HomeMy WebLinkAbout24-202Execution Copy
RESOLUTION NO.24-202
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF ST. LUCIE COUNTY, FLORIDA AUTHORIZING THE ISSUANCE
BY ST. LUCIE COUNTY OF NOT EXCEEDING $50,000,000 IN
AGGREGATE PRINCIPAL AMOUNT OF A NON -AD VALOREM
REVENUE NOTE, SERIES 2024 OF THE COUNTY, TO PROVIDE
FUNDS FOR THE ACQUISITION AND CONSTRUCTION OF
CERTAIN CAPITAL FACILITIES AND IMPROVEMENTS THERETO
RELATING TO THE WATER AND SEWER FACILITIES OF THE ST.
LUCIE COUNTY WATER AND SEWER DISTRICT; AUTHORIZING
THE AWARD OF THE SALE OF THE NOTE UPON COMPLIANCE
WITH CERTAIN PARAMETERS; AUTHORIZING THE EXECUTION
AND DELIVERY OF THE FORM OF ATTACHED LOAN
AGREEMENT BETWEEN THE COUNTY AND THE PURCHASER OF
THE NOTE; COVENANTING TO BUDGET AND APPROPRIATE
LEGALLY AVAILABLE NON -AD VALOREM FUNDS TO PAY THE
NOTE; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS;
PROVIDING FOR SEVERABILITY; AND PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ST.
LUCIE COUNTY, FLORIDA, that:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution is enacted
pursuant to the provisions of Section 125.01, et seq., Florida Statutes, and other applicable
provisions of law.
SECTION 2. FINDINGS. It is hereby ascertained, determined and declared that:
A. St. Lucie County, Florida (the "County") previously requested proposals to
provide the County with the necessary financing (the "Loan") to provide for the acquisition and
construction of certain capital facilities and improvements thereto of the water and wastewater
system owned by the St. Lucie County Water and Sewer District (the "Project").
B. The County previously entered into a Loan Agreement, dated July 29, 2022 (the
"Prior Loan Agreement") with U.S. Bank National Association to finance a portion of the cost of
the Project, such Loan Agreement evidenced by the County's Non -Ad Valorem Revenue Note,
Series 2022 (the "Refunded 2022 Note").
C. It is necessary and desirable to provide for the execution and delivery of a Loan
Agreement and the issuance of the County's Non -Ad Valorem Revenue Note, Series 2024 (the
"Note") to provide further funds to construct the Project, and in connection therewith to refund
the Refunded 2022 Note. Amounts due under the Loan Agreement and the Note shall be payable
from non -ad valorem revenues of the County derived from the County's covenant to budget and
appropriate from legally available non -ad valorem funds each year such monies sufficient to pay
the principal and interest on such obligation.
D. In accordance with the provisions of Part III, Chapter 218, Florida Statutes, a
negotiated sale of the Note is in the best interest of the County because of the flexibility available
in structuring the Note and its terms.
SECTION 3. AUTHORIZING AND AWARD OF NOTE. The issuance by the
County of not to exceed $50,000,000 aggregate principal amount of its Non -Ad Valorem
Revenue Note, Series 2024 for the purposes described above; to be dated, to bear interest at a
rate or rates not exceeding the maximum legal rate per annum, to be payable, to mature, to be
subject to redemption and to have such other characteristics as are provided in the Loan
Agreement attached; and secured by a covenant of the County to budget and appropriate from
legally available non -ad valorem funds each year monies sufficient to pay the principal and
interest on such Note, is hereby authorized. The sale of the Note is hereby authorized to U.S.
Bank National Association, with the approval of the final terms providing the best overall benefit
to the County being hereby delegated to the Chair of the Board of County Commissioners of the
County (the "Chair"), providing the following parameters are complied with: (A) the aggregate
principal amount of the Note shall be not in excess of $50,000,000; (B) the initial interest rate on
the Note (subject to tax and default adjustments as provided in the Loan Agreement) shall not
exceed 6.00%; and (C) the costs of issuance associated with the issuance of the Note shall not
exceed $75,000.
SECTION 4. APPROVAL OF LOAN AGREEMENT AND NOTE. The Loan
Agreement and the Note in the form attached thereto as Exhibit A are hereby approved in
substantially such forms, with such modifications as may be approved by the Chair or Vice
Chair, including a modification of the principal amount thereof (not to exceed $50,000,000),
such approval to be conclusively determined by his or her execution thereof, and the execution
and delivery thereof by the Chair or Vice Chair and the Clerk of the County, who are hereby
authorized to execute and deliver such instruments and to take such other actions as shall be
necessary to implement the Loan.
SECTION 5. AUTHORIZATION OF THE PROJECT AND REFUNDING OF
THE REFUNDED 2022 NOTE. The Project is hereby authorized. The Chair, County
Attorney and Clerk are hereby authorized to take all action necessary or required in connection
with the issuance of the Note. In connection therewith, the County hereby authorizes the
refunding from proceeds of the Note of amounts drawn under the Prior Loan Agreement and the
Refunded 2022 Note.
SECTION 6. REPEAL OF INCONSISTENT PROVISIONS. All resolutions or
parts thereof in conflict with this Resolution are hereby repealed to the extent of such conflict.
SECTION 7. SEVERABILITY. In the event that any portion or section of this
Resolution is determined to be invalid, illegal or unconstitutional by a court of competent
jurisdiction, such decision shall in no manner affect the remaining portions or sections of this
Resolution, which shall remain in full force and effect.
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SECTION 8. EFFECTIVE DATE. This Resolution shall take effect immediately
upon its final passage and adoption.
PASSED AND ADOPTED this 15th day of October, 2024.
GOMM'SS'�
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ATTEST:
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Deputy Clerk of the Circuit Court, ex-
officio Deputy Clerk of the Board of
County Commissioners
BOARD OF COUNTY COMMISSIONERS
OF ST. LUCIE COUNTY, FLORIDA
K b4�L
Chair, Boar j
County Commissioners
APPROVED AS TO
CORREcTnSs:,, .
County Attorney
4
AND
EXHIBIT A
FORM OF LOAN AGREEMENT AND NOTE
A-1
NGN Draft No.2 9/12/24
016.29
LOAN AGREEMENT
dated October , 2024
between
ST. LUCIE COUNTY, FLORIDA
and
U.S. BANK NATIONAL ASSOCIATION
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms.
Page
Section 1.02. Computation of Time Periods...................................................................................9
Section1.03. Construction..............................................................................................................9
Section 1.04. Accounting Terms and Determinations....................................................................9
Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Related
Documents; Incorporation by Reference.........................................................................................9
ARTICLE 11
FACILITIES; APPLICATION AND ISSUANCE OF THE LOANS; PAYMENTS
Section 2.01.
Non -Revolving Credit Commitment.......................................................................10
Section 2.02.
Loans Evidenced by a Note....................................................................................10
Section2.03.
Interest on Loans.....................................................................................................11
Section 2.04.
Manner of Advancing Loans..................................................................................12
Section 2.05.
Repayment of Loans...............................................................................................12
Section 2.06.
Prepayment of Loans..............................................................................................12
Section 2.07.
Calculation of Interest and Fees...............................................................................13
Section 2.08.
Term -Out Provisions...............................................................................................13
Section2.09.
Funding Indemnity..................................................................................................13
Section 2.10.
Termination of the Prior Loan Agreement..............................................................13
ARTICLE III
THE COUNTY'S OBLIGATIONS
Section3.01. Payment Obligations...............................................................................................14
Section3.02. Default Rate............................................................................................................15
Section 3.03. Determination of Taxability....................................................................................15
Section 3.04. Obligations Absolute..............................................................................................16
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effective Date..................................................................16
Section 4.02. Conditions Precedent to Each Loan ........................................................................18
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01.
Existence and Power; Due Authorization...............................................................18
Section 5.02.
Valid and Binding Obligations...............................................................................18
Section 5.03.
Noncontravention; Compliance with Law..............................................................19
Section 5.04.
Pending Litigation and Other Proceedings.............................................................19
Section 5.05.
Financial Statements...............................................................................................19
Section5.06.
No Defaults.............................................................................................................19
Section 5.07.
Correct Information................................................................................................20
Section 5.08.
Investment Company..............................................................................................20
Section5.09.
Margin Stock...........................................................................................................20
Section 5.10.
Tax -Exempt Status..................................................................................................20
Section5.11.
Usury.......................................................................................................................20
Section5.12.
Security...................................................................................................................20
Section 5.13.
Pending Legislation and Decisions.........................................................................20
Section5.14.
No Immunity...........................................................................................................21
Section 5.15.
Anti -Corruption Laws; Sanctions............................................................................21
ARTICLE VI
COVENANTS OF THE COUNTY
Section6.01.
Existence, Etc..........................................................................................................21
Section 6.02.
Payment of Obligations...........................................................................................21
Section 6.03.
Compliance with Laws...........................................................................................21
Section6.04.
Reports....................................................................................................................22
Section 6.05.
Maintenance of Books and Records.......................................................................22
Section 6.06.
Access to Books and Records.................................................................................23
Section 6.07.
Covenant to Budget and Appropriate; Payment of Loans......................................23
Section6.08.
Anti-dilution............................................................................................................24
Section6.09.
Use of Proceeds.......................................................................................................24
Section 6.10.
Maintenance of Tax -Exempt Status of Interest......................................................24
Section 6.11 Acquisition Account.................................................................................................25
Section6.12 Underlying Rating.....................................................................................................25
Section 6.13.
Immunity from Jurisdiction.....................................................................................25
Section 6.14.
Other Credit Facilities.............................................................................................25
ARTICLE VII
EVENTS OF DEFAULT
Section7.01. Events of Default....................................................................................................25
Section 7.02. Consequences of an Event of Default.....................................................................27
Section 7.03. Remedies Cumulative; Solely for the Benefit of Lender........................................28
Section 7.04. Waivers or Omissions.............................................................................................28
Section 7.05. Discontinuance of Proceedings...............................................................................28
ARTICLE VIII
INDEMNIFICATION
Section8.01. Indemnification.......................................................................................................29
Section8.02. Survival...................................................................................................................29
ARTICLE IX
MISCELLANEOUS
Section 9.01.
Patriot Act Notice...................................................................................................29
Section 9.02.
Further Assurances..................................................................................................29
Section 9.03.
Amendments and Waivers; Enforcement...............................................................30
Section 9.04.
No Implied Waiver; Cumulative Remedies............................................................30
Section9.05.
Notices....................................................................................................................30
Section9.06.
Right of Setoff.........................................................................................................31
Section 9.07.
No Third -Party Rights.............................................................................................32
Section9.08.
Severability.............................................................................................................32
Section 9.09.
Governing Law; Consent to Jurisdiction and Venue; Waiver of Jury Trial ...........32
Section 9.10.
Prior Understandings..............................................................................................32
Section9.11.
Duration..................................................................................................................33
Section9.12.
Counterparts............................................................................................................33
Section 9.13.
Successors and Assigns...........................................................................................33
Section9.14.
Headings.................................................................................................................34
Section 9.15.
Electronic Signatures..............................................................................................34
Section 9.16.
No Advisory or Fiduciary Relationship..................................................................34
EXHIBIT A -
FORM OF NOTE
EXHIBIT B -
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT C -
FORM OF INVESTOR LETTER
EXHIBIT D -
FORM OF REQUEST FOR LOAN
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated October , 2024 (as amended, modified or restated
from time to time, this "Agreement"), between ST. LUCIE COUNTY, FLORIDA, a political
subdivision duly and validly existing under the laws of the State of Florida (the "County"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, and its successors and
permitted assigns (the "Lender").
