foods derived from special assessment.
5. Conditions
Please see Term Sheet for any additional Conditions.
Bank
America's Most Convenient Bank°
TD BANK, N.A.
5900 NORTH ANDREWS AVENUE, 2ND FLOOR
FT. LAUDERDALE, FL 33309
TEL: 954-233-2991
August 28, 2012
Mr. Jay Glover
Senior Managing Consultant
The PFM Group
300 South Orange Avenue, Suitc 1170
Orlando, FL 32801
Re: St. Lucie County Erosion District -Special Assessment Revenue Note, Series 2012 -Bank Loan RFP
Deaz Jay,
In connection with the Bank Loan Request for Proposals for the St. Lucie County Erosion
District issued by PFM, we aze extremely pleased to submit the attached Terms & Conditions to provide
the required funding as requested under the issued RFP.
Although, this credit request has been approved by the appropriate credit authorities at the Bank,
it should be understood that this Letter and the Term Sheet do not contain all matters upon which
agreement must be reached in order for the transaction contemplated hereby to be consummated.
Hence, we shall not be responsible or liable to the issuer or any other person for consequential damages
which may be alleged as a result of this Letter, the Teans Sheet or any transaction contemplated hereby.
We appreciate the opportunity to provide our proposed Terms & Conditions to PFM and the St.
Lucie County Erosion District and look forward to your favorable acknowledgment.
Very truly yours,
TD BANK N.A.
By: -f
cel Summermatter, Vice President
South Florida Municipal Lending Group
Cc: Ms. Marie Gouin : gouinm®stlucieco.org
IF TERMS AND CONDITIONS OF TERM SHEET(S) ARE SATISFACTORY TO THE ST. LUCIE COUNTY
EROSION DISTRICT, KINDLY PROVIDE ACCEPTANCE BY COUNTERSIGNING WHERE INDICATED BELOW.
APPROVED AND ACCEPTED:
THE ST. LUCIE COUNTY EROSION DISTRICT
BY:
PRINT NAME:
TITLE:
DATE:
TD Bank, N.A. ("BANK")
TERMS AND CONDITIONS OF CREDIT ACCOMMODATION Dated
08/29/2012 ("loan")
THIS IS A STATEMENT OF TERMSAND CONDITIONS AND NOT A COMMITMENT TO LEND
1. Proposed Bank Loans' Terms 8~ Structure:
Borrower. St. Lucie County Erosion District
Facility Amount: Up To $4,904,000
Facility Type: Non-Bank qualified or Bank Qualified Tax-Exempt Bank
Term Loan.
Purpose of Facility: The Special Assessment Revenue Note Series 2012
Bonds will be used to finance the beach and dune
restoration project in the area known as South
Hutchinson Island.
Maturity Date• October 1°1, 2022.
Interest Rate: Non-Bank Qual~ed Tax Exempt Fixed Rate as of
August 28"', 2012:
. 10-year term:
The actual interest rate shall be set three business days
prior to Closing using the greater of the formulae below
which yielded a fixed interest rate of 1.8596 as of August
28'", 2012.
(75% of 10.Yr Fed Reserve H-15 Treasury Rate) + 0.59%
-~ 1.85% as of 8/23/ 2012.
(75% of 10.Year Fed Reserve W-15 Swap Rate) + 0.52°'0
-~ 1.85% as of 8/23/2012.
Bank Qualfied Tax Exempt Fixed Rate as of August
28~', 2012:
10-year term:
The actual interest rate shall be set three business days
prior to Closing using the greater of the formulae below
which yielded a fixed interest rate of 1.T0°~ as of August
28'", 2012.
(69°~ of 10.Yr Fed Reserve H-15 Treasury Rate) + 0.54%
-~ 1.70°~ aS Of 8/2 312 0 1 2.
(69°k of 10-Year Fed Reserve H-15 Swap Rate) + 0.48%
~ 1.70% as of 8/23/2012.
The Bank will also make available the option to lock-in
the above quoted loan rate for the Borrower through the
expected transaction dosing, which is subject to the
Borrower executing the Bank's Rate Lock Agreement.
A premium of 6 basis points will be added to the quoted
rate in order to hold the stated rate through the expected
closing date.
Reoavment Terms: Annual level Principal payments as shown below.
Interest shall be payable semi-annual commencing on
April 1", 2013 over a 10-year amortization period using a
30/360-day count.
Estimated Principal Repayment as follows as per RFP:
10/1/2013 $ 490,400 10/1!2018 $ 490,400
1011!2014 $ 490,400 10/1/2019 $ 490,400
10/1/2015 $ 490,400 10/1/2020 $ 490,400
10/1/2016 $ 490,400 10/1/2021 $ 490,400
10/1/2017 $ 490,400 10/1/2022 $ 490,400
Default Rate of Interest: The "default rate of interest" shall be four (4) percentage
points in excess of the rate of interest charged prior to the
occurrence of the event of default.
Late Chars~es: If any payment due the Bank is more than fifteen (15}
days overdue, a late charge of six percent (6°k) of the
overdue payment shall be assessed.
Preaavrnent Premium: There will be no pre-payment penalty if loan is
prepaid by funds derived from special assessment.
Optfon A
The Borrower can elect to have a "no prepayment'
provision associated with this Term Loan if loan is being
refinanced with other funds by adding a premium of
0.16% to the proposed fixed rate.
Option 6
At the time of any full or partial prepayment, a fee equal
to the greater of (i) 1.00% of the principal balance being
prepaid multiplied by the "Remaining Term," as
hereinafter defined, in years or (ii) a "Yield Maintenance
Fee" in an amount computed as follows:
The current cost of funds, specifically the bond equivalent
yield for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent
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yield) with a maturity date closest to the "Remaining
Term", shall be subtracted from the Note rate, or default
rate if applicable. If the result is zero or a negative
number, there shall be no Yield Maintenance Fee due
and payable. If the result is a positive number, then the
resulting percentage shall be multiplied by the scheduled
outstanding principal balance for each remaining monthly
period of the "Remaining Term." Each resulting amount
shall be divided by 360 and multiplied by the number of
days in the monthly period. Said amounts shall be
reduced to present values calculated by using the above
reference current costs of funds divided by 12. The
resulting sum of present values shall be the yield
maintenance tee due to the Bank upon prepayment of the
principal of the loan plus any acaved interest due as of
the prepayment date.
