HomeMy WebLinkAboutAgreement_General_07/14/2008_Utility Bond ReferendumLOAN 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 I
DEFINITION OFTERMS
Section 1.01 Definitions. Teams 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.
"Band Counsel" means an attorney-at-law or f rm 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 19$6, 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 pf 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 taw 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" shalt 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 $5,554,935.28.
"Loan Documents" means this Agreement and the Note.
"Non-Ad Valorem Revenues" means al l 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 IVlanager
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 far purposes of Sections 5.02 and 5.07
hereof, Operating Expenses shaft 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 Headi~s. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
a part hereof, shall not in any way modi fyor 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
REPRESENTATIDNS OR VILLAGE
The Village represents and warrants to the Bank that:
Section 2.01 Powers o Village. The Village is a political subdivision and municipality,
duly organized and validly existing under the laws ofthe State. The Village has the power to borrow
the amount provided far 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 ofapplicable 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
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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 Nate has been duly
authorized, executed, issued and delivered to the Bank and constitutes the legal, valid and binding
obligation of the V illage 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 ofAmerica and to otherappiicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights, heretofore or hereinafterenacted,
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 ViNage 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 Violati~ofLaworCo to rect. The Village is notindefault in any material
respect under any agreement or other instnunent 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 '~gtened Litigation. There are no actions or proceedings
pending against the Village araffecting the Village or, to the knowledge ofthe 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 ofthe Village from. that presented
in such information.
ARTICLE III
COVENANTS OF THE VILLAGE
Section 3.01. Affirmative ~,ovenan~. Far 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:
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(a) Pa ent. The Village shall pay the principal of and the interest on the Note at the
time and place and in the mariner 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 Laan.
(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 bean paid in full.
(e) cor s. The Village agrees that any and all retards of the Village with respect to
the Loan shall be open to inspection by the Bank or its representatives at ail 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 wish 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 V illage
shall provide the Bank with the Village's audited financial statements for each frscal year ending on
or after September 30, 2008 within 270 days after the end thereof.
(g) Notice~f Liabilities. The Village shall promptly inform the Bank in writing of any
actual ar 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) ComRl,~ance 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.
(j) Payment of Document Taxes. In the event the Note or this Ageement 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 Coven~g. 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 rid Ex rises. The Viliage hereby agrees to pay the fee of counsel
to the Bank in a~nnection 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 Viltage 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 shalt not debit the V illage'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. Re istratiogand Fxc~ian¢e of Note. The Note is owned by Bank of America,
N.A. The ownership of the Note may only be transferred, and the Viltage 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 destroy, stolen or lost, the V illage shal l 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 Viltage 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. Nothi rig herein. shat t, however, prevent the V iltage
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, obligationor 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, ifrequired, from the Non Ad Valorem Revenues, amounts sufficient to pay the principal
of and interest on the Note and other amounts owed underthis 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 Qfficers and Employees of the Villag~~xempt 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, ofthe
Village under or by reason ofthe 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 far, 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.
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(a) The Village herebycovenants 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 far federal income
tax purposes to the extent set forth in the Code, and chat 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 firm gross
income for federal income tax purposes depends, in part, upon compliance with the arbitrage
limitations imposed by Sections 103(b)(2) and l48 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 ofthe 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 Cabe. The Vitlage 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 ofthe 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 an 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 C}ther Tax Matters executed by the Village in connection with the Note.
The Vitlage understands that the foregoing covenants impose continuing obligations an it to
comply with the requirements of Section I03 and Part N of Subchapter B of Chapter 1 of the Cade
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 Hiles, 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 1.41 and 145 of the Code.
(d) The Village will not use ar 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 alt investment income eamed 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 V it loge will not use or permit the use of any portion of the proceeds of the Note,
including all investment income eamed 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 wilt 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 wilt 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 ar proposed by the Department of
the Treasury or the lntemal 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) alt. or anyportion of the principal or interest is or will be guaranteed
directtyor indirectly by the United States ofAmerica or any agency or instrumentality thereof or (ii)
5% or mare 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 ar 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.
