BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY

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1 8A3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY PLACEMENT: DEPARTMENTAL PRESET: TITLE: REQUEST APPROVAL OF A BANK LINE OF CREDIT NOT TO EXCEED $10,000,000 FOR CAPITAL IMPROVEMENT PROJECTS AGENDA ITEM DATES: MEETING DATE: 2/7/2012 COMPLETED DATE: 1/26/2012 COUNTY ATTORNEY: 1/16/2012 ASSISTANT COUNTY ADMINISTRATOR: 1/23/2012 REQUESTED BY: DEPARTMENT: PREPARED BY: Name: Jennifer Manning Grants Compliance/ Budget Manager Name: Procedures: None EXECUTIVE SUMMARY: 802c2b9f Department of Administration Stephanie Merle Grants Specialist The Board has requested staff to obtain proposals on a line of credit to fund various capital projects. The County s financial advisor assisted staff in preparing a request for proposals ( RFP ) for a Non Bank Qualified fixed interest rate line of credit not to exceed $10,000,000 to provide funding. The goal of the RFP request was to obtain the lowest cost of financing for a Bank Line of Credit with a final maturity of January, 2017 and to provide flexibility to the County by allowing for prepayment of the loan in whole or in part at anytime. APPROVAL: LEG ACA CA PDF Page 1 of 58

2 BACKGROUND/RELATED STRATEGIC GOAL: FirstSouthwest assisted staff in preparing a request for proposals ( RFP ) for a Non Bank Qualified fixed interest rate line of credit not to exceed $10,000,000 to provide funding and has reviewed this agenda item. The County received five responses (including one no bid ) on the County s RFP from the following financial institutions: 1. Florida Community Bank 2. Florida Local Government Finance Commission (Florida Association of Counties Loan Program) 3. Pinnacle Public Finance ( no bid ) 4. PNC Bank, N.A. 5. SunTrust Equipment Finance and Leasing Corp. After review of the proposals, it was determined that SunTrust Equipment Finance and Leasing Corp would provide the County with the optimal combination of the lowest overall fixed rate financing costs and the financial flexibility that was outlined in the County s RFP solicitation. By letter dated January 13, 2012, (attached) the County informed SunTrust that they were selected and given permission to commence negotiations. By letter dated January 19, 2012, (attached) SunTrust informed the County that they are interested in proceeding with the negotiations of the documentation for the Line of Credit. A summary of the responses prepared by FirstSouthwest, the County s Financial Advisor, is attached. The Loan Agreement will be submitted via supplemental memo. ISSUES: None. RECOMMENDED ACTION: RECOMMENDATION Approve SunTrust Equipment Finance and Leasing Corp to finance the Bank Line of Credit not to exceed $10,000,000 Approve a budget resolution for the line of credit and authorize the Chair to sign all documents relative to the financial transactions. ALTERNATIVE RECOMMENDATIONS N/A FISCAL IMPACT: 802c2b9f PDF Page 2 of 58

3 RECOMMENDATION The line of credit is secured by Non Ad Valorem revenues. Prior to any expenditure being made from the line of credit, a funding source for repayment will be determined and budgeted accordingly. Funding Source County Funds Non-County Funds Authorization Subtotal Project Total ALTERNATIVE RECOMMENDATIONS N/A DOCUMENT(S) REQUIRING ACTION: Budget Transfer / Amendment Chair Letter Contract / Agreement Grant / Application Notice Ordinance x Resolution Other: ROUTING: _ ADM _ BLD _ CDD _ COM _ ENG _ FRD _ GMD _ GSD _ ITS _ LIB _ MCA _ MPO _ PRD _ USD X CA X ACA X LEG 802c2b9f PDF Page 3 of 58

4 BCC MEETING DATE: February 7, 2012 AGENDA ITEM: 8A3 TO: VIA: FROM: MARTIN COUNTY, FLORIDA SUPPLEMENTAL MEMORANDUM Honorable Members of the Board DATE: February 1, 2012 of County Commissioners Taryn Kryzda County Administrator Stephanie Merle Grants Specialist SUBJECT: REQUEST APPROVAL OF A BANK LINE OF CREDIT NOT TO EXCEED $10,000,000 FOR CAPITAL IMPROVEMENT PROJECTS 1. REQUEST APPROVAL OF A BANK LINE OF CREDIT NOT TO EXCEED $10,000,000 FOR CAPITAL IMPROVEMENT PROJECTS. - The Board has requested staff to obtain proposals on a line of credit to fund various capital projects. FirstSouthwest, as Financial Advisor, assisted in drafting a Request for Proposal (RFP) for a Bank Line of Credit not to exceed $10,000,000. The County posted a notice to the County s website with an available download of the RFP on DemandStar. FirstSouthwest recommends that the County enter into negotiations with the top ranked respondent, SunTrust Equipment Finance and Leasing Corp. After a review of the proposals, it was determined that the SunTrust proposal provided the County with the optimal combination of the lowest overall fixed rate financing costs and the financing flexibility that was outlined in the County s RFP solicitation. Staff s recommendation, outlined in the agenda item, is to authorize the Chairman to execute all documents relative to the financial transaction with SunTrust Equipment Finance and Leasing Corp, submitted by this supplemental memo, and to approve a Note Resolution and a Budget Resolution for the line of credit. DOCUMENTS REQUIRING ACTION: Loan Agreement Note Resolution Budget Resolution RECOMMENDATION: Authorize the Chairman or designee to execute all documents relative to the financial transaction with SunTrust Equipment Finance and Leasing Corp. to include the Loan Agreement and Note Resolution; and Authorize the County Administrator or designee to execute any non-monetary related documents upon review and concurrence by the County Attorney s Office; and Adopt a Budget Resolution for the line of credit. Above item is reviewed by the County Attorney s Office. Page 1 of 1 adm2012m211 SUPPLEMENTAL.docx PDF Page 4 of 58