"Remaining Term" as used herein shall mean the shorter
of (i) the remaining term of this Note, or (ii) the remaining
term of the then current fixed interest rate period.
2. .Fees and Expenses.
No Bank Fee -Waived.
The Borrower is responsible for Bank Counsel Fees for the review of the loan documentation
which will be prepared by the Borrower's Counsel. Bank Counsel Fees shall not to exceed
$4,000
3. Security
The Facility shall be secured by a pledge of and lien on the non-ad valorem special
assessment imposed by the Borrower upon parcels boated within the Special Assessment
District. Those special assessments are to be billed through the annual proper#y tax bill
issued by the county. The non-ad valorem special assessment by the borrower must be
equal to or greater than the required debt service of the facility and future debt.
4. Legal Opinions. Prior to closing, there shall be delivered to the Bank an opinion of Bond
Counsel acceptable to the Bank covering matters customary for a transaction of this type and
nature and which shall, without limitation, opine that: (1) the Borrower is duly formed; (2) all
loan documents have been validly authorized and executed by and on behalf of the the
Borrower, if any; (3) all loan documents are valid, binding, enforceable in accordance with
their terms and do not violate any legal requirements, including without limitation,
organizational documents, laws and material agreements; and (4) Facility is Tax Exempt.
5. Financial Reporting.
The Borrower shall furnish the following financial reports:
~ce of Reports Frequency Due Date
Financial Statements - Annually 210 days after end of fiscal
Audited year.
Approved Budget Annually 30 days after completion and
approval
It is understood that the St. Lucie County Erosion District will continue to be reported as a
blended unit component of St. Lucie County and its financials will be reported as a separate
fund within the Counts CAFR. In addition, the Borrower shall furnish to the Bank such other
reports as shall be required in the loan documents.
6. Other Conditions.
- No adverse material change in the Borrower's financial condition prior to dosing.
- The Facility shall be cross defaulted with all other existing Borrower debt that is backed
by the Pledged Revenues (as applicable).
- Establishment of Debt Service Reserve Fund equal to 6 month of annual interest
payments.
- Periodic loan payments shall settled via auto debit through an account maintained with
the Bank.
EXHIBIT B
FORM OF LOAN AGREEMENT
B-1
LOAN AGREEMENT
between
ST. LUCIE COUNTY EROSION DISTRICT
and
TD BANK, N.A.
Dated , 2012
Relating to
St. Lucie County Erosion District
Special Assessment Revenue Bond, Series 2012
(South Hutchinson Island Beach and Dune Restoration Project)
TABLE OF CONTENTS
SECTION 1. DEFINI'ITONS ..................................................................................................................... 2
SECTION 2. INTERPRETATION ............................................................................................................4
SECTION 3. THE LOAN ..........................................................................................................................5
SECTION 4. DESCRIPTION OF SERIES 2012 BOND; PAYMENT OF THE SERIES 2012 BOND 5
SECTION 5. APPLICATION OF PROCEEDS ..................................................................................... ..6
SECTION 6. EXECUTION OF SERIES 2012 BOND ........................................................................... .. 6
SECTION 7. REGISTRATION AND TRANSFER OF SERIES 2012 BOND .................................... ..6
SECTION 8. SERIES 2012 BOND MUTILATED, DESTROYED, STOLEN OR LOST ................... .. 7
SECTION 9. FORM OF SERIES 2012 BOND ....................................................................................... .. 8
SECTION 10. SECURITY FOR SERIES 2012 BOND .......................................................................... ..8
SECTION 11. COVENANTS OF THE DISTRICT ............................................................................... ..8
SECTION 12. REPRESENTATIONS AND WARRANTIES .............................................................. ..9
SECTION 13. CONDITIONS PRECEDENT ........................................................................................ 10
SECTION 14. NOTICES ......................................................................................................................... 11
SECTION 15. EVENTS OF DEFAULT DEFINED .............................................................................. 12
SECTION 16. REMEDIES ....................................................................................................................... 12
SECTION 17. WAIVER OF JURY TRIAL ............................................................................................ 13
SECTION 18. NO RECOURSE .............................................................................................................. 13
SECTION 19. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS .................... 13
SECTION 20. AMENDMENTS, CHANGES AND MODIFICATIONS .......................................... 13
SECTION 21. BINDING EFFECT .......................................................................................................... 13
SECTION 22. SEVERABILI'I'Y ............................................................................................................... 13
SECTION 23. EXECUTION IN COUNTERPARTS ............................................................................ 13
SECTION 24. APPLICABLE LAW ....................................................................................................... 13
LOAN AGREEMENT
This LOAN AGREEMENT is made and entered into on the day of
2012, by and between the ST. LUCIE COUNTY EROSION DISTRICT (the "District), and TD
BANK, N.A. (the "Bank").
WITNESSETH:
WHEREAS, the District and St. Lucie County, Florida (the "County") have collaborated
in extensive undertakings related to a beach and dune restoration project (the "Project")
involving the area generally described as South Hutchinson Island; and
WHEREAS, the plan of finance for the costs associated with the Project involves three
primary funding sources: (i) revenues derived from the County-wide "Zone E" taxing district
administered by the District, (ii) grant funding made available from the Florida Department of
Environmental Protection ("DEP"), and (iii) special assessments, sometimes referred to as non-
ad valorem assessments, levied upon real property within the South Hutchinson Island Beach
and Dune Restoration Special Assessment District pursuant to District Resolution Nos. 12-04,
12-05 and 12-08 (collectively, the "Assessments"); and
WHEREAS, the District is authorized by the Act to levy and collect the Assessments
and to borrow money, issue bonds, notes or other obligations secured by such Assessments to
finance costs associated with the Project.