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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}(3xB)(i) of the Code,
and the Villoge 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 shalt 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 ar incurred by the Village except upon the fallowing
conditions:
(1) The amount ofNet Revenues for the immediately preceding Fiscal Year or any twelve
(12) consecutive months selected by the Vil loge 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 Mote 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 ifthe 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.
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ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder are subject to the following conditions
precedent:
Section 4.01 Repre~ntatigns 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 hereofthe 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 Supporti g Document, 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) TheopinionoftlreattorneyfortheVillageregardingthedueauthorization,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 fmm 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 e a .The Bank hereby agrees to loan to the Village the Loan Amount
on the date hereofupon 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 Descri trp •on 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.
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ARTICLE VI
EVENTS 4F DEFAULT
Section 6.01 Gene . An "Event of Default"' shall be deemed to have occurred under this
Agreement if
(a) The Village shall fail to make any payment ofthe 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 shalt 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 aRer (i) notice
thereofto 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 illage in this
Agreement or the Note which sha[1 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 V illage, 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 taw 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.
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 mayalso seek enforcement ofand 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
cumulative and not exclusive of any remedies provided by law or in equity.
Section 7.02 Amendments. ~hantees 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 orbehest.
Section 7.03 Counte 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 ofths
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
Section 7.04 verabilit~ 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 abtigations contemplated hereby
be enforced, as if such illegal or invalid clause, provision or section had not been contained herein.
Section 7.05 Term of A¢ree__nent• Except as otherwise specified in this Agreement, this
Agreement and all representations, warranties, covenants and agreements contained herein ar 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 tang as the Nate is outstanding.
Section 7.06 is . Al[ notices, requests, demands and other communications which are
required ar 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 tine 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 Qpnlicable L,aw~ Ve_ sue. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State. The V i page 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; Assign_r_r~ent. 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 A~eement. 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 )+trrtherAssurances. The parties to this Agreementwill 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 Jay 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 terns "parties" shall include any pazent
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
W W ITNESS W HEREOF, the parties have executed this Agreement to be effective between
them as of the date of first set forth above.
VILLAGE OF TEQUESTA, FLORIDA
Name: Pat Watkins
Title: Mayor
BANK OF AMERICA, N.A.
By:
Name: Holly L. Kuhlman
Title: Senior Vice President
15
1NWf'INESS WHEREOF,thepaitieshevee~aubedthisAg~roeme~~u~ei~ecdvebetwean
them as of the dace of first set forth above.
TOWN OF LAKH PARK, FLORIDA
Name: Ikaca 1?aBoia
Tide: Mayor
HANK OF AbtTRK•A, N.A
~~~ ~
rte: Liada A. Mason
Title: Senior Vue Pnsidau
1s
FUNDING WSTRUCTION LET"tER
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: 09 1000022
BNF: USBANK CT W[RE CLRG
Beneficiary Account Number: 1 801 2 1 167365
Beneficiary Account Address: 777 E. Wisconsin Avenue,
Milwaukee, WI 53202-5300
Account Name: Tequesta 1998/2008 Escrow
2. Please pay your attorneys Holland & Knight LLP $20,000.00.
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 l4, 2008
VILLAGE OF TEQUESTA, FLORIDA
Mayor
PROMISSORY NOTE (2008)
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker, Village of Tequesta,
Florida (the "Village"),apolitical 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 Tlaxability) based upon a year of 360 days for the actual number ofdays
elapsed. This Note is issued in conju~tction wi[h 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. j
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:
(I) "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
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 I, 2028 (the "Maturity Date").
All payments by the Village pursuant to this Note shall apply first to accrued interest, then to other
charges dice the Bank, and the balance thereof shall apply to the principal sum due.