5 LOAN AGREEMENT dated as of February 8, 2012 by and between MARTIN COUNTY, FLORIDA (the County ) and SUNTRUST EQUIPMENT FINANCE & LEASING CORP. (the Bank ) PDF Page 5 of 58

6 TABLE OF CONTENTS The Table of Contents for this Loan Agreement is for convenience of reference only and is not intended to define, limit or describe the scope or intent of any provisions of this Loan Agreement. ARTICLE I DEFINITION OF TERMS...1 Section Definitions Section Interpretation Section Titles and Headings ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PARTIES...4 Section Representations and Warranties of County... 4 Section Representations and Warranties of Bank... 5 ARTICLE III THE NOTE...6 Section The Loan; Purpose and Use Section The Note Section Adjustment of the Note Rate Section Compliance with Section Section Conditions Precedent to Funding Initial Advance Section Registration of Transfer; Assignment of Rights of Bank Section Ownership of the Note Section Use of Proceeds of Loan Permitted Under Applicable Law ARTICLE IV COVENANTS OF THE COUNTY...12 Section Performance of Covenants Section Payment of the Note Section Covenant to Budget and Appropriate Section Tax Covenant Section Budget and Other Financial Information Section Financial Statements Section Additional Indebtedness ARTICLE V EVENTS OF DEFAULT AND REMEDIES...15 Section Events of Default Section Exercise of Remedies Section Remedies Not Exclusive Section Waivers, Etc ARTICLE VI MISCELLANEOUS PROVISIONS...17 Section Covenants of County, Etc.; Successors Section Term of Agreement Section Notice of Changes in Fact Section Amendments and Supplements Section Notices Section WAIVER OF JURY TRIAL Section Benefits Exclusive Page i PDF Page 6 of 58

7 Section Severability Section Business Days Section Counterparts Section Applicable Law Section No Personal Liability Section Incorporation by Reference EXHIBIT A - FORM OF NOTE A-1 ii PDF Page 7 of 58

8 LOAN AGREEMENT THIS LOAN AGREEMENT (the Agreement ), made and entered into on the 8 th day of February, 2012, by and between MARTIN COUNTY, FLORIDA (the County ), a political subdivision of the State of Florida duly organized under the laws of the State of Florida and its successors and assigns, and SUNTRUST EQUIPMENT FINANCE & LEASING CORP., a corporation organized and existing under the laws of the Commonwealth of Virginia and authorized to do business in the State of Florida, and its successors (the Bank ). W I T N E S S E T H: WHEREAS, capitalized terms used in these recitals and not otherwise defined shall have the meanings specified in Article I of this Agreement; and WHEREAS, the County, pursuant to the provisions of the Constitution and the laws of the State of Florida, Chapter 125, Florida Statutes, as amended, and other applicable provisions of law (the Act ) and Resolution No. [ ] adopted by the Board of County Commissioners (the Note Resolution ) on February 7, 2012, is authorized to borrow money to finance the costs of acquiring, constructing, installing and equipping various capital improvement projects, including, but not limited to, the dredging of St. Lucie Inlet, improvements at Justin Wilson Memorial Park, acquisition and construction of a disaster recovery center, roadway improvements, stormwater improvements, and any such other projects that may be approved by resolution of the County Commission (the Project ); and WHEREAS, the County issued a request for proposals and received proposals from various financial institutions to loan funds to the County for the purpose of financing the costs of the Project (the Loan ); and WHEREAS, following review and recommendation from the County's Financial Advisor and the County staff, the County Commission has determined that the Bank submitted the proposal with terms and provisions most favorable to the County (the Proposal ); and WHEREAS, the County has accepted the Proposal and the Bank is willing to provide the Loan to the County as provided herein, but only upon the terms and conditions of this Agreement; NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I DEFINITION OF TERMS Section Definitions. Capitalized terms used in this Agreement and not otherwise defined shall have the respective meanings as follows: Act shall have the meaning assigned to that term in the recitals hereof. 1 PDF Page 8 of 58

