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HomeMy WebLinkAboutDocumentation_Regular_Tab 14_06/12/20081. VILLAGE COUNCIL MEETING: VILLAGE OF TEQUESTA AGENDA ITEM TRANSMITTAL FORM Meeting Date: 6/12/08 Meeting Type: Regular Ordinance #: Click here to enter text. Consent Agenda: Choose an item. Resolution #: 30-08 Originating Department: Manager 2. AGENDA ITEM TITLE: (Wording form the SUBJECT line of your staff report) Resolution 30-08, Authorizing the Refunding of the Village's Water Revenue Bonds Series 1998 and a Loan in the Principal Amount of not Exceeding $6,800,000 to Refinance the Village's Water Revenue Bonds, Series 1998 3. BUDGET /FINANCIAL IMPACT: Account #: Click here to enter text. Amount of this item: Click here to enter text. Current Budgeted Amount Available: Amount Remaining after item: Click here to enter text. Click here to enter text. Budget Transfer Required: Choose an Appropriate Fund Balance: Choose an item. item. 4. EXECUTIVE SUMMARY OF MAJOR ISSUES: (This is a snap shot description of the agenda item) Resolution 30-08, Authorizing the Refunding of the Village's Water Revenue Bonds Series 1998 and a Loan in the Principal Amount of not Exceeding $6,800,000 to Refinance the Village's Water Revenue Bonds, Series 1998 5. APPROVALS: Dept. Head: l~ L finance Director: Attorney: (for legal sufficiency) Village Manager: ~'i--- - _ ~ .~ • SUBMIT FOR COUNCIL DISCUSSION: • APPROVE ITEM: • DENY ITEM: ^ d Yes d No ^ MEMORANDUM Village of Tequesta Manager's Office TO: Honorable Mayor and Village Council Members FROM: Lori McWilliams, Village Clerk DATE: June 6, 2008 SUBJECT: Res 30-08 Water Revenue and Bond Series 1998 In order to obtain funds to refund the Village's Water Revenue Bonds, Series 1998 (the "Series 1998 Bonds"), authorization is requested 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. The Loan shall be in the nature of a line of credit under which the Village may draw funds as needed. 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. RESOLUTION N0.30-08 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 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 W{TH BANK OF AMERICA, N.A.; AUTHORIZING AN INTEREST RATE HEDGE TRANSACTION WITH BANK OF AMERICA, N.A.; 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. The Series 1998 Bonds to be refinanced (the "Refunded Bonds") shall be identified as provided in the Loan Documents hereinafter authorized and defined. The Loan shall be in the nature of a line of credit under which the Village may draw funds as needed. 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. Section 4: Loan Aareement. Escrow Deposit Agreement, Promissory Note and -1- Interest Rate Hedcte. 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 ISDA Master Agreement with Bank of America, N.A. in the form attached hereto as Exhibit D (collectively with an associated Schedule and Confirmation, the "ISDA"). The forms and terms of the Loan Agreement, Promissory Note and ISDA (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. The Authorized Signatory is authorized to approve a transaction pursuant to the ISDA (including execution of a schedule and confirmation), consisting of an interest rate swap relating to the Loan, whereby the interest rate on the loan will be synthetically converted to approximate a fixed rate, and to execute appropriate documentation in respect thereof Section 5: Severabilitv. 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. -2- ITEM 14 AMENDED BACKUP 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 1N 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 at least $ The Series 1998 Bonds to be refinanced (the "Refunded Bonds") shaft 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. 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 anattorney-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 Of1:ICe 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. 3 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 4 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 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 shalt 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 5 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. Q) 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 tong 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 6 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. 7 Section 3.08 Officers and Employees of the Village Exempt from Personal Liabili 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 ofi'icer, 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 Davs. 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. 8 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 Nate 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 9 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 directly or indirectly by the United States of America or any agency or instrumentality thereof, or (ii) 5°l0 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)(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. 10 (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. (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 S_upportinc,LDocuments. 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): 11 (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 12 (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 Vi{{age 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 $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. 13 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. 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 A~'eement. 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. 14 Section 7.08 Binding`Effect: Assi 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 Parry 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 Attornevs 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 parry. 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 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. 15 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: BAND OF AMERICA, N.A. By: Name: Linda A. Mason Title: Senior Vice President 16 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 $ 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 r, 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 ~Ilage. 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 ~Ilage 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 ~Ilage 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 Vllage 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 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 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 ~Ilage 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 By: Name: Title: Mayor ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT (this "Agreement"), is dated _, 2008, and is by and between VI9LLAGE 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 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 $ by or on behalf of the Village with the Escrow Agent hereunder. to be deposited 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 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 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. 2 Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and vice-versa. ARTICLE II ESTABLISHMENT OF FUNDS: FLOW QF 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 $ ,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. 3 The ~Ilage 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 ali 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 ~Ilage 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 ~Ilage, 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 4 CONCERNfNG 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 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 ~Ilage, 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. 5 (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 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. 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 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 6 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 7 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: 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 By: Mayor 8 U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent By: Its Authorized Signatory EXHIBITA DEFEASED BONDS EXHIBIT B GOVERNMENT OBLIGATIONS TO BE DEPOSITED INTO ESCROW DEPOSIT TRUST FUND EXHIBIT C DEFEASED BONDS DEBT SERVICE SCHEDULE EXHIBIT E