RECITALS
WHEREAS, pursuant to the Constitution and the laws of the State of Florida, including,
particularly, Chapter 125, Florida Statutes, and other applicable provisions of law (collectively,
the "Act") and pursuant to Resolution No. 24- adopted by the Board of County
Commissioners of the County on October 15, 2024 (as the same may be amended, modified or
restated in accordance with the terms thereof and hereof, the "Resolution") the County is
authorized to incur indebtedness from time to time payable from Non -Ad Valorem Revenues (as
defined herein) budgeted and appropriated in accordance with the provisions hereof, to pay the
costs of the Project (as defined herein) pursuant to the terms and provisions of this Agreement
and the promissory note attached hereto;
WHEREAS, the County has previously obtained a loan from the Lender with respect to
the Project pursuant to the terms of that certain Loan Agreement, dated July 29, 2022 (the "Prior
Loan Agreement"), which is evidenced by that certain St. Lucie County, Florida Non -Ad
Valorem Revenue Note, Series 2022, and desires by execution hereof to supersede the terms of
such Prior Loan Agreement and terminate the Prior Loan Agreement;
WHEREAS, the County wishes to obtain an additional loan or loans from the Lender
hereunder and the Lender is willing, upon the terms and subject to the conditions set forth herein,
to provide such loan or loans to the County to pay the costs of the Project; and
NOW, THEREFORE, in consideration of the foregoing Recitals and other consideration,
the receipt and sufficiency of which is hereby acknowledged, and to induce the Lender to extend
to the County the loan or loans, the County and the Lender hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined in the recitals and
elsewhere in this Agreement, the following terms shall have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended.
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"Acquisition Account" means the account of that name established pursuant to Section
6.13 hereof.
"Act" has the meaning set forth in the recitals hereof.
"Affiliate" means, with respect to any Person, any Person that directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control
with, such first Person. A Person shall be deemed to control another Person for the purposes of
this definition if such first Person possesses, directly or indirectly, the power to direct, or cause
the direction of, the management and policies of the second Person, whether through the
ownership of voting securities, common directors, trustees or officers, by contract or otherwise.
"Agreement" has the meaning set forth in the introductory paragraph hereof.
"Amortization Installments" shall mean the amounts determined pursuant to Section 2.09
of this Agreement and established with respect to the Loans.
"Anti -Corruption Laws" means the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder, and any other anti -corruption law applicable to the
County.
"Applicable Law" means (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations and orders of all
Governmental Authorities, (ii) Governmental Approvals and (iii) orders, decisions, judgments,
writs, injunctions and decrees of all courts (whether at law or in equity) and arbitrators.
"Applicable Spread" means, initially 0.65 percent (0.65%), which is subject to the
maintenance of the current Ratings. In the event of a change in a Rating, the Applicable Spread
shall equal the corresponding percentage set forth in the Level associated with the Rating as set
forth below:
LEVEL
Level 1
Level 2
Level 3
Level 4
MOODY' S
RATING S&P RATING FITCH RATING
Al or above
A2
A3
Baal
A+ or above
A
A -
BBB+
A+ or above
A
A -
BBB+
APPLICABLE
SPREAD
0.65 %
0.75%
0.95%
1.25%
In the event of split ratings, the lowest Rating shall be used for the purpose of
determining the applicable Level from the above schedule. Any change in the Applicable Spread
resulting from a change in a Rating shall be and become effective as of and on the date of the
announcement of the change in such Rating. References to Ratings above are references to
rating categories as presently determined by the Rating Agencies and in the event of adoption of
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any new or changed rating system or a "global" rating scale by any such Rating Agency, the
ratings from the Rating Agency in question referred to above shall be deemed to refer to the
rating category under the new rating system that most closely approximates the applicable rating
category as currently in effect. The County acknowledges that as of the Effective Date the
Applicable Spread is that specified above for Level 1.
"Authorized Denomination" means $100,000 and multiples of $5,000 in excess thereof.
"Authorized Representative" shall mean those persons who are authorized to deliver
Requests for Loans shown on a list of officers provided by the County to the Lender or on any
update of any such list provided by the County to the Lender, or any further or different officers
of the County so named by any Authorized Representative of the County in a written notice to
the Lender. As of the Effective Date, the only Authorized Representatives shall be the Chair of
the Board of County Commissioners and the County Administrator.
"Available Commitment" means, on any date, an initial amount equal to $50,000,000 and
thereafter such initial amount adjusted from time to time as follows: (a) downward in an amount
equal to all Loans made to the County hereunder; and (b) downward to zero upon the expiration
or termination of the Available Commitment in accordance with the terms hereof.
"Bank Agreement" means any credit agreement, liquidity agreement, standby bond
purchase agreement, reimbursement agreement, direct purchase agreement, bond purchase
agreement, or other agreement or instrument (or any amendment, supplement or other
modification thereof) under which, directly or indirectly, any Person or Persons undertake(s) to
make or provide funds to make payment of, or to purchase or provide credit enhancement for,
bonds or notes of the County secured by or payable from Non -Ad Valorem Revenues.
"Base Rate" means, for any day, a fluctuating rate of interest per annum equal to the
greatest of (i) the Prime Rate in effect at such time plus one percent (1.0%), (ii) the Federal
Funds Rate in effect at such time plus two percent (2.0%), and (iii) seven and one half percent
(7.5%).
"Bond Counsel" means Nabors Giblin & Nickerson P.A., or any other firm of attorneys
nationally recognized on the subject of tax-exempt municipal finance selected by the County.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions in Fort Pierce, Florida or New York, New York or the states where
the principal corporate office of the Lender is located are authorized by law to close or (b) a day
on which the New York Stock Exchange or the Federal Reserve Bank is closed.
"Code" means the Internal Revenue Code of 1986, as amended, and, where appropriate
any statutory predecessor or any successor thereto.
"Commitment" means the obligation of the Lender to make Loans for the account of the
County hereunder in an aggregate principal amount at any one time not to exceed the Available
Commitment.
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"Compliance Certificate" means a certificate substantially in form of Exhibit C hereto.
"Computation Date" means each Wednesday preceding the applicable SIFMA Index
Reset Date.
"Conversion Date" means October , 2027.
"County" means St. Lucie County, Florida, a political subdivision duly and validly
existing under the laws of the State of Florida, and any permitted successor or assign thereof
hereunder.
"County Representative" means any person authorized from time to time in writing by the
County or its successors and assigns, to perform a designated act or execute a designated
document.
"Debt" shall have the meaning set forth in Section 6.08 hereof.
"Default" means any event or condition which, with notice, the passage of time or any
combination of the foregoing, would constitute an Event of Default.
"Default Rate" means, for any day, a fluctuating rate per annum equal to the sum of the
Base Rate in effect on such day plus three percent (3.00%).
"Determination of Taxability" means the circumstance of the interest on the Note
becoming includable for federal income tax purposes in the gross income of the Lender as a
result of action or inaction by the County. A Determination of Taxability will be deemed to have
occurred upon (i) the receipt by the County or the Lender of an original or a copy of an Internal
Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency; (ii) the
issuance of any public or private ruling of the Internal Revenue Service; or (iii) receipt by the
County or the Lender of an opinion of counsel experienced in tax matters relating to municipal
bonds, in each case to the effect that the interest on the Note is not excluded from gross income
of the Lender for federal income tax purposes.
"Disbursement Date" means each date that Loans are required to be advanced in
accordance with Section 2.04(a) hereof.
"Effective Date" means October , 2024, subject to the satisfaction or waiver by the
Lender of the conditions precedent set forth in Article IV hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and
any successor statute of similar import, and regulations thereunder, in each case as in effect from
time to time. References to Sections of ERISA shall be construed also to refer to any successor
Sections.
"Essential Services" shall have the meaning set forth in Section 6.08 hereof.
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"Event of Default" with respect to this Agreement has the meaning set forth in Section
7.01 of this Agreement and, with respect to any Related Document, has the meaning assigned
therein.
"Executive Order" has the meaning set forth in Section 5.15 hereof.
"Federal Funds Rate" means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided that: (a) if
such day is not a Business Day, then the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next succeeding
Business Day; and (b) if no such rate is so published on such next succeeding Business Day, then
the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of one -hundredth of one percent) charged to the Lender on such day on such
transactions as determined by the Lender. Notwithstanding anything herein to the contrary, if the
Federal Funds Rate as determined as provided above would be less than zero percent (0.0%),
then the Federal Funds Rate shall be deemed to be zero percent (0.0%).
"Fiscal Year" means the twelve month period from October 1 through the following
September 30.
"Generally Accepted Accounting Principles" or "GAAP" means generally accepted
accounting principles in effect from time to time in the United States and applicable to entities
such as the County as promulgated by the governmental accounting standards board.
"Governmental Approval" means an authorization, consent, approval, permit, license,
certificate of occupancy or an exemption of, a registration or filing with, or a report to any
Governmental Authority.
"Governmental Authority" means the government of the United States of America or any
other nation or any political subdivision thereof or any governmental or quasi -governmental
entity, including any court, department, commission, board, bureau, agency, administration,
central bank, service, district or other instrumentality of any governmental entity or other entity
exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative
powers or functions of or pertaining to government (including any supra -national bodies such as
the European Union or European Central Bank), or any arbitrator, mediator or other Person with
authority to bind a party at law.
"Indemnitee" has the meaning set forth in Section 8.01 hereof.
"Interest Payment Date" means the first Business Day of each calendar month.
"Interest Period" means, the period from (and including) the date such Loan is made to
(but excluding) the next succeeding SIFMA Index Reset Date, and thereafter shall mean the
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period from (and including) such SIFMA Index Reset Date to (but excluding) the next
succeeding SIFMA Index Reset Date (or, if sooner, to but excluding the Conversion Date).
"Law" means any treaty or any federal, regional, state and local law, statute, rule,
ordinance, regulation, code, license, authorization, decision, injunction, interpretation, order or
decree of any court or other Governmental Authority.
"Lender" means U.S. Bank National Association, a national banking association, and its
successors and assigns.
"Lender's Office" means the Lender's address and, as appropriate, the account as set forth
in Section 9.05 hereof, or such other address or account of which the Lender may from time to
time notify the County.
"Liabilities" has the meaning set forth in Section 8.01 hereof.
"Loans" has the meaning set forth in Section 2.01 hereof.
"Material Adverse Effect" means: (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual or contingent), condition
(financial or otherwise) or prospects of the County; (b) a material impairment of the ability of the
County to perform its obligations under any Related Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against the
County of any Related Document to which it is a party.
"Maturity Date" means October , 2030.
"Maximum Federal Corporate Tax Rate" means, for any day, the maximum rate of
income taxation imposed on corporations pursuant to Section I I (b) of the Code, as in effect as of
such day (or, if as a result of a change in the Code, the rate of income taxation imposed on
corporations generally shall not be applicable to the Lender, the maximum statutory rate of
federal income taxation which could apply to the Lender as of such day).
"Non -Ad Valorem Revenues" shall mean all revenues of the County derived from any
source whatsoever other than ad valorem taxation and legally available to pay principal of and
interest on the Loans.
"Note" has the meaning set forth in Section 2.02 hereof.
"Noteholder" means the holder or owner of the Note.
"Obligations" means all obligations of the County to pay principal and interest on the
Loans, all fees and charges payable hereunder, and all other payment obligations of the County
arising under or in relation to any Related Document, in each case whether now existing or
hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever
evidenced, held or acquired.
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"OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets Control,
and any successor thereto.
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107-56
(signed into law October 26, 2001).
"Person" means any individual, corporation, not for profit corporation, partnership,
limited liability company, joint venture, association, professional association, joint stock
company, trust, unincorporated organization, government or any agency or political subdivision
thereof or any other form of entity.
"Prime Rate" means on any day, the rate of interest per annum then most recently
established by U.S. Bank National Association as its "prime rate." Any such rate is a general
reference rate of interest, may not be related to any other rate, and may not be the lowest or best
rate actually charged by the Lender to any customer or a favored rate and may not correspond
with future increases or decreases in interest rates charged by other lenders or market rates in
general, and that the Lender may make various business or other loans at rates of interest having
no relationship to such rate. If U.S. Bank National Association ceases to establish or publish a
prime rate from which the Prime Rate is then determined, the applicable variable rate from which
the Prime Rate is determined thereafter shall be instead the prime rate reported in The Wall
Street Journal (or the average prime rate if a high and a low prime rate are therein reported), and
the Prime Rate shall change without notice with each change in such prime rate as of the date
such change is reported. Notwithstanding anything herein to the contrary, if the Prime Rate
determined as provided above would be less than zero percent (0.0%), then the Prime Rate shall
be deemed to be zero percent (0.0%).