9 Advance shall have the meaning assigned thereto pursuant to Section 3.02(b) hereof. Agreement shall mean this Loan Agreement and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. Bank shall mean SunTrust Equipment Finance & Leasing Corp., a corporation organized and existing under the laws of the Commonwealth of Virginia and its successors or affiliates. Business Day shall mean any day other than a Saturday, a Sunday, or a day on which banks in Martin County, Florida are authorized or required to be closed. Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and the applicable rules and regulations promulgated thereunder. County shall mean Martin County, Florida, a political subdivision of the State of Florida. County Administrator shall mean the County Administrator of the County, or his or her designee. Date of Delivery shall mean February 8, Debt Service means principal of and interest on the Note, and other debt related costs, due in connection with the Note and this Agreement. Debt Service Fund means the Martin County, Florida Capital Improvement Revenue Note, Series 2012 Debt Service Fund created under the Note Resolution. Determination of Taxability means a final decree or judgment of any federal court or a final action of the Internal Revenue Service determining that interest paid or payable on the Note is or was includable in the gross income of an owner of the Note for federal income tax purposes; provided, that no such decree, judgment, or action will be considered final for this purpose, however, unless the County has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in the name of the owner of a Note, and until the conclusion of any appellate review, if sought. Event of Default shall mean an Event of Default as defined in Section 5.01 of this Agreement. Fiscal Year shall mean the twelve month period commencing October 1 of each year and ending on the succeeding September 30, or such other twelve month period as the County may designate as its fiscal year as permitted by law. Financial Advisor shall mean the County's financial advisor, First Southwest Company, Orlando, Florida. 2 PDF Page 9 of 58

10 Loan shall collectively refer to an amount equal to the outstanding and unpaid draws, together with unpaid interest which has accrued, made under the non-revolving line of credit granted by the Bank pursuant to and in accordance with this Agreement. Maturity Date shall mean October 1, Non-Ad Valorem Revenues means all legally available non-ad valorem revenues of the County; provided, however, that Non-Ad Valorem Revenues shall (a) be received by the County from sources other than the levy of ad valorem taxes upon property, and (b) not be restricted by law so as to be unable to be applied to pay the Debt Service on the Note and other County debt secured by Non-Ad Valorem Revenues, and to make the other payments, if any, required under the Note or under this Loan Agreement. Note shall mean the Martin County, Florida Capital Improvement Revenue Note, Series 2012 issued by the County under the Note Resolution and this Agreement to evidence amounts due under this Agreement, the form of which is attached hereto as Exhibit A. Note Counsel shall mean, initially, Bryant Miller Olive P.A., or any other attorney at law or firm of attorneys of nationally recognized standing in matters pertaining to the federal tax exemption of interest on obligations issued by states and political subdivisions. Note Rate shall mean the fixed rate of interest which shall apply to the principal amount of each Advance, which shall be calculated in accordance with Section 3.02(c) herein, and shall be determined by the Bank on the fifth Business Day prior to the date each Advance is funded by the Bank. The Note Rate shall be subject to adjustment as provided in Section 3.03 herein. Note Resolution shall mean the Resolution No. [ ] adopted by the County Commission of the County on February 7, 2012, which, among other things, authorized and confirmed the borrowing of the Loan and execution and delivery of this Agreement and the issuance of the Note. Noteholder, Owner or Holder shall mean the Bank as the purchaser and initial holder of the Note and any subsequent registered holder of the Note. Proposal shall mean the proposal from the Bank dated December 13, 2011 for providing the Loan. Taxable Period shall mean the period of time between (a) the date that interest on the Note is deemed to be included in the gross income of the owner thereof for federal income tax purposes, as a result of a Determination of Taxability, and (b) the date of the Determination of Taxability. Taxable Rate shall mean, upon a Determination of Taxability, the interest rate per annum that shall provide the Holder with the same after tax yield that the Holder would have 3 PDF Page 10 of 58

11 otherwise received had the Determination of Taxability not occurred, taking into account the increased taxable income of the Holder as a result of such Determination of Taxability. The Holder shall provide the County with a written statement explaining the calculation of the Taxable Rate, which statement shall, in the absence of manifest error, be conclusive and binding on the County. Section Interpretation. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. Any capitalized terms used in this Agreement not herein defined shall have the meaning ascribed to such terms in the Note Resolution. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. Section Titles and Headings. The titles and headings of the Articles and Sections of this Agreement, which have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PARTIES Section Representations and Warranties of County. The County represents and warrants to the Bank as follows: (a) Existence. The County is a political subdivision of the State of Florida, duly created and validly existing under the laws of the State of Florida, with full legal right, power and authority to adopt the Note Resolution, to enter into this Agreement, to perform its obligations hereunder and to issue and deliver the Note to the Bank. The making, execution and performance of this Agreement on the part of the County and the issuance and delivery of the Note have been duly authorized by all necessary action on the part of the County and will not violate or conflict with the Act, or any agreement, indenture or other instrument by which the County or any of its material properties is bound. (b) Validity, Etc. This Agreement, the Note and the Note Resolution are valid and binding obligations of the County enforceable against the County in accordance with their respective terms, except to the extent that enforceability may be subject to valid bankruptcy, insolvency, financial emergency, reorganization, moratorium or similar laws relating to or from time to time affecting the enforcement of creditors' rights and except to the extent that the availability of certain remedies may be precluded by general principles of equity. 4 PDF Page 11 of 58