WHEREAS, TD Bank, N.A. (the "Bank") has proposed a loan to the District for the
purpose of financing that portion of the Project Cost to be paid by the Assessments (the
"Assessed Cost"), in accordance with the terms of the proposal of the Bank, dated August 29,
2012, a copy of which is attached hereto as Exhibit A (the "Proposal"); and
WHEREAS, in accordance with the Proposal, the Bank is willing to provide the District
with a loan in the amount of $ (the "Loan") based on the terms set forth in the
Proposal; and
WHEREAS, the Loan shall be evidenced by a single revenue bond issued by the District
to the Bank entitled St. Lucie County Erosion District Special Assessment Revenue Bond, Series
2012 (South Hutchinson Island Beach and Dune Restoration Project) (the "Series 2012 Bond");
and
WHEREAS, due to the nature of the security for the Series 2012 Bond, the size of the
Loan, the willingness of the Bank to purchase the Series 2012 Bond at interest rates favorable to
the District and the critical importance of timing of the sale of the Series 2012 Bond, the District
has determined that it is in the best interest of the public and the District to accept the offer of
the Bank to purchase the Series 2012 Bond at a negotiated sale pursuant to the terms of the
Proposal and the Series 2012 Bond; and
WHEREAS, the Project is a capital project appropriately undertaken by the District
under the Act and the District hereby authorizes the Project and the capital expenditures
necessary to complete the Project; and
WHEREAS, the District has previously determined that it is necessary, desirable and
the best interests of the District and its inhabitants that the District undertake the Project a
that the Project will serve the essential public purposes of the District.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hers
set forth and other good and valuable consideration, the receipt and sufficiency of which
hereby acknowledged, the parties do hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein and not defined herE
shall have the meanings ascribed thereto in the Bond Resolution. As used herein, the followi
terms shall have the following meanings, unless the text otherwise expressly requires:
"Act" means Chapter 2004-409, Laws of Florida, as amended from time to time, a
other applicable provisions of law.
"Assessed Cost" means that portion of the Project Cost to be financed with proceeds
the Series 2012 Bond.
"Assessment Resolutions" means District Resolution Nos. 12-04, 12-05 and 12-08 whi
provide for the levy and collection of the Assessments within the Special Assessment Distri
and any resolution supplemental thereto or amendatory thereof.
"Bank" means TD Bank, N.A., a national bank, with offices located at 5900 Noy
Andrews Avenue, Ft. Lauderdale, Florida 33309.
"Board" means the Board of Commissioners of the District, as the governing body of t
District.
"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 District.
"Bond Resolution" means Resolution No. 12-009 adopted by the District on September
18, 2012, accepting the Bank's proposal to provide the Loan to the District to finance the
Assessed Cost, 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
District are lawfully closed for business.
"Chair" means the Chair of the Board of Commissioners of the District, or, in the Chair's
absence, the Vice-Chair of the Board, or such other person as may be duly authorized to act on
the Chair's behalf.
"Clerk" means the Clerk of the Circuit Court for St. Lucie, County, acting ex-officio as
the Secretary/Treasurer of the Board, 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.
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"Code" means the Internal Revenue Code of 1986, as amended.
"County Administrator" means the County Administrator, as the chief operating officer
of the County.
"County" means St. Lucie County, Florida.
"Debt Service" means all principal of, interest on and other amounts coming due on the
Series 2012 Bond.
"Default Rate" means the Interest Rate plus four percent (4.00%); provided, however,
that the Default Rate shall not exceed the Maximum Rate.
"Default" means an Event of Default as defined and described in Section 15 hereof.
"Disbursement Date" means 2012 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 April 1 and October 1, commencing April 1, 2013
and continuing until and including the Maturity Date.
"Interest Rate" means the rate per annum born by the Series 2012 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 2012
Bond.
"Loan Agreement" means this agreement between the Bank and the District setting
forth the terms and details of the Loan.
"Loan" means the advance of moneys from the Bank to the District pursuant to the Loan
Agreement.
"Maturity Date" means October 1, 2022.
"Maximum Rate" means the maximum rate of interest permitted for non-rated,
governmental bonds as set forth in Section 215.84(3), Florida Statutes, as may be amended from
time to time.
"Paying Agent" means the Clerk.
"Payment Date" means collectively, Principal Payment 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.
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"Pledged Revenues" means with respect to the Series 2012 Bond, (i) the Assessments,
(ii) the moneys on deposit in the Debt Service Fund established hereunder for the Series 2012
Bond, (iii) the moneys on deposit in the Reserve Account established hereunder for the Series
2012 Bond, (iv) the moneys on deposit in the Project Fund established hereunder, and (v) the
investment earnings allocable to the Debt Service Fund and Reserve Account.
"Principal Amount" means Dollars ($ ).
"Principal Payment Date" means October 1, 2013 and each October 1 thereafter until
and including the Maturity Date.
"Project Cost" means the total cost to acquire and construct the Project.
"Project" means the beach and dune restoration project on South Hutchinson Island
contemplated hereunder which entails placement of approximately 486,000 cubic yards of sand
with native dune vegetation planted in the restored dune crest over about 3.4 miles of
shoreline, including the cost of any easements or other property interests necessary or
convenient therefor, the costs of labor and material to complete construction, engineering and
legal expenses, fiscal expenses, expenses for estimates of costs and revenues, expenses for
plans, specifications and surveys, interest during construction, if any, contingencies, financing
costs, monitoring costs, administration expenses and all other necessary miscellaneous
expenses.
"Proposal" means the commitment submitted to the District by the Bank, dated August
29, 2012, and accepted and approved by the Bond Resolution.
"Register" means the books maintained by the Registrar in which are recorded the name
and address of the Registered Owner of the Series 2012 Bond.
"Registered Owner" means the person in whose name the ownership of the Series 2012
Bond is registered on the books maintained by the Registrar. The initial Registered Owner for
the Series 2012 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 2012 Bond" means the St. Lucie County Erosion District Special Assessment
Revenue Bond, Series 2012 (South Hutchinson Island Beach and Dune Restoration Project) of
the District, which shall be in substantially the form attached as Exhibit A hereto.
