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HomeMy WebLinkAboutResolution_79-01/02_09/22/2002RESOLUTION N0.79-01/02 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA; AUTHORIZING THE ISSUANCE OF A NOTE OF THE VILLAGE IN THE PRINCIPAL AMOUNT OF $5,000,000 TO FINANCE THE COST OF A NEW PUBLIC SAFETY FACILITY OF THE VILLAGE AND TO REFINANCE AN EXISTING NOTE OF THE VILLAGE INCURRED FOR SUCH PURPOSE; PROVIDING THAT SUCH NOTE SHALL NOT BE A GENERAL OBLIGATION OF THE VILLAGE BUT SHALL BE PAYABLE ONLY FROM CERTAIN NON-AD VALOREM REVENUES AS PROVIDED HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES, AND REMEDIES FOR THE OWNER OF SUCH NOTE; PROVIDING FOR THE CREATION OF CERTAIN FUNDS; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VII,LAGE OF TEQUESTA, FLORIDA, THAT: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Village of Tequesta, Florida, and other applicable provisions of law. Section 2. Definitions. The following words and phrases shall have the following meanings when used herein: "Act" means Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer, and other applicable provisions of law. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is closed. "Clerk" means the duly appointed Village Clerk of the Issuer, or any duly authorized deputy thereof. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Cost" means, with respect to the Project, all items of cost authorized by the Act. "Designated Revenues" means any lawfully available non ad valorem revenue stream designated by the Issuer by resolution of the Village Council and acceptable to the Owner, as evidenced in writing signed by the Owner. "Issuer" means the Village of Tequesta, Florida, a municipal corporation of the State of Florida. "Loan Agreement" means the agreement between the Issuer and the Original Purchaser in the form attached hereto as Exhibit "B." "Mayor" means the Mayor of the Issuer, or in his or her absence or inability to act, the Vice-Mayor of the Issuer. "Non Ad Valorem Revenues" means any and all revenues of the Issuer, other than the Public Service Tax Revenues or any Designated Revenues, which are not derived by the Issuer from its imposition, levy and collection of ad valorem taxes on real and personal property m the Iunsdiction of the Issuer, and which are lawfully available for the payment of principal and interest on the Note. "Note" means the Promissory Note of the Issuer authorized by Section 4 hereof. "Original Purchaser" means Bank of America, N.A., its successors and assigns. "Owner" or "Owners" means the Person or Persons in whose name or names the Note shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. "Pledged Revenues" means (i) the Public Service Tax Revenues and (ii) to the extent provided in Section 7 hereof, the Non Ad Valorem Revenues and (iii) any Designated Revenues. "Principal Office" means, with respect to the Original Purchaser, the office located at 625 North Flagler Drive, 10`~ Floor, West Palm Beach, Florida 33401, or such other office as the Original Purchaser may designate to the Issuer in writing. "Project" means capital expenditures of the Issuer constituting costs of a new public safety facility and includes refinancing of the outstanding balance of the Issuer's $6,000,000 Promissory Note, dated January 11, 2002. "Public Service Tax Revenues" means all amounts received by the Issuer pursuant to the tax (the "Public Service Tax") levied on the purchase of electricity, metered natural gas, liquified petroleum gas either metered or bottled, manufactured gas either metered or bottled and water service purchased within the jurisdiction of the Issuer pursuant to the authority of Section 166.231, Florida Statutes or any successor provision of law. "Resolution" means this Resolution, as amended and supplemented from time to time. "State" means the State of Florida. Section 3. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Note authorized to be issued hereunder by those who shall be the Owners thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owners. Section 4. Authorization of Note. Subject and pursuant to the provisions of this Resolution, a special obligation of the Issuer is hereby authorized to be issued under and secured by this Resolution, in the principal amount of $5,000,000, for the purpose of financing the Cost of the Project. Because of the characteristics of the Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Note at a private negotiated sale. Prior to the issuance of the Note the Issuer shall receive from the Original Purchaser the disclosure statement containing the information required by Section 218.385, • Florida Statutes. 2 Section 5. Description of Note. The Note shall be dated the date of its execution and delivery, which shall be September 13, 2002 unless another date is agreed upon by the Mayor and the Original Purchaser, and shall have such other terms and provisions, including the interest rate and maturity date, as stated in the form of Note attached hereto as Exhibit A. The Note is to be in the form set forth on Exhibit A attached hereto. The Note shall be executed on behalf of the Issuer with the manual signature of the Mayor and shall have impressed thereon the official seal of the Issuer, and be attested with the manual signature of the Clerk, and the said Mayor and Clerk are hereby authorized to execute and attest to the Note on behalf of the Issuer. Section 6. Registration and Exchange of Note; Persons Treated as Owners. The Note is initially registered to the Original Purchaser. So long as the Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Note. The Note shall be transferable only upon such registration books. The Person in whose name the Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on the Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. Section 7. Payment of Principal and Interest; Limited Obligation; Additional Debt. The Issuer promises that it will promptly pay the principal of and interest on the Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof, provided that the principal of and interest on the Note is payable from the Pledged Revenues as hereinafter described, and nothing in the Note or in this Resolution shall be construed as pledging any other funds or assets of the Issuer to such payment. The Issuer is not and shall not be liable for the payment of the principal of and interest on the Note or for the performance of any pledge, obligation or agreement undertaken by Issuer from any property other than the Pledged Revenues as hereinafter described. No Owner of the Note shall have any right to resort to legal or equitable action to require or compel the Issuer to make any payment required hereby or by the Note except from the Pledged Revenues as hereinafter described. The Issuer hereby grants a pledge of and lien upon the Public Service Tax Revenues and any Designated Revenues to secure its obligations hereunder, under the Note and under the Loan Agreement. The Issuer covenants that, so long as the Note shall remain unpaid, it will appropriate in its annual budget and by amendment, if required, from Non Ad Valorem Revenues in each fiscal year, amounts sufficient, together with the other Pledged Revenues, to pay the principal of and interest on the Note as the same shall become due. In the event that the amount previously budgeted for such purpose is at any time insufficient to pay principal and interest on the Note, the Issuer covenants to take immediate action to amend the budget for such fiscal year so as to budget and appropriate an amount sufficient from Non Ad Valorem Revenues to pay such debt service on the Note. Such covenants to budget and appropriate from Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such Non Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay debt service on the Note. The Issuer further covenants that the obligation of the Issuer to include the amount of any principal and interest on the Note in each of its annual budgets or amendments thereto and to pay such deficiencies from Non Ad Valorem Revenues so long as the Note is outstanding are entered into for the benefit of the Owners and maybe enforced by them in any court of competent jurisdiction. Notwithstanding the foregoing covenants, the Issuer does not covenant to maintain any services or programs now provided or maintained by the Issuer 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 Issuer from pledging in the future its Non Ad Valorem Revenues to indebtedness other than the Note, nor does it require the Issuer to levy and collect any particular Non Ad Valorem Revenues, nor does it give the Owners a prior claim on the Non Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. However, the covenants to budget and appropriate in its general annual budget or amendments thereto for the purposes and in the manner stated herein shall have the effect of making available for payment of the Note the Non Ad Valorem Revenues of the Issuer, and of placing on the Issuer a positive duty to appropriate and budget. by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which provides that the governing body of each municipality may not make appropriations for each fiscal year which, in any one year, which exceed the amount to be received from taxation or other revenue sources and which makes it unlawful for any officer of any municipal government to draw money from the treasury except in pursuants of an appropriation made by law. The Issuer covenants that for so long as the Note shall remain unpaid, it will continue to impose the Public Service Tax up to the maximum rate permitted by law, so as to produce Public Service Tax Revenues in each fiscal year of the Issuer which, together with any Designated Revenue received in such fiscal year at least equal to the principal of and interest due on the Note in such fiscal year. The Borrower may incur additional indebtedness payable from the Public Service Tax Revenues and any Designated Revenues and secured thereby on parity with the Note if, but only if, the amount of Public Service Tax Revenues and any Designated Revenues received by the Issuer during the most recently concluded fiscal year for which audited financial statements of the Issuer are available were at least 150% of the maximum amount of principal and interest scheduled to become due on the Note and any such additional indebtedness in the then current or any future fiscal year of the Issuer. In the event the Issuer proposed to incur any additional debt which bears a variable rate of interest, if such indebtedness is to be secured as aforesaid, the proceedings authorizing the issuance of such indebtedness must establish a maximum interest rate which maybe borne by such indebtedness, and in performing the calculation of the maximum principal and interest which may be due upon such additional indebtedness, such maximum interest rate shall be used. Section 8. Compliance with Tax Requirements. The Issuer hereby covenants and agrees, for the benefit of the Owners from time to time of the Note, to comply with the requirements applicable to it contained in Section 103 and Part N of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest on the Note from gross income of the Owners for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the Issuer covenants and agrees: (1) to pay to the United States of America from any legally available funds, at the times required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non-purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Note, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; 4 (3) to refrain from using proceeds of the Note in a manner that would cause the Note to be classified as a private activity bond under Section 141(a) of the Code; and (4) to refrain from taking any action or omitting to take any action if such action or omission would cause the Note to become an arbitrage bond under Section 103(b) and Section 148 of the Code. The Issuer understands that the foregoing covenants impose continuing obligations on the Issuer to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. - The Issuer agrees that it will cooperate with the Owner at the written request of the Owner in providing the Owner any evidence necessary to establish the continuing tax-exempt status of the Note. Section 9. Loan Agreement. The Loan Agreement between the Issuer and the Original Purchaser in substantially the form attached hereto as Exhibit B is hereby approved, with such changes as may be approved by the officials of the Issuer executing the same such approval to be conclusively established by such execution, and the Mayor and Clerk are authorized and directed to execute the same on behalf of the Issuer, and when executed, the Loan Agreement shall constitute a part of this Resolution the same as if set forth herein in its entirety. Section 10. Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Note except with the written consent of the Owner of the Note. Section 11. Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note is intended or shall be construed to give to any Person other than the Issuer and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Owner. Section 12. Note Mutilated, L~estroved, Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated bond, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably satisfactory to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so surrendered shall be cancelled. Section 13. Impairment of Contract. The Issuer covenants with the Owner of the Note that it will not, without the written consent of the Owner of the Note, enact any ordinance or resolution which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 14. Remedies of Noteholder. Should the Issuer default in any obligation created by this Resolution, the Loan Agreement or the Note, the Owner of the Note may, in addition to any other remedies set forth in this Resolution, the Loan Agreement or the Note, either at law or in equity, by suit, action, • mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted or contained in this Resolution, the Loan Agreement or the Note and may enforce and compel the performance of all duties required by this Resolution, the Loan Agreement or the Note or by any applicable statutes to be performed by the Issuer or by any officer thereof. Section 15. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 16. Business Days. In any case where the due date of interest on or principal of the Note is not a Business Day, then payment of principal or interest need not be made on such date but maybe made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owner. Credit for payments of principal and interest on the Note received after 1:00 p.m. on a Business Day shall notbe given until the next succeeding Business Day and interest shall continue to accrue. Section 17. A~ulicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 18. Rules of Interpretation. Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 19. Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. Section 20. Limited Liability of Issuer. It is hereby expressly made a condition of this Resolution and of the Note that any agreements or representations herein or therein contained or contained in the documents and instruments executed in connection therewith do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer and in the event of a breach of any agreement, covenant or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Nothing contained in this Section 20, however, shall relieve the Issuer from the observance and performance of the several covenants and agreements on its part herein contained. Section 21. Officers and Employees of the Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution, the Note, or the Loan Agreement or for any claim based thereon or otherwise in respect thereof, shall be had against any Councilmember of the Issuer, or any officer, agent or employee, as such, of the Issuer past, present or future, either directly or through the Issuer whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood (a) that the obligation of the Issuer under this Resolution is solely a corporate one, limited as provided in the preceding Section 20, (b) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the Councilmember of the Issuer, or the officers, agents, or employees, as such, of the Issuer, or any of them, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (c) that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such Councilmember of the Issuer, and every officer, agent, or employee, as such, of the Issuer under or by reason of the obligations, covenants or agreements contained in this 6 • Resolution, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Note on the part of the Issuer. Section 22. Authorizations. The Mayor and any Councilmember, and such other officials and employees of the Issuer as may be designated by the Mayor are each designated as agents of the Issuer in connection with the issuance and delivery of the Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Issuer that are necessary or desirable in connection with the execution and delivery of the Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 23. Section 265 Designation Note. The reasonably anticipated amount of tax-exempt obligations (other than obligations described in Clause (ii) of Section 265(b)(3)(C) of the Code) which have been or will be issued by the Issuer during 2002 does not exceed $10,000,000 (for this purpose only $4,400,535.17 principal amount of the Issuer's Promissory Note dated January 11, 2002 is counted against the $10,000,0001imit). The Issuer hereby designates the Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The Issuer hereby covenants and agrees not to take any action or to fail to take any action if such action or failure would cause the Note to no longer be a "qualified tax-exempt obligation." Section 24. Other Indebtedness. Subject to Section 7 hereof, the Issuer may at any time or from time to time issue evidence of indebtedness that is payable in whole or in part out of the Non Ad Valorem Revenues, and which may be secured by a pledge of any of the Non Ad Valorem Revenues, provided that the Issuer will not issue any such indebtedness if it would adversely affect the ability of the Issuer to meet its obligations hereunder. Section 25. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 26. Effective Date. This Resolution shall take effect immediately upo/n its adoption. THE FOREGOING RESOLUTION was offered by Councilmember ~ who moved its adoption. The motion was seconded by Councilmember ,and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION V~ ~~~~ 7 The Mayor thereupon declared the Resolution duly passed and adopted this 12th day of September, 2002.> Mayor of Tequesta • • • • • TIME OF CLOSING The closing was held September 13, 2002 (the "Closing Date"). LIST OF CLOSING DOCUMENTS 1. Certified copy of Resolution 79- 01/02 adopted by the Village Council on September 12, 2002 authorizing the issuance of the Note. 2. General Certificate of the Issuer. 3. Loan Agreement. 4. Notice of Sale sent to Division of Bond Finance. 5. Receipt for the Note. 6. State of Florida Division of Bond Finance Form BF-2003BF-2004-B and Letter of Transmittal. 7. Certificate as to Arbitrage and Other Tax Matters. 8. Form 8038-G and Transmittal Letter. 9. Disclosure Statement of Bank. 10. Opinion of Bank Counsel. 11. Opinion of Village Counsel. 12. Copy of Note. 13. Funding Instruction Letter. Transcripts. Six (6) complete transcripts are to be prepared for distribution as follows: 2 - Village of Tequesta 1 - Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 2 - Bank of America, N.A. 1 - John C. "Skip" Randolph 1 - Ward, Damon & Posner • CERTIFICATE OF TRUE COPY I, the undersigned Village Clerk ofthe Village ofTequesta, Florida, DO HEREBY CERTIFY that attached hereto is a true and correct copy of Resolution 79-01/02 duly adopted September 12, 2002, and that such resolution remains in force and has not been amended. IN WITNESS WHEREOF, I have hereunto set my hand as of the 13th day of September, 2002. By: ° ~G ~~ Village Cle • $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE GENERAL CERTIFICATE OF THE ISSUER We, the undersigned Mayor (the "Mayor") and Village Clerk ("Clerk") of the Village of Tequesta, Florida (the "Issuer"), DO HEREBY CERTIFY as follows: 1. We are the qualified and acting Mayor and Village Clerk of the Issuer. 2. All of the members being Geraldine Genco, Mayor, Joseph Capretta, Vice-Mayor, Basil Dalack, Russel von Frank and Edward Resnik of the Village Council have duly filed their oaths of office and such of them as are required by law to file bonds or undertakings have duly filed such bonds or undertakings in the amount and mariner required by law. 3. The Mayor has signed the Issuer's $5,000,000 Promissory Note dated September 13, 2002 (the "Note") by her manual signature, and the manual signature appearing on the Note and the manual signature at the end of this certificate are each the true and lawful signature of the Mayor. i 4. The seal of the Issuer was impressed upon the Note, and attested by the manual signature of the Clerk. Such seal and signature appearing on the Note and the manual signature of the Clerk and the impression of the seal of the Issuer at the end of this certificate constitute the true and lawful seal of the Issuer and the signature of the Clerk, respectively. 5. The Note, as executed and delivered, is in the form approved by the Village Council in Resolution 79-01/02 (the "Resolution"). 6. The Issuer has authorized by all necessary action the adoption and due performance of the Resolution and the execution, delivery and due performance of the Note and, to the best of our knowledge, any and all such other agreements and documents as maybe required to be executed, delivered and received by the Issuer to carry out, give effect to and consummate the transactions contemplated by the Resolution. 7. No litigation is pending or, to our knowledge, threatened, in or before any agency, court or tribunal, state or federal (i) to restrain or enjoin the issuance, delivery or validity of the Note or (ii) in any way contesting or affecting the validity of the Note, the Resolution or the application of the proceeds of the Note, or (iii) contesting the power of the Issuer or any authority for the issuance of the Note or the adoption of the Resolution or the approval, execution, validity, or enforceability of any agreements with respect thereto, or (iv) contesting the tax-exempt status of interest on the Note. • 8. No litigation is pending or, to our knowledge, threatened, (i) against the Issuer or involving any of the property, assets or operations under the control of the Issuer which involves the • possibility that a judgment or liability, not fully covered by insurance or adequate established reserves, maybe entered or imposed against the Issuer or which may result in any material adverse change in the business, properties, assets or in the condition, financial or otherwise, of the Issuer, and (ii) which would reasonably be anticipated to have a material and adverse effect upon the security provided for the Note pursuant to the Resolution. 9. No litigation is pending or, to our knowledge, threatened to contest the creation, organization, existence or corporate powers of the Issuer, or of the Village Council, or the title to office of its present members, or the members at any time material to the issuance of the Note, or of any other officer of the Issuer. 10. The execution, delivery, receipt and due performance of the Note and any other agreements contemplated by the Resolution, under the circumstances contemplated thereby and the Issuer's compliance with the provisions thereof (i) to the best of our knowledge will not conflict with or constitute on the Issuer's part a breach of or a default under any existing constitutional provision, law, court or administrative regulation, decree or order or (ii) will not conflict with or constitute on the Issuer's part a breach of or a default under any agreement, indenture, bond, note, lease or other instrument to which the Issuer is subject or by which the Issuer is or maybe bound, and to the best of our knowledge no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument, nor will such execution, delivery, adoption, 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 Issuer except as provided by the Note and the Resolution. 11. The undersigned have not, and to the best of their knowledge no members of the Village Council have, while meeting together with any other member or members of the Village Council other than at public meetings of the Village Council, reached any conclusion as to the actions taken by the Village Council with respect to the Resolution or the Note, the security therefor, or the application of the proceeds therefrom, or any other material matters with respect to the Resolution or the Note. 12. The undersigned do not, and to the best of their knowledge and belief no member of the Village Council does, have any employment or other relationship with Bank of America, N.A. which would violate the provisions of Section 112.3143, Florida Statutes, and each of the undersigned represents that the transaction contemplated by the Resolution will not enure to his or her special private gain, or to the best of his or her knowledge, the special private gain of another member of the Village Council, or the special private gain of a relative or business associate of the undersigned or any other member ofthe Village Council, all as defined in Section 112.3143, Florida Statutes, except as fully and fairly disclosed as required by Section 112.3143, Florida Statutes. 13. The Issuer has not been in default at any time after December 31,1975 as to principal or interest with respect to any obligations issued or guaranteed by the Issuer or a predecessor of the Issuer. 2 • 14. The Issuer hereby certifies that the interest rate on the Note does not exceed the maximum rate permitted pursuant to Section 215.84, Florida Statutes. IN WITNESS WHEREOF, we have hereunto set our hands and the official seal ofthe Issuer, and have indicated our respective official titles, all as of the 13th day of September, 2002. Signature Official Title Mayor C~" "~ Village Clerk (Official Seal) • • • LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of September 13, 2002, by and between the Village of Tequesta, Florida, a municipal corporation of the State of Florida (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns (the "Bank"); WHEREAS, the Village Council of the Issuer did on September 12, 2002, adopt a Resolution (the "Note Resolution") authorizing the borrowing by the Issuer of $5,000,000, and authorizing the execution and delivery by the Issuer of a promissory note (herein, the "Note") to evidence such borrowing for the purpose of providing funds, together with other funds of the Issuer to finance the Costs of Project (hereinafter defined), to refinance the Refinanced Note (hereinafter defined) and pay costs of issuing the Note; and WHEREAS, the Note shall be issued pursuant to the terms and provisions of the Note Resolution and this Agreement; and WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Note Resolution. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and inconsideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFII~TITION OF TERMS Section 1.01 Definitions. The words and terms used in this Agreement shall have the meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined herein. Unless the context shall otherwise require, the following words and terms as used in this Agreement shall have the following meanings: "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Event of Default" shall mean an event of default specified in Article VI of this Agreement. "Loan" shall mean the outstanding principal amount of the Note issued hereunder. "Loan Documents" shall mean this Agreement, the Note, the Note Resolution, and all other documents, agreements, certificates, schedules, notes, statements, and opinions, however described, referenced herein or executed or delivered pursuant hereto or in connection with or arising with the Loan or the transaction contemplated by this Agreement. "Noteholder" shall mean the Bank as the holder of the Note, or any other registered holder of the Note. Section 1.02 Interpretation. Unless the context clearly requires otherwise, words of masculine • gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. . Section 1.03 Titles and Headings. The titles and headings of the articles and sections of this Agreement 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 OF ISSUER Subject to the Note Resolution, the Issuer represents and warrants to the Bank that: Section 2.01 Powers of Issuer. The Issuer is a municipal corporation duly organized and validly existing under the laws of the State of Florida. The Issuer has the power to borrow the amount provided for in this Agreement, to execute and deliver the Note and this Agreement, to secure the Note in the manner contemplated hereby and by the Note Resolution, and to perform and observe all the terms and conditions of the Note and this Agreement on its part to be performed and observed. The Issuer may lawfully issue the Note. Section 2.02 Authorization of Loan. The Issuer has and had, as the case maybe, full legal right, power, and authority to adopt the Note Resolution and to execute and deliver this Agreement, to issue, sell, and deliver the Note to the Bank, and to carry out and consummate all other transactions contemplated by the Loan Documents, and the Issuer has complied with all provisions of applicable law in all material matters relating to such transactions. The Issuer, by the Note Resolution, has duly authorized the borrowing of the • amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank provided for in this Agreement and to that end the Issuer warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Note. The Issuer has duly adopted the Note Resolution and authorized the execution, delivery, and performance of the Note and the Loan Agreement and the taking of any and all other such action as may be required on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated by the Loan Documents. The Note has been duly authorized, executed, issued and delivered to the Bank and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms and the terms of the Note Resolution, and is entitled to the benefits and security of the Note Resolution and this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Note or the execution and delivery of or the performance by the Issuer of its obligations under the Loan Documents have been obtained or made and any consents; approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 Agreements. The making and performing by the Issuer of this Agreement will not violate any provision of the Act, or any bond or note resolution of the Issuer, or any regulation, order or decree of any court, and will not result in a breach of any of the terms of any agreement or instrument to which the Issuer is a party or by which the Issuer is bound. The Loan Documents constitute legal, valid, and binding obligations of the Issuer enforceable in accordance with their respective terms. Section 2.04 Litigation, Etc. There are no actions or proceedings pending against the Issuer or affecting the Issuer which, either in any case or in the aggregate, might result in any material adverse change in the financial condition of the Issuer, or which questions the validity of this Agreement, the Note, or any of the other Loan Documents or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. The Issuer is not in default in any material respect under any agreement or other instrument to which it is a party or by which it may be bound. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. Subject to the Note Resolution, the Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of the Issuer hereunder or under any of the other Loan Documents remains unpaid or unperformed, as follows: a. Payment. The Issuer covenants that it shall duly and punctually pay the principal of the Note and the interest thereon at the dates and place and in the manner provided herein, in the Note Resolution and in the Note according to the true intent and meaning thereof. b. Use of Proceeds. The Issuer covenants that the proceeds from the Note will be used only for Costs of the Project or to pay interest due under the Note. c. Notice of Defaults. The Issuer shall immediately notify the Bank in writing upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and • the action being taken or proposed to be taken by the Issuer with respect thereto. d. Financial Reports. The Issuer will cause an audit to be completed of its books and accounts and shall furnish to the Bank audited year end financial statements of the Issuer certified by an independent certified public accountant to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer and the results of its operations and cash flows for the periods covered by the audit report, all in conformity with generally accepted accounting principles applied on a consistent basis. Such audited year end financial statements shall be provided to the Bank in no event later than 210 days after the last day of the subject fiscal year and, if earlier, within forty-five (45) days after such audited year end financial statements are received by the Issuer. Additionally, the Issuer will provide the Bank with its annual operating budget when accepted and approved by the Village Council of the Issuer. e. Maintenance of Existence. The Issuer covenants that it will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under the Loan Documents have been paid in full. f. Records. The Issuer agrees that any and all records of the Issuer with respect to the Project andfor the Loan Documents shall be open to inspection by the Bank or its representatives at all reasonable times at the offices of the Issuer. Section 3.02 Negative Covenants. The Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the • Loan Documents remain unpaid or unperformed, that: 3 • (a) The Issuer shall not alter, amend or repeal the Note Resolution, or take any action impairing the authority thereby or hereby given with respect to the issuance and payment of the Note, without prior written approval of the Noteholder. Section 3.03 Tax Covenants. (a) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Note, the Issuer shall comply with each requirement of the Code applicable to the Note. In furtherance of the covenant contained in the preceding sentence, the Issuer agrees to continually comply with the provisions of the Certificate as to Arbitrage and Other Tax Matters to be executed by the Issuer, at the time the Note is issued, as such certificate maybe amended from time to time (herein referred to as the "Tax Certificate"). (b) The Issuer shall not take or permit any action or fail to take any action which would cause the Note to be an "arbitrage bond" within the meaning of Section 148(a) of the Code. (c) Notwithstanding any other provision of the Note Resolution or this Agreement to the contrary, so long as necessary in order to maintain the exclusion from gross income of interest on the Note for federal income tax purposes, the covenants contained in this Section shall survive the payment of the Note and the interest thereon, including any payment or defeasance thereof. . Section 3.04. Miscellaneous Covenants and Representations. (a) The Issuer shall not loan money or make advances or other extensions of credit to other • persons or entities except agencies of the Issuer. (b) The Issuer shall not create or permit any mortgage or lien on any of its assets without the prior written consent of the Bank, which consent will not be unreasonably withheld. (c) The Issuer shall not dispose of any of its assets other than in the ordinary course of business. (d) The Issuer shall promptly inform the Bank of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (e) The Issuer shall maintain such liability, casualty and other insurance as is reasonable and prudent for similarly situated municipalities of the State and shall upon the request of the Bank, provide evidence of such coverage to the Bank. (f) The Issuer is, to the best of its knowledge in compliance with, and the Issuer shall comply with all applicable federal, state and local laws and regulatory requirements the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (g) In the event the Note or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Issuer shall pay such taxes or reimburse the Bank for any such taxes paid by it. • (h) For so long as the Note shall be Outstanding, the Issuer shall main a banking relationship with the Bank. 4 • Section 3.05. Automatic Payment Procedure. The Issuer hereby authorizes the Bank to automatically deduct from the Issuer's account with the Bank numbered 47800004798 or such successor account as may be designated by the Issuer the amount of any payment due from the Issuer to the Bank under the Loan Documents. If the funds in the account are insufficient to cover any payment, the Bank shall not be obligated to advance funds to cover the payment. At any time and for any reason, the Issuer or the Bank may voluntarily terminate the automatic payments provided for herein by written notice delivered to the other. ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Representations and Warranties. The representations and warranties set forth in the Loan Documents are true and correct to the best of the Issuer's knowledge on and as of the date hereof and on and as of the date of each Advance under the Note. Section 4.02 No Default. On the date hereof and on and as of the date of each Advance under the Note, the Issuer shall be in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03 Delivery of Loan Documents. All Loan Documents in form and substance • acceptable to the Bank shall have been executed and delivered to the Bank. Section 4.04 Supporting Documents. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in form and substance to the Bank: (a) The opinion of the attorney for the Issuer regarding the due authorization, execution, delivery, validity and enforceability of this Agreement, the Note and the due adoption of the Note Resolution (enforceability maybe subject to standard bankruptcy exceptions and the like). (b) The opinion ofMoyle, Flanigan, Katz, Raymond & Sheehan, P.A., regarding, or to the effect that, (i) the due authorization, execution, delivery, validity, and enforceability of the Agreement and the Note and the due adoption and enforceability of the Note Resolution (enforceability of such instruments maybe subject to standard bankruptcy exceptions and the like), (ii) the exclusion of interest on the Note from gross income for federal income tax purposes and designation of the Note as a "qualified tax-exempt obligation," (iii) that the Note is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code, (iv) interest on the Note is exempt from all present intangible personal property taxes imposed by the State of Florida and (v) the Note is a "qualified tax-exempt obligation" under Section 265 of the Code. (c) A certified copy of the Note Resolution; and (d) Such additional supporting documents as the Bank may reasonably request. • ARTICLE V THE LOAN; ISSUER'S OBLIGATION; THE NOTE Section 5.01 The Loan. The Bank hereby agrees to loan to the Issuer the amount of $5,000,000.00 to provide funds to finance certain of the Costs of the Project upon the tenors and conditions set forth in the Note Resolution and in this Agreement. The Issuer agrees to borrow and agrees to repay the amount of $5,000,000.00 upon the terms and conditions set forth in this Agreement. Section 5.02 Note Not to be Indebtedness of the Issuer or State. The Note, when delivered by the Issuer pursuant to the terms of this Agreement, shall not be or constitute a general obligation or indebtedness of the Issuer, or the State of Florida, or any political subdivision of the State of Florida, within the meaning of any Constitutional, statutory or other limitation of indebtedness, but shall be special obligation payable solely as herein provided. No Noteholder shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer to pay the Note or the interest thereon. None of the Loan Documents create a lien upon any facilities of the Issuer. Any agreements or representations herein or contained in any Loan Document do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer, and in the event of a breach of any agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Section 5.03 The Note. To evidence the Loan, the Issuer shall issue and deliver to the Bank the Note in the form attached to the Note Resolution. • ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Issuer shall default in any payment of the principal of, premium, if any, or the interest on the Loan when and as the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) the Issuer shall default in the performance of or compliance with any term or covenant contained in the Loan Documents, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with and for which a remedy is specifically provided herein, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Issuer by the Bank; or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of Article III of this Agreement, whichever is earlier; or (c) any representation or warranty made in writing by or on behalf of the Issuer or in any Loan Document shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or 6 • (e) 'The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in baxila-uptcy filed by or against the Issuer, or an order, j udgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Issuer, a receiver or trustee of the Issuer or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (f) The Issuer shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State of Florida; or ' (g) Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Issuer or the whole or any substantial part of its property, and such custody or control shall not be terminated within ninety (90) days from the date of assumption of such custody or control; or (h) The Issuer shall default in the due and punctual payment or performance of covenants under any obligation for the repayment of money. Section 6.02 Effect of Event of Default. (a) General. Upon the occurrence of any Event of Default, subj ect to the provisions of the Note Resolution, the Noteholder shall have and may exercise any or all of the rights set forth herein (which rights are in addition to and not in lieu of any other rights the Bank may have under applicable law) provided, however, the Noteholder shall be under no duty or obligation to do so. (b) Acceleration; Other Remedies. Immediately and without notice, upon the occurrence of any Event of Default, the Noteholder may declare all obligations of the Issuer under the Loan Documents to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable and no further Advances shall be required to be made by the Noteholder. Upon such declaration, the Noteholder may also seek enforcement of and exercise all remedies available to it under the Note Resolution, the Act and any other applicable law. ARTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder, or under the Note or other Loan Documents shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law or in equity. Section 7.02 Amendments, Changes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified without the prior written consent of (i) the Bank (provided the Bank • is a holder of a portion of the principal of the Note) or the Noteholders of at least fifty-one percent (51%) in aggregate principal amount of the Note and (ii) the Issuer. The Issuer agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in connection with modifying and/or amending this Agreement at the 7 • Issuer's request or behest, including costs and reasonable attorneys fees incurred in connection with any proposed modification or amendment requested by the Issuer, even if the Bank does not agree to the same. Section 7.03 Costs and Expenses. The Issuer agrees to pay the Bank's counsel a fee of $2,500.00 in connection with the preparation, execution and delivery of this Agreement, the Note and the Loan. The Issuer shall pay all costs and expenses it incurs in connection with the preparation, execution and delivery of the Agreement, the Note and the Loan and any other documents that may be prepared or delivered in connection with this Agreement. Section 7.04 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 7.05 Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. Section 7.06 Term of Agreement. Except as otherwise specified in this Agreement, this Agreement and all representations, warranties, covenants and agreements contained herein or made in writing by the Issuer in connection herewith shall be in full force and effect from the date hereof and shall continue in effect as long as the Note is outstanding. • Section 7.07 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to: If to the Issuer: JoAnn Forsythe Finance Director Village of Tequesta PO Box 3273 250 Tequesta Drive Tequesta, Florida 33469-0273 If to the Bank: Vanessa Civalero Vice President Bank of America, N.A. 625 No. Flagler Drive, 10th fl. West Palm Beach, FL 33401 with a copy to: Michael Posner • Ward, Damon & Posner 4420 Beacon Circle West Palm Beach, FL 33407 • or to such other address as either party may have specified in writing to the other using the procedures specified above in this Article VII, Section 7.07. Section 7.08 Apulicable Law. This Agreement, and each ofthe Loan Documents and transactions contemplated herein, shall be construed pursuant to and governed by the substantive laws of the State of Florida. Section 7.09 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Issuer shall have no rights to assign any of their rights or obligations hereunder without the prior written consent of the Bank. Section 7.10 Conflict. In the event any conflict arises between the terms of this Agreement and the terms of any other Loan Document, the Bank shall have the option of selecting which conditions shall govern the loan relationship evidenced by this Agreement and, if the Bank does not so indicate, the terms of this Agreement shall govern in all instances of such conflict. Section 7.11 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. Section 7.12 Attorneys Fees. To the extent legally permissible, the Issuer and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement, the Note, or the Note Resolution (including any trial(s), appeal(s)), or bankruptcy proceedings), the prevailing party shall be entitled to recover reasonable costs and attorneys' fees from the other party. Section 7.13 Entire Agreement. Except as otherwise expressly provided, this Agreement and the other Loan Documents embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. Section 7.14 Further Assurances. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects, for the purpose of carrying out the transactions contemplated by this Agreement. Section 7.15 Incorporation by Reference. All of the terms and obligations of the Note Resolution are hereby incorporated herein by reference as if said Note Resolution was fully set forth in this Agreement. Section 7.16 Arbitration and Waiver of Jur~rial. This Section 7.16 concerns the resolution of any controversies or claims between the Issuer and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any document related to thi s Agreement, including the Note and the Note Resolution (collectively a "Claim"). At the request of the Issuer or the Bank, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will apply even though this Agreement provides that it is governed by the law of a specified state. • Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof 9 • ("J.A.M.S."), and the terms of this Section 7.16. In the event of any inconsistency, the terms of this paragraph shall control. The arbitration shall be administered by J.A.M.S. and conducted in West Palm Beach, Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additiona160 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This Section 7.16 does not limit the right of the Issuer or the Bank to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Agreement. No provision in this Agreement or in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions of this Agreement or in any Loan Document for arbitration of any controversy or claim. • 10 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the Date of Execution set forth below. VILLAGE OF TEQUESTA, FLORIDA (SEAL) By: Titl a or By: Title: Clerk Date of Execution: September 13, 2002 BANK OF AMERICA, N.A. By: ~~'~ ~~J Title: Vice President Date of Execution: September 13, 2002 • 11 MOYLE, FLaIVIGAN, KATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW • 625 North Flagler Drive - 9`" Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 Ma.~ic E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com August 21, 2002 Tallahassee, FL (850) 681-3828 CERTIFIED MAIL RETURN RECEIPT REQUESTED AND VIA FACSIMILE Division of Bond Finance State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32317-3300 • RE: Village of Tequesta, Florida $5,000,000 Promissory Note Ladies and Gentlemen: Notice is hereby given of the impending issuance by Village of Tequesta, Florida (the "Issuer") of the above-referenced Note (the "Note") in the estimated principal amount set forth above. The Issuer expects to deliver the Note on or about September 13, 2002. Sincerely, MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. Mazk E. Raymond MER/wp • LJ $5,000,000 VILLAGE OF TEQLTESTA, FLORIDA PROMISSORY NOTE RECEIPT FOR NOTE Bank of America, N.A. (the "Bank"), DOES HEREBY ACKNOWLEDGE receipt from Village of Tequesta, Florida of the Village's Promissory Note, dated September 13, 2002, in the aggregate principal amount of $5,000,000. DATED the 13th day of September, 2002. BANK OF AMERICA, N.A. By: VU 1.~~ Its Authorized Representative :7 • MOYLE, FLANIGAN, KATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW • 625 North Flagler Drive - 9"' Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARK E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com September 13, 2002 Division of Bond Finance State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32317-3300 RE: Village of Tequesta, Florida $5,000,000 Promissory Note Ladies and Gentlemen: Tallahassee, FL (850) 681-3828 CERTIFIED MAIL RETURN RECEIPT REQUESTED Enclosed herewith please find Form BF-2003/2004-B for the above-referenced financing. No disclosure document was used for this financing. If you would like any further information in regard to this matter, please do not hesitate to call. Very truly yours, Mark E. Raymond MER/wp • STATE OF FLORIDA DIVISION OF BOND FINANCE LOCAL BOND MONITORING SECTION This form represents an update and compilation of the BF2003, BF2004-A and BF2004-B forms. * Bond Information forms (BF2003) are required to be completed by local governments pursuant to Chapter 19A-1.003, Florida Administrative Code (F.A.C.). * Bond Disclosure forms BF2004-A (Competitive Sale) or BF2004-B (Negotiated Sale) as required to be filed with the Division within 120 days of the delivery of the issue pursuant to Sections 218.38(1)(b)1 and 218.38(1)(c)1, Florida Statutes (F.S.), respectively. * Final Official Statements, if prepared, are required to be submitted pursuant to Section 218.38(1), F.S. * Please complete all items applicable to the issuer as provided by the Florida Statutes. * PURSUANT TO SECTION 218.369, F.S., ISSUERS OF BOND ANTICIPATION NOTES ARE SXSMPT FROM THESE FILING REQUIREMENTS. BF2003 BOND INFORMATION FORM PART I. ISSIIER INFORMATION 1. NAME OF GOVERNMENTAL UNIT: Village of Teguesta Florida 2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER: 357 Teguesta Drive, Tecruesta Florida 33469 3. COUNTY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION: Palm Beach . 4. TYPE OF ISSUER: COUNTY X CITY AUTHORITY _ INDEPENDENT SPECIAL DISTRICT DEPENDENT SPECIAL DISTRICT SPECIFY OTHER PART II. BOND ISSIIS INFORMATION 1. NAME OF BOND ISSUE: Promissory Note 2. AMOUNT ISSUED: $ 5,000,000 3. AMOUNT AUTHORIZED: $5,000,000 4. DATED DATE: 9/13/02 5. SALE DATE: 9/13/02 6. DELIVERY DATE: 9/13/02 7. LEGAL AUTHORITY FOR ISSUANCE: FLORIDA STATUTES Ch. 166 SPECIAL ACTS OTHER 8. TYPE OF ISSUE: GENERAL OBLIGATION SPECIAL ASSESSMENT SPECIAL OBLIGATION X REVENUE _COP(CERTIFICATE OF PARTICIPATION) -LEASE-PURCHASE -BANK LOAN/LINE OF CREDIT 9. A. IS THIS A PRIVATE ACTIVITY BOND (PAB)? YES X NO B. 1. IF YES, DID THIS ISSUE RECEIVE A PAB ALLOCATION? YES NO 2. IF YES, AMOUNT OF ALLOCATION: $ 10. SPECIFIC REVENUE(S) PLEDGED: (1) PRIMARY Lawfully available non-ad valorem revenues (2) SECONDARY Public Service Tax Revenue • (3) OTHER(S) 1 • 11. A. PURPOSE(S) OF THE ISSUE: (1) PRIMARY Construct public safety facility (2) SECONDARY Refunding (3) OTHER(S) B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING: (1) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR ~~pr.UE (PRINCIPAL AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT REFUNDED. Promissory Note; 1/11/02• $6 0.00 000• $1 802,546.37 (2) REFUNDED DEBT HAS BEEN: X RETIRED OR _DEFEASED (3) A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? -YES _NO B. IF YES, APPROXIMATELY WHAT PERCENT OF PROCEEDS IS NEW MONEY? ~ 12. TYPE OF SALE: COMPETITIVE BID NEGOTIATED X NEGOTIATED PRIVATE PLACEMENT 13. BASIS OF INTEREST RATE CALCULATION, I.E., INTEREST RATE USED TO STRUCTURE THE BOND ISSUE: NET INTEREST COST RATE (NIC) ~ TRUE INTEREST COST RATE (TIC) 4.28 ~ CANADIAN INTEREST COST RATE (CIC) $ ARBITRAGE YIELD (ARBI) ~ SPECIFY OTHER: 14. INSURANCE/ENHANCEMENTS: _AGIC _AMBAC _CGIC _CLIC _FGIC _FSA -HUD _MBIA _NGM _LOC(LETTER OF CREDIT) SPECIFY OTHER X NOT INSIIRSD 15. RATING(S):_MOODY'S _S&P _FITCH _DUFF&PHELPS SPECIFY OTHER X NOT RATFsD 16. DEBT SERVICE SCHEDULE: ATTACH COMPLETE COPY OF SCHEDULE PROVIDING THE FOLLOWING INFORMATION: MATURITY DATES (MO/DAY/YR) COUPON/INTEREST RATES ANNUAL INTEREST PAYMENTS PRINCIPAL (PAR VALUE) PAYMENTS MANDATORY TERM AMORTIZATION 17. LIST OR ATTACH OPTIONAL REDEMPTION PROVISIONS: May be prepaid at any time, in whole or in part at par 18. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER. Bank of America, N.A. 625 i3orth Flagler Drive West Palm Beach. Florida 33401 • 2 19. PROVIDE THE NAME(S) AND ADDRESS(ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE. NO BOND COIINSEL X NO FINANCIAL ADVISOR NO OTHER PROFESSIONALS BOND COUNSEL (S) Mark Raymond Esa. Moyle, Flanigan, Katz et al. 625 North Flagler Drive - 9th Floor West Palm Beach, FL 33401 FINANCIAL ADVISOR(S)/CONSULTANT(S): OTHER PROFESSIONALS: John Randolph City Attorney 505 South Flagler Drive; lit° Floor West Palm Beach. FL 33401 20. PAYING AGENT 21. REGISTRAR _ X NO PAYING AGENT X NO REGISTRAR 22. COMMENTS: None PART III. RESPONDENT INFORMATION FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT: Name and Title Mark E. Raymond, Bond Counsel Phone 561-B22-0380 Company Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. INFORMATION RELATING TO PARTY COMPLETING THIS FORM (If different from above): Name and Title Phone Company Date Report Submitted 9/13/02 BF2004-A and BF2004-B Note: THE FOLLOWING ITEMS ARE REQUIRED TO BE COMPLETED IN FULL FOR ALL BOND ISSUES EXCEPT THOSE SOLD PURSUANT TO SECTION 154 PART III; SECTIONS 159 PARTS II, III OR V; OR SECTION 243 PART II, FLORIDA STATUTES. 23. ANY FEE, BONUS, OR GRATUITY PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY SUCH UNDERWRITER OR CONSULTANT: X NO FEE, BONUS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTANT (1) COMPANY NAME FEE PAID: $ (2) FEE • (3) FEE (4) FEE COMPANY NAME PAID: $ COMPANY NAME PAID: $ COMPANY NAME PAID: S SERVICE PROVIDED or FUNCTION SERVED: SERVICE PROVIDED or FUNCTION SERVED: SERVICE PROVIDED or FUNCTION SERVED: SERVICE PROVIDED or FUNCTION SERVED: 3 24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE, INCLUDING ARTY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS: NO FEES PAID BY ISSUER (1) COMPANY NAME Moyle Flanigan Katz Raymond & Sheehan, P.A. FEE PAID: $5,000.00 SERVICE PROVIDED or FUNCTION SERVED: Bond Counsel (2) COMPANY NAME Ward Damon & Posner FEE PAID:S2,500.00 SERVICE PROVIDED or FUNCTION SERVED: Bank Counsel (3) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (4) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: PLEASE PROVIDE THE SIGNATURE OF EITHER THE CHIEF EXECUTIVE OFFICER OF THE GOVERNING BODY OF THE UNIT OF LOCAL GOVERNMENT OR THE GOVE NTAL OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING THS ISSUANCE TH B S: NAME (Typed/Printed:): JoAnn Forsythe SIGNATURE: TITLE: Finance Director 13 02 BF2004-B ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE 25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $ PER THOUSAND PAR VALUE. OR PRIVATE PLACEMENT FEE: $ X NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE 26. UNDERWRITER'S EXPECTED GROSS SPREAD: $ PER THOUSAND PAR VALUE. X NO GROSS SPREAD PART IV. RETDRN THIS FORM AND THE FINAL OFFICIAL STATEMENT, IF ONE WAS PREPARED TO: Courier Deliveries: Mailing Address: Division of Bond Finance Division of Bond Finance State Board of Administration State Board of Administration 1801 Hermitage Blvd., Suite 200 P.O. Drawer 13300 Tallahassee, FL 32308 Tallahassee, FL 32317-3300 Phone: 904/488-4782 FAX: 904/413-1315 REVISED Feb. 1997/bf0304 4 MUNICIPAL AMORTIZATION (FIXED MONTHLY PAYMENT) AMOUNT OF PAYMENT: $31,041.79 PAYMENT INTEREST PRINCIPAL INTEREST PAID REMAINING AMOUNT OF TOTAL PMTS NUMBER PAYMENT PAYMENT TO DATE BALANCE THIS PAYMENT YEARLY INPUT: AMOUNT: $5,000,000 FIXED INTEREST RATE: 4.28% NUMBER OF AMORTIZED PAYMENTS: 240 Beginning Balance........ ............... ............... $ 5,000,000.00 N!A 1 $ 17,833.33 $ 13,208.46 $ 17,833.33 $ 4,986,791.54 $ 31,041.79 2 $ 17,786.22 $ 13,255.57 $ 35,619.56 $ 4,973,535.98 $ 31,041.79 3 $ 17,738.94 $ 13,302.84 $ 53,358.50 $ 4,960,233.13 $ 31,041.79 4 $ 17,691.50 $ 13,350.29 $ 71,050.00 $ 4,946,882.84 $ 31,041.79 5 $ 17,643.88 $ 13,397.91 $ 88,693.88 $ 4,933,484.93 $ 31,041.79 6 $ 17,596.10 $ 13,445.69 $ 106,289.98 $ 4,920,039.24 $ 31,041.79 7 $ 17,548.14 $ 13,493.65 $ 123,838.12 $ 4,906,545.59 $ 31,041.79 8 $ 17,500.01 $ 13,541.78 $ 141,338.13 $ 4,893,003.81 $ 31,041.79 9 $ 17,451.71 $ 13,590.08 $ 158,789.84 $ 4,879,413.74 $ 31,041.79 10 $ 17,403.24 $ 13,638.55 $ 176,193.09 $ 4,865,775.19 $ 31,041.79 11 $ 17,354.60 $ 13,687.19 $ 193,547.68 $ 4,852,088.00 $ 31,041.79 12 $ 17,305.78 $ 13,736.01 $ 210,853.47 $ 4,838,351.99 $ 31,041.79 $ 372,501.48 13 $ 17,256.79 $ 13,785.00 $ 228,110.25 $ 4,824,566.99 $ 31,041.79 14 $ 17,207.62 $ 13,834.17 $ 245,317.88 $ 4,810,732.82 $ 31,041.79 15 $ 17,158.28 $ 13,883.51 $ 262,476.16 $ 4,796,849.31 $ 31,041.79 16 $ 17,108.76 $ 13,933.03 $ 279,584.92 $ 4,782,916.28 $ 31,041.79 17 $ 17,059.07 $ 13,982.72 $ 296,643.99 $ 4,768,933.56 $ 31,041.79 18 $ 17,009.20 $ 14,032.59 $ 313,653.18 $ 4,754,900.97 $ 31,041.79 19 $ 16,959.15 $ 14,082.64 $ 330,612.33 $ 4,740,818.32 $ 31,041.79 20 $ 16,908.92 $ 14,132.87 $ 347,521.25 $ 4,726,685.45 $ 31,041.79 21 $ 16,858.51 $ 14,183.28 $ 364,379.76 $ 4,712,502.17 $ 31,041.79 22 $ 16,807.92 $ 14,233.87 $ 381,187.68 $ 4,698,268.31 $ 31,041.79 23 $ 16,757.16 $ 14,284.63 $ 397,944.84 $ 4,683,983.68 $ 31,041.79 24 $ 16,706.21 $ 14,335.58 $ 414,651.05 $ 4,669,648.09 $ 31,041.79 $ 372,501.48 25 $ 16,655.08 $ 14,386.71 $ 431,306.13 $ 4,655,261.38 $ 31,041.79 26 $ 16,603.77 $ 14,438.02 $ 447,909.89 $ 4,640,823.36 $ 31,041.79 27 $ 16,552.27 $ 14,489.52 $ 464,462.16 $ 4,626,333.84 $ 31,041.79 28 $ 16,500.59 $ 14,541.20 $ 480,962.75 $ 4,611,792.64 $ 31,041.79 29 $ 16,448.73 $ 14,593.06 $ 497,411.48 $ 4,597,199.58 $ 31,041.79 30 $ 16,396.68 $ 14,645.11 $ 513,808.16 $ 4,582,554.46 $ 31,041.79 31 $ 16,344.44 $ 14,697.35 $ 530,152.60 $ 4,567,857.12 $ 31,041.79 32 $ 16,292.02 $ 14,749.77 $ 546,444.63 $ 4,553,107.35 $ 31,041.79 33 $ 16,239.42 $ 14,802.37 $ 562,684.04 $ 4,538,304.98 $ 31,041.79 34 $ 16,186.62 $ 14,855.17 $ 578,870.67 $ 4,523,449.81 $ 31,041.79 35 $ 16,133.64 $ 14,908.15 $ 595,004.30 $ 4,508,541.66 $ 31,041.79 36 $ 16,080.47 $ 14,961.32 $ 611,084.77 $ 4,493,580.33 $ 31,041.79 $ 372,501.48 37 $ 16,027.10 $ 15,014.69 $ 627,111.87 $ 4,478,565.65 $ 31,041.79 38 $ 15,973.55 $ 15,068.24 $ 643,085.42 $ 4,463,497.41 $ 31,041.79 39 40 $ $ 15,919.81 15,865.87 $ $ 15,121.98 15,175.92 $ $ 659,005.23 674,871.10 $ $ 4,448,375.43 4,433,199.51 $ $ 31,041.79 31,041.79 41 $ 15,811.74 $ 15,230.04 $ 690,682.85 $ 4,417,969.46 $ 31,041.79 42 $ 15,757.42 $ 15,284.37 $ 706,440.27 $ 4,402,685.10 $ 31,041.79 • 43 $ 15,702.91 $ 15,338.88 $ 722,143.18 $ 4,387,346.22 $ 31,041.79 44 $ 15,648.20 $ 15,393.59 $ 737,791.38 $ 4,371,952.63 $ 31,041.79 45 $ 15,593.30 $ 15,448.49 $ 753,384.68 $ 4,356,504.14 $ 31,041.79 46 $ 15,538.20 $ 15,503.59 $ 768,922.88 $ 4,341,000.55 $ 31,041.79 47 $ 15,482.90 $ 15,558.89 $ 784,405.78 $ 4,325,441.66 $ 31,041.79 48 $ 15,427.41 $ 15,614.38 $ 799,833.19 $ 4,309,827.28 $ 31,041.79 $ 372,501.48 49 $ 15,371.72 $ 15,670.07 $ 815,204.91 $ 4,294,157.20 $ 31,041.79 50 $ 15,315.83 $ 15,725.96 $ 830,520.73 $ 4,278,431.24 $ 31,041.79 51 $ 15,259.74 $ 15,782.05 $ 845,780.47 $ 4,262,649.19 $ 31,041.79 52 $ 15,203.45 $ 15,838.34 $ 860,983.92 $ 4,246,810.85 $ 31,041.79 53 $ 15,146.96 $ 15,894.83 $ 876,130.88 $ 4,230,916.02 $ 31,041.79 54 $ 15,090.27 $ 15,951.52 $ 891,221.15 $ 4,214,964.50 $ 31,041.79 55 $ 15,033.37 $ 16,008.42 $ 906,254.52 $ 4,198,956.08 $ 31,041.79 56 $ 14,976.28 $ 16,065.51 $ 921,230.80 $ 4,182,890.57 $ 31,041.79 57 $ 14,918.98 $ 16,122.81 $ 936,149.77 $ 4,166,767.75 $ 31,041.79 58 $ 14,861.47 $ 16,180.32 $ 951,011.25 $ 4,150,587.43 $ 31,041.79 59 $ 14,803.76 $ 16,238.03 $ 965,815.01 $ 4,134,349.41 $ 31,041.79 60 $ 14,745.85 $ 16,295.94 $ 980,560.85 $ 4,118,053.46 $ 31,041.79 $ 372,501.48 61 $ 14,687.72 $ 16,354.07 $ 995,248.58 $ 4,101,699.40 $ 31,041.79 62 $ 14,629.39 $ 16,412.40 $ 1,009,877.97 $ 4,085,287.00 $ 31,041.79 63 $ 14,570.86 $ 16,470.93 $ 1,024,448.83 $ 4,068,816.07 $ 31,041.79 64 $ 14,512.11 $ 16,529.68 $ 1,038,960.94 $ 4,052,286.39 $ 31,041.79 65 $ 14,453.15 $ 16,588.64 $ 1,053,414.09 $ 4,035,697.75 $ 31,041.79 66 $ 14,393.99 $ 16,647.80 $ 1,067,808.08 $ 4,019,049.95 $ 31,041.79 67 $ 14,334.61 $ 16,707.18 $ 1,082,142.69 $ 4,002,342.77 $ 31,041.79 68 $ 14,275.02 $ 16,766.77 $ 1,096,417.72 $ 3,985,576.01 $ 31,041.79 69 $ 14,215.22 $ 16,826.57 $ 1,110,632.94 $ 3,968,749.44 $ 31,041.79 70 $ 14,155.21 $ 16,886.58 $ 1,124,788.14 $ 3,951,862.85 $ 31,041.79 71 $ 14,094.98 $ 16,946.81 $ 1,138,883.12 $ 3,934,916.04 $ 31,041.79 72 $ 14,034.53 $ 17,007.26 $ 1,152,917.66 $ 3,917,908.79 $ 31,041.79 $ 372,501.48 73 $ 13,973.87 $ 17,067.92 $ 1,166,891.53 $ 3,900,840.87 $ 31,041.79 74 $ 13,913.00 $ 17,128.79 $ 1,180,804.53 $ 3,883,712.08 $ 31,041.79 75 $ 13,851.91 $ 17,189.88 $ 1,194,656.44 $ 3,866,522.20 $ 31,041.79 76 $ 13,790.60 $ 17,251.19 $ 1,208,447.03 $ 3,849,271.00 $ 31,041.79 77 $ 13,729.07 $ 17,312.72 $ 1,222,176.10 $ 3,831,958.28 $ 31,041.79 78 $ 13,667.32 $ 17,374.47 $ 1,235,843.42 $ 3,814,583.81 $ 31,041.79 79 $ 13,605.35 $ 17,436.44 $ 1,249,448.77 $ 3,797,147.37 $ 31,041.79 80 $ 13,543.16 $ 17,498.63 $ 1,262,991.92 $ 3,779,648.74 $ 31,041.79 81 $ 13,480.75 $ 17,561.04 $ 1,276,472.67 $ 3,762,087.69 $ 31,041.79 82 $ 13,418.11 $ 17,623.68 $ 1,289,890.78 $ 3,744,464.02 $ 31,041.79 83 $ 13,355.25 $ 17,686.53 $ 1,303,246.04 $ 3,726,777.48 $ 31,041.79 84 $ 13,292.17 $ 17,749.62 $ 1,316,538.21 $ 3,709,027.86 $ 31,041.79 $ 372,501.48 85 $ 13,228.87 $ 17,812.92 $ 1,329,767.08 $ 3,691,214.94 $ 31,041.79 86 $ 13,165.33 $ 17,876.46 $ 1,342,932.41 $ 3,673,338.48 $ 31,041.79 87 $ 13,101.57 $ 17,940.22 $ 1,356,033.99 $ 3,655,398.27 $ 31,041.79 88 $ 13,037.59 $ 18,004.20 $ 1,369,071.57 $ 3,637,394.07 $ 31,041.79 89 $ 12,973.37 $ 18,068.42 $ 1,382,044.94 $ 3,619,325.65 $ 31,041.79 90 $ 12,908.93 $ 18,132.86 $ 1,394,953.87 $ 3,601,192.79 $ 31,041.79 91 $ 12,844.25 $ 18,197.54 $ 1,407,798.13 $ 3,582,995.25 $ 31,041.79 • 92 $ 12,779.35 $ 18,262.44 $ 1,420,577.48 $ 3,564,732.81 $ 31,041.79 93 $ 12,714.21 $ 18,327.58 $ 1,433,291.69 $ 3,546,405.23 $ 31,041.79 • 94 95 $ $ 12,648.85 12,583.24 $ $ 18,392.94 18,458.55 $ $ 1,445,940.54 1,458,523.78 $ $ 3,528,012.29 3,509,553.74 $ $ 31,041.79 31,041.79 96 $ 12,517.41 $ 18,524.38 $ 1,471,041.19 $ 3,491,029.36 $ 31,041.79 $ 372,501.48 97 $ 12,451.34 $ 18,590.45 $ 1,483,492.53 $ 3,472,438.91 $ 31,041.79 98 $ 12,385.03 $ 18,656.76 $ 1,495,877.56 $ 3,453,782.15 $ 31,041.79 99 $ 12,318.49 $ 18,723.30 $ 1,508,196.05 $ 3,435,058.85 $ 31,041.79 100 $ 12,251.71 $ 18,790.08 $ 1,520,447.76 $ 3,416,268.77 $ 31,041.79 101 $ 12,184.69 $ 18,857.10 $ 1,532,632.45 $ 3,397,411.67 $ 31,041.79 102 $ 12,1'17.43 $ 18,924.35 $ 1,544,749.88 $ 3,378,487.32 $ 31,041.79 103 $ 12,049.94 $ 18,991.85 $ 1,556,799.82 $ 3,359,495.47 $ 31,041.79 104 $ 11,982.20 $ 19,059.59 $ 1,568,782.02 $ 3,340,435.88 $ 31,041.79 105 $ 11,914.22 $ 19,127.57 $ 1,580,696.24 $ 3,321,308.31 $ 31,041.79 106 $ 11,846.00 $ 19,195.79 $ 1,592,542.24 $ 3,302,112.52 $ 31,041.79 107 $ 11,777.53 $ 19,264.26 $ 1,604,319.78 $ 3,282,848.26 $ 31,041.79 108 $ 11,708.83 $ 19,332.96 $ 1,616,028.60 $ 3,263,515.30 $ 31,041.79 $ 372,501.48 109 $ 11,639.87 $ 19,401.92 $ 1,627,668.48 $ 3,244,113.38 $ 31,041.79 110 $ 11,570.67 $ 19,471.12 $ 1,639,239.15 $ 3,224,642.26 $ 31,041.79 111 $ 11,501.22 $ 19,540.57 $ 1,650,740.37 $ 3,205,101.70 $ 31,041.79 112 $ 11,431.53 $ 19,610.26 $ 1,662,171.90 $ 3,185,491.44 $ 31,041.79 113 $ 11,361.59 $ 19,680.20 $ 1,673,533.49 $ 3,165,811.23 $ 31,041.79 114 $ 11,291.39 $ 19,750.40 $ 1,684,824.88 $ 3,146,060.84 $ 31,041.79 115 $ 11,220.95 $ 19,820.84 $ 1,696,045.83 $ 3,126,240.00 $ 31,041.79 116 $ 11,150.26 $ 19,891.53 $ 1,707,196.09 $ 3,106,348.46 $ 31,041.79 117 $ 11,079.31 $ 19,962.48 $ 1,718,275.40 $ 3,086,385.98 $ 31,041.79 118 $ 11,008.11 $ 20,033.68 $ 1,729,283.51 $ 3,066,352.30 $ 31,041.79 119 $ 10,936.66 $ 20,105.13 $ 1,740,220.16 $ 3,046,247.17 $ 31,041.79 120 $ 10,864.95 $ 20,176.84 $ 1,751,085.11 $ 3,026,070.33 $ 31,041.79 $ 372,501.48 121 $ 10,792.98 $ 20,248.81 $ 1,761,878.09 $ 3,005,821.52 $ 31,041.79 122 $ 10,720.76 $ 20,321.03 $ 1,772,598.86 $ 2,985,500.50 $ 31,041.79 123 $ 10,648.29 $ 20,393.50 $ 1,783,247.14 $ 2,965,106.99 $ 31,041.79 , 124 $ 10,575.55 $ 20,466.24 $ 1,793,822.69 $ 2,944,640.75 $ 31,041.79 125 $ 10,502.55 $ 20,539.24 $ 1,804,325.24 $ 2,924,101.51 $ 31,041.79 126 $ 10,429.30 $ 20,612.49 $ 1,814,754.54 $ 2,903,489.02 $ 31,041.79 127 $ 10,355.78 $ 20,686.01 $ 1,825,110.32 $ 2,882,803.01 $ 31,041.79 128 $ 10,282.00 $ 20,759.79 $ 1,835,392.31 $ 2,862,043.21 $ 31,041.79 129 $ 10,207.95 $ 20,833.84 $ 1,845,600.27 $ 2,841,209.38 $ 31,041:79 130 $ 10,133.65 $ 20,908.14 $ 1,855,733.91 $ 2,820,301.23 $ 31,041.79 131 $ 10,059.07 $ 20,982.72 $ 1,865,792.99 $ 2,799,318.52 $ 31,041.79 132 $ 9,984.24 $ 21,057.55 $ 1,875,777.22 $ 2,778,260.96 $ 31,041.79 $ 372,501.48 133 $ 9,909.13 $ 21,132.66 $ 1,885,686.36 $ 2,757,128.31 $ 31,041.79 134 $ 9,833.76 $ 21,208.03 $ 1,895,520.11 $ 2,735,920.27 $ 31,041.79 135 $ 9,758.12 $ 21,283.67 $ 1,905,278.23 $ 2,714,636.60 $ 31,041.79 136 $ 9,682.20 $ 21,359.59 $ 1,914,960.43 $ 2,693,277.01 $ 31,041.79 137 $ 9,606.02 $ 21,435.77 $ 1,924,566.45 $ 2,671,841.24 $ 31,041.79 138 $ 9,529.57 $ 21,512.22 $ 1,934,096.02 $ 2,650,329.02 $ 31,041.79 139 $ 9,452.84 $ 21,588.95 $ 1,943,548.86 $ 2,628,740.07 $ 31,041.79 140 $ 9,375.84 $ 21,665.95 $ 1,952,924.70 $ 2,607,074.12 $ 31,041.79 141 $ 9,298.56 $ 21,743.23 $ 1,962,223.27 $ 2,585,330.90 $ 31,041.79 142 $ 9,221.01 $ 21,820.78 $ 1,971,444.28 $ 2,563,510.12 $ 31,041.79 143 $ 9,143.19 $ 21,898.60 $ 1,980,587.46 $ 2,541,611.52 $ 31,041.79 • 144 $ 9,065.08 $ 21,976.71 $ 1,989,652.55 $ 2,519,634.81 $ 31,041.79 $ 372,501.48 145 $ 8,986.70 $ 22,055.09 $ 1,998,639.24 $ 2,497,579.72 $ 31,041.79 146 147 $ $ 8,908.03 8,829.09 $ $ 22,133.76 22,212.70 $ $ 2,007,547.28 2,016,376.37 $ $ 2,475,445.96 2,453,233.26 $ $ 31,041.79 31,041.79 148 $ 8,749.87 $ 22,291.92 $ 2,025,126.23 $ 2,430,941.34 $ 31,041.79 149 $ 8,670.36 $ 22,371.43 $ 2,033,796.59 $ 2,408,569.90 $ 31,041.79 150 $ 8,590.57 $ 22,451.22 $ 2,042,387.16 $ 2,386,118.68 $ 31,041.79 151 $ 8,510.49 $ 22,531.30 $ 2,050,897.65 $ 2,363,587.38 $ 31,041.79 152 $ 8,430.13 $ 22,611.66 $ 2,059,327.78 $ 2,340,975.72 $ 31,041.79 153 $ 8,349.48 $ 22,692.31 $ 2,067,677.26 $ 2,318,283.41 $ 31,041.79 154 $ 8,268.54 $ 12,773.25 $ 2,075,945.80 $ 2,295,510.16 $ 31,041.79 155 $ 8,187.32 $ 22,854.47 $ 2,084,133.12 $ 2,272,655.69 $ 31,041.79 156 $ 8,105.81 $ 22,935.98 $ 2,092,238.92 $ 2,249,719.71 $ 31,041.79 $ 372,501.48 157 $ 8,024.00 $ 23,017.79 $ 2,100,262.92 $ 2,226,701.92 $ 31,041.79 158 $ 7,941.90 $ 23,099.89 $ 2,108,204.83 $ 2,203,602.03 $ 31,041.79 159 $ 7,859.51 $ 23,182.28 $ 2,116,064.34 $ 2,180,419.76 $ 31,041.79 160 $ 7,776.83 $ 23,264.96 $ 2,123,841.17 $ 2,157,154.80 $ 31,041.79 161 $ 7,693.85 $ 23,347.94 $ 2,131,535.02 $ 2,133,806.86 $ 31,041.79 162 $ 7,610.58 $ 23,431.21 $ 2,139,145.60 $ 2,110,375.65 $ 31,041.79 163 $ 7,527.01 $ 23,514.78 $ 2,146,672.61 $ 2,086,860.86 $ 31,041.79 164 $ 7,443.14 $ 23,598.65 $ 2,154,115.75 $ 2,063,262.21 $ 31,041.79 165 $ 7,358.97 $ 23,682.82 $ 2,161,474.71 $ 2,039,579.39 $ 31,041.79 166 $ 7,274.50 $ 23,767.29 $ 2,168,749.21 $ 2,015,812.10 $ 31,041.79 167 $ 7,189.73 $ 23,852.06 $ 2,175,938.94 $ 1,991,960.04 $ 31,041.79 168 $ 7,104.66 $ 23,937.13 $ 2,183,043.60 $ 1,968,022.91 $ 31,041.79 $ 372,501.48 169 $ 7,019.28 $ 24,022.51 $ 2,190,062.88 $ 1,944,000.40 $ 31,041.79 170 $ 6,933.60 $ 24,108.19 $ 2,196,996.48 $ 1,919,892.21 $ 31,041.79 171 $ 6,847.62 $ 24,194.17 $ 2,203,844.10 $ 1,895,698.04 $ 31,041.79 • 172 $ 6,761.32 $ 24,280.47 $ 2,210,605.42 $ 1,871,417.57 $ 31,041.79 173 $ 6,674.72 $ 24,367.07 $ 2,217,280.15 $ 1,847,050.50 $ 31,041.79 174 $ 6,587.81 $ 24,453.98 $ 2,223,867.96 $ 1,822,596.53 $ 31,041.79 175 $ 6,500.59 $ 24,541.20 $ 2,230,368.55 $ 1,798,055.33 $ 31,041.79 176 $ 6,413.06 $ 24,628.73 $ 2,236,781.62 $ 1,773,426.60 $ 31,041.79 177 $ 6,325.22 $ 24,716.57 $ 2,243,106.84 $ 1,748,710.04 $ 31,041.79 178 $ 6,237.07 $ 24,804.72 $ 2,249,343.91 $ 1,723,905.31 $ 31,041.79 179 $ 6,148.60 $ 24,893.19 $ 2,255,492.50 $ 1,699,Oi2.12 $ 31,041.79 180 $ 6,059.81 $ 24,981.98 $ 2,261,552.31 $ 1,674,030.14 $ 31,041.79 $ 372,501.48 181 $ 5,970.71 $ 25,071.08 $ 2,267,523.02 $ 1,648,959.06 $ 31,041.79 182 $ 5,881.29 $ 25,160.50 $ 2,273,404.31 $ 1,623,798.55 $ 31,041.79 183 $ 5,791.55 $ 25,250.24 $ 2,279,195.85 $ 1,598,548.31 $ 31,041.79 184 $ 5,701.49 $ 25,340.30 $ 2,284,897.34 $ 1,573,208.01 $ 31,041.79 185 $ 5,611.11 $ 25,430.68 $ 2,290,508.45 $ 1,547,777.33 $ 31,041.79 186 $ 5,520.41 $ 25,521.38 $ 2,296,028.86 $ 1,522,255.95 $ 31,041.79 187 $ 5,429.38 $ 25,612.41 $ 2,301,458.24 $ . 1,496,643.53 $ 31,041.79 188 $ 5,338.03 $ 25,703.76 $ 2,306,796.27 $ 1,470,939.77 $ 31,041.79 189 $ 5,246.35 $ 25,795.44 $ 2,312,042.62 $ 1,445,144.34 $ 31,041.79 190 $ 5,154.35 $ 25,887.44 $ 2,317,196.97 $ 1,419,256.89 $ 31,041.79 191 $ 5,062.02 $ 25,979.77 $ 2,322,258.98 $ 1,393,277.12 $ 31,041.79 192 $ 4,969.36 $ 26,072.43 $ 2,327,228.34 $ 1,367,204.69 $ 31,041.79 $ 372,501.48 193 $ 4,876.36 $ 26,165.43 $ 2,332,104.70 $ 1,341,039.26 $ 31,041.79 194 $ 4,783.04 $ 26,258.75 $ 2,336,887.74 $ 1,314,780.51 $ 31,041.79 195 $ 4,689.38 $ 26,352.41 $ 2,341,577.12 $ 1,288,428.10 $ 31,041.79 • 196 $ 4,595.39 $ 26,446.40 $ 2,346,172.52 $ 1,261,981.71 $ 31,041.79 197 $ 4,501.07 $ 26,540.72 $ 2,350,673.59 $ 1,235,440.99 $ 31,041.79 • 198 199 $ $ 4,406.41 4,311.41 $ $ 26,635.38 26,730.38 $ $ 2,355,079.99 2,359,391.40 $ $ 1,208,805.60 1,182,075.22 $ $ 31,041.79 31,041.79 200 $ 4,216.07 $ 26,825.72 $ 2,363,607.47 $ 1,155,249.50 $ 31,041.79 201 $ 4,120.39 $ 26,921.40 $ 2,367,727.86 $ 1,128,328.10 $ 31,041.79 202 $ 4,024.37 $ 27,017.42 $ 2,371,752.23 $ 1,101,310.68 $ 31,041.79 203 $ 3,928.01 $ 27,113.78 $ 2,375,680.23 $ 1,074,196.90 $ 31,041.79 204 $ 3,831.30 $ 27,210.49 $ 2,379,511.54 $ 1,046,986.41 $ 31,041.79 $ 372,501.48 205 $ 3,734.25 $ 27,307.54 $ 2,383,245.79 $ 1,019,678.87 $ 31,041.79 206 $ 3,636.85 $ 27,404.94 $ 2,386,882.64 $ 992,273.93 $ 31,041.79 207 $ 3,539.11 $ 27,502.68 $ 2,390,421.75 $ 964,771.25 $ 31,041.79 208 $ 3,441.02 $ 27,600.77 $ 2,393,862.77 $ 937,170.48 $ 31,041.79 209 $ 3,342.57 $ 27,699.22 $ 2,397,205.35 $ 909,471.27 $ 31,041.79 210 $ 3,243.78 $ 27,798.01 $ 2,400,449.13 $ 881,673.26 $ 31,041.79 211 $ 3,144.63 $ 27,897.16 $ 2,403,593.76 $ 853,776.10 $ 31,041.79 212 $ 3,045.13 $ 27,996.66 $ 2,406,638.90 $ 825,779.45 $ 31,041.79 213 $ 2,945.28 $ 28,096.51 $ 2,409,584.18 $ 797,682.94 $ 31,041.79 214 $ 2,845.07 $ 28,196.72 $ 2,412,429.24 $ 769,486.22 $ 31,041.79 215 $ 2,744.50 $ 28,297.29 $ 2,415,173.75 $ 741,188.93 $ 31,041.79 216 $ 2,643.57 $ 28,398.22 $ 2,417,817.32 $ 712,790.71 $ 31,041.79 $ 372,501.48 217 $ 2,542.29 $ 28,499.50 $ 2,420,359.61 $ 684,291.21 $ 31,041.79 218 $ 2,440.64 $ 28,601.15 $ 2,422,800.25 $ 655,690.06 $ 31,041.79 219 $ 2,338.63 $ 28,703.16 $ 2,425,138.87 $ 626,986.90 $ 31,041.79 220 $ 2,236.25 $ 28,805.54 $ 2,427,375.13 $ 598,181.36 $ 31,041.79 221 $ 2,133.51 $ 28,908.28 $ 2,429,508.64 $ 569,273.08 $ 31,041.79 222 $ 2,030.41 $ 29,011.38 $ 2,431,539.05 $ 540,261.70 $ 31,041.79 223 $ 1,926.93 $ 29,114.86 $ 2,433,465.98 $ 511,146.84 $ 31,041.79 • 224 $ 1,823.09 $ 29,218.70 $ 2,435,289.07 $ 481,928.14 $ 31,041.79 225 $ 1,718.88 $ 29,322.91 $ 2,437,007.95 $ 452,605.23 $ 31,041.79 226 $ 1,614.29 $ 29,427.50 $ 2,438,622.24 $ 423,177.73 $ 31,041.79 227 $ 1,509.33 $ 29,532.46 $ 2,440,131.57 $ 393,645.28 $ 31,041.79 228 $ 1,404.00 $ 29,637.79 $ 2,441,535.58 $ 364,007.49 $ 31,041.79 $ 372,501.48 229 $ 1,298.29 $ 29,743.50 $ 2,442,833.87 $ 334,263.99 $ 31,041.79 230 $ 1,192.21 $ 29,849.58 $ 2,444,026.08 $ 304,414.41 $ 31,041.79 231 $ 1,085.74 $ 29,956.05 $ 2,445,111.82 $ 274,458.37 $ 31,041.79 232 $ 978.90 $ 30,062.89 $ 2,446,090.72 $ 244,395.48 $ 31,041.79 233 $ 871.68 $ 30,170.11 $ 2,446,962.40 $ 214,225.37 $ 31,041.79 234 $ 764.07 $ 30,277.72 $ 2,447,726.47 $ 183,947.65 $ 31,041.79 235 $ 656.08 $ 30,385.71 $ 2,448,382.55 $ 153,561.94 $ 31,041.79 236 $ 547.70 $ 30,494.09 $ 2,448,930.26 $ 123,067.85 $ 31,041.79 237 $ 438.94 $ 30,602.85 $ 2,449,369.20 $ 92,465.00 $ 31,041.79 238 $ 329.79 $ 30,712.00 $ 2,449,698.99 $ 61,753.01 $ 31,041.79 239 $ 220.25 $ 30,821.54 $ 2,449,919.24 $ 30,931.47 $ 31,041.79 240 $ 110.32 $ 30,931.47 $ 2,450,029.56 $ 0.00 $ 31,041.79 $ 372,501.48 • CERTIFICATE AS TO ARBITRAGE AND OTHER TAX MATTERS VILLAGE OF TEQUESTA, FLORIDA $5,000,000 PROMISSORY NOTE DATED SEPTEMBER 13, 2002 The undersigned, JoAnn Forsythe, Finance Director of the Village of Tequesta, Florida (the "Issuer"), an officer of the Issuer responsible for the issuance of the above-referenced Note, makes the following certification as to the Issuer's expectations in connection with the issuance of the Issuer's Promissory Note, dated September 13, 2002, in the principal amount of not to exceed $5,000,000 (the "Note") for purposes of Section 148 of the Internal Revenue Code of 1986 (the "Code") and the Treasury Regulations promulgated thereunder. The Note is being issued on September 13, 2002. The Note is issued in order to provide funds to repay the outstanding principal amount of the Issuer's Promissory Note dated January 11, 2002 (the "Refinanced Note"), to reimburse the Issuer for capital expenditures incurred in connection with the construction of the Issuer's public safety facility after September 13, 1999, (which date is after the date of adoption of Resolution No. 20-96/97 of the Village Council expressing its intent to seek such reimbursement) and to pay costs of the public safety facility incurred after the date of issuance of the Note (the "Project"). A portion of the proceeds of the Note in the amount of $1,804,258.79 will be used to refinance the Refinanced Note on the date hereof. A portion of the proceeds of the Note in the amount of $2,505,336.84 will be used to reimburse the Issuer for prior capital expenditures on the date hereof. The remaining balance of the Note ($690,404.37) will be allocated to expenditures on the Project by the end of the six month period beginning on the date hereof. The Note is payable from lawfully available non-ad valorem revenues of the Issuer. Except for such revenues, no amounts are directly or indirectly pledged to pay principal or interest on the Note, nor are there any other revenues that will be available to pay principal or interest on the Note even if the Issuer encounters financial difficulties. Amounts that the Issuer reasonably expects to be used to pay debt service on the Note constitute a fund used primarily to achieve a proper matching of revenues with principal and interest payments on the Note in each year, and such amounts will be depleted at least once each year. Amounts that the Issuer expects to use to pay principal and interest on the Note may be invested without regard to any yield limitation. LJ Based upon the foregoing, it is not expected that the Note will be an "arbitrage bond" within the meaning of Section 148 of the Code and the Treasury Regulations promulgated thereunder. Dated this 13th day of September, 2002. VILLAGE OF TEQUESTA, FLORIDA By. Forsythe Finance Director • • 2 MOYLE, FLANIGAN, KATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW • 625 North Flagler Drive - 9"' Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARK E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com September 13, 2002 Tallahassee, FL (850)681-3828 CERTIFIED MAIL RETURN RECEIPT REQUESTED • Internal Revenue Service Center Ogden, Utah 84201 RE: $5,000,000 Village of Tequesta, Florida, Promissory Note Dear Sir/Madam: Enclosed please find Form 8038-G which relates to the above-referenced note. Please acknowledge your receipt of the enclosed by stamping the copy of the form included herewith, and return the stamped copy to us in the enclosed envelope. MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. MER/wp Enclosure By: Mark E. Raymond • Form 8~38-r7 information Return for Tax-Exempt Governmental Obligations - Under Intemal Revenue Code section 149(e) OMB No. 1545-0720 • (Rev. November 2000) - See separate Instructions. Department of the Treawry Caution: If the issue rice is under $100,000, use Form 8038-GC. Intemal Reverwe Service P ~ZRl11 Rannrtinn Arrthnrity If Amended Return, check here - I I 1 Issuer's name 2 Issuer's employer identification number Village of Tequesta, Florida 59 ; 6044081 3 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 4 Report number 250 Tequesta Drive 300 3 02 5 City, town, or post office, state, and ZIP code 6 Date of issue Tequesta, Florida 33469 9113102 7 Name of issue 8 CUSIP number Promissory Note, Series 2002 ~ None 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer or legal representative JoAnn Forsythe, Finance Director ( 561 ) 575-6205 of Issue 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 and enter the issue arice) See instructions and attach scnedule ^ Education ^ Health and hospital ^ Transportation ~ Public safety. ^ Environment (including sewage bonds) . ^ Housing ^ Utilities ^ Other. Describe - If obligations are TANS or RANs, check box - ^ If obligations are BANS, check box - ^ If obli ations are in the form of a lease or installment sale, check box - ^ Descri tion of Obli ations. Com lete for the entire issue for which this form is (a) Final maturity date (b) Issue price (c) Stated redemption (d) Weighted price at maturity average maturity 9/13/2022 $ 5,000,000 $ 5,000,000 12.5 e Uses of Proceeds of Bond Issue includin underwriters' discount Proceeds used for accrued interest . Issue price of entire issue (enter amount from line 21, column (b)) . Proceeds used for bond issuance costs (including underwriters' discount) 24 7.50 Proceeds used for credit enhancement . 