"Project" means the acquisition and construction and improvements to the County water
and wastewater system owned by the St. Lucie County Water and Sewer District, or such
alternative capital improvements as shall be determined by the Board of County Commissioners
of the County.
"Property" means any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible, whether now owned or hereafter acquired.
"Rating" means the lowest long-term unenhanced rating assigned to any Debt of the
County.
"Refunded 2022 Note" means the County's Non -Ad Valorem Revenue Note, Series 2022.
"Related Documents" means this Agreement, the Resolution, the Note and any exhibits,
schedules, instruments or agreements relating thereto, as the same may be amended, modified or
supplemented in accordance with the terms thereof and hereof.
"Repayment Date" means each date the Loans are required to be repaid in accordance
with Section 2.05 hereof.
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"Request for Loan" means a certificate substantially in the form attached hereto as
Exhibit D, properly completed and signed by an Authorized Representative, as such form may be
amended, modified or updated from time to time by the Lender.
"Resolution" has the meaning set forth. in the recitals hereof.
"Sanctions" means sanctions administered or enforced from time to time by the U.S.
government, including those administered by OFAC, the U.S. Department of State, the United
Nations Security Council, or other relevant sanctions authority.
"SIFMA Index" means, for any date of determination, the level of the index which is
issued weekly and which is compiled from the weekly interest rate resets of tax exempt variable
rate issues included in a database maintained by Municipal Market Data which meet specific
criteria established from time to time by the Securities Industry and Financial Markets
Association and issued on Wednesday of each week, or if any Wednesday is not a Business Day,
the immediately succeeding Business Day. If the SIFMA Index is no longer published, then
"SIFMA Index" shall mean the S&P Weekly High Grade Index. If the S&P Weekly High Grade
Index is no longer published, then "SIFMA Index" shall mean the prevailing rate determined by
the Lender for tax exempt state and local government bonds meeting criteria determined in good
faith by the Lender to be comparable under the circumstances to the criteria used by the
Securities Industry and Financial Markets Association to determine the SIFMA Index
immediately prior to the date on which the Securities Industry and Financial Markets Association
ceased publication of the SIFMA Index.
"SIFMA Index Rate" means a per annum rate of interest established on each Computation
Date equal to the SIFMA Index. The SIFMA Index Rate shall be rounded to the second decimal
place. Notwithstanding anything herein to the contrary, during any period of time while the
SIFMA Index Rate, determined as provided above, would be less than zero percent (0.0%), the
SIFMA Index Rate shall be deemed to be zero percent (0.0%).
"SIFMA Index Reset Date" means Thursday of each week.
"State" means the State of Florida.
"Taxable Date" means the date on which interest on any Loan is first includable in gross
income of the Lender thereof as a result of a Determination of Taxability.
"Taxable Period" has the meaning set forth in Section 3.03 hereof.
"Taxable Rate" means, with respect to a Taxable Period, the product of (i) the interest rate
on the affected Loan or Loans during such period and (ii) one divided by (x) one minus (y) the
Maximum Federal Corporate Tax Rate.
"Termination Date" means the earliest of (i) the Conversion Date, and (ii) the date the
Commitment terminates by its terms in accordance with Section 7.02(a) hereof.
"Term -Out Rate" means, for each date of determination, if the provisions of Section 2.08
hereof are met, on and after the Conversion Date, a fluctuating rate per annum equal to the Base
Rate from time to time in effect plus one percent (1.0%); provided that from and after the
occurrence of an Event of Default, "Term -Out Rate" shall mean the Default Rate.
"Term -Out Period" shall have the meaning set forth in Section 2.08 hereof.
"Unused Fee " has the meaning set forth in Section 3.01(b).
"Unused Fee Rate" has the meaning set forth in Section 3.01(b).
Section 1.02. Computation of Time Periods. In this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding."
Section 1.03. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, to the singular include the plural and to the
part include the whole. The word "including" shall be deemed to mean "including but not limited
to," and "or" has the inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and
not to any particular provision of this Agreement. The Section headings contained in this
Agreement and the table of contents preceding this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the interpretation thereof in
any respect. Section, subsection and exhibit references are to this Agreement unless otherwise
specified.
Section 1.04. Accounting Terms and Determinations. Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP. If, after the Effective Date, there shall occur any change in GAAP
from those used in the preparation of the financial statements referred to in Section 6.04 hereof
and such change shall result in a change in the method of calculation of any financial covenant,
standard or term found in this Agreement, including, without limitation, a recharacterization of
operating leases to the effect that certain operating leases are to be treated as capital leases, either
the County or the Lender may by notice to the other party hereto, require that the Lender and the
County negotiate in good faith to amend such covenants, standards, and terms so as equitably to
reflect such change in accounting principles, with the desired result being that the criteria for
evaluating the financial condition of the County shall be the same as if such change had not been
made. No delay by the County or the Lender in requiring such negotiation shall limit their right
to so require such a negotiation at any time after such a change in accounting principles. Until
any such covenant, standard, or term is amended in accordance with this Section 1.04, financial
covenants shall be computed and determined in accordance with GAAP in effect prior to such
change in accounting principles.
Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of
Related Documents; Incop2oration by Reference. (a) Nothing in this Agreement shall be deemed
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to amend, or relieve the County of its obligations under, any Related Document to which it is a
party. Conversely, to the extent that the provisions of any Related Document allow the County
to take certain actions, or not to take certain actions, with regard for example to permitted liens,
transfers of assets, maintenance of financial ratios and similar matters, the County nevertheless
shall be fully bound by the provisions of this Agreement.
(b) Except as provided in subsection (c) of this Section 1.05, all references to other
documents shall be deemed to include all amendments, modifications and supplements thereto to
the extent such amendment, modification or supplement is made in accordance with the
provisions of such document and this Agreement.
(c) All provisions of this Agreement making reference to specific Sections of any
Related Document shall be deemed to incorporate such Sections into this Agreement by
reference as though specifically set forth herein (with such changes and modifications as may be
herein provided) and shall continue in full force and effect with respect to this Agreement
notwithstanding payment of all amounts due under or secured by the Related Documents, the
termination or defeasance thereof or any amendment thereto or any waiver given in connection
therewith, so long as this Agreement is in effect and until all Obligations are paid in full. No
amendment, modification, consent, waiver or termination with respect to any of such Sections
shall be effective as to this Agreement until specifically agreed to in writing by the parties hereto
with specific reference to this Agreement.
ARTICLE II
FACILITIES; APPLICATION AND ISSUANCE OF THE LOANS; PAYMENTS
Section 2.01. Non -Revolving Credit Commitment. Subject to the terms and conditions
hereof, the Lender agrees to make a loan or loans (individually a "Loan" and collectively, the
"Loans") in U.S. Dollars to the County from time to time on a non -revolving basis up to the
amount of the Available Commitment, subject to any reductions thereof pursuant to the terms
hereof, before the Termination Date. The sum of the aggregate principal amount of Loans at any
time outstanding shall not exceed the Available Commitment in effect at such time. Loans may
be repaid but the principal amount thereof may not be reborrowed.
Section 2.02. Loans Evidenced by a Note. The Loans shall be evidenced by the County's
Non -Ad Valorem Revenue Note, Series 2024 authorized pursuant to the Resolution and in
substantially the form set forth in Exhibit A hereto (as amended or supplemented from time to
time, the "Note") to be issued on the Effective Date, payable to the Lender in an amount equal to
the aggregate principal amount borrowed hereunder up to the Available Commitment and
otherwise duly completed. All Loans made by the Lender and all payments and repayments
made on account of principal thereof shall be recorded by the Lender on the schedule attached to
the Note, it being understood, however, that failure by the Lender to make any such endorsement
shall not affect the obligations of the County hereunder or under the Note in respect of unpaid
principal and interest on any Loan.
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Section 2.03. Interest on Loans. Each Loan made or maintained by the Lender shall bear
interest during each Interest Period (and, if applicable, the Term -Out Period) it is outstanding on
the unpaid principal amount thereof as set forth in this Section. Subject to paragraphs (b) and (c)
of this Section, (i) each Loan shall bear interest prior to the Conversion Date at a rate per annum
equal to the applicable SIFMA Index Rate for such Interest Period plus the Applicable Spread.
The initial SIFMA Index Rate for a particular Loan shall be determined by the Lender two
Business Days prior to the related date the Loan is advanced pursuant to Section 2.04 hereof (the
"Advance Date"). Following the determination of the initial rate, the applicable SIFMA Index
Rate for the next succeeding Interest Period shall be determined by the Lender on the
Computation Date immediately succeeding the Advance Date, and such rate shall be effective on
the immediately succeeding SIFMA Index Reset Date. Thereafter the applicable SIFMA Index
Rate for the next succeeding Interest Period shall be determined by the Lender on the applicable
Computation Date, and such rate shall be effective on the immediately succeeding SIFMA Index
Reset Date. During the Term -Out Period, if any, the Loans shall bear interest at the Term -Out
Rate. Interest on each Loan shall be payable by the County on each Interest Payment Date.
(b) Upon a Determination of Taxability, all Loans shall bear interest at the Taxable
Rate.
(c) Upon the occurrence and during the continuance of an Event of Default, all Loans
and other outstanding Obligations shall bear interest at the Default Rate.
All agreements between the County and the Lender under this Agreement are expressly
limited so that in no contingency or event will the amount paid or agreed to be paid under this
Agreement by the County for the use, forbearance or detention of the money to be advanced
under this Agreement exceed the highest lawful rate of interest permissible under law as
determined by a court of competent jurisdiction. If, from any circumstances whatsoever,
fulfillment of any provisions of this Agreement or of any other agreement existing between the
County and the Lender, at the time performance of the provisions are due, will involve payment
of interest at a rate which exceeds the highest lawful rate as so determined, then ipso facto the
obligation to be fulfilled will be reduced to the highest lawful rate (the interest which is not due
as a result of the reduction will be referred to as the "Foregone Interest"), provided that if later
the highest lawful rate is greater than the rate of interest on the Loans (without regard to this
adjustment), then the rate of interest on the Loans will be increased to the highest lawful rate, and
the interest payable solely as a result of the increase will be applied to the payment of the
Foregone Interest and will be paid to the Bondholder until the amount of the Foregone Interest is
paid in full. At such time as all Foregone Interest shall have been paid, the rate of interest on the
Loans shall be readjusted to the stated rate of interest. If from any circumstances, the County or
the Lender ever receives interest in an amount exceeding the highest lawful rate, the portion
which would be excessive interest will be applied to the reduction of the unpaid principal balance
due under this Agreement and not to the payment of interest. Nothing contained in this Section
will be deemed to create a defense to the payment of sums coming due under this Agreement or
under any other agreement existing between the County and the Lender where no defense exists
at law, as for example, where corporations are barred from asserting the defense of usury or in a
case where no limit exists upon the rate of interest which may be charged.
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Section 2.04. Manner of AdvancingLoans.
(a) On the Effective Date, and upon the satisfaction of the conditions precedent set
forth in Section 4.01 hereof, an initial Loan shall be made in the amount of $ , and the
proceeds of such Loan shall be used to refund the Refunded 2022 Note in full, and to pay costs of
the Project.
(b) The County shall give notice to the Lender by no later than 11:00 a.m. Eastern
time at least five (5) Business Days before the date on which the County requests the Lender to
advance a Loan. The County shall give all such notices requesting the advance of a Loan to the
Lender (which notice shall be irrevocable once given and, if by telephone, shall be promptly
confirmed in writing in a manner acceptable to the Lender), substantially in the form attached
hereto as Request for Loan in Exhibit D, or in such other form acceptable to the Lender. The
County shall not deliver more than two (2) Requests for Loans in any thirty (30) calendar day
period. All Requests for Loans shall specify the date of the requested advance of a Loan (which
shall be a Business Day), the amount of the requested Loan to be advanced and the wire
instructions for such Loan; provided that with respect to any notices requested by telephone, the
Lender shall wire such advance pursuant to the wire instructions on file with the Lender or
provided to the Lender pursuant to the most recent Request for Loan delivered to the Lender in
writing. The County agrees that the Lender may rely on any notice given by any person the
Lender in good faith believes is an Authorized Representative without the necessity of
independent investigation, and in the event any such notice by telephone conflicts with any
written confirmation, such telephonic notice shall govern if the Lender has acted in reliance
thereon.
