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2004-007 Loan Agrmt w/Wachovia BankRESOLUTION 07-2004 ~~ ~t `tr r ~: A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA AUTHORIZING ISSUANCE OF A CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2004 OF THE VILLAGE AND THE EXECUTION AND DELIVERY OF THE ATTACHED LOAN AGREEMENT IN AN AMOUNT NOT TO EXCEED $230,000 BETWEEN THE VILLAGE AND WACHOVIA BANK, NATIONAL ASSOCIATION FOR THE FINANCING OF CAPITAL PROJECTS; ACCEPTING THE PROPOSAL OF WACHOVIA BANK, NATIONAL ASSOCIATION FOR THE PURCHASE OF THE NOTE AND THE MAKING OF THE LOAN; APPROVING THE FORM OF LOAN AGREEMENT AND NOTE; PLEDGING THE PROCEEDS OF THE FRANCHISE FEES AND PUBLIC SERIVCE TAXES OF THE VILLAGE FOR THE PAYMENT THEREOF AND CONTAINING OTHER PROVISIONS RELATING TO THE NOTE; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, that: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of Section 166, Florida Statutes, and other applicable provisions of law (the "Act"). SECTION 2. FINDINGS. It is hereby ascertained, determined and declared that: A. The Village has received a proposal of Wachovia Bank, National Association (the "Proposal") to provide- the- Village with- the necessary financing .(the "Loan") for the. acquisition. and. construction various public safety vehicles and building maintenance projects (the "Project"). The proposal is attached hereto as Exhibit A. B. It is hereby determined to be in the best financial interest of the Village to accept such Proposal. C. It is necessary and desirable to provide for the execution and delivery of a Loan Agreement and the issuance of the Series 2004 Note of the Village to implement the Loan. Amounts due under the Loan Agreement and the Series 2004 Note shall be payable from and secured by a pledge of (i) all fees derived by the Village from the granting of franchises to provide telephone and telegraph service, electric light and power facilities and facilities for the purchase, transmission, distribution and sale of natural gas within the Village (the "Franchise Fees"), including but not limited to those fees derived pursuant to Resolution No. 5-90 adopted by the Village Council on March 8, 1980, Ordinance No. 14- 80, enacted by the Village Council July 24, 1980 and Ordinance No. 11-80 enacted by the Village Council on May 22, 1980, and (ii) all of the proceeds derived by the Village from imposition of a tax on the purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), pursuant to the provisions of Section 166.231, Florida Statutes, as amended and supplemented (the "Public Service Taxes") and (c) amounts on deposit in the Sinking Fund which may be created under such Loan Agreement in an amount sufficient to pay the principal and interest on the Series 2004 Note (the "Pledged Funds"), which pledge of the Franchise Fees and the Public Service Taxes shall be on a parity with the pledge thereof to secure the Village's outstanding promissory notes which are secured by a pledge of the Franchise Fees and the Public Service Taxes. D. The principal of and interest on the Series 2004 Note and all required sinking fund, reserve and other payments shall be payable solely from the Pledged Funds as herein provided. The Village shall never be required to levy ad valorem taxes on any property within its corporate territory to pay the principal of and interest on the Series 2004 Note or to make any of the required sinking fund, reserve • or other payments, and such Series 2004 Note shall not constitute a lien upon any property owned by or situated within the corporate territory of the Village. E. It is necessary, desirable and in the best interest of the Village and its inhabitants that the Series 2004 Note be issued to fund the Project. F. The Village does not expect to issue more than ten million dollars in tax-exempt obligations during the calendar year ending December 31, 2004. SECTION 3. AUTHORIZATION OF SERIES 2004 NOTE. The issuance by the Village of its not exceeding $230,000 Capital Improvement Revenue Note, Series 2004 (the "Series 2004 Note") of the Village, for the purpose stated above; to be dated, to bear interest at a rate or rates not exceeding the maximum legal rate per annum, to be payable, to mature, to be subject to redemption and to have such other characteristics as shall be provided in the form of the Loan Agreement attached and in the Proposal; and to be secured by a lien upon and pledge of the Pledged Funds, is hereby authorized. SECTION 4. ACCEPTANCE OF PROPOSAL. The Village Council, acting through the Mayor and Village Clerk, is hereby authorized to accept the attached loan commitment from Wachovia Bank, National Association. SECTION 5. APPROVAL OF FORM OF LOAN AGREEMENT AND SERIES 2004 NOTE. The form of the Loan Agreement and the Series 2004 Note attached thereto as an exhibit are hereby approved and the Mayor and Village Clerk are hereby authorized to execute and deliver such instruments in substantially the form attached, with such changes as shall be necessary to conform to the terms of the Proposal, and to take such other actions as shall be necessary to implement the Loan. SECTION 6. PRIVATE PLACEMENT OF THE LOAN. The Village Council in compliance with Section 218.385(1)(a), Florida Statutes, as amended, hereby finds, determines and declares that a private placement of the Loan is in the best interest of the Village and that due to the size and timing of the issuance of the Loan, such private placement is expected to be less costly to the Village than a public sale of the Loan. SECTION 7. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. • Reviewed and Approved: Village Attorney DocNo. JAX\722454_2 2 EXHIBIT A -PROPOSAL EXHIBIT B -FORM OF LOAN AGREEMENT /i~^i. THE VILLAGE OF North Palm Beach ~ ,~~ :,~. • SHA~IKOT KHAN; C_pA, DIRECTOR OF FINANCE 501 U.S. Highway 1 Ph. (561) 841-3360 North Palm Beach, FL 33408 Fax (561) 881-7469 ~~1~ !, C ~~ Peter L. Dame w Pllamc(/lydaw.com M E ti•10RANDUM 1301 liivcr}~lacc liowevard • Swtc l 500 Jackomillc, Ilorida 3207 9U4 . 398 . 39 I 1 1\lain 9na , 3~i . CYC3 l;y: u~w rtlau~.com Shaukat Khan, Finance Director; George Baldwin, Village Attorney Paul Vincent, Wachovia Bank FROivi; i'eter f:. i~ame ~~;~,/ DATE: February 19, 2004 RE: $230,000 Village of North Palm Beach, Florida Capital Improvement Revenue Note, Series 2004 I have enclosed the execution documents for the Capital Improvement Revenue Note, Serifs 2004. The documents should be executed as described below. Except where noted, there arc six (6) copies of each document: / 4~ / -~ 1. moan Agreement: Ma or, Villa e Clerk and Village Attorney to sign on page 1~. /City seal on page 1 Paul Vincent to sign also on page 15. Please note that it is not necessary to sign t e orm o ote attached as Ex lbit A. vi 2. Series 2003 Note: (on green safety paper, one copy). Mayo nd Village Clerk to sign on page 3. Seal also on page 3. 3.' Officer's Certificate: Mayor Village Clerk, Village Manager and Finance Director to sign on page 3. Seal on page 3. 4. Public >\'1<eetino Certificate: Members of the Village Council to sign.~'~ ~. Opinion of City Attorney: George Baldwin to prepare 6 copies on his letterhead. vim. 6. Bank Counsel Opinion of RoEers Towers: (1 copy) signed. To be held by Paul Vincent in escrow pending closing. ~, ~' 7. Bond Finance Form BF2003: (2 copies) Finance Director to sign on page 4. ?' 8. Form 8038-G. Finance Director to sign at the bottom of the page. ~' / 9. Represea~tation Letter of Bank: Paul Vincent to sigm for the Bank as indicated. / ~ • 10. Tax Certificate: Mayor to sign on page 2. ~' ~~~ i v ~~ ~~~, ~;, ' `' 6 ~ Please have these documents signed. Then make a copy of any of the documents you may need immediately (certainly the Note and the Loan Agreement) and send all the originals to Paul Vincent by overnight courier [FedEx package with label enclosed if convenient for you to use]. Please include George Ealdwin's opinion. Paul, please use the original note, a loan agreement and our opinion to book the loan. Then forward all the remaining executed documents to me and I will put together closing transcripts. Please make a copy of the executed Note forme to include in the transcripts. i'~ ~/ Shaukat, i will also need for the transcripts, signed copies of the Resolution and copies of each of the ordinances imposing the franchise fees and the public service taxes. Thank you each for your assistance. Please call with any questions you may have. ~~1F. ~~}t% ~i'~t h rlli ~7 CJ~(l7if `~oc~~ ~~ • ~~ ~, ~' ~ ~ ~~`.~ ~ f~v7s -2- • ivG. R-i Variable VILLAGE OF NORTH PALM BEACH, FLORIDA CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2004 RATE OF II~'TEREST MATURITY DATE DATE OF ISSUE REGiSTEP.ED O~'1~TER PRINCIPAL AMOUNT 5230,000 July 1, 2009 March 1, 2004 WACHOVIA BANK, NATIONAL ASSOCLATION, TWO HUNDRED AND THIRTY THOUSAND DOLLARS KNOW ALL MEN BY THESE PRESENTS, that the Village of North Palm Beach, Florida (the "Village"), for value received, hereby promises to pay to the Registered Owner above or registered assigns, solely from the special funds mentioned below, the Principal Amount shown above, such Principal Amount to be paid on the dates and in amounts set forth on the .Amortization Schedule attached to this Note with a final payment due oil the Maturity Date set forth above, and to pay solely from such special funds, interest thereon from the Date of Issue set forth above to the date of payment thereof, at the annual variable Rate of Interest described herein until pa~~nent of the Principal Amount above stated, payable semi=annually on the ls` day of August and- February in each year, commencing August 1, 2004. This Note shall bear interest at a fluctuating rate of interest at all times equal to the 30-day LIBOR Rate (as defined on the Agreement referred to below) plus 73 basis points (.73%), such interest to be calculated on a 360-day year consisting of twelve 30-day months. The Rate of Interest on this Note is subject to adjustment as set forth on Schedule 1 hereto. The principal of and interest on this Note are payable in lawful money of the United States of America by check or draft by the Village Clerk of Village of North Palm Beach, Florida, as paying agent and registrar (the "Registrar"), provided that the final payment shall be made only upon the presentation and surrender hereof a± the office of the Registrar. This Note may be prepaid in whole or in part prior to maturity. Prepayments shall be applied, first, to interest accrued as of the date of such prepayment, and second to principal. Notice of such prepayment shall be given in the manner and to the extent specified by the Agreement. If this Note is prepaid in part, the Registered Owner shall enter an appropriate notation thereof in the Partial Redemption Record below. Tliis i~rote is issued under the authority of Section 166, Florida Statutes, and other applicable provisions of law, and pursuant and subject to the terms and conditions of a resolution duly adopted by the Viliage on February _, 2004 (the "Resolution"), and a Loan Agreement, dated March i, 2004 (the "Agreement"), between the Village and the initial purchaser of the Series 2004 Note, to which reference should be made to ascertain those terms and conditions. This Note is payable from and secured by a lien upon and pledge of the Pledged Funds, which include (a) Franchise Fees (b) Public Service Taxes, and (c) the income and investments. held in the funds and accounts created by the Agreement, all in the manner and as more particularly described in the Agreement. • This i~ote shah not constitute a general obligation or indebtedness of the Viiiage, and the Lender shall never have the right to require or compel the levy of taxes on any property of or itZ the Village for the payment of the principal of and interest on this Note. This Note shall not constitute a lien upon the Project, or upon any property of or in the Village, but shall be payable solely from the Pledged Funds in the manner provided in the Agreement. Reference is made to the Agreement for the provisions relating to the security for payment of this Note and the duties and obligations of the Village hereunder. The Village has entered into certain covenants with the Lender for the terms of which reference is made to the Agreement. In particular, the Village has reserved the right to issue additional obligations payable from and secured by a lien upon and pledge of the Pledged Funds on a parity with the Note, upon compliance with certain conditions set forth in the Agreement. The Village has also reserved the right to defease the lien of the Note upon the Pledged Funds t;pon making provision for payment of the Note as provided in the Agreement. This Note is and has all the qualities and incidents of a negotiable instrument under the laws of the State of Florida. It is hereby certified and recited that all acts, conditions and things required by the Constitution and laws of the State of Florida to happen, exist and be performed precedent to and in the issuance of this Note, have happened, exist and have been performed in regular and due form and time as so required. -2- fN ~ViTNESS ~VHEfcEOF, Village of North Palm Reach, Florida, has caused this Note to be executed by the Mayor, and attested by the Village Clerk, either manually or with their facsimile signatures, and its seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, and this Note to be dated as of March l , 2004. VILLAGE OF NORTH PALM BEACH, FLORIDA (SEAL) .--~ By: Ma or ATT illage Clerk • -3- tt)h, lx l(j 1 RA tC' J C 1L K ~ ~ ~' 1 1. P-1 1N V F A lU 1 til L.IV T l 1, A ~'i tl~! This note is the note of the issue described in the Resolution. As R erk of the Village of North Palm Beach, Florida Aiytho~ized Signature March 1,2604 Date of Authentication • -4- . Amortization ~cneduie Date Principal Interest Total • -5- PARTIAL REDEIi~IPTIOIi' RECORD • Principal Principal Balance Date of Partia] Signature of Redeemed Due Redemption Registered Owner • -b- Schedule A .Adjustment to Interest Rate The interest rate on this I~TOte shall be subject to adjustment in the event of a change in certain tax lavt~s and regulations as set forth below: Adjustment to Interest Rate (a) Change in Maximu,;, Corporate Tax Rate. If the maximum federal co~crate income tax rate for the Lender (or in the case of another institutional holder of the Note, such holder or its holding company) and its subsidiaries (collectively, the "Lender") during any period in which interest is accruing, shall be other than 35%, then the interest on the Note during such period shall be modified by multiplying the interest on tlZe Note (as adjusted) by a fraction equal to (1 - A)/.65 where A equals the maximum marginal corporate income tax rate then in effect. (b) Alternative Minimum Tax Where Interest on the Note is a Direct Tax Preference Item. If the Lender or its parent holding company pays an alternative minimum tax in any tax year and the interest on the Note is a direct tax preference item under section 57(a)(5) or any successor provision of the Internal Revenue Code then the interest on the Note for the period during such tax year in which interest is accruing on the Note shall be increased during such accrual period by an amount equal to (A - B) x C where: (1) A equals the interest on the Note expressed as a percentage; (2) B equals the Lender's- Adjusted Cost of Funds; and (3) C equals the maximum marginal rate of the alternative minimum tax expressed as a decimal (currently .20). "Lender's Adjusted Cost of Funds" means the fraction (expressed as a percentage), determined by the Lender, of the total interest expense of the Lender for each, calendar year divided by the total average adjusted bases of all assets of the Holder during the calendar year as determined under Section 265(b)(2)(B) of the Code or any successor provision thereto. (c) Alternative Minimum Tax Where Interest on the Note is an Indirect Tax Preference Item. If the Lender or its holding company pays an alternative minimum tax in any tax year and the interest on the Note is not a direct tax preference item under section 57(a)(5), but is an indirect tax preference item because of the application of section 56(g) or any successor provision of the Internal Revenue Co'd`e then the interest rate for the period during such tax year iii rvhi%h interest i;i u:.