12 (c) No Financial Material Adverse Change. There are no actions, proceedings or investigations pending against the County or affecting the County (or any basis therefore known to the County) which, either in any case or in the aggregate, might result in any material adverse change in the financial condition, business, prospects, affairs or operations of the County or in any of its properties or assets, or in any material impairment of the right or ability of the County to carry on its operations as now conducted or proposed to be conducted, or in any material liability on the part of the County and none which questions the validity of this Agreement, the Note or the Note Resolution or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. (d) Liens and Encumbrances. Other than as previously disclosed to the Bank and as listed in the County s annual financial report, there are no liens or encumbrances on the Non- Ad Valorem Revenues. (e) Non-Ad Valorem Revenues. The County currently receives the Non-Ad Valorem Revenues and is legally entitled to covenant to budget and appropriate from such Non-Ad Valorem Revenues amounts necessary to pay the Debt Service on the Note and to make the other payments, if any, required under the Note and this Agreement when due. The Non-Ad Valorem Revenues are estimated to be sufficient to pay the Debt Service on the Note and to make the other payments, if any, required under the Note or this Agreement and to make all other payments required to be made from Non-Ad Valorem Revenues as the same become due. (f) No Litigation. There are no suits or proceedings pending or threatened, of which the County Attorney has notice, in any court or before any regulatory commission, board or other administrative governmental agency against or affecting the County, which would have a material adverse affect on the ability of County to fulfill its obligations under this Agreement. (g) Confirmation. The representations and warranties of the County contained in the Note Resolution are hereby confirmed to be true and accurate and are incorporated as a part of this Agreement. Section Representations and Warranties of Bank. The Bank represents and warrants to the County as follows: (a) Existence. The Bank is a Virginia corporation authorized to do business in the State of Florida, with full power to enter into this Agreement, to perform its obligations hereunder and to make the Loan. The performance of this Agreement on the part of the Bank and the making of the Loan have been duly authorized by all necessary action on the part of the Bank and will not violate or conflict with applicable law or any material agreement, indenture or other instrument by which the Bank or any of its material properties is bound. (b) Validity. This Agreement is a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, except to the extent that enforceability may be subject to valid bankruptcy, insolvency, financial emergency, reorganization, moratorium or similar laws relating to or from time to time affecting the 5 PDF Page 12 of 58

13 enforcement of creditors' rights (and specifically creditors' rights as the same relate to Georgia banking corporations) and except to the extent that the availability of certain remedies may be precluded by general principles of equity. (c) Knowledge and Experience. The Bank (i) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of making the Loan and investing in the Note, (ii) has received and reviewed such financial information concerning the County as it has requested in order to fairly evaluate the merits and risks of making the Loan and investing in the Note; (iii) is an accredited investor as such term is defined in Regulation D to the Securities Act of 1933; and (iv) is purchasing the Note as an investment for its own account and not with a view toward resale to the public. The Bank will not transfer the Note except to another accredited investor. ARTICLE III THE NOTE Section The Loan; Purpose and Use. On the date of this Agreement, the Bank shall make available to the County the Loan in the principal amount of not to exceed Ten Million Dollars ($10,000,000). The County shall be permitted to make one or more draws under the Note. The proceeds of each draw under this Agreement shall be used to finance components of the Project. Section The Note. The Note shall be substantially in the form set forth as Exhibit A to this Agreement. The general terms of the Note shall be as follows: (a) Amount of Note. The Note shall have a principal amount of not to exceed Ten Million Dollars ($10,000,000). (b) Advances Under the Note. On or before February 8, 2013, the Note may be drawn upon in multiple drawings (each an "Advance") under the following terms: (i) each Advance must be an amount not less than $250,000 and must be requested by the County (an "Advance Request") in writing and executed by the County Administrator, to the Bank at least seven (7) Business Day prior to such Advance, in substantially the form attached hereto as Exhibit C ; (ii) each Advance Request must state that the County remains in full compliance with the terms of this Agreement, that no Event of Default currently exists and that no Event of Default would exist with the passage of time or the giving of notice; (iii) each Advance Request shall identify the amount of the Advance requested and confirm that the amount of the Advance requested will not, together with the aggregate principal amount of all Advances previously received, exceed $10,000000; 6 PDF Page 13 of 58

