HomeMy WebLinkAboutAgreement_General_4/14/2022_FL Dept of Environmental ProtectionSTATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE REVOLVING LOAN PROGRAM
FOR
DRINKING WATER FACILITIES
LOAN APPLICATION
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Florida Department of Environmental Protection
State Revolving Fund Program
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Form Application DW-I
Incorporated in 62-552.430(l)(a), F.A.C. Effective Date July 2017
TABLE OF CONTENTS
Page
Number
LOAN APPLICATION
(1) SUBMITTAL.......................................................................................................................................... 1
(2) COMPLETING THE APPLICATION................................................................................................... 1
(3) ASSISTANCE........................................................................................................................................ 1
PART I - ADMINISTRATIVE INFORMATION
(1) PROJECT SPONSOR.............................................................................................................................
(2) AUTHORIZED REPRESENTATIVE...................................................................................................
(3) PRIMARY CONTACT..........................................................................................................................
(4) ADDITIONAL CONTACTS..................................................................................................................
(5) PROJECT NUMBER.............................................................................................................................
(6) INTERIM FINANCING.........................................................................................................................
PART II - PROJECT INFORMATION
A. PRECONSTRUCTION PROJECT
(1) ACTIVITIES.......................................................................................................................................... 2
(2) SCHEDULE............................................................................................................................................ 2
(3) COST...................................................................................................................................................... 2
B. CONSTRUCTION PROJECT
(1) ACTIVITIES.......................................................................................................................................... 2
(2) SCHEDULE............................................................................................................................................ 3
(3) COST...................................................................................................................................................... 3
PART III - FINANCIAL INFORMATION
(1)
PRINCIPAL........................................................................................................................................... 3
(2)
TERMS AND REPAYMENT................................................................................................................ 3
(3)
ANNUAL FUNDING LMT................................................................................................................. 3
(4)
INFORMATION ON LIENS................................................................................................................. 3
(5)
ACTUAL AND PROJECTED REVENUES.......................................................................................... 4
(6)
AVAILABILITY OF PLEDGED REVENUES..................................................................................... 4
(7)
LOAN SERVICE FEE............................................................................................................................ 4
PART IV - AUTHORIZATION AND ASSURANCES
(1) AUTHORIZATION................................................................................................................................ 4
(2) ASSURANCES...................................................................................................................................... 4
PART V - SUPPLEMENTARY INFORMATION
SCHEDULE OF PRIOR AND PARITY LIENS............................................................................................ 7
SCHEDULE OF ACTUAL REVENUES AND DEBT COVERAGE............................................................ 8
SCHEDULE OF PROJECTED REVENUES AND DEBT COVERAGE...................................................... 9
LIST OF ATTACHMENTS............................................................................................................................ 10
Form Application DW-I
Incorporated in 62-552.430(l)(a), F.A.C. Effective Date July 2017
LOAN APPLICATION
(1) SUBMITTAL. Submit the application and attachments to the Department of Environmental Protection, MS 3505, State
Revolving Fund Program, Marjorie Stoneman Douglas Building, 3900 Commonwealth Boulevard, Tallahassee, Florida
32399-3000. The application (and supporting documentation) may be submitted electronically to the Department's
Project Manager.
(2) COMPLETING THE APPLICATION.
(a) This application consists of five parts: (I) ADMINISTRATIVE INFORMATION; (II) PROJECT INFORMATION; (III)
FINANCIAL INFORMATION; (IV) AUTHORIZATION AND ASSURANCES; and (V) SUPPLEMENTARY
INFORMATION.
(b) All information provided on this application must be printed. Monetary amounts may be rounded.
(c) Forms and attachments to be submitted are denoted with italic print.
(3) ASSISTANCE. Completing this application may require information that can be obtained from the Drinking Water
State Revolving Fund Program staff. Please email SRF_Reporting@dep.state.fl.us for assistance in completing this
application.
PART I - ADMINISTRATIVE INFORMATION
(1) PROJECT SPONSOR Village of Tequesta
Federal Employer Identification Number 59-6044081
DUNS Number 063840904
(2) AUTHORIZED REPRESENTATIVE (person authorized to sign or attest loan documents).
Name Jeremy Allen Title Village Manager
Telephone (561) 768-0465 Email jallen@tequesta.org
Mailing Address 345 Tequesta Drive, Tequesta, Florida 33469
(3) PRIMARY CONTACT (person to answer questions regarding this application).
Name Matthew Hammond, PE Title Utilities Director
Telephone (561) 768-0700 Email mhammond@tequesta.org
Employer Village of Tequesta
Mailing Address 345 Tequesta Drive, Tequesta, Florida 33469
(4) ADDITIONAL CONTACTS. If more than one additional person is to receive copies of Department correspondence, attach
the information (Attachment # ).
Name Jeffery Snyder Title Finance Director
Telephone (561) 768-424 Email jsnyder@tequesta.org
Employer Village of Tequesta
Mailing Address 345 Tequesta Drive, Tequesta, Florida 33469
(5) PROJECT NUMBER (listed on the Department's priority list). DW50270
(6) INTERIM FINANCING. A local government project sponsor that has interim financing may be subject to certain
conditions regarding such financing.
Is the project currently being funded with interim financing? ❑ Yes ® No
Form Application DW-I
Incorporated in 62-552.430(l)(a), F.A.C. Page I of 9 Effective Date July 2017
PART II — PROJECT INFORMATION
If you are applying for a planning or design loan for a project that will involve construction, complete only Subpart A below.
If you are applying for a loan to construct a project that is already planned and designed, complete only Subpart B below.
A. PLANNING OR DESIGN PROJECT
Information should be provided for each separate facility to be planned and designed as appropriate. For design/build projects
(not eligible for design loans) or those where multiple facilities, segments, or phases are involved, please attach information
for activities, schedule, and cost for each. (Attachment # )
(1) ACTIVITIES. Attach a brief description of the scope of planning and design activities to be financed by this loan.
Include a list of any engineering services to be performed. (Attachment # ) Are these activities the same as those
scheduled on the Request for Inclusion Form? ❑ Yes ❑ No. If "No", please explain. (Attachment # )
(2) SCHEDULE.
(a) Provide proposed completion dates for the items. (Please call Department staff to discuss time frames needed to complete
required tasks.)
Planning documentation
Engineering design
Certification of site availability
Permitting
(b) Do you anticipate that an interlocal agreement with another party will be necessary to implement ❑ Yes ❑ No
the project? If "Yes", please explain. (Attachment # )
(c) Is this a design/build project? ❑ Yes ❑ No
(3) COST. Is the cost information submitted for the planning or design loan priority list current? If ❑ Yes ❑ No
"No", please explain and submit revised cost information using the appropriate page of the Request
for Inclusion Form. (Attachment #) Note that the disbursable amount will be limited to the
priority list amount.
PLANNING OR DESIGN APPLICANTS PROCEED TO PART III.
B. CONSTRUCTION PROJECT
(1) ACTIVITIES.
(a) Attach a brief description of construction activities to be financed by this loan. Include a list of the contracts (by title)
corresponding to the plans and specifications accepted by the Department (Attachment #1).
Are these contracts the same as those scheduled on the Request for Inclusion Form? ® Yes ❑ No
If "No", please explain. (Attachment # )
(b) Have any of the contracts been bid? ❑ Yes ® No
If "Yes", indicate which contracts have been bid. (Attachment # )
(c) Was planning or design for this project financed in another SRF loan? ❑ Yes ® No
If "Yes", give the SRF loan number.
(d) Does this project involve an interlocal agreement with other local governments or other entities? ❑ Yes ® No
If "Yes", attach a copy of the Department letter accepting the interlocal agreement. (Attachment # )
Is the interlocal agreement, as accepted by the Department, fully executed and enforceable? ❑ Yes ❑ No
Form Application DW-1
Incorporated in 62-552.430(l)(a), F.A.C. Page 2 of 9 Effective Date July 2017
If "No", please explain (Attachment # ).
(2) SCHEDULE.
(a) Anticipated notice to proceed for first construction contract.
(month and year)
5/ 1 /2022
(b) Anticipated completion of all construction contracts. 12/31/2023
(3) COST. Is the cost information submitted for the priority list current? ® Yes ❑ No
If "No", please explain and submit revised cost information using the appropriate page of the Request for Inclusion Form.
(Attachment # ) Note that the disbursable amount will be limited to the priority list amount.
PART III - FINANCIAL INFORMATION
Estimates of the capitalized interest, interest rate, pledged revenue coverage, limitations on annual loan amounts for large
projects, applicability and amount of repayment reserves, amount of the loan service fee and any other information may be
obtained by contacting staff in the State Revolving Fund Management Section.
(1) PRINCIPAL. The requested amount of the loan which does not include capitalized interest is $2,631,931
Note that the disbursable amount will be limited to the priority list amount and must be consistent with the project
information provided under PART II of this application. Also note that the capitalized interest is an inexact estimate, and
it is subject to adjustment by the Department to reflect actual disbursement timing. The principal amount of the loan does
not include the loan service fee.
(2) TERMS AND REPAYMENT.
(a) Loans for planning and design shall be amortized over 10 years. Construction loans to local government project sponsors
are amortized over the lesser of useful life of the project or 20 years unless the project is to serve a small community
qualifying as financially disadvantaged. Construction loans to financially disadvantaged small communities may be
amortized over the lesser of useful life of the project or 30 years. Construction loans to non -governmental project sponsors
are amortized over the lesser of the useful life of the project or 20 years. Interest charges and principal are paid
semiannually.
What is the useful life of the project? 50 (years)
Over how many years would you like to amortize the loan? 20 (years)
(b) List all revenues that are to be pledged for repayment of this loan. Water Enterprise Fund,
(c) Pledged revenue receipts or collections by the project sponsor must exceed the amount of the repayments due to the
Department unless there are other collateral provisions. The excess revenue, or coverage, generally is 15% of each
repayment.
What coverage is proposed for the loan? 15% (coverage percentage)
(d) Is any other financial assistance being applied to this project? ❑ Yes ® No
If "Yes", please list. (Attachment # )
(3) ANNUAL FUNDING LIMIT. Large project funding (generally, loans in excess of $10 million) may be provided in
increments pursuant to the initial loan agreement and subsequent amendments.
(4) INFORMATION ON LIENS.
(a) Describe, if applicable, all debt obligations having a prior or parity lien on the revenues pledged to repay this loan.
(Attachment #2) For example: City Name, Florida, Water and Sewer System Revenue Bonds, Series 1996, issued in
the amount of $10,000,000, pursuant to Ordinance No. 93-104, as amended and supplemented by Ordinance No. 96-
156.
(b) Using the Part V, Schedule of Prior and Parity Liens, provide debt service information, if applicable, on each prior and
parity obligation.
Form Application DW-1
Incorporated in 62-552.430(lxa), F.A.C. Page 3 of 9 Effective Date July 2017
(c) For the listed obligations, provide a copy of the ordinance(s), resolution(s), official statement(s), or pages thereof, setting
forth the definitions, use of proceeds, debt service schedule, pledged revenues, rate covenants, provisions for issuing
additional debt, provisions for bond insurance, and debt rating. (Attachment 43).
(d) Describe any other notes and loans payable from the revenues pledged to repay this loan. (Attachment # ).
(5) ACTUAL AND PROJECTED REVENUES.
(a) Complete the Part V, Schedule of Actual Revenues and Debt Coverage for the past two fiscal years.
(b) Complete the Part V, Schedule of Projected Revenues and Debt Coverage, demonstrating the availability of pledged
revenues for loan repayment.
(6) AVAILABILITY OF PLEDGED REVENUES. All sources must be supported by a written legal opinion. (Attachment
41) The opinion must address the following:
(a) Availability of the revenues to repay the loan.
(b) Right to increase rates at which revenues shall be collected to repay the loan.
(c) Subordination of the pledge if pledged revenues are subject to a prior or parity lien.
(7) LOAN SERVICE FEE. A loan service fee is assessed on each loan. The fee is not part of the loan. The fee along with
interest thereon will be deducted from the first available repayments after the final amendment to the loan agreement.
PART IV — AUTHORIZATION AND ASSURANCES
(1) AUTHORIZATION. Provide an authorizing resolution of the Applicant's governing body or other evidence of
authorization (Attachment #5) for the following:
(a) Pledging revenues to repay the loan.
(b) Designation of the Authorized Representative(s) to file this application, provide assurances, execute the loan agreement,
and represent the Applicant in carrying out responsibilities (including that of requesting loan disbursements) under the
loan agreement.
(2) ASSURANCES. The Applicant agrees to comply with the laws, rules, regulations, policies and conditions relating to
the loan for this project. Applicants should seek further information from the Drinking Water State Revolving Fund
Program staff as to the applicability of the requirements if the necessity for the assurances is of concern. Specifically,
the Applicant certifies that it has complied, as appropriate, and will comply with the following requirements, as
appropriate, in undertaking the Project:
(a) Assurances for capitalization grant projects.
Complete all facilities for which funding has been provided.
2. The Applicant is advised, pursuant to 40 CFR 35 Section 35.3575, that a number of Federal law, executive orders, and
government -wide policies can apply to your project or activity that is receiving Federal financial assistance. The
Applicant agrees to,read those provisions regarding the application of Federal cross -cutting authorities (cross -cutters)
to determine their applicability to your specific project or activity.
(b) Assurances for other projects. Please note that Florida Statutes are available at http://www.leg.state.fl.us. They are also
available at the following physical address: Florida Department of State Division of Library and Information Services
R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250.
1. Chapter 161, Part I, F.S., "Beach and Shore Preservation Act" and Part III, "Coastal Zone Protection Act of 1985"
which regulate coastal zone construction and all activities likely to affect the condition of the beaches or shore.
2. Chapter 163, Part II, F.S., the "Local Government Comprehensive Planning and Land Development Regulation Act"
which requires units of local government to establish and implement comprehensive planning programs to control
future development.
3. Chapter 186, F.S., State and Regional Planning, which requires conformance of projects with Regional Plans and the
State Comprehensive Plan.
4. Chapter 253, F.S., "Emergency Archaeological Property Acquisition Act of 1988" which requires protection of
archaeological properties of major statewide significance discovered during construction activities.
Form Application DW-1
Incorporated in 62-552.430(1)(a), F.A.C. Page 4 of 9 Effective Date July 2017
5. Chapter 258, Part III, F.S., which requires protection of components or potential components of the national wild and
scenic rivers system.
6. Chapter 267, F.S., the "Florida Historical Resources Act" which requires identification, protection, and preservation of
historic properties, archaeological and anthropological sites.
7. Chapter 287, Part I, F.S., which prohibits parties convicted of public entity crimes or discrimination from participating
in State -assisted projects and which requires consideration of the utilization of Minority Business Enterprises in State -
assisted projects.
8. Chapter 372, F.S., the Florida Endangered and Threatened Species Act which prohibits the killing or wounding of an
endangered, threatened, or special concern species or intentionally destroying their eggs or nest.
9. Chapter 373, Part IV, F.S., Florida Water Resources Act of 1972, which requires that activities on surface waters or
wetlands avoid adversely affecting: public health, safety, welfare, or property; conservation of fish and wildlife,
including endangered or threatened species or their habitats; navigation or the flow of water; the fishing or recreational
values or marine productivity; and significant historical and archaeological resources.
10. Chapter 380, Part I, F.S., Florida Environmental Land and Water Management Act of 1972 as it pertains to regulation
of developments and implementation of land and water management policies.
11. Chapter 381, F.S., Public Health, as it pertains to regulation of onsite wastewater systems.
12. Chapter 403, Part I, F.S., Florida Air and Water Pollution Control which requires protection of all waters of the state.
13. Chapter 582, F.S., Soil and Water Conservation Act which requires conformance with Water Management District's
regulations governing the use of land and water resources.
14. Governor's Executive Order 95-359, which requires State Clearinghouse review of project planning documentation
and intergovernmental coordination.
I, the undersigned Authorized Representative of the Applicant, hereby certify that all information contained herein and in the
attached is true, correct, and complete to the best of my knowledge and belief. I further certify that I have been duly authorized
to file the application and to provide these assurances.
Signed this iq Day of Aril 20 22
Authorized Representative Molly Young — Mayor
(sig atur (name typed or printed)
Attachments
Form Application DW-I
Incorporated in 62-552.430(l)(a), F.A.C. Page 5 of 9 Effective Date July 2017
PART V — SUPPLEMENTARY INFORMATION
SCHEDULE OF PRIOR AND PARITY LIENS
(EXCLUDING SRF LOANS)
List annual debt service beginning two years before the anticipated loan agreement date and continue at least three
additional fiscal years. Use additional pages as necessary.
#1 #2 #3
Identify Each Obligation
Series2008
Promissory Note
Coverage 20 % % %
Insured? Yes X No Yes No Yes No
Total Debt
Fiscal
Annual Debt Service (Princiaal
Plus Interest)
Total
Service Incl.