25 Proceeds allocated to reasonably required reserve or replacement fund 26 Proceeds used to currently refund prior issues 27 1,8 Proceeds used to advance refund prior issues 28 Total (add lines 24 through 28) . Nonrefundin roceeds of the issue subtract line 29 from line 23 and enter amount here . Description of Refunded Bonds (Complete this part only for refunding t Enter the remaining weighted average maturity of the bonds to be currently refunded Enter the remaining weighted average maturity of the ponds to be advance refunded Enter the last date on which the refunded bonds will be called . Enter the date(s) the refunded bonds were issued - 4.28 1,811,759 - 0.25 years - years - 8/13/02 1/11/02 Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a b Enter the final maturity date of the guaranteed investment contract - 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a b If this issue is a loan made from the proceeds of another tax-exempt issue, check box - ^ and enter the name of the issuer - and the date of the issue - 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box - 0 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box - ^ 40 If the issuer has identified a hed e, check box - ^ Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. Sign Here Geraldine A. Genco, Mayor Type or print name and title Date filed. (e) Yield For Paperwork Reduction Act Notice, see page 2 of the Instructions. cat. No. s3773s Form 8038-G (Rev. ii-2ooD) $5,000,000 • VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE DISCLOSURE STATEMENT OF BANK OF AMERICA. N.A. September 13, 2002 Village of Tequesta, Florida Tequesta, Florida Ladies and Gentlemen: In connection with the purchase of the $5,000,000 aggregate principal amount Village of Tequesta, Florida (the "Issuer"), PromissoryNote, dated September 13, 2002 (the "Note") authorized to be issued by a resolution of the Issuer adopted January 10, 2002 ("Resolution"), the undersigned purchaser of the Note (the "Original Purchaser"), pursuant to the provisions of subsection (6) of Section 218.385, Florida Statutes, as amended, the Original Purchaser is providing the following • information with respect to the arrangements made for the purchase of the Note. We represent to you as follows: (a) The nature and estimated amounts of expenses to be incurred by the Original Purchaser in connection with the issuance and sale of the Note is $-0-. (b) There were no "finders," as defined in Section 218.386, Florida Statutes, as amended, in connection with the issuance of the Note. (c) No fee is expected to be realized by the Original Purchaser. (d) No management fee will be charged by the Original Purchaser. (e) No fee, bonus or other compensation will be paid by the Original Purchaser in connection with the issuance of the Note to any person not regularly employed or retained by the Original Purchaser. (f) The name and address of the Original Purchaser is: Bank of America, N.A. 625 North Flagler Drive • West Palm Beach, Florida 33401 • (g) The Village is proposing to issue $5,000,000 of debt for the purpose of financing and refinancing the acquisition, construction, equipping and improving ofvarious capital expenditures of the Village. This debt is expected to be repaid over a period of approximately 20 years. Total interest anticipated to be paid over the life of the debt is approximately $2,450,029.60 unless prepaid. The sources of repayment or security for the Note are non ad valorem revenues of the Issuer. Based upon such assumptions, authorizing this debt could result in on average of approximately $372,501.48 of non ad valorem revenues of the Issuer not being available for other uses by the Issuer each year for 20 years. Very truly yours, BANK OF AMERICA, N.A. By: ~ ~, Authorized Officer Ir J • 2 JolvEs FOSTER JOHNSTON & STUBBS, P.A. Attorneys and Counselors John C. Randolph, Esquire Direct Dial: 561-650-0458 Direct Fax: 561-650-0435 E-Mail: jandolph@jones-foster.com September 13, 2002 Village Council Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469-3273 Bank of America, N.A. 625 North Flagler Drive Tenth Floor West Palm Beach, Florida 33401 Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. • 625 North Flagler Drive Ninth Floor West Palm Beach, Florida 33401 Flagler Center Tower, Suite 1100 505 South Flagler Drive West Palm Beach, Florida 33401 Telephone (561) 659-3000 RE: $5,000,000.00 Village of Tequesta, Florida Promissory Note dated September 13, 2002 Ladies and Gentlemen: Mailing Address Post Office Box 3475 West Palm Beach, Florida 33402-3475 have acted as Village Attorney for the Village of Tequesta, Florida (the "Village") in connection with the $5,000,000.00 Note from the Village of Tequesta, Florida, dated September 13, 2002, and payable to the order of Bank of America, N.A., or registered assigns. In such capacity, I have examined the following: A. Resolution No. 79-01/02 adopted by the Village Council on September 12, 2002, authorizing the issuance of a Note in the principal amount of $5,000,000.00 to finance various capital projects of the Village and to refinance the Village's Promissory Note, dated January 11, 2002, and the execution of a Loan Agreement between the Village and Bank of America, N.A. B. The Charter of the Village of Tequesta, as amended (the "Charter"), and Chapter 166, Florida Statutes, as amended; and www.jones foster.com Village Council Bank of America, N.A. Moyle, Flanigan, Katz, Raymond September 13, 2002 Page 2 C. Such other documents, certificates, records, and proceedings as I have considered necessary to enable us to render this opinion. Based on such examinations, I am of the opinion that: 1. The Resolution has been duly adopted and no further action of the Village of Tequesta is required to authorize the execution and delivery of the Note and Loan Agreement specified herein. The Resolution, note and Loan Agreement constitute the legal, valid and binding obligations of the Village, enforceable in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws related to or affecting creditor's rights generally or by general principles of equity. 2. The adoption of the Resolution and compliance with the provisions thereof, under the circumstances contemplated thereby, are permitted under the provisions of the Charter and, to the best of my knowledge without undertaking any independent research, do not and will not in any way constitute a breach or default under any agreement or other instrument to which the Village is a party or any existing law, regulation, court order or consent decree to which the Village is subject. 3. Except for the attached, to the best of my knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, pending or threatened against or affecting the Village, wherein an unfavorable decision, ruling or finding would materially adversely affect the Village's obligation under the Resolution, or aversely affect the validity of the Loan Agreement or Note or the security therefore. Sincerely, JONES, f OSTER~, JOHN,STON & STUBBS, P.A. 'John C. Randolph Village Attorney JCR/ssm N:\JCR\13153-01\Bank of America Opinion Letter2.doc • ~ ~- ~, ~ ~ t_ ' Cr1'I~S P'OR R,ESPONSIBI.,B ~O I ~' - 18996 Pioint Ihive T uas ' eq ca, FL 3 9 ' W.A. `Vechoaven Robert $. ~, ' ~~ - I~cgs.l Adv' r ~ - ~ ~ Qn. 14,1999. ' ~ -~ Tp Elected Officials of the Village of Tequoata. - In behalf of the cld.ae~ of the yillagG of T `ta, Cities ~ for Responsible C}at ~pec~fully 't herowith Abvi ~ eery Sailors expressing ariahe~ of the plc regardjng ~ . major eacpexidlttuea by the'Vills,ge ~ovL Elecued official8 of rho Viliag6 should wi the followin ; ~ a . 1, The 'Village of T eQtseota, Flonda is a m icip~i;ty cheated 1 by the Florida legialaau~e, I.a~vs of F1~dg~ let 57-1915 Sp~c1Q1 Acts of 1957, as ~ ' by Statute an orduis~tzoea, and ~ i is subject to the ptvvlsior~ of C . hapter 166, F1ori Statuteac, 2. The Viiisge hold a public rhea =ufber ~~'-~ "M~veting") on D~b~.I5,1 ' . . 998 to :thc beat of . ouc knowledge the VIliage of Tequ~ta did of a f i t p y o~ or ~ othetvviae ' ~tuurra the publication of en officta no~iCe of the ~ M~~ any regulz~rIy published Wawa of on~l 8 ~ c1r~Culanon [n Pelrn $~ . Couaty, Flonds. ~- To our best knowledge tlu Vi! of ~ . ~ uoaca meroly ' faxed a notice of the nrbeeti,q~ on or about ~ - ~ 1.1, 1998 to , -- .. r i .. f i ~i i@ ~tipit4t ~OUi'1,0i'- 4. To our bast knpwiodgo ~ viii a of i ~ h~ve any proof of 'publication of any oPfi~ Meeting. . 5. A harsdfut .(lean than 30) a~be~rs o f ~ tt~((e ~~ti~g. and were advised that the Vll going to purchase a ahoPP~B center p8iroel (t being referred LO a8 the "pivpetty") acid the ~ T~qu~eata was Co purmhaae being referrCd to as leas than 1/3 of the entire 1'rop~y, fmm th purchased it In 1997 for about 51,300,000. 6. At this Meeting the reps~aentabive of pro . soata does not r~tic~ of the public sttended of ~oquesta was ~~ P~P~Y ~t the Village of Part A") botrtg , -owner that had owner of the perty a~m,.tted that eels was hold ui tho : of a newly formed corporation that had no otter assets oth~t than tho Property. : 7. The owt~x of the Pcvperty teas provld~ either personal. I~ettora of credit (unless autimla $~,SO,OpQ by the deadline date of Jenu~ry IS third PAY un s that it would haul pUrcha~ "Part A" bay k from the ~iilage of ra~ultcd. 8. The owner of th~c Ptopexty did [wt agroe ._ no guarandc~, ~ is the sum of . X999) or otbrr the money m j Tequeata wh~i k+aep "Pert A" i 1 i f' 1 ~ free and clear from ~,y fuiancings that it : lado an i Y P 'ts Property during ~ two Y~ od after ~ P~ putrh,e~e by lha ~ Vtll~ge of Tequosta, Thla could rosult In a ~foroclosure b a y Condor on the prop~y. and of course po . ~ purr.~~e by the ~i °P~Y ownar. The Village would be out -the re-p~t~,~e ~~ of 5477,000, without recour~ ~ to 4ny v~tblo f - l~ts-• .~ 9. Wo are of the belief that the total coat taxpayers of Tequeata could roach or nxoeod i n tare~st over' the next aevetal ydara for 20 or 3 new village ha] 1 and roadway ere cons ~~ is redeveloped as plarsnod. 10. An A,dviBOry Ballot has boon clmtt~G tlYc Village of Tequa8t8, in Cho form attached d3a 'Village acid x,500,000, plus year bonds, if a Bridge Road to t~asidcmtd of -----• Thera have b~ rettarns from 315 citlr~na, of which all but -one clti~ ~ voted against purchaac of the lend (Fat[ A) b 7`~tueeta. and cortshuction of a new viU,sge hall. I1. Under Florida Statute 166 ~cvhich i$ ~ V f l lags of Tequesta, there meet be a thirty (30) i rn~oting at which the appcovit of a purr~t~,ec c municipality is to be voted upon. 12. the Vill age of Toquasta hold vita ~ ~0'~~' ~ UeCesnb~a• 10, 1998 and did not r~ P tl~o Village of ~Ij~abte to the ~ n4tioa of any ~p~y by ~ taaatir~g for de any notlao %~ [: f 4 1 ~ ~ i ~• ' . ~ of the spacial I~+Leeting or the subjoct matLa~r the that attanded Chia regular m+ootic~g. l3. The Viilaga of Tequeata has violaood Florida StahtLe 166, and asty sct of Vi11~ of into a purctia8e agr~noat or option bo pt~ P~opcrty is null end void, initio, s ~Ye earnestly end xeapxtfully regweat tt~ T~qucsca not go ahead with thin ill-advised vea ddvoloprnenc with private intereata. iA epparon laws of this etaba. ~~ , ~~cec~aly for Tegt~ata,,, ~, ~:nairliten 1 1 i 1 l 1 1~ (. f t0 the public i provtslona of equeata to enter- ~'drt A of tba ~ the Village of ~~' intio pTOperty ~ i violation of tht oberc . Codk, Fa~q. Legal dv~aor • Sttb-8lCi10n ?S9-~?.(i~ Fj01~3da Stabaf~la (Yd) tea, raglonal, or local avvarrunQntal agoctcies oc prt~va0o entities daatg:tiabed !o manage lands uad~et this soctlon shall develop and adopt, with the apptwal of the board of tru~6aaa, sit lndtvidual inaiu~goment pitrn for eac}t project designed do corm and protect ouch Iaed• and their asaoela6ed natural reaourees. Private sector ir-voiwmtant in management pLs. dev~elop~ent qty ba ved bo exped:~ tho ptar,nina process. 8eg~lnning Rs~l year X99-1999, lndlvidusl management plate t~„~red by ia. 283,034(4) shall br Qav~aloptd witfi inputlrctn an adri=oty group. Metctbcss cf this adv[FOry group ah~cll in~clud4, at a a~;ntmum, nprvrenettva of the iced Land ntanagL>~ aBrnry, camanaginL entities, local plit/abe propctty ownerr, the appropriate soil alai water cots~ervatto~n district a local cvnQezvatlon or6a:-iratior~, sad a local decbd official, the advL~ory group shall conduct at least onQ public hearing within the cotu-ty in which t}w paroel or project L lotabad, . and annou=toed at a echedutod n-~atirag of the local gov~~ bod~r beEorn thQ actual public hearing. Thu matwgament ptospectut tbquirod pursuant m,paragcaph (9)(b) stall be available Do the public for a pori~od of 30 days prior bo tho public hearing. Once a plan is adopted, the manaains agonry or entity a}w11 update the plan at (east rvery 5 years !n a ~ora~ ,nd manger pretaited by rule of the board of trusbeee. Such piano may include tranafar~ of Iauehold inbetedtc to appropratc cot~aetvation ocgsnizttioru dealgnated by the I.~and ManageatcatAdvlsory Caundl fnr uses eor-ei:wnt with the parpvip of the araanizatiozta and the protection, pt+acrvatiott,,and propel tnanag~entient of thr lands and their resourcfia. Volutt~r xnanagt~anent aacir4aaa it encouraged, including, bttt not Umited too, ausistar~ce by youths patticipabng In - progz~ams spottsor¢~c,{ by a41~e or local ag+astrh~, by votuebeers cpcnsered by ert`vitocttittu~tal or civic orgasttredotte, ar-d by ixtdividwle participating jn presgr:ata fur coa+nt hoed dallr~quanb and adu[ta. Far ewch pn~ct for which Iand6 arc +-oqutrad after 7~y 1,1995, alt individual mt-na6amatt plan stall be adopted and in piece no Iatxr than 1 year altrr ttre eseertttal parcel or paroel~s'idtn45od in the znctual Costservation and Rvcravtiori C.attda report pntpared pursuant to a. 259.095~(a) have been acquired. Begl,Ming !n fistnl yeas' 1986-1999, the DepartmQntol Saviro~or-ta1 Protectio~a shall • 1 ~ ~ ~~ '- 8a 259-092(10) k~loridt 8t~t~bea distribute only 75 pe:rettt of tAe aogvisitioa fwula ~ whkh a budget entity or watEr auna6e~a`ant di~tt{ct would otl~cwise b. antitSad from t!w 1're~e=vat~r 2000 TrwE pond bo any budget em'ty ar aty~ w~a6et a~ana ganent dlstrkt that has more than onr third of ib nnanagement plane ovcrrdu~ . r 1 ~ . 1 =• 1 • . ~ _.... z /``~\ ~ f • 1 • ~ Advisory Ballots Say 1~tQ • to Tequesta Taxation Without Re r P .: .. i By canton D. scodda~d - t Mayo,:' F~ritue J ~' - i Ths m~oasage of advisory ballots herewf ovc7n T ueata 8 ~ eq is: the voice of the electors fok any me4jor oxpenditvre oovotod by taxes. An lax e - - , Y 8 expe~d~itur,e by Tequeata gov~ cl~ac cotnmunlcatioa and consultation with the • property taxes fundlcig lt. Oovernnxxtt of tt~ people, by the people, ~ is Echo h~catt and soul of hometown cornrnurutl~ bedrock of our fr~aodom es a united democrat . Y - ~ The Village Council's erlactm,ent of a aontr~ w~th a private eon7taerciel davelo for _ P~ p~ T~queata Plaara, plug coustructiori of a new oil] d~relopment of fridge Road ss planr.~i, a ,500,000 or moro to Tequcata's bonded irideb _ ~ Inciuditag intea,oat over 30 yoars for bond fi could ax4eed x1,0 for every .ru.sn, a- T~queata, for that one project alone. . - ~ The aced for ~~urrectl[~Q' tlcne-~v+orn T . i v . . t~e~cognired and Mood. But en expendi Of Yors i~ey to oboe pn[va ddvelopr~nent, without fatly informing and i • I en~ation • ;. 14,,1999 to ~ tbase atho ~ must bo heard - alnt requires ~~ `°~ pgy for the people abich arse the teal egr~eernaa~t tae of land in ;e hat! sad rc~- ld ;add up to Mcing, tho oo,at and child in ~uesta Pl$za is of -$3,504s000 - '1 ling citizer~,18 i I I ` • • ~ubJect. bo sec~ious gt~eatiaa. It otors. ~ ~ total of 3~ 5 residottta have sent Advtaory . ot~, all but dts,c doting N'O to any swch rngjor ex}~ditta~e f r land ~ • ~a~i ~iliage hall in d commercial development ~ ' ~ets~on voocd ' 'YDS. Mangy added c.awdc comtnaav ob,~ to ~ xLeedlots ' expenditure for a now vll lags hell. end lend or ~ -south ' • r~adway splitting Taqueata Plar$ in two. Mall ~ ~ devel°,~ . s~ould pay for their oam roads. , : that thou was no notion m the public of a plan's dotal ~ I ~ ~ ~, no paid public8tiort no4ce of the tte8ty Cowl m~eoting called, Lo ~'Prov~ tlzo S1~ million contract, no pravi inn for $ public (. . t~tring vwith 30 days advanop nbtioe. and n provision for a ~ . i p~blic teferoduum, • raid seriou8 queatior~ to co tiatuc0 ~ v~ith Florida atatu ~ tea. 7~equoeta's own ch and add , oFdlnances. ~' ' By their Advisory Ballot votes h~arovYith, eq~esta electors ~y NO to a new viltago haii, and IjIQ s~bsidizir~g a ~ ~COmr~ncial developer rvbo std to gain p fit at taxpnyera' . .. cicpense. Selljng a rtlall building app~~ at 5750000 to ~ ~equeata aqd ch8rglr~-g ~l U0,000: ~ to demolish i~t teems utt~eriy ~aatet`u1. Up to 3 thriving Btnre'a' would be ictcd. Whaca . ~uid rho ~~ ~ ~ Y 80? Relocate the~rn could hurt the bittine',ss. ; . ' - Anawerirrg the seoortd gtieation ors the dvisa I ' ; ry Ballots, _ 8 (759b m~jocity) cltiz~ votod YES to in :tbe axis Ilage ball react to Vii • ~ ~ ~ 1~a arses park and f taux es rho long . ~ e~tabliahed (and paid fo~r)~oenter of Tequeata go e~rruiseru. ~ r 17 (259b) votod NO, s~orAO oble~ctlag to e~miniatxa[ive ' i ~ ~ _ i i e ,. • ~~ ~ .-,, ~ ~ j. o~`ficea north of the Village Kneen P~ ova land owned by T?equeata. Some think the villagt adntinistrati should continuo 1 tb rent offioea in the Wachovia bank building. Se^~reral ob1«~a to new offices congt~ioa of arty kind. ~ '- Not to be overlooked i8 the ne i cxa8txy cost f pciovid.irig q~8w ~ t~v~ttg Quarters for fir~t~escue panne! nor used itt portable ~ b~ildl 8 ~8s. Ala~o them tntut be enlor ed ~otrai for fire arucic8 f` n~td arnbulertces . ; ' , ' About $6.500,000 wi 11 be t~e~aded to fi ~_ the oaw mcve~se ~ . a~nosia water plant norv under construction. t ply ~~~ P ~ o land ettd ~ ~' construction of s now vtlla~;e ~ I squid e~icaldte .; m'8 bonded indebtedness to over $17,0 0,00, includlri~ 1 i~~+est for 30 years. These are calculated tlmatree. z ~ f the ~ - . VilIago 8ov~nmettt and citliatu work tog sdbstantlally toduced. , ` ~ ~y can ~ I ' v lllage governm~tt that a ! - PPmve~c such ; ~ ~~~~ without clear communic$tion and co . nauItBtion ~ ~PaY~ is i ~ gbvemmcnc b die . y turn, not : . ~ ~ Sit a trend would not be welcomed T~qu+aata, the people of ' TeQ~~ govacnment officials should. Advisor B ll ~ ~ . it read ~ y a ots in thin compondi~, riothlnk ' tlblr . ~ ~Qn'tmitment for multi-rrtlllion dollar projects w tho4t consent of ( eloctocs who are ~~y ~ burdened with the y ' ~ ~ ~t PnOP~Y ta cee in Tequ~oarta~a Ito ~ ~ ~ 1 ~ . ~ ~ 4 '~ • JMZ TEQUESTA PROPERTIES, INC., a Florida corporation, IN THE CIRCUIT CO'(JRT OF THE FIFTEEN'T'H JUDICIAL CIRCUIT, IN AND FOR PALM BEACFI COUNTY, FLORIDA. CASE NO.: ~ ~ ~ ~ ~ ~ ~ ~ ~~ Plaintiff, v. VILLAGE OP TEQUI;STA, a Florida municipal corporation and political sub-division of the State of Florida, G1RCU17 Gi /ll. n1VtS1(!y QCT 3 1 2~v1 Defendant. C01' ~l ~~~ IIVA NG RECEiv Plaintiff, JMZ TEQUESTA PROPERTIES, INC., hues the Defendant, VILLAGE OF TEQUESTA, and alleges: 1_ Thu is an action for specific performance for real property of a value in excevv of Fifteen Thousand ($X5,000.00) Dollars situate in Palm Beach County, Florida. 2. At all times material hereto the Plaintiff, JMZ 1'FQUFSTA PROPEItTiES, INC., (hcreinaftez `7MZ") was and is a Florida corporation with its principal place of business located in Tequesta, Palm Beach County, Florida. 3. At all times material hereto the Defendant, VILLAGE OE TEQUESTA, (hereinafter "VO`I'") was and is a municipal corporation organized, existit-g and operating under the laws of the State of Florida and is a political sub-division of the State of T~lorida with its principal office located in Tequesta, Palm Beach County, Florida. • 4. On or about February 1, 1999, the parries entered into a transaction governed by a series of written agreements relating to the sale and purchase, leasing and re-purchase of • JMZ v. VfLLAGE OF TEQUESTA CASE NO.: a certain piece of real property situate in Tequesta, Palm Beach County, Florida. Those Agreements are copied and attached hereto as Exhibit "A" (Purchase and Sale Agreement); "8" (Agreement' ; and "C" (Re-Purchase Agreement). 5. The property itself and the general layout of the various parcels comprising the property are depicted in Eachibit "D" hereto. 6. Thie transaction dealt with the VOT's public necessity to acquire land and con~atruct a village hall or other mutucipal,.civic or cultural facility, as well as acquiring a public roadway. The parties entered into the above-refcrcnced series of agreements, setting forth the boundaries and purchase price for the public roadway and municipal site as a means to avoid • the time and expenAe of an action to condemn the parcels, which VOT desixed to acquire. VOT has the power of eminent domain. 7. The parties closed on the transaction on March 16, 1999. VOT acquired Parcel No. 1, the road right-of-way, a lease of the land under the building on Parcel No. 3 and ownership of the building. The building extended all the way across the property and iq generally depicted on Exhibit "D" as the hash mark Atop. The VOT demoliFhed the portion of the building on Parcel No. 3 and on the road right of way. It has yet to demolish the remaining portion of the building vn parcel number 1, yet it contemplates doing so in the immediate future. 8.. It was necessary for the VOT to lease --- temporarily --- the land under tl~e • building on Parcel No. 3, as Parcel No. 3 was owned by JMZ and tenants still occupied the 2 • JMZ v. VILLAGE OE TEQUESTA CASE NO.: ~~ building. JMZ agreed to manage the budding and collect the rents for. VOT until the building was demolished. 9. In August of 1999, 'VOT notified JMZ that VOT wanted ro swap Parcel No. 1 for Parcel No. 2, as contemplated by the agreement (F•xhibit `B" hereto), but would never advise JMZ what was to be built or when construction would commence or be expected to be completed. X 0. The VOT had already resolved to build its municipal center on Parcel No. Z, but then reneged on that resolution and opted to submit it to a referendum --- nvt scheduled untii • December of 2001. 1.1. As the construction of the municipal project would impact on JMZ's right to re- purchase Parcel No. X, it would not consent to the swap absent confiirm.adon from VOT as to what was to be built there and when. 12. JMZ notified VOT in March of 2001 that it was exercising its right !.o re-purchase Parcel No. 1, aP two (2) years had lapsed without VOT constructing anything on the property. 13. VOT refused the re-purchase of Parcel No. 1 by JMZ. 14. VOT contemplates the immediate demolition of the building on Parcel No. 1 some time on or shortly after November 5, 2001. 15. JMZ seeks the remedy of specific performance herein with respect to its right to re-purchacc Parcel No. 1. It is a unique individual and specific parcel of real e_~Late, and there • ie no other adequate remedy at law. Hence, JMZ seeks the equitable remedy of specific performance herein. 3 JMZ v. V)<LLAGE OF TP,QUESTA CASE NO.: 16. All conditions precedent entitling the Plaintiff to bring this cause of acfion and recover thereon have been performed or have occurred or alternatively have been waived or prevented. 17. Plaintiff is obliged to his attorneys for a reasonable fee for services rendered herein and seeks recovery of the same in accordance with the terms of the Agreements copied and attached hereto. VVHEIZEFOItE, Plaintiff demands judgment against the Defendant for decree of specific C] performance with respect to Plaintiffls right to re-purchase Parcel No. 1 referenced above and for an award of costs, attorn.ey's fees and any other relief deemed just. ] 8. This is an action for injunctive relief. 19. Plaintiff realleges anal reaffirms each and every allegation of paragraphs 2 thmugh 14 of Count I, as if fully set forth herein. 20. The Defendant's demolition of the building on Parcel No. 1 contemplated to occur in tl~e immediate future wilt irreparably harm Plaintiff and hinder Plaintiff in. die exercise of its right to re-purchase the aforesaid Parcel No. 1, as further net forth in Count I of this action. 21. Due to the unique nature of the real estate involved and the improvements • thereon, Plaintiff is without an adequate remedy at law and will be irreparably harmed if Defendant is permitted to go forward with the destruction and demolition of the structure on 4 .... . ]IvIZ v. 'VILLAGE OF TEQUESTA CASE X10.: Parcel No. 1, pending the outcome of this action and the exercise by Plaintiff of its right to re- purchase Parcel No. 1 as sought in Count I of this action. WHEREFORE, it is respectfully requested that this court enter an order enjoining tl~e Defendant and all of its agents, employees or representatrves from den~.olishing, damaging or otherwise adversely impacting the structure extant on Parcel No. 1 referenced above forthwith and make such ir~,junction effective pendente life and undi further order of this court, as well as award the Plaintiff costF incurred herein, and any other relief deemed ,just. FRAMER ALi, FLECK, CAROTHERS, HUGS 6L GELB • 6650 West Indiantown Road Suite 200 Jupiter, Florida 33458 (561) ?48-8000 (561) 748.9000 -fax Attorcxey(s) for Plaintiff~j ~~~/ By: WTL YAM A. FLECK Florida Bar No. 340707 • 5 ,~ - • IN THE CIRCUIT COURT OF THE 15T" JUDICIAL CIRCUIT, 1N AND FOR PALM BEACH COUNTY, FLOR[DA CASE NO.: CA 01-11262-AJ JMZ TEQUESTA PROPERTIES, INC., a Florida corporation, Plaintiff, vs. ~~ VILLAGE OF TEQUESTA, a Florida C- <?~(~~ ` ~- 'Jf municipal corporation and political ~'~ -~ ~~ ,. sub-division of the State of Florida _ -~= Defendants. "~~ : -~ ~ ~-_ ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM • Defendant, VILLAGE OF TEQUESTA, hereby files this Answer, Affirmative Defenses and Counterclaim to the Complaint filed by the Plaintiff, JMZ TEQUESTA PROPERTIES, INC. ("JMZ"): COUNTI 1. Defendant admits that Plaintiff claims that this is an action for specific performance for real properly of a value in excess of $15,000.00 but denies that Plaintiff has been damaged. 2. Defendant is without knowledge as to the allegations of paragraph 2, and therefore denies those allegations and demands strict proof thereof. 3. Defendant admits the allegations of paragraph 3. 4. Defendant admits the allegations of paragraph 4. • • ~~ 5. Defendant is without knowledge as to the accuracy of the modifications to the document attached to the Complaint as Exhibit D and therefore denies the allegations of paragraph 5. 6. Defendant denies the allegations of the first and second sentences of paragraph 6. Defendant admits the allegations of the third sentence of paragraph 6. 7. Defendant admits the allegations of the first sentence of paragraph • 7. Defendant denies the allegations of the second sentence of paragraph 7 because it is without knowledge as to the modifications made to the document attached as Exhibit D to the Complaint and because the Agreements between the parties, attached as Exhibits A, B and C to the Complaint, speak for themselves. Defendant admits the remaining allegations of paragraph 7. 8. Defendant denies the allegations of paragraph 8 because the allegations relate to provisions in the Agreements between the parties, which Agreements are attached as Exhibits A, 6 and C to the Complaint and speak for themselves. 9. Defendant denies the allegations of paragraph 9 except that Defendant admits that it notified JMZ in August, 2000 that it intended to swap Parcel 1 for Parcel 2 as contemplated by the Agreement between the parties. 10. Defendant denies the allegations of paragraph 10. 11. Defendant is without knowledge with regard to the allegations of paragraph 11, and therefore denies same and demands strict proof thereef. 12. Defendant denies the allegations of paragraph 12. C, 13. Defendant denies the allegations of paragraph 13. 2 , ! 14. Defendant admits the allegations of paragraph 14. 15. Defendant admits that Plaintiff seeks the remedy of specific performance with respect to its right to repurchase Parcel 1 as alleged in the first - sentence of paragraph 15. Defendant denies the allegations of the second sentence of paragraph 15. Defendant admits that Plaintiff seeks the equitable remedy of specific performance as alleged in the third sentence of paragraph 15. 16. Defendant denies the allegations of paragraph 16. 17. Defendant denies the allegations of paragraph 17. COUNT II 18. Defendant admits that Plaintiff claims that this is an action for injunctive relief. • 19. Wrth regard to the allegations of paragraph 19, Defendant realleges its responses to paragraphs 2-14. 20. Defendant denies the allegations of paragraph 20. 21. Defendant denies the allegations of paragraph 21. 22. Defendant denies each and every allegation of the Complaint not specifically admitted herein. AFFIRMATIVE DEFENSES First Affirmative Defense 1. Plaintiff has failed to satisfy one or more conditions precedent called for under the Purchase and Sale Agreement, Agreement, - at~d Repurchase Agreement. 3 e • Second Affirmative Defense 2. Plaintiffs prior, material failure to perform the Agreements discharged Defendant from performing any remaining duties thereunder. - Third Affirmative Defense 3. Plaintiff is barred from recovery by the doctrine of unclean hands. Fourth Affirmative Defense 4. As to Count II, Plaintiff has failed to state a cause of action against this Defendant. Fifth Affirmative Defense 5. Plaintiff has failed to mitigate damages and is therefore barred from • recovery. COUNTERCLAIM Defendant, VILLAGE OF TEQUESTA ("TEQUESTA"), a Florida municipal corporation, counterclaims against Plaintiff, JMZ TEQUESTA PROPERTIES, INC. ("JMZ"), a Florida corporation, and alleges: 1. This is an action for specific performance of a contract to convey real property of a value that exceeds $15,000.00 located in Palm Beach County, Florida. 2. JMZ is a Florida corporation with its principal place of business located in Palm Beach County, Florida. 3. TEQUESTA is a municipal corporation incorporated in Palm Beach • County, Florida_ 4 • 4. JMZ is, and at all times mentioned herein was, the owner of Parcel 2, certain real property situated at Tequesta Drive (northwest parcel), Village of Tequesta, Palm Beach County, Florida, more particularly described as follows: a parcel of land lying in Section 30, Township 40 South, Range 43 East, Palm Beach County, Florida and as further described in Exhibit "A" attached hereto. 5. On February 1, 1999, TEQUESTA and JMZ entered into a series of written agreements ("Agreements") concerning real property .located in Tequesta, Florida, including a Purchase and Sale Agreement, an Agreement, and a Repurchase Agreement, copies of which are attached hereto as Exhibit "B" and incorporated herein by reference. 6. Pursuant to the terms of the Agreement, on March 16, 1999, • TEQUESTA purchased from JMZ Parcel 1, certain real property situated at Bridge Road (southwest parcel), Village of Tequesta, Palm Beach County, Florida, more particularly described as follows: a parcel of land lying in Section 30, Township 40 South, Range 43 East, Palm Beach County, Florida and as further described in Exhibit "C" attached hereto. 7. The Agreements entered into between the parties granted TEQUESTA the right to swap Parcel 1 for Parcel 2 (the "Swap") within two years after the closing of the purchase of Parcel 1 and upon the satisfaction of certain conditions. 8. The Tequesta Village Council authorized exercise of TEQUESTA's right to swap Parcel 1 for Parcel 2 at its meeting on August 10, 2000 and, pursuant to the Agreement, Tequesta notified JMZ of this decision in a letter dated August 15, 2000. • (A copy of the relevant excerpts from the minutes of the August 10, 2000 Tequesta 5 ,~ r • -~ ~Ilage Council meeting are attached hereto as Exhibit "D"; copies of relevant correspondence between TEQUESTA and JMZ concerning Tequesta's intent to swap Parcel 1 for Parcel 2 are attached hereto as composite Exhibit "E"). 9. TEQUESTA's counsel advised JMZ of the amount Tequesta would be required to pay in accordance with the Agreements to complete the Swap in a letter dated November 22, 2000. See Ex. E; Affidavit of Peter S. Holton, attached hereto as Exhibit "F" at ¶ 4). On January 26, 2001, TEQUESTA's counsel forwarded JMZ copies of all of the closing documents required to accomplish the Swap and set a closing date of February 7, 2001. Id.; Ex. F, Holton Aff. Tj 5). 10. TEQUESTA has performed all of the conditions precedent required • under the Agreements to effectuate the Swap. 11. Despite TEQUESTA's satisfaction of the closing conditions, JMZ has refused to close the Swap. (Id.; Ex. F, Holton Aff. ¶ 6) 12. TEQUESTA remains ready, willing, and able to close the Swap to this date. (Id.; Ex. F, Holton Aff. ¶~( 7, 9). 13. The Agreement expressly grants TEQUESTA the right to seek to compel JMZ to perform its obligations under the Agreement by a suit for specific performance. WHEREFORE, TEQUESTA demands judgment against JMZ for a decree of specific performance with respect to TEQUESTA's right to Swap Parcel 1 for Parcel 2 and requests that the Court enter an Order: A. Requiring JMZ to specifically perform the Swap of Parcel 1 for n ~J Parcel 2 as provided by the terms of the Agreements. 6 r ., • B. Awarding TEQUESTA reasonable attorney's fees and costs incurred herein; C. Awarding TEQUESTA such other relief as the Court deems proper and just. HEREBY CERTIFY that a true copy of the foregoing instrument has been furnished to WILLIAM A. FLECK, Esquire, Kramer, Ali, Fleck, Carothers, Hughes, Gelb & Bornstein, 6650 West Indiantown Road, Suite 200, Jupiter, Florida 33458, by U.S. r; mail, this ~i ~ day of November, 2001. • N:WCR\13153-63\Answer.doc U JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, Florida 33402-3475 Telephone: 561-659-3000 Facsimile: 561-832-1454 >hn C. Randolph orida Bar No. 129000 7 „ ~ r v EXHIBIT "A PARCEL 2 ~,_.. • LEGAL DESCR[('TION ['ARCEL NO. 2 LYING IN SECTION 3U, `I'OWNSHI[' 40 SOUTH, RANGE 43 CAS`T' A [ ARCEL OF LAND LYING IN SECTION 30, TOWNSHIP 40 SOUTH RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT TE{E PO[N"f OF WTERSECTION OF THE CENTERLINE OF STATE ROAD NO. S (US HIGHWAY NO. I) W['I H T[-[E SOUTH LING OF SECTION 30, TO«'NSHIP 40 SUUTH,'RANGE 43 EAS'T'; Tf{ENCE NORTH 03°S4'SS" EAST (BASIS OF BEARINGS), ALONG THE SAID CENTERLWE, A DISTANCE OF 69S.SS FEET TO A POINT ON THE EASTERLY EXTENSION OF THE NORTH.R[G[{T-OF-WAY LWE OF BRIDGE ROAD (PER DEED BOOK 1166, PAGE SS2 O[~ THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA); TI{ENCE SOUTH 89°46'SS" WEST, ALONG SAID EASTERLY EXTENSION ANU SAID NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 876.58 FEET; THENCE • NORTH 00° 13'OS" WEST, A DISTANCE OF 224.57 FEET TO THE POIN"[' OF BEGINNING; THENCE CONTINUE NORTH 00° 13'OS" WEST, A DISTANCE OF 96.49 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF TEQUESTA DRIVE (PER OFFICIAL RECORD BOOK 6625, PAGE 302 OF T[-IE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA); T(-LENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE FOR THE NEXT TWO (2) COURSES, NORTH 67°S9'40" EAST, A DISTANCE OF 23 i.34 FEET; TU THE BEGINNING OF A CURVE, BEING CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 30S FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9°S2'4b", FOR AN ARC LENGTH OF S2.S9 FEET; T[{ENCE DEPARTING SAID fZIGHT-OF-WAY SOUTH S1°10'19" EAST ALONG ANON-RADIAL L[NE, A DISTANCE OF 38.83 FEET; THENCE SOUTH 00° l3'OS" EAST, A DISTANCE OF 68.97 FEET TO THE BEGINNING OF A CURVE, BEING CONCAVE TO THE WEST AND HAVING A RADIUS OF 70.