14 (iv) each Advance Request shall include a statement to the effect that the facts, estimates, circumstances and representations set forth in the Tax Certificate delivered in connection with the initial issuance of the Note, as amended or supplemented, if applicable, continue to exist on such date; (v) no Advance Request shall be honored after February 8, 2013, or after the occurrence of an Event of Default, unless both the Bank and the County have mutually agreed upon an extension in writing; (vi) the conditions set forth in Section 3.05 of this Agreement must have been satisfied prior to the first Advance; and and (vii) the Advance must be for Project costs or costs of issuance of the Note; (viii) in connection with the funding of each Advance, the Holder shall provide to the County (a) such documentation to evidence the Note Rate applicable to each Advance and the calculations made in connection therewith and (b) a debt service schedule relating to each Advance funded under this Agreement, which schedule shall provide for level annual principal and interest payments in the years 2013 through and including Such debt service schedule shall also be attached as a schedule to the Note and made a part thereof. (c) Interest. The Note shall bear interest at the Note Rate applicable to each draw from the Date of Delivery until paid. Interest on the Note shall be computed on the basis of twelve (12) thirty (30) day months and a 360-day year. The Note Rate shall be calculated as follows: (i) 67% of the 4-year Interest Rate Swap Rate published in the Federal Reserve Statistical Release H.15, plus 120 basis points (1.20%) for Advances made through and including March 31, 2012; (ii) 67% of the 4-year Interest Rate Swap Rate published in the Federal Reserve Statistical Release H.15, plus 116 basis points (1.16%) for Advances made on April 1, 2012 through and including June 30, 2012; (iii) 67% of the 4-year Interest Rate Swap Rate published in the Federal Reserve Statistical Release H.15, plus 112 basis points (1.12%) for Advances made on July 1, 2012 through and including September 30, 2012; (iv) 67% of the 4-year Interest Rate Swap Rate published in the Federal Reserve Statistical Release H.15, plus 110 basis points (1.10%) for Advances made on October 1, 2012 through and including December 31, 2012; and 7 PDF Page 14 of 58

15 (v) 67% of the 4-year Interest Rate Swap Rate published in the Federal Reserve Statistical Release H.15, plus 107 basis points (1.07%) for Advances made on January 1, 2013 through and including February 8, (d) Payments. Interest on the Note shall be paid semi-annually on every April 1 and October 1, commencing April 1, 2012 until the Note is paid in full (each an Interest Payment Date ). Principal on the Note shall be paid in annual installments beginning October 1, 2013 and on every October 1 thereafter until the Maturity Date, as provided in each debt service schedule provided to the County by the Holder in connection with the funding of an Advance under this Agreement. Notwithstanding the foregoing, the Note shall be subject to prepayment by the County prior to the Note s maturity as provided in Section 3.02(e) below. (e) Prepayment. On or after October 1, 2013, the County may prepay the Note, in whole or part, on any Interest Payment Date upon twenty (20) days prior written notice to the Holder thereof, and without a prepayment penalty. Any prepayment shall be applied first to accrued interest to the date of prepayment and then to the principal amount outstanding on the Note as directed by the County. Section Adjustment of the Note Rate. The Note Rate shall be subject to adjustment. Upon the occurrence of a Determination of Taxability and for as long as the Note remains outstanding, the Note Rate shall be converted to the Taxable Rate. In addition, upon a Determination of Taxability, the County shall pay to the Holder (i) an additional amount equal to the difference between (A) the amount of interest actually paid on the Note during the Taxable Period and (B) the amount of interest that would have been paid during the Taxable Period has the Note borne interest at the Taxable Rate., and (ii) an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the Code) owed. Section Compliance with Section The County represents, warrants, and covenants that the Note Rate, as currently calculated in accordance with Section , Florida Statutes, is in compliance with Section , Florida Statutes. Section Conditions Precedent to Funding Initial Advance. Prior to or simultaneously with the delivery of the Note by the County there shall be filed with the Bank the following, each in form and substance reasonably acceptable to the Bank: (a) an opinion of counsel to the County to the effect that (i) the County is a political subdivision within the State of Florida, duly created and validly existing and has full legal right, power and authority to adopt and perform its obligations under the Note Resolution, and to authorize, execute and deliver and to perform its obligations under this Agreement and the 8 PDF Page 15 of 58