~ruing vn the 1\lole shall be Increased du in^ such u ~ ~^^~ b,~ an r 6 ccrua. p.,..,,.. , amount to (A - B) x C where: (1) A equals the interest on the Note expressed as a percentage; (2) B equals the Lender's Adjusted Cost of Funds; and 3 C e uals 75% of the maximum mar final O q g rate of the alternative minimum tax expressed as a decimal, or, if the Code is amended to effectively increase or decrease the percentage of interest on the Note which is subject to such indirect alternative minimum tax, then -7- C shall equal the percentage of such interest on the Note which is effectively subject to such indirect alternative minimum tax multiplied by the maximum marginal rate of the alternative minimum tax expressed as a decimal. (d) Loss of Federal Income Tax Deduction for State Income Taxes. If the federal income tax deduction for state income taxes paid on the interest on the Note during any period is reduced because of any change in the tax laws or regulations then the interest on the Note shall be increased during such period by an amount equal to A x B x C x D where: (1) A equals the fraction (expressed as a decimal) of the total state income tax disallowed as a result of such tax law change; (2) B equals the rate of the applicable state income tax (expressed as a decimal); (3) C equals the maximum federal corporate tax rate then in effect for the Lender (expressed as a decimal); and (4) D equals the interest on the Note (expressed as a percentage). (e) Partial Taxability. If the interest on the Note during any period becomes partially taxable because of any change in the tax laws or regulations, then the interest on the Note shall be increased during such period by an amount equal to (A - B) x C where: (1) A equals the Taxable Rate (expressed as a percentage); (2) B equals the interest on the Note (expressed as a percentage); and (3) C equals the fraction of the interest on the Note which has become taxable as the result of such tax change (expressed as a decimal). Other Change in Tax Laws. If the tax laws or regulations are amended to cause the interest on the Note to be taxable, to,be subject to a minimum tax or an alternative minimum tax or to otherwise decrease the after tax yield on the Note to the Lender (directly or indirectly, other than a change described in (a) through (e) above or because of a Determination of Taxability) then the interest on the Note shall be adjusted to cause the yield on the Note, after payment of any increase in tax, to equal what the yield on the Note would have been in the absence of such change or amendment in the tax laws or regulations. The above adj~~stments shall_ be cumulative, but in no event shal_1 the interest nn the Note exceed the maximum permitted by law. The above adjustments to the interest rate on the Note shall be effective on the effective date of the applicable change in the tax laws or regulations. All tax rates and interest rates are expressed as annual rates. However, proper partial adjustment _ _ shall be made if the tax la~v change is effective after the first day of the Lender's tax year or if the interest on the Note does not accrue for the entire tax year of the Lender. Adjustments which • create a circular calculation because the interest on the Note is affected by the calculation shall be carried out sequentially, increasing the interest on the Note accordingly in each successive calculation using as the new value the increase in the interest rate on the Note; until the change on the interest rate on the Note caused by the next successive calculation of the adjustment is de -8- minimis. If more than one of paragraphs (a) though (e) apply, then the interest on tiie Note shall be adjusted in the order in which listed. above. Non-Bank Qualified Rate In the event the Note is not a "qualified tax-exempt obligation" under Section 265(b)(3)(B) of the Internal Revenue Code, the interest rate on the Note shall be adjusted to that interest rate necessary to ensure that the anticipated after tax -yield contemplated by the Lender at the time of original purchase of the Note is received. Taxable Rate Notwithstanding the foregoing, in the event of a "lletermination of Taxability'' (as hereinafter defined), this Note shall bear interest at the rate equal to the Taxable Rate (the "Taxable Rate"), from and after and retroactively to the date as of which such Determination of Taxability is made and the Noteholder shall be entitled to such additional interest on this Note. For purposes hereof, "Determination of Taxability" means the circumstance of the interest on the Note becoming includable for federal income tax purposes in the gross income of the Lender as a consequence of any act, omission or event whatsoever and regardless of whether the same was within or beyond the control of the Village. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the Village or the Lender of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that the interest on the Note is includable in the gross income of the Lender; (ii) the issuance of any public. or private ruling of the Internal Revenue Service that the interest on the Note is includable in the gross income of the Lender; or (iii) receipt by the Village or Lender of an opinion of a Lender Counsel that the interest on the Note has become includable in the gross income of the Lender for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the Note is deemed includable in the gross income of the Lender. In no event, however, shall interest be charged or paid in an amount in excess of the maximum interest rate permitted to be paid under applicable law. Additional Definitions "Prime Rate" means that index rate of interest v~~hich the Lender, from time to time announces as its prime rate, which rate is an index rate for guidance to loan officers and is not necessarily the best or lowest rate charged borrowing customers of the Lender, or if such rate is no longer announced, such comparable rate as shall be determined by the Register Owner. "Taxable Rate" means a rate equal to the Prime Rate times that percentage which after the Determination of Taxability will result in the same after-tax yield to the Registered Owner of the Note as before said Determination of Taxability. -9- t LOAN AGREEMENT BETWEEN VILLAGE OF NORTH PALM BEACH, FLORIDA AND WACHOVIA BANK, NATIONAL ASSOCIATION DATED MARCH 1, 2004 C: SECTION' 1 DEFINITIONS 2 . ........................................................................................... ...... SECTION 2. INTERPRETATION ................................................................................... ..... 4 SECTION 3. THE LOAN ...................................:............................................................. ..... 4 SECTION 4. DESCRIPTION OF SERIES 2004 NOTE ................................................. ..... 5 SECTION 5. EXECUTION OF SERIES 2004 NOTE ..................................................... ..... 5 SECTION 6. REGISTRATION AND TRANSFER OF SERIES 2004 NOTE ............... ..... 5 SECTION 7. SERIES ?004 NOTE MUTILATED, DESTROYED, STOLEN OR LOST ........................................................................................................... ..... 6 SECTION 8. FORM OF SERIES 2004 NOTE ................................................................. .... 6 SECTION 9. SECURITY FOR NOTE, NOTE NOT DEBT OF THE VILLAGE ........... .... 6 SECTION 10. COVENANTS OF THE VILLAGE ............................................................ .... 7 SECTION 1 1. APPLICATION OF NOTE PROCEEDS .................................................... .... 9 SECTION 12. CONDITIONS PRECEDENT ..................................................................... .. 10 SECTION 13. REPRESENTATIONS AND WARRANTIES ............................................ .. 10 SECTION 14. TAX COMPLIANCE ................................................................................... . 11 SECTION 15. DESIGNATION PURSUANT TO INTERNAL REVENUE CODE .......... . 11 SECTION 16. NOTICES ...................................................................................................... . 11 SECTION 17. EVENTS OF DEFAULT DEFINED ............................................................ . ]2 SECTION 18. REMEDIES ................................................................................................... . 13 SECTION 19. NO RECOURSE ........................................................................................... . 14 SECTION 20. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS ................................................................................................... 14 SECTION 21. DEFEASANCE .............................................................................................. 14 SECTION 22. AMENDMENTS, CHANGES AND MODIFICATIONS ............................ 14 SECTION 23. WAIVER OF JURY TRIAL .......................................................................... 14 SECTION 24. BINDING EFFECT ....................................................................................... 14 SECTION 25. SEVERABILITY ........................................................................................... 14 SECTION 26. EXECUTION IN COUNTERPARTS ........................................................... I S SECTION 27. APPLICABLE LAW ..................................................................................... 15 • EXHIBIT A FORM OF SERIES 2004 NOTE -i- This LOAN AGREEMENT made and entered as of March I, 2004, by and between VILLAGE OF NORTH PALM BEACH, FLORIDA (the "Village") and WACHOVIA BANK, NATIONAL ASSOCIATION (the "Lender"). WITNESSETH ~'~'HEREAS, the Village has determined that it is necessary, desirable and in the best interests of the Village and its inhabitants that the Village undertake the Project hereinafter described, which Project serves essential public purposes of the Village. WHEREAS, the Village has determined that it is without adequate currently available funds to pay Project Costs and it is necessary that funds be made immediately available to the Village in order to undertake the Project. WHEREAS, the Village requested proposals from various lending institutions to provide the Village with the necessary financing for the Project. WHEREAS, the proposal of the Lender was determined to be the lowest and best of the proposals submitted. WHEREAS, pursuant to the Lender's Proposal the Lender has agreed to lend the Village the aggregate principal amount of not to exceed $230,000 in return for the Series 2004 Note. WHEREAS,. the Village currently receives the Pledged Funds, as herein. defined,. and. the Pledged Funds are not pledged or encumbered to pay any obligations of the Village other than the Village's outstanding (i) Promissory Note, dated November 15, 2000 in the original principal amount of $860,000, (ii) Promissory I~Tote, dated [May 31, 2001) in the original principal amount of $2,800,000, (iii) Promissory Note, dated [March 16, 200] in the original principal amount of $600,000, and (iv) Promissory Note, dated January 31, 1997 (collectively, the "Outstanding Parity Notes"). WHEREAS, the Village has determined that it is in the best interest of the health, safety, and welfare of the Village and the inhabitants thereof that the Village pledge the Pledged Funds (as defined herein) to the repayment of the Note. WHEREAS, the principal of and interest on the Series 2004 Note and all required sinking fund, reserve and other payments shall be payable solely from the Pledged Funds as herein provided. The Village shall never be required to levy ad valorem taxes on any property within. its corporate territory to pay the principai of and interest on the Series 2004 iti'oie or to make any of the required sinking fund, reserve or other payments, and such Series 2004 Note shall not constitute a lien upon any property owned by or situated within the corporate territory of the t%iiiage. WHEREAS, the Series 2004 Note shall not constitute a general obligation or indebtedness of the Village as a "bond" within the meaning of any provision of the Constitution of the State, but shall be and is hereby declared to be a special, limited obligations of the Village, the principal of and interest on which are payable solely from the Pledged Funds in the manner provided herein, and the principal of and interest on the Series 2004 Note and all other payments provided for herein, will be paid solely from the Pledged Funds, and it will never be necessary or authorized to levy taxes on any real property of or in the Village to pay the principal of or interest on the Series 2004 Note or other pa~~rlents provided for herein. Furthermore, neither the Series 2004 Note nor the interest thereon, shall be or constitute a lien upon the Project or upon any other property of or in the Village other than the Pledged Funds in the manner provided herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth and other good and valuable consideration, the receipt and suff cient of which are hereby acknowledged, the parties do hereby agree as follows: SECTION 1. DEFINITIONS. The following terms shall have the following meanings herein, unless the text otherwise expressly requires: "Act" means Section 166, Florida Statutes, and other applicable provisions of law. "Additional Parity Obligations" means additional obligations issued in compliance with the terms, conditions and limitations contained in this Agreement and which shall have an equal lien on the Pledged Revenues, and rank equally in all respects with the Series 2004 Note initially issued under the Original Ordinance. "Authorized Investments" means any obligations, deposit certificates, or other evidences of indebtedness legal for investment pursuant to law, to the extent not inconsistent with the terms of the investment policy of the Village and applicable law. "Business Day" means any day of the year on which banla in any of the cities in which the principal office of the Lender or of the designated office of any Paying Agent are located are not required or authorized by law to remain closed and on which the Lender and any Paying Agent and the New York Stock Exchange, Inc. are open for business. "Code" means the Internal Revenue Code of 1986, as amended, and any rules and regulations promulgated thereunder. "Debt Service" means, with respect to any debt of the Village, for any period or at any time, the principal of, premium, if any, and interest on such debt for that period or at that time, whether due at maturity or redemption or otherwise. `Federal ~JCGUr1t1CJ" 1T7eaiiS dli'ect obligations Gftile united ~tatcS ofru'TieriCa. "Fiscal Year" means the period from October 1 to the succeeding September 30. "Franchise Fees" shall mean all fees derived by the Village from the granting of franchises to provide telephone and telegraph service, electric light and power facilities and . facilities to the purchase, transmission, distribution and sale of natural gas within the Village, including but not limited to those fees derived pursuant to Resolution No. 5-90 adopted by the Village Council on March 8, 1980, Ordinance No. 14-80, enacted by the Village Council on July 24, 1980 and Ordinance No. 1 1-80 enacted by the Village Council on May 22, 1980, and any and -2- all moneys received by the ti'illage under ary extension or renewal of said franchises or from any new franchises. "Independent Certified Public Accountants" mean such firm of certified public accountants, as shall be retained by the Village for the purpose of auditing the books and records relating to the Pledged Revenues and performing such other functions as are specified in this Agreement. "Lender" means Wachovia Bank, National Association which is making the loan to the Village pursuant to the terms of this Agreement. "30 Day LIBOR Rate" means the rate shown on the Telerate System, page 3750, as the 30-day London Interbank Offered Rate two business days prior to the date of delivery of the Series 2004 Note and on the 14th day of each calendar month thereafter. "Maturity Date" means the date which the principal and interest on Series 2004 Note, or any portion thereof, shall be payable. "Maximum Debt Service Requirement" means, as of the date of calculation, the greatest amount of Debt Service due in the then current or any future Fiscal Year, provided that interest on variable rate obligations shall be assumed to accrue at the higher of 6% per annum or the rate then borne by such variable rate obligations for the month preceding that date of calculation. "Paying Agent" means the Finance Director of the Village. "Person" or words importing persons, means firms, associations, partnerships (including without limitation, general and limited partnerships), joint ventures, societies, estates, trusts, corporations, public or governmental bodies, other legal entities and natural persons. "Pledged Funds" means (a) the Franchise Fees, (b) the Public Service Taxes and (c) the moneys and investment income therefrom held in the funds and accounts created hereby. "Principal Amount" means an aggregate amount o.f not to exceed $230,000. "Project" means the acquisition of public safety vehicles and building maintenance projects. "Project Costs" means all or a portion of the cost of acquisition and construction of the Prnje~t; en~aineerinv legal anroiipting, and financialP.xpP_.nc~s; PxpenSeS for Pstimatec of ~osiS and of revenues; expenses for plans, specifications and surveys; fees of fiscal agents, financial advisors or consultants; administrative expenses relating solely to the acquisition and constn.