Loading...
HomeMy WebLinkAboutDocumentation_Regular_Tab 06F_1/10/2002n MEMORANDUM January 4, 2002 To: Michael Couzzo, Village Manager r From: JoAnn Forsythe, Finance Director Re: Renewel of Line of Credit with Bank of America The existing line -of -credit with Bank of America comes due February 1, 2002. Bank of American needs authorization from the Village Council of the Village of Tequesta to renew the note. The line is being used as a bond anticipation note (BAN) until permanent financing is in place for the facilities being constructed by the Village. As such and as we discussed, we are requesting that the line be increased from $5,000,000 to $6,000,000. As this is a line of credit we will only be charged interest on what we draw down. The closing costs to renew the line are expected to be approximately $5,000. Please let me know how you would like me to proceed. -YL,F RESOLUTION NO. 18-01/02 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 NOT EXCEEDING $6,000,000 TO FINANCE THE COST OF A NEW PUBLIC SAFETY FACILITY OR NEW MUNICIPAL COMPLEX OF THE VILLAGE AND TO MODIFY AND EXTEND AN EXISTING NOTE OF THE VILLAGE; PROVIDING THAT SUCH NOTE SHALL NOT BE A GENERAL OBLIGATION OF THE VILLAGE BUT SHALL BE PAYABLE ONLY FROM APPROPRIATED FUNDS 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 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. "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 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. "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" 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. "Principal Office" means, with respect to the Original Purchaser, the office located at 625 North Flagler Drive, 10'h 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 or new municipal complex and includes renewal of the outstanding balance of the Issuer's $5,000,000 Promissory Note dated January 15, 1999. "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 not exceeding $6,000,000, for the purpose of financing the Cost of the Project. The Note shall also constitute a renewal and replacement of the Issuer's promissory note, dated January 15, 1999, issued in the principal amount of not exceeding $5,000,000.00. 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. Section 5. Description of Note. The Note shall be dated the date of its execution and delivery, which shall be January 11, 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 2 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. The Issuer promises that it will promptly pay the principal of, premium, if any, 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, premium, if any, and interest on the Note is payable from the Non Ad Valorem 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, premium, if any, and interest on the Note or for the performance of any pledge, obligation or agreement undertaken by Issuer from any property other than the Non Ad Valorem 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 Non Ad Valorem Revenues as hereinafter described. 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 lawfully available in each fiscal year, amounts sufficient to pay the principal of, premium, if any, and interest on the Note as the same shall become due. In the event that the amount previously budgeted for such purpose is at anytime insufficient to pay principal, premium, if any, 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, premium, if any, 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 other than such services and programs which are essential for public purposes affecting the health, welfare and safety of the inhabitants of the Issuer. Such covenant to budget and appropriate do 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, 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. 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 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; (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. Section 9. Loan Agreement: Draws. 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 C! 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. The Mayor, Village Manager and/or the Finance Director of the Issuer are authorized to request Advances (as defined in the Loan Agreement) in the amounts and at times sufficient to pay the Cost of the Project and/or to pay interest on the Note. 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. Budget and Financial Information. The Issuer shall provide the Owner of the Note with a copy of its annual budget and such other financial information regarding the Issuer as the Owner of the Note may reasonably request. The Issuer hereby covenants that it shall promptly give written notice to the Owner of the Note of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Note. Section 15. Remedies of Noteholder. Should the Issuer default in any obligation created by this Resolution or the Note, the Owner of the Note may, in addition to any other remedies set forth in this Resolution 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, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the Issuer or by any officer thereof. Section 16. 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 17. 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 may be 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, Section 18. Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 19. 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 20. 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 21. 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 21, however, shall relieve the Issuer from the observance and performance of the several covenants and agreements on its part herein contained. Section 22. Officers and Em llooyees 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 21, (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 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. on Section 23. 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 24. 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 Note is counted against the $10,000,000 limit). The Issuer hereby designates $4,400,535.17 principal amount of the Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3)(13)(i) of the Code (the other $1,599,464.83 principal amount being a renewal (but not a "reissuance") of an obligation previously designated under Section 265(b)(3)(c) 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 25. 