Notwithstanding anything herein to the contrary, the Lender's obligation to make Loans
hereunder is subject to the satisfaction of the conditions precedent set forth in Section 4.02
hereof, and no Loan shall be made after the Termination Date.
(c) Disbursement of Loans. The Lender shall make the proceeds of each new Loan
available to the County by wire transfer per the County's wire instructions set forth in Section
9.05 hereof. Such instructions may be modified in writing by the County to the Lender not less
than five (5) Business Days prior to the date a Loan is to be advanced pursuant to this Section.
Section 2.05. Repayment of Loans. Unless repaid earlier pursuant to the terms hereof,
the principal of each Loan shall be repaid in full on the Conversion Date. In the event the
conditions of Section 2.08 hereof are met, the principal of each Loan shall be paid instead as
described therein.
Section 2.06. Prepayment of Loans. The County may prepay the principal amount of any
Loan, in whole or in part, on any date upon at least five (5) Business Days' written notice is
provided by the County to the Lender; provided that any prepayment prior to the Conversion
Date made on a date other than a SIFMA Index Reset Date shall be subject to the provisions of
Section 2.09 hereof.
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Section 2.07. Calculation of Interest and Fees. (a) Interest on Loans shall be calculated
on the basis of a 365 (or 366) day year and the actual days elapsed.
(b) The County shall make or cause to be made each payment hereunder not later than
3:00 p.m. on the day when due, in lawful money of the United States to the Lender at its Lender's
Office as set forth in Section 9.05 hereof in immediately available funds. Payment received by
the Lender after the applicable time set forth in this Section shall be considered to have been
made on the next succeeding Business Day.
Section 2.08. Term -Out Provisions. So long as no Default or Event of Default shall have
occurred and is continuing hereunder, and the County certifies to the Lender that all
representations and warranties on the part of the County contained herein remain true and
correct, the outstanding principal amount of all Loans as of the Conversion Date shall convert to
a single Loan bearing interest from the Conversion Date until the Maturity Date or earlier
prepayment thereof at the Term -Out Rate (the "Term -Out Period"). Principal repayments of the
Loan shall be paid during the Term -Out Period quarterly in arrears on the first Business Day of
each January, April, July and October in such amounts as to achieve substantially level debt
service over the Term -Out Period, with all unpaid interest and remaining principal due on the
Maturity Date. During the Term -Out Period, the Loan shall bear interest at the Term -Out Rate
and shall be payable on each Interest Payment Date.
Section 2.09. Funding Indemnity. In the event the Lender shall incur any loss, cost, or
expense (including, without limitation, any loss, cost, or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by
the Lender to purchase or hold the Note or the relending or reinvesting of such deposits or other
funds or amounts paid or prepaid to the Lender) as a result of any redemption, acceleration or
prepayment of the Note on a date other than a SIFMA Index Reset Date for any reason, whether
before or after default, and whether or not such payment is required by any provision of this
Agreement or any other Related Document, then upon the demand of the Lender, the County
shall pay to the Lender a prepayment premium in such amount as will reimburse the Lender for
such loss, cost, or expense. If the Lender requests such prepayment premium it shall provide to
the County a certificate setting forth the computation of the loss, cost, or expense giving rise to
the request for such redemption premium in reasonable detail and such certificate shall be
conclusive if reasonably determined. All of the County's obligations under this Section shall
survive the termination of this Agreement and the repayment, satisfaction or discharge of all
other Obligations.
Section 2.10. Termination of the Prior Loan Agreement. Upon the repayment of the
Refunded 2022 Note in full and any other amount due and owing under the Prior Loan
Agreement the Prior Loan Agreement shall be terminated.
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ARTICLE III
THE COUNTY'S OBLIGATIONS
Section 3.01. Payment Obligations. (a) The County hereby unconditionally, irrevocably
and absolutely agrees to make prompt and full payment of all payment obligations owed to the
Lender under the Related Documents and to pay any other Obligations owing to the Lender
whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect,
absolute or contingent, with interest thereon at the rate or rates provided in such Related
Documents and under such Obligations.
(b) Subject to the last sentence of this Section 3.01(b), the County shall pay or cause
to be paid to the Lender on January 2, 2025, for the period commencing on the Effective Date to
and including January 1, 2025, and in arrears on the first Business Day of each January, April,
July and October occurring thereafter to the Termination Date, and on the Termination Date, a
non-refundable unused fee (the "Unused Fee") in an amount equal to the product of the rate then
in effect as specified below (the "Unused Fee Rate") and the Available Commitment during the
related quarterly period:
MOODY'S
FITCH
UNUSED
LEVEL
RATING
S&P RATING
RATING
FEE RATE
Level 1
Al or above
A+ or above
A+ or above
0.25%
Level 2
A2
A
A
0.35%
Level 3
A3
A-
A-
0.55%
Level 4
Baal
BBB+
BBB+
0.85%
In the event of split ratings, the lowest Rating shall be used for the purpose of
determining the applicable Level from the above schedule. Any change in the Unused Fee Rate
resulting from a change in a Rating shall be and become effective as of and on the date of the
announcement of the change in such Rating. References to Ratings above are references to rating
categories as presently determined by the Rating Agencies and in the event of adoption of any
new or changed rating system, the ratings from the Rating Agency in question referred to above
shall be deemed to refer to the rating category under the new rating system that most closely
approximates the applicable rating category as currently in effect. Upon the occurrence and
during the continuance of an Event of Default, the Unused Fee Rate shall increase to 1.85%. The
County acknowledges that as of the Effective Date the Unused Fee Rate is that specified above
for Level 1. Upon the advance of Loans totaling an amount equal to or in excess of 30,000,000,
the County shall have no further obligation to pay the Unused Fee.
(c) The County shall pay within thirty (30) days after demand:
(i) if an Event of Default shall have occurred, all costs and expenses of the
Lender in connection with the enforcement (whether by means of legal proceedings or
otherwise) of any of its rights under this Agreement, the other Related Documents and
such other documents which may be delivered in connection therewith;
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(ii) a fee for each amendment to this Agreement or any other Related
Document or any consent or waiver by the Lender with respect to any Related Document,
in each case, in a minimum amount of $2,500 plus the reasonable fees and expenses of
counsel to the Lender;
(iii) the reasonable fees and out-of-pocket expenses for counsel or other
reasonably required consultants to the Lender in connection with responding to requests
from the County for approvals, consents and waivers; and
(iv) any amounts advanced by or on behalf of the Lender to the extent required
to cure any Default, Event of Default or event of nonperformance hereunder or any
Related Document, together with interest at the Default Rate.
In addition, if at any time any Governmental Authority shall require any documentary
stamps or any other tax in connection with the execution or delivery of this Agreement or other
Related Documents, then, if the County lawfully may pay for such stamps, taxes or fees, the
County shall pay, when due and payable, for all such stamps, taxes and fees, including interest
and penalties thereon, and the County agrees to save the Lender harmless from and against any
and all liabilities with respect to or resulting from any delay of the County in paying, or omission
of the County to pay, such stamps, taxes and fees hereunder.
Section 3.02. Default Rate. Upon the occurrence and during the continuance of an Event
of Default, the Obligations of the County hereunder, including without limitation the interest rate
on the Note, shall bear interest at the Default Rate, which shall be payable by the County to the
Lender (or, if applicable, a Noteholder) upon demand therefor and be calculated on the basis of a
365-day year and actual days elapsed.
Section 3.03. Determination of Taxability. (i) In the event a Determination of Taxability
occurs, to the extent not payable to the Lender or a Noteholder under the terms hereof, the
County hereby agrees to pay to the Lender or such Noteholder on demand therefor (1) an amount
equal to the positive difference, if any, between (A) the amount of interest that would have been
paid to the Lender or such Noteholder on the Loans during the period for which interest on the
Loans is included in the gross income of the Lender or such Noteholder if the Loans had borne
interest at the Taxable Rate, beginning on the Taxable Date (the "Taxable Period"), and (B) the
amount of interest actually paid to the Lender or a Noteholder during the Taxable Period, and (2)
an amount equal to any interest, penalties or charges owed by such Noteholder as a result of
interest on the Loans becoming included in the gross income of the Lender or such Noteholder,
together with any and all attorneys' fees, court costs, or other out-of-pocket costs incurred by the
Lender or such Noteholder in connection therewith;
(ii) Subject to the provisions of clause (iii) below, the Lender shall afford the County
the opportunity, at the County's sole cost and expense, to contest any Determination of
Taxability, including the right to direct the necessary litigation contesting such challenge
(including administrative audit appeals); provided that, in no event shall the Lender or a
Noteholder be required to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the County or any other Person; and
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(iii) As a condition precedent to the exercise by the County of its right to contest set
forth in clause (ii) above, the County shall, on demand, immediately reimburse the Lender or a
Noteholder for any and all expenses (including attorneys' fees for services that may be required
or desirable, as determined by the Lender or such Noteholder in its sole discretion) that may be
incurred by the Lender or such Noteholder in connection with any such contest, and shall, on
demand, immediately reimburse the Lender or such Noteholder for any and all penalties or other
charges payable by the Lender or such Noteholder for failure to include such interest in its gross
income.
Section 3.04. Obligations Absolute. The payment obligations of the County under this
Agreement shall be unconditional and irrevocable and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including without limitation the following:
(a) any lack of validity or enforceability of this Agreement or any of the other Related
Documents;
(b) any amendment or waiver of or any consent to departure from all or any of the
Related Documents;
(c) the existence of any claim, set-off, defense or other right which the County may
have at any time against the Lender, any other Noteholder or any other person or entity, whether
in connection with this Agreement, the other Related Documents, the transactions contemplated
herein or therein or any unrelated transaction; or
(d) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.
Notwithstanding this Section, the Lender acknowledges the County may have the right to
bring a collateral action with respect to one or more of the foregoing circumstances. The
County's payment obligations shall remain in full force and effect pending the final disposition of
any such action. All fees payable pursuant to this Agreement shall be deemed to be fully earned
when due and non-refundable when paid.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effective Date. The obligation of the Lender to
make the Commitment available hereunder is subject to the conditions precedent that the Lender
shall have received, on or before the Effective Date, the items listed below in this Section, each
dated and in form and substance as is satisfactory to the Lender.
(a) An executed original or certified copy, as applicable, of the Resolution, this
Agreement and the Note.
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(b) The following opinions, dated the Effective Date and addressed to the Lender or
on which the Lender is otherwise expressly authorized to rely:
(i) from the County Attorney, opinions as to the due authorization, execution,
delivery and enforceability of the Related Documents and such other customary matters
as the Lender may reasonably request;
(ii) from Bond Counsel, opinions to the effect that the interest on each Loan
evidenced by the Note is excludable from gross income for federal income tax purposes
and such other customary matters as the Lender may reasonably request.
(c) The following documents and other information:
(i) the audited annual financial statements of the County for the Fiscal Year
ended September 30, 2023;
(ii) a certificate dated the Effective Date and executed by a County
Representative certifying the names, titles, offices and signatures of the persons
authorized to sign, on behalf of the County, the Related Documents and the other
documents to be delivered by it hereunder or thereunder;
(iii) a certificate dated the Effective Date and executed by a County
Representative certifying (A) that there has been no event or circumstance since
September 30, 2023, that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, (B) that the representations
and warranties contained in Article V hereof and the other Related Documents are true
and correct in all material respects on the Effective Date and (C) no event has occurred
and is continuing, or would result from entry into this Agreement, which would constitute
a Default or Event of Default;
(iv) delivery of the County's annual financial statements for the previous three
Fiscal Years, the annual budget of the County for the current Fiscal Year and a
breakdown of Non -Ad Valorem Revenues for each year and the annual debt service
amounts to be paid therefrom including any debt secured by a prior payment lien and
pledge of specific components of Non -Ad Valorem Revenues; and
(v) true and correct copies of all Governmental Approvals, if any, necessary
for the County to execute, deliver and perform the Related Documents to which it is a
party.