~ction of the Project; reimbursement to the Village for any sums heretofore expended for the foregoing purposes; and such other costs and expenses as may be necessary or incidental to the financing or refinancing of the Project. "Public Service Taxes" means all of the proceeds derived by the Village from imposition of a tax on the purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or -3- manufactured), pursuant to the prov~s~ons of Section 166.231, Florida Statutes, as amended and supplemented. "Register" means the books maintained by the Registrar in which are recorded the names, and addresses of the holder of the Series 2004 Note. "Registrar" means the Person maintaining the Register. The Registrar shall be the Village Clerk. "Regulations" means the Income Tax Regulations promulgated by the Internal Revenue Service under Sections 103 and 141 through 150 of the Intemal Revenue Code of 1986 in effect from time to time. "Resolution" means the Resolution of the Village authorizing this Agreement, together with any resolution amendatory or supplemental thereto. "Series 2004 Note" means the promissory note of the Village to the Lender in substantially the form attached hereto as Exhibii A with such modifications thereto as may be approved by the Nlayor, upon the advice of the Village Attorney, such approval to be presumed by the Mayor's execution thereof. "Sinking Fund'' means the fund created and established pursuant to Section 10(F) hereof. "State" means the State of Florida. "Stated Rate" shall mean the interest rate shown on Exhibit B hereto. "Village" means Village of North Palm Beach, Florida. "Village Council" means the Village Council of the Village. SECTION 2. INTERPRETATION. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. SECTION 3. THE LOAN. A. Loan. The Lender hereby makes and the Village hereby accepts the Loan in the principal amount of $230,000 upon the terms and conditions herein. B. Disbursement of Proceeds. Proceeds of the Loan shall be made available to the Village by transferring the amount thereof on the date of borrowing to the Village in immediately available funds by 2:00 p.m. on such date. -4- • SECTION 4. DESCRIPTION OF SERIES 2004 NOTE. The Loan shall be evidenced by the Series 2004 Note. The Series 2004 Note shall be issued in fully registered form, without coupons; shall be dated as of the date of its delivery; shall be in the denomination of $230,000; shall bear interest from its date at a variable rate equal to the 30-day LIBOR Rate plus 73 basis points (.73%), calculated on a 30-day month and 360-day year basis, subject to adjustment as set forth on Exhibit A attached hereto, and payable at maturity; and shall mature on as set forth on the amortization schedule attached to the Series 2004 Note. The Series 2004 Note may be prepaid in whole or in part prior to maturity without penalty. Notice of such prepayment shall, at least 10 days prior to the redemption date, be mailed, postage prepaid, by the Registrar to the Lender at its address as it appears of record on the books of the Paying Agent anal Registrar as of 15 days prior to the date fixed for prepayment. If the Series 2004 Note is redeemed in part, the Lender shall record the appropriate information in the Partial Redemption Record attached to the Series 2004 Note, and indicate receipt of such partial redemption by signature on such Record. SECTION 5. EXECUTION OF SERIES 2004 NOTE. The Series 2004 Note shall be ""° executed in the name of the Village by the Mayor, and attested and countersigned by the Village Clerk, and its corporate seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Series 2004 Note may be signed and sealed on behalf of the Village by any person who at the actual time of the execution of the Series 2004 Note shall hold such office in the Village, although at the date of the Series 2004 Note such person may not have been so authorized. The Series 2004 Note may be executed by the facsimile signatures of the Mayor or Village Clerk. SECTION 6. REGISTRATION AND TRANSFER OF SERIES 2004 NOTE. The Series 2004 Note shall be and shall have all the qualities and incidents of negotiable instruments under the Uniform Commercial Code-Investment Securities Laws of the State of Florida, and the registered owner, in accepting the Series 2004 Note, shall be conclusively deemed to have agreed that such Series 2004 Note shall be and have all of the qualities and incidents of negotiable instruments thereunder. There shall be a Registrar who shall be responsible for maintaining the Register. The person in whose name ownership of any Series 2004 Note is shown on the Register shall be deemed the owner thereof by the Village and the Registrar, and any notice to the contrary shall not be binding upon the Village or the Registrar. The Village and the Registrar may treat the registered owner as the absolute owner of the Series 2004 Note for al] purposes, whether or not such Series 2004 Note shall be overdue, and shall not be bound by any notice to the contrary. Ownership of Series 2004 Note may be transferred only upon the Register. Upon surrender to the Registrar for transfer or exchange of the Series 2004 Note accompanied by an assignment or written authorization for exchange, whichever is applicable, duly executed by the registered owner or its attorney duly authorized in writing, the Registrar shall deliver in the name of the registered owner or the transferee or transferees, as the case may be, a new fully registered Series 2004 Note of authorized denominations and of the same maturity and interest rate and for the aggregate principal amount as the Series 2004 Note surrendered. -5- The new Series 2004 Note delivered upon any transfer or exchange shall be a valid obligation of the Village, evidencing the same debt as the Series 2004 Note surrendered, shall be secured under this Agreement, and shall be entitled to all of the security and benefits hereof to the same extent as the Series 2004 Note surrendered. Whenever the Series 2004 Note shall be delivered to the Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, such Series 2004 Note shall be cancelled and destroyed by the Registrar, and counterparts of a certificate of destruction evidencing such destruction shall be furnished to the Village. SECTION 7. SERIES 2004 NOTE MUTILATED, DESTROYED, STOLEN OR LOST. In case the Series 2004 Note shall be mutilated, or be destroyed, stolen or lost, upon the registered owner furnishing the Registrar proof of its ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the Village may prescribe and paying such expenses as the Village may incur, the Registrar shall issue and deliver a new Series 2004 Note of like tenor as the Series 2004 Note so mutilated, destroyed, stolen or lost, in lieu of or substitution for the Series 2004 Note, if any destroyed, stolen or lost, or in exchange and substitution for such mutilated Series 2004 Note, upon surrender of such mutilated Series 2004 Note; if any, to the Registrar and the cancellation thereof; provided however, if the Series 2004 Note shall have matured or be about to mature, instead of issuing a substitute Series 2004 Note, the Village may pay the same, upon being indemnified as aforesaid, and if such Series 2004 Note be lost, stolen or destroyed, without surrender thereof. Any Series 2004 Note surrendered under the terms of this Section 7 shall be cancelled by the Registrar. Any such duplicate Series 2004 Note issued pursuant to this section shall constitute an original, additional contractual obligation on the part of the Village whether or not, as to duplicate Series 2004 Note, the lost, stolen or destroyed Series 2004 Note be at any time found by anyone, and such duplicate Series 2004 Note shall be entitled to equal and proportionate benefits and rights as to lien on and source and security for payment from the special funds, as hereinafter pledged, to the same extent as the other Series 2004 I~'ote issued hereunder. SECTION 8. FORM OF SERIES 2004 NOTE. The Series 2004 Note shall be in substantially the form of Exhibit A hereto with such variations, omissions and insertions as may be necessary, desirable and authorized or permitted by this Agreement. SECTION 9. SECURITY FOR NOTE, NOTE NOT DEBT OF THE VILLAGE. The payment of the principal of and interest on the Series 2004 Note shall be secured forthwith, by a lien upon and a pledge of the Pledged Funds on a parity with the lien thereon and pledge thereof in favor of the holders of the Outstanding Parity Obligations. The Series 2004 Note shall not constitute a general obligation or indebtedness of the Village and the Lender shall never have the right to require or compel the levy of taxes upon any property of or in the Village for the payment of the principal of and interest on the Series 2004 Note. The Village does hereby irrevocably pledge the Pledged Funds to the payment of the principal of and interest on the Series 2004 Note. The Village does further covenant and represent that it has power under the Act to irrevocably pledge the Pledged Funds to the payment of the principal of and interest on the -6- • Series 2004 I~TOte and that the pledge of the Pledged Funds in the manner provided herein shall not be subject to repeal, modification or impairment by any subsequent resolution, ordinance or other proceeding of the Village Council of the Village, or by any subsequent act of the Legislature of the State of Florida. SECTION 10. COVENANTS OF THE VILLAGE. So long as any of the principal of or interest on the Series 2004 I~1ote shall be outstanding and unpaid or until provision for payment of the Series 2004 Note shall have been made pursuant to Section 21 hereof, the Village covenants with the Lender as follows: A. Tax Compliance. The Village will take all actions necessary to maintain the exclusion from gross income of interest on the Series 2004 Note to the same extent as such existed on the date of issuance of the Series 2004 Note. B. Financial Statements. Not later than 180 days following the end of each Fiscal Year, the Village shall provide the Lender the annual audited financial statement of the Village audited by the Village's certified public accountants together with the report of such accountants containing only such qualifications as are reasonably acceptable to the Lender. C. Annual Budget and Other Information. The Village shall prepare its annual budget in accordance with Florida law, and shall provide the Lender a copy of its final annual budget for each Fiscal Year within'30 days of adoption thereof by the Village Council, together with the Village's current capital improvement plan if adopted and such other public information the Lender may reasonably request. Such budgets and information, and the financial statement referred in (B) above, shall be provided in printed (rather than electronic) form unless otherwise agreed by the Lender. D. Payment From P1edQed Funds. The Village will duly and punctually pay or cause to be paid from the Pledged Funds, as provided herein, the principal of, and interest and premium, if any, on the Series 2004 Note. E. Maintenance of Pledged Funds. The Village will not repeal the ordinance or resolutions approving, imposing or levying the Franchise Fees, and will not amend or modify said ordinance, resolutions or any agreement implementing any of the Franchise Fees in any manner so as to reduce the rate or amount of Franchise Fees levied or collected thereunder, or impair or adversely affect the obligation of the payors of such Franchise Fees to pay, or the power or obligation of the Village to levy and collect, said Franchise Fees, or impair or adversely affect in any manner the pledge of such Franchise Fees made herein, or the rights of Lender hereunder. The Village will not consent to an assignment of said franchise except upon the same terms, rates and conditions now provided for in said franchise, and will not grant any renewal of said franchise or any new franchise in the Village after the expiration of said existing franchise • unless the terms, rates and conditions of such renewal or new franchise are substantially similar to the terms, rates and conditions contained in said existing franchise. The Village further covenants and agrees that upon any such assignment of said existing franchise, or granting of a renewal or new franchise, the lien on and pledge of the Franchise Fees provided for in this -7- Agreement, and all the other provisions of this Agreement, shall apply fully to such assignment of said existing franchise or granting of a renewal or new franchise, and to the Franchise Fees levied and collected by the Village thereunder. The Village will diligently enforce and collect, or cause to be enforced and collected, as applicable, the Public Service Taxes; will take, or cause to be taken, all reasonable steps, actions and proceedings for the enforcement and collection thereof as shall become delinquent, to the full extent permitted or authorized by law, and will maintain accurate records with respect thereof. All Public Service Taxes shall, as collected, be held in trust to be applied as herein provided and not otherwise. F. Reserved] G. Sinking Fund. Upon direction of the Lender as provided in Section 18 hereof the Village shall create and establish a special separate fund to be called the "Village of North Palm Beach, Florida Capital Improvement Revenue Note, Series 2004 Sinking Fund" (hereinafter called the "Sinking Fund"). Moneys on deposit in the Sinking Fund shall be used only for the purpose of paying principal and interest on Series 2004 Note, and the Outstanding Parity Obligations, and any Additional Parity Obligations hereafter issued, as the same shall become due and for no other purpose. Amounts on deposit in the Sinking Fund may be invested and reinvested by the Village in Authorized Investments maturing or redeemable at the option of the Village not later than the date such amou~lts are needed for the payments required hereunder. Except to the extent otherwise required by any provision hereof or of