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 26. ZeRgWer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 27. 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 The Mayor thereupon declared the Resolution duly passed and adopted this 1 Oth day of January, 2002. Mayor of Tequesta [SEAL] ATTEST: Village Clerk January 11, 2002 VILLAGE OF TEQUESTA, FLORIDA PROMISSORY NOTE $6,000,000.00 KNOW ALL MEN BY THESE PRESENTS that Village of Tequesta, Florida (the "Issuer"), a municipal corporation 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 of America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $6,000,000.00, or such lesser amount as may be advanced pursuant to the Loan Agreement (hereinafter defined) together with interest on the principal balance outstanding at the rate per annum of 60% of the rate announced from time to time by Bank of America, N.A. as its 'Prime Rate," based upon a year of 360 days for the actual number of days elapsed (the "Initial Rate"); such rate of interest being subject to further adjustment as described below. Principal of, premium, if any, and interest on this Note are payable in lawful money of the United States of America at such place as the Owner may designate to the Issuer in writing, in the following manner: Accrued interest shall be payable on the first day of each month, beginning February 1, 2002. The entire unpaid principal balance, together with all accrued and unpaid interest thereon, shall be due and payable in full on February 1, 2003. If any date for the payment of principal and interest hereon shall fall on a day which is not a Business Day (as defined in the Resolution (hereinafter defined)) the payment due on such date shall be due on the next succeeding day which is a Business Day, but the Issuer shall not receive credit for the payment until it is actually made. For purposes of this Note, "Prime Rate" shall mean the annual interest rate announced by Bank of America, N.A. from time to time as its 'Prime Rate" (which interest rate is only a benchmark, is purely discretionary and is not necessarily the best or lowest interest rate charged borrowing customers of Bank of America, N.A.). In the event Bank of America, N.A. or its successor ceases to announce its "Prime Rate," "Prime Rate" shall mean the prime rate reported in The Wall Street Journal. If for any reason the interest on this Note becomes includable in the gross income of the holder for Federal income tax purposes (an "Event of Taxability"), the interest rate otherwise borne by this Note shall he revised to a rate equal to 92.3% of the Prime Rate adjusted daily on the date changes in the Prime Rate are announced, effective from the earliest date as of which the interest on this Note was included in the gross income of the holder for Federal income tax purposes. In addition to the foregoing, the Issuer shall pay any additions to tax, penalties and interest, and any arrears in interest imposed upon the holder on account of an Event of Taxability. All such additional interest, additions to tax and penalties shall be paid on the next interest payment date hereon after the holder shall have notified the Issuer in writing of the existence of the liability and the amount thereof, and shall be in addition to all other interest payable on such date. 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, and from any funds lawfully available for such purpose. 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. There shall be no prepayment premium. In case of an Event of Default described in Section 6.01 of the Loan Agreement, the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such Event of Default and acceleration, the Issuer shall also be obligated to pay 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. In the event any payment due hereunder is not made by the Issuer within ten (10) days after the due date thereof, the Issuer shall also pay the Owner an amount equal to the greater of $100.00 or 5% of the amount that was not paid on the due date, such additional payment to be due and payable immediately upon the expiration of the aforementioned loth day. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. To the extent permitted by law, the Issuer, and by its acceptance of this Note, the holder hereof, waive trial by jury in any litigation commenced by either in respect of hereof or of the Resolution. 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 PROVIDED THEREFOR IN THE RESOLUTION (HEREINAFTER DEFINED). NEITHER THE FAITH AND CREDIT NOR THE 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, PREMIUM, IF ANY, OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO. This Note is issued pursuant to Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer and a Resolution duly adopted by the Issuer on January 10, 2002, as from time to time amended and supplemented (herein referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution and of the Loan Agreement (as defined in the Resolution). $1,599,464.83 principal amount of this Note constitutes a renewal, extension of the Issuer's Promissory Note dated January 19, 1999 in the principal amount of not exceeding $5,000,000, and the remaining up to $4,400,535.17 principal amount of this Note constitutes a new issuance. All terms, conditions and provisions of the Resolution and Loan Agreement, including without limitation remedies in the Event of Default, as defined in the Loan Agreement, are by this reference thereto incorporated herein as a part of this Note. This Note represents the entire authorized issue of obligations of the Issuer pursuant to the Resolution. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution and the Loan Agreement. This Note is payable from certain Non Ad Valorem Revenues budgeted and appropriated therefor, as described in the Resolution. Notwithstanding any other provision of this Note, the Issuer is not and shall not be liable for the payment of the principal of, premium, 2 if any, and interest on this Note or otherwise monetarily liable in connection herewith from any property other than the Non Ad Valorem Revenues budgeted and appropriated therefor. 