Upon the occurrence of a Determination ofTaxability, 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 withrespecttothisNote. This adjustmentshallsurvive
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 he 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 Sank 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 arrtount will be the last day of the interest period.
(ii) "Prepaid Installment" means the attmunt ofthe prepaid orredeemed 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 Race).
(iv) "Treasury Rate" means the yield on the Treasury Constant Maturity Series with maturity equal to
the Origina! Payment Date ofthe Prepaid installrrtent 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. l5, Selected Interest Rates of the Board of Governors of
the Federal Reserve System, or arty successor publication. If no maturity exactly corresponding to such
Original Payment Date appears in Release H. I5, 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 he 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 Vllage shall also be obligated to pay (but only from the Budgeted Revenues}
as part of the indebtedness evidenced by this Note, alt costs of collection and enforcement hereof, including
such fees as maybe 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
(I 5) days after it is due, then the Yltage 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 bylaw 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 [S PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON TH]S
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 ofand interest on this Note or otherwise monetarily liable
in connection herewith from any property other than as provided in the Loan Agreement.
This Notc 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 W ITN ESS W HEREOF, 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 l4, 2008.
Village of Tequesta, Florida
Name: Pat Watkins
Title: Mayor
Form 8038-G ( Information Return for Tax-Exempt Governmental Obligations
- Under Internal Revenue Code section 149(e) OMB No. 15a5-0~zo
(Rev November 2000) + - See separate Instructions.
Depanment of the treasury I Caution: If the issue pace is under S t00.t~D, use Form 8038-GC
internal Revenue Servu:e
^-rta.^ rceporitng Aurnortty If Amended Return check here - []
1 Issuer's name I 2 Issuer's employer identification rtumber
VILLAGE OF TEQUESTA, FLORIDA I! 59:6044061
3 Number and street (or P O box if mail s not delivered to street address) Roam/suite 4 Report number
345 Tequesta Drive 3 01
S City, town, or post office, state, and ZIP code 6 Date of issue
Tequesta, Florida 33469 7!14!2008
7 Name or issue
9 Name anr! tine o/ officer or legal representative whom the IR$ may caN for more information
Jody Foresythe, Finance Director
11
12
13
14
15
16
17
18
19
20
8 CUSIP number
None
10 Telephone number of officer a legal represenlanve
( 561 ) 575-6207
~) See instructions and attach schedule
Education
U Health and hospital
^ Transportation
^ Public safety .
^ Environment (including sewage bonds)
^ Housing
~ Utilities
^ Other. Describe -
If obligations are TANS or RANs, check box - ^ If obligations are BANS, check box - ^
!f nbLa~tUOns arc in the form of a lease or installment sale, check box - ^
Description of Obligations. Complete for the entire issue for which this form is
filed.
(a) Final matwrty date I Ib) Issue pace I (c) Staled retlempuon (tl) Weighted (e) Vield
pace at maturity average mawnty
22 Proceeds used for accrued interest Z1_
23 Issue price of entire issue (enter amount from line 21, column (b)) 23 56,554,935.28
24 Proceeds used for bond 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) h- 29_f 30,800
30 Nonrefundina proceeds of the issue (subtract line 29 from line 23 and enter amount here) 130 6,524,935.28
31 Enter [he 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
35 Enter the amount of the state volume cap allocated [o the issue under section 141(b)(5) !~35
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see insUUCtions) ' 36~-
b Enter the final maturity date of the guaranteed investment Contract -
37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a
b If this issue is a loan made from the proceeds of another tax-exempt issue. check box - ^ and enter the name of the
issuer - and the date of the issue -
38 If the issuer has designated [he 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 had e, check box - ^
Under penalties Of penury. I declare that I have examined the return and aCCOmpanyrng schedules and statements. and to the bast OI my knowledge
and Defer they are true. correct. ann complete
Sign
Here ' / -r - ;~;~I, `, 7/14/2008 , Pat Watkins, Mayor
-L '
Signature of issuer's authoraed representaiwe Date Type a print name and tine
For Paperwork Reduction Act Notice, see page 2 of the Instructions. cat run 637735 Form 8038-G (aev r[-20001
FLR~1D[NG llVSTRUCTION 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: 180121 167365
Beneficiary Account Address: 777 E. Wisconsin Avenue,
Milwaukee, WI 53202-5300
Account Name: Tequesta 1998/2008 Escrow
Please pay your attorneys Holland & Knight LLP $20,000.00.