any tax compliance certificate delivered in connection with the delivery of the Series 2004 Note, all income from the investment of moneys in the fund and accounts established by this Agreement shall, upon receipt thereof, be deposited to the credit of the Sinking Fund and used for the purposes thereof. The designation of a special fund by this Agreement shall not be construed to require the establishment of any completely independent, self-balancing funds, as such term is commonly used and defined in governmental accounting, but is intended solely to constitute an earmarking of certain moneys and investments for certain purposes and to establish certain priorities for application of such moneys and investments as herein provided. The moneys and investments required to be accounted for in the foregoing fund established herein may be deposited in a single fund or account, provided that adequate accounting records are maintained to reflect the allocation of the moneys and investments on deposit therein into the fund established hereunder and to control the restricted uses of such moneys and investments for the various purposes as herein provided. H. Issuance of Other Obligations Payable Out of Pledged Funds. The Village will not issue any other obligations, except as hereinafter set forth except the Series 2004 Note, the • Outstanding Parity Notes and any Additional Parity Obligations hereafter issued under the conditions and in the manner provided below, payable from any portion of the Pledged Funds, nor voluntarily create or cause to be created any debt, Iien, pledge, assignment, encumbrance or any other charge having priority to or being on a parity with the lien of the Series 2004 Note and -8- • the interest thereon, upon the Pledged Funds or any portion thereof Any other obligations issued by the Village, in addition to the Series 2004 Note and any Additional Parity Obligations provided for in the following subsection, shall contain an express statement that such obligations are jur_ior, inferior, and subordinate in al] respects to the Series 2004 Note and any such Additional Parity Obligations as to lien on and source and security for payment from the Pledged Funds, and in all other respects. I. Issuance of Additional Parity Obli ations. No Additional Parity Obligations shall be issued after the issuance of the Series 2004 Note, except upon the following terms and conditions: Additional Parity Obligations shall be payable from the Franchise Fees and the Public Service Taxes. Such Additional Parity Obligations may be issued by the Village only if the Franchise Fees and the Public Service Taxes received by the Village in each of the two Fiscal Year immediately preceding the sale of the Additional Parity Obligations, as evidenced by the written certificate of the Village, shall have been at least equal to the sum of (a) one hundred fifty per centum (150%) of the Maximum Debt Service Requirement on (1) the Series 2004 Note and Outstanding Parity Notes, (21 any Additional Parity Obligations theretofore issued and then outstanding, and (3) the Additional Parity Obligations proposed to be issued, and (b) one hundred per centum any other payments required to be made from, or secured by, the Pledged Revenues in connection with such Additional Parity Obligations. No Additional Parity Obligations, shall be issued at any time, however, unless all of the payments into the respective funds and accounts provided for in this Agreement shall have been made in full. to the date of issuance of said Additional Parity Obligations, and the Village shall be in substantial compliance with all of the covenants, agreements and terms of this Agreement. The instruments authorizing Additional Parity Obligations shall provide for payment of such Additional Parity Obligations from the Sinking Fund herein created on a parity with the payments on the Note, in which case deposits to the Sinking Fund shall be correspondingly increased, or shall provide for deposits to the payment fund for such Additional Parity Obligations from the Franchise Fees received in each month on a parity with the deposits herein required to be made to the Sinking Fund. J. Covera e Test. The Franchise Fees and Public Service Taxes received by the Village in each Fiscal Year shall cover the Debt Service coming due in such Fiscal Year on the Series 2004 Note, Outstanding Parity I~iotes, any Additional Parity Obligations and all other debt secured b_y any portion of the Pledge Revenues b_y at least 1.5 .times. SECTION 11. APPLICATION OF NOTE PROCEEDS. The proceeds of the Series 2004 Note shall first be applied by the Village to pay the costs of .preparation and issuance of the Series 2004 Note and thereafter shall be used by the Village to pay the Project Costs. The Lender shall have no responsibility for~the use of the proceeds of the Series 2004 Note, and the • use of Series 2004 Note proceeds by the Village shall in no way affect the rights of the Lender. -9- SECTION l2. CONDITIONS PRECEDENT. The obligation of the Lender to make the Loan is subject to the satisfaction of each of the following conditions precedent on or before the closing date: (i) Action. The Lender shall have received copies of all action taken by the Village approving the execution and delivery by the Village of this Agreement and the financing documents to which tl~e Village is a party, in each case certified as complete and correct as of the closing date. tii} Incumbency of Officers. The Lender shall have received an incumbency certificate of the Village in respect of each of the officers who is authorized to sign this .Agreement and the financing documents to which it is a party on behalf of the Village. (iii) Opinion of Counsel to the Village. The Lender shall have received a written opinion of counsel to the Village covering matters relating to the transactions contemplated by this Agreement and the financing documents, in form and substance satisfactory to the Lender. (iv) Opinion of Bank Counsel. The Lender shall have received a. letter from Bank Counsel in form and substance satisfactory to the Lender. (v) No Default, Etc. No Default shall have occurred and be continuing as of the closing date or will result from the making of the Loan and ;the representations and warranties made by the Village shall be true and correct in all material respects on and as of the closing date, as if made on and as of such date. (vi) Other Documents. The Lender shall have received such other documents, certificates and opinions as the Lender or its counsel shall have reasonably requested. SECTION 13. REPRESENTATIONS AND WARRANTIES. The Village represents and warrants to the Lender that: A. Organization. The Village is a political subdivision of the State of Florida. B. Authorization of Agreement and Related Documents. The Village has the power a;~d has taken all necessary action to authorize the execution, delivery and performance of the Village`s obligations under this Agreement and each of the financing documents to which it is a party in accordance with their respective terms. This .Agreement has been duly executed and delivered by the Village and is, and each of the financing documents to which it is a party when executed and delivered will be, legal, valid and binding obligations of the Viiiage enforceable against the Village in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or moratorium applicable to the Village and general equitable principles regarding the availability of specif c performance. C. Pledged Funds. The Village currently receives the Franchise Fees and the Public Service Taxes, and is legally entitled to pledge the Pledged Funds to pay the principal of and interest on the Series ?004 Note, when due. The Pledged Funds are estimated to be sufficient to pay the principal of and interest on the Series ?004 Note as the same becomes due and to make -10- al] other payments required to be made from such Pledged Funds by the terms of this A reement g or pursuant to which all or any portion of the Pledged Funds may be obligated. D. Financial Statements. The financial statements of the Village for the year ending September 30, 2002, copies of which have been furnished to the Lender, have been prepared in accordance with generally accepted accounting principles and present fairly the financial condition of the Village as of such date and the results of its operations for the period then ended. Since such date, there has been no material adverse change in the financial condition, revenues (including, without limitation, the Public Service Taxes and the Franchise Fees); properties or operations of the Village. SECTION 14. TAX COMPLIANCE. Neither the Village nor any third party over whom the Village has control, will make any use of the proceeds of the Series 2004 Note at any time during the term thereof which would cause the Series 2004 Note to be "private activity bonds" within the meaning of Section 103(b)(1) of the Code or "arbitrage bonds" within the meaning of Section 103(b)(2) of the Code. The Village covenants throughout the term of the Series 2004 Note to comply with the requirements of the Code and the Regulations, as amended from time to time. The Village has caused the obligation to be deemed a "qualified obligation" within the meaning of Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. Should subsequent but currently unforseen actions by the Village cause the obligation to be classified as a "non-qualified obligation" pursuant to Section 265(b)(3)(B), Intemal Revenue Code of 1986, as amended, the rate shall be adjusted to that level necessary to ensure that the anticipated after tax yield contemplated by the Lender at the time of closing is received. In the event that the interest on the Series 2004 Note is ever determined to be taxable for purposes of federal or state income taxation, or in the event that any or all of the interest on the Series 2004 Note is deemed to be included in the gross income of the Lender for federal or state income taxation, or in the event the Lender is unable to deduct any other amounts as a result of purchasing or can-ying the Series 2004 Note, or in the event of a change in the alternative minimum tax or in the method of calculating the alternative maximum tax to which the Lender may be subject, or in the event of any action which would otherwise decrease the after tax yield to the Lender, the interest on the Series 2004 Note shall be subject to a full gross up modification. A determination by the Lender and its counsel shall be conclusive. In no event, however, shall the interest rate on the Series 2004 Note exceed the maximum rate permitted by law. SECTION 15. DESIGNATION PURSUANT TO INTERNAL REVENUE CODE. The Village hereby designates the Series 2004 Note as qualified tax-exempt obligations of the Village pursuant to the provisions of Section 264(b)(3)(B) of the Internal Revenue Code of 1986. SECTION 16. NOTICES. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the parties at the following addresses: • Village: Village of North Palm Beach, Florida ~O1 U.S. Highway #1 North Palm Beach, Florida 33408 ATTENTION: Finance Director Lender: Wachovia Bank, I~'ational Association 1950 Hillsboro Blvd. Deerfield Beach, Florida 33442 ATTENTION: Paul Vincent Bond Counsel: Rogers, Towers 1301 Riverplace Boulevard Suite 1500 Jacksonville, F1 32207 Attn: Peter L. Dame Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be wilt. Communication to the Lender via telecopier shall be confirmed by delivery of a hard copy thereof to the Lender not later than two (2) Business Days after such communication by telecopier. Notices to the Paying Agent shall be effective only upon the receipt thereof by the Paying Agent. SECTION 17. EVENTS OF DEFAULT DEFINED. The following shall be "Events of Default under this Agreement and the terms "Events of Default" shall mean (except where the context clearly indicates otherwise), when whenever such term is used in this Agreement, any one or more of the following events: A. Failure by the Village to timely pay any loan repayment within ten (10) days of the date on which such are due and payable; B. Failure by the Village to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Agreement for a period of thirty (30) days after written notice, except to the extent some other grace period shall be provided in regard to a covenant, specifying such failure and requesting that it be remedied, is given to the Village by the Lender, unless the Lender shall agree in writing to an extension of such time prior to its expiration; C. Any warranty, representation or other statement by the Village or by an officer or agent of the Village contained in this Agreement or in any instrument furnished in compliance with or in reference to this Agreement is false or misleading in any material adverse respect; D. A petition is filed against the Village under any bankruptcy, reorganization, • arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now' or hereafter in effect, and an order for relief is entered or such petition is not dismissed within sixty (60) days of such filing; -12- • E. The Village files a petition in voluntar bankru tc or seekin relief under an Y P Y g Y provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the tiling oi`any petition against it under such law; F. The Village admits insolvency or bankruptcy or its inability to pay its debts as they become due or is generally not paying its debts as sucl: debts become due, ar becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian (including without limitation a receiver, liquidator or trustee) of the Village or any of its property is appointed by court order or takes possession thereof and such order remains in effect or such possession continues for more than 60 days; or G. Any debt of or assumed by the Village (i) is not paid when due nor within any applicable grace period in any agreement or instrument relating to such debt, (ii) becomes due and payable before its normal maturity by reason of a default or event of default, however, described, or (iii) becomes subject to a moratorium. SECTION 18. REMEDIES. The Lender may sue to protect and enforce any and all rights, including the right to the appointment of a receiver, existing under the laws of the State of Florida, of the United States of America, or granted and contained in this Agreement, and to enforce and compel the performance of all duties required by this Agreement or by any applicable laws to be performed by the. Village or by any officer thereof, and may take all steps to enforce this Agreement to the full extent permitted or authorized by the laws of the S-fate of Florida or the United States of America. „ In addition, upon the occurrence of an Event of Default described in Sections 17D or 17E above, and upon the occurrence of any other Event of Default and 30 days notice to the Village by the Lender, the principal of and interest on the Series 2004 Note shall immediately become due and payable. Any amount due hereunder not paid when due shall bear interest at the default rate equal to the interest rate on the Series 2004 Note plus 3% per annum. If an Event of Default shall happen and shall not have been remedied, the Village, upon the direction of the Lender, shall deposit all the Franchise Fees and Public Service Taxes into the Sinking Fund and shall apply all Pledged Funds as follows and in the following order: 1. to the expenses IncllrrPd bva.ny trilste~ nr rerei~ier in enfnrCing the ~/iilage~~ obligations, including their reasonable attorneys' fees and costs, whether or not suit be brought including, without limitation, the institution of voluntary or involuntary proceeding under the U.S. Bankruptcy Code. including such. fees and costs at trial or on appeal; 2. to the payment of the reasonable and proper charges, expenses and liabilities of • the trustee or receiver; 3. to the payment of interest and principal due on the Series 2004 Note, the Outstanding Parity Notes and any Additional Parity Obligations. -13- • SECTION 19. NO RECOURSE. No recourse shall be had for the payment of the principal of and interest on the Series 2004 Note or for any claim based on the Series 2004 Note or on this Agreement, against any present or former member or officer of the Village or any person executing the Series 2004 Note. SECTION 20. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any case where the date for making any payment ar the last date for performance of any act or the exercise of any right, as provided in this Agreement, shall be other than a Business Day, then such pa}~rient or performance shall be made on the succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, provided that interest on any monetary obligation hereunder shall accrue at the applicable rate to and including the date of such payment. SECTION 21. DEFEASANCE. If, at any time, the Village shall have paid, or shall have made provision for payment of, the principal and interest with respect to the Series 2004 Note and all costs and expenses of the Lender payable under this Agreement, then, and in that event, .~, the pledge of and lien on the special funds pledged in this Resolution in favor of the Lender shall be ro longer ir. effect and the Village shall have no further obligation to comply with the covenants contained in Section 10 hereof, other than the covenant contained in paragraph (A) of Section 10. For purposes of the preceding sentence, deposit of Federal Securities in irrevocable trust with a banking institution or trust company, for the sole benefit of the Series 2004 Note, with respect to which Federal Securities the principal of and interest will be sufficient to make timely payment of the principal and interest on the Series 2004 Note shall be considered "provision for payment." SECTION 22. AMENDMENTS, CHANGES AND MODIFICATIONS. This Agreement may be amended only with the written consent of the Lender, which consent shall not be unreasonably withheld. SECTION 23. WAVER OF JURY TRIAL. To the extent permitted by applicable law, each of the Village and the Lender, knowingly, voluntarily and intentionally waives any right each may have to a Trial by Jury in respect of any litigation based on, or arising out of under or in connection with this Agreement, the Series 2004 Note or any agreement contemplated to be executed in connection w-ith this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party with respect hereto. This provision is a material inducement to the lender to enter into this Agreement. CFfvTI(1N 7d. BTT~TTIII~T(: EFFECT To the exte~.t prvvidCd h creiii, t hiS Agrcciiiciit siiaii be binding upon the Village and the Lender and shall inure to the benefit of the Village and the Lender and their respective successors and assigns. SECTION 25. SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not • invalidate or render unenforceable any other provision hereof. -14- SECTION 26. EXECUTION IN COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. SECTION 27. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State. i?v WiTi~1ESS WHEREOF, the parties hereto have duly executed this. Agreement as of the date first above written. VILLAGE OF NORTH PALM BEACH, FLC'~ "~ ' (SEAL) ATTEST: By: y: / Village Clerk APPROVED AS TO LEGAL FORM: illage A rney WACHOVIA BANK, NATIONAL ASSOCIATION By: Title: Vice President • s ~ . ~ T -15- C~ EXHIBIT A NO. R- I FORM OF NOTE VILLAGE OF NOR"I'H PALM BEACH, FLORIDA CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2004 RATE OF INTEREST MATURITY DATE DATE OF ISSUE Variable July 1, 2009 March 1, 2004 REGISTERED OWNER PRINCIPAL AMOUNT WACHOVIA BANK, NATIONAL ASSOCIATION, TWO HUNDRED AND THIRTY THOUSAND DOLLARS KNOW ALL MEN BY THESE PRESENTS, that the Village of North Palm Beach, Florida (the "Village"), for value received, hereby promises to pay to the Registered Owner - above or registered assigns, solely from the special funds mentioned below, the Principal Amount shown above, such Principal Amount to be paid on the dates and in amounts set forth on the Amortization Schedule attached to this Note with a final payment due on the Maturity Date set forth above, and to pay solely from such special funds, interest thereon from the Date of Issue set forth above to the date of payment thereof, at the annual variable Rate of Interest described herein until payment of the Principal Amount above stated, payable semi-annually on the 15` day of August and February in each year, commencing August 1, 2004. This Note shall bear interest at a fluctuating rate of interest at all times equal to the 30-day LIBOR Rate (as defined on the Agreement referred to below) plus 73 basis points (.73%), such interest to be calculated on a 360-day year consisting of twelve 30-day months. The Rate of Interest on this Note is subject to adjustment as set forth on Schedule 1 hereto. The principal of and interest on this Note are payable in lawful money of the United States of America by check or draft by the Village Clerk of Village of I~TOrth Palm Beach, Florida, as paying agent and registrar (the "Registrar"), provided that the final payment shall be made only upon the presentation and surrender hereof at the office of the Registrar. This Note may be prepaid in whole or in part prior to maturity. Prepayments shall be applied, first, to interest accrued as of the date of such prepayment, and second to principal. Notice of such prepayment shail be given in the manner and to the extent specified by the Agreement. If this Note is prepaid in part, the Registered Owner shall enter an appropriate • notation thereof in the Partial Redemption Record below. This Note is issued under the authority of Section i 66, Florida Statutes, and other applicable provisions of ]aw, and pursuant and subject to the terms and conditions of a resolution A-1 duly adopted by the Village on February _, 2004 (the "Resolution"), and a Loan Agreement, dated March 1, 2004 (the "Agreement"), between the Village and the initial purchaser of the Series 2004 Note, to which reference should be made to ascertain those terms and conditions. This Note is payable from and secured by a lien upon and pledge of the Pledged Funds, which include (a) Franchise Fees (b) Public Service Taxes, and (c) the income and investments held in the funds and accounts created by the Agreement all in the manner and as more particularly described in the Agreement. This Note shall not constitute a general obligation or indebtedness of the Village, and the Lender shall never have the right to require or compel the levy of taxes on any property of or in the Village for the payment of the principal of and interest on this Note. This Note shall not constitute a lien upon the Project, or upon any property of or in the Village, but shall be payable solely from the Pledged Funds in the manner provided in the Agreement. Reference is made to the Agreement for the provisions relating to the security for payment of this Note and the duties and obligations of the Village hereunder. The Village has entered into certain covenants with the Lender for the terms of which reference is made to the Agreement. In particular, the Village has reserved the right to issue additional obligations payable from and secured by a lien upon and pledge of the Pledged Funds on a parity ~~ith the Note, upon compliance with certain conditions set forth in the Agreement. The Village has also reserved the right to defease the lien of the Note upon the Pledged Funds upon making provision for payment of the Note as provided in the Agreement. This Note is and has all the qualities and incidents of a negotiable instrument under the laws of the State of Florida. It is hereby certified and recited that all acts, conditions and things required by the Constitution and laws of the State of Florida to happen, exist and be performed precedent to and in the issuance of this Note, have happened, exist and have been performed in regular and due form and time as so required. • A-2 • IN WITNESS WHEREOF, Village of North Palm Beach, Florida, has caused this Note to be executed by the Mayor, and attested by the Village Clerk, either manually or with their facsimile signatures, and its seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, and this Note to be dated as of March 1, 2004. (SEAL) AT Y~ ~- illage Clerk VILLAGE OF NORTH PALM BEACH, FLORIDA B y: A-3 REGISTRAR'S CERTIFICATE OF AUTHENTICATION This note is the note of the issue described in the Resolution. Village Clerk of the Village of North .Palm Beach, Florida As ar Y~ Au or ed Signature March 1,2004 Date of Authentication • .A-4 Amortization Schedule Date Principal Interest Total A-~ PARTIAL REDEMPTION RECORD Principal Principal Balance Date of Partial Signature of Redeemed Due Redemption Registered Owner • A-6 • Schedule A Adjustment to Interest Rate The interest rate on this Note shall be subject to adjustment in the event of a change in certain tax laws and regulations as set forth below: Adjustment to Interest Rate (a) Change in Maximum Corporate Tax Rate. If the maximum federal corporate income tax rate for the Lender (or in the case of another institutional holder of the Note, such holder or its holding company) and its subsidiaries (collectively, the "Lender") during any period in which interest is accruing, shall be other than 35%, then the interest on the Note dur7ng such period shall be modified by multiplying the interest on the Note (as adjusted) by a fraction equal to (1 - A)/.65 where A equals the maximum marginal corporate income tax rate then in effect. (b) Alternative Minimum Tax Where Interest on the Note is a Direct Tax Preference Item. If the Lender or its parent holding company pays an alternative minimum tax in any tax °~~' year and the interest on the Note is a direct tax preference item under section 57(a)(5) or any successor provision of the Internal Revenue Code then the interest on the Note for the period . during such tax year in which interest is accruing on the Note shall be increased during such accrual period by an amou~It equal to (A - B) x C where: (1) A equals the interest on the Note expressed as a percentage; (2) B equals the Lender's Adjusted Cost of Funds; and (3) C equals the maximum marginal rate of the alternative minimum tax expressed as a decimal (currently .20). "Lender's Adjusted Cost of Funds" means the fraction (expressed as a percentage), determined by the Lender, of the total interest expense of the Lender for each calendar year divided by the total average adjusted bases of all assets bf the Holder during the calendar year as determined under Section 265(b)(2)(B) of the Code or any successor provision thereto. (c) Alternative Minimum 1'ax Where Interest on the Note is an Indirect Tax Preference Item. If the Lender or its holding company pays an alternative minimum tax in any tax year and the interest on the Note is not a direct tax preference item under section 57(a)(5), but is an indirect tax preference item because of the application of section 56(g) or any successor provision of the Intemal Revenue Code then the interest rate for the period during such tax year in which interest is accruing on the Note shall be increased during such accrual period by an amount to (A - B) x C where: (1) A equa}s the interest on the Note expressed as a percentage; • (2) B equals the Lender's Adjusted Cost of Funds; and (3) C equals 75% of the maximum marginal rate of the alternative minimum tax expressed as a decimal, -or, if the Code is amended to effectively increase or decrease the A-7 percentage of interest on the Note which is subject to such inuireci alte,~,ative ,~,ini,;,u,~, tax, then C shall equal the percentage of such interest on the Note which is effectively subject to such indirect alternative minimum tax multiplied by the maximum marginal rate of the alternative minimum tax expressed as a decimal. (d) Loss of Federal Income Tax Deduction for State Income Taxes. If the federal income tax deduction for state income taxes paid on the interest on the Note during any period is reduced because of any change in the tax laws or regulations then the interest on the ItiTote shall be increased during such period by an amount equal to A x B x C x D where: (i) A equals the fraction (expressed as a decimal) of the total stale income tax disallowed as a result of such tax law change; (2) B equals the rate of the applicable state income tax (expressed as a decimal); (3) C equals the maximum federal corporate tax rate then in effect for the Lender (expressed as a decimal); and (4) D equals the interest on the Note (expressed as a percentage). (e) Partial. Taxability. If the interest on the Note during any period becomes partially taxable because of any change in the tax laws or regulations, then the interest on the Note shall be increased during such period by an amount equal to (A - B) x C where: (1) A equals the Taxable Rate (expressed as a percentage); (2) B equals the interest on the Note (expressed as a percentage); and (3) C equals the fraction of the interest on the Note which has become taxable as the result of such tax change (expressed as a decimal). (f) Other Change in Tax Laws. If the tax laws or regulations are amended to cause the interest on the Note to be taxable, to be subject to a minimum tax or an alternative minimum tax or to otherwise decrease the after tax yield on the Note to the Lender (directly or indirectly, other than a change described in (a) through (e) above or because of a Determination of Taxability) then the interest on the Note shall be adjusted to cause the yield on the Note, after payment of any increase in tax, to equal what the yield on the Note would have been in the absence of such change or amendment in the tax laws or regulations. Th e above adjusim°.nt°i shall be cumulative, but in no event shall the interest on the Note exceed the maximum permitted by law. The above adjustments to the interest rate on the Note shall be effective on the effective date of the applicable change in the tax laws or regulations. All tax rates and interest rates are expressed as annual rates. However, proper partial adjustment shall be made if the tax Ian- change is effective after the first day of the Lender's tax year or if the interest on the Note does not accrue for the entire tax year of the Lender. Adjustments which create a circular calculation because the interest on the Note is affected by the calculation shall be carried out sequentially, increasing the interest on the Note accordingly in each successive calculation using as the new value the increase in the interest rate on the Note, until the change on the interest rate on the-Vote caused by the next successive calculation of the adjustment is de A-8 minimis. if more than one of paragraphs (a) though (e) apply, then the interest on the Note shall be adjusted in the order in which listed above. Non-Bank Qualified Rate In the event the Note is not a "qualified tax-exempt obligation" under Section 265(b)(3)(B) of the Internal Revenue Code, the interest rate on the Note shall be adjusted to that interest rate necessary to ensure that the anticipated after tax yield contemplated by the Lender at the time of original purchase of the Note is received. Taxable Rate Notwithstanding the foregoing, in the event of a "Determination of Taxability" (as hereinafter defined), this Note shall bear interest at the rate equal to the Taxable Rate (the "Taxable Rate"), from and after and retroactively to the date as of which such Determination of Taxability is made and the Noteholder shall be entitled to such additional interest on this Note. For purposes hereof, "Determination of Taxability" means the circumstance of the interest on the Note becoming includable for federal income tax purposes in the gross income of the Lender as a consequence of any act, omission or event whatsoever and regardless of whether the same was within or beyond the control of the Village. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the Village or the Lender of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that the interest on the Note is includable in the gross income of the Lender; (ii) the issuance of any public or private ruling of the Internal Revenue Service that the interest on the Note is includable in the gross income of the Lender; or (iii) receipt by the Village or Lender of an opinion of a Lender Counsel that the interest on the Note has become includable in the gross income of the Lender for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the Note is deemed includable in the gross income of the Lender. In no event, however, shall interest be charged or paid in an amount in excess of the maximum interest rate permitted to be paid under applicable law. Additional Definitions "Prime Rate" means that index rate of interest which the Lender, from time to time announces as its prime rate, which rate is an index rate for guidance to loan officers and is not necessarily the best or lowest rate charged borrowing customers of the Lender, or if such rate is no longer announced, such comparable rate as shall be determined by the Register Owner. "Taxable Rate" means a rate equal to the Prime Rate times that percentage which after the Determination of Taxability will result in the same after-tax yield to the Registered Owner of the Note as before said Determination of Taxability. l• A-9 • f)>r>FIC,EF~S~ CERTiiriCATiE Vl-'e, the undersigned officers and officials of the Village of North Palm Beach, Florida (the "Village"), hereby execute this certificate in connection with the issuance and delivery by the Village of its $230,000 Capital Improvement Revenue Note, Series 2004, dated March 1, 2004 (the "Note"). The Note will be issued in fully registered form registered in the name of W achovia Bank, National Association. Capitalized terms used herein and not otherwise defined shall have the same meari:tgs as set forth ir. Resolution No. 2004-_, duly adopted by the Village Council of the Village (the "Council") on February _, 2004 (the "Resolution") and the Loan Agreement, dated March 1, 2004, between the Village and the Bank (the "Loan Agreement"). Capitalized terms used in this certificate shall have the meanings set forth in the Loan Agreement. Resolution. The Resolution is in full force and effect. None of the proceedings or authority for the issuance, sale, execution and delivery of the Note have been repealed, modified, amended, revoked or rescinded. The Village is not in material breach of any of the covenants and obligations in the Resolution and the Loan Agreement, and all payments required to be made into the funds and accounts provided therein have been made to the full extent required. Security. The Note is secured by a pledge of and lien on the franchise fee and public service taxes received by the Village in each year (the "Pledged Revenues") pursuant to ordinances and resolutions of the Village authorizing and imposing such fees and taxes (the "Pledged Revenues Ordinances") to pay the principal of and interest on the Note. The Pledged Revenue Ordinances are and will be for the full term of the Note in full force and effect. Except .. for the Outstanding Parity Notes of the Village, the Pledged Revenues are not pledged to any obligations of the Village. Litigation. There is no litigation pending, or to our best knowledge threatened, restraining or enjoining the authorization, sale, issuance or delivery of the Note, the execution and delivery of the Loan Agreement, or the collection of the Pledged Revenues, or ability of the Village to impose and collect the Pledged Revenues to pay the debt service on the Note, or affecting in any way the right or authority of the Village to pay the Note and the interest thereon, or in any manner affecting the proceedings and authority for the authorization, sale, execution, issuance or delivery of the Note and the execution and delivery of the Loan Agreement, or affecting directly or indirectly the validity of the Note or the Loan Agreement, or of any provisions made or authorized for their payment, or the corporate existence of the Village, or the title of the present officers of the Council, or any of them, to their respective offices. No Conflict. The issuance of the Note and the entering into and performance by the Village of the Loan Agreement uv~ill not conflict with or constitute a breach or default by the ViiIage of any existing law, court or administrative regulation, decree, or order or any agreement, indenture, lease or other instrument to which the Village is subject or by which the ViiIage or its property is or may be bound. i~ii~aii a.iui ~vi~ditivii. Since September 3n, 2003, nv material ad :'erne change lias • occurred in the financial position or results of operations of the Village. The Village has not, since September 30, 2003, incurred any liabilities other than in the ordinary course of business. Elected Officials. The names of the members of the Council and the dates of commencement and expiration of their respective terms of office are as follows: Member David B. No171s Charles R. O'Meilia Joseph A. Tringali Donald G. Noel Edward M. Eissey, Ph.D Term Began D3~~ ?03 63/~ o®.z os/aos~ 4d~~ 0~a2. Term Ends v't.~/~CJc~a l~.3'~.a Od 5L 03/.200 ~ O 8/.24 SL David B. Norris is the duly elected Mayor. His term as Mayor began in 1~~ -~~, and expires in~~~~,~.~f Charles R. O'Meilia is the duly elected Vice Mayor. His current term as - yoe began in ~Qy3 and ends in ,1~~ , ~OD,c~ A~i°o~.vr~d Kathleen Kelly is the duly elects Village Clerk. Her term of office began in Appointed Officers. Dennis Redmond. is the duly appointed Village Manager and serves at the pleasure of the Council. _ Shaukat Khan is the duly appointed Finance Director of the Village. His appointment was made in ~N~.24 /9$7 George Baldwin is the duly appointed Village Attorney and has served in such capacity at the pleasure of the Council since,/~i~,•.=„r~.~, ~Q~~ Oaths, Bonds, Undertakings. All of the above persons have duly filed their oaths of office, and such of them as are required by law to file bonds or undertakings, have duly filed such bonds or undertakings in the amount and manner required by law. Signatures. The undersigned Mayor and Village Clerk duly executed the and the Loan Agreement with their manual signatures, and by our execution hereof we duly ratify and confirm cairj mani,~al cignati~rac. At the date of the signing of the Note and the Loan Agreement by the undersigned Mayor and Village Clerk, and on this date, we were and are the duly chosen, qualified and acting officers authorized to execute the Note and the Loan Agreement as indicated b_y the official titles opposite our signatures hereunder. • 2 • Seal. Tile Scdi niiiScSScd upon ibis cerit lcatc is ti7e iegaiiy' adopied, proper, aiid only official seal of the Council, and said seal has been impressed upon the Note, which action is hereby ratified. Interest Rate Ceiling. The interest rate on the Series 2004 Note is a variable rate. of interest aid will as of the date of issuance of the Note will be not more than 300 basis points in excess of the " 20 G.O. Bond Index", as published in the Daily Bond Buver for the month of February, and the Village will not require an interest rate waiver from the State Board of Administration pursuant to the provisions of Section 215.b4, Florida Statutes. Receipt. On the date hereof, the Village has received from Wachovia Bank payment in full of the purchase price for the Series 2004 Note, being the principal amount of the Series 2004 Note. Authentication and Delivery. We hereby authorize and direct, as Registrar, to authenticate and deliver the Note to or for the account of the purchaser of the Note. \NITNi.SS our hands and said seal as of March 1, 2004. (SEAL} layor illage Clerk illage Manager Finance Director • 3 • CERTIFICATE AS '1'O PUBLIC IVIEI~;TIIvGS Each of the undersigned members of the Village Council (the "Council") of the Village of North Palm Beach, Florida (the "Village"), recognizing that Wachovia Bank, National Association as purchaser of the Village's $230,000 Capital Improvement Revenue Note, Series 2004, dated March 1, 2004 (the "Note''), will have purchased said Note in reliance upon this Certificate, does hereby certify that heishe, has not met with any other member or members of the Council to discuss or reach any conclusion as to whether the actions taken by the Council with respect to said Note, the security therefor, and the application of the proceeds thereof should or should not be taken by the Council or should or should not be recommended as an action to be taken or not to be taken by the Council, except at public meetings of the Council held after due notice to the public was given in the ordinary manner required by law and custom of the Council. This certificate may be signed in any number of counterparts. WITN S REOF, we have hereunto set our hands as of March 1, 2004. Da ~s Charles R. O'Meilia • / ~. C..._! ` _ Joseph . T ngali VILLAGE OF NORTH PALM BEACH, FLORIDA $230,000 CAPITAL II\1PROVEMENT REVENUE NOTE, SERIES 2004 TAX CERTIFICATE The undersigned, Mayor of the Village of North Palm Beach, Florida (the "Village"), being duly charged, with others, with the responsibility for issuing the Village's $230,000 Capital improvement Revenue Note, Series 2004 (the "Series 2004 Note"), HEREBY CERTIFIES, pursuant to Section 148 of the Internal Revenue Code of 1986, as amended (the "Code") and Sections 1.148-0 through 1.148-11 of the Income Tax Regulations (the "Regulations"), as follows: 1. The Series 2004 Note is being issued to finance the acquisition of capital equipment (the "Project") and to pay the cost of issuing the Series 2004 Note. The proceeds of the Series 2004 Note will be applied to pay for or reimburse the cost of the Project on the date received by the Village. The proceeds will not be invested by the Village. 2. No portion of the property financed by the Series 2004 Note will be used in the trade of business of any person other than the Village. 3. Other than as provided in the Loan Agreement, dated as of March 1, 2004, relating to the Series 2004 Note, there are no moneys or investments which are reasonably expected to be used to pay debt service on the Series 2004 Note, or which are pledged as collateral for the Series 2004 Note (or subject to a negative pledge). 4. No portion of the proceeds of the Series 2004 Note will be used as a substitute for other moneys of the Village which were otherwise to be used to pay the cost of the Project and which have been or will be used to acquire, directly or indirectly, obligations producing a yield in excess of the yield on the Series 2004 Note. 5. There are no other obligations of the Village that are being sold at substantially the same time as the Series 2004 Note (within 15 days). 6. The Village will comply with the requirements of the Code in order to maintain the exclusion of the interest on the Series 2004 Note from gross income under the Code. 7. The Viiiage designated the Series 2004 Note as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code. The Village, together with all its subordinate entities or entities that issue obligations on its behalf, or on behalf of which it issues obligations, during the current calendar year, (a) has net issued and will not issue tax-exempt debt designated as qualified tax-exempt obligations in an aggregate amount exceeding • $10,000,000 (excluding private activity bonds that are not qualified 501(c)(3) bonds and certain current refunding debt to the extent permitted by Section 265(b)(3)). No entity has been or will be formed or availed of by the Village in order to avoid the limitations described in this paragraph. • 8. To the best of my knowledge, information and belief, the above expectations are reasonable. IN WITNESS WHEREOF, I have hereunto set my hand as of March I, 2004. VILLAGE OF NORTH PALM BEACH, FLORIDA ----~ i- By: ~M ~ror ~ ,~ • -2- • STATE OF FLORIDA DIVISION OF BOND FINANCE LOCAL BOND MONITORING SECTION This form represents an update and compilation of the BF2003, BF2004-A and BF2004-B forms. ' Bond Information forms (BF2003) are required to be completed by local governments pursuant to Chapter 19A-1.003, Florida Administrative Code (F.A.C.). ' Bond Disclosure forms BF2004-A (Competitive Sale) or BF2004-B (Negotiated Sale) are required to be filed with the Division within 120 days of the delivery of the issue pursuant to Sections 218.38(1)(b)1 and 218.38(1)(c)1, Florida Statutes (F.S.), respectively. ' Final Official Statements, if prepared, are required to be submitted pursuant to Section 218.38(1), F.S.. ' Please complete all items applicable to the issuer as provided by the Florida Statutes. ' PURSUANT TO SECTION 218.369, F.S., ISSUERS OF BOND ANTICIPATION NOTES ARE EXEMPT FROM THESE FILING REQUIREMENTS. BF2003 BOND INFORMATION FORM PART I. ISSUER /NFORMAT/ON 1. NAME OF GOVERNMENTAL UNIT: Vilia>;e of North Palm Beach Florida 2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER: 501 US 1-liehway # 1 North Palm Beach FL 33408 3. COUNTY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION: 4. TYPE OF ISSUER: _ COUNTY -' CITY _ AUTHORITY _ INDEPENDENT SPECIAL DISTRICT - DEPENDENT SPECIAL DISTRICT _ OTHER (SPECIFY) PART Il. BOND ISSUE INFORMATION 1. NAME OF BOND ISSUE: Capital Improvement Revenue Note, Series 2004 2. AMOUNT ISSUED: $ 230 000 3. AMOUNT AUTHORIZED: $ 230,000 4. DATED DATE: March 1, 2004 5. SALE DATE: March 1 2004 6. DELIVERY DATE: March 1, 2004 7. LEGAL AUTHORITY FOR ISSUANCE: FLORIDA STATUTES Chapter 166 SPECIAL ACTS OTHER 8. TYPE OF ISSUE: _ GENERAL OBLIGATION _ SPECIAL ASSESSMENT _ SPECIAL OBLIGATION _ REVENUE _ COP (CERTIFICATE OF PARTICIPATION)- LEASE-PURCHASE '' BANK LOAN/LINE OF CREDIT 9. A. IS THIS A PRIVATE ACTIVITY BOND (PAB)? YES '' NO B. (1) IF YES, DID THIS ISSUE RECEIVE A PAB ALLOCATION? YES NO (2) IF YES, AMOUNT OF ALLOCATION: $ .0. SPECIFIC REVENUE(S) PLEDGED: (1) PRIMARY Franchise Fees (2) SECONDARY g~hlir $rrvir'P TaXPC (3) OTHER(S) 1 11 A. PURPOSE(S) OF THE ISSUE: • (1) PRIMARY Capital EG;:ipme~t (2) SECONDARY (3) OTHER(S) B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING: (1) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR VALUE (PRINCIPAL AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT) REFUNDED. (2) REFUNDED DEBT HAS BEEN: RETIRED OR DEFEASED (3) A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? YES / NO 6. IF YES, APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY? 12. TYPE OF SALE: _____ COMPETITIVE BID NEGOTIATED __~_ NEGOTIATED PRIVATE PLACEMENT 13. BASIS OF INTEREST RATE CALCULATION, I.E., INTEREST RATE USED TO STRUCTURE THE BOND ISSUE: NET INTEREST COST RATE (NIC) % TRUE INTEREST COST RATE (TIC) CANADIAN INTEREST COST RATE (CIC) % ARBITRAGE YIELD (ARBI) SPECIFY OTHER: Variable Rate 14. INSURANCE/ENHANCEMENTS: _ AGIC _ AMBAC _ CGIC _ CLIC _ FGIC FSA HUD MBIA _ NGM _ LOC(LETTER OF CREDIT). _ OTHER (SPECIFY) / NOT INSURED 15. RATING(S): _ MOODY'S _ S & P FITCH DUFF&PHELPS _ OTHER (SPECIFY) X NOT RATED 16. DEBT SERVICE SCHEDULE: ATTACH COMPLETE COPY OF SCHEDULE PROVIDING THE FOLLOWING INFORMATION: "v"ATURITY CATES (Mv/DA`iiYR) COUPON/INTEREST RATES ANNUAL INTEREST PAYMENTS PRINCIPAL (PAR VALUE) PAYMENTS MANDATORY TERM AMORTIZATION • 2 • i 7. LIST OR ATTACH OPTiGNAL REDEiv1PTION FRGVISIONS: See attached form of :vote 18. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER. Wachovia Bank, National Association 19. PROVIDE THENAME(S)ANDADDRESS(ES)OFANYATTORNEYORFINANCIALCONSULTANTWHOADVISED THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE. '~ NO BOND COUNSEL BOND COUNSEL(S): '~ NO FINANCIAL ADVISOR '~ NO OTHER PROFESSIONALS FINANCIAL ADVISOR(S)/CONSULTANT(S): OTHER PROFESSIONALS: Village Attorney 20. PAYING AGENT .Village Clerk NO PAYING AGENT 21. REGISTRAR Village Cierk NO REGISTRAR 22. COMMENTS: PART lll. RESPONDENT INFORMATION FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT: Name and Title Dennis Redmond Phonc Company Vilia~e of North Paim Beach FORMATION RELATING TO PARTY COMPLETING THIS FORM (If different from above): ~ame and Title Peter L. Dame Phone (904) 346-5766 Company Rogers Towers, P.A. Date Report Submitted 03/01!04 3 BF2004-A and BF2004-B NOTE; The following items are required to be completed in full for all bond issues except those sold pursuant to Section 154 Part III, Sections 159 Parts II, III or V; or Section 243 Part II, Florida Statutes. 