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EXHIBIT A - FORM OF TRUST INDENTURE rN~ 4=== l ~ EXHIBIT A FORM OF TRUST INDENTURE eo-l1^l! --------- -~----~-- Resolution 99-18 Draft #4 OS/28/99 BMO #3195 TRUST INDENTURE between CITY OF CLEARWATER, FLORIDA and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as trustee City of Clearwater, Florida Revenue Bonds (BEF, Inc. Project) Dated as of July 1, 1999 SECTION 1.01. SECTION 1.02. SECTION 1.03. SECTION 2.01. SECTION 2.02. SECTION 2.03. SECTION 2.04. SECTION 2.05. SECTION 2.06. SECTION 3.01. SECTION 3.02. SECTION 3.03. SECTION 3.04. SECTION 3.05. SECTION 3.06. SECTION 3.07. SECTION 3.08. SECTION 3.09. T ABLE OF CONTENTS ARTICLE I DEFINITIONS Definitions ................................. 5 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Captions and Headings . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE II AUTHORIZATION AND TERMS OF SERIES 1999 BONDS; ADDITIONAL BONDS Authorized Amount of Series 1999 Bonds . . . . . . . . . . . . . 24 Issuance of Series 1999 Bonds . . . . . . . . . . . . . . . . . . . . 24 Terms of Series 1999 Bonds ..................... 24 Delivery of Series 1999 Bonds; Allocation of Proceeds of the Series 1999 Bonds; Company Equity Contribution. . . . . . . . . . . . 26 Issuance and Delivery of Additional Bonds . . . . . . . . . . . . 27 Issuance and Delivery of Notes ................... 29 ARTICLE III TERMS OF BONDS GENERALLY Form of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Variable Terms ............................. 30 Execution and Authentication of Bonds .............. 30 Security for Payment of Bonds . . . . . . . . . . . . . . . . . . . . 31 Payment and Ownership of Bonds . . . . . . . . . . . . . . . . . . 31 Transfer and Exchange of Bonds .................. 32 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds. . . . 33 Safekeeping and Cancellation of Bonds .............. 34 Temporary Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ARTICLE IV REDEMPTION OF BONDS; TENDER PROVISIONS SECTION 4.01. SECTION 4.02. SECTION 4.03. SECTION 4.04. SECTION 4.05. Mandatory Sinking Fund Redemption of Series 1999 Bonds 36 Extraordinary Redemption Without Premium. . . . . . . . . . . 37 Optional Redemption of Series 1999 Bonds . . . . . . . . . . . . 37 Partial Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Company's Election to Redeem . . . . . . . . . . . . . . . . . . . 38 SECTION 4.06. SECTION 4.07. SECTION 4.08. SECTION 4.09. SECTION 4.10. SECTION 4.1l. SECTION 4.12. SECTION 4.13. SECTION 4.14. SECTION 4.15. SECTION 4.16. SECTION 5.01. SECTION 5.02. SECTION 5.03. SECTION 5.04. SECTION 5.05. SECTION 5.06. SECTION 5.07. SECTION 5.08. SECTION 5.09. SECTION 5.10. SECTION 5.11. SECTION 5.12. Notice of Redemption ......................... 38 Payment of Redeemed Bonds . . . . . . . . . . . . . . . . . . . . . 40 Variation of Redemption Provisions ................ 40 Series 1999B Bond Holders Put Option .............. 40 Moneys to Purchase Series 1999B Bonds; Duties of Tender Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Failure to Remarket Tendered Series 1999B Bonds . . . . . . . 43 Remarketing of Series 1999B Bonds ................ 43 Delivery of Series 1999B Bonds and Proceeds of Sale . . . . . 43 No Purchases or Sales After Event of Default . . . . . . . . . . 44 Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Resignation of Remarketing Agent ................. 45 ARTICLE V FUNDS AND PAYMENTS Creation of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Application of Loan Payments and Additional Payments ... 46 Bond Fund ................................ 48 Project Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Rebate Fund ............................... 49 Debt Service Reserve Fund . . . . . . . . . . . . . . . . . . . . . . 50 Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . 51 Nonpresentment of Bonds. . . . . . . . . . . . . . . . . . . . . . . 51 Application of the Balances of the Special Funds ........ 51 Investments of Special Funds and the Rebate Fund . . . . . . . 51 Valuation ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . . 3 ARTICLE VI TRUSTEE, REGISTRAR, PAYING AGENTS, AUTHENTICATING AGENTS AND TENDER AGENTS SECTION 6.0l. SECTION 6.02. SECTION 6.03. SECTION 6.04. SECTION 6.05. SECTION 6.06. SECTION 6.07. SECTION 6.08. SECTION 6.09. Trustee's Acceptance and Responsibilities . . . . . . . . . . . . . 54 Certain Rights and Obligations of the Trustee .......... 55 Fees, Charges and Expenses of Trustee, Registrar, Tender Agents, Paying Agents, Remarketing Agent and Authenticating Agents 59 Intervention by Trustee ........................ 59 Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Appointment of Co-Trustee . . . . . . . . . . . . . . . . . . . . . . 60 Resignation by the Trustee ...................... 61 Removal of the Trustee ........................ 61 Appointment of Successor Trustee ................. 62 11 SECTION 6.10. SECTION 6.11. SECTION 6.12. SECTION 6.13. SECTION 6.14. SECTION 6.15. SECTION 6.16. SECTION 6.17. SECTION 6.18. SECTION 7.01. SECTION 7.02. SECTION 7.03. SECTION 7.04. SECTION 7.05. SECTION 7.06. SECTION 7.07. SECTION 7.08. SECTION 7.09. SECTION 7.10. SECTION 7.11. SECTION 8.01. SECTION 8.02. SECTION 8.03. SECTION 8.04. SECTION 8.05. SECTION 8.06. SECTION 8.07. SECTION 8.08. SECTION 8.09. Adoption of Authentication . . . . . . . . . . . . . . . . . . . . . . 