Please wire $!0,000.00 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
Mayor
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT {this "Agreement"), is dated July 14, 2008,
and is by and between VILLAGE OE TEQUESTA, FLORIDA,. a political subdivision of the State
of Florida (the "Village") and U.S. BANK NATIONAL ASSOCIATIQN, 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 alt of the 1998 Bonds
now outstanding (the "Defeased Bonds") by providing for the deposit of certain moneys with the
E~row Agent hereunder; and
WHEREAS, a portion ofthe 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, alt and singular the property hereinafter described, to wit:
I.
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.
II.
All right, title, and interest of the Viltage in and to any Government Obligations purchased
from the moneys described in Clause I above.
III.
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 li above.
fV.
Atl (i) property which is by the express provisions of this Agreement required to be subject
to the pledge hereof and (ii) additional properly 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 propertydescribed 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 Bands in the manner hereon provided; but if the
Defeased Bands 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 shat[ be and became 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
DBE 'INITIONS
Section 1.03. Definitions. In addition to words and terms elsewhere defined in this
Agreement, as used herein, unless some other meaning is plainly intended, the fallowing 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 ofthe 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 the plural number and
vice-versa.
2
ARTICLE li
ESTABLISHMENT OF FUNDS: F~~4W OF FUNDS
Section 2.QI. 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 1998/200$ 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 Vi llage shall
deposit or cause to be deposited with the Escrow Agent and the Escrow Agent shall receive
immediately available moneys in the amount of $6,698,76$.61, far 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$0.61, be immediately invested by the Escrow
Agent in the Government Obligations described on Exhibit A.
Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply
the Govemment Obligations and other moneys de~sited in the Escrow Deposit Trust Fund, together
with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent
shall not invest any moneys held hereunder or make substitutions of the Government Obligations
hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held
hereunder except as provided in this Agreement.
Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit
of (or purchase of for deposit of) the Government Obligations and moneys in the Escrow Deposit
Trust Fund shall constitute an irrevocable deposit for the benefit of the holders of the Defeased
Bonds and the holders of the Defeased Bonds shalt have an express lien on the principal of and
earnings on the Government Obligations and other moneys held in the Escrow Deposit Trust Fund
hereunder until applied in accordance with this Agreement. The Government Obligations and
earnings thereon and othermoneys shalt be held by the Escrow Agent and used only for the purposes
and in the manner provided in this Agreement.
Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of Defeased
Bonds. ?he Escrow Agent shalt transfer from funds in the Escrow Deposit Trust Fund to the 199$
Bond Registrar the atnounts of interest,. principal andlor redemption price of the Defeased Bonds
coming due on such dates as shown on Exhibit B. Such amounts shall be applied by the I998 Bond
Registrar to the payment of atl principal of, interest on, and redemption premium, if any, when due
with respect to the Defeased Bonds.
The Village hereby irrevocablyelects 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 al l registered owners of Defeased Bands 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 1 S, 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, ail remaining moneys and Government Obligations, together with
any income and interest thereon, in the Escrow Deposit Trust Fund shall be transfer ed 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 Trost Fund will. not be sufficient to make any payment
when due to the holders of any of the DefeasedBonds, the Escrow Agent shall notify the Village not
less than fifteen (IS) 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 ro 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 far 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
1.998 Bond Registrar, for the payment of the Defeased Bonds as the same shall be come due and
payable and the 1998 Bond Registrar shalt make available to the Escrow Agent the information
necessary to allow the Escrow Agent to perform its duties hereunder.