"Special Assessment District" means the South Hutchinson Island Beach and Dune
Restoration Special Assessment District created pursuant to the Assessment Resolutions.
"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
4
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 District 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 District 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 District by deposit of the principal amount thereof to or for the order of the
District by 12:00 p.m., Eastern Time, on the Disbursement Date in immediately available funds.
SECTION 4. DESCRIPTION OF SERIES 2012 BOND; PAYMENT OF THE SERIES
2012 BOND. The obligation of the District to repay the Loan shall be evidenced by the Series
2012 Bond. The Series 2012 Bond shall be dated as of the date of delivery thereof; shall mature
on the Maturity Date; and shall be in registered form.
Interest and Principal Payments. The Series 2012 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 2012 Bond shall be a fixed rate of interest equal to % per annum as may
be adjusted in accordance with Schedule 1 to the Series 2012 Bond. Interest on the Series 2012
Bond shall be calculated using a 360-day year consisting of twelve 30-day months.
Interest on the Series 2012 Bond shall be paid semiannually on each Interest Payment
Date, commencing April 1, 2013. The principal amount of the Series 2012 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 of
Schedule 1 to the Series 2012 Bond, shall be the amount indicated on Schedule 2 to the Series
2012 Bond.
The Series 2012 Bond shall bear interest at the Interest Rate; provided, however, that if
any principal of or interest on the Series 2012 Bond is not paid when due, from the date three
(3) days after such default, the Series 2012 Bond and any amount so in default shall bear
interest at the Default Rate until such default is cured. Further, if any principal of or interest on
the Series 2012 Bond is not paid within fifteen (15) days of the Payment Date, a late charge of
six percent (6%) shall be assessed. Anything provided herein or in the Series 2012 Bond to the
contrary notwithstanding, in no event shall the Series 2012 Bond bear interest in excess of the
Maximum Rate.
Prepayment. (A) The Series 2012 Bond may be prepaid at the option of the District in
whole or in part, at any time, together with a prepayment penalty equal to the greater of (i) one
percent (1%) of the principal balance being prepaid multiplied by the "Remaining Term" as
defined below, in years, or (ii) a "Yield Maintenance Fee" in an amount computed as follows:
the current cost of funds, specifically the bond equivalent yield for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent yield) with a
maturity date closest to the "Remaining Term", shall be subtracted from the Interest Rate, or the
Default Rate if applicable. If the result is zero or a negative number, there shall be no Yield
5
Maintenance Fee due and payable. If the result is a positive number, then the resulting
percentage shall be multiplied by the scheduled outstanding principal balance for each
remaining monthly period of the "Remaining Term." Each resulting amount shall be divided by
360 and multiplied by the number of days in the monthly period. Said amounts shall be
reduced to present values calculated by using the above reference current costs of funds
divided by 12. The resulting sum of present values shall be the Yield Maintenance Fee due to
the Bank upon prepayment of the principal of the Series 2012 Bond plus any accrued interest
due as of the prepayment date. "Remaining Term" as used herein shall mean the shorter of (i)
the remaining term of the Series 2012 Bond, or (ii) the remaining term of the then current fixed
Interest Rate period.
(B) Notwithstanding anything herein to the contrary, the District may prepay the Series
2012 Bond in whole or in part, at any time, without prepayment penalty provided the
prepayment is made with proceeds of the Assessments.
SECTION 5. APPLICATION OF PROCEEDS.. The proceeds derived from the sale of
the Series 2012 Bond shall be applied by the District or by the Bank on the District's behalf,
simultaneously with the delivery of the Series 2012 Bond to the Bank as follows:
(a) $ of the proceeds of the Series 2012 Bond shall be retained by
the District and used to pay the costs and expenses incurred in connection with the
issuance of the Series 2012 Bond;
(b) $ of the proceeds of the Series 2012 Bond shall be deposited
into the Reserve Account established hereunder; and
(c) $ of the proceeds of the Series 2012 Bond shall be deposited
into a fund to be known as the "Project Fund" and used to finance the Assessed Cost.
Such Project Fund is hereby established and shall be maintained with the Bank through
completion of the Project.
SECTION 6. EXECUTION OF SERIES 2012 BOND. The Series 2012 Bond shall be
executed in the name of the District by the Chair and attested by the Clerk, and its corporate
seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Series 2012 Bond
may be signed and sealed on behalf of the District by any person who at the actual time of the
execution of such Series 2012 Bond shall hold the appropriate office in the District, although at
the date thereof the person may not have been so authorized. The Series 2012 Bond may be
executed by the facsimile signatures of the Chair and/or Clerk, provided that at least one of the
foregoing signatures must be a manual signature.
SECTION 7. REGISTRATION AND TRANSFER OF SERIES 2012 BOND. The Series
2012 Bond shall be and shall have all the qualities and incidents of a negotiable instrument
under the Uniform Commercial Code-Investment Securities Laws of the State of Florida, and
each Registered Owner, in accepting the Series 2012 Bond, shall be conclusively deemed to
have agreed that such Series 2012 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 2012 Bond is shown on the
Register shall be deemed the Registered Owner thereof by the District and the Registrar, who
6
may treat the Registered Owner as the absolute owner of the Series 2012 Bond for all purposes,
whether or not the Series 2012 Bond shall be overdue, and any notice to the contrary shall not
be binding upon the District or the Registrar.
Ownership of the Series 2012 Bond may be transferred only upon the Register. Upon
surrender to the Registrar for transfer or exchange of the Series 2012 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 2012 Bond of the same amount, maturity and interest rate as the Series
2012 Bond surrendered.
The Series 2012 Bond presented for transfer, exchange, redemption or payment (if so
required by the District 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 District or the Registrar, duly executed by the Registered Owner or by his
duly authorized attorney.
The District 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 2012 Bond. The Registrar or the
District 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 2012
Bond shall be delivered.
The new Series 2012 Bond delivered upon any transfer or exchange shall be a valid
obligation of the District, evidencing the same debt as the Series 2012 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 2012 Bond surrendered.