(d) A written description of all actions, suits or proceedings pending or threatened
against the County or any of its Affiliates in any court or before any arbitrator of any kind or
before or by any governmental or non -governmental body which could reasonably be expected to
result in a Material Adverse Effect, if any, and such other statements, certificates, agreements,
documents and information with respect thereto as the Lender may reasonably request.
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(e) The Lender shall have received reimbursement of the Lender's fees and expenses
and any other fees incurred in connection with the transaction contemplated by the Related
Documents and Kutak Rock LLP, as counsel to the Lender, shall have received payment of its
legal fees and expenses plus disbursements, incurred in connection with the preparation, review,
negotiation, execution and delivery of the Related Documents.
(f) All other legal matters pertaining to the execution and delivery of this Agreement
and the Related Documents shall be satisfactory to the Lender and its counsel, and the Lender
shall have received such other statements, certificates, agreements, documents and information
with respect to the County and the other parties to the Related Documents and matters
contemplated by this Agreement as the Lender may reasonably request.
(g) The Note shall not be (i) assigned a specific rating by any rating agency, (ii)
registered with The Depository Trust Company or any other securities depository, (iii) issued
pursuant to any type of official statement, private placement memorandum or other offering
document, (iv) placed or offered by a broker -dealer in the capacity of an underwriter or a
placement agent or (v) assigned a CUSIP number by Standard & Poor's CUSIP Service.
Section 4.02. Conditions Precedent to Each Loan. The obligation of the Lender to make
a Loan is subject to the satisfaction of the following conditions precedent on the date of such
Loan:
(a) the representations and warranties of the County set forth in Article V of this
Agreement shall be true and correct in all material respects on the date of such Loan (except to
the extent any such representation or warranty expressly relates to an earlier date); and
(b) no Default or Event of Default shall have occurred and be continuing on the date
of such Loan.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The County makes the following representations and warranties to the Lender:
Section 5.01. Existence and Power; Due Authorization. The County is a political
subdivision duly and validly existing under the laws of the State and has the power and authority
to execute and deliver this Agreement and the other Related Documents and to perform its
obligations under this Agreement and the other Related Documents.
Section 5.02. Valid and Binding Obligations. This Agreement has been duly executed
and delivered by one or more duly authorized officers of the County, and each of the Related
Documents to which the County is a party, when executed and delivered by the County will be, a
legal, valid and binding obligation of the County enforceable in accordance with its terms, except
as such enforceability may be limited by (a) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally, and (b) general
IR
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.03. Noncontravention; Compliance with Law. The execution, delivery and
performance of this Agreement and each of the other Related Documents in accordance with
their respective terms do not and will not (i) contravene the County's authorizing legislation, (ii)
require any consent or approval of any creditor of the County, (iii) violate any Laws, or (iv)
conflict with, result in a breach of or constitute a default under any contract to which the County
is a party or by which it or any of its Property may be bound.
Section 5.04. Pending Litigation and Other Proceedings. There is no action, suit or
proceeding pending in any court, any other governmental authority with jurisdiction over the
County or any arbitration in which service of process has been completed against the County or,
to the knowledge of the County, any other action, suit or proceeding pending or threatened in any
court, any other governmental authority with jurisdiction over the County or any arbitrator, in
either case against the County or any of its properties or revenues, or any of the Related
Documents to which it is a party, which if determined adversely to the County would adversely
affect the rights, security, interests or remedies of the Lender hereunder or under any of the other
Related Documents or which is reasonably likely to result in a Material Adverse Effect, except
any action, suit or proceeding which has been brought prior to the Effective Date as to which the
Lender has received an opinion of counsel satisfactory to the Lender, in form and substance
satisfactory to the Lender and the Lender's legal counsel, to the effect that such action, suit or
proceeding is without substantial merit.
Section 5.05. Financial Statements. The audited financial statements of the County as at
September 30, 2023, and the related consolidated statement of activities and changes in net assets
and the consolidated statement of cash flows for the Fiscal Year then ended, and accompanying
notes thereto, which financial statements, accompanied by the audit report of a nationally
recognized independent public accountant, heretofore furnished to the Lender, which are
consistent in all material respects with the audited financial statements of the County for the
Fiscal Year ended September 30, 2023, fairly present the financial condition of the County in all
material respects as of such date and the results of its operations for the period then ended in
conformity with GAAP. Since September 30, 2023, there has been no material adverse change in
the financial condition or operations of the County that could reasonably be expected to result in
a Material Adverse Effect.
Section 5.06. No Defaults. No default by the County has occurred and is continuing in
the payment of the principal of or premium, if any, or interest on any Debt. No bankruptcy,
insolvency or other similar proceedings pertaining to the County or any agency or instrumentality
of the County are pending or presently contemplated. No Default or Event of Default has
occurred and is continuing hereunder. The County is not presently in default under any material
agreement to which it is a party which could reasonably be expected to have a Material Adverse
Effect. The County is not in violation of any material term of the authorizing legislation
applicable to the County or any material term of any bond indenture or agreement to which it is a
party or by which any of its Property is bound which could reasonably be expected to result in a
Material Adverse Effect.
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Section 5.07. Correct Information. All information, reports and other papers and data
with respect to the County furnished by the County to the Lender were, at the time the same were
so furnished, correct in all material respects. Any financial, budget and other projections
furnished by the County to the Lender were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair and reasonable in light of conditions
existing at the time of delivery of such financial, budget or other projections, and represented,
and as of the date of this representation, represent (subject to the updating or supplementation of
any such financial, budget or other projections by any additional information provided to the
Lender in writing, the representations contained in this Agreement being limited to financial,
budget or other projections as so updated or supplemented), in the judgment of the County, a
reasonable, good faith estimate of the information purported to be set forth, it being understood
that uncertainty is inherent in any projections and that no assurance can be given that the results
set forth in the projections will actually be obtained. No fact is known to the County that
materially and adversely affects or in the future may (as far as it can reasonably foresee)
materially and adversely affect the security for the Loans, or the ability of the County to repay
when due the Obligations, that has not been set forth in the financial statements and other
documents referred to in this Section 5.07 or in such information, reports, papers and data or
otherwise disclosed in writing to the Lender. The documents furnished and statements made by
the County in connection with the negotiation, preparation or execution of this Agreement and
the Related Documents do not contain untrue statements of material facts or omit to state
material facts necessary to make the statements contained therein, in light of the circumstances
under which they were made, not misleading.
Section 5.08. Investment Company. The County is not an "investment company" or a
company "controlled" by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
Section 5.09. Margin Stock. The County is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock, and no part of the proceeds of the
Loans will be used to purchase or carry any such margin stock or extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 5.10. Tax -Exempt Status. The County has not taken any action or omitted to
take any action, and has no actual knowledge of any action taken or omitted to be taken by any
other Person, which action, if taken or omitted, would adversely affect the exclusion of interest
on the Loans from gross income for federal income tax purposes.
Section 5.11. Usury. None of the Related Documents provide for any payments that
would violate any applicable law regarding permissible maximum rates of interest.
Section 5.12. Security. The principal of and interest on the Loans are special obligations
of the County, payable solely from amounts budged and appropriated by the County from Non -
Ad Valorem Revenues in accordance with Section 6.07 hereof.
Section 5.13. Pending Legislation and Decisions. There is no amendment, or to the
knowledge of the County, proposed amendment to the Constitution of the State or any State law
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or any administrative interpretation of the Constitution of the State or any State law, or any
legislation that has passed either house of the legislature of the State, or any judicial decision
interpreting any of the foregoing, the effect of which will materially adversely affect the security
for this Agreement or any Obligation, the creation, organization, or existence of the County or
the titles to office of any officers executing this Agreement or any Related Documents to which
the County is a party or the County's ability to repay when due its obligations under this
Agreement.
Section 5.14. No Immunity. Under existing law, the County is not entitled to raise the
defense of sovereign immunity in connection with any legal proceeding to enforce or collect
upon this Agreement or the other Related Documents, including the payment of the principal of
and interest on the Loans or the payment of any other Obligations; provided that the County is
entitled to raise the defense of sovereign immunity in connection with actions based on torts.
Section 5.15. Anti -Corruption Laws; Sanctions. The County is in compliance with Anti -
Corruption Laws and all applicable Sanctions in all material respects. The County has
implemented and maintains in effect policies and procedures designed to ensure compliance with
Anti -Corruption Laws and applicable Sanctions. The County is not an entity that is, or is 50% or
more, controlled by individuals or entities (including any agency, political subdivision or
instrumentality of any government) that are (a) the target of any Sanctions or (b) located,
organized or resident in a country or territory that is the subject of Sanctions (currently Crimea,
Cuba, Iran, North Korea and Syria).
ARTICLE VI
COVENANTS OF THE COUNTY
The County covenants and agrees, until the full and final payment and satisfaction of all
of the Obligations, except in any instance in which the Lender specially agrees in writing to any
performance or noncompliance, that:
Section 6.01. Existence, Etc. The County (a) shall maintain its existence as a political
subdivision duly and validly existing under the laws of the State and (b) shall not liquidate or
dissolve, or sell or lease or otherwise transfer or dispose of all or any substantial part of its
property, assets or business, or combine, merge or consolidate with or into any other entity.
Section 6.02. Payment of Obligations. The County shall pay (a) all Debt of the County
in accordance with the terms thereof and (b) all tax assessments (general or special) and
governmental charges of any kind whatsoever, as and when the same respectively come due, that
may be at any time lawfully assessed or levied against or with respect to the County, in each
case, unless the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
Section 6.03. Compliance with Laws. The County shall comply with all Laws including,
without limitation, Anti -Corruption Laws and Sanctions applicable to it and its Property, except
where non-compliance could not reasonably be expected to result in a Material Adverse Effect.
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Section 6.04. Reports. The County shall furnish to the Lender in form and detail
satisfactory to the Lender:
(a) Annual Report. As soon as available, and in any event within two hundred
seventy (270) days after the end of the Fiscal Year, the annual audited financial statements of the
County together with (1) the opinion of the County's independent accountants and (2) a
Compliance Certificate in the form of Exhibit B hereto signed by a County Representative (x)
stating that no Event of Default or Default has occurred, or if such Event of Default or Default
has occurred, specifying the nature of such Event of Default or Default, the period of its
existence, the nature and status thereof and any remedial steps taken or proposed to correct such
Event of Default or Default and (y) demonstrating compliance with the anti -dilution covenant set
forth in Section 6.08 hereof.
(b) Budget. As soon as available, and in any event within ninety (90) days after
adoption by the County, the operating budget of the County.
(c) Notice of Default or Event of Default. (i) Promptly upon obtaining knowledge of
any Default or Event of Default, or notice thereof, and in any event within five (5) days
thereafter, a certificate signed by a County Representative specifying in reasonable detail the
nature and period of existence thereof and what action the County has taken or proposes to take
with respect thereto; (ii) promptly following a written request of the Lender, a certificate of a
County Representative as to the existence or absence, as the case may be, of a Default or an
Event of Default under this Agreement; and (iii) promptly upon obtaining knowledge of any
"default" or "event of default" as defined under any Bank Agreement, notice specifying in
reasonable detail the nature and period of existence thereof and what action the County has taken
or proposes to take with respect thereto.
(d) Litigation. As promptly as practicable, written notice to the Lender of all actions,
suits or proceedings pending or threatened against the County in court or before any arbitrator of
any kind or before any governmental authority which could reasonably be expected to result in a
Material Adverse Effect.
(e) Other Information. Such other information regarding the business affairs,
financial condition and/or operations of the County as the Lender may from time to time
reasonably request.
Section 6.05. Maintenance of Books and Records. The County will keep proper books of
record and account in which full, true and correct entries are made in accordance with GAAP.
All financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the financial statements, except as otherwise specifically prescribed herein. Except as
provided in the immediately preceding sentence, in preparing any financial data or statements
contemplated or referred to in this Agreement, the County shall not vary or modify the
accounting methods or principles from the accounting standards employed in the preparation of
its audited financial statements described in Section 5.05 hereof.
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Section 6.06. Access to Books and Records. To the extent permitted by law, the County
will permit any Person designated by the Lender (at the expense of the Lender, unless and until a
Default or Event of Default has occurred, at which time such expenses shall be borne by the
County) to visit any of the offices of the County to examine the books and financial records
(except books and financial records the examination of which by the Lender is prohibited by law
or by attorney or client privilege), including minutes of meetings of any relevant governmental
committees or agencies, and make copies thereof or extracts therefrom, and to discuss the affairs,
finances and accounts of the County with their principal officials, all at such reasonable times
and as often as the Lender may reasonably request.
Section 6.07. Covenant to Budget and Appropriate; Payment of Loans. The County
covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non -
Ad Valorem Revenues available in each Fiscal Year, amounts sufficient to pay principal of and
interest on the Loans when due. Such covenant and agreement on the part of the County to
budget and appropriate such amounts of Non -Ad Valorem Revenues shall be cumulative to the
extent not paid, and shall continue until such Non -Ad Valorem Revenues or other legally
available funds in amounts sufficient to make all such required payments shall have been
budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the County,
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 such
Non -Ad Valorem Revenues, nor does it preclude the County from pledging in the future 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 Lender or any Noteholder 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 secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereafter
entered into (including the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its general annual budget for the purposes
and in the manner stated herein shall have the effect of making available for the payment of the
Loans, 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 payment of services and
programs which are for essential public purposes affecting the health, safety and welfare of the
inhabitants of the County or which are legally mandated by applicable law.
The County covenants and agrees to pay, solely from funds budgeted and appropriated as
described in this Section, on or prior to the date designated for payment of any principal of or
interest on the Loans, sufficient moneys to pay such principal or interest.
Neither the Loans nor the Note shall constitute a general obligation or indebtedness of the
County, and the Lender shall never have the right to require or compel the levy of taxes upon any
property of or in the County for the payment of the principal of and interest on the Loans or the
Note.
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Section 6.08. Anti -dilution. Except for the Loans and other outstanding obligations of
the County payable from Non -Ad Valorem Revenues as of the date hereof, the County will not
issue any other obligations payable from Non -Ad Valorem Revenues nor voluntarily create or
cause to be created any debt, lien, pledge, assignment, encumbrance or other charge against Non -
Ad Valorem Revenues, or any part thereof, except as set out below.
No additional indebtedness payable from or secured by Non -Ad Valorem Revenues shall
be issued by the County unless the actual receipts of Total Governmental Funds of the County
(as specified in the County's audited financial statements) for the prior Fiscal Year, less ad
valorem revenues, less Non -Ad Valorem Revenues from Total Governmental Funds pledged to
secure debt that has a lien on such Non -Ad Valorem Revenues, and less the amount required to
pay for Essential Services of the County for the prior Fiscal Year, equal at least 150% of such
maximum annual debt service on all Debt payable from such Non -Ad Valorem Revenues
(including the proposed Debt). "Debt" is defined as on any date (without duplication) all of the
following to the extent that they are general obligations of the County or are payable in whole or
in part from Non -Ad Valorem Revenues: (i) all obligations of the County for borrowed money
evidenced by bonds, debentures, or other similar instruments; (ii) all obligations of the County to
pay the deferred purchase price of property or services, except trade accounts payable under
normal trade terms and which arise in the ordinary course of business; (iii) all obligations of the
County as lessee under capitalized leases; and (iv) all indebtedness of other Persons to the extent
guaranteed by or secured by Non -Ad Valorem Revenues of the County. For purposes of this
covenant, "Essential Services" are those services identified by the County in its annual audit as
general government and public safety expenditures from Total Governmental Funds, less
expenditures paid from ad valorem revenues. For purposes of the foregoing, if said Debt has
25% or more of the aggregate principal amount coming due in any one year, debt service shall be
determined on the Debt during such period of time as if the principal of and interest on such Debt
were being paid from the date of incurrence thereof in substantially equal annual amounts over a
period of 25 years.
The County will provide evidence on an annual basis to the Lender that it would be in
compliance with such requirement if it were to issue $1 of additional indebtedness payable from
or secured by Non -Ad Valorem Revenues.
Section 6.09. Use of Proceeds. The County will use the proceeds of the Loans to pay
costs of the Project and to refund the Refunded 2022 Note. The County will not use any portion
of the proceeds of the Loans for the purpose of carrying or purchasing any margin stock. The
County will not use the proceeds of any Loan or lend, contribute or otherwise make available
such proceeds to any Person, (a) in furtherance of an offer, payment, promise to pay, or
authorization of the payment or giving of money, or anything else of value, to any Person in
violation of any Anti -Corruption Laws or (b)(i) to fund any activities or business of or with any
Person, or in any country or territory, that, at the time of such funding, is the subject of
Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any Person.
Section 6.10. Maintenance of Tax -Exempt Status of Interest. The County shall not take
any action or omit to take any action which, if taken or omitted, would adversely affect the tax-
exempt status of the interest on the Loans.
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Section 6.11 Acquisition Account. The County hereby agrees to establish an account,
separate from other funds and account of the County, to be known as the "St. Lucie County,
Florida Non -Ad Valorem Revenue Note, Series 2024 Acquisition Account". To the extent any
advance of a Loan is not used immediately for the payment of costs of the Project, such amount
shall be deposited into the Acquisition Account and held therein until applied for such purpose.
Amounts on deposit in the Acquisition Account shall be disbursed upon a requisition signed by
the County Administrator. Amounts on deposit in the Acquisition Account shall be invested by
the County in lawful investments pending the application thereof. In the event that appropriated
Non -Ad Valorem Revenues are otherwise insufficient to pay scheduled debt service on the Note,
amounts on deposit in the Acquisition Account shall be used for such purpose.
Section 6.12 Underlying Rating. The County shall at all times maintain a long-term
unenhanced Rating from at least one Rating Agency.
Section 6.13. Immunity from Jurisdiction. To the fullest extent permitted by law, the
County will not assert any immunity it may have or obtain as a public entity under the laws of the
State from lawsuits with respect to this Agreement or any other Related Document.
Notwithstanding the forgoing, it is understood that the County does not waive its sovereign
immunity as provided under Section 768.28 Florida Statutes.
Section 6.14. Other Credit Facilities. In the event that the County has entered or shall
enter into or otherwise consent to any Bank Agreement which such Bank Agreement provides
such Person with different or more restrictive covenants, different or additional events of default
and/or greater rights and remedies than are provided to the Purchaser in this Agreement, the
County shall provide the Purchaser with a copy of each such Bank Agreement and such different
or more restrictive covenants, different or additional events of default and/or greater rights and
remedies shall automatically be deemed to be incorporated into this Agreement and the Purchaser
shall have the benefits of such different or more restrictive covenants, different or additional
events of default and/or greater rights and remedies as if specifically set forth herein. The
County shall promptly enter into an amendment to this Agreement to include different or more
restrictive covenants, different or additional events of default and/or greater rights and remedies;
provided that the Purchaser shall have and maintain the benefit of such different or more
restrictive covenants, different or additional events of default and/or greater rights and remedies
even if the County fails to provide such amendment.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. The occurrence of any of the following events
(whatever the reason for such event and whether voluntary, involuntary, or effected by operation
of Law) shall be an "Event of Default" hereunder, unless waived in writing by the Lender:
(a) the County shall fail to pay the principal of or interest on any Loan when due;
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(b) the County shall fail to pay any Obligation (other than the obligation to pay the
principal of or interest on the Loans) and such failure shall continue for three (3) Business Days;
(c) any representation or warranty made by or on behalf of the County in this
Agreement or in any other Related Document or in any certificate or statement delivered
hereunder or thereunder shall be incorrect or untrue in any material respect when made or
deemed to have been made or delivered;
(d) the County shall default in the due performance or observance of any of the
covenants set forth in Sections 6.01, 6.07, 6.08, 6.09, 6.10 or 6.12 hereof,
(e) the County shall default in the due performance or observance of any other term,
covenant or agreement contained in this Agreement or any other Related Document and such
default shall remain unremedied for a period of thirty (30) days after the occurrence thereof;
(f) a petition is filed 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, and an order for relief is entered or such petition is not
dismissed within sixty (60) days of such filing;
(g) the County files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment or debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents
to the filing of any petition against it under such law;
(h) a debt moratorium, debt restructuring, debt adjustment or comparable restriction is
imposed on the repayment when due and payable of the principal of or interest on any Debt of
the County by the County or any Governmental Authority with appropriate jurisdiction;
(i) any material provision of this Agreement or any other Related Document shall at
any time for any reason cease to be valid and binding on the County as a result of any legislative
or administrative action by a Governmental Authority with competent jurisdiction or shall be
declared in a final non -appealable judgment by any court with competent jurisdiction to be null
and void, invalid, or unenforceable, or the validity or enforceability thereof shall be publicly
contested by the County;
0) dissolution or termination of the existence of the County;
(k) the County shall (i) default on the payment of the principal of or interest on any
Debt, beyond the period of grace, if any, provided in the instrument or agreement under which
such Debt was created or incurred; or (ii) default in the observance or performance of any
agreement or condition relating to any Debt or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other default, event of default or similar event
shall occur or condition exist, the effect of which default, event of default or similar event or
condition is to permit (determined without regard to whether any notice is required) any such
26
Debt to become immediately due and payable in full as the result of the acceleration, mandatory
redemption or mandatory tender of such Debt;
(1) any final, unappealable judgment or judgments, writ or writs or warrant or
warrants of attachment, or any similar process or processes, which are not covered in full by
insurance, with written acknowledgement of such coverage having been provided by the provider
of such insurance coverage to the Lender, in an aggregate amount not less than $1,000,000 shall
be entered or filed against the County or against any of its Property and remain unpaid,
unvacated, unbonded or unstayed for a period of thirty (30) days; or
(m) any "event of default" under any Related Document (as defined respectively
therein) shall have occurred; or
(n) Any of Fitch Ratings, Inc., Moody's Investors Service or S&P Global Ratings
shall have downgraded a Rating to below "BBB+" (or its equivalent), "Baal" (or its equivalent)
or "BBB+" or its equivalent, respectively.
Section 7.02. Consequences of an Event of Default. If an Event of Default specified in
Section 7.01 hereof shall occur and be continuing, the Lender may take one or more of the
following actions at any time and from time to time (regardless of whether the actions are taken
at the same or different times):
(a)(i) upon (A) the occurrence of an Event of Default under Section 7.01(0 or
7.01(g) hereof, or (B) any other Event of Default and 30 days' notice to the County from
the Lender, which Event of Default has not been cured prior to the expiration of any cure
period, by written notice to the County, declare (1) the termination of the Commitment to
make Loans hereunder and (2) the outstanding amount of the Obligations under this
Agreement (including the principal of and interest on the Loans) to be immediately due
and payable without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately accrue;
(ii) either personally or by attorney or agent without bringing any action or
proceeding, or by a receiver to be appointed by a court in any appropriate action or
proceeding, take whatever action at law or in equity may appear necessary or desirable
(other than a declaration of all amounts as immediately due and payable, as described
above) to collect the amounts due and payable under the Related Documents or to enforce
performance or observance of any obligation, agreement or covenant of the County under
the Related Documents, whether for specific performance of any agreement or covenant
of the County or in aid of the execution of any power granted to the Lender in the Related
Documents;
(iii) cure any Default, Event of Default or event of nonperformance hereunder
or under any Related Document (other than as provided for in clause (i) of this Section
7.02(a)); provided, however, that the Lender shall have no obligation to effect such a
cure; and
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(iv) exercise, or cause to be exercised, except as described above, any and all
remedies as it may have under the Related Documents and as otherwise available at law
and at equity.