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF t 8°S6' 18", FOR AN ARC LENGTH OF 23.14 FEET; THENCE SOUTH 18°43'13" WEST, A DISTANCE OF 86.09 FEET; THENCE NORTH 89°46'SS" EAST, A DISTANCE OF 263.52 FEET TO THE POINT OF BEGINNING: • MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive - 9"' Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARK E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com September 13, 2002 Village of Tequesta Tequesta, Florida Bank of America, N.A. West Palm Beach, Florida RE: $5,000,000 Village of Tequesta, Florida Promissory Note dated September 13, 2002 Ladies and Gentlemen: Tallahassee, FL (850)681-3828 We have acted as counsel to the Village of Tequesta, Florida (the "Issuer") of its $5,000,000 aggregate principal amount Promissory Note dated September 13, 2002 (the "Note"). The Note is issued pursuant to the Constitution and Laws of the State of Florida, including particularly Article VIII, Section 2 of the Florida Constitution, Chapter 166, Florida Statutes, the Charter of the Issuer and a resolution adopted by the Issuer January 10, 2002 (the "Resolution"). All terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. In rendering the opinions set forth herein, we have examined the Resolution and other certifications, agreements, documents and opinions of public officials and other officers and representatives of the various parties participating in this transaction. As to questions of fact material to our opinion we have relied upon representations of the Issuer contained in the Resolution, and upon other certifications, agreements, documents, and opinions of public officials and other officers and representatives ofthe various parties participating in this transaction, furnished to us, without undertaking to verify the same by independent investigation. We have assumed the genuineness of all signatures on all documents and instruments, the authenticity of documents submitted as originals and the conformity to originals of documents submitted as copies. Village of Tequesta • Bank of America, N.A. September 13, 2002 Page 2 This opinion shall not be deemed or treated as an offering circular, prospectus or official statement, and is not intended in any way to be a disclosure document used in connection with the sale or delivery of the Note. The opinions set forth below are expressly limited to, and we opine only with respect to, the laws of the State of Florida and the federal income tax laws of the United States of America. Based upon and subject to the foregoing, we are of the opinion as of the date hereof and under existing law, as follows: 1. The Issuer is duly created and validly existing as a municipality pursuant to the Constitution and Laws of the State of Florida, with the power to adopt the Resolution, perform its obligations thereunder and to issue the Note. 2. The Resolution has been duly adopted by the Issuer and constitutes the valid and binding action of the Issuer. The Note has been duly authorized and executed by the Issuer and constitutes a valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, payable solely from the sources provided therefor in the Resolution. • 3. The interest on the Note is excludable from the gross income of the owner thereof for federal income tax purposes and is not an item of tax preference described in Section 57 of the Code for purposes of the federal alternative minimum tax imposed on individuals and corporations. Such interest may be required to be taken into account in determining adjusted current earnings for purposes of calculating the alternative minimum taxable income of certain corporations. The opinions expressed in the first sentence of this paragraph are conditioned upon continuing compliance subsequent to the issuance of the Note by the Issuer with various covenants contained in the Resolution, including, without limitation, its covenant to complywith applicable requirements of the Code necessary in order to preserve the exclusion of interest on the Note from gross income for federal income tax purposes. Failure by the Issuer to comply with such requirements could cause the interest on the Note to be includable in gross income for federal income tax purposes retroactive to the date of issuance of the Note. No opinion is expressed herein regarding other federal tax consequences that may arise due to ownership of the Note. 4. The Note is exempt from all present intangible personal property taxes imposed by the State of Florida. 5. The Note is a "qualified tax-exempt obligation" within the meaning of Section 265 of the Code. Our opinions expressed herein are predicated upon present laws and interpretations thereof. • We assume no affirmative obligation with respect to any change of circumstances or law (including laws that may result from legislation pending before Congress) that may adversely affect the tax-exempt status of interest on the Note after the date hereof. Village of Tequesta • Bank of America, N.A. September 13, 2002 Page 3 It is to be understood that the rights of owners of the Note and the enforceability of the Note and the other documents referred to herein maybe subject to the provisions of the bankruptcy laws of the United States of America and to other applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting creditors' rights, and that their enforcement may also be subject to equitable principles that may affect remedies or other equitable relief. Very truly yours, , ~ /~' • • • September 13, 2002 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE SERIES 2002B $5,000,000.00 KNOW ALL MEN BY THESE PRESENTS that Village of Tequesta, Florida (the "Issuer"), a municipality of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises'to pay from the sources hereinafter provided, to the order of Bank or America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $5,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate of 4.28% per annum (subject to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Owner may designate to the Issuer. Accrued interest hereon shall be paid monthly in arrears on the 13th day of each month, commencing October 13, 2002, and the principal amount hereof, together with accrued interest thereon, shall be repaid in 239 equal monthly payments of principal and interest of $31,041.79 due and payable on October 13, 2002 and on the 13th day of each month thereafter, and the entire unpaid principal balance, together with all accrued and unpaid interest hereon, shall be due and payable in full on September 13, 2022 (the "Maturity • Date"). All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. (2) "Determination of Taxability" shall mean interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Owner for federal income tax purposes under the Code. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to 154% of the interest rate otherwise borne hereby (the "Adjusted Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months, as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or, if this Note shall have matured, within 30 days after demand by the Owner) hereon pay to the Owner, or any former Owner, as maybe appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the Issuer on this Note from the Accrual Date to the date of Determination of Taxability, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Owner and/or former Owner arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time • as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. The principal of and interest on this Note may be prepaid at the option of the Issuer in whole or in part at any time. If a prepayment is made, then there shall be a prepayment fee. The prepayment fee shall be in an amount, if any, sufficient to compensate the Owner for any loss, cost or expense incurred by it as a result of the prepayment, including any loss of anticipated profits and any loss or expense arising from the liquidation or re-employment of funds obtained by it to maintain the credit or from fees payable to terminate the deposits from which such funds were obtained. The Issuer shall also pay any customary administrative fees charged by the Owner in connection with the foregoing. For purposes of this paragraph, the Owner shall be deemed to have funded the loan evidenced by this Note by a matching deposit or other borrowing in the applicable interbank market, whether or not the loan was in fact so funded. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the Pledged Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within ten (10) days after it is due, then the Issuer shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 5% of delinquent payment, which late payment shall be due and payable immediately. • Interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Issuer to the extent permitted bylaw hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNES S OF THE ISSUER WTTHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to a Resolution duly adopted by the Issuer on September 12, 2002, as from time to time amended and supplemented (herein referred to as the "Resolution"), and a Loan Agreement, dated of even date herewith between the Issuer and the Owner (the "Loan Agreement") and is subject to all the terms and conditions of the Resolution and Loan Agreement. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This Note is payable solely from and is secured by a lien upon and pledge of the "Pledged Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Issuer is not and 2 shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Pledged Revenues. This Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, Village of Tequesta, Florida has caused this Note to be executed in its name by the manual signature of its Mayor this 13th day of September, 2002. [SEAL] Mayor of Tequesta ATTEST: By: By: Village Clerk • • FUNDING INSTRUCTION LETTER • Bank of America, N.A. Commercial Banking 625 North Flagler Drive West Palm Beach, FL 33401 Ladies and Gentlemen: You are hereby requested, authorized and directed to fund the Loan in the amount of $5,000,000.00 under the Loan Agreement dated September 13, 2002 between you and us in the following manner: 1. Please pay our bond counsel fees and expenses in the amount of $5,000.00 as follows: Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. Bank of America Account Number: 1600160212 Credit Account: Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Firm Account 2. Please pay your attorney's legal fees and expenses in the amount of $2,500.00 by crediting their Bank of America, N.A. account. 3. Please pay off all outstanding principal and interest on our (obligor #4049073) obligation #299. 4. Please credit the balance, $3,188,241.21 to our account with you #47800004798 Dated as of September 13, 2002 VILLAGE OF TEQUESTA, FLORIDA By: C9 Its: Finan irector • G:\20241\8~a11 closing docs(3).wpd • EXHIBIT A September 13, 2002 $5,000,000.00 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE SERIES 2002B KNOW ALL MEN BY THESE PRESENTS that Village of Tequesta, Florida (the "Issuer"), a municipality of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank or America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $5,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate of 4.28% per annum (subject to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Owner may designate to the Issuer. Accrued interest hereon shall be paid monthly in arrears on the 13 th day of each month, commencing October 13, 2002, and the principal,amount hereof, together with accrued interest thereon, shall be repaid in 239 equal monthly payments of principal and interest of $31,041.79 due and payable on October 13, 2002 and on the 13th day of each month thereafter, and the entire unpaid principal balance, together with all accrued and unpaid interest hereon, shall be due and payable in full on September 13, 2022 (the "Maturity Date"). All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. (2) "Determination of Taxability" shall mean interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Owner for federal income tax purposes under the Code. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to 154% of the interest rate otherwise borne hereby (the "Adjusted Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months, as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or, if this Note shall have matured, within 30 days after demand by the Owner) hereon pay to the Owner, or any former Owner, as maybe appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the Issuer on this Note from the Accrual Date to the date of Determination of Taxability, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Owner and/or former Owner arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note . shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. The principal of and interest on this Note may be prepaid at the option of the Issuer in whole or in part at any time. If a prepayment is made, then there shall be a prepayment fee. The prepayment fee shall be in an amount, if any, sufficient to compensate the Owner for any loss, cost or expense inc~.zr!-ed by it as a result of the prepayment, including any loss of anticipated profits and any loss or expense arising from the liquidation or re-employment of funds obtained by it to maintain the creditor from fees payable to terminate the deposits from which such funds were obtained. The Issuer shall also pay any customary administrative fees charged by the Owner in connection with the foregoing. For purposes of this paragraph, the Owner shall be deemed to have funded the loan evidenced by this Note by a matching deposit or other borrowing in the applicable interbank market, whether or not the loan was in fact so funded. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the Pledged Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within ten (10) days after it is due, then the Issuer shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 5% of delinquent payment, which late payment shall be due and payable immediately. Interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to a Resolution duly adopted by the Issuer on September 12, 2002, as from time to time amended and supplemented (herein referred to as the "Resolution"), and a Loan Agreement, dated of even date herewith between the Issuer and the Owner (the "Loan Agreement") and is subject to all the terms and conditions of the Resolution and Loan Agreement. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. 2 • This Note is payable solely from and is secured by a lien upon and pledge of the "Pledged Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Issuer is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Pledged Revenues. This Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, Village of Tequesta, Florida has caused this Note to be executed in its name by the manual signature of its Mayor this 13th day of September, 2002. [SEAL] Mayor of Tequesta ATTEST: By: Village Clerk By: • • EXH1BTf B LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of September 13, 2002, by and between the Village of Tequesta, Florida, a municipal corporation of the State of Florida (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns (the "Bank"). WHEREAS, the Village Council of the Issuer did on September 12, 2002, adopt a Resolution (the "Note Resolution") authorizing the borrowing by the Issuer of $5,000,000, and authorizing the execution and delivery by the Issuer of a promissory note (herein, the "Note") to evidence such borrowing for the purpose of providing funds, together with other fund$ of the Issuer to finance the Costs of Project (hereinafter defined), to refinance the Refinanced Note (hereinafter defined) and pay costs of issuing the Note; and WHEREAS, the Note shall be issued pursuant to the terms and provisions of the Note Resolution and this Agreement; and WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Note Resolution. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: • ARTICLE I DEFINITION OF TERMS Section 1.01 Definitions. The words and terms used in this Agreement shall have the meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined herein. Unless the context shall otherwise require, the following words and terms as used in this Agreement shall have the following meanings: "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Event of Default" shall mean an event of default specified in Article VI of this Agreement. "Loan" shall mean the outstanding principal amount of the Note issued hereunder. "Loan Documents" shall mean this Agreement, the Note, the Note Resolution, and all other documents, agreements, certificates, schedules, notes, statements, and opinions; however described, referenced herein or executed or delivered pursuant hereto or in connection with or arising with the Loan or the transaction contemplated by this Agreement. Note. "Noteholder" shall mean the Bank as the holder of the Note, or any other registered holder of the • Section 1.02 Interpretation. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice • versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. Section 1.03 Titles and Headin¢s. The titles and headings of the articles and sections of this Agreement 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 OF ISSUER Subject to the Note Resolution, the Issuer represents and warrants to the Bank that: Section 2.01 Powers of Issuer. The Issuer is a municipal corporation duly organized and validly existing under the laws of the State of Florida. The Issuer has the power to borrow the amount provided for in this Agreement, to execute and deliver the Note and this Agreement, to secure the Note in the manner contemplated hereby and by the Note Resolution, and to perform and observe all the terms and conditions of the Note and this Agreement on its part to be performed and observed. The Issuer may lawfully issue the Note. Section 2.02 Authorization of Loan. The Issuer has and had, as the case maybe, full legal right, power, and authority to adopt the Note Resolution and to execute and deliver this Agreement, to issue, sell, • and deliver the Note to the Bank, and to carry out and consummate all other transactions contemplated by the Loan Documents, and the Issuer has complied with all provisions of applicable law in all material matters relating to such transactions. The Issuer, by the Note Resolution, has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank provided for in this Agreement and to that end the Issuer warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Note. The Issuer has duly adopted the Note Resolution and authorized the execution, delivery, and performance of the Note and the Loan Agreement and the taking of any and all other such action as may be required on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated by the Loan Documents. The Note has been duly authorized, executed, issued and delivered to the Bank and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms and the terms of the Note Resolution, and is entitled to the benefits and security of the Note Resolution and this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Note or the execution and delivery of or the performance by the Issuer of its obligations under the Loan Documents have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 Agreements. The making and performing by the Issuer of this Agreement will not violate any provision of the Act, or any bond or note resolution of the Issuer, or any regulation, order or decree of any court, and will not result in a breach of any of the terms of any agreement or instrument to which the Issuer is a party or by which the Issuer is bound. The Loan Documents constitute legal, valid, and binding obligations of the Issuer enforceable in accordance with their respective terms. • Section 2.04 Litigation, Etc. There are no actions or proceedings pending against the Issuer or affecting the Issuer which, either in any case or in the aggregate, might result in any material adverse change 2 • in the financial condition of the Issuer, or which questions the validity of this Agreement, the Note, or any of the other Loan Documents or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. The Issuer is not in default in any material respect under any agreement or other instrument to which it is a party or by which it maybe bound. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. Subject to the Note Resolution, the Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of the Issuer hereunder or under any of the other Loan Documents remains unpaid or unperformed, as follows: a. Payment. The Issuer covenants that it shall duly and punctually pay the principal of the Note and the interest thereon at the dates and place and in the manner provided herein, in the Note Resolution and in the Note according to the true intent and meaning thereof. b. Use of Proceeds. The Issuer covenants that the proceeds from the Note will be used only for Costs of the Project or to pay interest due under the Note. c. Notice of Defaults. The Issuer shall immediately notify the Bank in writing upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and the action being taken or proposed to be taken by the Issuer with respect thereto. d. Financial Reports. The Issuer will cause an audit to be completed of its books and accounts and shall furnish to the Bank audited year end financial statements of the Issuer certified by an independent certified public accountant to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer and the results of its operations and cash flows for the periods covered by the audit report, all in conformity with generally accepted accounting principles applied on a consistent basis. Such audited year end financial statements shall be provided to the Bank in no event later than 210 days after the last day of the subject fiscal year and, if earlier, within forty-five (45) days after such audited year end financial statements are received by the Issuer. Additionally, the Issuer will provide the Bank with its annual operating budget when accepted and approved by the Village Council of the Issuer. e. Maintenance of Existence. The Issuer covenants that it will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under the Loan Documents have been paid in full. f. Records. The Issuer agrees that any and all records of the Issuer with respect to the Project and/or the Loan Documents shall be open to inspection by the Bank or its representatives at all reasonable times at the offices of the Issuer. • Section 3.02 Negative Covenants. The Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the Loan Documents remain unpaid or unperformed, that: • (a) The Issuer shall not alter, amend or repeal the Note Resolution, or take any action impairing the authority thereby or hereby given with respect to the issuance and payment of the Note, without prior written approval of the Noteholder. Section 3.03 Tax Covenants. (a) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Note, the Issuer shall comply with each requirement of the Code applicable to the Note. In furtherance of the covenant contained in the preceding sentence, the Issuer agrees to continually comply with the provisions of the Certificate as to Arbitrage and Other Tax Matters to be executed by the Issuer, at the time the Note is issued, as such certificate maybe amended from time to time (herein referred to as the "Tax Certificate"). (b) The Issuer shall not take or permit any action or fail to take any action which would cause the Note to be an "arbitrage bond" within the meaning of Section 148(a) of the Code. (c) Notwithstanding any other provision of the Note Resolution or this Agreement to the contrary, so long as necessary in order to maintain the exclusion from gross income of interest on the Note for federal income tax purposes, the covenants contained in this Section shall survive the payment of the Note and the interest thereon, including any payment or defeasance thereof. Section 3.04. Miscellaneous Covenants and Representations. (a) The Issuer shall not loan money or make advances or other extensions of credit to other • persons or entities except agencies of the Issuer. (b) The Issuer shall not create or permit any mortgage or lien on any of its assets without the prior written consent of the Bank, which consent will not be unreasonably withheld. (c) The Issuer shall not dispose of any of its assets other than in the ordinary course of business. (d) The Issuer shall promptly inform the Bank of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (e) The Issuer shall maintain such liability, casualty and other insurance as is reasonable and prudent for similarly situated municipalities of the State and shall upon the request of the Bank, provide evidence of such coverage to the Bank. (f) The Issuer is, to the best of its knowledge in compliance with, and the Issuer shall comply with all applicable federal, state and local laws and regulatory requirements the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (g) In the event the Note or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Issuer shall pay such taxes or reimburse the Bank for any such taxes paid by it. • (h) For so long as the Note shall be Outstanding, the Issuer shall main a banking relationship with the Bank. 4 • Section 3.05. Automatic Payment Procedure. The Issuer hereby authorizes the Bank to automatically deduct from the Issuer's account with the Bank numbered 47800004798 or such successor account as may be designated by the Issuer the amount of any payment due from the Issuer to the Bank under the Loan Documents. If the funds in the account are insufficient to cover any payment, the Bank shall not be obligated to advance funds to cover the payment. At any time and for any reason, the Issuer or the Bank may voluntarily terminate the automatic payments provided for herein by written notice delivered to the other. ARTICLE N CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Representations and Warranties. The representations and warranties set forth in the Loan Documents are true and correct to the best of the Issuer's knowledge on and as of the date hereof and on and as of the date of each Advance under the Note. Section 4.02 No Default. On the date hereof and on and as of the date of each Advance under the Note, the Issuer shall be in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03 Delivery of Loan Documents. All Loan Documents in form and substance • acceptable to the Bank shall have been executed and delivered to the Bank. Section 4.04 Supporting Documents. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in form and substance to the Bank: (a) The opinion of the attorney for the Issuer regarding the due authorization, execution, delivery, validity and enforceability of this Agreement, the Note and the due adoption of the Note Resolution (enforceability may be subject to standard bankruptcy exceptions and the like). (b) The opinion ofMoyle, Flanigan, Katz, Raymond & Sheehan, P.A., regarding, or to the effect that, (i) the due authorization, execution, delivery, validity, and enforceability of the Agreement and the Note and the due adoption and enforceability of the Note Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like), (ii) the exclusion of interest on the Note from gross income for federal income tax purposes and designation of the Note as a "qualified tax-exempt obligation," (iii) that the Note is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code, (iv) interest on the Note is exempt from all present intangible personal property taxes imposed by the State of Florida and (v) the Note is a "qualified tax-exempt obligation" under Section 265 of the Code. (c) A certified copy of the Note Resolution; and (d) Such additional supporting documents as the Bank may reasonably request. U 5 ARTICLE V THE LOAN; ISSUER'S OBLIGATION; THE NOTE Section 5.01 The Loan. The Bank hereby agrees to loan to the Issuer the amount of $5,000,000.00 to provide funds to finance certain of the Costs of the Project upon the terms and conditions set forth in the Note Resolution and in this Agreement. The Issuer agrees to borrow and agrees to repay the amount of $5,000,000.00 upon the terms and conditions set forth in this Agreement. Section 5.02 Note Not to be Indebtedness of the Issuer or State. The Note, when delivered by the Issuer pursuant to the terms of this Agreement, shall not be or constitute a general obligation or indebtedness of the Issuer, or the State of Florida, or any political subdivision of the State of Florida, within the meaning of any Constitutional, statutory or other limitation of indebtedness, but shall be special obligation payable solely as herein provided. No Noteholder shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer to pay the Note or the interest thereon. None of the Loan Documents create a lien upon any facilities of the Issuer. Any agreements or representations herein or contained in any Loan Document do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer, and in the event of a breach of any agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Section 5.03 The Note. To evidence the Loan, the Issuer shall issue and deliver to the Bank the Note in the form attached to the Note Resolution. • ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Issuer shall default in any payment of the principal of, premium, if any, or the interest on the Loan when and as the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) the Issuer shall default in the performance of or compliance with any term or covenant contained in the Loan Documents, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with and for which a remedy is specifically provided herein, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Issuer by the Bank; or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of Article III of this Agreement, whichever is earlier; or (c) any representation or warranty made in writing by or on behalf of the Issuer or in any Loan Document shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or • (d) The Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or 6 • (e) The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Issuer, or an order, judgment or decree is entered by any court of competent~unsdiction appomtmg, without the consent of the Issuer, a receiver or trustee of the Issuer or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (f) The Issuer shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State of Florida; or (g) Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Issuer or the whole or any substantial part of its property, and such custody or control shall not be terminated within ninety (90) days from the date of assumption of such custody or control; or (h) The Issuer shall default in the due and punctual payment or performance of covenants under any obligation for the repayment of money. Section 6.02 Effect of Event of Default. (a) General. Upon the occurrence of any Event of Default, subj ect to the provisions of the Note Resolution, the Noteholder shall have and may exercise any or all of the rights set forth herein (which rights are in addition to and not in lieu of any other rights the Bank may have under applicable law) provided, • however, the Noteholder shall be under no duty or obligation to do so. (b) Acceleration: Other Remedies. Immediately and without notice, upon the occurrence of any Event of Default, the Noteholder may declare all obligations of the Issuer under the Loan Documents to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable and no further Advances shall be required to be made by the Noteholder. Upon such declaration, the Noteholder may also seek enforcement of and exercise all remedies available to it under the Note Resolution, the Act and any other applicable law. ARTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder, or under the Note or other Loan Documents shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law or in equity. Section 7.02 Amendments, Changes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified without the prior written consent of (i) the Bank (provided the Bank is a holder of a portion of the principal of the Note) or the Noteholders of at least fifty-one percent (51%) in aggregate principal amount of the Note and (ii) the Issuer. The Issuer agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in connection with modifying and/or amending this Agreement at the 7 • Issuer's request or behest, including costs and reasonable attorneys fees incurred in connection with any proposed modification or amendment requested by the Issuer, even if the Bank does not agree to the same. Section 7.03 Costs and Expenses. The Issuer agrees to pay the Bank's counsel a fee of $2,500.00 in connection with the preparation, execution and delivery of this Agreement, the Note and the Loan. The Issuer shall pay all costs and expenses it incurs in connection with the preparation, execution and delivery of the Agreement, the Note and the Loan and any other documents that may be prepared or delivered in connection with this Agreement. Section 7.04 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, -and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 7.05 Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. Section 7.06 Term of Agreement. Except as otherwise specified in this Agreement, this Agreement and all representations, wan: anties, covenants and agreements contained herein or made in writing by the Issuer in connection herewith shall be in full force and effect from the date hereof and shall continue in effect as long as the Note is outstanding. • Section 7.07 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to: If to the Issuer: JoAnn Forsythe Finance Director Village of Tequesta PO Box 3273 250 Tequesta Drive Tequesta, Florida 33469-0273 If to the Bank: Vanessa Civalero Vice President Bank of America, N.A. 625 No. Flagler Drive, 10th fl. West Palm Beach, FL 33401 with a copy to: Michael Posner • Ward, Damon & Posner 4420 Beacon Circle West Palm Beach, FL 33407 • or to such other address as either party may have specified in writing to the other using the procedures specified above in this Article VII, Section 7.07. Section 7.08 Apulicable Law. This Agreement, and each ofthe Loan Documents and transactions contemplated herein, shall be construed pursuant to and governed by the substantive laws of the State of Florida. Section 7.09 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Issuer shall have no rights to assign any of their rights or obligations hereunder without the prior written consent of the Bank. Section 7.10 Conflict. In the event any conflict arises between the terms of this Agreement and the terms of any other Loan Document, the Bank shall have the option of selecting which conditions shall govern the loan relationship evidenced by this Agreement and, if the Bank does not so indicate, the terms of this Agreement shall govern in all instances of such conflict. Section 7.11 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. Section 7.12 Attorneys Fees. To the extent legally permissible, the Issuer and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement, the Note, or the Note Resolution (including any trial(s), appeal(s)), or bankruptcy proceedings), the prevailing party shall be • entitled to recover reasonable costs and attorneys' fees from the other party. Section 7.13 Entire Agreement. Except as otherwise expressly provided, this Agreement and the other Loan Documents embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. Section 7.14 Further Assurances. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects, for the purpose of carrying out the transactions contemplated by this Agreement. Section 7.15 Incorporation by Reference. All of the terms and obligations of the Note Resolution are hereby incorporated herein by reference as if said Note Resolution was fully set forth in this Agreement. Section 7.16 Arbitration and Waiver of Jur~rial. This Section 7.16 concerns the resolution of any controversies or claims between the Issuer and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any document related to this Agreement, including the Note and the Note Resolution (collectively a "Claim"). At the request of the Issuer or the Bank, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will apply even though this Agreement provides that it is governed by the law of a specified state. • Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof 9 • ("J.A.M.S."), and the terms of this Section 7.16. In the event of any inconsistency, the terms of this paragraph shall control. The arbitration shall be administered by J.A.M.S. and conducted in West Palm Beach, Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the tenors of this Agreement. This Section 7.16 does not limit the right of the Issuer or the Bank to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. • By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Agreement. No provision in this Agreement or in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions of this Agreement or in any Loan Document for arbitration of any controversy or claim. • 10 • 1N WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the Date of Execution set forth below. (SEAL) VILLAGE OF TEQUESTA, FLORIDA By: Title: Mayor By: Title: Clerk Date of Execution: September 13, 2002 BANK OF AMERICA, N.A. By: Title: Vice President • Date of Execution: September 13, 2002 G:\20241\8\Itao(4) with exhbits.wpd 11 • TRANSCRIPT OF PROCEEDINGS $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE DATED SEPTEMBER 13, 2002 • FUNDING INSTRUCTION LETTER Bank of America, N.A. Commercial Banking 625 North Flagler Drive West Palm Beach, FL 33401 Ladies and Gentlemen: You are hereby requested, authorized and directed to fund the Loan in the amount of $5,000,000.00 under the Loan Agreement dated September 13, 2002 between you and us in the following manner: 1. Please pay our bond counsel fees and expenses in the amount of $5,000.00 as follows: Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. Bank of America Account Number: 1600160212 Credit Account: Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Firm Account 2. Please pay your attorney's legal fees and expenses in the amount of $2,500.00 by crediting their Bank of America, N.A. account. 3. Please pay off all outstanding principal and interest on our (obligor #4049073) obligation #299. 4. Please credit the balance, $3,188,241.21 to our account with you #47800004798 Dated as of September 13, 2002 VILLAGE OF TEQUESTA, FLORIDA / l.~-Q.~ By: u Its: Finan~Director G:\20241\8\all closing docs(3).wpd September 13, 2002 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE SERIES 2002B $5,000,000.00 KNOW ALL MEN BY THESE PRESENTS that Village of Tequesta, Florida (the "Issuer"}, a municipality of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises"to pay from the sources hereinafter provided, to the order of Bank or America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $5,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate of 4.28% per annum (subject to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Owner may designate to the Issuer. Accrued interest hereon shall be paid monthly in arrears on the 13 th day of each month, commencing October 13, 2002, and the principal amount hereof, together with accrued interest thereon, shall be repaid in 239 equal monthly payments ofprincipal and interest of $31,041.79 due and payable on October 13, 2002 and on the 13th day of each month thereafter, and the entire unpaid principal balance, together with all accrued and unpaid interest hereon, shall be due and payable in full on September 13, 2022 (the "Maturity. Date"). All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. (2) "Determination of Taxability" shall mean interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Owner for federal income tax purposes under the Code. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to 154% of the interest rate otherwise borne hereby (the "Adjusted Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months, as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or, if this Note shall have matured, within 30 days after demand by the Owner) hereon pay to the Owner, or any former Owner, as may be appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the Issuer on this Note from the Accrual Date to the date of Determination of Taxability, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Owner and/or former Owner arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note I shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. The principal of and interest on this Note may be prepaid at the option of the Issuer in whole or in part at any time. If a prepayment is made, then there shall be a prepayment fee. The prepayment fee shall be in an amount, if any, sufficient to compensate the Owner for any loss, cost or expense incurred by it as a result of the prepayment, including any loss of anticipated profits and any loss or expense arising from the liquidation or re-employment of funds obtained by it to maintain the creditor from fees payable to terminate the deposits from which such funds were obtained. The Issuer shall also pay any customary administrative fees charged by the Owner in connection with the foregoing. For purposes of this paragraph, the Owner shall be deemed to have funded the loan evidenced by this Note by a matching deposit or other borrowing in the applicable interbank market, whether or not the loan was in fact so funded. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the Pledged Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within ten (10) days after it is due, then the Issuer shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 5% of delinquent payment, which late payment shall be due and payable immediately. Interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to a Resolution duly adopted by the Issuer on September 12, 2002, as from time to time amended and supplemented (herein referred to as the "Resolution"), and a Loan Agreement, dated of even date herewith between the Issuer and the Owner (the "Loan Agreement") and is subject to all the terms and conditions of the Resolution and Loan Agreement. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. This Note is payable solely from and is secured by a lien upon and pledge of the "Pledged Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Issuer is not and 2 shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Pledged Revenues. This Note may be exchanged or transfenred by the Owner hereofbut only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, Village of Tequesta, Florida has caused this Note to be executed in its name by the manual signature of its Mayor this 13th day of September, 2002. [SEAL] Mayor of Tequesta ATTEST: By: By: Village Clerk MOYLE, FLANIGAN, 11HTZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive - 9`h Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MA12K E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com September 13, 2002 Village of Tequesta Tequesta, Florida Bank of America, N.A. West Palm Beach, Florida RE: $5,000,000 Village of Tequesta, Florida Promissory Note dated September 13, 2002 Ladies and Gentlemen: Tallahassee, FL (850)681-3828 We have acted as counsel to the Village of Tequesta, Florida (the "Issuer") of its $5,000,000 aggregate principal amount Promissory Note dated September 13, 2002 (the "Note"). The Note is issued pursuant to the Constitution and Laws of the State of Florida, including particularly Article VIII, Section 2 of the Florida Constitution, Chapter 166, Florida Statutes, the Charter of the Issuer and a resolution adopted by the Issuer January 10, 2002 (the "Resolution"). All terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. In rendering the opinions set forth herein, we have examined the Resolution and other certifications, agreements, documents and opinions of public officials and other officers and representatives of the various parties participating in this transaction. As to questions of fact material to our opinion we have relied upon representations of the Issuer contained in the Resolution, and upon other certifications, agreements, documents, and opinions ofpublic officials and other officers and representatives ofthevarious parties participating in this transaction, furnished to us, without undertaking to verify the same by independent investigation. We have assumed the genuineness of all signatures on all documents and instruments, the authenticity of documents submitted as originals and the conformity to originals of documents submitted as copies. Village of Tequesta Bank of America, N.A. September 13, 2002 Page 2 This opinion shall not be deemed or treated as an offering circular, prospectus or official statement, and is not intended in any way to be a disclosure document used in connection with the sale or delivery of the Note. The opinions set forth below are expressly limited to, and we opine only with respect to, the laws of the State of Florida and the federal income tax laws of the United States of America. Based upon and subject to the foregoing, we are of the opinion as of the date hereof and under existing law, as follows: 1. The Issuer is duly created and validly existing as a municipality pursuant to the Constitution and Laws of the State of Florida, with the power to adopt the Resolution, perform its obligations thereunder and to issue the Note. 2. The Resolution has been duly adopted by the Issuer and constitutes the valid and binding action of the Issuer. The Note has been duly authorized and executed by the Issuer and constitutes a valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, payable solely from the sources provided therefor in the Resolution. 3. The interest on the Note is excludable from the gross income of the owner thereof for federal income tax purposes and is not an item of tax preference described in Section 57 of the Code for purposes of the federal alternative minimum tax imposed on individuals and corporations. Such interest may be required to be taken into account in determining adjusted current earnings for purposes of calculating the alternative minimum taxable income of certain corporations. The opinions expressed in the first sentence of this paragraph are conditioned upon continuing compliance subsequent to the issuance of the Note by the Issuer with various covenants contained in the Resolution, including, without limitation, its covenant to complywith applicable requirements of the Code necessary in order to preserve the exclusion of interest on the Note from gross income for federal income tax purposes. Failure by the Issuer to comply with such requirements could cause the interest on the Note to be includable in gross income for federal income tax purposes retroactive to the date of issuance of the Note. No opinion is expressed herein regarding other federal tax consequences that may arise due to ownership of the Note. 4. The Note is exempt from all present intangible personal property taxes imposed by the State of Florida. 5. The Note is a "qualified tax-exempt obligation" within the meaning of Section 265 of the Code. Our opinions expressed herein are predicated upon present laws and interpretations thereof. We assume no affirmative obligation with respect to any change of circumstances or law (including laws that may result from legislation pending before Congress) that may adversely affect the tax-exempt status of interest on the Note after the date hereof. Village of Tequesta Bank of America, N.A. September 13, 2002 Page 3 It is to be understood that the rights of owners of the Note and the enforceability of the Note and the other documents referred to herein maybe subject to the provisions of the bankruptcy laws of the United States of America and to other applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting creditors' rights, and that their enforcement may also be subject to equitable principles that may affect remedies or other equitable relief. Very truly yours, ~ `~~~~~ ~• ~G~_ /~ / ~ ~ ' ~~ ~._~~~_, "~ ~~ r~ T~'~~~. . ~~~D~~~~~J ~~~. Attorneys and~Gounsetors John C. Randolph, Esquire Direct Dial: 561-650-0458 Direct Fax: 561-650-0435 E-Mail: jandolph@jones-foster.com September 13, 2002 Village Council Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469-3273 Bank of America, N.A. 625 North Flagler Drive Tenth Floor West Palm Beach, Florida 33401 Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 625 North Flagler Drive Ninth Floor West Palm Beach, Florida 33401 RE: $5,000,000.00 Village of Tequesta, Florida Promissory Note dated September 13, 2002 Ladies and Gentlemen: ,~<_,_,_ t..~ ~-~02-3475 I have acted as Village Attorney for the Village of Tequesta, Florida (the "Village") in connection with the $5,000,000.00 Note from the Village of Tequesta, Florida, dated September 13, 2002, and payable to the order of Bank of America, N.A., or registered assigns. In such capacity, I have examined the following: A. Resolution No. 79-01/02 adopted by the Village Council on September 12, 2002, authorizing the issuance of a Note in the principal amount of $5,000,000.00 to finance various capital projects of the Village and to refinance the Village's Promissory Note, dated January 11, 2002, and the execution of a Loan Agreement between the Village and Bank of America, N.A. B. The Charter of the Village of Tequesta, as amended (the "Charter"), and Chapter 166, Florida Statutes, as amended; and u~wm.jones foster.cc~rr~ Village Council Bank of America, N.A. Moyle, Flanigan, Katz, Raymond September 13, 2002 Page 2 C. Such other documents, certificates, records, and proceedings as I have considered necessary to enable us to render this opinion. Based on such examinations, I am of the opinion that: 1. The Resolution has been duly adopted and no further action of the Village of Tequesta is required to authorize the execution and delivery of the Note and Loan Agreement specified herein. The Resolution, note and Loan Agreement constitute the legal, valid and binding obligations of the Village, enforceable in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws related to or affecting creditor's rights generally or by general principles of equity. 2. The adoption of the Resolution and compliance with the provisions thereof, under the circumstances contemplated thereby, are permitted under the provisions of the Charter and, to the best of my knowledge without undertaking any independent research, do not and will not in any way constitute a breach or default under any agreement or other instrument to which the Village is a party or any existing law, regulation, court order or consent decree to which the Village is subject. 3. Except for the attached, to the best of my knowledge, there is no action, suit, proceeding or investigation at taw or in equity before or by any court, public board or body, pending or threatened against or affecting the Village, wherein an unfavorable decision, ruling or finding would materially adversely affect the Village's obligation under the Resolution, or aversely affect the validity of the Loan Agreement or Note or the security therefore. Sincerely, JONES~OSTER,, JOHNSTON & STUBBS, P.A. ~ l /` ~z~ , ,'John C. Randolph ~ Village Attorney JCR/ssm N:WCR\13153-01\Bank ofAmerica Opinion Letter2.doc i i i i .: .; ~ ~ _ ~ c ~~~~~ 18996 Pioint I?riye Tequoata, F1, 3 9 W.A. Vtrhooven Robert $. F.gq ~~ . ~1 Ate, r s Td Elected Officials of the Village of Toquoeta. ~ ~ ~ - In behalf of the cltiz~ of the Village of T for Responsible ~t ~peCtfully i Abvisory Ballots expressing ariehea of the 1 mgJor eacpendlturea by the Village govcxrtrnc~u. Elecoed officials of tho Vill~g6 should witn~ 1' The 'Vl[t~Sa of Tegt~ata, Florida i8 a tr~ttt by the Florida legislature, I.a~rs of F1. orida, C SP~cla,l Acts of 1957, as ~ by $~~ and is subject to the pmvlsiotia of Chapter 166, F1oid 2~ The Village held Q ~;,a,l public meet ~~~d "Meeting°) on .15,1998 an oui luwwledge the VItta,ge of Tequ~ta did ~ °~~~ ' ~uro the publication of an afflcta M~~ in any regulacIy publiahe+d newe . .~ c~ulation in Palm County, Florida. ~. To our beat Icrto~rl ~ . edge the Vlltege of T faxed a notice of the II~eetir~ pn or about -- Cifi~~ harowith rng,~rdlt,~g I - . s the following; ~F~Ilty created . zaptor 57-1915, ordinetlc~a, and 1 ~ Statutes. . ! n$ ~u~ointftar ~ to :thc best of ~t pay far or noticx of rho ~ 1 ~ of g'onacxl ~ ata me~Iy 1.1, 1p98 to~ ~- .. .~ F i ~C ,lt~pitor COttri~er. 4. To our bust knowlodge ~ vi11 a of h$ve any proof of ' publicgt~ton of any oPf{. 1~octing. . i 5. A handful .(teas t~ua 30) ambers pf t; Ming, and wet advised tit the V{Ili going to pmrch8,ge a ehopphig Oenter parcel (t being r~efettod to as the "Prvpetty„) and the ~ T~gtteaca v~ae to pumhage being rrfernCd to as I.~e~s than I/3 of the entire Property, ficvm tt~ ptuchased it !n 1997 for about 51,300,000. 6. At this Meetirtg tha repreaetttadive of Pro tsoata duos not notioe of the ~ public attended of ~aqueata weer eatir~ ply t the Vi118,gc of j Part A") ~ 1 ~, owner tttst [lad owner of tlye pertly a,dmttted that title was held un tho : of a newly formed corporation that had ao ot#ur asdata oth~t thaw th4 PropcRty. 7. The owrtez of the prvparty has provido either persoriai~ lcttora of cr~odit (unle4s aubm{ $50,000 by the deadlint dabs of Jatu~ry 15~ third party un s tizac it would have purch~e "Part A" bark froaa the Village of tr~ult~d. 8. The owneac of the property did twt s~groc no guarandas. ~ to the aura of i .1999) or other the rnOA13y m Tequesta whocs keep "Part A" I I i i ~ . ~. I 1 .; t £ree and titer from ~,y fn,a~ings that it Iar3o a Yp nits Proporty during ~ two y,~ period after V u~,~ - P by ~ til~ge of T ~~~. Z'hia could rosult in a - foroclosuru by a Iand~r on th;e prop~y. and of course ~ . ptu~lt~ by the ~- °~Y Darner. The Village would be out -(he rep- ~ . p~eae puce of 5477 000 a Ithout recourse to 4ny vlabl4 f - P~Y• 9. 'Wo are of the beiiat that the b t i ' o a coat the Vii a and ~$ taxpayers of Tequeeta could roach or exoood ' x,500,000, plea i ri toreat over the r~ct ~y~ yoa~ for 24 or 3 ~ - your bonds if a new village hall and roadway ,are cosutt,uCted, , ~ d Brid go Road is rodeveloped ~ pl~,~, , I 10. An AdviBOry Ballot has bean clmula to residcatta of ~ I tl~e Village of Tequcseta, in the form dtu,,ched - •. Thera have I . b~ returns from 315 citing, of which all '°~ but ~ one cltf i vdled against purchase of tho land (Print A) b . ~p V- I i11 of age • 7`~~ta, and constnsction of a nee vi ~(( . ~ - I1. Under Fiarida Statute 166, 'ovhich i$ _ liable to th,c V{liege of Tequeata, thane must be a thirty (30) - y notiva of a»,y rn~oting at which the approval of a purr} f p~perty by ~ mUniclpality is to be voted upon, 12. the ViIla~g~c of Toquosta, held its ~ I}ocembar on ~ m°'a~ for nb~x 10, 1998 and d(d not p vide any notiao ~. - .; ~- 1 of the special h~et~g or t#LC sub~eu matia~r the that stranded this regular meoRi~g. - 13. Ttuo Village of Teque4ta has ~riolaood Florida Statute 166, and arty sa of Villas of irito a purrtiase agt or option do ptuCtt P~oporty is nu11 and void, l.ttitio. ~Ye earnestly and x~apoctfuily reque~a~t tau T~questa not go ahead with this i!i•advised vew ddvolaprnenc vrith private interests. in apparon laws of this stabs. ~= , • ~inceroly for Tegt~ata,,, c:aauzrta~n I- • - ' f f4 the public ' i pnovlalona of ! egtreata to ertte~ Part A of tha . i t the Village of ~' ~~ ~~ 1 violation of the Ebert .Cook, Esq. xegal dv~or Subsection 259-09Z(1~ Florida Sbbnht! ('~d) =3~e.~, tng~onal, or local aawtrmayntai agcnc3es or ptfva0o araties deaa,[gnabac[ to muuga Lznds uadet this soctlon ~ha11 develop and adopt with the approval of t#te board of trtt+~teei, an lndtvidual rnartagtisntct,tplan for each project dasigtned b0 eortar:m and protect ouch Ianda and !heir aaaoeiabetii nahiral reaourees. Private nectar fr-voivte>nent in mara~onent plan dawelopatent Wray be wed too axpedilt tho planntrta proceaa. 8eg~nnirtg Rsc~1 year 199.1999, lndiv9dusl matugememt piano r~,~r~ed by 1.. 253.1134(4) ah~aIl 6e davoloped witfi inpstirotn an adriwry group. Meo~brnc of titi: adv(,aory group obeli ir~cludg, at r mintmutn, nproseneeive. of the lead land maaa,gi~ agatxy, caatanagint entitirs, lou! ptivrbe pr~apctty own~en, the appropriate aosI and water conseryatto~n dtstrlct a local evct,servatton oraanit;atiarr, and a local elachd ofFciel, The advL~ory broup obeli conduct at least onQ public hearing within the country in wttlch tho parcel or project L located, . ~~t patrol or pro~ect"idea ~t,~d 1~.~,. =e mrnt~v,ettl f ' • • _.. u~d arutaunced at a echedu[od tnsatirig of tlw local gov~~lr~g bey before dtia actual public hearing. The management proapecmt tbquined pwauant ta,paragrsph (9~(b) shell bz available b the pvbUc for a period of 90 days prier Ln the public hearing. Once a plan is adopted, the manakins agonry or artt;ty shall updnbe tt~ plort at least every 5 years to a forte and tJtant~er' preralbed by rule of lire board of trusteed. Such plans may ir-clude tranafar~ of iQaaehvkt int,etedls to appxvpri4~ cotvcrvation ocganl~attions designated by Lfte band ManagententAdvlsory Ceundl far urea coruiscant with ttt,e purlsvsa of the ataanizatiorte and the pnrbectio:t, ptt~servutian,,and proper tnanagentsnE of thv Ltr-ds t-rd their resources. Volunb.or xnatuigesne~+t aarcia4rtiea is rncouraged, inciudirig, but not llmitt!d to, a~siwtartcc by youtba patticipatiRg in - programs sponsored by •habe or Ioul agmtctcs, by volunteett cpatuorec( by enviroruntsntal or civic m`ganlzadone, and by individuals patlkipating In progr:ma tvr eoenmitned daltr,gtlvnts and adults For oath p~'akctfot Mrhlt;hlanda arc ~qu[tod ttf~er 7~y 1,199s, art individual mt-na6ament plan shall ba adopted and in place no IaEer t>~rt 1 yerr a16er true essen(fa1 paz+al or parcels'idena6cd in the utctual Conservation and Rarnwtion Lands report prepared pwsuant to s. ?99.095(2,)(a) have besrt a+dquirai. BeSinntng in fiscal year 199&1999, the Drparlmont of Haviconmoittal ProbactloQ shall 1 8abacc~lc~a 259-~92~10) k7otidrt 9tat~ di,tdbuoe only 75 percet1t of tine apgt~isitioA funds tb which z budget entity oc water aunaaame~-t di~ttict would ott~rwise bs antlttied b~oert tbt i'n+~e=vattart 2000 TrwE pond to any budget trtt;ty e,r aty~ ~vabet otattiaganeat d4ttkt that has mare than oM- third of to ntuugemet~t pluu avvrdae. I ~ r , 1 _ ~ . ... .~~...._ ~. .. t - 1 I z i i i; i i i i ~: 1 1 ' Advisory Ballots Say 1010 to Tequesta Ta~at~an Without Re r• P By. canton ~. scodd,~d r Mayor F..szs~citue Jeu The mross~ge of advisory ballots l~r~ewfl govern Tequeata ls: the voloe of the electo~ra~ fob any major expenditvr~e covered by taxes. Any large expe~sdlture by Tequeata gov~ char oommunlcation and consultation with tb~e P~l?erty taxes fundicf.g lt. C~ovcrnmcnt of the people, by the people, ~ is Ethe heart end soul of hometown communitli bodrnck of our fraodom ss a united y The Village Council's e~nacttnent of a aontri w~th a private comcrner~ciel doveio for per pure T~queatn Plana, plug Construction of a new oil] development of Bridge Road 8$ planned, $.,500,040 or snore to Tequeata's bondod irideb Including lnteroat ova 30 years for bond fi could ax,oeed xl,?,()0 for every roan, w T6questa, for that once project elope. T?sc need for ~~urnecdng tiruo-worn T recognized and ua~derstood. But an 4zpondi of t~y~, ~y to a~haaoe ~ pntva ddveloprnent, without fully informing and i - i I ~entation ~ i. 14, X1999 ~ to hose who must bo heard - u~nt requlre~ oo~te wh,o pay ~ . foz the people which are the coal Sgt ~; of land In ;e hall and no- ld ; $dd up to ~c.~ng, tho cost and child in ~ueata Plaza is of $3,500.000 ~ '1 ~ ~~ ~ I -~ I - - ; I ,: !ub act. 4 1 bo sous queatloa It ' total of 315 t~esidoitta have sent Advl~ory I doting NO to eny such rq~jo~c expenditure ! Ylllage hall in a comme~l dev~loptnortt. '~'ES. ManY added c,~lLUtic aatnmmay obJe dxpenditura for a rsow vll ~ hell. aad land r~ad~way aplittin$ . ~equesta Plar$ in two. . mould pay for their Darn ro4da. 1~at th~$ was no notion to the public of r <o peid pabiication notice of the he8ty Cotnycll epprov~ rho S1~ rnillion~ contract, no pt~ovl; h~uing with 30 days advanoo notice, end n~ p~btic rePereduum, ~ raiser serious qu~aatlonsc ; arith Florida statutes, ~equoets's own chart, odd lnances. . By their Advisory Ballot votes herewith, a-~y NO to a new viIigga hall, and CIO .commarcial developer who stands to gala pr c.~pense. Sealing a mall building epp~scd Tequesta and rhsrging 5100,000: ~ to dtrnolish ~$atel`u1. Up to 3 tizcivi~g 8torea' arould be ~uld Choy go? RetocBti~g them could hurt thel Anaarering the Second question oA the ~1 _ 8 (759b m~jorfty) cltiz~s voted YBS to rd~ llage Ball roar to Vi11a~g~e C,parlc end f ~b1lshQd (and paid for)~oentet of Tequosta go 77 (254b) voted No, sonao obJectigg to ,. i cis. ~q~. a1j but data ~' lend or a t~v I n voted ~ nr~g~ to ~ n+oedlots ! For ~ northsooth MaI! develop~a the p[an'e dota~la, taeotit~g called Lo ion for a public provision for a s to compllattio0 ~~ end ame~dod Teq~e$ta electors o s~bsidizir~g a fit 4t taxpQyers' at 5750,000 to it ins uttier~y :vict~cd. VVhaio butin~ss. dvisory Ballots, stn '.the exiatir~g ~tairi es the Iong . ~.inistra[ive r ,' i } o~Plces north of the V!!i$ge Gr~aon ark as Ienc~ o p wnod b T1.equeata. Some thlrik the village administratl should contlnuc tb rent offices in the Wdchovia bank bulldI~g. Several obf ect~ad to new ofP[oe congtri~ction of any kind. ' Not to be overloo~d i8 the cost • - f soul P ~ avow l~'~~6 9~~ for fits rescue pecsorutel noFr ' • used ttt portable b~11d1cLgs, Also thence mtut t~ enlarged hot~i fc~r fire bcttc3c$ aid ambulances - . ' About $6,500,000 will be nse~ded to fi the aaw r+ovearae ogmosia water plant norv undoc construction, t ply u~uaa P off' land and ~nstructlon of s now villa~,e I c~utd e~icalate . Ttgtx~ta's bonded indebtedness to over $17,0 0,000, inciudlxi~g i~~+est for 30 years. 7~cae am calculated timatea. xf the - Vi1Ia8o government and cltltatu work tog ~bs~dally teauced. . they can ba Village government that apprn~ dui . 1 vy ezpendipu~ w thout clear com,tounlc$tion and co . naultation ith;taxpayers is gbvemmcnt by dl~tum, not . S~Ch a trend wotttd ~ not be welcomed Toqueata, t~ people of ! TeQueaca goveriatnent officials should. ~i iy read the aary Sallote in this comPondium, ro~~thlnk their . cQmmitrnent for multi-tniltlon dollar - Pm)~ w tho4t consent of ' etectoca who are elresdy - burde:sed ~vlth the vest pro ~Y taycea in Tequasta~a bittory ~ ~ ' ~ t ~ i j i 1 ,. I Yi t !~ i I IN THE CIRCUIT COURT OF THE FIFTEEN'T'H JUDICIAL CIRCUIT, IN AND FOR PALM BEAC~i COUNTY, FLORIDA. JMZ 1'F,QUESTA PROPERTIES, INC., a Florida corporation, Plaintlff, v. VILLAGE OF TEQUI/STA, a Florida municipal corporation and political sub-division of the State of Florida, CASE NO.: ~ ~ ~ ~ ~ ~ ~ ~ ~ ` CL~ ~~K t- ~ GIRCUirt G1 /II. I~IVISI('y Defendant. OCt 3 1 2"vul CO~'YE~ i=~f INAiNG RECEf V Plaintiff, JMZ TEQUESTA PROPERTIES, INC., sues the Defendant, VILLAGE OF TEQL7$STA, and alleges: 1_ This is an action for specific performance for real property of a value in exce9v of Fifteen Thousand ($X5,000.00) Dollars situate in Palm Beach County, Florida. 2. At all times material hereto the Plaintiff, JMZ TEQUESTA PROPEItTLES, INC., (hereinafter `7MZ") was and is a Florida corporation with its principal place of business iocated in Tequesta, Palm Beach County, Florida. 3. At all dmee material hereto the Defendant, VILLAGE Or TEQUESTA, (hereinafter "VOT") was and is a municipal corporation organized, e~aisting and operating under the laws of the State of Florida and is a polidcal sub-division of the State of Florida with its principal office located in Tequesta, Palm Beach County, Florida. 4. On or about February 1, 1999, the parties entered into a dransaction governed by a series of written agreements relating to the sale and purchase, leasing and re-purchase of JMZ v. VfLLAGE OF TEQUESTA CASE NO.: a certain piece o£ real property situate in requests, Palma Beach County, Florida. Those Agreements are copied and attached hereto as Earhibit "A" (Purchase and Sale Agreement); "B" (Agreement' ;and "C" (Re-Purchase Agreement). 5. The property itself and the general layout of the various parcels comprising the property are depicted in Exhibit "D" hereto. 6. Thie transaction dealt with the VOT's public necessity to acquire land and construct a village hall or other municipal, .civic or cultural facility, as well as acquiring a public roadway. The parties entered into the above-referenced series of agreements, setting forth the boundaries and purchase price for the public roadway and municipal site as a means to avoid the time and expenPe of an action to condemn the parcels, which VOT desired to acquire. VOT has the power of eminent domain. 7. The parties closed on the transaction on March 16, X999. VOT acquired Parcel No. 1, the road right-of-way, a lease of the land under the building on Parcel No. 3 and ownership of the building. The building extended all the way across the property and is generally depicted on Exhibit "D" as the hash mark Atrip. The VOT demolished the portion of the building on Parcel No. 3 and on the road right of way. It has yet to demoliFh the remaining portion of the building on parcel number 1, yet it contemplates doing so in the immediate future. 8.. It was necessary for the VOT to lease --- temporarily --- the land under the building on Parcel No. 3, as Parcel No. 3 was owned by JMZ and tenants still occupied the 2 t JMZ v. VILLAGE OE TEQUESTA CASE NO.: building. JMZ agreed to manage the building and collect the rents for. VC)T until the building was demolished. 9. In August of 1999, VOT notified JMZ that VOT wanted to swap Parcel No. 1 for Parcel No. 2, as contemplated by the agreement (Exhibit `B" hereto), but would never advise JMZ what was to be built or when construction would commence or be expected to be completed. X0. The VOT had already resolved to build its municipal center on Parcel No. 2, but then reneged on that resolution and opted t~ submit it to a referendum --- not scheduled until December of 2001. ] I. As the construction of the municipal project would impact on JMZ's right to rc- purchase Parcel No. 1, it would not consent to the swap absent confirmation from VOT ac to what was to be built there and when. 12. JMZ notified VOT in March of 2001 that it was exercising its right to re-purchase Parcel No. 1, as two (2) years had lapsed without VOT constructing anything on the property. 13. VOT refused the re-purchaso of Parcel No. 1 by JMZ. 14. VOT contemplates the immediate demolition of the building on Parcel No. 1 some time on or shortly after November 5, 2001. 1,5. JMZ seeks the remedy of specific performance herein anth respect. to its right to re-purchase Parcel No. 1. It is a unique individual and specific parcel of real est_zte, and there iF i~o other adequate remedy at law. Hence, JMZ seeks the equitable remedy of specific performance herein. 3 JMZ v. VILLAGE OF TEQUESTA CASE NO.: 16. All conditions precedent eadtling the Plaintiff to bring this cause of action and recover thereon have been performed or have occurred or alternatively have been waived or prevented. 17. Plaintiff is obliged to hia attorneys for a reasonable fee for services rendered herein and seeks recovery of the same in accordance with the terms of the Agreements copied and attached hereto. VVHF,IZEFOTtF, Plaintiff demands judgment against the Defendant for decree of specific performance with respect to Plaintiff s right to re-purchase Parcel No. 1 referenced above and for an award of costs, attorney's fees and any other relief deemed just. I.S. This is an action for i~juncdve relief. 19. Plaintiff realleges and reaffirms each and every allegation of paragraphs 2 thmugh 14 of Count I, as if fully set forth herein. 20. The Defendant's demolidon of the building on Parcel No. I contemplated to occur in the immediate future will irreparably harm PL~intiff and hinder Plaintiff in. the exercise of its right to re-purchase the aforesaid Parcel No. 1, as further set forth in Count I of this action. 21. Due to the unique nature of the real estate involved and the improvements thereon, Plaintiff is without an adequate remedy at law and will be irreparably harmed if Defendant is permitted to go for~~ard with the destruction and demolitio~i of the structure on 4 JMZ v. 'VILLAGE OE TEQUESTA CASE NO.: Parcel No. 1, pending the outcome of this action and the exercise by Plaintiff of its right to re- purchase Parcel No. 1 as sought in Count I of this actiorL. VSIHEREFORE, it is respectfully requested that this court enter an order enjoining the Defendant and all of its agents, employees or representatcves from denwlishing, damaging or otherwise adversely impacting the structure extant on Parcel No. 1 referenced above forthwith and make such injunction effective pendente lire and undl further order of this court, as well a6 award the Plaintiff costs incurred herein and any other relief deemed just. ~;RAMER, ALI, FLECK, CARO'THERS, HUGY~S 6z GELB 6650'West Indiantown Road Suite 200 Jupiter, Florida 33458 (561) ?45.8000 (561) 748.9000 -fax Attorney(s) for Plaintiff Q ~~~ By: WTL IAM A. FLECK Florida Bar No. 340707 5 r [ IN THE CIRCUIT COURT OF THE 15T" JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE N O.: CA 01-11262-AJ - JMZ TEQUESTA PROPERTIES, INC., a Florida corporation, Plaintiff, vs. ~J VILLAGE OF TEQUESTA, a Florida md~ `'- '~ ' ~ municipal corporation and political ~'~ -~ -- '~ sub-division of the State of Florida i7 ~ = -~~ ° - Defendants. ~ '~_. ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM _ Defendant, VILLAGE OF TEQUESTA, hereby files this Answer, Affirmative Defenses and Counterclaim to the Complaint filed by the Plaintiff, JMZ TEQUESTA PROPERTIES, INC. ("JMZ"): /'x/11 I~IT t 1. Defendant admits that Plaintiff claims that this is an action for specific performance for real property of a value in excess of $15,000.00 but denies that Plaintiff has been damaged. 2. Defendant is without knowledge as to the allegations of paragraph 2, and therefore denies those allegations and demands strict proof thereof. 3. Defendant admits the allegations of paragraph 3. - - 4. Defendant admits the allegations of paragraph 4. 5. Defendant is without knowledge as to the accuracy of the modifications to the document attached to the Complaint as Exhibit D and therefore denies the allegations of paragraph 5. 6. Defendant denies the allegations of the first and second sentences of paragraph 6. Defendant admits the allegations of the third sentence of paragraph 6. 7. Defendant admits the allegations of the first sentence of paragraph 7. Defendant denies the allegations of the second sentence of paragraph 7 because it is without knowledge as to the modifications made to the document attached as Exhibit D to the Complaint and because the Agreements between the parties, attached as Exhibits A, B and C to the Complaint, speak for themselves. Defendant admits the remaining allegations of paragraph 7. 8. Defendant denies the allegations of paragraph 8 because the allegations relate to provisions in the Agreements between the parties, which Agreements are attached as Exhibits A, B and C to the Complaint and speak for themselves. 9. Defendant denies the allegations of paragraph 9 except that Defendant admits that it notified JMZ in August, 2000 that it intended to swap Parcel 1 for Parcel 2 as contemplated by the Agreement between the parties. 10. Defendant denies the allegations of paragraph 10. 11. Defendant is without knowledge with regard to the allegations of paragraph 11, and therefore denies same and demands strict proof thereef. 12. Defendant denies the allegations of paragraph 12. 13. Defendant denies the allegations of paragraph 13. 2 t 14. Defendant admits the allegations of paragraph 14. 15. Defendant admits that Plaintiff seeks the remedy of specific performance with respect to its right to repurchase Parcel 1 as alleged in the first sentence of paragraph 15. Defendant denies the allegations of the second sentence of paragraph 15. Defendant admits that Plaintiff seeks the equitable remedy of specific performance as alleged in the third sentence of paragraph 15. 16. Defendant denies the allegations of paragraph 16. 17. Defendant denies the allegations of paragraph 17. COUNT II 18. Defendant admits that Plaintiff claims that this is an action for injunctive relief. 19. With regard to the allegations of paragraph 19, Defendant realleges its responses to paragraphs 2-14. 20. Defendant denies the allegations of paragraph 20. 21. Defendant denies the allegations of paragraph 21. 22. Defendant denies each and every allegation of the Complaint not specifically admitted herein. AFFIRMATIVE DEFENSES First Affirmative Defense 1. Plaintiff has failed to satisfy one or more conditions precedent called for under the Purchase and Sale Agreement, Agreement, - at~d Repurchase Agreement. 3 c Second Affirmative Defense 2. Plaintiffs prior, material failure to perform the Agreements discharged Defendant from performing any remaining duties thereunder. Third Affirmative Defense 3. Plaintiff is barred from recovery by the doctrine of unclean hands. Fourth Affirmative Defense 4. As to Count II, Plaintiff has failed to state a cause of action against this Defendant. Fifth Affirmative Defense 5. Plaintiff has failed to mitigate damages and is therefore barred from recovery. COUNTERCLAIM Defendant, VILLAGE OF TEQUESTA ("TEQUESTA"), a Florida municipal corporation, counterclaims against Plaintiff, JMZ TEQUESTA PROPERTIES, INC. ("JMZ"), a Florida corporation, and alleges: 1. This is an action for specific performance of a contract to convey real property of a value that exceeds $15,000.00 located in Palm Beach County, Florida. 2. JMZ is a Florida corporation with its principal place of business located in Palm Beach County, Florida. 3. TEQUESTA is a municipal corporation incorporated in Palm Beach County, Florida. 4 r 4. JMZ is, and at all times mentioned herein was, the owner of Parcel 2, certain real property situated at Tequesta Drive (northwest parcel), Village of Tequesta, Palm Beach County, Florida, more particularly described as follows: a parcel of land lying in Section 30, Township 40 South, Range 43 East, Palm Beach County Florida and as further described in Exhibit "A" attached hereto. 5. On February 1, 1999, TEQUESTA and JMZ entered into a series of written agreements ("Agreements") concerning real property located in Tequesta, Florida, including a Purchase and Sale Agreement, an Agreement, and a Repurchase Agreement, copies of which are attached hereto as Exhibit "B" and incorporated herein by reference. 6. Pursuant to the terms of the Agreement, on March 16, 1999, TEQUESTA purchased from JMZ Parcel 1, certain real property situated at Bridge Road (southwest parcel), Village of Tequesta, Palm Beach County, Florida, more particularly described as follows: a parcel of land lying in Section 30, Township 40 South, Range 43 East, Palm Beach County, Florida and as further described in Exhibit "C" attached hereto. 7. The Agreements entered into between the parties granted TEQUESTA the right to swap Parcel 1 for Parcel 2 (the "Swap") within two years after the closing of the purchase of Parcel 1 and upon the satisfaction of certain conditions. 8. The Tequesta Village Council authorized exercise of TEQUESTA's right to swap Parcel 1 for Parcel 2 at its meeting on August 10, 2000 and, pursuant to the Agreement, Tequesta notified JMZ of this decision in a letter dated August 15, 2000. (A copy of the relevant excerpts from the minutes of the August 10, 2000 Tequesta J Vllage Council meeting are attached hereto as Exhibit "D"; copies of relevant correspondence between TEQUESTA and JMZ concerning Tequesta's intent to swap Parcel 1 for Parcel 2 are attached hereto as composite Exhibit "E"). 9. TEQUESTA's counsel advised JMZ of the amount Tequesta would be required to pay in accordance with the Agreements to complete the Swap in a letter dated November 22, 2000. See Ex. E; Affidavit of Peter S. Holton, attached hereto as Exhibit "F" at ~ 4). On January 26, 2001, TEQUESTA's counsel forwarded JMZ copies of all of the closing documents required to accomplish the Swap and set a closing date of February 7, 2001. (Id.; Ex. F, Holton Aff. ¶ 5). 10. TEQUESTA has performed all of the conditions precedent required under the Agreements to effectuate the Swap. 11. Despite TEQUESTA's satisfaction of the closing conditions, JMZ has refused to close the Swap. ~.; Ex. F, Holton Aff. ¶ 6) 12. TEQUESTA remains ready, willing, and able to close the Swap to this date. (Id.; Ex. F, Holton Aff. ¶~ 7, 9). 13. The Agreement expressly grants TEQUESTA the right to seek to compel JMZ to perform its obligations under the Agreement by a suit for specific performance. WHEREFORE, TEQUESTA demands judgment against JMZ for a decree of specific performance with respect to TEQUESTA's right to Swap Parcel 1 for Parcel 2 and requests that the Court enter an Order: A. Requiring JMZ to specifically perform the Swap of Parcel 1 for Parcel 2 as provided by the terms of the Agreements. 6 r B. Awarding TEQUESTA reasonable attorney's fees and costs incurred herein; C. Awarding TEQUESTA such other relief as the Court deems proper and just. HEREBY CERTIFY that a true copy of the foregoing instrument has been furnished to WILLIAM A. FLECK, Esquire, Kramer, Ali, Fleck, Carothers, Hughes, Gelb & Bornstein, 6650 West Indiantown Road, Suite 200, Jupiter, Florida 33458, by U.S. r, mail, this a ~ day of November, 2001. JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, Florida 33402-3475 Telephone: 561-659-3000 Facsimile: 561-832-1454 ~ _ ~ ~ ~-, ~hn C. Randolph lorida Bar No. 129000 N:1JCR\13153-631Answer.doc 7 LEGAL DESCR[['T[ON ['ARCEL NO. 2 LYING [N SECTION 3U, "['OWNS(-il[' 40 SOUTH, RANGE 43 EAS"I' A PARCEL OF LAND LYING IN SECTION 30, TOWNSHIP 40 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FO[_LOWS: COMMENCING AT T(iE POINT OF INTERSECTION OF THE CENTERLINE OF STATE ROAD NO. S (US HIGHWAY NO. I) WITH T[i,E SOUTH LINE OF SECTION 30, TO~'I~NSH[P 40 SUUTH,~RANGE 43 EAST'; T[{ENCE NORTH 03°S4'SS" EAST (BASIS OF BEARINGS), ALONG THE SAID CENTERLWE, A DISTANCE OF 695.55 FEET TO A POINT ON THE EASTERLY EXTENSION OF THE NORTE3.R[GIiT-OF-WAY LINE OF BRIDGE ROAD (PCR DEED BOOK 1166, PAGE SS2 O[~ THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA); TIiENCE SOUTH 89°46'SS" WEST, ALONG SAID EASTERLY EXTENSION AND SAID NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 876.58 FEET; THENCE NOR"tH 00°! 