Year
#1
#2
#3
Debt Service
Coverage
2020
$468,968
$
$
$468,968
$562,762
2021
$469,031
$
$
$469,031
$562,837
2022
$470,845
$
$
$470,845
$565,014
2023
$471,555
$
$
$471,555
$565,866
2024
$471,533
$
$
$471,533
$565,840
2025
$470,224
$
$
$470,224
$564,269
2026
$470,511
$
$
$470,511
$564,613
2027
$472,127
$
$
$472,127
$566,552
2028
$234,110
$
$
$234,110,
$280,932
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$
$
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Form Application DW-1
Incorporated in 62-552.430(lxa), F.A.C. Page 6 of 9 Effective Date July 2017
PART V — SUPPLEMENTARY INFORMATION
SCHEDULE OF ACTUAL REVENUES AND DEBT COVERAGE
(Provide information for the two fiscal years preceding the anticipated date of the SRF loan agreement.)
Year 2020 Year 2021
(a) Operating Revenues (Source)
Water Sales 6,288,962 6,058,053
(b) Interest Income 50,469 6,671
(c) Other Income or Revenue (Identify)
Miscellaneous Revenues 46.473 64,074
(d) Total Revenues 6,385,904 6,128,798
(e) Operating Expenses (excluding
interest on debt, depreciation,
and other non -cash items) 4,970,957 4,804,501
(f) Net Revenues [(f) = (d) — (e)] 1,414,947 1,324,297
(g) Debt Service (including any
required coverage) 562,762 562,837
(h) Attach audited annual financial report(s), or pages thereof, or other documentation necessary to
support the above information. Include any notes or comments from the audit reports regarding
compliance with covenants of debt obligations having a prior or parity lien on the revenues pledged for
repayment of the SRF Loan. (Attachment #6)
(i) Attach worksheets reconciling this page with the appropriate financial statements (for example,
backing out depreciation and interest payments from operating expenses). (Attachment #7)
(j) If the net revenues were not sufficient to satisfy the debt service and coverage requirement, please
explain what corrective action was taken. (Attachment # )
Form Application DW-1
Incorporated in 62-552.430(lxa), F.A.C. Page 7 of 9 Effective Date July 2017
PART V — SUPPLEMENTARY INFORMATION
SCHEDULE OF PROJECTED REVENUES AND DEBT COVERAGE
Begin with the fiscal year preceding first anticipated semiannual loan payment and continue for at least three
additional years. Attach a separate page for previous State Revolving Fund loans.
(a) Operating Revenue
(b) Interest Income
(c) Other Income or Revenue
(identify)
Miscellaneous Revenue
Year 2022 Year 2023 Year 2024 Year 2025 Year 2026
6,504,172 6,744,955 6,985,737 7,226,520 7,467,303
59,235 23,290 25,290 25,037 46,281
37,944 37,732 37,520 37.308 37,096
(d) Total Revenues 6,601,351 6,805,977 7.0.38,295 7,295,030 7,550,680
(e) Operating Expenses (excluding
interest on debt, depreciation, and
other non -cash items) 5,005,541 5,248,327 5,491,112 5,733,898 5,976,684
(f) Net Revenues (f = d - e) 1,595,810 1,557,650 1,557,182 1,561,132 1,573,996
(g) Revenue (including coverage)
pledged to debt service, excluding
SRF loans 565,014 565,866 565,840 564,269 564,613
(h) Revenue (including coverage)
pledged to outstanding SRF loans
(i) Revenue Available for this SRF
Loan [(i) _ (f) — (g) — (h)] 1,030,796 991,784 991,343 996,863 1,009,383
(j) Identify the source of the above information and explain methods used to develop the projections (Attachment 98).
Include an explanation of any revenue and expense growth or other adjustments; for example, any rate increases,
service growth, inflation adjustments, expense adjustments reflecting the cost of operating additional facilities, or other
considerations.
(k) For construction loans, are the above projections consistent with the accepted financial ® Yes ❑ No
feasibility information in the planning documents?
If "No", please explain. (Attachment # )
Form Application DW-I
Incorporated in 62-552.430(lxa), F.A.C. Page 8 of 9 Effective Date July 2017
PART V — SUPPLEMENTARY INFORMATION
LIST OF ATTACHMENTS
LIST OF ATTACHMENTS. This application requires the submittal of Attachments to provide supplemental
information. The application is not complete without the completed List of Attachments. Please list all
attachments that you are including with this application form.
Attachment
Brief Project Description
Information on Liens
Details on Obligations
Legal Opinion
Authorizing Resolution
Statement of Revenues, Expenses and Changes in Net Position (FY20 & 21)
Financial Statement Reconciliation
Explanation of Projected Revenues & Debt Coverage
#1
#2
#3
#4
#5
#6
#7
#8
Number
Form Application DW-I
Incorporated in 62-552.430(lxa), F.A.C. Page 9 of 9 Effective Date July 2017
Attachment #1
Project Description
ATTACHMENT #1
PROJECT DESCRIPTION
Project Description and Need
The Village of Tequesta's water distribution system consists of approximately 380,000 LF of pipe
sized from 4 to 16 inches. The system is comprised of asbestos cement (AC), ductile iron, PVC
and HPDE pipe. The oldest sections of the distribution system are primarily comprised of AC
water mains and were installed in the 1950s. Over the past several years, there have been a number
of AC water main breaks within the service area. As the pipe in this area are between the ages of
40 to 60 years and have exceeded their anticipated service life expectancy the Village is taking
proactive measures and implementing asbestos cement water main replacement projects to ensure
the safe and reliable means of providing potable water to their customers. The first project they
will be seeking for is for the replacement of approximately 11,200 linear feet of 4-inch through
10-inch water mains. The title of this contract that corresponds with the plans and specifications
is "Water Main Replacement Program Project No. 1 & No. 4".
PWS ID: 4501438
Project Location (Lat/Lon2 Degrees): 26.958033,-80.106549
Attachment #2
Information on liens
Attachment # 2
(4) Information on liens.
(a) Village of Tequesta, Florida Water Revenue Bonds, Series 2008 were advance refunded
pursuant to Resolution No. 30-08 in an amount of $6,554,935 from a bank loan. Pledging the
revenue of the Water System. This loan required us to have an excess revenue coverage of 120%
with Bank of America.
Attachment #3
Details on Obligations
RESOLUTION NO. 30-08
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, FLORIDA AUTHORIZING THE
REFUNDING OF THE VILLAGE'S WATER REVENUE
BONDS, SERIES 1998 AND AUTHORIZING A LOAN IN
THE PRINCIPAL AMOUNT OF NOT EXCEEDING
$6,800,000 TO REFINANCE THE VILLAGE'S WATER
REVENUE BONDS, SERIES 1998; APPROVING THE
FORM OF AND AUTHORIZING THE EXECUTION OF A
PROMISSORY NOTE AND A LOAN AGREEMENT WITH
BANK OF AMERICA, N.A.; AUTHORIZING AN ESCROW
DEPOSIT AGREEMENT WITH U.S. BANK NATIONAL
ASSOCIATION; PROVIDING AN EFFECTIVE DATE; AND
FOR OTHER PURPOSES.
BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF
TEQUESTA, FLORIDA (the "Village") that. -
Section 1. Authority for this Resolution. This Resolution is adopted pursuant to
the Constitution and laws of the State of Florida.
Section 2. Definitions. Words and phrases used herein capitalized form and not
otherwise defined herein shall have the meanings ascribed hereto in the Loan
Agreement (hereinafter defined) and, in addition, the following words and phrases shall
have the following meanings when used herein:
"Authorized Signatory" means the Mayor or Vice -Mayor of the Village, or in their
absence or inability to act, any other member of the Village Council of the Village.
"Loan Amount" means not to exceed $6,800,000.00.
Section 3. Authorization of Transaction. In order to obtain funds to refund the
Village's Water Revenue Bonds, Series 1998 (the "Series 1998 Bonds"), the Village is
authorized to obtain a loan (the "Loan") from and to borrow from Bank of America, N.A.
(the "Bank") the amount of not to exceed the Loan Amount and to refund the Series
1998 Bonds, provided that the Village realizes present value debt service savings of
approximately $880,000.
The Series 1998 Bonds to be refinanced (the "Refunded Bonds") shall be
identified as provided in the Loan Documents hereinafter authorized and defined.
Because of the characteristics of the transaction and the need to secure a source of
immediate funding, it is in the best interest of the Village to obtain the loan through
negotiation with the Bank. The Authorized Signatory is authorized to call the Refunded
Bonds for redemption.
Section 4. Loan Agreement Escrow Deposit Agreement and Promissory Note.
The Village is authorized to execute (i) a Loan Agreement with the Bank in substantially
the form attached hereto as Exhibit A (the "Loan Agreement") and to make the
Promissory Note in the form attached to the Loan Agreement, and (ii) an Escrow
Deposit Agreement (the "Escrow Deposit Agreement") with U.S. Bank National
Association in the form attached hereto as Exhibit B. The forms and terms of the Loan
Agreement, Promissory Note and Escrow Deposit Agreement (collectively, the "Loan
Documents") attached hereto are hereby approved by the Village and the Authorized
Signatory is authorized to execute the same, with such changes as may be approved by
the Authorized Signatory, such approval to be conclusively evidenced by the execution
thereof by the Authorized Signatory.
Section 5. 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 6. Applicable Provisions of Law. This Resolution shall be governed by
and construed in accordance with the laws of the State of Florida.
Section 7. Authorizations. All officials and employees of the Village 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 Village that are
necessary or desirable in connection with the completion of the Loan. The Authorized
Signatory is authorized to make on behalf of the Village any elections or designations
necessary or desirable in connection with the arbitrage provisions of Section 148 of the
Internal Revenue Code of 1986 (the "Code") and/or the provisions of Section 265 of the
Code regarding qualified tax-exempt obligations, to subscribe for or to authorize the
Escrow Agent to subscribe for United States Treasury Obligations, State and Local
Government Series, and to call the Refunded Bonds for redemption.
Section 8. Repealer. All resolutions or parts thereof in conflict herewith are
hereby repealed.
Section 9. Effective Date. This Resolution shall take effect immediately upon
its adoption.
The foregoing Resolution was offered by Council Member Humpage who moved its
adoption. The motion was seconded by Vice -Mayor Turnquest and upon being put to a
vote, the vote was as follows:
Mayor Pat Watkins
For Adoption Against Adoption
X
Vice -Mayor Calvin Turnquest X
Council Member Vince Arena X
Council Member Tom Paterno X
Council Member Jim Humpage X
The Mayor thereupon declared the Resolution duly passed and adopted this 12th day of
June, 2008.
MAYOR OF TEQUESTA
1
Pat Watkins
ATTEST
..0F
F
INCORPORATED ' D=
Lori McWilliams, CMC :N:;•. :'
Village Clerk '
01
IFsitoe'
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of June
2008, and is by and between the Village of Tequesta, Florida, a political subdivision
and municipality of the State of Florida, and its successors and assigns (the "Village"), and
Bank of America, N.A., a national banking association, and its successors and assigns, as
holder(s) of the hereinafter defined Note (the "Bank").
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. Terms used in this Agreement that are defined in the
Water Revenue Bond Resolution (hereinafter defined) and that are not otherwise defined
herein shall have the same meanings when used herein. The words and terms used in this
Agreement shall have the meanings as set forth in the recitals above and 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.
'Bond Counsel' means an attorney -at -law or firm of such attorneys having expertise
in the legal aspects of the issuance of indebtedness by states and political subdivisions
thereof.
"Budgeted Revenues" means, to the extent provided in Section 3.07 hereof, the
Non -Ad Valorem Revenues.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Closing Date" means the date so indicated in the Note.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable
thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Village
which meets the further requirements of this Agreement.
"Event of Default" shall mean an event of default specified in Article VI of this
Agreement.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law as the fiscal year of the Village.
"Gross Revenues" shall mean all income and moneys received by the Village from
the Rates or otherwise received by the Village or accruing to the Village in the
management and operation of the System, but excluding Impact Fees.
"Impact Fees" shall mean all charges separately imposed by the Village upon new
customers of the System as a non -user capacity charge for a proportionate share of the
cost of the acquisition or construction of facilities, which are imposed by the Village for the
purpose of allocating to each such customer a proportionate share of the cost of the
additional System capacity made necessary by the inclusion or expected inclusion of such
new customers of the System, excluding those charges imposed by the Village on persons
connecting to the System for the cost of physically connecting thereto.
"Loan" shall mean the loan by the Bank to the Village contemplated hereby.
"Loan Amount" means $ .00.
"Loan Documents" means this Agreement and the Note.
"Non -Ad Valorem Revenues" means all revenues of the Village not derived from ad
valorem taxation and which are lawfully available to be used to pay debt service on the
Note.
"Note" means the Village's Promissory Note (2008) in the form attached hereto as
Attachment "A."
"Notice Address" means,
As to the Village: Village Manager
Village of Tequesta, Florida
345 Tequesta Drive
Tequesta, FL 33469-3062
As to the Bank: Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, Florida 32256
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Operating Expenses" shall mean the Village's expenses for operation of the
System, all to the extent properly attributable to the System in accordance with generally
accepted accounting principles employed in respect of activities such as those involved in
the operation of municipal water systems similar to the System, but not including any
provision for interest, depreciation, amortization or similar charges, provided, however, that
for purposes of Sections 5.02 and 5.07 hereof, Operating Expenses shall not include
administrative expenses allocable to the System or extraordinary non -recurring expenses
of the System.
"Pledged Revenues" means the Gross Revenues minus the Operating Expenses.
"Principal Office" means, with respect to the Bank, the office located at 9000
Southside Boulevard, Building 100, Jacksonville, Florida, 32256, or such other office as the
Bank may designate to the Village in writing.
"Rates" shall mean the charges imposed by the Village for the use of the services of
the System, other than any Impact Fees.
"Refunded Bonds" means the Village's Utility System Revenue Bonds, Series 1998.
"State" means the State of Florida.
"System" shall mean the water supply, treatment and distribution system owned and
operated by the Village.
"Water Revenue Bond Resolution" means Resolution No. 30-08 of the Village.
Section 1.02 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 VILLAGE
The Village represents and warrants to the Bank that:
Section 2.01 Powers of Village. The Village is a political subdivision and
municipality, duly organized and validly existing under the laws of the State. The Village
has the power to borrow the amount provided for in this Agreement, to execute and deliver
the Loan Documents, to secure the Note in the manner contemplated hereby and to
perform and observe all the terms and conditions of the Loan Documents on its part to be
performed and observed. The Village may lawfully borrow funds hereunder in order to
provide for the refinancing of the Refunded Bonds and to pay the costs of issuance of the
Note.
Section 2.02 Authorization of Loan. The Village had, has, or will have, as the case
may be, at all relevant times, full legal right, power, and authority to execute the Loan
Documents, to make the Note, and to carry out and consummate all other transactions
contemplated hereby, and the Village has complied and will comply with all provisions of
applicable law in all material matters relating to such transactions. The Village 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 and to that
end the Village 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 Note has been duly authorized,
executed, issued and delivered to the Bank and constitutes the legal, valid and binding
obligation of the Village enforceable in accordance with the terms thereof and the terms
hereof, and is entitled to the benefits and security of this Agreement, 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, heretofore or hereinafter enacted, to the extent constitutionally applicable,
and provided that its enforcement may also be subject to equitable principles that may
affect remedies or other equitable relief, or to the exercise of judicial discretion in
appropriate cases. 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 Village of its obligations
under this Agreement and the Note 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 No Violation of Law or Contract. The Village 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, the breach of which could result in a material and adverse impact on the
financial condition of the Village or the ability of the Village to perform its obligations
hereunder and under the Note. The making and performing by the Village of this
Agreement and the Note will not violate any applicable provision of law, and will not result
in a material breach of any of the terms of any agreement or instrument to which the
Village is a party or by which the Village is bound, the breach of which could result in a
material and adverse impact on the financial condition of the Village or the ability of the
Village to perform its obligations hereunder and under the Note.
Section 2.04 Pending or Threatened Litigation There are no actions or
proceedings pending against the Village or affecting the Village or, to the knowledge of the
Village, threatened, which, either in any case or in the aggregate, might result in any
material adverse change in the financial condition of the Village, or which questions the
validity of this Agreement or the Note or of any action taken or to be taken in connection
with the transactions contemplated hereby or thereby.
Section 2.05 Financial Information. The financial information regarding the Village
furnished to the Bank by the Village in connection with the Loan is complete and accurate,
and there has been no material and adverse change in the financial condition of the Village
from that presented in such information.
ARTICLE III
4
COVENANTS OF THE VAILLAGE
Section 3.01 Affirmative Covenants. For so long as any of the principal amount of
or interest on the Note is outstanding or any duty or obligation of the Village hereunder or
under the Note remains unpaid or unperformed, the Village covenants to the Bank as
follows -
(a) Payment. The Village shall pay the principal of and the interest on the Note
at the time and place and in the manner provided herein and in the Note.
(b) Use of Proceeds. Proceeds from the Note will be used only to refinance the
Refunded Bonds and to pay closing costs of the Loan.
(c) Notice of Defaults_ The Village shall within ten (10) days after it acquires
knowledge thereof, notify the Bank in writing at its Notice Address 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 Village of all relevant facts and the action being taken or proposed to be taken by the
Village with respect thereto.