(b) Notwithstanding the provisions of Section 7.02(a)(i), if any holder, liquidity
provider or credit enhancer of Debt, as a result of a default with respect thereto, causes such Debt
to become immediately due and payable or to become due and payable prior to its scheduled
maturity whether by mandatory redemption, mandatory tender or otherwise, earlier than with 30
days' notice as described in Section 7.02(a)(i)(B) above, then the principal of and interest on the
Loans shall immediately be due and payable or due and payable over such shorter period of time,
as applicable.
Section 7.03. Remedies Cumulative; Solely for the Benefit of Lender. To the extent
permitted by, and subject to the mandatory requirements of, applicable Law, each and every
right, power and remedy herein specifically given to the Lender in the Related Documents shall
be cumulative, concurrent and nonexclusive and shall be in addition to every other right, power
and remedy herein specifically given or now or hereafter existing at law, in equity or by statute,
and each and every right, power and remedy (whether specifically herein given or otherwise
existing) may be exercised from time to time and as often and in such order as may be deemed
expedient by the Lender, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter
any other right, power or remedy.
The rights and remedies of the Lender specified herein are for the sole and exclusive
benefit, use and protection of the Lender, and the Lender is entitled, but shall have no duty or
obligation to the County or any other Person or otherwise, to exercise or to refrain from
exercising any right or remedy reserved to the Lender hereunder or under any of the other
Related Documents.
Section 7.04. Waivers or Omissions. No delay or omission by the Lender in the exercise
of any right, remedy or power or in the pursuit of any remedy shall impair any such right, remedy
or power or be construed to be a waiver of any default on the part of the Lender or to be
acquiescence therein. No express or implied waiver by the Lender of any Event of Default shall
in any way be a waiver of any future or subsequent Event of Default.
Section 7.05. Discontinuance of Proceedings. In case the Lender shall proceed to invoke
any right, remedy or recourse permitted hereunder or under the Related Documents and shall
thereafter elect to discontinue or abandon the same for any reason, the Lender shall have the
unqualified right so to do and, in such event, the County and the Lender shall be restored to their
former positions with respect to the Obligations, the Related Documents and otherwise, and the
rights, remedies, recourse and powers of the Lender hereunder shall continue as if the same had
never been invoked.
W.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. Indemnification. In addition to any and all rights of reimbursement,
indemnification, subrogation or any other rights pursuant hereto or under law or equity, the
County hereby agrees (to the extent permitted by law, and solely from legally available Non -Ad
Valorem Revenues) to indemnify and hold harmless the Lender and its officers, directors and
agents (each, an "Indemnitee") from and against any and all claims, damages, losses, liabilities,
reasonable costs or expenses whatsoever (including reasonable attorneys' fees) which may incur
or which may be claimed against an Indemnitee by any Person or entity whatsoever (collectively,
the "Liabilities") by reason of or in connection with (a) the execution and delivery of, or payment
or failure to pay under, any Related Document; and (b) any Loan or the use of the proceeds of
any Loan; provided that the County shall not be required to indemnify an Indemnitee for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused
by the willful misconduct or gross negligence of such Indemnitee. Nothing under this Section
8.01 is intended to limit the County's payment of the Obligations.
Section 8.02. Survival. The obligations of the County under this Article VIII shall
survive the payment of all Obligations and the termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Patriot Act Notice. The Lender hereby notifies the County that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the County, which information includes the name and address of the County and other
information that will allow the Lender to identify the County in accordance with the Patriot Act.
The County hereby agrees that it shall promptly provide information identifying the County upon
the written request by the Lender.
Section 9.02. Further Assurances. From time to time upon the request of either party
hereto, the other shall promptly and duly execute, acknowledge and deliver any and all such
further instruments and documents as the requesting party may in its reasonable discretion deem
necessary or desirable to confirm this Agreement, and the other Related Documents, to carry out
the purpose and intent hereof and thereof or to enable the requesting party to enforce any of its
rights hereunder or thereunder. At any time, and from time to time, upon request by the Lender,
the County will, at the County's expense, correct any defect, error or omission which may be
discovered in the form or content of any of the Related Documents. Upon any failure by the
County to do so, the Lender may make, execute and record any and all such instruments,
certificates and other documents for and in the name of the County, all at the sole expense of the
County, and the County hereby appoints the Lender as the agent and attorney -in -fact of the
County to do so, this appointment being coupled with an interest and being irrevocable. In
addition, at any time, and from time to time, upon request by the Lender the County will, at the
County's expense, provide any and all further instruments, certificates and other documents as
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may, in the opinion of the Lender, be necessary or desirable in order to verify the County's
identity and background in a manner satisfactory to the Lender.
Section 9.03. Amendments and Waivers; Enforcement. The Lender and the County may
from time to time enter into agreements amending, modifying or supplementing this Agreement
or the other Related Documents or changing the rights of the Lender or the County hereunder or
thereunder, and the Lender may from time to time grant waivers or consents to a departure from
the due performance of the obligations of the County hereunder or thereunder; provided that no
amendment to the term, loan repayment schedule or interest rate provisions shall be effective
unless the Lender shall have received a "no adverse effect" opinion of Bond Counsel. Any such
agreement, waiver or consent must be in writing and shall be effective only to the extent
specifically set forth in such writing. In the case of any such waiver or consent relating to any
provision hereof, any Default or Event of Default so waived or consented to shall be deemed to
be cured and not continuing, but no such waiver or consent shall extend to any other or
subsequent Default or Event of Default or impair any right consequent thereto.
Section 9.04. No Implied Waiver; Cumulative Remedies. No course of dealing and no
delay or failure of the Lender in exercising any right, power or privilege under this Agreement or
the other Related Documents shall affect any other or future exercise thereof or exercise of any
right, power or privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or privilege. The
rights and remedies of the Lender under this Agreement are cumulative and not exclusive of any
rights or remedies which the Lender would otherwise have under any Related Document, at law
or in equity.
Section 9.05. Notices. All notices, requests, demands, directions and other
communications (collectively, "notices") under the provisions of this Agreement shall be in
writing (including facsimile communication), unless otherwise expressly permitted hereunder,
and shall be sent by first-class mail or overnight delivery and shall be deemed received as
follows: (i) if by first class mail, five (5) days after mailing; (ii) if by overnight delivery, on the
next Business Day; (iii) if by telephone, when given to a person who confirms such receipt; and
(iv) if by facsimile, when confirmation of receipt is obtained. All notices shall be sent to the
applicable party at the following address or in accordance with the last unrevoked written
direction from such party to the other parties hereto:
The County: St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
Attention: Clerk of Court
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County Wire Instructions: St. Lucie County Board of County Commissioners
Wells Fargo Bank
2597 US 1
Fort Pierce, Florida 34982
Routing #121000248
ACCOUNT #2000050999392
The Lender: U.S. Bank National Association
Government Banking Division
10 W. Broad Street
Columbus, Ohio 43215
Attention: Mike Zuk
E-mail: Michael.Zuk@usbank.com
Telephone: (614) 232-2242
Lender Wire Instructions: Roanoke Loan Center
ABA#: 042000013
Name: U.S. Bank
Account#: 2519956 2160600
Account Name: Government Banking WIP Account
Address: 800 Nicolette Mall, Minneapolis, MN 55402
Customer Name: St. Lucie County, Florida
The Lender may rely on any notice (including telephone communication) purportedly
made by or on behalf of the other, and shall have no duty to verify the identity or authority of the
Person giving such notice, unless such actions or omissions would amount to gross negligence or
intentional misconduct.
Section 9.06. Right of Setoff. (a) Upon the occurrence of an Event of Default, the
Lender may, at any time and from time to time, without notice to the County or any other person
(any such notice being expressly waived), set off and appropriate and apply against and on
account of any Obligations under this Agreement, without regard to whether or not the Lender
shall have made any demand therefor, and although such Obligations may be contingent or
unmatured, any and all deposits (general or special, including but not limited to deposits made
pursuant to this Agreement and Debt evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts, such as restricted donor accounts) and any other
Debt at any time held or owing by the Lender to or for the credit or the account of any or all of
the County.
(b) The Lender agrees promptly to notify the County after any such set-off and
application referred to in subsection (a) above, provided that the failure to give such notice shall
not affect the validity of such set-off and application. Subject to the provisions of subsection (a)
above, the rights of the Lender under this Section 9.06 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the Lender may have.
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Section 9.07. No Third -Party Rights. Nothing in this Agreement, whether express or
implied, shall be construed to give to any Person other than the parties hereto and the
Noteholders any legal or equitable right, remedy or claim under or in respect of this Agreement,
which is intended for the sole and exclusive benefit of the parties hereto.
Section 9.08. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 9.09. Governing Law; Consent to Jurisdiction and Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
(b) EACH PARTY HERETO CONSENTS TO AND SUBMITS TO IN PERSONAM
JURISDICTION AND VENUE IN THE STATE AND IN THE FEDERAL DISTRICT
COURTS WHICH ARE LOCATED IN THE STATE. EACH PARTY ASSERTS THAT IT
HAS PURPOSEFULLY AVAILED ITSELF OF THE BENEFITS OF THE LAWS OF THE
STATE AND WAIVES ANY OBJECTION TO IN PERSONAM JURISDICTION ON THE
GROUNDS OF MINIMUM CONTACTS, WAIVES ANY OBJECTION TO VENUE, AND
WAIVES ANY PLEA OF FORUM NON CONVENIENS. THIS CONSENT TO AND
SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED TO
THIS AGREEMENT. REGARDLESS OF WHETHER THE PARTY'S ACTIONS TOOK
PLACE IN THE STATE OR ELSEWHERE IN THE UNITED STATES, THIS SUBMISSION
TO JURISDICTION IS NONEXCLUSIVE, AND DOES NOT PRECLUDE EITHER PARTY
FROM OBTAINING JURISDICTION OVER THE OTHER IN ANY COURT OTHERWISE
HAVING JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EACH OF THE
PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
RELATED DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
(d) The covenants and waivers made pursuant to this Section 9.09 shall be irrevocable
and unmodifiable, whether in writing or orally, and shall be applicable to any subsequent
amendments, renewals, supplements or modifications of this Agreement. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the court.
Section 9.10. Prior Understandings. This Agreement and the other Related Documents
supersede all other prior understandings and agreements, whether written or oral, among the
parties hereto relating to the transactions provided for herein and therein.
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Section 9.11. Duration. All representations and warranties of the County contained
herein or made in connection herewith shall survive the making of and shall not be waived by the
execution and delivery of this Agreement or the other Related Documents. All covenants and
agreements of the County contained herein shall continue in full force and effect from and after
the date hereof until the Obligations have been fully discharged.
Section 9.12. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall constitute but one and the
same instrument.
Section 9.13. Successors and Assigns.
(a) Successors and Assigns Generally. This Agreement is a continuing obligation and
shall be binding upon the County, its successors, transferees and assigns and shall inure to the
benefit of the Noteholder and its respective permitted successors, transferees and assigns. The
County may not assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Lender. So long as no Event of Default shall have occurred and be
continuing, the Lender may not assign its obligations to make Loans hereunder without the prior
written consent of the County. Each Noteholder may, in its sole discretion and in accordance
with applicable Law, from time to time assign, sell or transfer in whole or in part, its interest in
the Note in accordance with the provisions of paragraph (b) of this Section. The Lender may at
any time and from time to time enter into participation agreements in accordance with the
provisions of paragraph (c) of this Section. The Lender may at any time pledge or assign a
security interest subject to the restrictions of paragraph (d) of this Section.