63 Registrars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Designation and Succession of Paying Agents .......... 65 Designation and Succession of Authenticating Agents ..... 65 Designation and Succession of Tender Agents . . . . . . . . . . 66 Dealing in Bonds ............................ 67 Representations, Warranties, Covenants and Agreements of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Right of Trustee to Pay Taxes and Other Charges . . . . . . . . 68 Several Capacities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 AR TI CLE VII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND HOLDERS Defaults; Events of Default . . . . . . . . . . . . . . . . . . . . . . 69 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Acceleration ............................... 70 Matters Regarding Rights, Remedies and Powers . . . . . . . . 70 Right of Holders to Direct Proceedings .............. 71 Appointment of Receivers . . . . . . . . . . . . . . . . . . . . . . . 72 Application of Moneys. . . . . . . . . . . . . . . . . . . . . . . . . 72 Rights, Remedies and Powers Vested in Trustee. . . . . . . . . 74 Rights, Remedies and Powers of Holders . . . . . . . . . . . . . 74 Termination of Proceedings. . . . . . . . . . . . . . . . . . . . . . 75 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 ARTICLE VIII SUPPLEMENTAL INDENTURES AND AMENDMENTS TO ISSUER DOCUMENTS Supplemental Indentures Generally . . . . . . . . . . . . . . . . . 77 Supplemental Indentures Not Requiring Consent of Holders . 77 Supplemental Indentures Requiring Consent of Holders . . . . 78 Consent of the Company ....................... 80 Authorization to Trustee; Effect of Supplement ......... 80 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Amendments to the Company Documents Not Requiring Consent of Holders .................................. 81 Amendments to the Company Documents Requiring Consent of Holders .................................. 82 Modification by Unanimous Consent. . . . . . . . . . . . . . . . 82 III SECTION 9.01. SECTION 9.02. SECTION 9.03. ARTICLE IX DEFEASANCE Release of Indenture .......................... 83 Payment and Discharge of Bonds . . . . . . . . . . . . . . . . . . 84 Survival of Certain Provisions . . . . . . . . . . . . . . . . . . . . 86 ARTICLE X COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE ISSUER SECTION 10.01. SECTION 10.02. SECTION 10.03. SECTION 11.01. SECTION 11.02. SECTION 11.03. SECTION 11.04. SECTION 11.05. SECTION 12.01. SECTION 12.02. SECTION 12.03. SECTION 12.04. SECTION 12.05. SECTION 12.06. SECTION 12.07. SECTION 12.08. SECTION 12.09. SECTION 12.10. SECTION 12.11. SECTION 12.12. SECTION 12.13. SECTION 12.14. Covenants and Agreements of the Issuer . . . . . . . . . . . . . . 87 Observance and Performance; Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 88 Enforcement of Issuer's Obligations ARTICLE XI MEETINGS OF HOLDERS Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Call of Meetings; Place of Meetings ................ 89 Meetings; Regulations of the Trustee . . . . . . . . . . . . . . . . 89 Voting; Speaking at Meeting; Record of Meeting . . . . . . . . 90 Miscellaneous .............................. 90 ARTICLE XII MISCELLANEOUS Limitation of Rights .......................... 92 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Suspension of Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Payments Due on Saturdays, Sundays and Holidays ...... 94 Instruments of Holders. . . . . . . . . . . . . . . . . . . . . . . . . 94 Company to be Bound; Company's Actions ........... 95 Execution Counterparts ........................ 95 Survival of Representation and Warranties ............ 95 Validity of Assignments and Security Interest .......... 95 Extent of Covenants; No Personal Liability. . . . . . . . . . . . 96 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Governing Law ............................. 96 IV EXHIBIT A Bond Form EXHIBIT B Form of Investor Letter v TRUST INDENTURE THIS TRUST INDENTURE dated as of July 1, 1999 (the "Indenture"), is made between the CITY OF CLEARWATER, FLORIDA, a municipal corporation, duly created and existing under the laws of the State of Florida (the "Issuer"), and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as trustee, located in Orlando, Florida, national banking association duly organized and validly existing under the laws of the United States of America, and authorized to exercise trust powers under the laws of the State of Florida (the "Trustee"), under the circumstances summarized in the following recitals (the capitalized terms not defined in the recitals and granting clauses are defined in Article I hereof): WHEREAS, pursuant to the Florida Constitution, the Charter of the Issuer and laws of the State of Florida, particularly Chapter 159, Part II and III, Chapter 166 and Chapter 154, Florida Statutes, and other applicable provisions of law, the Issuer is authorized to make and execute financing agreements, contracts and other instruments necessary or convenient for the purpose of facilitating the financing of certain projects, including machinery, equipment, land, rights in land and other