(d) Maintenance of Existence. The Village will take all reasonable legal action
within its control in order to maintain its existence until all amounts due and owing from the
Village to the Bank under this Agreement and the Note have been paid in full.
(e) Records. The Village agrees that any and all records of the Village with
respect to the Loan shall be open to inspection by the Bank or its representatives at all
reasonable times at the office of the Village.
(f) Financial Statements. The Village will cause an audit to be completed of its
books and accounts and shall furnish to the Bank the annual year-end financial statements
of the Village audited by an independent certified public accountant with an audit report
stating 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 Village 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. The Village shall provide the Bank
with the Village's audited financial statements for each fiscal year ending on or after
September 30, 2008 within 270 days after the end thereof.
(g) Notice of Liabilities. The Village shall promptly inform the Bank in writing 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 Village or upon the ability of the Village to perform its obligation
hereunder and under the Note.
(h) Insurance. The Village shall maintain such liability, casualty and other
insurance as is reasonable and prudent for similarly situated governmental entities of the
State of Florida.
(i) Compliance with Laws. The Village 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
Village or upon the ability of the Village to perform its obligation hereunder and under the
Note.
0) Payment of Document Taxes. 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 Village shall pay such taxes or reimburse the Bank for any such taxes paid by it.
Section 3.02 Negative Covenants. For so long as any of the principal amount of or
interest on the Note is outstanding or any duty or obligation of the Village hereunder or
under the Note remains unpaid or unperformed, the Village covenants to the Bank as
follows..
(a) No Adverse Borrowings. The Village shall not issue or incur any indebtedness
or obligation if such would materially and adversely affect the ability of the Village to pay
debt service on the Note or any other amounts owing by the Village under this Agreement.
Section 3.03. Bank Fees and Expenses. The Village hereby agrees to pay the fee
of counsel to the Bank in connection with the Loan in the amount of $20,000.00, plus
reasonable out-of-pocket expenses, said amounts to be due and payable upon the
issuance of the Note.
Section 3.04. Automatic Payment Procedure. The Village hereby authorizes the
Bank to automatically deduct from a bank account of the Village designated to the Bank
the amount of any payment of principal or interest due from the Village to the Bank under
this Agreement or the Note. 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. The
Bank covenants that it shall not debit the Village's account for any amount in excess of the
principal and interest due from the Village to the Bank as the same becomes due.
Section 3.05. Registration and Exchange of Note. The Note is owned by Bank of
America, N.A. The ownership of the Note may only be transferred, and the Village will
transfer the ownership of the Note, upon written request of the Bank specifying the name,
address and taxpayer identification number of the transferee, and the Village will keep a
record setting forth the identification of the owner of the Note.
Section 3.06. Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall
become mutilated, or be destroyed, stolen or lost, the Village shall issue and deliver a new
Note, in exchange and in substitution for such mutilated Note, or in lieu of and in
substitution for the Note destroyed, stolen or lost and upon the Bank furnishing the Village
0
proof of ownership thereof and indemnity reasonably satisfactory to the Village and paying
such expenses as the Village may incur. The Note so surrendered shall be cancelled.
Section 3.07. Payment of Principal and Interest; Limited Obligation. The Village
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 Village may be compelled to pay the principal of and
interest on the Note solely from the Budgeted Revenues and the Pledged Revenues, and
nothing in the Note or this Loan Agreement shall be construed as pledging any other funds
or assets of the Village to such payment or as authorizing such payment to be made from
any other source. Nothing herein shall, however, prevent the Village from using any lawfully
available funds to pay its obligations hereunder and under the Note. The Village 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 for payment undertaken by the Village
hereunder or under the Note from any property other than the Budgeted Revenues and
Pledged Revenues. The Bank shall not have any right to resort to legal or equitable action
to require or compel the Village to make any payment required by the Note or this Loan
Agreement from any source other than the Budgeted Revenues and Pledged Revenues.
The Village covenants that, so long as the Note shall remain unpaid or any other
amounts are owed by the Village under this Agreement or the Note, it will appropriate in its
annual budget, by amendment, if required, from the Non Ad Valorem Revenues, amounts
sufficient to pay the principal of and interest on the Note and other amounts owed under
this Agreement as the same shall become due. In the event that the amount previously
budgeted for such purpose is ever insufficient to pay such principal and interest on the
Note and other amounts owed under this Agreement, the Village covenants to take
immediate action to amend its budget so as to budget and appropriate an amount from the
Non Ad Valorem Revenues sufficient to pay such debt service on the Note and such other
amounts. The covenant to budget and appropriate does not create a lien upon or pledge
of the Non Ad Valorem Revenues. Such covenants to budget and appropriate from Non Ad
Valorem Revenues shall be cumulative to the extent not paid and shall continue until Non
Ad Valorem Revenues sufficient to make all required payments have been budgeted,
appropriated and used to pay such debt service on the Note and such other amounts.
Notwithstanding the foregoing covenant, the Village does not covenant to maintain
any service or programs now provided or maintained by the Village which generate Non -Ad
Valorem Revenues.
Section 3.08 Officers and Employees of the Village Exempt from Personal Liability.
No recourse under or upon any obligation, covenant or agreement of this Loan Agreement
or the Note or for any claim based hereon or thereon or otherwise in respect thereof, shall
be had against any officer, agent or employee, as such, of the Village past, present or
future, it being expressly understood (a) that the obligation of the Village under this
Agreement and under the Note is solely a corporate one, limited as provided in the
preceding Section 3.07, (b) that no personal liability whatsoever shall attach to, or is or
shall be incurred by, the officers, agents, or employees, as such, of the Village, or any of
them, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom, and (c) that any and all such personal liability of, and any
and all such rights and claims against, every such officer, agent, or employee, as such, of
the Village under or by reason of the obligations, covenants or agreements contained in
this Agreement and under the Note, or implied therefrom, are waived and released as a
condition of, and as a consideration for, the execution of this Agreement and the issuance
of the Note on the part of the Village.
Section 3.09. 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 such 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 Bank.
Section 3.10. Tax Representations, Warranties and Covenants of the Village.
(a) The Village hereby covenants and represents that it has taken and caused to be
taken and shall make and take and cause to be made and taken all actions that may be
required of it for the interest on the Note to be and remain excluded from the gross income
of the Bank for federal income tax purposes to the extent set forth in the Code, and that to
the best of its knowledge it has not taken or permitted to be taken on its behalf, and
covenants that to the best of its ability and within its control, it shall not make or take, or
permit to be made or taken on its behalf, any action which, if made or taken, would
adversely affect such exclusion under the provisions of the Code.
The Village acknowledges that the continued exclusion of interest on the Note from
gross income for federal income tax purposes depends, in part, upon compliance with the
arbitrage limitations imposed by Sections 103(b)(2) and 148 of the Code. The Village
hereby acknowledges responsibility to take all reasonable actions necessary to comply with
these requirements. The Village hereby agrees and covenants that it shall not permit at
any time or times any of the proceeds of the Note or other funds of the Village to be
intentionally used, directly or indirectly, to acquire or to replace funds which were used
directly or indirectly to acquire any higher yielding investments (as defined in Section 148 of
the Code), the acquisition of which would cause the Note to be an arbitrage bond for
purposes of Sections 103(b)(2) and 148 of the Code. The Village further agrees and
covenants that it shall do and perform all acts and things necessary in order to assure that
the requirements of Sections 103(b)(2) and 148 of the Code are met.
Specifically, without intending to limit in any way the generality of the foregoing, the
Village covenants and agrees:
(1) to pay to the United States of America 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; and
(3) to comply with all representations and restrictions contained in any
Certificate as to Arbitrage and Other Tax Matters executed by the Village in
connection with the Note.
The Village understands that the foregoing covenants impose continuing obligations
on it 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.
(b) The Village will comply with, and timely make or cause to be made all filings
required by, all effective rules, rulings or regulations promulgated by the Department of the
Treasury or the Internal Revenue Service.
(c) The Village will not use, invest, direct or permit the investment of the
proceeds of the Note or any investment earnings thereon in a manner that will result in the
Note becoming a "private activity bond" within the meaning of Sections 141 and 145 of the
Code.
(d) The Village will not use or permit to be used more than ten percent (10%) of
the proceeds of the Note (including any amounts used to pay costs associated with issuing
the Note), including all investment income earned on such proceeds directly or indirectly, in
any trade or business carried on by any person who is not the Village or a state or political
subdivision or instrumentality thereof as those terms are used in Section 103 of the Code
(an "Exempt Person").
(e) The Village will not use or permit the use of any portion of the proceeds of the
Note, including all investment income earned on such proceeds, directly or indirectly, to
make or finance loans to persons who are not Exempt Persons.
(f) The Village has not entered into, and will not enter into, any arrangement with
any person or organization (other than an Exempt Person) which provides for such person
or organization to manage, operate, or provide services with respect to more than 10% of
the property financed with the proceeds of the Note (a "Service Contract'), unless the
guidelines set forth in Revenue Procedure 97-13 (or the guidelines set forth in Revenue
Procedure 93-19, to the extent applicable, or any new, revised or additional guidelines
applicable to Service Contracts) (the "Guidelines"), are satisfied, except to the extent it
obtains a private letter ruling from the Internal Revenue Service or an opinion of nationally
recognized Bond Counsel which allows for a variation from the Guidelines.
(g) The Village will not cause the Note to be treated as "federally guaranteed" for
purposes of Section 149 of the Code, as may be modified in any applicable rules, rulings,
policies, procedures, regulations or other official statements promulgated or proposed by
0
the Department of the Treasury or the Internal Revenue Service with respect to "federally
guaranteed" obligations described in Section 149 of the Code. For purposes of this
paragraph, the Note shall be treated as "federally guaranteed" if (i) all or any portion of the
principal or interest is or will be guaranteed directly or indirectly by the United States of
America or any agency or instrumentality thereof, or (ii) 5% or more of the proceeds of the
Note will be (A) used in making loans the payment of principal or interest with respect to
which is to be guaranteed in whole or in part by the United States of America or any
agency or instrumentality thereof, or (B) invested directly or indirectly in federally insured
deposits or accounts, and (iii) such guarantee is not described in Section 149(b)(3) of the
Code.
The terms "debt service," "gross proceeds," "net proceeds," "proceeds," and "yield"
have the meanings assigned to them for purposes of Section 148 of the Code.
Section 3.11. Section 265 Designation of 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 Village and all entities which are subordinate to or which issue obligations on
behalf of the Village during 2008 does not exceed $10,000,000, and the Village hereby
designates the Note as a "qualified tax-exempt obligation" ("QTEO") for purposes of
Section 265(b)(3)(13)(i) of the Code, and the Village 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 QTEO.
Section 3.12. Utility Covenants.
(a) The Village will not issue any other obligations, except under the conditions and in
the manner provided herein, payable from the Pledged Revenues or voluntarily create or
cause to be created any debt, lien, pledge, assignment, encumbrance or other charge
having priority to or being on a parity with the lien thereon in favor of this Agreement and
the Note. The Village may at any time or from time to time issue evidences of indebtedness
that are payable in whole or in part out of the Pledged Revenues; provided, however, that
such pledge shall be, and shall be expressed to be, subordinated in all respects to the
pledge of the Pledged Revenues created by this Agreement.
(b) No additional debt (the "Parity Debt") payable from the Pledged Revenues on a
parity with this Agreement and the Note, may be issued or incurred by the Village except
upon the following conditions:
(1) The amount of Net Revenues for the immediately preceding Fiscal Year or
any twelve (12) consecutive months selected by the Village of the eighteen (18) months
immediately preceding the issuance of such Parity Debt as the case may be equal at least
1.20 times the Maximum Debt Service Requirement for the Note (taking into account the
Hedge) and such Parity Debt then proposed to be issued.
10
(2) For purposes of calculating the foregoing, if any indebtedness bears a
variable rate of interest, then the interest rate on such indebtedness shall be assumed to
be the higher of (i) the average rate of actual interest borne by such indebtedness during
the most recent complete month prior to the date of issuance of such proposed
indebtedness and (ii) 7% per annum; provided, however, that if the Village shall have
entered into an interest rate swap or interest rate cap or shall have taken any other action
which has the effect of fixing or capping the interest rate on such indebtedness for the
entire term thereof, then such fixed or capped rate shall be used as the applicable rate.
(c) The Village shall fix, establish, maintain and collect such Rates, and revise the same
to the extent necessary, so that the Rates will always provide in each Fiscal Year Net
Revenues which are at least equal one hundred twenty percent (120%) of the Debt Service
Requirement for such Fiscal Year. Such Rates shall not be so reduced so as to be
insufficient to provide Net Revenues in each Fiscal Year fully adequate for the purposes
provided therefor by this Agreement.
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 this Agreement and the Note are and shall be true and correct on and as of the
date hereof.
Section 4.02 No Default. On the date hereof the Village shall be in compliance with
all the terms and provisions set forth in this Agreement and the Note 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 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 (such satisfaction to be evidenced by the purchase of the Note
by the Bank):
(a) The opinion of the attorney for the Village regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Note;
(b) the opinion of Bank Counsel to the effect that, (1) the interest on such Note is
excluded from gross income for federal income tax purposes and such Note is not an item
of tax preference under Section 57 of the Code, (2) the Note and the income thereon are
exempt from the Florida excise tax on documents and intangible personal property tax and
(3) the Note is a QTEO; and
(c) Such additional supporting documents as the Bank may reasonably request.
ARTICLE V
FUNDING THE LOAN
Section 5.01 The Loan. The Bank hereby agrees to loan to the Village the Loan
Amount on the date hereof upon the terms and conditions set forth in this Agreement. The
Village agrees to repay the principal amount borrowed plus interest thereon, upon the
terms and conditions set forth in this Agreement and the Note.
Section 5.02 Description and Payment Terms of the Note. To evidence the
obligation of the Village to repay the Loan, the Village shall make and deliver to the Bank
the Note in the form attached hereto as Exhibit A.
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 Village shall fail to make any payment of the principal of or interest on
the Note when 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 Village shall default in the performance of or compliance with any term or
covenant contained in this Agreement or the Note, other than a term or covenant a default
in the performance of which or noncompliance with which is elsewhere specifically dealt
with, which default or non-compliance shall continue and not be cured within thirty (30)
days after (i) notice thereof to the Village 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 this Agreement, whichever is earlier; or
(c) Any representation or warranty made in writing by or on behalf of the Village
in this Agreement or the Note which shall prove to have been false or incorrect in any
material respect on the date made or reaffirmed; or
(d) The Village 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 Village 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 Village, or an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
12
consent of the Village, a receiver or trustee of the Village 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 Village 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; or
(g) The Village shall default in the due and punctual payment or performance of
covenants related to (i) any obligation for the payment of money to the Bank or any other
subsidiary or affiliate of Bank of America Corporation or (ii) any obligation for the payment
of money in an amount in excess of $1,000,000 to any other obligee.
Section 6.02 Effect of Event of Default.
Immediately and without notice, upon the occurrence of any Event of Default, the
Bank may declare all obligations of the Village under this Agreement and the Note 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. In
addition, and regardless whether such declaration is or is not made, the Bank may also
seek enforcement of and exercise all remedies available to it under any 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 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 except in writing signed by the
Bank and the Village. The Village agrees to pay all of the Bank's costs and reasonable
attorneys' fees incurred in modifying and/or amending this Agreement at the Village's
request or behest.
Section 7.03 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.
13
Section 7.04 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 7.05 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 Village in connection herewith shall be in full force and
effect from the date hereof and shall continue in effect until as long as the Note is
outstanding.
Section 7.06 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 the Notice Address.
Section 7.07 Applicable Law; Venue. This Agreement shall be construed pursuant
to and governed by the substantive laws of the State. The Village and the Bank waive any
objection either might otherwise have to venue of any action lying in Palm Beach County,
Florida.
Section 7.08 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 Village shall have no rights to assign any of its rights or obligations hereunder without
the prior written consent of the Bank.
Section 7.09 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 7.10 Attorneys Fees. To the extent legally permissible, the Village and the
Bank agree that in any suit, action or proceeding brought in connection with this Agreement
or the Note (including any appeal(s)), the prevailing party shall be entitled to recover costs
and attorneys' fees from the other party.
Section 7.11 Entire Agreement. Except as otherwise expressly provided, this
Agreement and the Note embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings relating to the
subject matter hereof.
14
Section 7.12 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 out the transactions contemplated by this Agreement.
Section 7.13 Arbitration and Waiver of Jury Trial.
(a) This Section 7.13 concerns the resolution of any controversies or claims
between the parties, 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 Loan
Document (collectively a "Claim"). For the purposes of this arbitration provision only, the
term "parties" shall include any parent corporation, subsidiary or affiliate of the Bank
involved in the servicing, management or administration of any obligation described or
evidenced by this Agreement.
(b) The parties irrevocably and voluntarily waive any right they may have to a trial
by jury in respect of any Claim.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
between them as of the date of first set forth above.
VILLAGE OF TEQUESTA, FLORIDA
By:
Name:
Title:
BANK OF AMERICA, N.A.