16 Note; (ii) the County has duly adopted the Note Resolution and entered into this Agreement and such instruments constitute legal, binding and valid obligations of the County, enforceable in accordance with their respective terms; provided, however, the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity and the exercise of judicial discretion; (iii) except for post-closing disclosures to be filed with the State Division of Bond Finance and Form 8038-G to be filed with the Internal Revenue Service, all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities required for the County's adoption, execution, approval and performance of this Agreement, the Note and the Note Resolution have been obtained, provided that no opinion shall be required with respect to any authorizations, consents, approvals or reviews required by the securities laws of the United States of America or of any state, or of any other jurisdiction; (iv) the meetings of the County during which matters relating to the Note, the Note Resolution and this Agreement were considered were held in accordance with all applicable rules and all of the laws of the State that govern the meetings of the County; (v) the adoption of the Note Resolution and the authorization, execution and delivery of this Agreement and the Note, and compliance with the provisions hereof and thereof, will not conflict with, or constitute a breach of or default under, any law, administrative regulation, consent decree, resolution or any agreement or other instrument to which the County is subject nor will such adoption, execution, delivery, authorization or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the County, or under the terms of any law, administrative regulation, resolution or instrument, except as expressly provided by the Note Resolution; (vi) this Agreement and the Note have been duly executed and delivered and the County is in compliance with all conditions contained in the Note Resolution and this Agreement precedent to the issuance of the Note; and (vii) as of the Date of Delivery that there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or, to the best of his knowledge, threatened against the County, affecting or seeking to prohibit, restrain or enjoin the County from adopting the Note Resolution, entering into this Agreement or the issuance or delivery of the Note or contesting or affecting as to the County the validity or enforceability of the Act in any respect relating to the authorization of this Agreement or authorization for the issuance of the Note and the Note Resolution, or contesting the tax-exempt status of interest on the Note, or contesting the powers of the County to impose, levy or collect the Non-Ad Valorem Revenues or to covenant to budget and appropriate Non-Ad Valorem Revenues as provided herein or any authority for the issuance of the Note or the adoption of the Note Resolution. Notwithstanding the foregoing, no opinion shall be required as to the applicability of any approvals, consents or orders as may be required under the blue sky or securities laws or legal investment laws of any state in connection with the offering and sale of the Note or in connection with the registration of the Note under the federal securities laws. (b) an opinion of Note Counsel (who may rely on the opinion of Counsel to the County), stating that such counsel is of the opinion that: (i) the Note Resolution and this 9 PDF Page 16 of 58

17 Agreement constitute valid and binding obligations of the County enforceable upon the County in accordance with their respective terms; (ii) the Note is a valid and binding special obligation of the County enforceable in accordance with its terms, payable solely from the sources provided therefore in the Note Resolution and this Agreement; and (iii) assuming compliance by the County with certain covenants in this Agreement relating to requirements contained in the Code, interest on the Note is excluded from gross income for purposes of federal income taxation, and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; however, with respect to corporations (as defined for federal income tax purposes), such interest is taken into account in determining adjusted current earnings for the purpose of computing the alternative minimum tax imposed on such corporations. (c) a copy of a completed and executed Form 8038-G to be filed with the Internal Revenue Service by the County; and (d) such other documents as the Bank reasonably may request (including, without limitation, appropriate executed Florida Division of Bond Finance forms). When the documents and items mentioned in clauses (a) through (d), inclusive, of this Section shall have been filed with the Bank, and when the Note shall have been executed as required by this Agreement, and all conditions of the Note Resolution have been met, the County shall deliver the Note to or upon the order of the Bank, but only against the County's receipt of the proceeds of the initial Advance. Section Registration of Transfer; Assignment of Rights of Bank. The County shall keep at the office of the Clerk of Circuit Court, ex-officio Clerk of the Board of County Commissioners in the County's records the registration of the Note and the registration of transfers of the Note as provided in this Agreement. Subject to the restriction set forth in the fourth paragraph of this Section, the transfer of the Note may be registered only upon the books kept for the registration of the Note and registration of transfer thereof upon surrender thereof to the County together with an assignment duly executed by the Bank or its attorney or legal representative in the form of the assignment set forth on the form of the Note attached as Exhibit A to this Agreement; provided, however, that the Note may be transferred only in whole and not in part. In the case of any such registration or transfer, the County shall execute and deliver in exchange for the applicable Note a new Note registered in the name of the transferee. In all cases in which the Note shall be transferred hereunder, the County shall execute and deliver at the earliest practicable time a new Note in accordance with the provisions of this Agreement. The County may make a charge for every such registration of transfer of the Note sufficient to reimburse it for any tax or other governmental charges required to be paid (other than a tax or other governmental charge imposed by the County) with respect to such registration of transfer, but no other charge shall be made for registering the transfer hereinabove granted. The Note shall be issued in fully registered form and shall be payable in any coin or currency of the United States. 10 PDF Page 17 of 58

18 The registration of transfer of the Note on the registration books of the County shall be deemed to affect a transfer of the rights and obligations of the Bank under this Agreement to the transferee. Thereafter, such transferee shall be deemed to be the Bank under this Agreement and shall be bound by all provisions of this Agreement that are binding upon the Bank. The County and the transferor shall execute and record such instruments and take such other actions as the County and such transferee may reasonably request in order to confirm that such transferee has succeeded to the capacity of Bank under this Agreement and the Note. In the event any Note is mutilated, lost, stolen, or destroyed, the County shall execute a new Note of like date and denomination as that mutilated, lost, stolen or destroyed, provided that, in the case of such a mutilated Note, such mutilated Note shall first be surrendered to the County, and in the case of a lost, stolen, or destroyed Note, there first shall be furnished to the County evidence of such loss, theft or destruction together with an indemnity satisfactory to it. Nothing in this Agreement or in the Note shall be construed to prohibit the Bank from granting a participation or participations in the Note to any other bank or banks affiliated with SunTrust Equipment Finance & Leasing Corp. or any subsidiary thereof. No such bank participant shall, however, be a registered holder of the Note or any portion thereof. Section Ownership of the Note. The person in whose name the Note is registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the Note shall be made only to the registered owner thereof or such owner's legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Note, and interest thereon, to the extent of the sum or sums so paid. The registered owner of the Note is hereby granted power to transfer absolute title thereof by assignment thereof to a bona fide purchaser for value (present or antecedent) without notice of prior defenses or equities or claims of ownership enforceable against such owner's assignor or any person in the chain of title and before the maturity of the Note; provided, however, that the Note may be transferred only in whole and not in part. Every prior registered owner of the Note shall be deemed to have waived and renounced all of such owner's equities or rights therein in favor of every such bona fide purchaser, and every such bona fide purchaser shall acquire absolute title thereto and to all rights represented thereby. Section Use of Proceeds of Loan Permitted Under Applicable Law. The County represents, warrants and covenants that the proceeds of the Loan will be used solely for payment of the costs of the Project, and the costs and expenses associated with the issuance of the Note, and that such uses are permitted by applicable law. 11 PDF Page 18 of 58