appurtenances and facilities related thereto, to the end that the Issuer may be able to promote the health and safety of the inhabitants of the Issuer or industrial development and the people of Pinellas County and the State of Florida by increasing their access to adequate medical care and health care facilities, and to provide such financing through the issuance of revenue bonds; and WHEREAS, BEF, Inc. (the "Company") is a not-for-profit corporation organized and existing under the laws of the State of Florida, licensed under Chapter 400 of the Florida Statutes, as amended, which is engaged in the operation of the skilled nursing facilities at the Project and which will be engaged in the operation of assisted living and independent living facilities at the Project; and WHEREAS, the Issuer has determined to issue its $ aggregate principal amount of Revenue Bonds, Series 1999A (BEF, Inc. Project) (the "Series 1999A Bonds"), $ aggregate principal amount of Revenue Bonds, Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the "Series 1999B Bonds") and $ aggregate principal amount of Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project) (the "Series 1999C Bonds" and together with the Series 1999A Bonds and the Series 1999B Bonds, the "Series 1999 Bonds") for the principal purpose of financing the Project Costs, as more particularly described in the Agreement; and WHEREAS, the Series 1999 Bonds and any Additional Bonds (collectively, the "Bonds") to be issued under this Indenture do not constitute a debt or a pledge of the faith and credit of the Issuer, the State of Florida or any political subdivision or agency thereof and the holders or Holders of the Bonds shall have no right to have taxes levied by the Issuer, the State of Florida or any political subdivision or agency thereof for the payment of principal of or interest or any 1 premium on the Bonds (although the Issuer has taxing power, it is prohibited by Section 159.34, Florida Statutes, from using any funds of the Issuer to pay debt service or the Series 1999 Bonds); and WHEREAS, the proceeds of the sale of the Series 1999 Bonds will be loaned to the Company and the Company will be obligated pursuant to the Agreement and the Series 1999 Note to repay that loan, and the Company's repayment obligation will be secured by the Mortgage, which will be assigned (other than the Unassigned Rights thereunder) to the Trustee by the Assignment; and WHEREAS, the Issuer is authorized to execute and deliver this Indenture and to observe and perform all covenants, agreements and obligations to be observed or performed on its part hereunder; and WHEREAS, the execution and delivery of this Indenture has been duly authorized by the Issuer; and WHEREAS, all acts and conditions required to happen, exist and be performed precedent to and in the issuance of the Series 1999 Bonds and the execution and delivery of this Indenture have happened, exist and have been performed, or at the delivery of the Series 1999 Bonds will exist, will have happened and will have been observed or performed, (i) to make the Series 1999 Bonds, when issued, authenticated and delivered, legal, valid and binding special obligations of the Issuer in accordance with the terms of the Series 1999 Bonds and this Indenture, and (ii) to make this Indenture a legal and valid trust agreement for the protection of the Bonds and the Holders in accordance with its terms; and WHEREAS, the Trustee has accepted the trusts created under this Indenture, and the Registrar has accepted its obligations under this Indenture, and in evidence thereof, this Indenture has been executed and delivered thereby; NOW, THEREFORE, THIS INDENTURE WITNESSETH, that (a) to assure (i) the payment of the Debt Service Charges on the Bonds according to the true intent and meaning of the Bonds, and (ii) the observance and performance of all of the covenants, agreements, obligations, terms and conditions contained in the Bonds and herein; (b) to declare the terms and conditions upon and subject to which the Bonds are and are intended to be issued, held, protected and enforced; and (c) in consideration of the premises, the acceptance by the Trustee of the trusts created herein, the purchase and acceptance of the Series 1999 Bonds by the Holders, and other good and valuable consideration, the receipt of which is acknowledged hereby; 2 the Issuer has executed and delivered this Indenture, and does hereby transfer and irrevocably and absolutely assign to the Trustee, and grant to the Trustee a security interest in, all right, title and interest of the Issuer in and to: (i) the funds and accounts created under this Indenture and all moneys and investments therein, except for amounts on deposit in the Rebate Fund and investment income thereon which are hereby pledged to the United States of America to secure the obligation of the Company and the Issuer to make payments of the Rebate Amount pursuant to Section 148(f) of the Code; (ii) the Agreement, other than "Unassigned Rights"; (iii) the Loan Payments and the Additional Payments, excepting Additional Payments made pursuant to Section 4.2 (a) of the Agreement; (iv) the Series 1999 Note; (v) the Mortgage; and (vi) any and all other real or personal property of every name and nature from time to time