Name: Linda A. Mason
Title: Senior Vice President
IT
16
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (this "Agreement"), is dated
2008, and is by and between V19LLAGE OF TEQUESTA, FLORIDA, a political subdivision
of the State of Florida (the "Village") and U.S. BANK NATI0NALASSOCIATION, a national
banking association (the "Bank"), as escrow agent (the "Escrow Agent").
WHEREAS, the Village has heretofore issued its Water Revenue Bonds, Series
1998 (the "1998 Bonds"); and
WHEREAS, the Village has determined to provide for the payment of the 1998
Bonds maturing on and after (the "Defeased Bonds") by providing for the
deposit of certain moneys with the Escrow Agent hereunder; and
WHEREAS, a portion of the moneys deposited with the Escrow Agent for such
purpose may be applied to the purchase of certain direct obligations of the United States of
America ("Government Obligations"); and
WHEREAS, in order to provide for the proper and timely application of the moneys
deposited in the trust created herein to the payment of the Defeased Bonds, it is necessary
for the Village to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf
of the holders from time to time of the Defeased Bonds;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth and in order to secure the payment of the principal of, premium, and
interest on the Defeased Bonds, according to their tenor and effect, the Village does by
these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent
and to its successors in the trust hereby created, and to it and its assigns forever, all and
singular the property hereinafter described, to wit:
All right, title, and interest of the Village in and to $
or on behalf of the Village with the Escrow Agent hereunder.
to be deposited by
All right, title, and interest of the Village in and to any Government Obligations
purchased from the moneys described in Clause I above.
All right, title, and interest of the Village in and to all cash balances held from time to
time hereunder and all income and earnings derived from or accruing to any Government
Obligations described in Clause 11 above.
IV.
All (i) property which is by the express provisions of this Agreement required to be
subject to the pledge hereof and (ii) additional property of every kind and nature that may,
from time to time hereafter, by delivery or by writing of any kind, be conveyed, pledged,
assigned, or transferred as and for additional security hereunder or to be subject to the
pledge hereof, by the Village or by anyone in its behalf, and the Escrow Agent is hereby
authorized to receive the same at any time as additional security hereunder, provided that
no property described in (ii) shall be accepted by the Escrow Agent unless the Escrow
Agent shall receive an opinion of nationally recognized bond counsel selected by the
Village to the effect that such acceptance will not cause the interest on the Defeased
Bonds to be included in the gross income of the holders thereof for federal income tax
purposes.
TO HAVE AND TO HOLD, all and the same; in trust nevertheless, upon the terms
herein set forth, for the equal and proportionate benefit, security and protection, as herein
described, of the holders or owners from time to time of the Defeased Bonds in the manner
herein provided; but if the Defeased Bonds shall be fully and promptly paid when due or
redeemed on their dates of scheduled maturity or mandatory redemption in accordance
with the terms thereof and hereof, then this Agreement shall be and become void and of no
further force and effect, otherwise the same shall remain in full force and effect, and
subject to the covenants and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All terms used in capitalized form herein and not
otherwise defined herein shall have the meanings ascribed to them in the Bond Resolution.
In addition to words and terms elsewhere defined in this Agreement, as used herein,
unless some other meaning is plainly intended, the following terms and phrases shall have
the following meanings. -
"Bond Resolution" means Resolution No. _ of the Village adopted , as
amended and supplemented.
"Escrow Deposit Trust Fund" means the fund so designated and established under
Section 2.01 of this Agreement.
"Government Obligations" means direct obligations of the United States of America
that are not callable prior to maturity by the obligor thereon.
1998 Bond Registrar" means U.S. Bank National Association, as paying agent and
bond registrar for the Defeased Bonds.
Section 1.02. Uses of Phrases. Words of the masculine gender shall be deemed
and construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, words importing the singular number shall include
plural number and vice -versa.
ARTICLE II
ESTABLISHMENT OF FUNDS; FLOW OF FUNDS
Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby crE
and established with the Escrow Agent a special and irrevocable trust fund designate
"Village of Tequesta, Florida Water Revenue Bonds, Series 1998/2008 Escrow Deposit
Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other
funds of the Village or the Escrow Agent.
Section 2.02. Deposit to Escrow Deposit Trust Fund. On the date hereof the
Village shall deposit or cause to be deposited with the Escrow Agent and the Escrow Agent
shall receive immediately available moneys in the amount of $ , for deposit in
the Escrow Deposit Trust Fund. The funds deposited in the Escrow Deposit Trust Fund
pursuant to the preceding sentence shall, except for a remaining cash balance of
$ , be immediately invested by the Escrow Agent in the Government Obligations
described on Exhibit B.
Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent
shall apply the Government Obligations and other moneys deposited in the Escrow Deposit
Trust Fund, together with all income and earnings thereon, in accordance with the
provisions hereof. The Escrow Agent shall not invest any moneys held hereunder or make
substitutions of the Government Obligations hereunder or sell, transfer, or otherwise
dispose of the Government Obligations or moneys held hereunder except as provided in
this Agreement.
Section 2.04. Irrevocable Trust Created. Except as expressly provided herein,
the deposit of (or purchase of for deposit of) the Government Obligations and moneys in
the Escrow Deposit Trust Fund shall constitute an irrevocable deposit for the benefit of the
holders of the Defeased Bonds and the holders of the Defeased Bonds shall have an
express lien on the principal of and earnings on the Government Obligations and other
moneys held in the Escrow Deposit Trust Fund hereunder until applied in accordance with
this Agreement. The Government Obligations and earnings thereon and other moneys
shall be held by the Escrow Agent and used only for the purposes and in the manner
provided in this Agreement.
Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of
Defeased Bonds. The Escrow Agent shall transfer from funds in the Escrow Deposit Trust
Fund to the 1998 Bond Registrar the amounts of interest, principal and/or redemption price
of the Defeased Bonds coming due on such dates as shown on Exhibit C. Such amounts
shall be applied by the 1998 Bond Registrar to the payment of all principal of, interest on,
and redemption premium, if any, when due with respect to the Defeased Bonds.
The Village hereby irrevocably elects that the Defeased Bonds shall be called for
redemption on 1, 2008. The Village hereby directs that at least 30 days before
1, 2008, a notice of such redemption in the form attached hereto as Exhibit
D shall be mailed by the Escrow Agent, first class mail, postage prepaid, to all registered
owners of Defeased Bonds to be redeemed at their addressed they appear on the
registration books therefore. The Village agrees to pay the reasonable expenses incurred
by the Escrow Agent in connection with such redemption from lawfully available funds of
the Village.
Section 2.06. Transfer of Funds After All Payments Required by This
Agreement Are Made. On 1, 2008 after the transfer of funds described in
Section 2.05 hereof has occurred, and after all fees and expenses of the Escrow Agent
(including any attorneys' fees and expenses) due hereunder have been paid in full, all
remaining moneys and Government Obligations, together with any income and interest
thereon, in the Escrow Deposit Trust Fund shall be transferred to the Village by the Escrow
Agent and shall be deposited by the Village in the Revenue Fund under the Bond
Resolution. The Escrow Agent shall have no responsibility for the application of amounts
transferred by it to the Village as provided in the preceding sentence.
Section 2.07. Deficiencies. If at any time it shall appear to the Escrow Agent that
the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any
payment when due to the holders of any of the Defeased Bonds, the Escrow Agent shall
notify the Village not less than fifteen (15) days prior to such payment date and the Village
agrees that it will make available to the Escrow Agent, from legally available funds, if any,
amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have
sufficient funds to make such payment on the Defeased Bonds.
Section 2.08. Escrow Agent and Bond Registrar Fees. The Village hereby
agrees to provide for the payment, from lawfully available funds of the Village, of the
compensation due and owing the Escrow Agent, which compensation shall be paid in the
amount of $1,000.00 on the date hereof. In no event shall the Escrow Agent have any lien,
security interest or right of set-off whatsoever upon any of the moneys or investments in the
Escrow Deposit Trust Fund for the payment of such compensation, or for the
reimbursement of any expenses incurred by the Escrow Agent in connection with this
Agreement.
Section 2.09. Bond Registrar. The Escrow Agent and the 1998 Bond Registrar
shall cooperate to cause necessary arrangements to be made and thereafter continued
whereby funds available from the Escrow Deposit Trust Fund shall be made available by
the Escrow Agent to the 1998 Bond Registrar, for the payment of the Defeased Bonds as
the same shall be come due and payable and the 1998 Bond Registrar shall make
available to the Escrow Agent the information necessary to allow the Escrow Agent to
perform its duties hereunder.
ARTICLE III
CONCERNING THE BANK
4
Section 3.01. Appointment of Escrow Agent. The Village hereby appoints U.S.
Bank National Association as Escrow Agent under this Agreement.
Section 3.02. Acceptance by Bank. By execution of this Agreement, the Bank
accepts its duties and obligations hereunder. The Bank undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Bank.
Section 3.03. Liability of Bank. The Bank shall not be liable in connection with the
performance of its duties hereunder except for its own negligence or willful misconduct.
The Bank shall not be liable for any loss or any resulting taxability of interest on the
Defeased Bonds resulting from any investment made pursuant to the terms and provisions
of this Agreement.
The Bank shall not be liable for the accuracy of the calculations as to the sufficiency
of moneys and of the principal amount of the Government Obligations and the earnings
thereon to pay the Defeased Bonds.
The Bank shall keep such books and records as shall be consistent with prudent
industry practice and shall make such books and records available for inspection by the
Village at all reasonable times. In the event of the Bank's failure to account for any of the
Government Obligations or moneys received by it, said Government Obligations or moneys
shall be and remain the property of the Village for the benefit of the holders of the
Defeased Bonds, as herein provided.
Section 3.04. Permitted Acts. The Bank and its affiliates may become the owner
of or may deal in any obligations of the Village described herein as fully and with the same
rights as if it were not the Escrow Agent and 1998 Bond Registrar.
Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting
hereunder may at any time resign and be discharged from the trusts hereby created by
giving not less than sixty (60) days' written notice to the Village specifying the date when
such resignation will take effect, but no such resignation shall take effect (except as
provided by Section 3.07(b) hereof) unless a successor Escrow Agent shall have been
appointed by the Village as hereinafter provided and such successor Escrow Agent shall
have accepted such appointment, in which event such resignation shall take effect
immediately upon the appointment and acceptance of a successor Escrow Agent and the
transfer to such successor Escrow Agent of the funds and accounts held by the Escrow
Agent hereunder.
Section 3.06. Removal of Escrow Agent.
(a) The Escrow Agent may be removed at any time by the Village, but the
Escrow Agent shall remain in office (except as provided by Section 3.07(b) hereof) until the
appointment and taking office of a successor Escrow Agent in accordance with the
provisions of this Agreement.
(b) The EscrowAgent shall be deemed to have been removed if it is dissolved,
becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over
by any governmental action.
(c) Notwithstanding the foregoing provisions of this Section 3.06, no removal of
the Escrow Agent shall take effect until all fees and expenses of the Escrow Agent to be
removed (including attorneys' fees and expenses) due hereunder shall have been paid.
Section 3.07. Successor Escrow Agent.
(a) When the position of the Escrow Agent becomes or is about to become
vacant, the Village shall appoint a successor Escrow Agent to fill such vacancy.
(b) If no appointment of a successor EscrowAgent shall be made pursuant to the
foregoing provisions of this Section, the holder of any Defeased Bond then outstanding
may, or any EscrowAgent retiring or being removed from office shall, apply to any court of
competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the
retiring EscrowAgent of all funds and securities held by it under the provisions hereof into
the registry of such court, such Escrow Agent shall be relieved of all future duties
hereunder.
(c) Any corporation into which the Escrow Agent, or any successor to it in the
trusts created by this Agreement, may be merged or converted or with which it or any
successor to it may be consolidated, or any corporation resulting from any merger,
conversion, consolidation or reorganization to which the EscrowAgent or any successor to
it shall be a party or any corporation to which all or substantially all of the corporate trust
business of the Escrow Agent or any such successor shall be transferred shall be the
successor EscrowAgent under this Agreement without the execution or filing of any paper
or any other act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.08. Receipt of Proceedings. Receipt of true and correct copies of the
Bond Resolution is hereby acknowledged by the Escrow Agent.
Section 3.09. Indemnification. The Village agrees to indemnify and save the
Bank, its agents and employees, harmless, to the extent allowed by law, against any
liabilities, costs, expenses and disbursements of whatsoever kind or nature, which it or they
may incur in the exercise and performance of its powers and duties hereunder, and which
are not due to its negligence or misconduct. Indemnification provided under this Section
shall survive the termination of this Agreement.
Section 3.10. Miscellaneous Provisions Regarding EscrowAgent. Whenever
the Escrow Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action under this Agreement, such
matter may be deemed to be conclusively established by a certificate signed by an
authorized officer of the Village. The Escrow Agent may conclusively rely, as to the
correctness of statements, conclusions and opinions therein, upon any certificate, report,
M
opinion or other document furnished to the Escrow Agent pursuant to any provision of this
Agreement; the Escrow Agent shall be protected and shall not be liable for acting or
proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty
to make any investigation or inquiry as to any statements contained or matters referred to
in any such instrument. The Escrow Agent may consult with counsel, who may be counsel
to the Village or independent counsel, with regard to legal questions, and the opinion of
such counsel shall be full and complete authorization and protection in respect of any
action taken or suffered by it hereunder in good faith in accordance herewith. Prior to
retaining such independent counsel, the Escrow Agent shall notify the Village of its
intention.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Amendments to this Agreement. This Agreement is made for the
benefit of the Village, the Bank and the holders from time to time of the Defeased Bonds
and it shall not be repealed, revoked, altered or amended without the written consent of all
such holders, the Bank and the Village; provided, however, that the Village and the Bank
may, without the consent of, or notice to, such holders, enter into such agreements
supplemental to this Agreement as shall not adversely affect the exclusion from gross
income for federal income tax purposes of the interest on the Defeased Bonds and the
rights of such holders and as shall not be inconsistent with the terms and provisions of this
Agreement, for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b) to grant to, or confer upon, the Escrow Agent for the benefit of the
holders of the Defeased Bonds, any additional rights, remedies, powers or authority
that may lawfully be granted to, or conferred upon, such holders or the Escrow
Agent; and
(c) to subject to this Agreement additional funds, securities or properties.
The Bank shall be entitled to rely exclusively upon an unqualified opinion of Holland
& Knight LLP or other nationally recognized bond counsel with respect to compliance with
this Section, including the extent, if any, to which any change, modification, addition or
elimination affects the rights of the holders of the Defeased Bonds, or that any instrument
executed hereunder complies with the conditions and provisions of this Section.
Section 4.02. Severability. If any one or more of the covenants or agreements
provided in thisAgreement should be determined by a court of competent jurisdiction to be
contrary to law, such covenant or agreement shall be deemed to be separate and shall in
no way affect the validity of the remaining provisions of this Agreement.
Section 4.03. Agreement Binding. All the covenants, promises and agreements in
this Agreement contained by or on behalf of the Village or by or on behalf of the Escrow
7
Agent shall bind and inure to the benefit of their respective successors and assigns, and to
the benefit of the holders of the Defeased Bonds, whether so expressed or not.
Section 4.04. Termination. ThisAgreement (other than Section 3.09 hereof) shall
terminate when all transfers and payments required to be made by the EscrowAgent under
the provisions hereof shall have been made.
Section 4.05. Governing Law. This Agreement shall be governed by the
applicable laws of the State of Florida.
Section 4.06. Execution by Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded for all purposes as an original, and
all of which, together, shall constitute and be but one and the same instrument.
Section 4.07. Notices. Any notice, demand, direction, request or other instrument
authorized or required by this Agreement to be given shall be deemed sufficiently given on
the day sent by registered mail, return receipt requested, addressed as follows or to such
other address furnished in writing by any of the following to all of the following:
If to the Village:
If to the Bank:
IN WITNESS WHEREOF, the Village and the Escrow Agent have duly executed
this Agreement as of the date first above written.
Village of Tequesta, Florida
Mayor
U.S. BANK NATIONAL ASSOCIATION, as
Escrow Agent
22
Its Authorized Signatory
8
EXHIBITA
DEFEASED BONDS
EXHIBIT B
GOVERNMENT OBLIGATIONS TO BE DEPOSITED
INTO ESCROW DEPOSIT TRUST FUND
EXHIBIT C
DEFEASED BONDS
DEBT SERVICE SCHEDULE
EXHIBIT D
DEFEASANCE NOTICE
EXHIBIT E
PROMISSORY NOTE (2008)
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker, Village of
Tequesta, Florida (the "Village"), a political subdivision and municipality 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 "Bank"), the principal sum of $
or such lesser amount as shall have been Advanced hereunder pursuant to the herein
described Loan Agreement and be outstanding hereunder, together with interest on the
principal balance outstanding at the rate of _% per annum (subject to adjustment as
hereinafter provided) based upon a year of 360 days for the actual number of days
elapsed. This Note is issued in conjunction with a Loan Agreement, dated as of June _
2008, between the Village and the Bank (the "Loan Agreement') and is subject to all the
terms and conditions of the Loan Agreement.
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 Bank may
designate to the Village.