(b) Assignments and Transfers by Noteholder. Without limitation of the foregoing
generality, a Noteholder may at any time assign or transfer to one or more transferees all or a
portion of the Note in Authorized Denominations to a Person that constitutes either a "qualified
institutional buyer" as defined in Rule 144A promulgated under the Securities Act of 1933 or
"accredited investors" as defined in Rule 501 of Regulation D under the 1933 Act (each a
"Transferee") upon providing written notice of such transfer to the County and the Lender, and
the Transferee shall have delivered to the County an investment letter substantially in the form of
Exhibit C hereto. The Lender, acting solely for this purpose as a non -fiduciary agent of the
County, shall maintain a register for the recordation of the names and addresses of the
Noteholders and principal amounts of and stated interest on the Loans owing to each Noteholder
pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall
be conclusive, absent manifest error, and the County and the Noteholders shall treat each
Transferee whose name is recorded in the Register pursuant to the terms hereof as a Noteholder
for all purposes of this Agreement. The Register shall be available for inspection by the County
and any Noteholder (but only to the extent of entries in the Register that are applicable to such
Noteholder), at any reasonable time and from time to time upon reasonable prior notice.
Notwithstanding anything herein to the contrary, no assignment or transfer of the Note shall in
any way affect the obligations of the Lender hereunder.
33
(c) Participations. The Lender shall have the right to grant participations in all or a
portion of the Lender's interest in the Note, this Agreement and the other Related Documents to
one or more other banking institutions; provided, however, that (i) no such participation by any
such participant shall in any way affect the obligations of the Lender hereunder and (ii) the
County shall be required to deal only with the Lender with respect to any matters under this
Agreement and the other Related Documents, and no such participant shall be entitled to enforce
any provision hereunder against the County.
(d) Certain Pledges. The Lender may at any time pledge or grant a security interest
in all or any portion of its rights under the Loans, this Agreement and the Related Documents to
secure obligations of the Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release the Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a
party hereto.
Section 9.14. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
Section 9.15. Electronic Signatures. The parties agree that the electronic signature of a
party to this Agreement shall be as valid as an original signature of such party and shall be
effective to bind such party to this Agreement. The parties agree that any electronically signed
document (including this Agreement) shall be deemed (i) to be "written" or "in writing," (ii) to
have been signed and (iii) to constitute a record established and maintained in the ordinary course
of business and an original written record when printed from electronic files. Such paper copies
or "printouts," if introduced as evidence in any judicial, arbitral, mediation or administrative
proceeding, will be admissible as between the parties to the same extent and under the same
conditions as other original business records created and maintained in documentary form.
Neither party shall contest the admissibility of true and accurate copies of electronically signed
documents on the basis of the best evidence rule or as not satisfying the business records
exception to the hearsay rule. For purposes hereof, "electronic signature" means a manually -
signed original signature that is then transmitted by electronic means; "transmitted by electronic
means" means sent in the form of a facsimile or sent via the internet as a "pdf' (portable
document format) or other replicating image attached to an e-mail message; and, "electronically
signed document" means a document transmitted by electronic means and containing, or to
which there is affixed, an electronic signature.
Section 9.16. No Advisory or Fiduciary Relationship. In connection with all aspects of
the transactions contemplated by this Agreement and the Related Documents (including in
connection with any amendment, waiver or other modification of this Agreement or of any
Related Document), the County acknowledges and agrees that: (a)(i) any arranging, structuring
and other services regarding this Agreement and the Related Documents provided by the Lender
or any Affiliate of the Lender are arm's length commercial transactions between the County on
the one hand, and the Lender and any Affiliate of the Lender on the other hand, (ii) the County
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (iii) the County is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement and the Related
Documents; (b)(i) the Lender and each Affiliate of the Lender is and has been acting solely as a
principal and has not been, is not, and will not be acting as an advisor, agent or fiduciary for the
County or any other Person and (ii) neither the Lender nor any Affiliate of the Lender has any
obligation to the County with respect to the transactions contemplated by this Agreement and the
Related Documents, except those obligations expressly set forth herein; and (c) the Lender and
each Affiliate of the Lender may be engaged in a broad range of transactions that involve
interests that differ from those of the County, and neither the Lender nor any Affiliate of the
Lender has any obligation to disclose any of such interests to the County.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the Effective Date.
U.S. BANK NATIONAL ASSOCIATION
Michael Zuk, Vice President
ST. LUCIE COUNTY, FLORIDA
ATTEST:
Clerk of the Circuit Court, ex-officio
Clerk of the Board of County Commissioners
Chair, Board of County Commissioners
36
EXHIBIT A
FORM OF NOTE
THIS NOTE IS SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH IN
SECTION 9.13 OF THE HEREINAFTER DEFINED AGREEMENT
ST. LUCIE COUNTY, FLORIDA
NON -AD VALOREM REVENUE NOTE, SERIES 2024
Dated: October 92024
For value received, St. Lucie County, Florida (the "County") promises to pay to the order
of U.S. Bank National Association, and its successors and assigns (the "Lender"), located at
Government Banking Division, 3 Bryant Park, 1095 Avenue of the Americas, 13a' Floor, New
York, New York 10036, the aggregate unpaid principal amount of all Loans made by the Lender
from time to time pursuant to the Loan Agreement, dated October , 2024 (together with any
amendments or supplements thereto, the "Agreement"), between the County and the Lender, in a
principal amount not to exceed $50,000,000, on the dates and in the amounts provided for in the
Agreement.
The County promises to pay interest on the unpaid principal amount of all Loans on the
dates and at the rates provided for in the Agreement. All payments of principal and interest shall
be made to the Lender in lawful money of the United States of America in immediately available
funds. All capitalized terms used herein and not otherwise defined herein shall have the
meanings specified in the Agreement.
This Note is the Note referred to in the Agreement and is entitled to the benefits thereof
and of the Related Documents referred to therein. This Note is subject to prepayment, in whole
or in part in accordance with the terms of the Agreement.
The Lender agrees, by acceptance of this Note, that before disposing of this Note it will
make a notation on the schedule attached hereto of all Loans evidenced hereby and all principal
payments and prepayments made hereunder and of the date to which interest hereon has been
paid; provided, however, that the failure to make any such notation shall not limit or otherwise
affect the obligation of the County hereunder with respect to payments of principal of and
interest on this Note.
This Note shall not be or constitutes a general obligation or indebtedness of the County as
a "bond" within the meaning of any constitutional or statutory provision, but shall be a special
obligation of the County, payable solely from amounts budgeted and appropriated by the County
from Non -Ad Valorem Revenues in accordance with the Agreement. No owner or holder of this
Note shall ever have the right to compel the exercise of any ad valorem taxing power to pay this
Note, or be entitled to payment of such Note from any moneys of the County except from the
Non -Ad Valorem Revenues in the manner and to the extent provided herein.
EN
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF FLORIDA.
(SEAL)
ATTEST:
Clerk of the Circuit Court, ex officio
Clerk of the Board of County Commissioners
ST. LUCIE COUNTY, FLORIDA
A-2
Chair, Board of County Commissioners
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (this "Certificate") is furnished to U.S. Bank National
Association (the "Lender") pursuant to that certain Loan Agreement dated October , 2024
(the "Agreement"), between St. Lucie County, Florida (the "County") and the Lender. Unless
otherwise defined herein, the terms used in this Certificate shall have the meanings assigned
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chair, Board of County Commissioners] [appointed
County Administrator] of the County;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions and
conditions of the County during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or the occurrence of any event which
constitutes a Default or Event of Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this Certificate, except as
set forth below; and
4. The financial statements required by Section 6.04(a) of the Agreement and
being furnished to you concurrently with this certificate fairly represent the consolidated
financial condition of the County in accordance with GAAP (subject to year-end
adjustments) as of the dates and for the periods covered thereby; and
5. Attached are true and correct calculations demonstrating compliance with
the anti -dilution covenant set forth in Section 6.08 of the Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the County
has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications and the financial statements delivered with this Certificate in
support hereof, are made and delivered this day of , 20
ST. LUCIE COUNTY, FLORIDA
By:_
Name:
Title:
EXHIBIT C
FORM OF INVESTOR LETTER
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
St. Lucie County, Florida
Non -Ad Valorem Revenue Note, Series 2024
Ladies and Gentlemen:
U.S. Bank National Association ("Purchaser") has agreed to purchase the
above -referenced note (the "Note") in the amount not to exceed $50,000,000 which was issued
by St. Lucie County, Florida (the "County") as set forth in the (i) Resolution No. 24-
adopted by the Board of County Commissioners of the County on October 15, 2024
("Resolution") and the (ii) Loan Agreement dated as of October , 2024 (the "Loan
Agreement"), between the County and the Purchaser. All capitalized terms used herein, but not
defined herein, shall have the respective meanings set forth in the Resolution or the Loan
Agreement, as applicable. The undersigned, an authorized representative of the Purchaser,
hereby represents to you that:
1. The Purchaser has sufficient knowledge and experience in financial and business
matters, including purchase and ownership of municipal and other tax-exempt obligations, to be
able to evaluate the risks and merits of the investment represented by the purchase of the Note.
2. The Purchaser has authority to purchase the Note and to execute this letter and
any other instruments and documents required to be executed by the Purchaser in connection
with the purchase of the Note.
3. The undersigned is a duly appointed, qualified and acting representative of the
Purchaser and is authorized to cause the Purchaser to make the certifications, representations and
warranties contained herein by execution of this letter on behalf of the Purchaser.
4. The Purchaser is a "qualified institutional buyer" as defined in Rule 144A
promulgated under the Securities Act of 1933, as amended (the "1933 Act") or "accredited
investors" as defined in Rule 501 of Regulation D under the 1933 Act and is able to bear the
economic risks of such investment.
5. The Purchaser understands that no official statement, prospectus, offering circular,
or other comprehensive offering statement is being provided with respect to the Note. The
Purchaser has made its own inquiry and analysis with respect to the County, the Project, the Note
and the security therefor, and other material factors affecting the security for and payment of the
Note.
C-1
6. The Purchaser acknowledges that it has either been supplied with or been given
access to information, including financial statements and other financial information, regarding
the County, to which a reasonable investor would attach significance in making investment
decisions, and has had the opportunity to ask questions and receive answers from knowledgeable
individuals concerning the County, the Project, the Note and the security therefor, so that as a
reasonable investor, it has been able to make its decision to purchase the Note.
7. The Purchaser understands that the Note (i) is not registered under the 1933 Act
and is not registered or otherwise qualified for sale under the 'Blue Sky" laws and regulations of
any state, (ii) is not listed on any stock or other securities exchange, and (iii) carries no rating
from any credit rating agency.
8. The Note is being acquired by the Purchaser for investment for its own account
and not with a present view toward resale or distribution; provided, however, that the Purchaser
reserves the right to sell, transfer or redistribute the Note in Authorized Denominations, but
agrees that any such sale, transfer or distribution by the Purchaser shall be to a Person:
(a) that is an affiliate of the Purchaser;
(b) that is a trust or other custodial arrangement established by the Purchaser
or one of its affiliates, the owners of any beneficial interest in which are limited to
qualified institutional buyers; or
(c) that is a qualified institutional buyer an accredited investor who executes
an investor letter substantially in the form of this letter.
U.S. BANK NATIONAL ASSOCIATION
By
Michael Zuk, Vice President
C-2
EXHIBIT D
FORM OF
REQUEST FOR LOAN
[Date]
U.S. Bank National Association
Government Banking Division
10 W. Broad Street
Columbus, Ohio 43215
Ladies and Gentlemen:
The undersigned, an Authorized Representative of St. Lucie County, Florida (the
"County"), refers to that certain Loan Agreement dated October , 2024 (the "Agreement")
between the County and U.S. Bank National Association (the "Lender"), the terms defined
therein being used herein as therein defined, and hereby gives the Lender notice irrevocably,
pursuant to Section 2.04(a) of the Agreement, of the Loan specified below:
1. The Business Day of the proposed Loan is , 20
2. The principal amount of the proposed Loan is $
3. Wire instructions of the County:
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Loan, before and after giving effect thereto:
(a) the representations and warranties of the County set forth in Article V of the
Agreement shall be true and correct in all material respects on the date the Loan is advanced
(except to the extent any such representation or warranty expressly relates to an earlier date); and
(b) no Default or Event of Default shall have occurred and be continuing on the date
the Loan is advanced.
The Loan shall be made by the Lender by wire transfer of immediately available funds to
the County in accordance with the instructions on file set forth above.
ST. LUCIE COUNTY, FLORIDA
By:
Nai
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