hereafter by delivery or by writing of any kind assigned, pledged or transferred, as and for additional security hereunder by the Issuer or by anyone on its behalf, or with its written consent, to the Trustee, which is hereby authorized to receive any and all such property at any and all times and to hold and apply the same subject to the terms hereof. TO HAVE AND TO HOLD unto the Trustee and its successors in that trust and its and their assigns forever; BUT IN TRUST, NEVERTHELESS, and subject to the provisions hereof, (a) except as provided otherwise herein, for the equal and proportionate benefit and protection of all present and future Holders of the Bonds issued or to be issued under this Indenture; (b) for the enforcement of the payment of the Debt Service Charges on the Bonds, when payable, according to the true intent and meaning thereof and of this Indenture; and (c) for the enforcement of the observance and performance of the covenants, agreements, obligations, terms and conditions of this Indenture, in each case, without preference, distinction or priority of any Bond over any other by reason of designation, number, date of the Bonds, date of authorization, issuance, sale, execution, 3 authentication, delivery or maturity thereof, or otherwise, so that each Bond and all Bonds have the same right, protection and privilege under this Indenture, and are protected equally and ratably hereby, it being intended that this Indenture take effect from the date hereof, without regard to the date of actual issue, sale or disposition of the Bonds, as though upon that date all of the Bonds were actually issued, sold and delivered to purchasers for value; provided, however, that if (i) the principal of the Bonds and the interest due or to become due thereon, together with any premium required for redemption of any of the Bonds prior to maturity, shall be paid well and truly, at the times and in the manner to which reference is made in the Bonds, according to the true intent and meaning thereof, or the outstanding Bonds shall have been paid and discharged in accordance with Article IX hereof, and (ii) all of the covenants, agreements, obligations, terms and conditions of the Issuer under this Indenture shall have been observed and performed, and there shall have been paid to the Trustee, the Registrar, the Paying Agents and the Authenticating Agents all sums of money due or to become due to them in accordance with the terms and provisions hereof, then this Indenture and the rights assigned hereby shall cease, determine and be void, except as provided in Section 9.03 hereof with respect to the survival of certain provisions hereof; otherwise, this Indenture shall be and remain in full force and effect. IT IS DECLARED that all Bonds issued hereunder and protected hereby are to be issued, authenticated and delivered in accordance with the covenants, agreements, obligations, terms and conditions contained herein. The Issuer has covenanted and agreed, and agrees and covenants hereby, with the Trustee and with each and all Holders, as follows: (Balance of page left intentionally blank) 4 ARTICLE I DEFINITIONS SECTION 1.01. Definitions. In addition to the words and terms defined elsewhere in this Indenture or by specific reference to another document, unless the context or use clearly indicates another meaning or intent capitalized words and terms used in this Indenture shall have the following meanings: "Act" means the Florida Constitution, the Charter of the Issuer and Chapter 154, Parts II and III of Chapter 159, and Chapter 166, Florida Statutes, as amended and other applicable provisions of law. "Additional Bonds" means the Additional Bonds issued under the provisions of Section 2.05 of the Indenture. "Additional Notes" means any non-negotiable promissory note or notes, in addition to the Series 1999 Notes, delivered by the Mortgagor to the Trustee in connection with the issuance of Additional Bonds as provided in the Agreement. "Additional Payments" means the payments required to be paid by the Mortgagor under Section 4.2 of the Agreement. "Adjusted Rate" means the interest rate borne by the Series 1999C Bonds determined in the manner set forth in Section 2.03(b) of the Indenture. "Affiliate" means a Person which controls or is controlled by the Company or is under common control with the Company, as follows: (A) one Person shall be deemed to control another if it owns more than 50% of the outstanding voting stock of or other equity interest in the other, or it has the power to elect more than 50% of the governing body of the other; and (b) such control may be exercised by one Person over another directly, indirectly through control over a third party, or jointly with one or more controlled third parties. "Agreement" means the Loan and Security Agreement dated as of July 1, 1999 between the Issuer and the Company, as amended or supplemented from time to time. "Annual Cash Operating Expense" means, as of any date of determination thereof, the expenses of operating the Project, other than depreciation, amortization and other non-cash items, for the preceding 365 days, all as determined in accordance with generally accepted accounting principles. "Appraiser" means a Person designated by the Authorized Company Representative, with