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 included in the gross income of the Owner for federal income tax
purposes under the Code.
The Village shall pay the Bank interest on the outstanding principal balance of this
Note in arrears, on September 1, 2008, and on the 1st day of each March, June,
September and December thereafter, or, if any such day is not a Business Day, the next
succeeding Business Day, to and including the Maturity Date (hereinafter defined). The
principal balance of this Note shall be repaid in installments due on the dates and in the
amounts set forth on Schedule 1 attached hereto, or, if any such day is not a Business Day,
the next succeeding Business Day, and the entire unpaid principal balance, together with
all accrued and unpaid interest hereon, shall be due and payable in full on March 1, 2028
(the "Maturity Date").
All payments by the Village pursuant to this Note shall apply first to accrued interest,
then to other charges due the Bank, and the balance thereof shall apply to the principal
sum due.
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 for the actual number of
days elapsed, as of and from the date such Determination of Taxability would be applicable
with respect to this Note (the "Accrual Date"); and (i) the Village shall on the next interest
payment date (or if this Note shall have matured, within 30 days after demand by the Bank)
hereon pay to the Bank 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 such next interest payment date, and (B) the actual interest paid by the
Village on this Note from the Accrual Date to such next interest payment date, 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 Bank and/or former Bank 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.
This Note may be prepaid in whole or in part on any date, with three (3) days prior
written notice to the Bank by payment in an amount equal to the principal amount to be
prepaid plus accrued interest thereon to the date of plus the Prepayment Fee. For
purposes hereof, the Prepayment Fee will be the sum of fees calculated separately for
each Prepaid Installment, as follows:
(i) The Bank will first determine the amount of interest which would have accrued each
month at the Taxable Equivalent Rate for the Prepaid Installment had it remained
outstanding until the applicable Original Payment Date, using the interest rate applicable to
the Prepaid Installment under this Agreement.
(ii) The Bank will then subtract from each monthly interest amount determined in (i),
above, the amount of interest which would accrue for that Prepaid Installment if it were
reinvested from the date of prepayment or redemption through the Original Payment Date,
using the Treasury Rate.
(iii) If (i) minus (ii) for the Prepaid Installment is greater than zero, the Bank will discount
the monthly differences to the date of prepayment or redemption by the Treasury Rate. The
Bank will then add together all of the discounted monthly differences for the Prepaid
Installment.
The following definitions will apply to the calculation of the Prepayment Fee:
(i) Original Payment Dates mean the dates on which the prepaid or redeemed
principal would have been paid if there had been no prepayment or redemption. If any of
the principal would have been paid later than the end of the fixed rate interest period in
effect at the time of prepayment or redemption, then the Original Payment Date for that
amount will be the last day of the interest period.
(ii) "Prepaid Installment" means the amount of the prepaid or redeemed principal which
would have been paid on a single Original Payment Date.
(iii) "Taxable Equivalent Rate" means the interest rate per annum derived from the
following formula: the interest rate first set forth above divided by the difference of (1 minus
the Maximum Corporate Income Tax Rate).
(iv) "Treasury Rate" means the yield on the Treasury Constant Maturity Series with
maturity equal to the Original Payment Date of the Prepaid Installment which are principal
payments (calculated as of the date of redemption in accordance with accepted financial
practice and rounded to the nearest quarter -year), as reported in Federal Reserve
Statistical Release H.15, Selected Interest Rates of the Board of Governors of the Federal
Reserve System, or any successor publication. If no maturity exactly corresponding to such
Original Payment Date appears in Release H.15, the Treasury Rate will be determined by
linear interpolation between the yields reported in Release H.15. If for any reason Release
H.15 is no longer published, the Holder shall select a comparable publication to determine
the Treasury Rate.
Prepayments of principal shall be applied against the scheduled payments of
principal hereunder in the inverse order of their due dates.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then
the Bank may declare the entire debt then remaining unpaid hereunder immediately due
and payable; and in any such default and acceleration, the Village shall also be obligated
to pay (but only from the Budgeted 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 fifteen (15) days after it is due, then the Village shall also be
obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in
the amount of 4% of delinquent payment, which late payment shall be due and payable
immediately.
Interest at 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 Village to the extent permitted by law hereby waives presentment, demand,
protest and notice of dishonor.
THIS NOTEAND THE INTEREST HEREON DOES NOTAND SHALL NOT CONSTITUTE
A GENERAL INDEBTEDNESS OF THE Village BUT SHALL BE PAYABLE SOLELY FROM
THE MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN
AGREEMENT. NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING
POWER OF THE BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF
OR INTEREST ON THIS NOTE OR OTHER COSTS INCIDENTAL HERETO.
All terms, conditions and provisions of the 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 Loan
Agreement.
This Note is payable solely from the Budgeted Revenues and Pledged Revenues to
the extent provided in the Loan Agreement. Notwithstanding any other provision of this
Note, the Village 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 as provided in the Loan Agreement.
This Note may be exchanged or transferred but only as provided in the Loan
Agreement.
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 has caused this Note to be executed in its
name as of the date hereinafter set forth.
The date of this Promissory Note is June 2008.
Village of Tequesta, Florida
Name:
Title: Mayor
4
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement") is made and entered into as of July 14, 2008,
and is by and between the Village of Tequesta, Florida, a political subdivision and municipality of
the State of Florida, and its successors and assigns (the "Village"), and Bank of America, N.A., a
national banking association, and its successors and assigns, as holder(s) of the hereinafter defined
Note (the "Bank").
The parties hereto, intending to be legally bound hereby and in consideration of the mutual
covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE 1
DEFINITION OF TERMS
Section 1.01 Definitions. Terms used in this Agreement that are defined in the Water
Revenue Bond Resolution (hereinafter defined) and that are not otherwise defined herein shall have
the same meanings when used herein. 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.
"Bond Counsel" means an attorney -at -law or firm of such attorneys having expertise in the
legal aspects of the issuance of indebtedness by states and political subdivisions thereof.
"Budgeted Revenues" means, to the extent provided in Section 3.07 hereof, the Non -Ad
Valorem Revenues.
"Business Day" means any day except any Saturdayor Sunday or day on which the Principal
Office of the Bank is lawfully closed.
"Closing Date" means the date so indicated in the Note.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto.
"Costs" means, with respect to the Project, any lawful expenditure of the Village which meets
the further requirements of this Agreement.
"Event of Default" shall mean an event of default specified in Article VI of this Agreement.
"Fiscal Year" shall mean the period commencing on October I of each year and continuing
through the next succeeding September 30, or such other period as may be prescribed by law as the
fiscal year of the Village.
"Gross Revenues" shall mean all income and moneys received by the Village from the Rates
or otherwise received by the Village or accruing to the Village in the management and operation of
the System, but excluding Impact Fees.
"Impact Fees" shall mean all charges separately imposed by the Village upon new customers
of the System as a non -user capacity charge for a proportionate share of the cost of the acquisition
or construction of facilities, which are imposed by the Village for the purpose of allocating to each
such customer a proportionate share of the cost of the additional System capacity made necessary
by the inclusion or expected inclusion of such new customers of the System, excluding those charges
imposed by the Village on persons connecting to the System for the cost of physically connecting
thereto.
"Loan" shall mean the loan by the Bank to the Village contemplated hereby.
"Loan Amount" means $6,554,935.28.
"Loan Documents" means this Agreement and the Note.
"Non -Ad Valorem Revenues" means all revenues of the Village not derived from ad valorem
taxation and which are lawfully available to be used to pay debt service on the Note.
"Note" means the Village's Promissory Note (2008) in the form attached hereto as
Attachment "A."
"Notice Address" means,
As to the Village: Village Manager
Village of Tequesta, Florida
345 Tequesta Drive
Tequesta, FL 33469-3062
As to the Bank: Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, Florida 32256
or to such other address as either party may have specified in writing to the other using the
procedures specified in Section 7.06.
"Operating Expenses" shall mean the Village's expenses for operation of the System, all to
the extent properly attributable to the System in accordance with generally accepted accounting
principles employed in respect of activities such as those involved in the operation of municipal
water systems similar to the System, but not including any provision for interest, depreciation,
amortization or similar charges, provided, however, that for purposes of Sections 5.02 and 5.07
hereof, Operating Expenses shall not include administrative expenses allocable to the System or
extraordinary non -recurring expenses of the System_
"Pledged Revenues" means the Gross Revenues minus the Operating Expenses_
"Principal Office" means, with respect to the Bank, the office located at 9000 Southside
Boulevard, Building 100, Jacksonville, Florida, 32256, or such other office as the Bank may
designate to the Village in writing.
"Rates" shall mean the charges imposed by the Village for the use of the services of the
System, other than any Impact Fees.
"Refunded Bonds" means the Village's Utility System Revenue Bonds, Series 1998.
"State" means the State of Florida.
"System" shal I mean the water supply, treatment and distribution system owned and operated
by the Village.
"Water Revenue Bond Resolution" means Resolution No. 30-08 of the Village.
Section 1.02 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 anyway modifyor 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 VILLAGE
The Village represents and warrants to the Bank that:
Section 2.01 Powers of Ville. The Village is a political subdivision and municipality,
duly organized and validly existing under the laws of the State. The Village has the power to borrow
the amount provided for in this Agreement, to execute and deliver the Loan Documents, to secure
the Note in the manner contemplated hereby and to perform and observe all the terms and conditions
of the Loan Documents on its part to be performed and observed. The Village may lawfully borrow
funds hereunder in order to provide for the refinancing of the Refunded Bonds and to pay the costs
of issuance of the Note.
Section 2.02 Authorization of Loan. The Village had, has, or will have, as the case may
be, at all relevant times, full legal right, power, and authority to execute the Loan Documents, to
make the Note, and to carry out and consummate all other transactions contemplated hereby, and the
Village has complied and will comply with all provisions of applicable law in all material matters
relating to such transactions. The Village 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 and to that end the Village 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 Note has been duly
authorized, executed, issued and delivered to the Bank and constitutes the legal, valid and binding
obligation of the Village enforceable in accordance with the terms thereof and the terms hereof, and
is entitled to the benefits and security of this Agreement, subject to the provisions of the bankruptcy
laws of the United States of America and to other appl icable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights, heretofore or hereinafter enacted,
to the extent constitutionally applicable, and provided that its enforcement may also be subject to
equitable principles that may affect remedies or other equitable relief, or to the exercise of judicial
discretion in appropriate cases. 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 Village of its obligations under
this Agreement and the Note 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 No Violation of Law orContract. The Village 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,
the breach of which could result in a material and adverse impact on the financial condition of the
Village or the ability of the Village to perform its obligations hereunder and under the Note. The
making and performing by the Village of this Agreement and the Note will not violate any applicable
provision of law, and will not result in a material breach of any of the terms of any agreement or
instrument to which the Village is a parry or by which the Village is bound, the breach of which
could result in a material and adverse impact on the financial condition of the Village or the ability
of the Village to perform its obligations hereunder and under the Note.
Section 2.04 Pending or Threatened Litigation. There are no actions or proceedings
pending against the Village or affecting the Village or, to the knowledge of the Village, threatened,
which, either in any case or in the aggregate, might result in any material adverse change in the
financial condition of the Village, or which questions the validity of this Agreement or the Note or
of any action taken or to be taken in connection with the transactions contemplated hereby or
thereby.
Section 2.05 Financial Information. The financial information regarding the Village
furnished to the Bank by the Village in connection with the Loan is complete and accurate, and there
has been no material and adverse change in the financial condition of the Village from that presented
in such information.
ARTICLE III
COVENANTS OF THE VILLAGE
Section 3.01 Affirmative Covenants. For so long as any of the principal amount of or
interest on the Note is outstanding or any duty or obligation of the Village hereunder or under the
Note remains unpaid or unperformed, the Village covenants to the Bank as follows:
4
(a) Payment. The Village shall pay the principal of and the interest on the Note at the
time and place and in the manner provided herein and in the Note.
(b) Use of Proceeds. Proceeds from the Note will be used only to refinance the Refunded
Bonds and to pay closing costs of the Loan-
(c) Notice of Defaults. The Village shall within ten (10) days after it acquires knowledge
thereof, notify the Bank in writing at its Notice Address 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 Village of all relevant facts and
the action being taken or proposed to be taken by the Village with respect thereto.
(d) Maintenance of Existence. The Village will take all reasonable legal action within
its control in order to maintain its existence until all amounts due and owing from the Village to the
Bank under this Agreement and the Note have been paid in full.
(e) Records. The Village agrees that any and all records of the Village with respect to
the Loan shall be open to inspection by the Bank or its representatives at all reasonable times at the
office of the Village.
(f) Financial Statements. The Village will cause an audit to be completed of its books
and accounts and shall furnish to the Bank the annual year-end financial statements of the Village
audited by an independent certified public accountant with an audit report stating 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 Village 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. The Village
shall provide the Bank with the Village's audited financial statements for each fiscal year ending on
or after September 30, 2008 within 270 days after the end thereof.
(g) Notice of Liabilities. The Village shall promptly inform the Bank in writing 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
Village or upon the ability of the Village to perform its obligation hereunder and under the Note.
(h) Insurance. The Village shall maintain such liability, casualty and other insurance as
is reasonable and prudent for similarly situated governmental entities of the State of Florida.
(i) Compliance with aws. The Village 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 Village or upon the ability of
the Village to perform its obligation hereunder and under the Note.
0) Payment of Document Taxes. 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
Village shall pay such taxes or reimburse the Bank for any such taxes paid by it.
Section 3.02 Negative Covenants. For so long as any of the principal amount of or interest
on the Note is outstanding or any duty or obligation of the Village hereunder or under the Note
remains unpaid or unperformed, the Village covenants to the Bank as follows:
(a) No Adverse Borrowing. The Village shall not issue or incur any indebtedness or
obligation if such would materially and adversely affect the ability of the Village to pay debt service
on the Note or any other amounts owing by the Village under this Agreement.
Section 3.03. Bank Fees and Ex nses. The Village hereby agrees to pay the fee of counsel
to the Bank in connection with the Loan in the amount of 520,000.00, plus reasonable out-of-pocket
expenses, said amounts to be due and payable upon the issuance of the Note.
Section 3.04. Automatic Payment Procedure. The Village hereby authorizes the Bank to
automatically deduct from a bank account of the Village designated to the Bank the amount of any
payment of principal or interest due from the Village to the Bank under this Agreement or the Note.
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. The Bank covenants that it shall not debit the Village's account
for any amount in excess of the principal and interest due from the Village to the Bank as the same
becomes due.
Section 3.05. Registration and Exchanee of Note. The Note is owned by Bank of America,
N.A. The ownership of the Note may only be transferred, and the Village will transfer the ownership
of the Note, upon written request of the Bank specifying the name, address and taxpayer
identification number of the transferee, and the Village will keep a record setting forth the
identification of the owner of the Note.
Section 3.06. Note Mutilated Destroyed. Stolen or Lost. In case the Note shall become
mutilated, or be destroyed, stolen or lost, the Village shall issue and deliver a new Note, in exchange
and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed,
stolen or lost and upon the Bank furnishing the Village proof of ownership thereof and indemnity
reasonably satisfactory to the Village and paying such expenses as the Village may incur. The Note
so surrendered shall be cancelled.
Section 3.07. Payment of Principal and Interest Limited Obligation. The Village 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 Village may be compelled to pay the principal of and interest on the Note solely from the
Budgeted Revenues and the Pledged Revenues, and nothing in the Note or this Loan Agreement shall
be construed as pledging any other funds or assets of the Village to such payment or as authorizing
such payment to be made from any other source. Nothing herein shall, however, prevent the Village
from using any lawfully available funds to pay its obligations hereunder and under the Note. The
Village 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 for payment undertaken by the Village
hereunder or under the Note from any property other than the Budgeted Revenues and Pledged
Revenues. The Bank shall not have any right to resort to legal or equitable action to require or
compel the Village to make any payment required by the Note or this Loan Agreement from any
source other than the Budgeted Revenues and Pledged Revenues.
The Village covenants that, so long as the Note shall remain unpaid or any other amounts are
owed by the Village under this Agreement or the Note, it will appropriate in its annual budget, by
amendment, if required, from the Non Ad Valorem Revenues, amounts sufficient to pay the principal
of and interest on the Note and other amounts owed under this Agreement as the same shall become
due. In the event that the amount previously budgeted for such purpose is ever insufficient to pay
such principal and interest on the Note and other amounts owed under this Agreement, the Village
covenants to take immediate action to amend its budget so as to budget and appropriate an amount
from the Non Ad Valorem Revenues sufficient to pay such debt service on the Note and such other
amounts. The covenant to budget and appropriate does not create a lien upon or pledge of the Non
Ad Valorem Revenues. Such covenants to budget and appropriate from Non Ad Valorem Revenues
shall be cumulative to the extent not paid and shall continue until Non Ad Valorem Revenues
sufficient to make all required payments have been budgeted, appropriated and used to pay such debt
service on the Note and such other amounts.
Notwithstanding the foregoing covenant, the Village does not covenant to maintain any
service or programs now provided or maintained by the Village which generate Non -Ad Valorem
Revenues.