19 ARTICLE IV COVENANTS OF THE COUNTY Section Performance of Covenants. The County covenants that it will perform faithfully at all times its covenants, undertakings and agreements contained in this Agreement and the Note or in any proceedings of the County relating to the Loan. Section Payment of the Note. The County promises that it will promptly pay the Debt Service on the Note and all other amounts due under this Agreement at the place, on the dates and in the manner provided in Section 3.02 hereof and in the Note according to the true intent and meaning hereof and thereof. Debt Service on the Note and all other amounts due under this Agreement shall not be or constitute a general obligation or indebtedness of the County as a bond within the meaning of Article VII, Section 12 of the Constitution of Florida, but shall be payable solely from the Non-Ad Valorem Revenues in accordance with the terms hereof and of the Note. The holder of the Note shall never have the right to compel the exercise of any ad valorem taxing power to pay Debt Service on the Note, or be entitled to payment of such from any funds of the County except from the Non-Ad Valorem Revenues deposited in the Debt Service Fund, as described herein and in the Note. Section Covenant to Budget and Appropriate. The County covenants to budget and appropriate in each fiscal year such amount of Non-Ad Valorem Revenues sufficient to provide for the timely payment of the principal of and interest on the Note and any other amounts required to be paid under this Agreement. The County will include in its annual budget, by amendment if necessary, and as soon as practicable, such amounts of Non-Ad Valorem Revenues as will be needed to provide for the payment of the principal of and interest on the Note, when due and to make the other payments, if any, required to be made under the Note or this Agreement. 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. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Revenues until such Non-Ad Valorem Revenues are actually budgeted and appropriated and deposited into the Debt Service Fund, nor does it preclude the County from pledging in the future its Non-Ad Valorem Revenues, so long as the granting of such lien will not have the effect of impairing the obligation of the County under this Agreement and the Note or of making unavailable sufficient amounts of reasonably anticipated Non-Ad Valorem Revenues required to provide the timely payment of the principal of and interest on the Note and other payments, if any, required to be made under the Note or this Agreement. Such covenant does not require the County to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the Noteholder a prior claim or lien on any Non-Ad Valorem Revenues until such Non-Ad Valorem Revenues are budgeted and appropriated and deposited into the Debt Service Fund for payment of principal or interest on the Note. Such covenant to 12 PDF Page 19 of 58

20 budget and appropriate Non-Ad Valorem Revenues is subject in all respects to the prior payment of obligations secured by a pledge of a particular source or sources of such Non-Ad Valorem Revenues heretofore or hereafter entered into (including the payment of debt service on bonds and other debt instruments). It is understood and agreed that the obligation of the County hereunder to budget and appropriate Non-Ad Valorem Revenues shall not be deemed to pledge ad valorem tax revenues or to permit or constitute a mortgage or lien upon any assets owned by the County and no holder of the Note nor any other person, may compel the levy of ad valorem taxes on real or personal property within the boundaries of the County or the use of any proceeds of ad valorem tax revenues for any purpose. The County shall never be obligated to maintain or continue any of the activities of the County, which generate user service charges, regulatory fees or any Non-Ad Valorem Revenues. Except as provided hereafter, the obligations of the County under the Note and this Agreement shall not be construed as a pledge of or a lien on all or any legally available Non-Ad Valorem Revenues of the County, but shall be payable solely as provided herein and in the Note Resolution and are subject in all respects to the provisions of Chapter 129, Florida Statutes, and are subject, further, to the payment of essential governmental services and programs affecting the health, welfare and safety of the inhabitants of the County. Section Tax Covenant. The County covenants to the purchaser of the Note provided for in this Agreement that the County will not make any use of the proceeds of the Note at any time during the respective terms of such Note which, if such use had been reasonably expected on the date the Note was issued, would have caused such Note to be an arbitrage bond within the meaning of the Code. The County will comply with the requirements of the Code and any valid and applicable rules and regulations promulgated thereunder necessary to ensure the exclusion of interest on the Note from the gross income of the holders thereof for purposes of federal income taxation. Section Budget and Other Financial Information. The County shall: 1. Within two hundred seventy (270) days following the end of each Fiscal Year of the County, provide the Noteholder with a copy of the County's audited financial statements for the preceding Fiscal Year; and 2. Provide the Noteholder with a copy of its resolution adopting its annual budget within thirty (30) days of the adoption of the same, a completed budget book upon the completion of the same, and such other financial information regarding the County as the Noteholder may reasonably request. Section Financial Statements. The financial statements of the County for its fiscal year ended September 30, 2010, previously provided to the Bank, were prepared in accordance with generally accepted accounting principles and present fairly the financial conditions of the County as of such date and the results of its operations for the period then ended. Since such date 13 PDF Page 20 of 58