ARTICLE lII
CONCERNING THE B~IVK
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. Sy 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.
4
Section 3.03. Liability of Bank. The Bank shall not be liable in cortnection with the
performance of its duties hereunder except for its own negligence or willful misconduct. The Bank
shall not be liable for any. toss 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 suf~'iciency of
moneys and of the principal amount of the Govennment 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. Ln 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 shalt 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 eR'ect (except as provided by Section 3.07(b) hereof) unless
a successor Escrow Agent shall have been appointed by the ~ Rage 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 maybe 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 became 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, maybe merged or converted or with which it or any successor to i[t may
be consolidated, ar 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 shall 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. lndemnifcation. The Village agrees to indemnify and save the Bank, its
agents and employees, harrttless, 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
perfotinance 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 shalt not be liable for
actingor 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.
6
ARTICLE IV
MISC~LL,LANEOUS
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 Escraw Agent for the benefit of the holders of
the Defeased Bonds, any additional rights, remedies, powers or authority that may iawfutly
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 taw, such
covenant or agreement shall be deemed to be separate and shallrn 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 orby 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 nat.
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.
7
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
famished 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.com
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
By: , :~ ~ ,~:~zk.~..n~.
Mayor
U.S. BANK NATIONAL ASSOCIATION, as
Escrow Agent
By:
[ts Authorized Signatory
Seetlon 4.06. E:ecntiog by Counterparts. This Agreement maybe executed in several
counterparts, each of which shall be regarded for all ptnrposes as an original, sad all of which,
together; shall constitnte sad be but one and the same iastauncnt.
Seetlan 4.07. Notkes. Any notice, demand, direction, request or other i~tmm~ait
sutl1oriud or required by this A,gnoemeat to be given shall be deemed sufficiently given on the day
sent by registered mail, return receipt requestied, addressed as follows or tia such other address
fiaaished in writing by say of the following to all of the following:
If to the Village: Village Menages
Village of Tequests, Florida.
345 Toquests Drive
Teclnests, FL 334b9~-3062
If to the Ban]G U.S. Bank Corporate T3rust Services
225 Water Stoeet, 7th Floor
F.X-FirWVi/S.I
Jacksonville, FL 32202
(904)358-5362 (direct)
(904)358-5374 (fa~c)
email: rayaaroniaa(a~usbaokcom
1N WTPNESS WHEREOF, the village sad the Escrow Ag~at have duly executed this
Agreement as of the date first above written.
Village of Tequesta, Florida
Mayor '
U.S. BANK NATIONAL ASSOCIATION, ss
Escrow
By.
Its Authoti~od Signatoay
p~pn18R.
,~~~~
8
EXHIBIT A
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 Interest
(Prefix is Amou~ll Ma ch at
gg0764~
DQS 195,000 2009 4.60%
DR3 205,000 2010 4.70
DS 1 215,000 2011 4.80
DT9 225,000 2012 490
DU6 235,000 20 i 3 5.40
DV4 250,000 2014 5.10
DY8 2,505,000 2022 5.125
DZS 2,655,000 2028 5.125
Notice is hereby given that pursuant to the terms of Resolution No. 7-97198 adopted by the V llage
Council of the Village of Tequesta, Florida on January 9, 1998, as amended and supplemented, the
Bonds described above are called for redemption on August 14, 2008 (the "Prepayment Date") at a
redemption price of l01 % 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 "Trustee") successor in interest to F'srst Union National Bank
of Florida, set forth below, on or after August 14, 2008, and will cease to bear or accrue interest aRer
that date, whether or not so presented.
If by Mail: Overnight Mail:
U.S. Bank. US. Bank
Corporate Trust Services Corporate Trust Services
P.O. Box 54111 60 Livingston Avenue
St. Paul, MN 55164-011.1 1st FI -Bond Drop Window
St. Paul, MN 55107
1-800-934-6802