Whenever the Series 2012 Bond shall be delivered to the Registrar for cancellation, upon
payment of the principal amount thereof, or for replacement, transfer or exchange, such Series
2012 Bond shall be cancelled and destroyed by the Registrar, and counterparts of a certificate of
destruction evidencing such destruction shall be furnished to the District.
SECTION 8. SERIES 2012 BOND MUTILATED, DESTROYED STOLEN OR LOST.
In case the Series 2012 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 District may prescribe and paying such
expenses as the District may incur, the Registrar shall issue and deliver a new Series 2012 Bond
of like tenor as the Series 2012 Bond so mutilated, destroyed, stolen or lost, in lieu of or
substitution for the Series 2012 Bond, if any, destroyed, stolen or lost, or in exchange and
substitution for such mutilated Series 2012 Bond, upon surrender of such mutilated Series 2012
Bond, if any, to the Registrar and the cancellation thereof; provided however, if the Series 2012
Bond shall have matured or be about to mature, instead of issuing a substitute Series 2012
Bond, the District may pay the same, upon being indemnified as aforesaid, and if such Series
2012 Bond be lost, stolen or destroyed, without surrender thereof. Any Series 2012 Bond
surrendered under the terms of this Section 8 shall be cancelled by the Registrar.
7
Any such new Series 2012 Bond issued pursuant to this section shall constitute an
original, additional contractual obligation on the part of the District whether or not, as to the
new Series 2012 Bond, the lost, stolen or destroyed Series 2012 Bond be at any time found by
anyone, and such new Series 2012 Bond shall be entitled to equal and proportionate benefits
and rights as to security for payment to the same extent as the Series 2012 Bond originally
issued hereunder.
SECTION 9. FORM OF SERIES 2012 BOND. The Series 2012 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 2012 BOND. The Bond is a special obligation
of the District secured solely by the Pledged Revenues, and is payable from the Pledged
Revenues, in the manner and to the extent described herein. The Bond will not constitute a
general debt, liability or obligation of the District or the State of Florida or any political
subdivision thereof within the meaning of any constitutional or statutory provision. Neither
the faith and credit nor the taxing power of the District or of the State of Florida or any political
subdivision thereof is pledged to the payment of the principal of or interest on the Bond and
neither the Registered Owner nor any other party shall ever have the right to compel any
exercise of any ad valorem taxing power of the District or of the State of Florida or any political
subdivision thereof, directly or indirectly to enforce such payment. The Bond shall not
constitute a lien upon any property of the District except upon the Pledged Revenues in the
manner and to the extent described herein.
SECTION 11. COVENANTS OF THE DISTRICT. Until the principal of and interest
on the Series 2012 Bond shall have been paid in full or until (a) there shall have been set apart
in the Reserve Account a sum sufficient to pay when due the entire principal of and interest
accrued and to accrue on the Series 2012 Bond to the Maturity Date, or (b) provision for
payment of the Series 2012 Bond shall have been made in accordance with the provisions of
this Loan Agreement, the District covenants with the Registered Owner of the Series 2012 Bond
as follows:
A. Collection of Assessments. The District will levy the Assessments in amounts
sufficient to pay the Debt Service on the Series 2012 Bond in each year; will collect the
Assessments in the manner specified in Section 197.3632, Florida Statutes; and will apply and
deposit the proceeds of the Assessments into the Debt Service Fund, and, as may be necessary
to cure any deficiency therein, the Reserve Account. The District will maintain the Debt
Service Fund and Reserve Account as separate, special accounts on the books and records of
the District, and will continuously secure the moneys on deposit therein in the manner
required for deposits of public funds.
B. Reserve Account. The District hereby establishes an account to be known as the
Series 2012 Reserve Account (the "Reserve Account") to be held by the Bank. On the
Disbursement Date, the District will deposit $ of Series 2012 Bond proceeds into the
Reserve Account, to cause the amount on deposit therein to equal six (6) months of annual
interest payments on the Series 2012 Bond, as required by the Proposal. The District covenants
to maintain such amount therein required pursuant to the Proposal and the Bond Resolution,
and that such moneys on deposit in the Reserve Account shall only be used to pay Debt Service
on the Series 2012 Bond if, at any time, the amount of Assessment proceeds on deposit in the
Debt Service Fund is insufficient to pay the Debt Service on the Series 2012 Bond. The District
8
shall maintain the Reserve Account on deposit at the Bank through the Maturity Date. T
District shall provide the Bank with written notice of any withdrawal of moneys on deposit
the Reserve Account.
C. Payments. The District hereby establishes a fund to be known as the Series 2012
Debt Service Fund (the "Debt Service Fund") for the payment of Debt Service on the Series 2012
Bond. The Debt Service Fund shall be maintained through the Maturity Date from which the
Registered Owner may deduct on each Interest Payment Date via ACH Direct Debit the
amount of principal and interest then due on the Series 2012 Bond and all other amounts due
and owing on the Series 2012 Bond when such amounts are due, or payment may be made in
such other place or manner as the Registered Owner may designate to the District in writing.
D. Financial Statements. The Bank acknowledges that the District is a blended unit
component of the County for accounting purposes and that the District's financial information
is reported separately within the County's Comprehensive Annual Financial Report. Not later
than the earlier of 210 days following the end of each fiscal year, the District will provide the
Bank a copy of the County's Comprehensive Annual Financial Report and such financial or
public information as the Bank may reasonably request.
E. Tax Compliance. Neither the District, nor any third party over whom the District
has control, will make any use of the proceeds of the Series 2012 Bond or of the Project at any
time during the term of the Series 2012 Bond which would cause the Series 2012 Bond to (a) be
a "private activity bond" within the meaning of Section 103(b)(1) of the Code, or (b) be an
"arbitrage bond" within the meaning of Section 103(b)(2) of the Code. The District covenants
throughout the term of the Series 2012 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 2012 Bond.
F. Agreement to Pay Certain Ex enses The District shall pay fees of the Bank's
counsel for legal review of the documentation pertaining to the Loan. Such fees shall not
exceed $4,000.