23. ANY FEE, BONUS, OR GRATUITY PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMNLOYED OR ENGAGED BY SUCH UNDERWRITER OR CONSULTANT: NO FEE, BONUS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTANT (1) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (2) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (3) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (4) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: 24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE, INCLUDING ANY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS: ~ NO FEES PAID BY ISSUER (1) COMPANY NAME Rogers Towers, Bank's Counsel FEE PAID: $ 2 000 SERVICE PROVIDED or FUNCTION SERVED: (2) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (3) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (UNLESS YOU ARE EXEMPT FROM FILING A BF2004), PLEASE PROVIDE THE Sj~NATURErAF-r51ZHER THE CHIEF EXECUTIVE OFFICER OF THE GOVERNING BODY OF THE UNIT OF LOCAL GOVE ENT OR THE G VERNMENTAL OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING THE ISSUANCE OF H BONDS: NAME (Typed/Printed): Dennis Redmond SIGNATURE: i TITLE: Vi11aPe Manager `.. GATE: March 1 2004 4 • BF2004-B ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE 25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $ PER THOUSAND PAR VALUE. OR PRIVATE PLACEMENT FEE: $ / NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE 26. UNDERWRITER'S EXPECTED GROSS SPREAD: ~ PER THOUSAND FAR VAL'uE. ~ NO GROSS SPREAD PART IV. CONTINUING DISCLOSURE INFORMATION In order to better serve local governments, the Division of Bond Finance will remind issuers as their deadlines approach for filing continuing disclosure information required by SEC Rule 15c2-12, based on the following information: 27. Is the issuer required to provide continuing disclosure information in accordance with SEC Rule 15c2-12? Yes __'~_ No 28. If yes, on what date is the continuing disclosure information required to be filed? ---------------------------- 29. Provide the following information regarding the person(s) responsible for filing continuing disclosure information required by SEC Rule 15c2-12 and the continuing disclosure agreement (including other obligated parties, if appropriate). Name: ----------------------------------------- Title: --------------------- - - ------------------ Mailing Address: _________________________________ --------------------------------- Telephone Number:_______________________________ FAX Number: _______ ---------------------------- E-mail address (if e-mail notification is requested): __________________ PART V. RETURN TH1S FORM AND THE FINAL OFFICIAL STATEMENT, IF ONE WAS PREPARED, TO: Courier Deliveries: Division of Bond Finance State Board of Administration 1801 Hermitage Blvd., Suite 200 Tallahassee, FL 32308 Phone: 850/413-1304 or 413-1305 FAX: 850/413-1315 • Mailing Address: Division of Bond Finance State Board of Administration P. O. Drawer 13300 Tallahassee, FL 32317-3300 REVISED Dec. 9, 2002 / bfcombo S 688886_i.pdf • GEORGE W. BALDWIN GEORGE (WALLY) BALDWIN, JR. February 25, 2004 Honorable David B. Norris, Mayor Village of North Palm Beach 501 U.S. Highway One North Palm Beach, Florida 33408 LAW OFFICES BRANT AND BALDWIN 330 FEDERAL HIGHWAY LAKE PARK, FLORIDA 33403 TELEPHONE (561) 845-1700 FACSIMILE (561) 842-1548 e-mail: brantandbaldwin@cs.com Wachovia Bank, National Association Deerfield Beach, Florida WILLIAM BRANT RETIRED CHARLES R~. P!GOTT OF COUNSEL Rogers Towers, P.A. - 1301 Riverplace Boulevard; Suite -1500- -- - - - Jacksonville, Florida 32207 Re: Village of North Palm Beach, Florida $230,000 Capital Improvement Revenue Note, Series 2004 Dear Sirs: I have acted as Village Attorney for Village of North Palm Beach, Florida (the "Village") in connection with the authorization of a Loan Agreement (the "Loan Agreement") between Wachovia Bank, National Association, Deerfield Beach, Florida (the "Noteholder") and the Village and the delivery by the Village of its $230,000 Capital Improvement Revenue Note, Series 2004 (the "Series 2004 Note"), payable to the Noteholder, dated March 1, 2004, and bearing interest at a variable rate of interest, pursuant to a Resolution duly adopted by the "Village Council" (the "Council") the Village on January 22, 2004 (the "Resolution"). The Series 2004 Note is secured by a pledge of and lien on the franchise fees and public service taxes received by the ~~i!!age under (the "Pledged Revenue Ordinances"). I have examined all proceedings of the Council in connection with. the authorization and the delivery of the Loan Agreement and the Series 2004 Note by the Village. Based thereon, ! am of the opinion that: (1) The Village is a municipal corporate organized under the State of Florida (the • "State") and had and has good- right and lawful authority under the Constitution and laws of the State to adopt the Resolution, to authorize and issue the Series 2004 Note, and to enter into and perform its obligations under the Loan Agreement. Honorable David B. Norris, Mayor Village of North Paim Beach • VVachovia Bank, National Association Rogers Towers, P.A. February 25, 2004 Page 2 (2) The Village has the power to enact or adopt the Pledged Revenue Ordinances and the Pledged Revenue Franchise Ordinances have been duly enacted by the Village and are in full force an effect. (3) The Resolution has been duly adopted by the Council, is in full force and effect, and the Resolution, the Loan Agreement and the Series 2004 Note are valid and binding obligations of the Village enforceable in accordance with their terms as part of its contract with the holders of the Series 2004 Note, except to the extent that the enforceability thereof maybe limited by bankruptcy, insolvency or other laws affecting creditors' rights generally and to the exercise of judicial discretion. - (4) As of the date hereof, the Village has duly performed all obligations to be performed by it pursuant to the Resolution and the Loan Agreement. (5) To the best of my knowledge, the Village is not in any material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other material instrument to which the Village is a party or to which the Village or any of its property or assets is otherwise subject, including the Resolution, which would have a material, adverse impact on the Village's ability to perform its obligations under the Resolution and the Loan Agreement and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default on the part of the Village or the other parties thereto under any such instruments. (6) To the best of my knowledge, the enactment or adoption of the Pledged Revenue Ordinances, the adoption of the Resolution and the execution and delivery of the Series 2004 Note and the Loan Agreement, and compliance with the provisions on the Village's part contained therein, will not conflict with or constitute a breach of or default under anyjudgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Village is a party or to which the Village or any of its nr~pert~i nr agcetc is ntheMiice subject nor ~A~ill any such exeCUtlon, del,vcr`y, advptlCn yr compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Village or under the terms of any such instrument, except as expressly provided in the Resolution, the Loan Agreement and the Series 2004 Note. • (7) There is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or, to the best of my knowledge, threatened against or affecting the Village, nor to the best of my knowledge is there any basis for such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect Honorable David B. Norris, Mayor Village of North Faim Beach . V1~'achovia Bank, iJationai Association Rogers Towers, P.A. February 25, 2004 Page 3 upon the transactions contemplated by the Resolutionand the Loan Agreement or the validity of the Series 2004 Note, the Loan Agreement and the Resolution. {8 j Aii approvals, consents, authorizations and orders of any governmental authority or agency having jurisdiction in any matter which would constitute a condition precedent to the performance by the Village of its obligations under the Series 2004 Note, the Resolution and the Loan Agreement have been obtained and are in full force and effect. Yours very truly, George . Bal win GWB:nr Village\Capital Improvement Revenue Note I ORDINANCE N0, 14-80 AN ORDINANCE G NTING TO FLORIDA POWER & LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS~AN ELECTRIC FRANCHISE, IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, AND PROVIDING FOR MONTHLY PAYMENTS TO THE j VILLAGE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF NORTH PALM BEAC}i, FLORIDA: Section 1. That there is hereby granted to Florida Power & Light 9 Company (hereir. called the "Grantee"), its successors and assigns, the non-exclusive right, privilege or franchise to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements and other public places in the Village of North Palm Deach, Florida (herein called the "Grantor") and its successors, in accordance with established practice with respect to f electrical construction and maintenance, for the period of thirty (30) years from the date of acceptance hereof, electric light and power facilities (including conduits, poles, wires and transmission lines, and, for its own use, telephone and telegraph lines) for tl~e purpose of supplying electricity to Grantor, and its successors, and inhabitants I thereof, and persons and corporations beyond the limits thereof, Section 2. As a condition precedent to the taking effect of I this grant, Grantee shall have filed its acceptance hereof with the Grantor`s Clerk within thirty (30) days hereof. Section 3. That the facilities shall be so located or relocated and so erected as to interfere as little as possible with traffic over said streets, alleys, bridges and public places, and with reasonable egress from and ingress to abutting property. T}ie location or relocation of all facilities shall be made under. the .supervision and with the approval of such representatives as the governing body of Grantor may designate for the purpose, but not so as unreasonably to interfere I ~- with the proper operation of Grantee's facilities and service. That when any porticr, of a street is excavated by Grantee in tl~e location o~ • . f relocation of any of its facilities, the portion of the street so excavated shall, within a reasonable time and as early as prac- ticable after such excavation, be replaced by the Grantee at its expense and in as good condition as it was at the time of such excavation. Section 4. That Grantor shall in no way be liable or res- _ ponsible for any accident or damage that may occur in the construction, operation or maintenance by Grantee of .its facilities hereunder, and the acceptance of this ordinance shall be deemed an agreement on the part of the Grantee, to indemnify Grantor and Bold it harmless against any and all liability, loss, cost, damage or expense, which may accrue to Grantor by reason of the neglect, default or misconduct of Grantee in the construction, operation or maintenance of its facilities hereunder. Section S. That all rates and rules and regulations established by Grantee from time to time shall at all times be reasonable and "~ Grantee's rates for electricity shall at all times be subject to such regulation as may be provided by law. I Section 6. That no later than sixty days after the first anniversary date of this grant and no later than sixty days after ~ each succeeding anniversary date of this grant, the Grantee, its successors and assigns, shall have paid to the Grantor and its successors an amount which added to the amount of all taxes as assessed, levied, or imposed (without regard to any discount for early payment or any interest or penalty for late payment), licenses, and other impositions levied or imposed by t11e Grantor upon the Grantee's electric property, business, or operations, and those of Grantee's electric subsidiaries far the preceding tax year, will equal 6% of Grantee's revenues from t}ie sale of electrical energy to residential, commercial and industrial customers within the corporate limits of the Grantor for the twelve (12) fiscal months preceding the applicable anniversary date. '- Section 7. Payment of the amount to be paid to Crantor by Grantee under the terms of Section 6 hereof shall be made in advance • by estimated monthly installments commencing ninety (90) days after -2- the effective date of this grant. Each estimated monthly installment shall be calculated on the basis of ninety percent (90'~G) of Grantee's revenues (as defined in Section 6) for t1~e monthly billing period ending sixty (60) days prior to each scheduled monthly payment. The final installment for each fiscal year of this grant shall be adjusted I to reflect any underpayment or overpayment resulting from estimated monthly installments made for said fiscal year, ~~ I Section 8. As a further consideration of this fr ~hise an_ , said Grantor agrees not to engage in the business of distributing and selling electricity during the life of this franchise or ary ' extension thereof in competition with the Grantee, its successors and assigns. Section 9. That failure on the part of Grantee to comply in any substantial respect with any of the provisions of this ordinance, shall be grounds for a forfeiture of this grant, but no such forfeiture shall ta]<e effect if the reasonableness propriety t}Zereof is protested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found that Grantee has failed to comply in ' a substantial respect with any of the provisions of this franchise, and the Grantee shall have six (6) months after the final determination of the question, to make good the default before a forfeiture shall result with the right in Grantor at its discretion to grant such additional time to Grantee for compliance as necessities in tl~e case require. Section 10, This ordinance shall take .effect on the date upon which Grantee files its acceptance. Section 11, S1~ould any section or provision of this ordinance or any portion hereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole of any part hereof, other than the part declared to be invalid, i Section 12, That all ordinances and parts of ordinances in conflict herewith be and the same are hereby repealed. -3- • PASSED First reading this 26th day of June, 1980. PASSED Final reading this 10th day of July, 1980, ~~G1- , lIi - O . (Presiding Officer) i '`_ ATTEST: Village Clerk • L -4- .. ~ ' ~ ~;. _~ I oRDZNANCE r~. u-8o ~, ~ ' I I AN CdtDINAI~E OF THE VIIZAGE OF NORTH PALM BEACH, FLlJRIL1A, GRANTLNG TO . i FLORII]A PUBLIC UTII.ITIES COP4PANY, 'ITS SUCCESSORS AND ASSIGNS, A GAS FR4.