21 there has been no material adverse charge in the financial condition, revenues (including, without limitation, the Non-Ad Valorem Revenues), properties or operations of the County. Section Additional Indebtedness. The County will not issue any Senior Lien Non-Enterprise Non-Ad Valorem Revenue Obligations secured by (1) a lien upon and pledge of all or any specified portion of the Non-Ad Valorem Revenues or (2) a covenant to budget and appropriate from Non-Ad Valorem Revenues, unless, for the Computation Period: (i) the total Non-Enterprise Non-Ad Valorem Revenues, less (ii) the product of (A) Non-Enterprise Non-Ad Valorem Revenues divided by Total Non-Enterprise Fund Revenues times (B) Essential Services Expenses, and less, (iii) principal and interest payments on Senior Lien Non-Enterprise Non-Ad Valorem Revenue Obligations equals or exceeds one hundred fifty percent (150%) of Existing and Proposed CB&A Debt Service, where: Computation Period means (a) the period of 12 consecutive months out of the 24 months, or (b) the complete Fiscal Year immediately preceding the date of issuance of the proposed Senior Lien CB&A Obligations. Enterprise Fund Revenues means all revenues received by the County from (a) the operation of (i) its water and wastewater utility system; (ii) its stormwater utility system; (iii) solid waste collection and disposal system. Essential Services Expenses means services necessary for the conducting of the public safety and general governmental operations of the County during the Computation Period, as shown in the County s comprehensive annual financial report. Non-Enterprise Non-Ad Valorem Revenues means all Non-Ad Valorem Revenues received during the Computation Period (a) without regard to any restriction upon the use of such Non-Ad Valorem Revenues or any existing or future liens on such Non-Ad Valorem Revenues and (b) excluding Enterprise Fund Revenues. Existing and Proposed CB&A Debt Service means the maximum amount that is due and payable in any Fiscal Year for principal and interest on the Senior Lien Non- Enterprise Non-Ad Valorem Revenue Obligations outstanding at the time or proposed to be issued. Senior Lien CB&A Obligations means obligations secured by (1) a direct pledge of Non-Enterprise Non-Ad Valorem Revenues annually budgeted, appropriated, and deposited into a debt service fund pursuant to a covenant to budget and appropriate, or (2) a covenant to budget and appropriate from Non-Enterprise Non-Ad Valorem Revenues, and excludes obligations as to which the covenant to budget and appropriate Non-Enterprise Non-Ad Valorem Revenues (a) either (i) supplements some 14 PDF Page 21 of 58

22 other primary source of security or (ii) relates to payments into a debt service reserve account or reimbursement under a debt service reserve fund surety policy reimbursement agreement, or (b) is expressly junior and subordinate to other covenants to budget and appropriate from Non-Enterprise Non-Ad Valorem Revenues. Senior Lien Direct Pledge Obligations means obligations secured by a senior lien on and pledge of all or any specific source of Non-Enterprise Non-Ad Valorem Revenues. Senior Lien Non-Enterprise Non-Ad Valorem Revenue Obligations means Senior Lien Direct Pledge Obligations and Senior Lien CB&A Obligations. Total Non-Enterprise Fund Revenues means all revenues received by the County during the Computation Period, excluding Enterprise Fund Revenues. ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section Default: Events of Default. Each of the following is hereby declared an Event of 1. payment of the principal of or interest on the Note or other fees or amounts due thereunder or hereunder shall not be made within ten (10) consecutive days of the same becoming due and payable; 2. the County shall default in the due and punctual performance of any other of the material covenants, conditions, agreements and provisions contained in the Note or in this Agreement and such default shall continue for thirty (30) consecutive days after written notice shall have been given to the County by the Noteholder specifying such default and requiring the same to be remedied; provided, however, that if, in the reasonable judgment of the Noteholder, the County shall proceed to take such curative action which, if begun and prosecuted with due diligence, cannot be completed within a period of thirty (30) days, then such period shall be increased in the sole discretion of the Bank, to such extent as shall be necessary to enable the County to diligently complete such curative action; 3. any representation or warranty of the County contained in this Agreement or in any certificate or other closing document executed and delivered by the County in connection with the closing of this Loan shall prove to have been untrue in any material respect when executed and delivered, thereby adversely impairing the security for the Note; 4. any proceedings are instituted with the consent or acquiescence of the County, for the purpose of effecting a compromise between the County and its creditors or for the 15 PDF Page 22 of 58

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