SECTION 12. REPRESENTATIONS AND WARRANTIES. The District represents
and warrants to the Bank that:
A. Organization. The District is a dependent special district of St. Lucie County,
Florida, duly organized and existing under the laws of the State of Florida.
B. Authorization of Loan Agreement and Related Documents. The District has the
power and has taken all necessary action to authorize the execution and delivery of and the
performance by the District of its obligations under, the Series 2012 Bond, this Loan Agreement
and all documents executed in connection with the transaction contemplated by this Loan
Agreement, in accordance with their respective terms. This Loan Agreement and the Series
2012 Bond have been duly executed and delivered by the District and are valid and binding
obligations of the District, enforceable against the District 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 District or by general
principles of equity regarding the availability of specific performance.
9
C. Assessments. The District has duly adopted the Assessment Resolutions levying
the Assessments and will comply with all requirements of applicable law in connection with
the levy and collection of the Assessments. The District will take all steps necessary to provide
for the levy and collection of the Assessments until all amounts due and owing on the Series
2012 Bond have been paid in full.
D. Compliance with Section 215 84 Florida Statutes. The District represents,
warrants and covenants that the Interest Rate on the Series 2012 Bond, as currently calculated
in accordance with Section 215.84, Florida Statutes, in compliance with the provisions of such
statute.
E. No Litigation. There is no action, suit, proceeding, or investigation at law or in
equity or before or by any court, public board or body pending or, to the knowledge of the
District, threatened against or affecting the District, or, to the best of the knowledge of the
District, any basis therefore, wherein an unfavorable decision, ruling, or finding would restrain
or enjoin the issuance of the Series 2012 Bond or which in any way would adversely affect the
validity of the Series 2012 Bond, the Bond Resolution, this Loan Agreement or any other
agreement or instrument to which the District is a party and which is used or contemplated for
use in connection with the issuance of the Series 2012 Bond.
F. Compliance with Laws and Approvals. The District has complied with all open
meeting laws, all public bidding laws, and all other state and federal laws applicable to the
District's performance of the transactions contemplated by the Series 2012 Bond, the Bond
Resolution, and this Loan Agreement and has obtained all approvals necessary for the
execution, delivery, and performance of such transactions.
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
Assessment Resolutions certified as complete and correct as of the closing date, together with
an executed Loan Agreement, the executed Series 2012 Bond, and the customary closing
certificates.
B. Incumbency of Officers. The Bank shall have received an incumbency certificate
of the District in respect of each of the officers who is authorized to sign this Loan Agreement
and the related financing documents on behalf of the District.
C. Opinion of Counsel to the District. The Bank shall have received a written
opinion of general counsel to the District addressing matters relating to (1) the corporate
existence of the District; (2) the due adoption of the Bond Resolution; (3) the due adoption of
the Assessment Resolutions, (4) the lien of the Assessments being equal in rank and dignity
with the liens of all state, county, district or municipal taxes and other non-ad valorem
assessments, and except as otherwise provided by law, being superior in dignity to all other
liens, titles and claims, until paid, (5) the due authorization and execution of this Loan
Agreement and the Series 2012 Bond and the related financing documents; and (6) the absence
of litigation against the District relating to (a) its existence or powers, and (b) the proceedings
for the authorization and issuance of the Series 2012 Bond, in form and substance satisfactory
to the Bank.
10
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
District in respect to the Series 2012 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 Pledged Revenues, (iii) the status of interest on the
Series 2012 Bond being excluded from gross income for federal income tax purposes under the
provisions of Section 103 of the Code, and (iv) the Series 2012 Bond is not subject to the
registration requirements of the Securities Act of 1933, as amended, and it is not necessary to
register the Bond Resolution pursuant to the Trust Indenture Act of 1939, as amended.
E. Representations and Warranties• No Default The representations and
warranties made by the District 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 District to the foregoing effect.
F. Other Documents. The Bank shall have received such other documents,
certificates and opinions as the Bank or its counsel shall have reasonably requested.
SECTION 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:
District: St. Lucie County Erosion District
2300 Virginia Avenue
Fort Pierce, Florida 34982-5652
Attention: County Administrator
Copy to: St. Lucie County Erosion District
2300 Virginia Avenue
Fort Piece, Florida 34982-5652
Attention: County Attorney
Copy to: St. Lucie County Erosion District
2300 Virginia Avenue
Fort Piece, Florida 34982-5652
Attention: Clerk of the Circuit Court
Bank: TD Bank, N.A.
5900 North Andrews Avenue, 2nd Floor
Ft. Lauderdale, Florida 33309
Attention:
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.
11
SECTION 15. EVENTS OF DEFAULT DEFINED. The following shall be "Events
Default" under this Loan Agreement, and the terms "Default" and "Events of Default" sh
mean (except where the context clearly indicates otherwise), any one or more of the followi
events:
A. failure by the District to make any payment of principal of or interest on
Series 2012 Bond, within three (3) days of the applicable Payment Date.
B. failure by the District 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 District 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 District or
by an officer or agent of the District 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 District shall default in connection with any obligation for borrowed money
or other credit in excess of $10,000 with any creditor other than the Registered Owner, which
default entitles such creditor to accelerate the maturity thereof and is not cured within thirty
(30) days;
E. the filing of a petition against the District 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;
F. the filing by the District 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 District to the filing of any petition against it under such law; or
G. the admission by the District 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 District'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 District 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 District, 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.
12
SECTION 17. WAIVER OF LURY TRIAL. To the extent permitted by applicable law,
each of the District 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 of
in connection with this Loan Agreement, the Series 2012 Bond or any agreement contemplated
to be executed in connection with this Loan Agreement, or any course of conduct, course o}
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 2012 Bond or for any claim based on the Series 2012 Bond
or on this Loan Agreement, against any present or former member or officer of the Board or
any person executing the Series 2012 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 District and the Bank and shall inure to the benefit of the
District 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.
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]
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Loan
as of the date first above written.