written notice to the Trustee, who (i) is a member of the American Appraisal Institute, (ii) has no 5 interest, direct or indirect, in the Company other than payment for services and (iii) in the case of an individual, is not a member, director, trustee, officer or employee of the Company or, in the case of another Person, has no partner, member, director, trustee, officer or employee who is a member, director, trustee, officer or employee of the Company. In the event that the American Appraisal Institute should cease to exist, the term "Appraiser" shall mean a Person, designated by the Company with written notice to the Trustee and not objected to by the Trustee within 10 days after receipt of such notice, which objection shall not be unreasonably interposed, who is recognized as qualified to appraise the value of buildings, furnishings and equipment comparable to the Project and who does not have any relationship prohibited in the preceding sentence. "Arbitrage Rebate Agreement" means the Arbitrage Rebate Agreement dated as of July 1, 1999 among the Issuer, the Company and the Trustee. "Architect" means a Person, designated by the Authorized Company Representative, with written notice to the Trustee, who or which Architect (i) is licensed or permitted to practice architecture or engineering in the State, (ii) has no interest, direct or indirect, in the Company and (iii) in the case of an individual, is not a member, director, trustee, officer or employee of the Company or, in the case of another Person, has no partner, member, director, trustee, officer or employee who is a member, director, trustee, officer or employee of the Company. "Assignment" means the Assignment of Mortgage of even date with the Mortgage, from the Issuer to the Trustee, as amended or supplemented from time to time. "Auditor" means a recognized firm of independent certified public accountants of good repute, designated by the Authorized Company Representative, which is licensed or permitted to practice as accountants and auditors in the State. "Authenticating Agent" means the Trustee, as Registrar for the Bonds and any bank, trust company or other person designated as an Authenticating Agent for the Bonds by or in accordance with Section 6.13 of the Indenture, each of which shall be a transfer agent registered in accordance with section 17 A(c) of the Securities Exchange Act of 1934, as amended. "Authorized Company Representative" means the person at the time designated to act on behalf of the Company by its Chief Executive Officer by written certificate furnished to the Trustee and the Issuer, which certiticate may designate an alternate or alternates. In the event that all persons so designated become unavailable or unable to act and the Company fails to designate a replacement within ten (10) days after such unavailability or inability to act, the Trustee may appoint an interim Authorized Company Representative until such time as the Company designates that person. 6 "Authorized Denominations" means (a) with respect to the Series 1999 Bonds, $100,000 or any integral multiple of $5,000 in excess thereof, and (b) with respect to Additional Bonds, the denominations authorized in the applicable Supplemental Indenture. "Authorized Official" means the Mayor-Commissioner, Vice Mayor, City Manager or Assistant City Manager of the Issuer, or such other officer of the Issuer as may be designated in writing to the Trustee and the Company by the Issuer. "Bond Counsel" means Bryant, Miller and Olive, P.A., Tallahassee, Florida or such other firm of attorneys approved by the Issuer of nationally recognized standing in the field of municipal finance law whose opinions are generally accepted by underwriters and other purchasers of obligations issued by state and local governments. "Bond Fund" means the Bond Fund created by Section 5.01 of the Indenture. "Bond Purchase Agreement" or "Purchase Agreement" means, with respect to the Series 1999 Bonds, the Bond Purchase Agreement among the Issuer, the Company and the original purchaser of the Series 1999 Bonds; and as to any Additional Bonds, any bond purchase agreement for which provision is made to purchase such Bonds by the original purchaser thereof. "Bond Year" has the meaning set forth in the Arbitrage Rebate Agreement. "Bonds" means the Series 1999 Bonds and any Additional Bonds. "Business Day" or "business day" means any day of the year on which banks in any of the cities in which the principal office of the Trustee 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 Trustee and any Paying Agent and the New York Stock Exchange, Inc. are open for business. "Capitalized Interest" means accrued interest, if any, received upon the sale of the Bonds plus any interest to become due and payable on the Bonds, which is included in the principal amount of the Bonds, and deposited in the Bond Fund and used to pay interest on the Bonds, until completion of a related project. "Chicago Time" means the time on any given day in the City of Chicago, Illinois, whether such time be Central Standard Time or Central Daylight Savings Time. "Code" means the Internal Revenue Code of 1986, as amended, the Treasury Regulations (whether proposed, temporary or final) under the Code or the Statutory predecessor of the Code, and any