~I;FUSE AND IIviF'OSING PROVISIONS AND CONDITIONS RELATING Tt{EREID. f NOW THEREFORE BE IT ORIlA , , INID BY THE VIIZAGE COUNCII, OF t~URTH PALM BEACH, FLORIIL4: ~ Section 1. The VIISA(T OF NORTH PAiM BEACH, FLOR.II?A, a MLmicipal Corporation (herein referred to as "Grantor's hereby giants to FLORIDA PUffi.IC I UTILITIES GLt~ANY, a Florida Corporation (herein referred to as~'~Grantee") its i ~ successors and assigns, for the term of thirty (30) years beginning ten (10) ' days after the date of the final passage of this Ordinance, the right, privilege and authority or franchise to construct or otherwise acquire and i~ to own, maintain, equip and operate plants and works, and all necessary or I) desirable facilities appurtenant thereto, for the purchase, transmission , ~I distribution and sale of natur l hi h ' " a gas, w c term natural gas shall mean and li include either natural gas unmixed as delivered to Grantee or any mixture of ' i such natural gas with artificial gas or with liquefied petroleum gas or with I I 1~ both (herein referred to generally as "gas"), including the right without the payment by Grantee of any tax, assessment or charges therefor to construct, I lay, extend, maintain, renew, remove, replace, repair, use and operate gas II pipes and gas mains, and all appurtenances and appendages thereto, in, under, ~ on or across the present and future public streets, avenues, alleys, hig}nrays, bridges, easements and other public places within the present or any future ~i corporate limits of the Grantor or its successors, for the purpose of distri- buting, supplying and selling gas to Grantor or its successors,-and to persons and corporations inhabitants thereof as well as to persons or corporations ~ beyond the present or future corporate limits thereof, but nothing herein I i contained shall relieve Grantee from meeting all requirements of the Grantor's I ~ Building Code and payment of any fees, licenses or ad valorem taxes. ~ . . j Section 2. GYantee's facilities shall be so located or relocated and so erected as to interfere as little as possible with traffic over said street: • avenues, alleys, highways, bridges, easements and-other public places, and to ,, interfere as little as possible with reasonable egress from and ingress to ! abutting property. The location or relocation of all facilities shall be made I • • i Il under the supervision and with the approval of such representatives as the { gwerr!ing body of Grantcr :by desia;ute for the purpose, but not so as unreasonably to interfere with•the proper operation of Grantee's facilities ~ and service. When any portion of the Grantor's property is excavated or 'disturbed by Grantee in the location or relocation of any of its facilities, the portion of the Grantor's property so excavated or disturbed shall, within a reasonable time and as early as practicable after such excavation, be ~; replaced by the Grantee at its expense and iri as good condition as it was at li the time of such excavation, and, in addition, such work shall be done only ir: ij the mariner and. pursuant to the regulations, if any, established by the j ordinances of the Grantor. And upon failure of Grantee so to do after twenty (20) days' notice in writing shall have been given to said Grantee by the ~j representative of [he Grantor, the Grantor may repair such portion of the I~ Grantor's property that may have been disturbed by said Grantee, or replace an~ f~ ~~ excavation, and the cost of same shall be paid by said Grantee. Section 3. Subject to [he provisions hereof, Grantee shall at all ~. times during the term of this franchise, prorrQtly and without discrimination, I furnish an adequate supply of gas of standard quality and at a reasonably i. uniform and adequate pressure to be maintained on Grantee's system, to Grantor I and its successors, and to persons and corporation inhabitants thereof who request the same and who agree to abide by Grantee's reasonable rules and ~ regulations, and shall acquire, construct, maintain, equip and operate all i li necessary plants, works and facilities for the purpose, transmission, supply, Peak shaving, distribution and sale of gas for the benefit and convenience of Grantor and its inhabitants, and shall make r p on~tly such extensions to ;existing facilities as may be required by one or more customer, or prospective ~; customers; provided that if the revenues to be derived fran such extensions II shall not afford a fair and reasonable return on the cost of providing and I ~; rendering the required service, then Grantee shall be permitted to, and is ~; hereby authorized to exact from such customer or customers such reasonable ~ cash advances, contributions, minirrnm guarantees, service guarantees or other arrangements, as will enable Grantee to earn a fair and reasonable return on the cost of providing and rendering the required service. Section 4. Grantee's rates for gas shall at all times be subject to -2- ~ ~ !, I I such regulations as may be provided by law. Grantee shall not be entitled to I; claim anY value on acccnmt of *_hrs fran~*~,iss in tree ~ialue of Grantee's ~~ ~ property or rate base. I Section 5. Subject to [he consumer's consent Grantee shall have the ' ~ right to install and maintain on the premises of each of its customers meters ~' ~ for IDeasuring~gas sold and delivered and shall have the r h I ig t of ingress and j egress to [he premises of each consumer free of charge, from time to time, foi I? ~_ ~ i~ i the purpose of reading, repairing, testing and maintaining Grantee's meters ar app~tenances. Such meters and appurtenances shall at all times remain the i ~, i property of Grantee, and shall be rermvable by Grantee at any time, by lawful ~ means . ~! 'j Section 6. Grantee shall have the right to adopt and enforce reason- II able rules and regulations with respect to the extension, initiation and ~ rendering of gas service, including rules providing for the discontinuance of ~I ,, service to any customer on account of nonpayment of bills when due, or upon ~ failure to comply with the Grantee's other reasonable rules and regulations. ~I Section 7. Grantee shall indeunify and save and keep Grantor harm7.ess (~ from any and all liability by reason of dams a or in 6 juy a a,y reason or +. I. Property whatsoever on account of the negligence of Grantee in the installation '' maintenance, and operation of its facilities; provided Grantor shall promptly ~. ~i in each case notify Crantee in writing of any claim against Grantor on account thereof, and shall afford Grantee opportunity to defend the same. i i Section 8.. Within thirty (30) days after the first anniversary date ~~ of this grant and within thirty (30) days after each succeeding anniversary date during the existence of this grant, the Grantee, its successors and I assigns, shall pay to the Grantor or its successors a privilege tax equal to I~ the anrnait b which five 5 Y ()percent of the amount of its gross revenues II (gross revenues being the amount of revenues collected less adjustments) from ~~ the sale of gas to residential customers within the corporate limits of Grantor ror the twelve calendar IInnths preceding the applicable arm iversary date shall ~ ~ exceed the aernunt of any other taxes or licenses levied or imposed by Grantor I,~ against Grantee's property, business, revenues, privileges, or operations for fi the tax year preceding the begirming of the applicable privilege tax year. • I Section 9. Grantee by its acceptance hereof agrees to observe, perforu I and keep all of the,agreem~nts, undertakings and conditions hereof to be i ~ i -3- I ~ . • " ' observed, performed and kept by Grantee. ~ Section 10. Failure on the part of GYantee to comply in any ~uhsta,- tial respect with any of the provisions of this Ordinance shall be grounds foz • ' j a forfeiture of this grant, but no such forfeiture shall take effect if the i ~ reasonableness or propriety thereof is protested by Grantee until a court of i i canpetent jurisdiction (with right of appeal in either party) shall have fo~a~d !i that Grantee has failed to ccuply in a substantial respect with any of the ~ provisions of this franchise, and the Grantee shall, after the final ~I determination of the question, forthwith proceed to make good the default ~i • before a forfeiture shall result, the default to be cured in any event within Ii a period of six months with the right in Grantor at its discretion to grant ~; such additional time to Grantee for carpliance as necessities in the case !, ~; require. Section 11. In an case where there is irate tion or y r-r~ inpaisma~t of I service, or failure of su 1 of ~~ pp y gas or pressure, Grantee shall promptly remedy ~~ such condition. No interruption or iripairment' of service or failure of ~, i; supply of gas or pressure by reason of force majeure, strike, breakdown, I~ i. accident or other cause or happenigc, beyond the control of Grantee shall 1' i. constitute a breach of this Ordinance nor subject the Grantee to liability for l~ damage; Provided that such interruption or impairment of service or failure of supply of gas or pressure by reason of force majeure, strike, breakdown, i accident, or other cause or happening shall be remedied promptly. I~ is Section 12. In consideration of Grantee's under[akings hereunder as ~ evidenced by its acceptance hereof, the Grantor agrees not to engage in the I: business of distributing and selling gas during the life of this franchise or !~ ,; any gxtension thereof in competition whin the Grantee, its successors and ~j assigns. Section 13. Grantor hereby reserves the right at and after the II,i expiration or termination of this grant to purchase the property of Grantee I~ used under this scant, ~ provided by the Laws bf Florida in effect at the Ii time of Grantee's acceptance hereof, including Section 167.22 of the Florida Statutes, 1941, and as a condition precedent to the taking effect of this grant, Grantee shall give and grant to the Grantor the right to purchase so reserved. Grantee shall be deaned to have given and ,granted such right of -4- i purchase by its acceptance hereof, which shall be filed with the Grantor's Clerk within thirty (30) days after the final passage of this Ordinance. i• Section 14. A11 of the teru~, provisions and conditions hereof steal] '~ inure to and be binding upon the, respective successors and ass s of the ~ Grantor and the Grantee. Section 15. All gas franchise ordinances and parts of gas franchise f ordinances in conflict herewith shall be and the same are hereby repealed as of the effective date of this ordinance. Section 16. This Ordinance shall take effect ten (10) days after the date of its final passage and shall be published as required by law. ~® ON FIRST READII~ THIS 8TH IIAy OF MAY, 1980. ~'~ ~ ~~~~ FINAI, RFADIIV~ Ate PASSID THIS 22ND IIgY OF MAY, 1980. •i ~ ~ • ~, ~~ ' . ATTEST:.. ~' I + L'C/ -~ i ' / :' ,~ GORDON O.+JERAULD Senior Vice President ~; Florida~Public Utilities Company • '_ ~ I I' ~ !I~ ` )~ . , .. - .~ I ~ i` it I' I • MILDRED K. HALL, Corporate Secretary Florida Public Utilities Company i - i -5- • RESOLUTION NO. 5-90 A RESOLUTION OF THE VILLAGE OOUNCIL OF THE VILLAGE OF NORTH PALM BEACH, PLORIDA, AUTHORIZING A FRANCHISE BE ISSUED BY THE VILLAGE FOR SOUTHERN BELL TELEPHONE do TELEGRAPH COMPANY TO USE THE PUBLIC STREETS OF THE VILLAGE OF NORTH PALM BEACH; FLORIDA; FOR THE PURPOSE OF ERECTii~G, CONSTRUCTING, MAINTAINING AND OPERATING LINES OF TELEPHONE AND TELEGRAPH EQUIPMENT THEREON AND THEREUNDER, AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH FAUN BEACH, FLORIDA: Section 1: That a permit or permission, pursuant to . Chapter 28 of the Village Code of the Village of North Palm Beach, be, and the same is hereby, granted to the Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Company"), its successors and assigns, to construct, maintain and operate lines ~ of telephone and telegraph equipment, includin the g necessary poles, conduits, cables, electrical conductors and fiber optics and digital technology fixtures upon, along, under and over the public roads, streets, highways and rights of way of the Village of North Palm Beach, Florida, as Its business may from time to time require, provided that all poles shall be neat and symnetr(cal. Section 2: The work of erecting poles and constructing underground conduits under this Resolution shall be done subject to the supervision of the Village, and the Company shall replace or properly relay and repair any sidewalk or street that may be displaced by reason of such work, and upon failure of the Company so to do; After twenty (20) udyy° notice in writing given by the Mayor of the Village to the Company, the Village may repair such portion of the sidewalk or street that may have been disturbed by the Company, and collect the cast so incurred from the company. • Section 3: In consideration of the rlgh,ts and privileges hereto granted, the Company shall pay to the Village annually a sum equal to one percent (tA;) of the gross receipts of the Company on recurring local service revenues for services provided I i i within the corporate limits of the Village by the Company, provided that there shall be credited against such sum the amount of all taxes, licenses, fees and other impositions (except ad valorem taxes end amounts for assessments for special benefits, such as sidewalks, street pavings and similar Improvements, and occupatione2 license taxes' ~ ievled or imposed by the Village upon the Company and paid during the preceding fiscal year as defined herein. Payment shall be made to the Village for each of the years that this permtsslon is In effect and shall be based on the receipts of the Company for the preceding fiscal year. For the purposes of this payment, such fiscal year shall end on December 31. The first such payment shall be calculated on the receipts for the fiscal year ending December 31, 1988, shall be made on or before May 8, 1990, and shall be for the permission year October 14, 1988, through October 13, 1989. The second such payment shall be calculated on the receipts for the fiscal year ending December 31, 1989, shall be made on or before May 8, 1990, and shall be for the permtsslon year October 14, 1989, through October 13, 1990. Subsequent payments will be made on or before March 1 of each year for which the permission is herein granted. Section 4: If the Village wishes to verify the payments to the Village under this Resolution, the Company shall permit the Village or a designated representetlve of the Village, upon reasonable advance written notice, to review the Company's billing and payment records, upon which the a p yments were based, during normal business hours at the location of the Company where such records are maintained. However, no Company records may be duplicated or taken from the C:pn,no;n,.i.. .-- ,, ~ preinises, and the Village shall maintain the confidentlalit of Y the Information disclosed to these records and use the information sole) f t~ y °r iie purposes of verifying payments by the Company. Such Com an P y records shall be maintained by the Company for the period Federal prescribed by the Conmunlcatlons Commission and/or the Florida Public Service Commission. e Section 5: The Com en P Y shall indemnify th e Village against, and assume all !!eb!llilcs for, damages which may arise or accrue to the Vil lage for any l nJury to persons or property from the doing of a ny work herein authorized ~ or the neglect of the Compeny or any of its employees to comply with any resolution regulating the I use of the streets of the Village d , an the acceptance by the Com an `,_, P Y of this Resoluti on shall be an agreement by :t to pay to the Villa a an B y sum of money for which V:llage me the y become liable from or by reason of such lnJury, Section 6: The Com an l he Village Clerk of the Village its i acceptance of this Resolutlon w tthln sixty (60) days fro ~ m the date of its passage, Section 7: Nothin B !n this Resolution shell be construed as a surrender by the Village of It s right or power to pass resolutions g re ulatin g the use of its streets. Compeny shall eomPly with the provisions of Section 337.401 through Secti 337 404 . on , Fle. Stat., as amended from time to time as , applicable. Section 8: The permit granted by this Resolution, if accepted by the Compan y, shall be (n force and effect for a of term thirty (30) years from and after Octobe r 19, 1988. Section 9: This Resolutio n shall take effect upon the later of passe e B or receipt by the Village Clerk of Company~s acceptance of this Resolution . In the event such acceptance !s not received by the Villa e Cl g erk within sixt Y (80) days from the date of adoption of this. Resolution this Resolutio n shall. be rescinded automatically. PASSED AND ADOPTED THIS g~_ DAY OF 1990. 1'larch ~+ (Village Seal) ATTEST: MAYOR aBe er ~ e-