(SEAL)
ST. LUCIE COUNTY
EROSION DISTRICT
By:
Chair, Board of Commissioners
ATTEST:
By:
Clerk of the Circuit Court, ex-officio
Secretary/Treasurer of the Board of Commissioners
APPROVED AS TO FORM AND
CORRECTNESS:
By:
County Attorney
TD BANK, N.A.
By: _
Name:
Title:
14
EXHIBIT A
FORM OF BOND
No. R-1
$.
ST. LUCIE COUNTY EROSION DISTRICT
SPECIAL ASSESSMENT REVENUE BOND, SERIES 2012
(SOUTH HUTCHINSON ISLAND BEACH AND DUNE RESTORATION PROJECT)
RATE OF INTEREST MATURITY DATE DATE OF ISSUE
October 1, 2022 .2012
REGISTERED OWNER: TD BANK, N.A.
PRINCIPAL AMOUNT: DOLLARS
The St. Lucie County Erosion District (the "District"), 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, subject to adjustment as provided in Schedule 1 attached
hereto and in the Loan Agreement, such interest being payable on April 1, 2013, and thereafter
on October 1 and April 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 District 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 District 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 issued to finance the cost of a beach and dune restoration project serving
South Hutchinson Island (the "Project") under the authority of and in full compliance with the
Constitution and Statutes of the State of Florida, including particularly Chapter 2004-409, Laws
of Florida, and other applicable provisions of law, Resolution No. 12-009 duly adopted by the
Board of Commissioners of the District on September 18, 2012 (the "Bond Resolution") and the
Loan Agreement dated .2012 between the District and TD Bank, N.A. (the
"Loan Agreement"), and is subject to all the terms and conditions of said Bond Resolution and
Loan Agreement. Capitalized terms not otherwise defined herein shall have the meaning
specified in the Bond Resolution and the Loan Agreement.
This Bond is payable from and secured solely by a lien upon and pledge of (i) the
proceeds derived from Assessments levied against real property within the South Hutchinson
Island Beach and Dune Restoration Special Assessment District which is specially benefitted by
the Project, (ii) the moneys on deposit in the Debt Service Fund established for the Series 2012
A-1
Bond, (iii) the moneys on deposit in the Reserve Account established for the Series 2012 Bond,
(iv) the moneys on deposit in the Project Fund, and (v) the investment earnings allocable to the
Debt Service Fund and Reserve Account, all in the manner provided in and subject to the terms
and conditions of the Bond Resolution and Loan Agreement.
This Bond does not constitute a general obligation or indebtedness of the District 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 District or the taxation of
any property of or in the District 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 Bond
Resolution and Loan Agreement.
It is further agreed between the District and the Registered Owner of this Bond, that
this Bond and the obligation evidenced hereby shall not constitute a lien upon the Project or
any part thereof, or on any other property of or in the District, but shall constitute a lien only
on the Pledged Revenues, in the manner provided in the Bond Resolution and Loan
Agreement.
The Bond is issued as a single fully registered bond. This Bond is transferable 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 Bond Resolution. No charge will be made for transfer or exchange, but the
District or the Registrar may require payment of an amount sufficient to cover any tax or other
governmental charge payable in connection therewith. The District 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 District nor the Registrar shall be affected by any notice to the contrary.
The District has entered into certain covenants with the Registered Owner of the Bond
for the terms of which reference is made to the Bond Resolution and the Loan Agreement.
Reference is made to the Bond 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 District, 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 Bond Resolution and Loan Agreement.
This Bond may be prepaid in whole or in part, at any time, together with a prepayment
penalty equal to the greater of (i) one percent (1%) of the principal balance being prepaid
multiplied by the "Remaining Term" as defined below, in years, or (ii) a "Yield Maintenance
Fee" in an amount computed as follows: the current cost of funds, specifically the bond
equivalent yield for United States Treasury securities (bills on a discounted basis shall be
converted to a bond equivalent yield) with a maturity date closest to the "Remaining Term",
shall be subtracted from the Interest Rate, or the Default Rate if applicable. If the result is zero
or a negative number, there shall be no Yield Maintenance Fee due and payable. If the result is
a positive number, then the resulting percentage shall be multiplied by the scheduled
A-2
outstanding principal balance for each remaining monthly period of the "Remaining Term.''
Each resulting amount shall be divided by 360 and multiplied by the number of days in the
monthly period. Said amounts shall be reduced to present values calculated by using the above
reference current costs of funds divided by 12. The resulting sum of present values shall be the
Yield Maintenance Fee due to the Bank upon prepayment of the principal of the Series 2012
Bond plus any accrued interest due as of the prepayment date. "Remaining Term" as used
herein shall mean the shorter of (i) the remaining term of the Series 2012 Bond, or (ii) the
remaining term of the then current fixed Interest Rate period. Notwithstanding anything
herein to the contrary, this Bond may be prepaid in whole or in part, at any time, without
prepayment penalty provided the prepayment is made with proceeds of the Assessments.
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.
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 Bond Resolution .until the Certificate of Authentication hereon
shall have been executed by the Registrar.
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IN WITNESS WHEREOF, the St. Lucie County Erosion District has issued this Bond
and has caused the same to be executed by its Chair, either manually or with her/his facsimile
signature, and the corporate seal of said District 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 Issue above.
(SEAL) ~ ST. LUCIE COUNTY
EROSION DISTRICT
By:
ATTEST:
By:
Chair, Board of Commissioners
Clerk of the Circuit Court, ex-officio
Secretaryffreasurer of the Board of Commissioners
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REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within-mentioned
Bond Resolution.
By
County Clerk, as Registrar
Date of Authentication:
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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:
NOTICE: The signature to this assignment
Signature guaranteed: 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.
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)
A-6
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 2012 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 2012 Bond shall be increased to the Taxable Rate, effective retroactively to the date on
which the interest payable on the Series 2012 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 2012 Bond or any former Registered Owners of the Series 2012 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 2012 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 2012 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 2012 Bond, or (ii) a determination by a court of competent jurisdiction that
the interest payable on the Series 2012 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 2012 Bond is includable for
federal income tax purposes in the gross income of the Registered Owner thereof.