amendments of, or successor provisions to, the foregoing and any official rulings, announcements, notices, procedures and judicial determinations regarding any of the foregoing, all as and to the extent applicable. Unless otherwise indicated, reference to a Section means the 7 Section of the Code, including such applicable Treasury Regulations, rulings, announcements, procedures, and determinations pertinent to that Section. "Commercial Code" means the Uniform Commercial Code as enacted in the State, as from time to time amended or supplemented. "Company" means BEF, Inc., Inc., a Florida not-for-profit corporation and its lawful successors and assigns, to the extent permitted by the Agreement. "Company Docillllents" mean the Agreement, the Notes, the Mortgage and the Bond Purchase Agreement. "Completion Date" means the date of completion of the Project to be specified in the certificate furnished by the Company pursuant to Section 3.6 of the Agreement. "Computation Date" shall have the meaning set forth in the Arbitrage Rebate Agreement. "CollSultant" means a firm of nationally-recognized consultants, designated by the Authorized Company representative with written notice to the Trustee and, so long as the Series 1999 Bonds are Outstanding, Ziegler Securities, which Consultant (i) is knowledgeable in both the operations and fiscal management of continuing care or similar health care facilities, (ii) has a good reputation for skill and experience in that work, (iii) has no interest, direct or indirect, in the Company, and (iv) has no partner, principal, member, director, trustee, officer or employee who is a member, director, trustee, officer or employee of the Company. "Continuing Disclosure Certificate" means the Continuing Disclosure Certificate dated as of July 1, 1999 by the Company. "Days Cash on Hand" means, as of any date of determination thereof, the product of 365 times a fraction, the numerator of which is the sum of cash, readily marketable securities and other investments of the Company not held by the Trustee as of such date and the denominator of which is Annual Cash Operating Expense. "Debt" means all obligations for borrowed money and installment sale and capitalized lease obligations incurred or assumed by the Company and any guaranty by the Company of indebtedness of any other Person, but shall not be deemed to include (a) obligations under contracts for supplies, services and pensions allocable to current operating expenses during the current or future Fiscal Years in which the supplies are to be delivered, the services rendered or the pensions paid, and (b) payments payable in the current or future Fiscal Years under leases not intended to evidence the acquisitions of capital assets. "Debt Service Charges" mean, for any period or date, the principal of and premium, if any, and interest on the Bonds accruing for that period or due and payable on that date. In 8 determining Debt Service Charges accruing for any period or due and payable on any date, mandatory sinking fund requirements accruing for that period or due on that date shall be included. "Debt Service Coverage Ratio" means the ratio of Net Income Available for Debt Service for the period in question to the maximum Principal and Interest Requirements of the Company on outstanding Long-Term Debt for the then current or any succeeding Fiscal year, determined as of the tlrstday of such period. The calculation of the Debt Service Coverage Ratio shall be made in accordance with Section 5.3 of the Agreement, except as may be otherwise provided in other Sections of the Agreement. "Debt Service Reserve Fund" means the Debt Service Reserve Fund created in Section 5.01 of the Indenture. "Debt Service Reserve Requirement" means with respect to the Series 1999 Bonds, as of the date of any calculation, an amount equal to $ . In the event Additional Bonds are issued, the Debt Service Reserve Requirement, if any, with respect to those Additional Bonds shall be the lesser of (i) 10% of the proceeds of such Additional Bonds, (ii) the Maximum Principal and Interest Requirements on such Additional Bonds or (iii) 125 % of the average Principal and Interest Requirements on such Additional Bonds. No such Additional Bonds shall be secured by the Debt Service Reserve Fund established for the Series 1999 Bonds. "Default" means any circumstance which, with the passage of time or the giving of notice or both, would constitute an "Event of Default" as defined in Section 7.1 of the Agreement or 7.01 of the Indenture, respectively. "Defeasance Obligations" means: (a) direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America), or obligations the timely payment of the principal of and interest on which is unconditionally guaranteed by the United States of America, (b) certificates which evidence ownership of the right to the payments of the principal of and interest on obligations described in clause (a) or in specitled portions thereof, including without limitation, portions consisting solely of the principal thereof or solely of the interest thereon, and (c) obligations of any state or any political subdivision of any state, other than the Issuer, which are rated by a Rating Service in the highest category for long-term debt, the interest on which is excluded from gross income for federal income tax purposes and the full and timely payment of the principal of and any premium and the interest on which is unconditionally payable from obligations of the character described in (a) or (b) above. 