Section 3.08 Officers and Employees of the Village Exempt from Personal Liability. No
recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the Note
or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against any
officer, agent or employee, as such, of the Village past, present or future, it being expressly
understood (a) that the obligation of the Village under this Agreement and under the Note is solely
a corporate one, limited as provided in the preceding Section 3.07, (b) that no personal liability
whatsoever shall attach to, or is or shall be incurred by, the officers, agents, or employees, as such,
of the Village, or any of them, under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom, and (c) that any and all such personal liability of,
and any and all such rights and claims against, every such officer, agent, or employee, as such, of the
Village under or by reason of the obligations, covenants or agreements contained in this Agreement
and under the Note, or implied therefrom, are waived and released as a condition of, and as a
consideration for, the execution of this Agreement and the issuance of the Note on the part of the
Village.
Section 3.09. 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 such 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 Bank.
Section 3.10. Tax RcRmsentations Warranties and Covenants of the Village.
7
(a) The Village hereby covenants and represents that it has taken and caused to be taken and
shall make and take and cause to be made and taken all actions that may be required of it for the
intereston the Note to be and remain excluded from the gross income of the Bank for federal income
tax purposes to the extent set forth in the Code, and that to the best of its knowledge it has not taken
or permitted to be taken on its behalf, and covenants that to the best of its ability and within its
control, it shall not make or take, or permit to be made or taken on its behalf, any action which, if
made or taken, would adversely affect such exclusion under the provisions of the Code.
The Village acknowledges that the continued exclusion of interest on the Note from gross
income for federal income tax purposes depends, in part, upon compliance with the arbitrage
limitations imposed by Sections 103(b)(2) and 148 of the Code. The Village hereby acknowledges
responsibility to take all reasonable actions necessary to comply with these requirements. The
Village hereby agrees and covenants that it shall not permit at any time or times any of the proceeds
of the Note or other funds of the Village to be intentionally used, directly or indirectly, to acquire
or to replace funds which were used directly or indirectly to acquire any higher yielding investments
(as defined in Section 148 of the Code), the acquisition of which would cause the Note to be an
arbitrage bond for purposes of Sections 103 (b)(2) and 148 of the Code. The Village further agrees
and covenants that it shall do and perform all acts and things necessary in order to assure that the
requirements of Sections 103(b)(2) and 148 of the Code are met.
Specifically, without intending to limit in any way the generality of the foregoing, the Village
covenants and agrees:
(1) to pay to the United States of America 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; and
(3) to complywith all representations and restrictions contained in any Certificate
as to Arbitrage and Other Tax Matters executed by the Village in connection with the Note.
The Village understands that the foregoing covenants impose continuing obligations on it 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.
(b) The Village will comply with, and timely make or cause to he made all filings
required by, all effective rules, rulings or regulations promulgated by the Department of the Treasury
or the Internal Revenue Service.
(c) The Village will not use, invest, direct or permit the investment of the proceeds of
the Note or any investment earnings thereon in a manner that will result in the Note becoming a
"private activity bond" within the meaning of Sections 141 and 145 of the Code.
(d) The Village will not use or permit to be used more than ten percent (10%) of the
proceeds of the Note (including any amounts used to pay costs associated with issuing the Note),
including all investment income earned on such proceeds directly or indirectly, in any trade or
business carried on by any person who is not the Village or a state or political subdivision or
instrumentality thereof as those terms are used in Section 103 of the Code (an "Exempt Person").
(e) The Village will not use or permit the use of any portion of the proceeds of the Note,
including all investment income earned on such proceeds, directly or indirectly, to make or finance
loans to persons who are not Exempt Persons-
(f) The Village has not entered into, and will not enter into, any arrangement with any
person or organization (other than an Exempt Person) which provides for such person or
organization to manage, operate, or provide services with respect to more than 10% of the property
financed with the proceeds of the Note (a "Service Contract"), unless the guidelines set forth in
Revenue Procedure 97-13 (or the guidelines set forth in Revenue Procedure 93-19, to the extent
applicable, or any new, revised or additional guidelines applicable to Service Contracts) (the
"Guidelines"), are satisfied, except to the extent it obtains a private letter ruling from the Internal
Revenue Service or an opinion of nationally recognized Bond Counsel which allows for a variation
from the Guidelines.
(g) The Village will not cause the Note to be treated as "federally guaranteed" for
purposes of Section 149 of the Code, as may be modified in any applicable rules, rulings, policies,
procedures, regulations or other official statements promulgated or proposed by the Department of
the Treasury or the Internal Revenue Service with respect to "federally guaranteed" obligations
described in Section 149 of the Code. For purposes of this paragraph, the Note shall be treated as
"federally guaranteed" if (i) all or any portion of the principal or interest is or will be guaranteed
directlyor indirectly by the United States of America or any agency or instrumentality thereof or (ii)
5% or more of the proceeds of the Note will be (A) used in making loans the payment of principal
or interest with respect to which is to be guaranteed in whole or in part by the United States of
America or any agency or instrumentality thereof, or (B) invested directly or indirectly in federally
insured deposits or accounts, and (iii) such guarantee is not described in Section 149(b)(3) of the
Code.
The terms "debt service," "gross proceeds," "net proceeds," "proceeds," and "yield" have the
meanings assigned to them for purposes of Section 148 of the Code.
0
Section 3.11 _ Section 265 Designation of 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 Village and all entities which are subordinate to or which issue obligations on behalf of the
Village during 2008 does not exceed S10,000,000, and the Village hereby designates the Note as a
"qualified tax-exempt obligation" ("QTEO") for purposes of Section 265(b)(3)(B)(i) of the Code,
and the Village 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 QTEO.
Section 3.12. Utility Covenants.
(a) The Village will not issue any other obligations, except under the conditions and in the
manner provided herein, payable from the Pledged Revenues or voluntarily create or cause to be
created any debt, lien, pledge, assignment, encumbrance or other charge having priority to or being
on a parity with the lien thereon in favor of this Agreement and the Note. The Village may at any
time or from time to time issue evidences of indebtedness that are payable in whole or in part out of
the Pledged Revenues; provided, however, that such pledge shall be, and shall be expressed to be,
subordinated in all respects to the pledge of the Pledged Revenues created by this Agreement.
(b) No additional debt (the "Parity Debt") payable from the Pledged Revenues on a parity with
this Agreement and the Note, may be issued or incurred by the Village except upon the following
conditions:
(1) The amount ofNet Revenues for the immediately preceding Fiscal Year or any twelve
(12) consecutive months selected by the Village of the eighteen (18) months immediately preceding
the issuance of such Parity Debt as the case may be equal at least 1.20 times the Maximum Debt
Service Requirement for the Note and such Parity Debt then proposed to be issued.
(2) For purposes of calculating the foregoing, if any indebtedness bears a variable rate
of interest, then the interest rate on such indebtedness shall be assumed to be the higher of (i) the
average rate of actual interest borne by such indebtedness during the most recent complete month
prior to the date of issuance of such proposed indebtedness and (ii) 7% per annum; provided,
however, that if the Village shall have entered into an interest rate swap or interest rate cap or shall
have taken any other action which has the effect of fixing or capping the interest rate on such
indebtedness for the entire term thereof, then such fixed or capped rate shall be used as the applicable
rate.
(c) The Village shall fix, establish, maintain and collect such Rates, and revise the same to the
extent necessary, so that the Rates will always provide in each Fiscal Year Net Revenues which are
at least equal one hundred twenty percent (120%) of the Debt Service Requirement for such Fiscal
Year. Such Rates shall not be so reduced so as to be insufficient to provide Net Revenues in each
Fiscal Year fully adequate for the purposes provided therefor by this Agreement.
IV
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 this Agreement and the Note are and shall be true and correct on and as of the date hereof.
Section 4.02 No Default. On the date hereof the Village shall be in compliance with all the
terms and provisions set forth in this Agreement and the Note 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 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 (such satisfaction to be evidenced by the purchase of the Note by the Bank):
(a) The opinion of the attorney for the Village regarding the due authorization, execution,
delivery, validity and enforceability of this Agreement and the Note;
(b) the opinion of Bank Counsel to the effect that, (1) the interest on such Note is
excluded from gross income for federal income tax purposes and such Note is not an item of tax
preference under Section 57 of the Code, (2) the Note and the income thereon are exempt from the
Florida excise tax on documents and intangible personal property tax and (3) the Note is a QTEO;
and
(c) Such additional supporting documents as the Bank may reasonably request.
ARTICLE V
FUNDING THE LOAN
Section 5.01 The Loan. The Bank hereby agrees to loan to the Village the Loan Amount
on the date hereof upon the terms and conditions set forth in this Agreement. The Village agrees to
repay the principal amount borrowed plus interest thereon, upon the terms and conditions set forth
in this Agreement and the Note.
Section 5.02 Description and Payment Terms of the Note. To evidence the obligation of
the Village to repay the Loan, the Village shall make and deliver to the Bank the Note in the form
attached hereto as Exhibit A.
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 Village shall fail to make any payment of the principal of or interest on the Note
when 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 Village shall default in the performance of or compliance with any term or
covenant contained in this Agreement or the Note, other than a term or covenant a default in the
performance of which or noncompliance with which is elsewhere specifically dealt with, which
default or non-compliance shall continue and not be cured within thirty (30) days after (i) notice
thereof to the Village 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 this Agreement, whichever is earlier;
or
(c) Any representation or warranty made in writing by or on behalf of the V it lage in this
Agreement or the Note which shall prove to have been false or incorrect in any material respect on
the date made or reaffirmed; or
(d) The Village 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 Village 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 Village, or an order, judgment
or decree is entered by any court of competent jurisdiction appointing, without the consent of the
Village, a receiver or trustee of the Village 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 Village 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; or
(g) The Village shall default in the due and punctual payment or performance of
covenants related to (i) any obligation for the payment of money to the Bank or any other subsidiary
or affiliate of Bank of America Corporation or (ii) any obligation for the payment of money in an
amount in excess of S 1,000,000 to any other obligee.
12
Section 6.02 Effect of Event of Default
Immediately and without notice, upon the occurrence of any Event of Default, the Bank may
declare all obligations of the Village under this Agreement and the Note 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. In addition, and regardless whether
such declaration is or is not made, the Bank may also seek enforcement of and exercise all remedies
available to it under any applicable taw.
ARTICLE VD
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 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
cumu lative 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 except in writing signed by the Bank and the Village. The
Village agrees to pay all of the Bank's costs and reasonable attorneys' fees incurred in modifying
and/or amending this Agreement at the Village's request or behest.
Section 7.03 Cgunteuarts. 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 7.04 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 7.05 Term of Agmement Except as otherwise specified in this Agreement, this
Agreement and al I representations, warranties, covenants and agreements contained herein or made
in writing by the Village in connection herewith shall be in full force and effect from the date hereof
and shall continue in effect until as long as the Note is outstanding.
Section 7.06 Notices. All notices, requests, demands and other communications which are
required or may be given under this Agreement shal I 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
13
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 the Notice Address.
Section 7.07 Applicable Law: Venue. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State. The Village and the Bank waive any objection either
might otherwise have to venue of any action lying in Palm Beach County, Florida.
Section 7.08 BindingEffect: Assionment. This Agreement shall be binding upon and inure
to the benefit of the successors in interest and permitted assigns of the parties. The Village shall
have no rights to assign any of its rights or obligations hereunder without the prior written consent
of the Bank.
Section 7.09 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 7.10 AttornM Fees. To the extent legally permissible, the Village and the Bank
agree that in any suit, action or proceeding brought in connection with this Agreement or the Note
(including any appeal(s)), the prevailing party shall be entitled to recover costs and attorneys' fees
from the other party.
Section 7.11 Entire Agreement. Except as otherwise expressly provided, this Agreement
and the Note embody the entire agreement and understanding between the parties hereto and
supersede all prior agreements and understandings relating to the subject matter hereof.
Section 7.12 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 out the
transactions contemplated by this Agreement.
Section 7.13 Waiver of Jury Trial.
(a) This Section 7.13 concerns the resolution of any controversies or claims between the
parties, 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 Loan Document (collectively a
"Claim"). For the purposes of this provision only, the term "parties" shall include any parent
corporation, subsidiary or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this Agreement.
(b) The parties irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Claim.
14
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between
them as of the date of first set forth above.
VILLAGE OF TEQUESTA, FLORIDA
By: f �- _ �
Name: Pat Watkins
Title: Mayor
BANK OF AMERICA. N.A.
By:
Name: Holly L. Kuhlman
Title: Senior Vice President
15
HEREOF, the parties have mwuted this Agtoement tc be dFactive betw om
st set fotth abome_
TOWN OF LAKE PARS, FLORIDA
Name: Daca DuBois
Tide: Nkyar
BANK OF Ab1 EWA, N_A
By
Name Linda A. iwson
Title: Senior Vice Pmsidmt
15
FUNDING WSTRUCTION LETTER
Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, Florida 32256
Ladies and Gentlemen:
You are hereby requested, authorized and directed to fund an advance in the amount of
$6.554,935.28 under the Loan Agreement, dated July 14, 2008, between you and us, in the
following manner.
Please wire $6,524.935.28 as follows:
U.S. Bank N.A.
ABA: 091000022
BNF: USBANK CT WIRE CLRG
Beneficiary Account Number: 180121 167365
Beneficiary Account Address: 777 E. Wisconsin Avenue.
Milwaukee, WI53202-5300
Account Name: Tequesta 1998i 2008 Escrow
2. Please pay your attorneys Holland & Knight LLP $20,000.00.
3. Please wire 510,000.00 as follows:
Wachovia Bank
ABA #: 063000021
Account Name: Corbett and White, P A.
Account#: 2165820003340
Dated as of July 14, 2008
VILLAGE OF TEQUESTA, FLORIDA
By: '------ —_—
Mayor
PROMISSORY NOTE (2008)
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker, Village of Tequesta,
Florida (the "Village'), a political subdivision and municipality 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 "Bank"),
the principal sum of $6,554,935.28 or such lesser amount as shall have been Advanced hereunder pursuant
to the herein described Loan Agreement and be outstanding hereunder, together with interest on the principal
balance outstanding at the rate of % per annum (subject to adjustment as hereinafter provided in
connection with a Determination of Taxability) based upon a year of 360 days for the actual number ofdays
elapsed. This Note is issued in conjupction with a Loan Agreement, dated as of July 14, 2008. between the
Village and the Bank (the "Loan Agreement") and is subject to all the terms and conditions of the Loan
Agreement. 1
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 Bank may designate to the Village.
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 included in the
gross income of the Owner for federal income tax purposes under the Code.
The Village shall pay the Bank interest on the outstanding principal balance of this Note in arrears.
on August 1, 2008, and on the Ist day of each month thereafter, or, if any such day is not a Business Day,
the next succeeding Business Day, to and including the Maturity Date (hereinafter defined). The principal
balance of this Note shall be repaid in installments due on the dates and in the amounts set forth on Schedule
I attached hereto, or, if any such day is not a Business Day, the next succeeding Business Day, and the entire
unpaid principal balance, together with all accrued and unpaid interest hereon, shall be due and payable in
full on March I, 2028 (the "Maturity Date').
All payments by the Village pursuant to this Note shall apply first to accrued interest, then to other
charges due the Bank, and the balance thereof shall apply to the principal sum due.
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 for the actual number of days elapsed, as of and from the date such
Determination of Taxability would be applicable with respect to this Note (the "Accrual Date'); and (i) the
Village shall on the next interest payment date (or if this Note shall have matured, within 30 days after
demand by the Bank) hereon pay to the Bank 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 such next interest payment date, and (B) the actual interest paid by the Village on this Note from the
Accrual Date to such next interest payment date, 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 Bank and/or former
Bank 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 adjustmentshall survive
payment of th is Note until such time as the federal statute of I imitations under which the interest on this Note
could be declared taxable under the Code shall have expired.
This Note may be prepaid in whole or in part on any date, with three (3) days prior written notice
to the Bank by payment in an amount equal to the principal amount to be prepaid plus accrued interest
thereon to the date of plus the Prepayment Fee. For purposes hereof, the Prepayment Fee will be the sum
of fees calculated separately for each Prepaid Installment, as follows:
(1) The Bank will first determine the amount of interest which would have accrued each month at the
Taxable Equivalent Rate for the Prepaid Installment had it remained outstanding until the applicable Original
Payment Date, using the interest rate applicable to the Prepaid Installment under this Agreement.
(ii) The Bank will then subtract from each monthly interest amount determined in (i), above, the amount
of interest which would accrue for that Prepaid Installment if it were reinvested from the date of prepayment
or redemption through the Original Payment Date, using the Treasury Rate.
(iii) If (i) minus (ii) for the Prepaid installment is greater than zero, the Bank will discount the monthly
differences to the date of prepayment or redemption by the Treasury Rate. The Bank will then add together
all of the discounted monthly differences for the Prepaid Installment.
The following definitions will apply to the calculation of the Prepayment Fee:
(i) "Original Payment Dates" mean the dates on which the prepaid or redeemed principal would have
been paid if there had been no prepayment or redemption. If any of the principal would have been paid later
than the end of the fixed rate interest period in effect at the time of prepayment or redemption, then the
Original Payment Date for that amount will be the last day of the interest period.