3'OS" WEST, A DISTANCE OF 224.57 FEET TO THE POCNT OF BEGINNING; THENCE CONTINUE NORTH 00°13'05" WEST, A DISTANCE OF 96.49 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF TEQUESTA DRIVE (PER OFFICIAL RECORD BOOK 6625, PAGE 302 OF T[~E PUBLIC RECORDS OF PALM BEAC[3 COUN"fY, FLORIDA); T[-FENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE FOR THE NEXT TWO (2) COURSES, NORT[3 67°59'40" EAST, A DISTANCE OF 231.34 FEET'; TU THE BEGINNING OF A CURVE, BEING CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 305 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9°52'46", FOR AN ARC LENGTH OF 52.59 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH Sl°10'l9" EAST ALONG ANON-RADIAL LINE, A DISTANCE OF 38.83 FEET; THENCE SOUTH 00°13'05" EAST, A DISTANCE OF 68.97 FEET TO THE BEGINNING OF A CURVE, BEING CONCAVE TO THE WEST AND HAVING A RADIUS OF 70.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF l8°56' 18", FOR AN ARC LENGTH OF 23.14 FEET; THENCE SOUTH 18°43' 13" WEST, A DISTANCE OF 86.09 FEET; THENCE NORTi-{ 89°46'55" EAST, A DISTANCE OF 263.52 FEET TO TI-IL- POINT OF BEGINNING. $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE DISCLOSURE STATEMENT OF BANK OF AMERICA, N.A. September 13, 2002 Village of Tequesta, Florida Tequesta, Florida Ladies and Gentlemen: In connection with the purchase of the $5,000,000 aggregate principal amount Village of Tequesta, Florida (the "Issuer"),PromissoryNote, dated September 13, 2002 (the "Note")authorized to be issued by a resolution of the Issuer adopted January 10, 2002 ("Resolution"), the undersigned purchaser of the Note (the "Original Purchaser"), pursuant to the provisions of subsection (6) of Section 218.385, Florida Statutes, as amended, the Original Purchaser is providing the following information with respect to the arrangements made for the purchase of the Note. We represent to you as follows: (a) The nature and estimated amounts of expenses to be incurred by the Original Purchaser in connection with the issuance and sale of the Note is $-0-. (b) There were no "finders," as defined in Section 218.386, Florida Statutes, as amended, in connection with the issuance of the Note. (c) No fee is expected to be realized by the Original Purchaser. (d) No management fee will be charged by the Original Purchaser. (e) No fee, bonus or other compensation will be paid by the Original Purchaser in connection with the issuance of the Note to any person not regularly employed or retained by the Original Purchaser. (f) The name and address of the Original Purchaser is: Bank of America, N.A. 625 North Flagler Drive West Palm Beach, Florida 33401 (g) The Village is proposing to issue $5,000,000 of debt for the purpose of financing and refinancing the acquisition, construction, equipping and improving of various capital expenditures of the Village. This debt is expected to be repaid over a period of approximately 20 years. Total interest anticipated to be paid over the life of the debt is approximately $2,450,029.60 unless prepaid. The sources of repayment or security for the Note are non ad valorem revenues of the Issuer. Based upon such assumptions, authorizing this debt could result in on average of approximately $372,501.48 of non ad valorem revenues of the Issuer not being available for other uses by the Issuer each year for 20 years. Very truly yours, BANK OF AMERICA, N.A. Authorized Officer 2 MOYLE, FLANIGAN, KATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive - 9`" Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARK E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com September 13, 2002 Tallahassee, FL (850) 681-3828 CERTIFIED MAIL RETURN RECEIPT REQUESTED Internal Revenue Service Center Ogden, Utah 84201 RE: $5,000,000 Village of Tequesta, Florida, Promissory Note Dear Sir/Madam: Enclosed please find Form 8038-G which relates to the above-referenced note. Please acknowledge your receipt of the enclosed by stamping the copy of the form included herewith, and return the stamped copy to us in the enclosed envelope. MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. MER/wp Enclosure By: Mark E. Raymond Form 838-G Information Return for Tax-Exempt Governmental Obligations - Under Intemal Revenue Code section 149(e) OMB No. 1545-0720 (Rev. November 2000) - See separate Instructions. Oepanment of the Treasury Caution: if the issue rice is under 5100,000, use Form 8038-GC. Intemal Revenue Service P I~Ti~~ Reoortina Authority If Amended Return, check here - ^ 1 Issuer's name 2 Issuer's employer identification number Village of Tequesta, Florida 59:6044081 3 Number and sveet (or P.O. box if mail is not delivered to street address) Roomisuite 4 Report number 250 Tequesta Drive 300 3 02 5 City, town, or post office, state, and ZIP code 6 Date of issue Tequesta, Florida 33469 9/13/02 7 Name of issue 8 CUSIP number Promissory Note, Series 2002 ~ None 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone rwmber of officer or legal representative JoAnn Forsythe, Finance Director ( 561 J 575-6205 e of Issue CneCK a IlCable box(es) and enter the Issue rice) See InstrUCtlOns and attach scnedule 11 ^ Education 11 12 ^ Health and hospital 12 13 ^ Transportation 13 14 ~ Public safety 14 5,000,000 . 15 ^ Environment (including sewage bonds) 15 . 16 ^ Housing 16 17 ^ Utilities 17 18 ^ Other. Describe - 18 19 If obligations are TANS or RANs, check box - ^ If obligations are BANs, check box - ^ 20 If obli ations are in the form of a lease or installment sale, check box - ^ Descri tion of Obli ations. Com lete for the entire issue for which this form is bein filed. (a) Final maturity date (b) issue price (c) Stated redemption price at maturity (d) Weighted average maturity (e) Yield 21 9/13/2022 $ 5,000,000 $ 5,000,000 12.5 ears 4.28 Uses of Proceeds of Bond Issue includin underwriters' discount 22 Proceeds used for accrued interest 22 23 Issue price of entire issue (enter amount from line 21 column (b)) 23 5,000,000 , . 24 Proceeds used for bond issuance costs (including underwriters' discount) 24 7,500 25 Proceeds used for credit enhancement . 25 26 Proceeds allocated to reasonably required reserve or replacement fund 26 27 Proceeds used to currently refund prior issues 27 1,804,259 28 Proceeds used to advance refund prior issues 28 29 Total (add lines 24 through 28) . 29 1,811,759 30 Nonrefundin roceeds of the issue subtract line 29 from line 23 and enter amount here 30 3,188,241 Descri tion of Refunded Bonds Com lete this art onl for refundin bonds. 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . - 0.25 years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . - years 33 Enter the last date on which the refunded bonds will be called . . - 8/13/02 34 Enter [he date(s) the refunded bonds were issued - 1/11/02 • Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a b Enter the final maturity date of the guaranteed investment contract - 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a b If this issue is a loan made from the proceeds of another tax-exempt issue, check box - ^ and enter the name of the issuer - and the date of the issue - 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box - 0 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box - ^ 40 If the issuer has identified a hedoe, check box _ _ _ _ _ - ^ Sign Here under penalties or penury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. Date Geraldine A. Genco, Mayor Type or print name and title For Paperwork Reduction Act Notice, see page Hof the Instructions. cat. No. s3773s Form 8038-G (Rev. 11-zooo) CERTIFICATE AS TO ARBITRAGE AND OTHER TAX MATTERS VILLAGE OF TEQUESTA, FLORIDA $5,000,000 PROMISSORY NOTE DATED SEPTEMBER 13, 2002 The undersigned, JoAnn Forsythe, Finance Director of the Village of Tequesta, Florida (the "Issuer"), an officer of the Issuer responsible for the issuance of the above-referenced Note, makes the following certification as to the Issuer's expectations in connection with the issuance of the Issuer's Promissory Note, dated September 13, 2002, in the principal amount of not to exceed $5,000,000 (the "Note") for purposes of Section 148 of the Internal Revenue Code of 1986 (the "Code") and the Treasury Regulations promulgated thereunder. The Note is being issued on September 13, 2002. The Note is issued in order to provide funds to repay the outstanding principal amount of the Issuer's Promissory Note dated January 11, 2002 (the "Refinanced Note"), to reimburse the Issuer for capital expenditures incurred in connection with the construction of the Issuer's public safety facility after September 13, 1999, (which date is after the date of adoption of Resolution No. 20-96/97 of the Village Council expressing its intent to seek such reimbursement) and to pay costs of the public safety facility incurred after the date of issuance of the Note (the "Project"). A portion of the proceeds of the Note in the amount of $1,804,258.79 will be used to refinance the Refinanced Note on the date hereof. A portion of the proceeds of the Note in the amount of $2,505,336.84 will be used to reimburse the Issuer for prior capital expenditures on the date hereof. The remaining balance of the Note ($690,404.37) will be allocated to expenditures on the Project by the end of the six month period beginning on the date hereof. The Note is payable from lawfully available non-ad valorem revenues of the Issuer. Except for such revenues, no amounts are directly or indirectly pledged to pay principal or interest on the Note, nor are there any other revenues that will be available to pay principal or interest on the Note even if the Issuer encounters financial difficulties. Amounts that the Issuer reasonably expects to be used to pay debt service on the Note constitute a fund used primarily to achieve a proper matching of revenues with principal and interest payments on the Note in each year, and such amounts will be depleted at least once each year. Amounts that the Issuer expects to use to pay principal and interest on the Note may be invested without regard to any yield limitation. Based upon the foregoing, it is not expected that the Note will be an "arbitrage bond" within the meaning of Section 148 of the Code and the Treasury Regulations promulgated thereunder. Dated this 13th day of September, 2002. VILLAGE OF TEQUESTA, FLORIDA By. Forsythe Finance Director 2 MOYLE, FLANIGAN, KATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive - 9`'' Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARx E. RAYMOND Direct Line: (561) 822-0380 E-mail: mraymond@moylelaw.com Tallahassee, FL (850) 681-3828 September 13, 2002 Division of Bond Finance State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32317-3300 RE: Village of Tequesta, Florida $5,000,000 Promissory Note Ladies and Gentlemen: CERTIFIED MAIL RETURN RECEIPT REQUESTED Enclosed herewith please find Form BF-2003/2004-B for the above-referenced financing. No disclosure document was used for this financing. If you would like any further information in regard to this matter, please do not hesitate to call. Very truly yours, Mark E. Raymond MER/wp STATE OF FLORIDA DIVISION OF BOND FINANCE LOCAL BOND MONITORING SECTION This form represents an update and compilation of the BF2003, BF2004-A and BF2004-B forma. * Bond Information forms (BF2003) are required to be completed by local governments pursuant to Chapter 19A-1.003, Florida Administrative Code (F.A.C.). * Bond Disclosure forms BF2004-A (Competitive Sale) or BF2004-B (Negotiated Sale) as required to be filed with the Division within 120 days of the delivery of the issue pursuant to Sections 218.38(1)(b)1 and 218.38(1)(c)1, Florida Statutes (F.S.), respectively. * Final Official Statements, if prepared, are required to be submitted pursuant to Section 218.38(1), F.S. * Please complete all items applicable to the issuer as provided by the Florida Statutes. * PURSUANT TO SECTION 218.369, F.S., ISSUERS OF BOND ANTICIPATION NOTES ARE EXEMPT FROM THESE FILING REQUIREMENTS. BF2003 BOND INFORMATION FORM PART I. ISSIIER INFORMATION 1. NAME OF GOVERNMENTAL UNIT: Village of Teauesta Florida 2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER: 357 Teauesta Drive, Teauesta Florida 33469 3. COUNTY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION: Palm Beach 4. TYPE OF ISSUER: COUNTY X CITY AUTHORITY _ INDEPENDENT SPECIAL DISTRICT DEPENDENT SPECIAL DISTRICT SPECIFY OTHER PART II. BOND ISSIIE INFORMATION 1. NAME OF BOND ISSUE: Promissory Note 2. AMOUNT ISSUED: $ 5,000,000 3. AMOUNT AUTHORIZED: $5,000,000 4. DATED DATE: 9/13/02 5. SALE DATE: 9/13/02 6. DELIVERY DATE: 9/13/02 7. LEGAL AUTHORITY FOR ISSUANCE: FLORIDA STATUTES Ch. 166 SPECIAL ACTS OTHER 8. TYPE OF ISSUE: GENERAL OBLIGATION SPECIAL ASSESSMENT SPECIAL OBLIGATION X REVENUE _COP(CERTIFICATE OF PARTICIPATION) -LEASE-PURCHASE -BANK LOAN/LINE OF CREDIT 9. A. IS THIS A PRIVATE ACTIVITY BOND (PAB)? YES X NO B. 1. IF YES, DID THIS ISSUE RECEIVE A PAB ALLOCATION? YES NO 2. IF YES, AMOUNT OF ALLOCATION: $ 10. SPECIFIC REVENUE(S) PLEDGED: (1) PRIMARY Lawfully available non-ad valorem revenues (2) SECONDARY Public Service Tax Revenue (3) OTHER(S) 1 11. A. PURPOSE(S) OF THE ISSUE: (1) PRIMARY Construct public safety facility (2) SECONDARY Refunding (3) OTHER(S) B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING: (1) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR ~~nT.?rE (PRINCIPAL AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT REFUNDED. Promissorv Note; 1/11/02; $6,0.00,000; $1, 802,546.37 (2) REFUNDED DEBT HAS BEEN: X RETIRED OR _DEFEASED (3) A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? -YES _NO B. IF YES, APPROXIMATELY WHAT PERCENT OF PROCEEDS IS NEW MONEY? ~ 12. TYPE OF SALE: COMPETITIVE BID NEGOTIATED X NEGOTIATED PRIVATE PLACEMENT 13. BASIS OF INTEREST RATE CALCULATION, I.E., INTEREST RATE USED TO STRUCTURE THE BOND ISSUE: NET INTEREST COST RATE (NIC) ~ TRUE INTEREST COST RATE (TIC) 4.28 ~ CANADIAN INTEREST COST RATE (CIC) ~ ARBITRAGE YIELD (ARBI) ~ SPECIFY OTHER: 14. INSURANCE/ENHANCEMENTS: _AGIC _AMBAC _CGIC _CLIC _FGIC _FSA -HUD _MBIA _NGM _LOC(LETTER OF CREDIT) SPECIFY OTHER X NOT INSIIRED 15. RATING(S):_MOODY'S _S&P _FITCH _DUFF&PHELPS SPECIFY OTHER X NOT RATED 16. DEBT SERVICE SCHEDULE: ATTACH COMPLETE COPY OF SCHEDULE PROVIDING THE FOLLOWING INFORMATION: MATURITY DATES (MO/DAY/YR) COUPON/INTEREST RATES ANNUAL INTEREST PAYMENTS PRINCIPAL (PAR VALUE) PAYMENTS idAI~TDATORY TERM AMORTIZATION 17. LIST OR ATTACH OPTIONAL REDEMPTION PROVISIONS: May be prepaid at any time, in whole or in part at par 18. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER. Bank of America, N.A. 625 idorLh Flagler Drive West Palm Beach, Florida 33401 2 19. PROVIDE THE NAME(S) AND ADDRESS(ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE. NO BOND CODNSEL X NO FINANCIAL ADVISOR NO OTIiER PROFESSIONALS BOND COUNSEL(S): Mark Raymond, Esg. Moyle, Flanigan, Katz et al. 625 North Flagler Drive - 9th Floor West Palm Beach, FL 33401 FINANCIAL ADVISOR(S)/CONSULTANT(S): OTHER PROFESSIONALS: John Randolph City Attorney 505 South Flagler Drive; it"' Floor West Palm Beach, FL 33401 20. PAYING AGENT X NO PAYING AGENT 21. REGISTRAR X NO REGISTRAR 22. COMMENTS: None PART III. RESPONDENT INFORMATION FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT: Name and Title Mark E. Raymond, Bond Counsel Phone 561-822-0380 Company _Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. INFORMATION RELATING TO PARTY COMPLETING Name and Title Company Date Report Submitted 9/13/02 BF2004-A and BF2004-B Note: THE FOLLOWING ITEMS ARE REQUIRED TO BE COMPLETED IN FULL FOR ALL BOND ISSUES EXCEPT THOSE SOLD PURSUANT TO SECTION 154 PART III; SECTIONS 159 PARTS II, III OR V; OR SECTION 243 PART II, FLORIDA STATUTES. 23. ANY FEE, BONUS, OR GRATUITY PAID BY ANY DNDSRWRITER OR FINANCIAL CONSULTANT, IN CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY SUCH UNDERWRITER OR CONSULTANT: X NO FEE, BONIIS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTANT (1) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (2) COMPANY NAME FEE PAID: $ (3) COMPANY NAME FEE PAID: $ (4) COMPANY NAME FEE PAID: $ THIS FORM (If different from above): Phone SERVICE PROVIDED or FUNCTION SERVED: SERVICE PROVIDED or FUNCTION SERVED: SERVICE PROVIDED or FUNCTION SERVED: 3 24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE, INCLUDING ANY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS: NO FEES PAID BY ISSIIER (1) COMPANY NAME Moyle Flanigan Katz, Raymond & Sheehan, P.A. FEE PAID: $5,000.00 SERVICE PROVIDED or FUNCTION SERVED: Bond Counsel (2) COMPANY NAME Ward. Damon & Posner FEE PAID:$2,500.00 SERVICE PROVIDED or FUNCTION SERVED: Bank Counsel (3) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (4) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: PLEASE PROVIDE THE SIGNATURE OF EITHER THE CHIEF EXECIITIVE OFFICER OF THE GOVERNING BODY OF THS UNIT OF LOCAL GOVERNMENT OR THE GOVE NTAL OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING THE ISSUANCE, TH B S: r NAME (Typed/Printed:): JoAnn Forsythe SIGNATURE :/ TITLE: Finance Director A~ 13 02 BF2004-B ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE 25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $ PER THOUSAND PAR VALUE. OR PRIVATE PLACEMENT FEE: $ X NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE 26. UNDERWRITER'S EXPECTED GROSS SPREAD: $ PER THOUSAND PAR VALUE. X NO GROSS SPREAD PART IV. RETURN THIS FORM AND THE FINAL OFFICIAL STATEMENT, IF ONS WAS PREPARED TO: Courier Deliveries: Mailing Address: Division of Bond Finance Division of Bond Finance State Board of Administration State Board of Administration 1801 Hermitage Blvd., Suite 200 P.O. Drawer 13300 Tallahassee; FL 32308 Tallahassee, FL 32317-3300 Phone: 904/488-4782 FAX: 904/413-1315 REVISED Feb. 1997/bf0304 4 MUNICIPAL AMORTIZATION (FIXED MONTHLY PAYMENT) INPUT: AMOUNT: $5,000,000 FIXED INTEREST RATE: 4.28% NUMBER OF AMORTIZED PAYMENTS: 240 AMOUNT OF PAYMENT: $31,041.79 PAYMENT INTEREST PRINCIPAL INTEREST PAID REMAINING AMOUNT OF TOTAL PMTS NUMBER PAYMENT PAYMENT TO DATE BALANCE THIS PAYMENT YEARLY Beginning Balance........ ............... ............... $ 5,000,000.00 niH 1 $ 17,833.33 $ 13,208.46 $ 17,833.33 $ 4,986,791.54 $ 31,041.79 2 $ 17,786.22 $ 13,255.57 $ 35,619.56 $ 4,973,535.98 $ 31,041.79 3 $ 17,738.94 $ 13,302.84 $ 53,358.50 $ 4,960,233.13 $ 31,041.79 4 $ 17,691.50 $ 13,350.29 $ 71,050.00 $ 4,946,882.84 $ 31,041.79 5 $ 17,643.88 $ 13,397.91 $ 88,693.88 $ 4,933,484.93 $ 31,041.79 6 $ 17,596.10 $ 13,445.69 $ 106,289.98 $ 4,920,039.24 $ 31,041.79 7 $ 17,548.14 $ 13,493.65 $ 123,838.12 $ 4,906,545.59 $ 31,041.79 8 $ 17,500.01 $ 13,541.78 $ 141,338.13 $ 4,893,003.81 $ 31,041.79 9 $ 17,451.71 $ 13,590.08 $ 158,789.84 $ 4,879,413.74 $ 31,041.79 10 $ 17,403.24 $ 13,638.55 $ 176,193.09 $ 4,865,775.19 $ 31,041.79 11 $ 17,354.60 $ 13,687.19 $ 193,547.68 $ 4,852,088.00 $ 31,041.79 12 $ 17,305.78 $ 13,736.01 $ 210,853.47 $ 4,838,351.99 $ 31,041.79 $ 372,501.48 13 $ 17,256.79 $ 13,785.00 $ 228,110.25 $ 4,824,566.99 $ 31,041.79 14 $ 17,207.62 $ 13,834.17 $ 245,317.88 $ 4,810,732.82 $ 31,041.79 15 $ 17,158.28 $ 13,883.51 $ 262,476.16 $ 4,796,849.31 $ 31,041.79 16 $ 17,108.76 $ 13,933.03 $ 279,584.92 $ 4,782,916.28 $ 31,041.79 17 $ 17,059.07 $ 13,982.72 $ 296,643.99 $ 4,768,933.56 $ 31,041.79 18 $ 17,009.20 $ 14,032.59 $ 313,653.18 $ 4,754,900.97 $ 31,041.79 19 $ 16,959.15 $ 14,082.64 $ 330,612.33 $ 4,740,818.32 $ 31,041.79 20 $ 16,908.92 $ 14,132.87 $ 347,521.25 $ 4,726,685.45 $ 31,041.79 21 $ 16,858.51 $ 14,183.28 $ 364,379.76 $ 4,712,502.17 $ 31,041.79 22 $ 16,807.92 $ 14,233.87 $ 381,187.68 $ 4,698,268.31 $ 31,041.79 23 $ 16,757.16 $ 14,284.63 $ 397,944.84 $ 4,683,983.68 $ 31,041.79 24 $ 16,706.21 $ 14,335.58 $ 414,651.05 $ 4,669,648.09 $ 31,041.79 $ 372,501.48 25 $ 16,655.08 $ 14,386.71 $ 431,306.13 $ 4,655,261.38 $ 31,041.79 26 $ 16,603.77 $ 14,438.02 $ 447,909.89 $ 4,640,823.36 $ 31,041.79 27 $ 16,552.27 $ 14,489.52 $ 464,462.16 $ 4,626,333.84 $ 31,041.79 28 $ 16,500.59 $ 14,541.20 $ 480,962.75 $ 4,611,792.64 $ 31,041.79 29 $ 16,448.73 $ 14,593.06 $ 497,411.48 $ 4,597,199.58 $ 31,041.79 30 $ 16,396.68 $ 14,645.11 $ 513,808.16 $ 4,582,554.46 $ 31,041.79 31 $ 16,344.44 $ 14,697.35 $ 530,152.60 $ 4,567,857.12 $ 31,041.79 32 $ 16,292.02 $ 14,749.77 $ 546,444.63 $ 4,553,107.35 $ 31,041.79 33 $ 16,239.42 $ 14,802.37 $ 562,684.04 $ 4,538,304.98 $ 31,041.79 34 $ 16,186.62 $ 14,855.17 $ 578,870.67 $ 4,523,449.81 $ 31,041.79 35 $ 16,133.64 $ 14,908.15 $ 595,004.30 $ 4,508,541.66 $ 31,041.79 36 $ 16,080.47 $ 14,961.32 $ 611,084.77 $ 4,493,580.33 $ 31,041.79 $ 372,501.48 37 $ 16,027.10 $ 15,014.69 $ 627,111.87 $ 4,478,565.65 $ 31,041.79 38 $ 15,973.55 $ 15,068.24 $ 643,085.42 $ 4,463,497.41 $ 31,041.79 39 $ 15,919.81 $ 15,121.98 $ 659,005.23 $ 4,448,375.43 $ 31,041.79 40 $ 15,865.87 $ 15,175.92 $ 674,871.10 $ 4,433,199.51 $ 31,041.79 41 $ 15,811.74 $ 15,230.04 $ 690,682.85 $ 4,417,969.46 $ 31,041.79 42 $ 15,757.42 $ 15,284.37 $ 706,440.27 $ 4,402,685.10 $ 31,041.79 43 $ 15,702.91 $ 15,338.88 $ 722,143.18 $ 4,387,346.22 $ 31,041.79 44 $ 15,648.20 $ 15,393.59 $ 737,791.38 $ 4,371,952.63 $ 31,041.79 45 $ 15,593.30 $ 15,448.49 $ 753,384.68 $ 4,356,504.14 $ 31,041.79 46 $ 15,538.20 $ 15,503.59 $ 768,922.88 $ 4,341,000.55 $ 31,041.79 47 $ 15,482.90 $ 15,558.89 $ 784,405.78 $ 4,325,441.66 $ 31,041.79 48 $ 15,427.41 $ 15,614.38 $ 799,833.19 $ 4,309,827.28 $ 31,041.79 $ 372,501.48 49 $ 15,371.72 $ 15,670.07 $ 815,204.91 $ 4,294,157.20 $ 31,041.79 50 $ 15,315.83 $ 15,725.96 $ 830,520.73 $ 4,278,431.24 $ 31,041.79 51 $ 15,259.74 $ 15,782.05 $ 845,780.47 $ 4,262,649.19 $ 31,041.79 52 $ 15,203.45 $ 15,638.34 $ 860,983.92 $ 4,246,810.85 $ 31,041.79 53 $ 15,146.96 $ 15,894.83 $ 876,130.88 $ 4,230,916.02 $ 31,041.79 54 $ 15,090.27 $ 15,951.52 $ 891,221.15 $ 4,214,964.50 $ 31,041.79 55 $ 15,033.37 $ 16,008.42 $ 906,254.52 $ 4,198,956.08 $ 31,041.79 56 $ 14,976.28 $ 16,065.51 $ 921,230.80 $ 4,182,890.57 $ 31,041.79 57 $ 14,918.98 $ 16,122.81 $ 936,149.77 $ 4,166,767.75 $ 31,041.79 58 $ 14,861.47 $ 16,180.32 $ 951,011.25 $ 4,150,587.43 $ 31,041.79 59 $ 14,803.76 $ 16,238.03 $ 965,815.01 $ 4,134,349.41 $ 31,041.79 60 $ 14,745.85 $ 16,295.94 $ 980,560.85 $ 4,118,053.46 $ 31,041.79 $ 372,501.48 61 $ 14,687.72 $ 16,354.07 $ 995,248.58 $ 4,101,699.40 $ 31,041.79 62 $ 14,629.39 $ 16,412.40 $ 1,009,877.97 $ 4,085,287.00 $ 31,041.79 63 $ 14,570.86 $ 16,470.93 $ 1,024,448.83 $ 4,068,816.07 $ 31,041.79 64 $ 14,512.11 $ 16,529.68 $ 1,038,960.94 $ 4,052,286.39 $ 31,041.79 65 $ 14,453.15 $ 16,588.64 $ 1,053,414.09 $ 4,035,697.75 $ 31,041.79 66 $ 14,393.99 $ 16,647.80 $ 1,067,808.08 $ 4,019,049.95 $ 31,041.79 67 $ 14,334.61 $ 16,707.18 $ 1,082,142.69 $ 4,002,342.77 $ 31,041.79 68 $ 14,275.02 $ 16,766.77 $ 1,096,417.72 $ 3,985,576.01 $ 31,041.79 69 $ 14,215.22 $ 16,826.57 $ 1,110,632.94 $ 3,968,749.44 $ 31,041.79 70 $ 14,155.21 $ 16,886.58 $ 1,124,788.14 $ 3,951,862.85 $ 31,041.79 71 $ 14,094.98 $ 16,946.81 $ 1,138,883.12 $ 3,934,916.04 $ 31,041.79 72 $ 14,034.53 $ 17,007.26 $ 1,152,917.66 $ 3,917,908.79 $ 31,041.79 $ 372,501.48 73 $ 13,973.87 $ 17,067.92 $ 1,166,891.53 $ 3,900,840.87 $ 31,041.79 74 $ 13,913.00 $ 17,128.79 $ 1,180,804.53 $ 3,883,712.08 $ 31,041.79 75 $ 13,851.91 $ 17,189.88 $ 1,194,656.44 $ 3,866,522.20 $ 31,041.79 76 $ 13,790.60 $ 17,251.19 $ 1,208,447.03 $ 3,849,271.00 $ 31,041.79 77 $ 13,729.07 $ 17,312.72 $ 1,222,176.10 $ 3,831,958.28 $ 31,041.79 78 $ 13,667.32 $ 17,374.47 $ 1,235,843.42 $ 3,814,583.81 $ 31,041.79 79 $ 13,605.35 $ 17,436.44 $ 1,249,448.77 $ 3,797,147.37 $ 31,041.79 80 $ 13,543.16 $ 17,498.63 $ 1,262,991.92 $ 3,779,648.74 $ 31,041.79 81 $ 13,480.75 $ 17,561.04 $ 1,276,472.67 $ 3,762,087.69 $ 31,041.79 82 $ 13,418.11 $ 17,623.68 $ 1,289,890.78 $ 3,744,464.02 $ 31,041.79 83 $ 13,355.25 $ 17,686.53 $ 1,303,246.04 $ 3,726,777.48 $ 31,041.79 84 $ 13,292.17 $ 17,749.62 $ 1,316,538.21 $ 3,709,027.86 $ 31,041.79 $ 372,501.48 85 $ 13,228.87 $ 17,812.92 $ 1,329,767.08 $ 3,691,214.94 $ 31,041.79 86 $ 13,165.33 $ 17,876.46 $ 1,342,932.41 $ 3,673,338.48 $ 31,041.79 87 $ 13,101.57 $ 17,940.22 $ 1,356,033.99 $ 3,655,398.27 $ 31,041.79 88 $ 13,037.59 $ 18,004.20 $ 1,369,071.57 $ 3,637,394.07 $ 31,041.79 89 $ 12,973.37 $ 18,068.42 $ 1,382,044.94 $ 3,619,325.65 $ 31,041.79 90 $ 12,908.93 $ 18,132.86 $ 1,394,953.87 $ 3,601,192.79 $ 31,041.79 91 $ 12,844.25 $ 18,197.54 $ 1,407,798.13 $ 3,582,995.25 $ 31,041.79 92 $ 12,779.35 $ 18,262.44 $ 1,420,577.48 $ 3,564,732.81 $ 31,041.79 93 $ 12,714.21 $ 18,327.58 $ 1,433,291.69 $ 3,546,405.23 $ 31,041.79 94 $ 12,648.85 $ 18,392.94 $ 1,445,940.54 $ 3,528,012.29 $ 31,041.79 95 $ 12,583.24 $ 18,458.55 $ 1,458,523.78 $ 3,509,553.74 $ 31,041.79 96 $ 12,517.41 $ 18,524.38 $ 1,471,041.19 $ 3,491,029.36 $ 31,041.79 $ 372,501.48 97 $ 12,451.34 $ 18,590.45 $ 1,483,492.53 $ 3,472,438.91 $ 31,041.79 98 $ 12,385.03 $ 18,656.76 $ 1,495,877.56 $ 3,453,782.15 $ 31,041.79 99 $ 12,318.49 $ 18,723.30 $ 1,508,196.05 $ 3,435,058.85 $ 31,041.79 100 $ 12,251.71 $ 18,790.08 $ 1,520,447.76 $ 3,416,268.77 $ 31,041.79 101 $ 12,184.69 $ 18,857.10 $ 1,532,632.45 $ 3,397,411.67 $ 31,041.79 102 $ i2,iii.4's $ 18,924.35 $ 1,544,749.88 $ 3,378,487.32 $ 31,041.79 103 $ 12,049.94 $ 18,991.85 $ 1,556,799.82 $ 3,359,495.47 $ 31,041.79 104 $ 11,982.20 $ 19,059.59 $ 1,568,782.02 $ 3,340,435.88 $ 31,041.79 105 $ 11,914.22 $ 19,127.57 $ 1,580,696.24 $ 3,321,308.31 $ 31,041.79 106 $ 11,846.00 $ 19,195.79 $ 1,592,542.24 $ 3,302,112.52 $ 31,041.79 107 $ 11,777.53 $ 19,264.26 $ 1,604,319.78 $ 3,282,848.26 $ 31,041.79 108 $ 11,708.83 $ 19,332.96 $ 1,616,028.60 $ 3,263,515.30 $ 31,041.79 $ 372,501.48 109 $ 11,639.87 $ 19,401.92 $ 1,627,668.48 $ 3,244,113.38 $ 31,041.79 110 $ 11,570.67 $ 19,471.12 $ 1,639,239.15 $ 3,224,642.26 $ 31,041.79 111 $ 11,501.22 $ 19,540.57 $ 1,650,740.37 $ 3,205,101.70 $ 31,041.79 112 $ 11,431.53 $ 19,610.26 $ 1,662,171.90 $ 3,185,491.44 $ 31,041.79 113 $ 11,361.59 $ 19,680.20 $ 1,673,533.49 $ 3,165,811.23 $ 31,041.79 114 $ 11,291.39 $ 19,750.40 $ 1,684,824.88 $ 3,146,060.84 $ 31,041.79 115 $ 11,220.95 $ 19,820.84 $ 1,696,045.83 $ 3,126,240.00 $ 31,041.79 116 $ 11,150.26 $ 19,891.53 $ 1,707,196.09 $ 3,106,348.46 $ 31,041.79 117 $ 11,079.31 $ 19,962.48 $ 1,718,275.40 $ 3,086,385.98 $ 31,041.79 118 $ 11,008.11 $ 20,033.68 $ 1,729,283.51 $ 3,066,352.30 $ 31,041.79 119 $ 10,936.66 $ 20,105.13 $ 1,740,220.16 $ 3,046,247.17 $ 31,041.79 120 $ 10,864.95 $ 20,176.84 $ 1,751,085.11 $ 3,026,070.33 $ 31,041.79 $ 372,501.48 121 $ 10,792.98 $ 20,248.81 $ 1,761,878.09 $ 3,005,821.52 $ 31,041.79 122 $ 10,720.76 $ 20,321.03 $ 1,772,598.86 $ 2,985,500.50 $ 31,041.79 123 $ 10,648.29 $ 20,393.50 $ 1,783,247.14 $ 2,965,106.99 $ 31,041.79 , 124 $ 10,575.55 $ 20,466.24 $ 1,793,822.69 $ 2,944,640.75 $ 31,041.79 125 $ 10,502.55 $ 20,539.24 $ 1,804,325.24 $ 2,924,101.51 $ 31,041.79 126 $ 10,429.30 $ 20,612.49 $ 1,814,754.54 $ 2,903,489.02 $ 31,041.79 127 $ 10,355.78 $ 20,686.01 $ 1,825,110.32 $ 2,882,803.01 $ 31,041.79 128 $ 10,282.00 $ 20,759.79 $ 1,835,392.31 $ 2,862,043.21 $ 31,041.79 129 $ 10,207.95 $ 20,833.84 $ 1,845,600.27 $ 2,841,209.38 $ 31,041.79 130 $ 10,133.65 $ 20,908.14 $ 1,855,733.91 $ 2,820,301.23 $ 31,041.79 131 $ 10,059.07 $ 20,982.72 $ 1,865,792.99 $ 2,799,318.52 $ 31,041.79 132 $ 9,984.24 $ 21,057.55 $ 1,875,777.22 $ 2,778,260.96 $ 31,041.79 $ 372,501.48 133 $ 9,909.13 $ 21,132.66 $ 1,885,686.36 $ 2,757,128.31 $ 31,041.79 134 $ 9,833.76 $ 21,208.03 $ 1,895,520.11 $ 2,735,920.27 $ 31,041.79 135 $ 9,758.12 $ 21,283.67 $ 1,905,278.23 $ 2,714,636.60 $ 31,041.79 136 $ 9,682.20 $ 21,359.59 $ 1,914,960.43 $ 2,693,277.01 $ 31,041.79 137 $ 9,606.02 $ 21,435.77 $ 1,924,566.45 $ 2,671,841.24 $ 31,041.79 138 $ 9,529.57 $ 21,512.22 $ 1,934,096.02 $ 2,650,329.02 $ 31,041.79 139 $ 9,452.84 $ 21,588.95 $ 1,943,548.86 $ 2,628,740.07 $ 31,041.79 140 $ 9,375.84 $ 21,665.95 $ 1,952,924.70 $ 2,607,074.12 $ 31,041.79 141 $ 9,298.56 $ 21,743.23 $ 1,962,223.27 $ 2,585,330.90 $ 31,041.79 142 $ 9,221.01 $ 21,820.78 $ 1,971,444.28 $ 2,563,510.12 $ 31,041.79 143 $ 9,143.19 $ 21,898.60 $ 1,980,587.46 $ 2,541,611.52 $ 31,041.79 144 $ 9,065.08 $ 21,976.71 $ 1,989,652.55 $ 2,519,634.81 $ 31,041.79 $ 372,501.48 145 $ 8,986.70 $ 22,055.09 $ 1,998,639.24 $ 2,497,579.72 $ 31,041.79 146 $ 8,908.03 $ 22,133.76 $ 2,007,547.28 $ 2,475,445.96 $ 31,041.79 147 $ 8,829.09 $ 22,212.70 $ 2,016,376.37 $ 2,453,233.26 $ 31,041.79 148 $ 8,749.87 $ 22,291.92 $ 2,025,126.23 $ 2,430,941.34 $ 31,041.79 149 $ 8,670.36 $ 22,371.43 $ 2,033,796.59 $ 2,408,569.90 $ 31,041.79 150 $ 8,590.57 $ 22,451.22 $ 2,042,387.16 $ 2,386,118.68 $ 31,041.79 151 $ 8,510.49 $ 22,531.30 $ 2,050,897.65 $ 2,363,587.38 $ 31,041.79 152 $ 8,430.13 $ 22,611.66 $ 2,059,327.78 $ 2,340,975.72 $ 31,041.79 153 $ 8,349.48 $ 22,692.31 $ 2,067,677.26 $ 2,318,283.41 $ 31,041.79 154 $ 8,268.54 $ 22,773.25 $ 2,075,945.80 $ 2,295,510.16 $ 31,041.79 155 $ 8,187.32 $ 22,854.47 $ 2,084,133.12 $ 2,272,655.69 $ 31,041.79 156 $ 8,105.81 $ 22,935.98 $ 2,092,238.92 $ 2,249,719.71 $ 31,041.79 $ 372,501.48 157 $ 8,024.00 $ 23,017.79 $ 2,100,262.92 $ 2,226,701.92 $ 31,041.79 158 $ 7,941.90 $ 23,099.89 $ 2,108,204.83 $ 2,203,602.03 $ 31,041.79 159 $ 7,859.51 $ 23,182.28 $ 2,116,064.34 $ 2,180,419.76 $ 31,041.79 160 $ 7,776.83 $ 23,264.96 $ 2,123,641.17 $ 2,157,154.80 $ 31,041.79 161 $ 7,693.85 $ 23,347.94 $ 2,131,535.02 $ 2,133,806.86 $ 31,041.79 162 $ 7,610.58 $ 23,431.21 $ 2,139,145.60 $ 2,110,375.65 $ 31,041.79 163 $ 7,527.01 $ 23,514.78 $ 2,146,672.61 $ 2,086,860.86 $ 31,041.79 164 $ 7,443.14 $ 23,598.65 $ 2,154,115.75 $ 2,063,262.21 $ 31,041.79 165 $ 7,358.97 $ 23,682.82 $ 2,161,474.71 $ 2,039,579.39 $ 31,041.79 166 $ 7,274.50 $ 23,767.29 $ 2,168,749.21 $ 2,015,812.10 $ 31,041.79 167 $ 7,189.73 $ 23,852.06 $ 2,175,938.94 $ 1,991,960.04 $ 31,041.79 168 $ 7,104.66 $ 23,937.13 $ 2,183,043.60 $ 1,968,022.91 $ 31,041.79 $ 372,501.48 169 $ 7,019.28 $ 24,022.51 $ 2,190,062.88 $ 1,944,000.40 $ 31,041.79 170 $ 6,933.60 $ 24,108.19 $ 2,196,996.48 $ 1,919,892.21 $ 31,041.79 171 $ 6,847.62 $ 24,194.17 $ 2,203,844.10 $ 1,895,698.04 $ 31,041.79 172 $ 6,761.32 $ 24,280.47 $ 2,210,605.42 $ 1,871,417.57 $ 31,041.79 173 $ 6,674.72 $ 24,367.07 $ 2,217,280.15 $ 1,847,050.50 $ 31,041.79 174 $ 6,587.81 $ 24,453.98 $ 2,223,867.96 $ 1,822,596.53 $ 31,041.79 175 $ 6,500.59 $ 24,541.20 $ 2,230,368.55 $ 1,798,055.33 $ 31,041.79 176 $ 6,413.06 $ 24,628.73 $ 2,236,781.62 $ 1,773,426.60 $ 31,041.79 177 $ 6,325.22 $ 24,716.57 $ 2,243,106.84 $ 1,748,710.04 $ 31,041.79 178 $ 6,237.07 $ 24,804.72 $ 2,249,343.91 $ 1,723,905.31 $ 31,041.79 179 $ 6,148.60 $ 24,893.19 $ 2,255,492.50 $ 1,699,012.12 $ 31,041.79 180 $ 6,059.81 $ 24,981.98 $ 2,261,552.31 $ 1,674,030.14 $ 31,041.79 $ 372,501.48 181 $ 5,970.71 $ 25,071.08 $ 2,267,523.02 $ 1,648,959.06 $ 31,041.79 182 $ 5,881.29 $ 25,160.50 $ 2,273,404.31 $ 1,623,798.55 $ 31,041.79 183 $ 5,791.55 $ 25,250.24 $ 2,279,195.85 $ 1,598,548.31 $ 31,041.79 184 $ 5,701.49 $ 25,340.30 $ 2,284,897.34 $ 1,573,208.01 $ 31,041.79 185 $ 5,611.11 $ 25,430.68 $ 2,290,508.45 $ 1,547,777.33 $ 31,041.79 186 $ 5,520.41 $ 25,521.38 $ 2,296,028.86 $ 1,522,255.95 $ 31,041.79 187 $ 5,429.38 $ 25,612.41 $ 2,301,458.24 $ . 1,496,643.53 $ 31,041.79 188 $ 5,338.03 $ 25,703.76 $ 2,306,796.27 $ 1,470,939.77 $ 31,041.79 189 $ 5,246.35 $ 25,795.44 $ 2,312,042.62 $ 1,445,144.34 $ 31,041.79 190 $ 5,154.35 $ 25,887.44 $ 2,317,196.97 $ 1,419,256.89 $ 31,041.79 191 $ 5,062.02 $ 25,979.77 $ 2,322,258.98 $ 1,393,277.12 $ 31,041.79 192 $ 4,969.36 $ 26,072.43 $ 2,327,228.34 $ 1,367,204.69 $ 31,041.79 $ 372,501.48 193 $ 4,876.36 $ 26,165.43 $ 2,332,104.70 $ 1,341,039.26 $ 31,041.79 194 $ 4,783.04 $ 26,258.75 $ 2,336,887.74 $ 1,314,780.51 $ 31,041.79 195 $ 4,689.38 $ 26,352.41 $ 2,341,577.12 $ 1,288,428.10 $ 31,041.79 196 $ 4,595.39 $ 26,446.40 $ 2,346,172.52 $ 1,261,981.71 $ 31,041.79 197 $ 4,501.07 $ 26,540.72 $ 2,350,673.59 $ 1,235,440.99 $ 31,041.79 198 $ 4,406.41 $ 26,635.38 $ 2,355,079.99 $ 1,208,805.60 $ 31,041.79 199 $ 4,311.41 $ 26,730.38 $ 2,359,391.40 $ 1,182,075.22 $ 31,041.79 200 $ 4,216.07 $ 26,825.72 $ 2,363,607.47 $ 1,155,249.50 $ 31,041.79 201 $ 4,120.39 $ 26,921.40 $ 2,367,727.86 $ 1,128,328.10 $ 31,041.79 202 $ 4,024.37 $ 27,017.42 $ 2,371,752.23 $ 1,101,310.68 $ 31,041.79 203 $ 3,928.01 $ 27,113.78 $ 2,375,680.23 $ 1,074,196.90 $ 31,041.79 204 $ 3,831.30 $ 27,210.49 $ 2,379,511.54 $ 1,046,986.41 $ 31,041.79 $ 372,501.48 205 $ 3,734.25 $ 27,307.54 $ 2,383,245.79 $ 1,019,678.87 $ 31,041.79 206 $ 3,636.85 $ 27,404.94 $ 2,386,882.64 $ 992,273.93 $ 31,041.79 207 $ 3,539.11 $ 27,502.68 $ 2,390,421.75 $ 964,771.25 $ 31,041.79 208 $ 3,441.02 $ 27,600.77 $ 2,393,862.77 $ 937,170.48 $ 31,041.79 209 $ 3,342.57 $ 27,699.22 $ 2,397,205.35 $ 909,471.27 $ 31,041.79 210 $ 3,243.78 $ 27,798.01 $ 2,400,449.13 $ 881,673.26 $ 31,041.79 211 $ 3,144.63 $ 27,897.16 $ 2,403,593.76 $ 853,776.10 $ 31,041.79 212 $ 3,045.13 $ 27,996.66 $ 2,406,638.90 $ 825,779.45 $ 31,041.79 213 $ 2,945.28 $ 28,096.51 $ 2,409,584.18 $ 797,682.94 $ 31,041.79 214 $ 2,845.07 $ 28,196.72 $ 2,412,429.24 $ 769,486.22 $ 31,041.79 215 $ 2,744.50 $ 28,297.29 $ 2,415,173.75 $ 741,188.93 $ 31,041.79 216 $ 2,643.57 $ 28;398.22 $ 2,417,817.32 $ 712,790.71 $ 31,041.79 $ 372,501.48 217 $ 2,542.29 $ 28,499.50 $ 2,420,359.61 $ 684,291.21 $ 31,041.79 218 $ 2,440.64 $ 28,601.15 $ 2,422,800.25 $ 655,690.06 $ 31,041.79 219 $ 2,338.63 $ 28,703.16 $ 2,425,138.87 $ 626,986.90 $ 31,041.79 220 $ 2,236.25 $ 28,805.54 $ 2,427,375.13 $ 598,181.36 $ 31,041.79 221 $ 2,133.51 $ 28,908.28 $ 2,429,508.64 $ 569,273.08 $ 31,041.79 222 $ 2,030.41 $ 29,011.38 $ 2,431,539.05 $ 540,261.70 $ 31,041.79 223 $ 1,926.93 $ 29,114.86 $ 2,433,465.98 $ 511,146.84 $ 31,041.79 224 $ 1,823.09 $ 29,218.70 $ 2,435,289.07 $ 481,928.14 $ 31,041.79 225 $ 1,718.88 $ 29,322.91 $ 2,437,007.95 $ 452,605.23 $ 31,041.79 226 $ 1,614.29 $ 29,427.50 $ 2,438,622.24 $ 423,177.73 $ 31,041.79 227 $ 1,509.33 $ 29,532.46 $ 2,440,131.57 $ 393,645.28 $ 31,041.79 228 $ 1,404.00 $ 29,637.79 $ 2,441,535.58 $ 364,007.49 $ 31,041.79 $ 372,501.48 229 $ 1,298.29 $ 29,743.50 $ 2,442,833.87 $ 334,263.99 $ 31,041.79 230 $ 1,192.21 $ 29,849.58 $ 2,444,026.08 $ 304,414.41 $ 31,041.79 231 $ 1,085.74 $ 29,956.05 $ 2,445,111.82 $ 274,458.37 $ 31,041.79 232 $ 978.90 $ 30,062.89 $ 2,446,090.72 $ 244,395.48 $ 31,041.79 233 $ 871.68 $ 30,170.11 $ 2,446,962.40 $ 214,225.37 $ 31,041.79 234 $ 764.07 $ 30,277.72 $ 2,447,726.47 $ 183,947.65 $ 31,041.79 235 $ 656.08 $ 30,385.71 $ 2,448,382.55 $ 153,561.94 $ 31,041.79 236 $ 547.70 $ 30,494.09 $ 2,448,930.26 $ 123,067.85 $ 31,041.79 237 $ 438.94 $ 30,602.85 $ 2,449,369.20 $ 92,465.00 $ 31,041.79 238 $ 329.79 $ 30,712.00 $ 2,449,698.99 $ 61,753.01 $ 31,041.79 239 $ 220.25 $ 30,821.54 $ 2,449,919.24 $ 30,931.47 $ 31,041.79 240 $ 110.32 $ 30,931.47 $ 2,450,029.56 $ 0.00 $ 31,041.79 $ 372,501.48 $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE RECEIPT FOR NOTE Bank of America, N.A. (the "Bank"), DOES HEREBY ACKNOWLEDGE receipt from Village of Tequesta, Florida of the Village's Promissory Note, dated September 13, 2002, in the aggregate principal amount of $5,000,000. DATED the 13th day of September, 2002. BANK OF AMERICA, N.A. Its Authorized Representative MOYLE, FLANIGAN, i>ATZ, RAYMOND & SxEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive - 9`"Floor West Palm Beach, Florida 33401-4025 P.O. Box 3888 West Palm Beach, Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 Mnxx E.1ta-YMOrn Duect Line: (561) 822-0380 E-mail: mraymond@moylelaw.com Tallahassee, FL (850)681-3828 August 21, 2002 CERTIFIED MAIL RETURN RECEIPT REQUESTED AND VIA FACSIMILE Division of Bond Finance State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32317-3300 RE: Village of Tequesta, Florida $5,000,000 Promissory Note Ladies and Gentlemen: Notice is hereby given of the impending issuance by Village of Tequesta, Florida (the "Issuer") of the above-referenced Note (the "Note") in the estimated principal amount set forth above. The Issuer expects to deliver the Note on or about September 13, 2002. Sincerely, MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. Mark E. Raymond MER/wp LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of September 13, 2002, by and between the Village of Tequesta, Florida, a municipal corporation of the State of Florida (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns (the "Bank"); WHEREAS, the Village Council of the Issuer did on September 12, 2002, adopt a Resolution (the "Note Resolution")authorizing the borrowing by the Issuer of $5,000,000, and authorizing the execution and delivery by the Issuer of a promissory note (herein, the "Note") to evidence such borrowing for the purpose of providing funds, together with other funds of the Issuer to finance the Costs of Project (hereinafter defined), to refinance the Refinanced Note (hereinafter defined) and pay costs of issuing the Note; and WHEREAS, the Note shall be issued pursuant to the terms and provisions of the Note Resolution and this Agreement; and WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Note Resolution. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS Section 1.01 Definitions. The words and terms used in this Agreement shall have the meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined herein. Unless the context shall otherwise require, the following words and terms as used in this Agreement shall have the following meanings: "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Event of Default" shall mean an event of default specified in Article VI of this Agreement. "Loan" shall mean the outstanding principal amount of the Note issued hereunder. "Loan Documents" shall mean this Agreement, the Note, the Note Resolution, and all other documents, agreements, certificates, schedules, notes, statements, and opinions, however described, referenced herein or executed or delivered pursuant hereto or in connection with or arising with the Loan or the transaction contemplated by this Agreement. "Noteholder" shall mean the Bank as the holder of the Note, or any other registered holder of the Note. Section 1.02 Interpretation. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. Section 1.03 Titles and Headin¢s. The titles and headings of the articles and sections of this Agreement 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 OF ISSUER Subject to the Note Resolution, the Issuer represents and warrants to the Bank that: Section 2.01 Powers of Issuer. The Issuer is a municipal corporation duly organized and validly existing under the laws of the State of Florida. The Issuer has the power to borrow the amount provided for in this Agreement, to execute and deliver the Note and this Agreement, to secure the Note in the manner contemplated hereby and by the Note Resolution, and to perform and observe all the terms and conditions of the Note and this Agreement on its part to be performed and observed. The Issuer may lawfully issue the Note. Section 2.02 Authorization of Loan. The Issuer has and had, as the case maybe, full legal right, power, and authority to adopt the Note Resolution and to execute and deliver this Agreement, to issue, sell, and deliver the Note to the Bank, and to carry out and consummate all other transactions contemplated by the Loan Documents, and the Issuer has complied with all provisions of applicable law in all material matters relating to such transactions. The Issuer, by the Note Resolution, has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank provided for in this Agreement and to that end the Issuer warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Note. The Issuer has duly adopted the Note Resolution and authorized the execution, delivery, and performance of the Note and the Loan Agreement and the taking of any and all other such action as may be required on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated by the Loan Documents. The Note has been duly authorized, executed, issued and delivered to the Bank and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms and the terms of the Note Resolution, and is entitled to the benefits and security of the Note Resolution and this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Note or the execution and delivery of or the performance by the Issuer of its obligations under the Loan Documents have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 Agrreements. The making and performing by the Issuer of this Agreement will not violate any provision of the Act, or any bond or note resolution of the Issuer, or any regulation, order or decree of any court, and will not result in a breach of any of the terms of any agreement or instrument to v~~hich the Issuer is a party or by which the Issuer is bound. The Loan Documents constitute legal, valid, and binding obligations of the Issuer enforceable in accordance with their respective terms. Section 2.04 Litigation, Etc. There are no actions or proceedings pending against the Issuer or affecting the Issuer which, either in any case or in the aggregate, might result in any material adverse change in the financial condition of the Issuer, or which questions the validity of this Agreement, the Note, or any of the other Loan Documents or of any action taken or to be taken in connection with the transactions 2 contemplated hereby or thereby. The Issuer is not in default in any material respect under any agreement or other instrument to which it is a party or by which it may be bound. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. Subject to the Note Resolution, the Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of the Issuer hereunder or under any of the other Loan Documents remains unpaid or unperformed, as follows: a. Payment. The Issuer covenants that it shall duly and punctually pay the principal of the Note and the interest thereon at the dates and place and in the manner provided herein, in the Note Resolution and in the Note according to the true intent and meaning thereof. b. Use of Proceeds. The Issuer covenants that the proceeds from the Note will be used only for Costs of the Project or to pay interest due under the Note. c. Notice of Defaults. The Issuer shall immediately notify the Bank in writing upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and the action being taken or proposed to be taken by the Issuer with respect thereto. d. Financial Reports. The Issuer will cause an audit to be completed of its books and accounts and shall furnish to the Bank audited year end financial statements of the Issuer certified by an independent certified public accountant to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer and the results of its operations and cash flows for the periods covered by the audit report, all in conformity with generally accepted accounting principles applied on a consistent basis. Such audited year end financial statements shall be provided to the Bank in no event later than 210 days after the last day of the subject fiscal year and, if earlier, within forty-five (45) days after such audited year end financial statements are received by the Issuer. Additionally, the Issuer will provide the Bank with its annual operating budget when accepted and approved by the Village Council of the Issuer. e. Maintenance of Existence. The Issuer covenants that it will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under the Loan Documents have been paid in full. f. Records. The Issuer agrees that any and all records of the Issuer with respect to the Project andior the Loan Documents shall be open to inspection by the Bank or its representatives at all reasonable times at the offices of the Issuer. Section 3.02 Negative Covenants. The Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the Loan Documents remain unpaid or unperformed, that: (a) The Issuer shall not alter, amend or repeal the Note Resolution, or take any action impairing the authority thereby or hereby given with respect to the issuance and payment of the Note, without prior written approval of the Noteholder. Section 3.03 Tax Covenants. (a) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Note, the Issuer shall comply with each requirement of the Code applicable to the Note. In furtherance of the covenant contained in the preceding sentence, the Issuer agrees to continually comply with the provisions of the Certificate as to Arbitrage and Other Tax Matters to be executed by the Issuer, at the time the Note is issued, as such certificate maybe amended from time to time (herein referred to as the "Tax Certificate"). (b) The Issuer shall not take or permit any action or fail to take any action which would cause the Note to be an "arbitrage bond" within the meaning of Section 148(a) of the Code. (c) Notwithstanding any other provision of the Note Resolution or this Agreement to the contrary, so long as necessary in order to maintain the exclusion from gross income of interest on the Note for federal income tax purposes, the covenants contained in this Section shall survive the payment of the Note and the interest thereon, including any payment or defeasance thereof. Section 3.04. Miscellaneous Covenants and Representations. (a) The Issuer shall not loan money or make advances or other extensions of credit to other persons or entities except agencies of the Issuer. (b) The Issuer shall not create or permit any mortgage or lien on any of its assets without the prior written consent of the Bank, which consent will not be unreasonably withheld. (c) The Issuer shall not dispose of any of its assets other than in the ordinary course of business. (d) The Issuer shall promptly inform the Bank of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (e) The Issuer shall maintain such liability, casualty and other insurance as is reasonable and prudent for similarly situated municipalities of the State and shall upon the request of the Bank, provide evidence of such coverage to the Bank. (f) The Issuer is, to the best of its knowledge in compliance with, and the Issuer shall comply with all applicable federal, state and local laws and regulatory requirements the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (g) In the event the Note or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Issuer shall pay such taxes or reimburse the Bank for any such taxes paid by it. (h) For so long as the Note shall be Outstanding, the Issuer shall main a banking relationship with the Bank. 4 Section 3.05. Automatic Payment Procedure. The Issuer hereby authorizes the Bank to automatically deduct from the Issuer's account with the Bank numbered 47800004798 or such successor account as may be designated by the Issuer the amount of any payment due from the Issuer to the Bank under the Loan Documents. If the funds in the account are insufficient to cover any payment, the Bank shall not be obligated to advance funds to cover the payment. At any time and for any reason, the Issuer or the Bank may voluntarily terminate the automatic payments provided for herein by written notice delivered to the other. ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Revresentations and Warranties. The representations and warranties set forth in the Loan Documents are true and correct to the best of the Issuer's knowledge on and as of the date hereof and on and as of the date of each Advance under the Note. Section 4.02 No Default. On the date hereof and on and as of the date of each Advance under the Note, the Issuer shall be incompliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03 Delivery of Loan Documents. All Loan Documents in form and substance acceptable to the Bank shall have been executed and delivered to the Bank. Section 4.04 Supporting Documents. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in form and substance to the Bank: (a) The opinion of the attorney for the Issuer regarding the due authorization, execution, delivery, validity and enforceability of this Agreement, the Note and the due adoption of the Note Resolution (enforceability may be subject to standard bankruptcy exceptions and the like). (b) The opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., regarding, or to the effect that, (i) the due authorization, execution, delivery, validity, and enforceability of the Agreement and the Note and the due adoption and enforceability of the Note Resolution (enforceability of such instruments maybe subject to standard bankruptcy exceptions and the like}, (ii) the exclusion of interest on the Note from gross income for federal income tax purposes and designation of the Note as a "qualified tax-exempt obligation," (iii) that the Note is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code, (iv) interest on the Note is exempt from all present intangible personal property taxes imposed by the State of Florida and (v) the Note is a "qualified tax-exempt obligation" under Section 265 of the Code. (c) A certif ed copy of the Note Resolution; and (d) Such additional supporting documents as the Bank may reasonably request. 5 ARTICLE V THE LOAN; ISSUER'S OBLIGATION; THE NOTE Section 5.01 The Loan. The Bank hereby agrees to loan to the Issuer the amount of $5,000,000.00 to provide funds to finance certain of the Costs of the Project upon the terms and conditions set forth in the Note Resolution and in this Agreement. The Issuer agrees to borrow and agrees to repay the amount of $5,000,000.00 upon the terms and conditions set forth in this Agreement. Section 5.02 Note Not to be Indebtedness of the Issuer or State. The Note, when delivered by the Issuer pursuant to the terms of this Agreement, shall not be or constitute a general obligation or indebtedness of the Issuer, or the State of Florida, or any political subdivision of the State of Florida, within the meaning of any Constitutional, statutory or other limitation of indebtedness, but shall be special obligation payable solely as herein provided. No Noteholder shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer to pay the Note or the interest thereon. None of the Loan Documents create a lien upon any facilities of the Issuer. Any agreements or representations herein or contained in any Loan Document do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer, and in the event of a breach of any agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Section 5.03 The Note. To evidence the Loan, the Issuer shall issue and deliver to the Bank the Note in the form attached to the Note Resolution. ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Issuer shall default in any payment of the principal of, premium, if any, or the interest on the Loan when and as the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) the Issuer shall default in the performance of or compliance with any term or covenant contained in the Loan Documents, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with and for which a remedy is specifically provided herein, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Issuer by the Bank; or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of Article III of this Agreement, whichever is earlier; or (c) any representation or warranty made in writing by or on behalf of the Issuer or in any Loan Document shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or 6 (e) The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Issuer, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Issuer, a receiver or trustee of the Issuer or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (f) The Issuer shall file a petition or answer seeking reorganization or any an angement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State of Florida; or (g) Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Issuer or the whole or any substantial part of its property, and such custody or control shalt not be terminated within ninety (90) days from the date of assumption of such custody or control; or (h) The Issuer shall default in the due and punctual payment or performance of covenants under any obligation for the repayment of money. Section 6.02 Effect of Event of Default. (a) General. Upon the occurrence of any Event of Default, subj ect to the provisions of the Note Resolution, the Noteholder shall have and may exercise any or all of the rights set forth herein (which rights are in addition to and not in lieu of any other rights the Bank may have under applicable law) provided; however, the Noteholder shall be under no duty or obligation to do so. (b) Acceleration; Other Remedies. Immediately and without notice, upon the occurrence of any Event of Default, the Noteholder may declare all obligations of the Issuer under the Loan Documents to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accreted thereon shall become immediately due and payable and no further Advances shall be required to be made by the Noteholder. Upon such declaration, the Noteholder may also seek enforcement of and exercise all remedies available to it under the Note Resolution, the Act and any other applicable law. ARTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder, or under the Note or other Loan Documents shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law or in equity. Section 7.02 Amendments, Chancres or Modifications to the Agreement. This Agreement shall not be amended, changed or modified without the prior written consent of (i) the Bank (provided the Bank is a holder of a portion of the principal of the Note) or the Noteholders of at least fifty-one percent (51%) in aggregate principal amount of the Note and (ii) the Issuer. The Issuer agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in connection with modifying and/or amending this Agreement at the Issuer's request or behest, including costs and reasonable attorneys fees incurred in connection with any proposed modification or amendment requested by the Issuer, even if the Bank does not agree to the same. Section 7.03 Costs and Expenses. The Issuer agrees to pay the Bank's counsel a fee of $2,500.00 in connection with the preparation, execution and delivery of this Agreement, the Note and the Loan. T'he Issuer shall pay all costs and expenses it incurs in connection with the preparation, execution and delivery of the Agreement, the Note and the Loan and any other documents that may be prepared or delivered in connection with this Agreement. Section 7.04 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 7.05 Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. Section 7.06 Term of Agreement. Except as otherwise specified in this Agreement, this Agreement and all representations, wanranties,covenants and agreements contained herein or made in writing by the Issuer in connection herewith shall be in full force and effect from the date hereof and shall continue in effect as long as the Note is outstanding. Section 7.07 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent~by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to: If to the Issuer: JoAnn Forsythe Finance Director Village of Tequesta PO Box 3273 250 Tequesta Drive Tequesta, Florida 33469-0273 If to the Bank: Vanessa Civalero Vice President Bank of America, N.A. 625 No. Flagler Drive, 10th fl. West Palm Beach, FL 33401 with a copy to: Michael Posner Ward, Damon & Posner 4420 Beacon Circle West Palm Beach, FL 33407 8 or to such other address as either party may have specified in writing to the other using the procedures specified above in this Article VII, Section 7.07. Section 7.08 Applicable Law. This Agreement, and each of the Loan Documents and transactions contemplated herein, shall be construed pursuant to and governed by the substantive laws of the State of Florida. Section 7.09 Binding Effect; Assi ng_ment. This Agreement shall be binding upon and inure to the benefit of the successors in interest acid permitted assigns of the parties. The Issuer shall have no rights to assign any of their rights or obligations hereunder without the prior written consent of the Bank. Section 7.10 Conflict. In the event any conflict arises between the terms of this Agreement and the terms of any other Loan Document, the Bank shall have the option of selecting which conditions shall govern the loan relationship evidenced by this Agreement and, if the Bank does not so indicate, the terms of this Agreement shall govern in all instances of such conflict. Section 7.11 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. Section 7.12 Attorneys Fees. To the extent legally permissible, the Issuer and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement, the Note, or the Note Resolution (including any trial(s), appeal(s)), or bankruptcy proceedings), the prevailing party shall be entitled to recover reasonable costs and attorneys' fees from the other party. Section 7.13 Entire Agreement. Except as otherwise expressly provided, this Agreement and the other Loan Documents embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. Section 7.14 Further Assurances. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects, for the purpose of carrying out the transactions contemplated by this Agreement. Section 7.15 Incorporation by Reference. All of the terms and obligations of the Note Resolution are hereby incorporated herein by reference as if said Note Resolution was fully set forth in this Agreement. Section 7.16 Arbitration and Waiver of Jury Trial. This Section 7.16 concerns the resolution of any controversies or claims between the Issuer and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any document related to this Agreement, including the Note and the Note Resolution (collectively a "Claim"). At the request of the Issuer or the Bank, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will apply even though this Agreement provides that it is governed by the law of a specified state. Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof 9 ("J.A.M.S."), and the terms of this Section 7.16. In the event of any inconsistency, the terms of this paragraph shall control. The arbitration shall be administered by J.A.M.S. and conducted in West Palm Beach, Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additiona160 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This Section 7.16 does not limit the right of the Issuer or the Bank to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Agreement. No provision in this Agreement or in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions of this Agreement or in any Loan Document for arbitration of any controversy or claim. 10 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the Date of Execution set forth below. VII.LAGE OF TEQUESTA, FLORIDA (SEAL) By: Titl a or By: 1~~1yL~/ ~~-- Title: Clerk Date of Execution: September 13, 2002 BANK OF AMERICA, N.A. .~ By: ~/~i~~.ti-~' Title: Vice President Date of Execution: September 13, 2002 11 $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE GENERAL CERTIFICATE OF THE ISSUER We, the undersigned Mayor (±he "Mayor") and Village Clerk ("Clerk") of the Village of Tequesta, Florida (the "Issuer"), DO HEREBY CERTIFY as follows: 1. We are the qualified and acting Mayor and Village Clerk of the Issuer. 2. All of the members being Geraldine Genco, Mayor, Joseph Capretta, Vice-Mayor, Basil Dalack, Russel von Frank and Edward Resnik of the Village Council have duly filed their oaths of office and such of them as are required by law to file bonds or undertakings have duly filed such bonds or undertakings in the amount and manner required by law. 3. The Mayor has signed the Issuer's $5,000,000 Promissory Note dated September 13, 2002 (the "Note") by her manual signature, and the manual signature appearing on the Note and the manual signature at the end of this certificate are each the true and lawful signature of the Mayor. 4. The seal of the Issuer was impressed upon the Note, and attested by the manual signature of the Clerk. Such seal and signature appearing on the Note and the manual signature of the Clerk and the impression of the seal of the Issuer at the end of this certificate constitute the true and lawful seal of the Issuer and the signature of the Clerk, respectively. 5. The Note, as executed and delivered, is in the form approved by the Village Council in Resolution 79-01/02 (the "Resolution"). 6. The Issuer has authorized by all necessary action the adoption and due performance of the Resolution and the execution, delivery and due performance of the Note and, to the best of our knowledge, any and all such other agreements and documents as maybe required to be executed, delivered and received by the Issuer to carry out, give effect to and consummate the transactions contemplated by the Resolution. 7. No litigation is pending or, to our knowledge, threatened, in or before any agency, court or tribunal, state or federal (i) to restrain or enjoin the issuance, delivery or validity of the Note or (ii) in any way contesting or affecting the validity of the Note, the Resolution or the application of the proceeds of the Note, or (iii) contesting the power of the Issuer or any authority for the issuance of the Note or the adoption of the Resolution or the approval, execution, validity, or enforceability of any agreements with respect thereto, or (iv) contesting the tax-exempt status of interest on the Note. 8. No litigation is pending or, to our knowledge, threatened, (i) against the Issuer or involving any of the property, assets or operations under the control of the Issuer which involves the possibility that a judgment or liability, not fully covered by insurance or adequate established reserves, maybe entered or imposed against the Issuer or which may result in any material adverse change in the business, properties, assets or in the condition, financial or otherwise, of the Issuer, and (ii) which would reasonably be anticipated to have a material and adverse effect upon the security provided for the Note pursuant to the Resolution. 9. No litigation is pending or, to our knowledge, threatened to contest the creation, organization, existence or corporate powers of the Issuer, or of the Village Council, or the title to office of its present members, or the members at any time material to the issuance of the Note, or of any other officer of the Issuer. 10. The execution, delivery, receipt and due performance of the Note and any other agreements contemplated by the Resolution, under the circumstances contemplated thereby and the Issuer's compliance with the provisions thereof (i) to the best of our knowledge will not conflict with or constitute on the Issuer's part a breach of or a default under any existing constitutional provision, law, court or administrative regulation, decree or order or (ii) will not conflict with or constitute on the Issuer's part a breach of or a default under any agreement, indenture, bond, note, lease or other instrument to which the Issuer is subject or by which the Issuer is or may be bound, and to the best of our knowledge no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument, nor will such execution, delivery, adoption, 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 Issuer except as provided by the Note and the Resolution. 11. The undersigned have not, and to the best of their knowledge no members of the Village Council have, while meeting together with any other member or members of the Village Council other than at public meetings of the Village Council, reached any conclusion as to the actions taken by the Village Council with respect to the Resolution or the Note, the security therefor, or the application of the proceeds therefrom, or any other material matters with respect to the Resolution or the Note. 12. The undersigned do not, and to the best of their knowledge and belief no member of the Village Council does, have any employment or other relationship with Bank of America, N.A. which would violate the provisions of Section 112.3143, Florida Statutes, and each of the undersigned represents that the transaction contemplated by the Resolution will not enure to his or her special private gain, or to the best of his or her knowledge, the special private gain of another member of the Village Council, or the special private gain of a relative or business associate of the undersigned or any other member of the Village Council, all as defined in Section 112.3143, Florida Statutes, except as fully and fairly disclosed as required by Section 112.3143, Florida Statutes. 13. The Issuer has not been in default at any time after December 31, 1975 as to principal or interest with respect to any obligations issued or guaranteed by the Issuer or a predecessor of the Issuer. 2 14. The Issuer hereby certifies that the interest rate on the Note does not exceed the maximum rate permitted pursuant to Section 215.84, Florida Statutes. IN WITNESS WHEREOF, we have hereunto set our hands and the official seal of the Issuer, and have indicated our respective official titles, all as of the 13th day of September, 2002. Si ature Official Title Mayor ~'~" "~ Village Clerk (Official Seal) 3 CERTIFICATE OF TRUE COPY I, the undersigned Village Clerk ofthe Village ofTequesta, Florida, DO HEREBY CERTIFY that attached hereto is a true and correct copy of Resolution 79-01/02 duly adopted September 12, 2002, and that such resolution remains in force and has not been amended. IN WITNESS WHEREOF, I have hereunto set my hand as of the 13th day of September, 2002. B ~'~7 ~~-~~~ Y~ Village Cle RESOLUTION N0.79-01/02 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA; AUTHORIZING THE ISSUANCE OF A NOTE OF THE VILLAGE IN THE PRINCIPAL AMOUNT OF $5,000,000 TO FINANCE THE COST OF A NEW PUBLIC SAFETY FACILITY OF THE VILLAGE AND TO REFINANCE AN EXISTING NOTE OF THE VILLAGE INCURRED FOR SUCH PURPOSE; PROVIDING THAT SUCH NOTE SHALL NOT BE A GENERAL OBLIGATION OF THE VILLAGE BUT SHALL BE PAYABLE ONLY FROM CERTAIN NON-AD VALOREM REVENUES AS PROVIDED HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES, AND REMEDIES FOR THE OWNER OF SUCH NOTE; PROV IDING FOR THE CREATION OF CERTAIN FUNDS; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, THAT: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Village of Tequesta, Florida, and other applicable provisions of law. Section 2. Definitions. The following words and phrases shall have the following meanings when used herein: "Act" means Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer, and other applicable provisions of law. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is closed. "Clerk" means the duly appointed Village Clerk of the Issuer, or any duly authorized deputy thereof. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Cost" means, with respect to the Project, all items of cost authorized by the Act. "Designated Revenues" means any lawfully available non ad valorem revenue stream designated by the Issuer by resolution of the Village Council and acceptable to the Owner, as evidenced in writing signed by the Owner. "Issuer" means the Village of Tequesta, Florida, a municipal corporation of the State of Florida. "Loan Agreement" means the agreement between the Issuer and the Original Purchaser in the form attached hereto as Exhibit "B." "Mayor" means the Mayor of the Issuer, or in his or her absence or inability to act, the Vice-Mayor of the Issuer. "Non Ad Valorem Revenues" means any and all revenues of the Issuer, other than the Public Service Tax Revenues or any Designated Revenues, which are not derived by the Issuer from its imposition, levy and collection of ad valorem taxes on real and personal property in the jurisdiction of the Issuer, and which are lawfully available for the payment of principal and interest on the Note. "Note" means the Promissory Note of the Issuer authorized by Section 4 hereof. "Original Purchaser" means Bank of America, N.A., its successors and assigns. "Owner" or "Owners" means the Person or Persons in whose name or names the Note shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. "Pledged Revenues" means (i) the Public Service Tax Revenues and (ii) to the extent provided in Section 7 hereof, the Non Ad Valorem Revenues and (iii) any Designated Revenues. "Principal Office" means, with respect to the Original Purchaser, the office located at 625 North Flagler Drive, 10'~ Floor, West Palm Beach, Florida 33401, or such other office as the Original Purchaser may designate to the Issuer in writing. "Project" means capital expenditures of the Issuer constituting costs of a new public safety facility and includes refinancing of the outstanding balance of the Issuer's $6,000,000 Promissory Note, dated January 11, 2002. "Public Service Tax Revenues" means all amounts received by the Issuer pursuant to the tax (the "Public Service Tax") levied on the purchase of electricity, metered natural gas, liquified petroleum gas either metered or bottled, manufactured gas either metered or bottled and water service purchased within the jurisdiction of the Issuer pursuant to the authority of Section 166.231, Florida Statutes or any successor provision of law. "Resolution" means this Resolution, as amended and supplemented from time to time. "State" means the State of Florida. Section 3. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Note authorized to be issued hereunder by those who shall be the Owners thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owners. Section 4. Authorization of Note. Subject and pursuant to the provisions of this Resolution, a special obligation of the Issuer is hereby authorized to be issued under and secured by this Resolution, in the principal amount of $5,000,000, for the purpose of financing the Cost of the Project. Because of the characteristics of the Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Note at a private negotiated sale. Prior to the issuance of the Note the Issuer shall receive from the Original Purchaser the disclosure statement containing the information required by Section 218.385, Florida Statutes. 2 Section 5. Description of Note. The Note shall be dated the date of its execution and delivery, which shall be September 13, 2002 unless another date is agreed upon by the Mayor and the Original Purchaser, and shall have such other terms and provisions, including the interest rate and maturity date, as stated in the form of Note attached hereto as Exhibit A. The Note is to be in the form set forth on Exhibit A attached hereto. The Note shall be executed on behalf of the Issuer with the manual signature of the Mayor and shall have impressed thereon the official seal of the Issuer, and be attested with the manual signature of the Clerk, and the said Mayor and Clerk are hereby authorized to execute and attest to the Note on behalf of the Issuer. Section 6. Registration and Exchange of Note; Persons Treated as Owners. The Note is initially registered to the Original Purchaser. So long as the Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Note. The Note shall be transferable only upon such registration books. The Person in whose name the Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on the Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. Section 7. Payment of Principal and Interest; Limited Obligation; Additional Debt. The Issuer promises that it will promptly pay the principal of and interest on the Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof, provided that the principal of and interest on the Note is payable from the Pledged Revenues as hereinafter described, and nothing in the Note or in this Resolution shall be construed as pledging any other funds or assets of the Issuer to such payment. The Issuer is not and shall not be liable for the payment of the principal of and interest on the Note or for the performance of any pledge, obligation or agreement undertaken by Issuer from any property other than the Pledged Revenues as hereinafter described. No Owner of the Note shall have any right to resort to legal or equitable action to require or compel the Issuer to make any payment required hereby or by the Note except from the Pledged Revenues as hereinafter described. The Issuer hereby grants a pledge of and lien upon the Public Service Tax Revenues and any Designated Revenues to secure its obligations hereunder, under the Note and under the Loan Agreement. The Issuer covenants that, so long as the Note shall remain unpaid, it will appropriate in its annual budget and by amendment, if required, from Non Ad Valorem Revenues in each fiscal year, amounts sufficient, together with the other Pledged Revenues, to pay the principal of and interest on the Note as the same shall become due. In the event that the amount previously budgeted for such purpose is at any time insufficient to pay principal and interest on the Note, the Issuer covenants to take immediate action to amend the budget for such fiscal year so as to budget and appropriate an amount sufficient from Non Ad Valorem Revenues to pay such debt service on the Note. Such covenants to budget and appropriate from Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such Non Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay debt service on the Note. The Issuer further covenants that the obligation of the Issuer to include the amount of any principal and interest on the Note in each of its annual budgets or amendments thereto and to pay such deficiencies from Non Ad Valorem Revenues so long as the Note is outstanding are entered into for the benefit of the Owners and may be enforced by them in any court of competent jurisdiction. Notwithstanding the foregoing covenants, the Issuer does not covenant to maintain any services or programs now provided or maintained by the Issuer 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 Issuer from pledging in the future its Non Ad Valorem Revenues to indebtedness other than the Note, nor does it require the Issuer to levy and collect any particular Non Ad Valorem Revenues, nor does it give the Owners a prior claim on the Non Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. However, the covenants to budget and appropriate in its general annual budget or amendments thereto for the purposes and in the manner stated herein shall have the effect of making available for payment of the Note the Non Ad Valorem Revenues of the Issuer, and of placing on the Issuer a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which provides that the governing body of each municipality may not make appropriations for each fiscal year which, in any one year, which exceed the amount to be received from taxation or other revenue sources and which makes it unlawful for any officer of any municipal government to draw money from the treasury except in pursuants of an appropriation made by law. The Issuer covenants that for so long as the Note shall remain unpaid, it will continue to impose the Public Service Tax up to the maximum rate permitted by law, so as to produce Public Service Tax Revenues in each fiscal year of the Issuer which, together with any Designated Revenue received in such fiscal year at least equal to the principal of and interest due on the Note in such fiscal year. The Borrower may incur additional indebtedness payable from the Public Service Tax Revenues and any Designated Revenues and secured thereby on parity with the Note if, but only if, the amount of Public Service Tax Revenues and any Designated Revenues received by the Issuer during the most recently concluded fiscal year for which audited financial statements of the Issuer are available were at least 150% of the maximum amount of principal and interest scheduled to become due on the Note and any such additional indebtedness in the then current or any future fiscal year of the Issuer. In the event the Issuer proposed to incur any additional debt which bears a variable rate of interest, if such indebtedness is to be secured as aforesaid, the proceedings authorizing the issuance of such indebtedness must establish a maximum interest rate which may be borne by such indebtedness, and in performing the calculation of the maximum principal and interest which may be due upon such additional indebtedness, such maximum interest rate shall be used. Section 8. Compliance with Tax Requirements. The Issuer hereby covenants and agrees, for the benefit of the Owners from time to time of the Note, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest on the Note from gross income of the Owners for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the .Issuer covenants and agrees: (1) to pay to the United States of America from any legally available funds, at the times required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non-purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Note, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; 4 (3) to refrain from using proceeds of the Note in a manner that would cause the Note to be classified as a private activity bond under Section 141(a) of the Code; and (4) to refrain from taking any action or omitting to take any action if such action or omission would cause the Note to become an arbitrage bond under Section 103(b) and Section 148 of the Code. The Issuer understands that the foregoing covenants impose continuing obligations on the Issuer to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. The Issuer agrees that it will cooperate with the Owner at the written request of the Owner in providing the Owner any evidence necessary to establish the continuing tax-exempt status of the Note. Section 9. Loan Agreement. The Loan Agreement between the Issuer and the Original Purchaser in substantially the foam attached hereto as Exhibit B is hereby approved, with such changes as may be approved by the officials of the Issuer executing the same such approval to be conclusively established by such execution, and the Mayor and Clerk are authorized and directed to execute the same on behalf of the Issuer, and when executed, the Loan Agreement shall constitute a part of this Resolution the same as if set forth herein in its entirety. Section 10. Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Note except with the written consent of the Owner of the Note. Section 11. Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note is intended or shall be construed to give to any Person other than the Issuer and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Owner. Section 12. Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated bond, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably satisfactory to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so surrendered shall be cancelled. Section 13. Impairment of Contract. The Issuer covenants with the Owner of the Note that it will not, without the written consent of the Owner of the Note, enact any ordinance or resolution which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 14. Remedies of Noteholder. Should the Issuer default in any obligation created by this Resolution, the Loan Agreement or the Note, the Owner of the Note may, in addition to any other remedies set forth in this Resolution, the Loan Agreement or the Note, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted or contained in this Resolution, the Loan Agreement or the 5 Note and may enforce and compel the performance of all duties required by this Resolution, the Loan Agreement or the Note or by any applicable statutes to be performed by the Issuer or by any officer thereof. Section 15. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 16. Business Days. In any case where the due date of interest on or principal of the Note is not a Business Day, then payment of principal or interest need not be made on such date but maybe made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owner. Credit for payments ofprincipal and interest on the Note received after 1:00 p.m. on a Business Day shall not be given until the next succeeding Business Day and interest shall continue to accrue. Section 17. Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 18. Rules of Interpretation. Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 19. Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. Section 20. Limited Liability of Issuer. It is hereby expressly made a condition of this Resolution and of the Note that any agreements or representations herein or therein contained or contained in the documents and instruments executed in connection therewith do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer and in the event of a breach of any agreement, covenant or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Nothing contained in this Section 20, however, shall relieve the Issuer from the observance and performance of the several covenants and agreements on its part herein contained. Section 21. Officers and Emnlovees of the Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution, the Note, or the Loan Agreement or for any claim based thereon or otherwise in respect thereof, shall be had against any Councilmember of the Issuer, or any officer, agent or employee, as such, of the Issuer past, present or future, either directly or through the Issuer whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood (a) that the obligation of the Issuer under this Resolution is solely a corporate one, limited as provided in the preceding Section 20, (b) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the Councilmember of the Issuer, or the officers, agents, or employees, as such, of the Issuer, or any of them, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (c) that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such Councilmember of the Issuer, and every officer, agent, or employee, as such, of the Issuer under or by reason of the obligations, covenants or agreements contained in this 6 Resolution, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Note on the part of the Issuer. Section 22. Authorizations. The Mayor and any Councilmember, and such other officials and employees of the Issuer as may be designated by the Mayor are each designated as agents of the Issuer in connection with the issuance and delivery of the Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Issuer that are necessary or desirable in connection with the execution and delivery of the Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 23. Section 265 Designation Note. The reasonably anticipated amount of tax-exempt obligations (other than obligations described in Clause (ii) of Section 265(b)(3)(C) of the Code) which have been or will be issued by the Issuer during 2002 does not exceed $10,000,000 (for this purpose only $4,400,535.17 principal amount of the Issuer's Promissory Note dated January 11, 2002 is counted against the $10,000,000 limit). The Issuer hereby designates the Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The Issuer hereby covenants and agrees not to take any action or to fail to take any action if such action or failure would cause the Note to no longer be a "qualified tax-exempt obligation." Section 24. Other Indebtedness. Subj ect to Section 7 hereof, the Issuer may at any time or from time to time issue evidence of indebtedness that is payable in whole or in part out of the Non Ad Valorem Revenues, and which may be secured by a pledge of any of the Non Ad Valorem Revenues, provided that the Issuer will not issue any such indebtedness if it would adversely affect the ability of the Issuer to meet its obligations hereunder. Section 25. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 26. Effective Date. This Resolution shall take effect immediately upon its adoption. THE FOREGOING RESOLUTION was offered by Councilmember ,who moved its adoption. The motion was seconded by Councilmember ,and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION C Ail rZ,~o-n,~l~ ~~ ~~~~ C~ ~ ~ 7 The Mayor thereupon declared the Resolution duly passed and adopted this 12th day of September, 2002. [SEAL] ATTEST: G~~~L~l Village Cle Mayor of Tequesta ~.GcC.v--v , EXHIBIT A September 13, 2002 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE SERIES 2002B $5,000,000.00 KNOW ALL MEN BY THESE PRESENTS that Village of Tequesta, Florida (the "Issuer"), a municipality of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank or America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $5,000,000.00 or such lesser amount as shall be outstanding hereunder, together with interest on the principal balance outstanding at the rate of 4.28% per annum (subj ect to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in immediately available funds constituting lawful money of the United States of America at such place as the Owner may designate to the Issuer. Accrued interest hereon shall be paid monthly in arrears on the 13th day of each month, commencing October 13, 2002, and the principal amount hereof, together with accrued interest thereon, shall be repaid in 239 equal monthly payments of principal and interest of $31,041.79 due and payable on October 13, 2002 and on the 13th day of each month thereafter, and the entire unpaid principal balance, together with all accrued and unpaid interest hereon, shall be due and payable in full on September 13, 2022 (the "Maturity Date"). All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to the principal sum due. As used in this Note, (1) "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. (2) "Determination of Taxability" shall mean interest on this Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be includable in the gross income of the Owner for federal income tax purposes under the Code. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to 154% of the interest rate otherwise borne hereby (the "Adjusted Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months, as of and from the date such Determination of Taxability would be applicable with respect to this Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or, if this Note shall have matured, within 30 days after demand by the Owner) hereon pay to the Owner, or any former Owner, as maybe appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Note at the Adjusted Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the Issuer on this Note from the Accrual Date to the date of Determination of Taxability, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such Owner and/or former Owner arising as a result of such Determination of Taxability; and (ii) from and after the Date of the Determination of Taxability, this Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. The principal of and interest on this Note may be prepaid at the option of the Issuer in whole or in part at any time. If a prepayment is made, then there shall be a prepayment fee. The prepayment fee shall be in an amount, if any, sufficient to compensate the Owner for any loss, cost or PxpensP incu?Ted by it as a result of the prepayment, including any loss of anticipated profits and any loss or expense arising from the liquidation or re-employment of funds obtained by it to maintain the creditor from fees payable to terminate the deposits from which such funds were obtained. The Issuer shall also pay any customary administrative fees charged by the Owner in connection with the foregoing. For purposes of this paragraph, the Owner shall be deemed to have funded the loan evidenced by this Note by a matching deposit or other borrowing in the applicable interbank market, whether or not the loan was in fact so funded. Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the Pledged Revenues) as part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof, including such fees as maybe incun;ed on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. If any payment hereunder is not made within ten (10) days after it is due, then the Issuer shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 5% of delinquent payment, which late payment shall be due and payable immediately. Interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. THIS NOTE AND THE INTEREST HEREON DOES NOT AND SHALL NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER WTTHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION BUT SHALL BE PAYABLE SOLELY FROM THE MONEYS AND SOURCES PLEDGED THEREFOR. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to a Resolution duly adopted by the Issuer on September 12, 2002, as from time to time amended and supplemented (herein referred to as the "Resolution"), and a Loan Agreement, dated of even date herewith between the Issuer and the Owner (the "Loan Agreement") and is subject to all the terms and conditions of the Resolution and Loan Agreement. All terms, conditions and provisions of the Resolution and Loan Agreement are by this reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. 2 This Note is payable solely from and is secured by a lien upon and pledge of the "Pledged Revenues" as described in the Loan Agreement. Notwithstanding any other provision of this Note, the Issuer is not and shall not be liable for the payment of the principal of and interest on this Note or otherwise monetarily liable in connection herewith from any properly other than the Pledged Revenues. This Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, Village of Tequesta, Florida has caused this Note to be executed in its name by the manual signature of its Mayor this 13th day of September, 2002. [SEAL] ATTEST: By: Village Clerk Mayor of Tequesta By: EXHIBIT B LOAN AGREEMENT This LOAN AGREEMENT (the "Agreement") is made and entered into as of September 13, 2002, by and between the Village of Tequesta, Florida, a municipal corporation of the State of Florida (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns (the "Bank"); WHEREAS, the Village Council of the Issuer did on September 12, 2002, adopt a Resolution (the "Note Resolution") authorizing the borrowing by the Issuer of $5,000,000, and authorizing the execution and delivery by the Issuer of a promissory note (herein, the "Note") to evidence such borrowing for the purpose of providing funds, together with other funds of the Issuer to finance the Costs of Project (hereinafter definedj, to refinance the Refinanced Note (hereinafter defined) and pay costs of issuing the Note; and WHEREAS, the Note shall be issued pursuant to the terms and provisions of the Note Resolution and this Agreement; and WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Note Resolution. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS Section 1.01 Definitions. The words and terms used in this Agreement shall have the meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined herein. Unless the context shall otherwise require, the following words and terms as used in this Agreement shall have the following meanings: "Agreement" shall mean this Loan Agreement and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Event of Default" shall mean an event of default specified in Article VI of this Agreement. "Loan" shall mean the outstanding principal amount of the Note issued hereunder. "Loan Documents" shall mean this Agreement, the Note, the Note Resolution, and all other documents, agreements, certificates, schedules, notes, statements, and opinions; however described, referenced herein or executed or delivered pursuant hereto or in connection with or arising with the Loan or the transaction contemplated by this Agreement. "Noteholder" shall mean the Bank as the holder of the Note, or any other registered holder of the Note. Section 1.02 Interpretation. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. Section 1.03 Titles and Headin¢s. The titles and headings of the articles and sections of this Agreement 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 OF ISSUER Subject to the Note Resolution, the Issuer represents and warrants to the Bank that: Section 2.01 Powers of Issuer. The Issuer is a municipal corporation duly organized and validly existing under the laws of the State of Florida. The Issuer has the power to borrow the amount provided for in this Agreement, to execute and deliver the Note and this Agreement, to secure the Note in the manner contemplated hereby and by the Note Resolution, and to perform and observe all the tenors and conditions of the Note and this Agreement on its part to be performed and observed. The Issuer may lawfully issue the Note. Section 2.02 Authorization of Loan. The Issuer has and had, as the case maybe, full legal right, power, and authority to adopt the Note Resolution and to execute and deliver this Agreement, to issue, sell, and deliver the Note to the Bank, and to carry out and consummate all other transactions contemplated by the Loan Documents, and the Issuer has complied with all provisions of applicable ]aw in all material matters relating to such transactions. The Issuer, by the Note Resolution, has duly authorized the borrowing of the amount provided for in this Agreement, the execution and delivery of this Agreement, and the making and delivery of the Note to the Bank provided for in this Agreement and to that end the Issuer warrants that it will take all action and will do all things which it is authorized by law to take and to do in order to fulfill all covenants on its part to be performed and to provide for and to assure payment of the Note. The Issuer has duly adopted the Note Resolution and authorized the execution, delivery, and performance of the Note and the Loan Agreement and the taking of any and all other such action as may be required on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated by the Loan Documents. The Note has been duly authorized, executed, issued and delivered to the Bank and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms and the terms of the Note Resolution, and is entitled to the benefits and security of the Note Resolution and this Agreement. All approvals, consents, and orders of and filings with any governmental authority or agency which would constitute a condition precedent to the issuance of the Note or the execution and delivery of or the performance by the Issuer of its obligations under the Loan Documents have been obtained or made and any consents, approvals, and orders to be received or filings so made are in full force and effect. Section 2.03 Agreements. The making and performing by the Issuer of this Agreement will not violate any provision of the Act, or any bond or note resolution of the Issuer, or any regulation, order or decree of any court, and will not result in a breach of any of the terms of any agreement or instrument to which the Issuer is a party or by which the Issuer is bound. The Loan Documents constitute legal, valid, and binding obligations of the Issuer enforceable in accordance with their respective terms. Section 2.04 Litigation, Etc. There are no actions or proceedings pending against the Issuer or affecting the Issuer which, either in any case or in the aggregate, might result in any material adverse change 2 in the financial condition of the Issuer, or which questions the validity of this Agreement, the Note, or any of the other Loan Documents or of any action taken or to be taken in connection with the transactions contemplated hereby or thereby. The Issuer is not in default in any material respect under any agreement or other instrument to which it is a party or by which it maybe bound. ARTICLE III COVENANTS OF THE ISSUER Section 3.01 Affirmative Covenants. Subject to the Note Resolution, the Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of the Issuer hereunder or under any of the other Loan Documents remains unpaid or unperformed, as follows: a. Payment. The Issuer covenants that it shall duly and punctually pay the principal of the Note and the interest thereon at the dates and place and in the manner provided herein, in the Note Resolution and in the Note according to the true intent and meaning thereof. b. Use of Proceeds. The Issuer covenants that the proceeds from the Note will be used only for Costs of the Project or to pay interest due under the Note. c. Notice of Defaults. The Issuer shall immediately notify the Bank in writing upon the happening, occurrence, or existence of any Event of Default, and any event or condition which with the passage of time or giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such written notice, a detailed statement by a responsible officer of the Issuer of all relevant facts and the action being taken or proposed to be taken by the Issuer with respect thereto. d. Financial Reports. The Issuer will cause an audit to be completed of its books and accounts and shall furnish to the Bank audited year end financial statements of the Issuer certified by an independent certified public accountant to the effect that such audit has been conducted in accordance with generally accepted auditing standards and stating whether such financial statements present fairly in all material respects the financial position of the Issuer and the results of its operations and cash flows for the periods covered by the audit report, all in conformity with generally accepted accounting principles applied on a consistent basis. Such audited year end financial statements shall be provided to the Bank in no event later than 210 days after the last day of the subject fiscal year and, if earlier, within forty-five (45) days after such audited year end financial statements are received by the Issuer. Additionally, the Issuer will provide the Bank with its annual operating budget when accepted and approved by the Village Council of the Issuer. e. Maintenance of Existence. The Issuer covenants that it will take all reasonable legal action within its control in order to maintain its existence until all amounts due and owing from the Issuer to the Bank under the Loan Documents have been paid in full. f. Records. The Issuer agrees that any and all records of the Issuer with respect to the Project and/or the Loan Documents shall be open to inspection by the Bank or its representatives at all reasonable times at the offices of the Issuer. Section 3.02 Negative Covenants. The Issuer covenants, for so long as any of the principal amount of or interest on the Note is outstanding and unpaid or any obligations of the Issuer under any of the Loan Documents remain unpaid or unperformed, that: 3 (a) The Issuer shall not alter, amend or repeal the Note Resolution, or take any action impairing the authority thereby or hereby given with respect to the issuance and payment of the Note, without prior written approval of the Noteholder. Section 3.03 Tax Covenants. (a) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Note, the Issuer shall comply with each requirement of the Code applicable to the Note. In furtherance of the covenant contained in the preceding sentence, the Issuer agrees to continually comply with the provisions of the Certificate as to Arbitrage and Other Tax Matters to be executed by the Issuer, at the time the Note is issued, as such certificate maybe amended from time to time (herein referred to as the "Tax Certificate"). (b) The Issuer shall not take or permit any action or fail to take any action which would cause the Note to be an "arbitrage bond" within the meaning of Section 148(a) of the Code. (c) Notwithstanding any other provision of the Note Resolution or this Agreement to the contrary, so long as necessary in order to maintain the exclusion from gross income of interest on the Note for federal income tax purposes, the covenants contained in this Section shall survive the payment of the Note and the interest thereon, including any payment or defeasance thereof. Section 3.04. Miscellaneous Covenants and Representations. (a) The Issuer shall not loan money or make advances or other extensions of credit to other persons or entities except agencies of the Issuer. (b) The Issuer shall not create or permit any mortgage or lien on any of its assets without the prior written consent of the Bank, which consent will not be unreasonably withheld. (c) The Issuer shall not dispose of any of its assets other than in the ordinary course of business. (d) The Issuer shall promptly inform the Bank of any actual or potential contingent liabilities or pending or threatened litigation of any amount that could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (e) The Issuer shall maintain such liability, casualty and other insurance as is reasonable and prudent for similarly situated municipalities of the State and shall upon the request of the Bank, provide evidence of such coverage to the Bank. (f) The Issuer is, to the best of its knowledge in compliance with, and the Issuer shall comply with all applicable federal, state and local laws and regulatory requirements the violation of which could reasonably be expected to have a material and adverse effect upon the financial condition of the Issuer. (g) In the event the Note or this Agreement should be subject to the excise tax on documents or the intangible personal property tax of the State, the Issuer shall pay such taxes or reimburse the Bank for any such taxes paid by it. (h) For so long as the Note shall be Outstanding, the Issuer shall main a banking relationship with the Bank. 4 Section 3.05. Automatic Payment Procedure. The Issuer hereby authorizes the Bank to automatically deduct from the Issuer's account with the Bank numbered 47800004798 or such successor account as may be designated by the Issuer the amount of any payment due from the Issuer to the Bank under the Loan Documents. If the funds in the account are insufficient to cover any payment, the Bank shall not be obligated to advance funds to cover the payment. At any time and for any reason, the Issuer or the Bank may voluntarily terminate the automatic payments provided for herein by written notice delivered to the other. ARTICLE IV CONDITIONS OF LENDING The obligations of the Bank to lend hereunder are subject to the following conditions precedent: Section 4.01 Representations and Warranties. The representations and warranties set forth in the Loan Documents are true and correct to the best of the Issuer's knowledge on and as of the date hereof and on and as of the date of each Advance under the Note. Section 4.02 No Default. On the date hereof and on and as of the date of each Advance under the Note, the Issuer shall be incompliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and no Event of Default nor any event that, upon notice or lapse of time or both, would constitute such an Event of Default, shall have occurred and be continuing at such time. Section 4.03 Delivery of Loan Documents. All Loan Documents in form and substance acceptable to the Bank shall have been executed and delivered to the Bank. Section 4.04 Supporting Documents. On or prior to the date hereof, the Bank shall have received the following supporting documents, all of which shall be satisfactory in form and substance to the Bank: (a) The opinion of the attorney for the Issuer regarding the due authorization, execution, delivery, validity and enforceability of this Agreement, the Note and the due adoption of the Note Resolution (enforceability may be subject to standard bankruptcy exceptions and the like). (b) The opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., regarding, or to the effect that, (i) the due authorization, execution, delivery, validity, and enforceability of the Agreement and the Note and the due adoption and enforceability of the Note Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like), (ii) the exclusion of interest on the Note from gross income for federal income tax purposes and designation of the Note as a "qualified tax-exempt obligation," (iii) that the Note is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code, (iv) interest on the Note is exempt from all present intangible personal property taxes imposed by the State of Florida and (v) the Note is a "qualified tax-exempt obligation" under Section 265 of the Code. (c) A certified copy of the Note Resolution; and (d) Such additional supporting documents as the Bank may reasonably request. 5 ARTICLE V THE LOAN; ISSUER'S OBLIGATION; THE NOTE Section 5.01 The Loan. The Bank hereby agrees to loan to the Issuer the amount of $5,000,000.00 to provide funds to finance certain of the Costs of the Project upon the terms and conditions set forth in the Note Resolution and in this Agreement. The Issuer agrees to borrow and agrees to repay the amount of $5,000,000.00 upon the terms and conditions set forth in this Agreement. Section 5.02 Note Not to be Indebtedness of the Issuer or State. The Note, when delivered by the Issuer pursuant to the terms of this Agreement, shall not be or constitute a general obligation or indebtedness of the Issuer, or the State of Florida, or any political subdivision of the State of Florida, within the meaning of any Constitutional, statutory or other limitation of indebtedness, but shall be special obligation payable solely as herein provided. No Noteholder shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer to pay the Note or the interest thereon. None of the Loan Documents create a lien upon any facilities of the Issuer. Any agreements or representations herein or contained in any Loan Document do not and shall never constitute or give rise to any personal or pecuniary liability or charge against the general credit of the Issuer, and in the event of a breach of any agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Section 5.03 The Note. To evidence the Loan, the Issuer shall issue and deliver to the Bank the Note in the form attached to the Note Resolution. ARTICLE VI EVENTS OF DEFAULT Section 6.01 General. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Issuer shall default in any payment of the principal of, premium, if any, or the interest on the Loan when and as the same shall become due and payable, whether by maturity, by acceleration at the discretion of the Bank as provided for in Section 6.02, or otherwise; or (b) the Issuer shall default in the performance of or compliance with any term or covenant contained in the Loan Documents, other than a term or covenant a default in the performance of which or noncompliance with which is elsewhere specifically dealt with and for which a remedy is specifically provided herein, which default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof to the Issuer by the Bank; or (ii) the Bank is notified of such noncompliance or should have been so notified pursuant to the provisions of Section 3.01(c) of Article III of this Agreement, whichever is earlier; or (c) any representation or wan: anty made in writing by or on behalf of the Issuer or in any Loan Document shall prove to have been false or incorrect in any material respect on the date made or reaffirmed; or (d) The Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver or trustee for itself; or 6 (e) The Issuer is adjudged insolvent by a court of competent jurisdiction, or it is adjudged a bankrupt on a petition in bankruptcy filed by or against the Issuer, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Issuer, a receiver or trustee of the Issuer or of the whole or any part of its property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (f) The Issuer shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or the State of Florida; or ' (g) Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Issuer or the whole or any substantial part of its property, and such custody or control shall not be terminated within ninety (90) days from the date of assumption of such custody or control; or (h) The Issuer shall default in the due and punctual payment or performance of covenants under any obligation for the repayment of money. Section 6.02 Effect of Event of Default. (a) General. Upon the occurrence of any Event of Default, subj ect to the provisions of the Note Resolution, the Noteholder shall have and may exercise any or all of the rights set forth herein (which rights are in addition to and not in lieu of any other rights the Bank may have under applicable law) provided, however, the Noteholder shall be under no duty or obligation to do so. (b) Acceleration: Other Remedies. Immediately and without notice, upon the occurrence of any Event of Default, the Noteholder may declare all obligations of the Issuer under the Loan Documents to be immediately due and payable without further action of any kind and upon such declaration the Note and the interest accrued thereon shall become immediately due and payable and no further Advances shall be required to be made by the Noteholder. Upon such declaration, the Noteholder may also seek enforcement of and exercise all remedies available to it under the Note Resolution, the Act and any other applicable law. ARTICLE VII MISCELLANEOUS Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the part of the Bank in exercising any right, power, remedy hereunder, or under the Note or other Loan Documents shall operate as a waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided bylaw or in equity. Section 7.02 Amendments, Changes or Modifications to the Agreement. This Agreement shall not be amended, changed or modified without the prior written consent of (i) the Bank (provided the Bank is a holder of a portion of the principal of the Note) or the Noteholders of at least fifty-one percent (51 %) in aggregate principal amount of the Note and (ii) the Issuer. The Issuer agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in connection with modifying and/or amending this Agreement at the 7 Issuer's request or behest, including costs and reasonable attorneys fees incurred in connection with any proposed modification or amendment requested by the Issuer, even if the Bank does not agree to the same. Section 7.03 Costs and Expenses. The Issuer agrees to pay the Bank's counsel a fee of $2,500.00 in connection with the preparation, execution and delivery of this Agreement, the Note and the Loan. The Issuer shall pay all costs and expenses it incurs in connection with the preparation, execution and delivery of the Agreement, the Note and the Loan and any other documents that may be prepared or delivered in connection with this Agreement. Section 7.04 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 7.05 Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. Section 7.06 Term of Agreement. Except as otherwise specified in this Agreement, this Agreement and all representations, warranties, covenants and agreements contained herein or made in writing by the Issuer in connection herewith shall be in full force and effect from the date hereof and shall continue in effect as long as the Note is outstanding. Section 7.07 Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by telecopy, electronic telephone line facsimile transmission or other similar electronic or digital transmission method (provided customary evidence of receipt is obtained); the day after it is sent, if sent by overnight common carrier service; and five days after it is sent, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to: If to the Issuer: JoAnn Forsythe Finance Director Village of Tequesta PO Box 3273 250 Tequesta Drive Tequesta, Florida 33469-0273 If to the Bank: Vanessa Civalero Vice President Bank of America, N.A. 625 No. Flagler Drive, 10th fl. West Palm Beach, FL 33401 with a copy to: Michael Posner Ward, Damon & Posner 4420 Beacon Circle West Palm Beach, FL 33407 8 or to such other address as either party may have specified in writing to the other using the procedures specified above in this Article VII, Section 7.07. Section 7.08 Applicable Law. This Agreement, and each of the Loan Documents and transactions contemplated herein, shall be construed pursuant to and governed by the substantive laws of the State of Florida. Section 7.09 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of the parties. The Issuer shall have no rights to assign any of their rights or obligations hereunder without the prior written consent of the Bank. Section 7.10 Conflict. In the event any conflict arises between the terms of this Agreement and the terms of any other Loan Document, the Bank shall have the option of selecting which conditions shall govern the loan relationship evidenced by this Agreement and, if the Bank does not so indicate, the teens of this Agreement shall govern in all instances of such conflict. Section 7.11 No Third Party Beneficiaries. It is the intent and agreement of the parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party hereto shall have any rights or privileges hereunder. Section 7.12 Attorneys Fees. To the extent legally permissible, the Issuer and the Bank agree that in any suit, action or proceeding brought in connection with this Agreement, the Note, or the Note Resolution (including any trial(s), appeal(s)), or bankruptcy proceedings), the prevailing party shall be entitled to recover reasonable costs and attorneys' fees from the other party. Section 7.13 Entire Agreement. Except as otherwise expressly provided, this Agreement and the other Loan Documents embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof. Section 7.14 Further Assurances. The parties to this Agreement will execute and deliver, or cause to be executed and delivered, such additional or further documents, agreements or instruments and shall cooperate with one another in all respects, for the purpose of carrying out the transactions contemplated by this Agreement. Section 7.15 Incorporation by Reference. All of the terms and obligations ofthe Note Resolution are hereby incorporated herein by reference as if said Note Resolution was fully set forth in this Agreement. Section 7.16 Arbitration and Waiver of Jury Trial. This Section 7.16 concerns the resolution of any controversies or claims between the Issuer and the Bank, whether arising in contract, tort or by statute, that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any document related to this Agreement, including the Note and the Note Resolution (collectively a "Claim"). At the request of the Issuer or the Bank, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will apply even though this Agreement provides that it is governed by the law of a specified state. Arbitration proceedings will be determined in accordance with the Arbitration Act, the rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or any successor thereof 9 ("J.A.M.S."), and the terms of this Section 7.16. In the event of any inconsistency, the terms of this paragraph shall control. The arbitration shall be administered by J.A.M.S. and conducted in West Palm Beach, Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additiona160 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This Section 7.16 does not limit the right of the Issuer or the Bank to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This provision is a material inducement for the parties entering into this Agreement. No provision in this Agreement or in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions of this Agreement or in any Loan Document for arbitration of any controversy or claim. 10 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between them as of the Date of Execution set forth below. (SEAL) VILLAGE OF TEQUESTA, FLORIDA By: Title: Mayor By: Title: Clerk Date of Execution: September 13, 2002 BANK OF AMERICA, N.A. Bv: Title: Vice President Date of Execution: September 13, 2002 TIME OF CLOSING The closing was held September 13, 2002 (the "Closing Date"). LIST OF CLOSING DOCUMENTS 1. Certified copy of Resolution 79- 01/02 adopted by the Village Council on September 12, 2002 authorizing the issuance of the Note. 2. General Certificate of the Issuer. 3. Loan Agreement. 4. Notice of Sale sent to Division of Bond Finance. 5. Receipt for the Note. 6. State of Florida Division of Bond Finance Form BF-2003BF-2004-B and Letter of Transmittal. 7. Certificate as to Arbitrage and Other Tax Matters. 8. Form 8038-G and Transmittal Letter. 9. Disclosure Statement of Bank. 10. Opinion of Bank Counsel. 11. Opinion of Village Counsel. 12. Copy of Note. 13. Funding Instruction Letter. Transcripts. Six (6) complete transcripts are to be prepared for distribution as follows: 2 - Village of Tequesta 1 - Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 2 - Bank of America, N.A. 1 - John C. "Skip" Randolph 1 - Ward, Damon & Posner TRANSCRIPT OF PROCEEDINGS $5,000,000 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE DATED SEPTEMBER 13, 2002