9 "Disbursement Request" means a written order to the Trustee for disbursement from the Project Fund substantially in the form of Exhibit E attached to the Agreement. "Eligible Investments" mean (a) obligations issued or guaranteed as to full and timely payment by the United States of America or by any Person controlled or supervised by or acting as an instrumentality of the United States of America pursuant to authority granted by Congress; (b) obligations issued or guaranteed by any state or political subdivision thereof, which obligations are rated in the highest category if rated as short therm obligations by a Rating Service; (c) commercial or finance paper which is rated in the highest rating category by a Rating Service; (d) deposit accounts, bankers' acceptances, certificates of deposit or bearer deposit notes in one or more banks or trust companies (including without limitation, the Trustee or any bank affiliated with the Trustee) organized under the laws of the United States of America or any state thereof, the senior debt obligations of which bank or trust company at the time of purchase of such instruments are rated in one of the three highest rating categories by a Rating Service or which instruments are secured by a security interest in obligations described in (a) above or which are fully insured by the FDIC; (e) any repurchase agreement: (i) with any bank, including the Trustee and its affiliates, or any broker-dealer with retail customers that falls under the protection of the Securities Investors Protection Corporation; (ii) which is secured by collateral of the type specified in (a) and (b) above which collateral (1) is in the possession of the Trustee or a third party acting solely as agent for the Trustee, (2) is not subject to any third party claims, and (3) has a market value (determined at least once every 14 days) at least equal to the amount invested in the repurchase agreement; and (iii) which permits the Trustee to liquidate the collateral immediately upon failure to maintain the collateral at the required level; and (t) money market funds invested solely in securities listed in (a) above; provided that any investment or deposit described above is not prohibited by applicable law. "Entrance Fees" shall mean the fees, other than monthly service charges by the residents of the Mortgaged Property to the Company for the purpose of obtaining the right to reside in the Mortgaged Property, including any Refundable Resident Deposits described in Residency 10 Agreements with respect to the Mortgaged Property, but shall not include any such amounts that are (i) escrowed pursuant to the requirements of Chapter 651, Florida Statutes or any similar law unless and until such amounts are released from such escrow to the Company or (ii) escrows otherwise set aside pursuant to the requirements of any Residency Agreement prior to occupancy of the unit covered by such Residency Agreement (which amounts shall be included if and when such occupancy occurs). "Event of Default" means an Event of Default as detIned in Section 7. 1 of the Agreement and in Section 7.01 of the Indenture. "Excess Earnings" means, as to the Tax-Exempt Bonds of any issue as of each Computation Date for that issue, an amount determined in accordance with Section 148(f) of the Code equal to the sum of (a) plus (b) where: (a) Is the excess of (i) the aggregate amount earned from the date the Tax-Exempt Bonds are invested (other than investments attributable to an excess described in this clause (a)), taking into account any gain or loss on the disposition of nonpurpose investments, over (ii) the amount that would have been earned if the amount of the gross proceeds of the Tax-Exempt Bonds of such issue invested in those nonpurpose investments (other than investments attributable to an excess described in this clause (a)) had been invested at a rate equal to the yield on the Bonds; and (b) any income attributable to the excess described in clause (a) above, taking into account any gain or loss on the disposition of investments. The foregoing sums shall be determined in accordance with Section 148(t) of the Code. As used herein, the terms "gross proceeds," "nonpurpose obligations" and "yield" have the meanings assigned to them for purposes of Section 148 of the Code. "Excluded Property" means the property described in Exhibit F of the Agreement, if any. "Exempt Person" means (i) any organization described in Section 501(c)(3) of the Code and exempt from taxes under Section 50l(a) of the Code, and (ii) a "government unit" as that term is used in Section 103 and 145 of the Code. "Existing Facilities" means the buildings, equipment and improvements located on the Project Site on the date of execution and delivery of the Agreement. 11 "Extendables Purchase Fund" means the Extendables Purchase Fund created pursuant to Section 4. 