(ii) "Prepaid Installment" means the amount ofthe prepaid or redeemed principal which would have been
paid on a single Original Payment Date.
(iii) "Taxable Equivalent Rate" means the interest rate per annum derived from the following formula:
the interest rate first set forth above divided by the difference of (I minus the Maximum Corporate Income
Tax Rate).
(iv) "Treasury Rate" means the yield on the Treasury Constant Maturity Series with maturity equal to
the Original Payment Date ofthe Prepaid Installment which are principal payments (calculated as of the date
of redemption in accordance with accepted financial practice and rounded to the nearest quarter -year), as
reported in Federal Reserve Statistical Release H.15, Selected Interest Rates of the Board of Governors of
the Federal Reserve System, or any successor publication. If no maturity exactly corresponding to such
Original Payment Date appears in Release H.15, the Treasury Rate will be determined by linear interpolation
between the yields reported in Release H.15. If for any reason Release H. 15 is no longer published, the
Holder shall select a comparable publication to determine the Treasury Rate.
Prepayments of principal shall be applied against the scheduled payments of principal hereunder in
the inverse order of their due dates.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Bank may
declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such
default and acceleration, the Village shall also be obligated to pay (but only from the Budgeted 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 fifteen
(15) days after it is due, then the Village shall also be obligated to pay as a part of the indebtedness evidenced
by this Note a late payment tee in the amount of 4%of delinquent payment, which late payment shall be due
and payable immediately.
Interest at 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 Village 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 VILLAGE BUT SHALL BE PAYABLE SOLELY FROM THE
MONEYS AND SOURCES DESIGNATED THEREFOR PURSUANT TO THE LOAN AGREEMENT.
NEITHER THE FAITH AND CREDIT NOR ANY AD VALOREM TAXING POWER OF THE
BORROWER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS
NOTE OR OTHER COSTS INCIDENTAL HERETO.
All terms, conditions and provisions of the 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 Loan Agreement.
This Note is payable solely from the Budgeted Revenues and Pledged Revenues to the extent
provided in the Loan Agreement. Notwithstanding any other provision of this Note, the Village is not and
shall not be liable for the payment ofthe principal of and interest on this Note or otherwise monetarily liable
in connection herewith from any property other than as provided in the Loan Agreement.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites required to ex ist,
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 has caused this Note to be executed in its name as of the date
hereinafter set forth.
The date of this Promissory Note is July 14, 2008.
Village of Tequesta, Florida
BY: i k
Name: Pat Watkins
Title: Mayor
8O38_G I Information Retum for Tax -Exempt Governmental Obligations !
► Under Internal Revenue Code section 149(e) I 1118 No 'i45 0720
(Rev November 2000) ► See separate Instructions.
department of me neasuy Caution: If the issue rice is under S700,000. use Form 8038 GC
rxernu Revenue service P
Reporting 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 street (or P O box if mail is not delivered to street address) Room/suite 4 Report number
345 Tequesta Drive 3 01
s City, town, of post office. state. and ZIP code 6 Date of issue
Tequesta, Florida 33469 7/14/2008
7 Name of issue 8 CUSIP number
Promissory Note, Series 2008 None
9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer of legal representative
Jody Foresythe, Finance Director ( 561 1 575-6207
Type of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule
11 _ Education . . . . . . . . . . . . . 11
12 Health and hospital . . . . . . . . . . . . 12
13 ❑ Transportation . . . . . . . . . . . . . . . 13 _
14 ❑ Public safety . . . . . . . . . . . . . . . . 14 —
15 ❑ Environment (including sewage bonds) . . . . . . .
16 ❑ Housing . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Utilities 17 j $6,554,935.28
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 on of Obli ations. Complete for the entire issue for which this form is being filed.
(a) Final maturity date (b) issue price (c) Stated redemption (6) weghted (el Y,ec
I ce at maturity average maturity
21 311/2028 S $6,554,935.28 s $6,554,935.28 11.07 ears
• Uses of Proceeds of Bond Issue fincluding underwriters' discount)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . 22
23 Issue price of entire issue (enter amount from line 21, column (b)) 23 56,554,935.28
24 Proceeds used for pond issuance costs (including underwriters discount) 24 30,800
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
28 Proceeds used to advance refund prior Issues 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . 29 307800
30 Nonrefundin proceeds of the issue subtract line 29 from line 23 and enter amount here) 0 6,524,935.28
Description of Refunded Bonds (Complete this part only for refunding bonds.)
31 Enter the remaining weighted average maturity of the bonds to be currently refunded ► 11.74 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 ► 8/14/2008
34 Enter the date(s) the refunded bonds were Issued ► 3/23/1998
MRWff Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 95 �I-
36a Enter the amount of gross proceeds invested or to be invested to a guaranteed investment contract (see instructions) 3,6
► /.
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 urns 37a I
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 ►
39 If the Issuer has elected to pay a penalty in lieu of arbitrage rebate. check box . . . ► ❑
40 If the Issuer has Identified a hedge, check box ► ❑
under penalties of Dequry, i declare that I nave exammed Ims return and accompanying schedules arc statements. and :O line best of my Knowledge
and bet-ef they are truecrxreca and complete
Sign
Here ' _ 7/14/2008 Pat Watkins, Mayor
S,gnatureo of ,ssuer's autnorized reWesentat,ve Date Type m prnr name and title
For Paperwork Reduction Act Notice, see page 2 of the instructions. cat No 63771S corm 8038-G IRev 11 a000l
FUNDING INSTRUCTION LETTER
Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, Florida 32256
Ladies and Gentlemen:
You are hereby requested, authorized and directed to fund an advance in the amount of
$6,554,935.28 under the Loan Agreement, dated July 14, 2008, between you and us, in the
following manner:
Please wire 56,524,935.28 as follows:
U.S. Bank N.A.
ABA: 091000022
BNF: USBANK CT WIRE CLRG
Beneficiary Account Number: 180121167365
Beneficiary Account Address: 777 E. Wisconsin Avenue,
Milwaukee, W1 53202-5300
Account Name: Tequesta 1998/2008 Escrow
Please pay your attorneys Holland & Knight LLP 520,000.00.
3. Please wire $10,000.00 as follows:
Wachovia Bank
ABA #: 063000021
Account Name: Corbett and White, P.A.
Account #: 2165820003340
Dated as of July 14, 2008
VILLAGE OF TEQUESTA, FLORIDA
By:
Mayor
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (this "Agreement"), is dated July 14, 2008,
and is by and between VILLAGE OF TEQUESTA, FLORIDA, a political subdivision of the State
of Florida (the "Village") and U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank"), as escrow agent (the "Escrow Agent").
WHEREAS, the Village has heretofore issued its Water Revenue Bonds, Series 1998 (the
" 1998 Bonds"); and
WHEREAS, the Village has determined to provide for the payment of all of the 1998 Bonds
now outstanding (the "Defeased Bonds") by providing for the deposit of certain moneys with the
Escrow Agent hereunder; and
WHEREAS, a portion of the moneys deposited with the Escrow Agent for such purpose may
be applied to the purchase of certain direct obligations of the United States of America
("Government Obligations"); and
WHEREAS, in order to provide for the proper and timely application of the moneys
deposited in the trust created herein to the payment of the Defeased Bonds, it is necessary for the
Village to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the holders
from time to time of the Defeased Bonds;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein
set forth and in order to secure the payment of the principal of, premium, and interest on the
Defeased Bonds, according to their tenor and effect, the Village does by these presents hereby deliver
to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby
created, and to it and its assigns forever, all and singular the property hereinafter described, to wit:
All right, title, and interest of the Village in and to $6,698,768.61 to be deposited by or on
behalf of the Village with the Escrow Agent hereunder.
1I.
All right, title, and interest of the Village in and to any Government Obligations purchased
from the moneys described in Clause 1 above.
All right, title, and interest of the Village in and to all cash balances held from time to time
hereunder and all income and earnings derived from or accruing to any Government Obligations
described in Clause II above.
IV.
All (i) property which is by the express provisions of this Agreement required to be subject
to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time
hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and
for additional security hereunder or to be subject to the pledge hereof, by the Village or by anyone
in its behalf, and the Escrow Agent is hereby authorized to receive the same at any time as additional
security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent
unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel selected by
the Village to the effect that such acceptance will not cause the interest on the Defeased Bonds to
be included in the gross income of the holders thereof for federal income tax purposes.
TO HAVE AND TO HOLD, all and the same; in trust nevertheless, upon the terms herein
set forth, for the equal and proportionate benefit, security and protection, as herein described, of the
holders or owners from time to time of the Defeased Bonds in the manner herein provided; but if the
Defeased Bonds shall be fully and promptly paid when due or redeemed on their dates of scheduled
maturity or mandatory redemption in accordance with the terms thereof and hereof, then this
Agreement shall be and become void and of no further force and effect, otherwise the same shall
remain in full force and effect, and subject to the covenants and conditions hereinafter set forth.
ARTICLE 1
IJ��� XI (l: SMI
Section 1.01. Definitions. In addition to words and terms elsewhere defined in this
Agreement, as used herein, unless some other meaning is plainly intended, the following terms and
phrases shall have the following meanings:
"Escrow Deposit Trust Fund" means the fund so designated and established under Section
2.01 of this Agreement.
"Government Obligations" means direct obligations of the United States of America that are
not callable prior to maturity by the obligor thereon.
" 1998 Bond Registrar" means U.S. Bank National Association, as paying agent and bond
registrar for the Defeased Bonds.
Section 1.02. Uses of Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neutergenders. Unless the context shall
otherwise indicate, words importing the singular number shall include the plural number and
vice -versa.
ARTICLE 11
ESTABLISHMENT OF FUNDS: FLOW OF FUNDS
Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and
established with the Escrow Agent a special and irrevocable trust fund designated the "Village of
Tequesta, Florida Water Revenue Bonds, Series 1998/2008 Escrow Deposit Trust Fund" to be held
in the custody of the Escrow Agent separate and apart from other funds of the Village or the Escrow
Agent.
Section 2.02. Deposit to Escrow Deposit Trust Fund. On the date hereof the Village shall
deposit or cause to be deposited with the Escrow Agent and the Escrow Agent shall receive
immediately available moneys in the amount of $6,698,768.61, for deposit in the Escrow Deposit
Trust Fund. The funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding
sentence shall, except for a remaining cash balance of $0.61, be immediately invested by the Escrow
Agent in the Government Obligations described on Exhibit A.
Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply
the Government Obh gations and other moneys deposited in the Escrow Deposit Trust Fund, together
with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent
shall not invest any moneys held hereunder or make substitutions of the Government Obligations
hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held
hereunder except as provided in this Agreement.
Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit
of (or purchase of for deposit of) the Government Obligations and moneys in the Escrow Deposit
Trust Fund shall constitute an irrevocable deposit for the benefit of the holders of the Defeased
Bonds and the holders of the Defeased Bonds shall have an express lien on the principal of and
earnings on the Government Obligations and other moneys held in the Escrow Deposit Trust Fund
hereunder until applied in accordance with this Agreement. The Govemment Obligations and
earnings thereon and othermoneys shall be held by the Escrow Agent and used only for the purposes
and in the manner provided in this Agreement.
Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of Defeased
Bonds. The Escrow Agent shall transfer from funds in the Escrow Deposit Trust Fund to the 1998
Bond Registrar the amounts of interest, principal and/or redemption price of the Defeased Bonds
coming due on such dates as shown on Exhibit B. Such amounts shall be applied by the 1998 Bond
Registrar to the payment of all principal of, interest on, and redemption premium, if any, when due
with respect to the Defeased Bonds.
The Village hereby irrevocably elects that the Defeased Bonds shall be called for redemption
on August 14, 2008. The Village hereby directs that at least 30 days before August 14, 2008, a
notice of such redemption in the form attached hereto as Exhibit C shall be mailed by the Escrow
Agent, first class mail, postage prepaid, to all registered owners of Defeased Bonds to be redeemed
at their addressed they appear on the registration books therefore. The Village agrees to pay the
reasonable expenses incurred by the Escrow Agent in connection with such redemption from
lawfully available funds of the Village.
Section 2.06. Transfer of Funds After All Payments Required by This Agreement Are
Made. On August 15, 2008 after the transfer of funds described in Section 2.05 hereof has occurred,
and after all fees and expenses of the Escrow Agent (including any attorneys' fees and expenses) due
hereunder have been paid in full, all remaining moneys and Government Obligations, together with
any income and interest thereon, in the Escrow Deposit Trust Fund shall be transferred to the Village
by the Escrow Agent_
Section 2.07. Deficiencies. If at any time it shall appear to the Escrow Agent that the
available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment
when due to the holders of any of the Defeased Bonds, the Escrow Agent shall notify the Village not
less than fifteen (15) days prior to such payment date and the Village agrees that it will make
available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate
the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on
the Defeased Bonds.
Section 2.08. Escrow Agent and Bond Registrar Fees. The Village hereby agrees to
provide for the payment, from lawfully available funds of the Village, of the compensation due and
owing the Escrow Agent, which compensation shal I be paid in the amount of $1,000.00 on the date
hereof. In no event shall the Escrow Agent have any lien, security interest or right of set-off
whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the
payment of such compensation, or for the reimbursement of any expenses incurred by the Escrow
Agent in connection with this Agreement.
Section 2.09. Bond Registrar. The Escrow Agent and the 1998 Bond Registrar shall
cooperate to cause necessary arrangements to be made and thereafter continued whereby funds
available from the Escrow Deposit Trust Fund shall be made available by the Escrow Agent to the
1998 Bond Registrar, for the payment of the Defeased Bonds as the same shall be come due and
payable and the 1998 Bond Registrar shall make available to the Escrow Agent the information
necessary to allow the Escrow Agent to perform its duties hereunder.
ARTICLE III
CONCERNING THE BANK
Section 3.01. Appointment of Escrow Agent. The Village hereby appoints U.S. Bank
National Association as Escrow Agent under this Agreement.
Section 3.02. Acceptance by Bank. By execution of this Agreement, the Bank accepts its
duties and obligations hereunder. The Bank undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement and no implied covenants or obligations shall be read
into this Agreement against the Bank.
Section 3.03. Liability of Bank. The Bank shall not be liable in connection with the
performance of its duties hereunder except for its own negligence or willful misconduct. The Bank
shall not be liable for any loss or any resulting taxabilityof interest on the Defeased Bonds resulting
from any investment made pursuant to the terms and provisions of this Agreement.
The Bank shall not be liable for the accuracy of the calculations as to the sufficiency of
moneys and of the principal amount of the Government Obligations and the earnings thereon to pay
the Defeased Bonds.
The Bank shall keep such books and records as shall be consistent with prudent industry
practice and shall make such books and records available for inspection by the Village at all
reasonable times. In the event of the Bank's failure to account for any of the Government
Obligations or moneys received by it, said Government Obligations or moneys shall be and remain
the property of the Village for the benefit of the holders of the Defeased Bonds, as herein provided,
and in the event the Bank misapplies any of such funds, the Bank shall remain liable therefore..
Section 3.04. Permitted Acts. The Bank and its affiliates may become the owner of or may
deal in any obligations of the Village described herein as fully and with the same rights as if it were
not the Escrow Agent and 1998 Bond Registrar.
Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting
hereunder may at any time resign and be discharged from the trusts hereby created by giving not less
than sixty (60) days' written notice to the Village specifying the date when such resignation will take
effect, but no such resignation shall take effect (except as provided by Section 3.07(b) hereof) unless
a successor Escrow Agent shall have been appointed by the Village as hereinafter provided and such
successor Escrow Agent shall have accepted such appointment, in which event such resignation shall
take effect immediately upon the appointment and acceptance of a successor Escrow Agent and the
transfer to such successor Escrow Agent of the funds and accounts held by the Escrow Agent
hereunder.
Section 3.06. Removal of Escrow Agent.
(a) The Escrow Agent may be removed at any time by the Village, but the Escrow Agent
shall remain in office (except as provided by Section 3.07(b) hereof) until the appointment and
taking office of a successor Escrow Agent in accordance with the provisions of this Agreement.
(b) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes
incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental
action.
(c) Notwithstanding the foregoing provisions of this Section 3.06, no removal of the
Escrow Agent shall take effect until all fees and expenses of the Escrow Agent to be removed
(including attorneys' fees and expenses) due hereunder shall have been paid.
Section 3.07. Successor Escrow Agent.
(a) When the position of the Escrow Agent becomes or is about to become vacant, the
Village shall appoint a successor Escrow Agent to fill such vacancy.
(b) If no appointment of a successor Escrow Agent shall be made pursuant to the
foregoing provisions of this Section, the holder of any Defeased Bond then outstanding may, or any
Escrow Agent retiring or being removed from office shall, apply to any court of competent
jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring Escrow Agent
of all funds and securities held by it under the provisions hereof into the registry of such court, such
Escrow Agent shall be relieved of all future duties hereunder.