Adjustment of Interest Rate for Partial Taxabili~
In the event that interest on the Series 2012 Bond during any period becomes partially
taxable as a result of a Determination of Taxability applicable to less than all of the Series 2012
Bond, then the interest rate on the Series 2012 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 2012 Bond (expressed as a
percentage); and
(C) "C" equals the portion of the Series 2012 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 2012 Bond or any former Registered
Owner of the Series 2012 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 2012 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.
SCHEDULE 1-2
SCHEDULE 2
ST. LUCIE COUNTY EROSION DISTRICT
SPECIAL ASSESSMENT REVENUE BOND, SERIES 2012
(SOUTH HUTCHINSON ISLAND BEACH AND DUNE RESTORATION PROJECT)
AMORTIZATION SCHEDULE
Date Payment
4/1/2013
10/1/2013
4/1/2014
10/1/2014
4/1/2015
10/1/2015
4/1/2016
10/1/2016
4/1/2017
10/1/2017
4/1/2018
10/1/2018
4/1/2019
10/1/2019
4/1/2020
10/1/2020
4/1/2021
10/1/2021
4/1/2022
10/1/2022
Totals:
Interest Principal
SCHEDULE 2-1
EXHIBIT C
FORM OF PURCHASER'S CERTIFICATE
This is to certify that TD Bank, N.A. (the "Purchaser") has not required the St. Lucie
County Erosion District (the "District") to deliver any offering document and has conducted its
own investigation, to the extent it deems satisfactory or sufficient, into matters relating to
business affairs or conditions (either financial or otherwise) of the District in connection with
the issuance of not to exceed $ St. Lucie County Erosion District Special Assessment
Revenue Bond, Series 2012 (South Hutchinson Island Beach and Dune Restoration Project) (the
"Bond"), and no inference should be drawn that the Purchaser, in the acceptance of said Bond, is
relying on Bond Counsel or District Counsel as to any such matters other than the legal
opinions rendered by Bond Counsel, Bryant Miller Olive P.A. and by District Counsel. Any
capitalized undefined terms used herein not otherwise defined shall have the meaning set forth
in a resolution adopted by the Board of Commissioners of the District on September 18, 2012
(the "Resolution").
We are aware that investment in the Bond involves various risks, that the Bond is not a
general obligation of the District or payable from ad valorem tax revenues, and that the
payment of the Bond is secured solely from the Assessments as described in the Resolution and
the Loan Agreement between the District and TD Bank, N.A. (the "Bond Security").
We have made such independent investigation of the Bond Security as we, in the
exercise of sound business judgment, consider to be appropriate under the circumstances. In
making our investment decision, we have relied upon the accuracy of information which has
been provided to us by the District.
We have knowledge and experience in financial and business matters and are capable of
evaluating the merits and risks of our investment in the Bond and can bear the economic risk of
our investment in the Bond.
We acknowledge and understand that the Bond is not being qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered in reliance upon
the exemption from registration under Section 3(a)(2) of the Securities Act of 1933, Section
517.051(1), Florida Statutes, and/or Section 517.061(7), Florida Statutes, and that neither the
District, Bond Counsel nor District Counsel shall have any obligation to effect any such
registration or qualification.
We are not acting as a broker or other intermediary, and are purchasing the Bond as an
investment for our own account and not with a present view to a resale or other distribution to
the public. We understand that the Bond may not be transferred except to a bank, savings
association, insurance company or other "accredited investor" as described below in accordance
with the restrictions set forth in the Bond.
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We are a national banking association under the laws of the United States of America.
We are not purchasing the Bond for the direct or indirect promotion of any scheme or enterprise
with the intent of violating or evading any provision of Chapter 517, Florida Statutes.
DATED this of .2012.
TD BANK, N.A.
By:_
Name:
Title:
C-2
EXHIBIT D
FORM OF DISCLOSURE LETTER
The undersigned, as purchaser, proposes to negotiate with the St. Lucie County Erosion
District (the "Issuer") for the private purchase of its St. Lucie County Erosion District Special
Assessment Revenue Bond, Series 2012 (South Hutchinson Island Beach and Dune Restoration
Project) (the "Bond") in the principal amount of $ .Prior to the award of the Bond,
the following information is hereby furnished to the Issuer:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to
be incurred for services rendered to us (the "Bank") in connection with the issuance of the Bond
(such fees and expenses to be paid by the Issuer):
GrayRobinson, P.A.
Bank Counsel Fees: $4,000
2. (a) No other fee, bonus or other compensation is estimated to be paid by the
Bank in connection with the issuance of the Bond to any person not regularly employed or
retained by the Bank (including any "finder" as defined in Section 218.386(1)(a), Florida
Statutes), except as specifically enumerated as expenses to be incurred by the Bank, as set forth
in paragraph (1) above.
(b) No person has entered into an understanding with the Bank, or to the
knowledge of the Bank, with the Issuer, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary
between the Issuer and the Bank or to exercise or attempt to exercise any influence to effect any
transaction in the purchase of the Bond.
3. The amount of the underwriting spread expected to be realized by the Bank is $0.
4. The management fee to be charged by the Bank is $0. The Bank's credit review fee is
$0.
5. Truth-in-Bonding Statement:
The Bond is being issued primarily for the purpose of financing a portion of the costs
associated with a beach and dune restoration project serving South Hutchinson Island.
Unless earlier redeemed, the Bond is expected to be repaid by October 1, 2022; at an
interest rate of % per annum, total interest paid over the life of the Bond is estimated to be
D-1
The Bond will be payable solely from Assessments as described in Resolution No. 12-_
adopted by the Issuer on September 18, 2012 (the "Resolution"), in the manner as to the extent
required in the Resolution. Issuance of the Bond is estimated to result in a maximum of
approximately $ of revenues of the Issuer not being available to finance the
services of the Issuer during any particular year of the life of the Bond.
6. The name and address of the Bank is as follows:
TD Bank, N.A.
5900 North Andrews Avenue
Fort Lauderdale, Florida 33309
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter on behalf
of the Bank this day of .2012.
TD BANK, N.A.
By:_
Name:
Title:
D-2