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, the Village of Tequesta, Florida has caused this Note to be executed in its name by the manual signature of its Mayor and attested by the manual signature of its Village Clerk, and its seal to be impressed hereon, all this 11th day of January, 2002. VILLAGE OF TEQUESTA, FLORIDA [SEAL] Un Attest: Village Clerk Mayor AMENDED AND RESTATED LOAN AGREEMENT This AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") is made and entered into as of January 11, 2002, by and between the Village of Tequesta, Florida, a municipal corporation of the State of Florida, and its successors and assigns (the "Issuer"), and Bank of America, N.A., a national banking association, and its successors and assigns (the "Bank"), and amends and restates in its entirety that certain Loan Agreement made and entered into as of January 15, 1999 by and between the Issuer and the Bank; WHEREAS, the Village Council of the Issuer did, on January 14, 1999, adopt a Resolution (the "Original Resolution") authorizing the issuance of a promissory note of the Issuer in the aggregate principal amount of not exceeding $5,000,000 (herein the "Original Note') of which $1,599,464.83 is outstanding on the date hereof and which matures on February 1, 2002; and WHEREAS, the Village Council of the Issuer did on January 10, 2002, adopt a Resolution (the "Note Resolution") authorizing the extension of the maturity date of the Original Note from February 1, 2002 to February 1, 2003 and authorizing the borrowing of additional amounts, which together with the outstanding principal of the Original Note shall not exceed $6,000,000, and authorizing the execution and delivery by the Issuer of a promissory note (herein, the "Note") to renew, modify and replace the Original Note and to evidence such additional borrowing; 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 TERIVLS 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: "Advances" shall mean a borrowing of money under the Note and pursuant to the terms of Section 5.04 hereof. "Agreement" shall mean this Amended and Restated Loan Agreement, dated as of January 11, 2002 by and between the Issuer and the Bank 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 Resolution" means Resolution No. 18-01/02 of the Issuer. "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 H 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 perfonned and observed. The Issuer may lawfully issue the Note. Section 2.02 Authorization of Loan. The Issuer has and had, as the case may be, 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. Section 2.05 Financial Information. The financial information regarding the Issuer furnished to the Bank by the Issuer in connection with obtaining the Loan is complete and accurate. 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: 3 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 180 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 M 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 may be 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 hen 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. 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 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 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. ARTICLE V THE LOAN; ISSUER'S OBLIGATION; DESCRIPTION AND PAYMENT TERMS; OPTIONAL PREPAYMENT; ADVANCES Section 5.01 The Loan. The Bank hereby agrees to loan to the Issuer the amount of up to $6,000,000.00 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 up to $6,000,000.00 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. Section 5.04. Requisitions for Advances: and Other Conditions. (a) The Issuer may borrow from time to time up to the $6,000,000 represented by the Note by requesting Advances thereunder, provided that amounts borrowed under the Note may be repaid but may not be reborrowed. (b) Each request for an Advance under the Note must be made by the Issuer to the Bank by delivery to the Bank of the items described in subsection (c) of this Section 5.04. (c) In connection with an Advance, the Bank shall not be obligated to advance any funds pursuant to the Note and this Agreement unless at the date specified for the making thereof, the Issuer delivers to the Bank: (i) A written request for an Advance, executed by the Mayor, Village Manager or Finance Director of the Issuer, indicating the amount of the Advance requested and the date on which such Advance is to be made, stating that the representations and warranties of the Issuer contained in Article II of this Agreement are true and correct as of such date, and setting forth the aggregate amount that will be outstanding under the Note immediately after the Advance so requested and stating that no Event of Default has occurred; such written request must be delivered to the Bank at least five (5) business days prior to the date specified in the request for such Advance to be made. 7 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 (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, subject to the provisions of the Note Resolution, the Bank 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 Bank 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 Bank 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 Bank. Upon such declaration, the Bank 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 modifying and/or amending this Agreement at the Issuer's request or behest. Section 7.03 Costs and Expenses. The Issuer agrees to pay the Bank a fee of $2,500.00 and to pay the Bank's counsel a fee of $5,000.00 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 L, 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 Pahn Beach, FL 33401 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 Aonlicable 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 terms of this Agreement shall govern in all instances of such conflict. 10 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 appeal(s)), the prevailing party shall be entitled to recover 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 temis 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 ("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 11 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. 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: January 11, 2002 BANK OF AMERICA, N.A. By: — — — — — — — — — — — — — — — — — — Title: Vice President Date of Execution: January 11, 2002 G:`. 14184. 1 80'Rew(q with exhibits. pd 12