(c) Any corporation into which the Escrow Agent, or any successor to it in the trusts
created by this Agreement, may be merged or converted or with which it or any successor to it may
be consolidated, or any corporation resulting from any merger, conversion, consolidation or
reorganization to which the Escrow Agent or any successor to it shall be a party or any corporation
to which all or substantially all of the corporate trust business of the Escrow Agent or any such
successor shall be transferred shal I be the successor Escrow Agent under this Agreement without the
execution or filing of any paper or any other act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 3.08. Receipt of Proceedings. Receipt of true and correct copies of the Bond
Resolution is hereby acknowledged by the Escrow Agent.
Section 3.09. Indemnification. The Village agrees to indcmnify and save the Bank, its
agents and employees, harmless, to the extent allowed by law, against any liabilities, costs, expenses
and disbursements of whatsoever kind or nature, which it or they may incur in the exercise and
performance of its powers and duties hereunder, and which are not due to its negligence or
misconduct. Indemnification provided under this Section shall survive the termination of this
Agreement.
Section 3.10. Miscellaneous Provisions Regarding Escrow Agent. Whenever the Escrow
Agent shall deem it necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action under this Agreement, such matter may be deemed to be
conclusively established by a certificate signed by an authorized officer of the Village. The Escrow
Agent may conclusively rely, as to the correctness of statements, conclusions and opinions therein,
upon any certificate, report, opinion or other document furnished to the Escrow Agent pursuant to
any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for
acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty
to make any investigation or inquiry as to any statements contained or matters referred to in any such
instrument. The Escrow Agent may consult with counsel, who may be counsel to the Village or
independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder in
good faith in accordance herewith. Prior to retaining such independent counsel, the Escrow Agent
shall notify the Village of its intention.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit
of the Village, the Bank and the holders from time to time of the Defeased Bonds and it shall not be
repealed, revoked, altered or amended without the written consent of all such holders, the Bank and
the Village; provided, however, that the Village and the Bank may, without the consent of, or notice
to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely
affect the exclusion from gross income for federal income tax purposes of the interest on the
Defeased Bonds and the rights of such holders and as shall not be inconsistent with the terms and
provisions of this Agreement, for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b) to grant to, or confer upon, the Escrow Agent for the benefit of the holders of
the Defeased Bonds, any additional rights, remedies, powers or authority that may lawfully
be granted to, or conferred upon, such holders or the Escrow Agent; and
(c) to subject to this Agreement additional funds, securities or properties.
The Bank shall be entitled to rely exclusively upon an unqualified opinion of Holland &
Knight LLP or other nationally recognized bond counsel with respect to compliance with this
Section, including the extent, if any, to which any change, modification, addition or elimination
affects the rights of the holders of the Defeased Bonds, or that any instrument executed hereunder
complies with the conditions and provisions of this Section.
Section 4.02. Severability. If any one or more of the covenants or agreements provided in
this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such
covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the
remaining provisions of this Agreement.
Section 4.03. Agreement Binding. All the covenants, promises and agreements in this
Agreement contained by or on behalf of the Village or by or on behalf of the Escrow Agent shall
bind and inure to the benefit of their respective successors and assigns, and to the benefit of the
holders of the Defeased Bonds, whether so expressed or not.
Section 4.04. Termination. This Agreement (other than Section 3.09 hereof) shall
terminate when all transfers and payments required to be made by the Escrow Agent under the
provisions hereof shall have been made.
Section 4.05. Governing Law. This Agreement shall be governed by the applicable laws
of the State of Florida.
Section 4.06. Execution by Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded for all purposes as an original, and all of which,
together, shall constitute and be but one and the same instrument.
Section 4.07. Notices. Any notice, demand, direction, request or other instrument
authorized or required by this Agreement to be given shall be deemed sufficiently given on the day
sent by registered mail, return receipt requested, addressed as follows or to such other address
furnished in writing by any of the following to all of the following:
If to the Village: Village Manager
Village of Tequesta, Florida
345 Tequesta Drive
Tequesta, FL 33469-3062
If to the Bank: U.S. Bank Corporate Trust Services
225 Water Street, 7th Floor
EX-FL-W WSJ
Jacksonville, FL 32202
(904)358-5362 (direct)
(904)358-5374 (fax)
email: ray.aaronian@usbank.eom
IN WITNESS WHEREOF, the Village and the Escrow Agent have duty executed this
Agreement as of the date first above written.
Village of Tequesta, Florida
By: r ) � ; , c 7-
Mayor
U.S. BANK NATIONAL ASSOCIATION, as
Escrow Agent
By:
Its Authorized Signatory
Section 4.06. B:ecation by Counterparts. This Agreement may be eaecutcd in several
counterparts, each of which shall be regarded for all purposes as an original, and all of vduch,
together; shall constitute and be but one and the some instRmment.
Section 4.07. Notices. Any notice, demand, direction, request or other izs3tnnnent
authorized or required by this Agreement to be given shall be deemed sufficiently given on the day
sent by registered mail, rztrun recespt requested, addressed as folbws or to such other address
furnished in writing by any of the following to all of the following:
If to the village: Village Manager
Village of Tequests, Florida
345 Tegoesta Drive
Tegneesta, FL 33469-3062
If to the Bank U.S. Bank Corporate Trust Services
225 Water Street, 7th Floor
EX-FIrW WSJ
Jacksonville, FL 32202
(904)358-5362 (d rut)
(904)358-5374 (fiat)
email: rayaazonian a nsbank.com
IN WITNXSS WHEREOF, the Village and the Escrow Agent have duly executed this
Agreement as of the date first above written.
Village of Tequesta, Florida
Elr-
Mayor
U.S. BANK NATIONAL ASSOCIATION, as
Escrow
By.
Its Authorized Signatory
Assam YM PrOBWOM
GOVERNMENT OBLIGATIONS TO BE DEPOSITED
INTO ESCROW DEPOSIT TRUST FUND
United States Treasury Certificate of Indebtedness, principal amount of $6,698,768.00, issue date
of July 14, 2008, maturity date of August 14, 2008, interest rate of 1.87%.
DEFEASED BONDS
DEBT SERVICE SCHEDULE
August 14, 2008: Principal, premium and interest of $6,698,768.61
EXHIBIT C
REDEMPTION NOTICE
VILLAGE OF TEQUESTA, FLORIDA
WATER REVENUE BONDS, SERIES 1998
CUSIP
Principal
Maturity
(Prefix is
880764)
Amount
h 1
DQ5
195,000
2009
DR3
205,000
2010
DS 1
215,000
2011
DT9
225,000
2012
DU6
235,000
2013
DV4
250,000
2014
DY8
2,505,000
2022
DZ5
2,655,000
2028
Interest
4.60%
4.70
4.80
4.90
5.00
5.10
5.125
5.125
Notice is hereby given that pursuant to the terms of Resolution No. 7-97/98 adopted by the Village
Council of the Village of Tequesta, Florida on January 9, 1999, as amended and supplemented, the
Bonds described above are called for redemption on August 14, 2008 (the "Prepayment Date") at a
redemption price of 101% of the principal amount thereof plus accrued interest thereon to the
Prepayment Date.
The Bonds so called for redemption should be presented for payment at the office of the
U.S. Bank National Association (the "Trusted') successor in interest to First Union National Bank
of Florida, set forth below, on or after August 14, 2008, and will cease to bear or accrue interest after
that date, whether or not so presented.
If by Mail:
U.S. Bank
Corporate Trust Services
P.O. Box 64111
St. Paul, MN 55164-0111
14800-934-6802
Overnight Mail:
U5. Bank
Corporate Trust Services
60 Livingston Avenue
1st FI - Bond Drop Window
St. Paul, MN 55107
Attachment #4
Legal Opinion
Law
DAvis
ASSOCIATES.P.A.
Keith W. Davis, Esq.
Florida Bar Board Certified Attorney in
City, County and Local Government
Email: keith@davislawteam.com
March 28, 2022
Angela Knecht
Program Administrator
State Revolving Fund Management
3900 Commonwealth Blvd., Mail Station 3505
Tallahassee, Florida 32399-3000
Re: Project No. DW50270 — Village of Tequesta
Water Main Replacement Program Project No. 1 and No. 4
Dear Ms. Knecht:
I am the duly appointed Village Attorney for the Village of Tequesta. The Village
proposes to borrow $2,631,931 from the State Revolving Fund for construction of Village
of Tequesta water distribution facilities. The loan will be secured by the net revenues of
the Village's water system and the pledged revenues are legally available to pledge. The
Village of Tequesta has the legal authority to increase rates to ensure repayment of the
loan.
The pledge on revenues is subject to a prior lien with the following issues: Village
of Tequesta, Promissory Note, Bank of America, Series 2008.
Since,
f Ke ith W.
cc: Matthew Hammond, Utilities Director
7oi Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 1 p 561-586-7116 I f561-586-96ii
* * *. davislawteam. com
LEADING ATTORNEYS IN LOCAL GOVERNMENT LA WAND ETHICS
Attachment #5
Authorization Resolution
No Text
RESOLUTION 11-22
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
TEQUESTA, FLORIDA, RELATING TO THE STATE REVOLVING FUND
LOAN PROGRAM; MAKING FINDINGS; AUTHORIZING THE LOAN
APPLICATION; AUTHORIZING THE LOAN AGREEMENT;
ESTABLISHING PLEDGED REVENUES; DESIGNATING AUTHORIZED
REPRESENTATIVES; PROVIDING ASSURANCES; PROVIDING FOR
CONFLICTS, SEVERABILITY, AN EFFECTIVE DATE, AND FOR OTHER
PURPOSES.
WHEREAS, Florida Statutes provide for loans to local government agencies to
finance the construction of water facilities; and
WHEREAS, Florida Administrative Code rules require authorization to apply for
loans, to establish pledged revenues, to designate an authorized representative; to
provide assurances of compliance with loan program requirements; and to enter into a
loan agreement; and
WHEREAS, the State Revolving Fund loan priority list currently designates Project
No. DW50270 as eligible for available funding; and
WHEREAS; the Village of Tequesta, Florida, intends to enter into a loan
agreement with the Department of Environmental Protection under the State Revolving
Fund for Project No. DW50270 financing.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, FLORIDA, AS FOLLOWS:
SECTION I. The foregoing findings are incorporated herein by reference and
made a part hereof.
SECTION II. The Village of Tequesta, Florida, is authorized to apply for a loan to
finance Project No. DW50270.
SECTION III. The revenues pledged for the repayment of the loan are net water
system revenues after payment of debt service on the Village's Promissory Note, Bank
of America, Series 2008.
SECTION IV. The Village Manager is hereby designated as the authorized
representative to provide the assurances and commitments required by the loan
application.
SECTION V. The Mayor of Tequesta is hereby designated as the authorized
representative to execute the loan agreement which will become a binding obligation in
accordance with its terms when signed by both parties. The Mayor is authorized to
represent the Village in carrying out the Village's responsibilities under the loan
No Text
agreement. The Mayor is authorized to delegate responsibility to appropriate Village staff
to carry out technical, financial, and administrative activities associated with the loan
agreement.
SECTION VI. The legal authority for borrowing moneys to construct this Project is
section 166.111 Florida Statutes.
SECTION VII. All resolutions or part of Resolutions in conflict with any of the
provisions of this Resolution are hereby repealed.
SECTION VIII. If any section or portion of a section of this Resolution proves to
be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the
validity, force, or effect of any other section or part of this Resolution.
SECTION IX. This Resolution shall become effective immediately upon its
passage and adoption.
No Text
RESOLUTION
Date
11-22 4/14/2022
Motion Council Member Frank D'Ambra Second Vice -Mayor Kyle Stone
FOR
AGAINST
ABSENT
CONFLICT
Mayor Molly Young
Vice -Mayor Kyle Stone
Council Member Laurie Brandon
Council Member Frank D'Ambra
El
El
Council Member Aaron Johnson
®
11
The Mayor thereupon declared the Resolution duly passed and adopted.
MAYOR OF TEQUESTA:
Molly Youn
Q'Gp�,P�q'gQ
SEAL
INCORPORATED:'
ATTEST:
yl,u a) Ct,09-t" ak-
Lori McWilliams, MMC
Village Clerk
No Text
Attachment #6
Statement of Revenues, Expenses and
Changes in Net Position (FY20 & 21)
VILLAGE OF TEQUESTA, FLORIDA
STATEMENT OF REVENUES, EXPENSES AND CHANGES IN NET POSITION
PROPRIETARY FUNDS
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2020
Operating Revenues
Charges for services:
Metered water sale
Tap fees
Stormwater fees
Refuse and recycling fees
Total Operating Revenues
Operating Expenses
Cost of sales and services:
Plant production
Distribution
Stormwater
Purchased services
Management services
Administration
Depreciation/amortization
Total Operating Expenses
Operating Income (Loss)
Non -Operating Revenues (Expenses)
Miscellaneous revenue
Investment earnings
Interest expense
Legal settlement
Total Non -Operating Revenues (Expenses)
Change in Net Position
Net Position - Beginning
Net Position - Ending
Business -type Activities
Nonmajor
Water Refuse &
Fund Stormwater Recycling Total
$ 6,288,962 $
- $
S 6,288,962
81,131
-
81,131
-
432,355
-
432,355
-
-
487,874
487,874
6,370,093
432,355
487,874
7,290,322
1,876,089
-
-
1,876,089
1,719,865
-
-
1,719,865
-
319,181
-
319,181
-
-
488,171
488,171
598,596
14,292
8,448
621,336
853,617
-
-
853,617
699,645
120,303
-
8I9,948
5,747,812
453,776
496,619
6,698,207
622,281
(21,421)
(8,745)
592,115
46,473
-
-
46,473
50,469
8,180
684
59,333
(146,800)
-
-
(146,800)
(69,590)
-
-
(69,590)
(119,448)
8,180
684
(110,584)
502,833
(13,241)
(8,061)
481,531
18,805,395
2,047,603
126,638
20,979,636
$ 19,308,228 S
2,034,362 S
118,577
S 21,461,167
The accompanying notes are an integral pan of these financial statements.
26
VILLAGE OF TEQUESTA, FLORIDA
STATEMENT OF REVENUES, EXPENSES AND CHANGES IN NET POSITION
PROPRIETARY FUNDS
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2021
Operating Revenues
Charges for services:
Metered water sale
Stormwater fees
Refuse and recycling fees
Total Operating Revenues
Operating Expenses
Cost of sales and services:
Plant production
Distribution
Stormwater
Purchased services
Management services
Administration
Depreciation/amortization
Total Operating Expenses
Operating Income (Loss)
Non -Operating Revenues (Expenses)
Investment earnings
Interest expense
Loss on disposal of capital assets
Capital contributions - fees
Capital contributions - grants
Transfers out
Miscellaneous revenue
Total Non -Operating Revenues (Expenses)
Change in Net Position
Net Position - Beginning
Net Position - Ending
Business -type Activities
Nonmajor
Water Refuse &
Fund Stormwater Recycling Total
S 6,058,053 S - S 6,058,053
- 450,271 450,271
- - 486,643 486,643
6,058,053 450,271 486,643 6,994,967
2,282,039
- 2,282,039
1,316,199
- - 1,316,189
296,038 - 296,038
-
- 502,749 502,749
836,872
85,873 8,550 931,295
522,683
- - 522,683
681,580
132,373 813,953
5,639,363 514,284 511.299 6,664,946
418,690 (64,013) (247656) 330,021
6,671
883
363
7,917
(131,391)
-
-
(131,391)
(9,927)
(10,449)
(20.375)
583,645
583,645
3,542
15,615
-
19,157
(21,891)
-
(21,891)
64,074
-
-
64,074
494.723
6,050
363
501,136
913,413
(57,963)
(24,293)
831,157
19,308,228
2,034.362
118,577
21,461,167
S 20,221,641 $
1,976,399 S
94,284 $
22,292,324
The accompanying notes are an integral part of these financial statements.
26
Attachment #7
Financial Statement Reconciliation
Part V - Supplemental Information
Schedule of Actual Revenues and Debt Coverage
Village of Tequesta, Florida
Operating Revenues (Source)
Water Sales
Interest Earnings
Other Income or Revenue (identify)
Miscellaneous Revenue
Total Revenues
Operating Expenses (excluding interest on debt, depreciation,
and other non -cash items)
Plus:
Legal Settlement
Transfers Out
Less:
Depreciation/Amortization
Interest Expense
Total Operating Expenses as noted above
Net Revenues
Debt Service (including any required coverage)
Fiscal Year 2020
Fiscal Year 2021
$ 6,298,962 $ 6,058,053
50,469 6,671
46,473 64,074
1 6,385,904 2 6,128,798
5,747,812 5,639,363
69,590 -
- (21,891)
(699,645)
(681,580)
(146,800)
(131, 391)
4,970,957 3
4,804,501
$ 1,414,947 $
1,324,297
$ 562,762 $
562,837
Does not include revenue Tap Fees of $81,131.
Does not include non -operating revenue Capital Contributions - fees or grants of $583,645 or $3,542.
Does not include non -operating expenses of Loss on Disposal of $9,927.
Attachment #8
Explanation of Projected Revenues &
Debt Coverage
Ln
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