10 hereof. "Fiscal Year" means, with respect to the Company, the period commencing on 1 of each year and ending on the 30 of the following year or such other fiscal year as may hereafter be designated by the Company to the Trustee in writing. "Force Majeure" means any of the causes, circumstances or events described as constituting Force Majeure in Section 7.1 of the Agreement or Section 6.2 of the Mortgage. "Govennnental Restrictions" means federal, State or other applicable governmental laws or regulations affecting the Company or its facilities and placing restrictions and limitations on the rates, fees and charges to be fixed, charged and collected by the Company or any other operator of the Company's facilities; provided, however, that no change in law or regulation shall be deemed applicable by reason of this definition if such change would in any way constitute an impairment of the rights of the Issuer, a Holder, the Company or any other operator of the Mortgaged Property or the Trustee under the Agreement or the Indenture. "Holder" or "Holder of a Bond" means the person in whose name a bond is registered on the Register. "Immediate Notice" means notice by telephone, telegram, telex, telecopy or other telecommunication device, receipt of which has been confirmed by the recipient, promptly followed by written notice by overnight carrier or delivery service, expenses prepaid, to such addresses. "Indenture" means the Trust Indenture dated as of July 1, 1999 between the Issuer and the Trustee, as amended or supplemented from time to time. "Independent Counsel" means an attorney or tirm of attorneys acceptable to the Company and duly admitted to practice law before the highest court of the State. "Initial Interest Rate" means, the interest rate applicable from the dated date of the Series 1999 Bonds to and including at the Initial Rate Change Date. "Initial Rate Change Date" means the tirst date on which the Series 1999B Bonds change to another interest rate, which shall be 1, 20_ "Insurance Consultant" means a Person designated by the Authorized Company Representative, with written notice to the Trustee, who or which Insurance Consultant is (i) qualified to survey risks and to recommend insurance coverage for facilities comparable to the Mortgaged Property and for organizations engaged in operations similar to those of the Company, (ii) has a favorable reputation for skill and experience in making those surveys and 12 recommendations, (iii) has no interest, direct or indirect, in the Company other than payment for services and (iv) in the case of an individual, is not a member, director, trustee, officer or employee of the Company or, in the case of another Person, has no partner, member, director, trustee, officer or employee who is a member, director, trustee, officer or employee of the Company; provided that so long as the foregoing requirements are satisfied, the Insurance Consultant may be a broker or agent with whom the Company transacts business; and provided further that the collection of reasonable fees for services rendered does not constitute an interest in the Company for this purpose. "Insurance Requirements" means all requirements respecting the Mortgaged Property, or any part thereof, imposed by any policies of insurance in force at any time with respect to any of the buildings, improvements, machinery, furnishings or equipment constituting a part of the Mortgaged Property. "Interest Payment Account" shall mean the Interest Payment Account within the Bond Fund created in Section 5.01 of this Indenture. "Interest Payment Date" or "Interest Payment Dates" means, as to the Series 1999 Bonds, the date or dates set forth as such in the form of Series 1999 Bond attached as Exhibit B to the Indenture, and as to Additional Bonds, each date or dates designated as an "Interest Payment Date" or "Interest Payment Dates" in the form of Bond for which provision is made in the applicable Supplemental Indenture. "Interest Rate for Advances" means the lesser of (i) the Prime Rate or (ii) the maximum interest rate permitted by applicable law. "Investor Letter" means the Investment Letter to be delivered by the purchaser of the Series 1999 Bonds to the Issuer and the Trustee substantially in the form attached hereto as Exhibit B. "Issuance Expenses" means all costs and expenses payable by the Issuer which are incidental to the issuance of the Bonds and shall include, but not be limited to, fees and expenses of consultants, advisors, accountants, Bond Counsel and other legal counsel to the Issuer, costs and expenses of printing such Bonds and disclosure documents relating thereto, fees of bond rating services, charges for CUSIP numbers, charges of any clearing agent, charges of the Depository Trust Company ("DTC") and other securities depositories, charges payable to the Municipal Securities Rulemaking Board, Public Securities Association and wire services, charges for telephone, telegraph, telecopier, telex and fax services, postage and express charges, costs of federal funds, closing costs (including all legally permitted costs of travel, food and lodging of officials and employees of the Issuer incurred in connection with attending any closing or preclosing or any meeting relating to the issuance of the Bonds), any costs incurred in connection with the sale of the Bonds, including costs incurred in any public or negotiated sale thereof, and placement fees, costs of compliance with the securities laws of any state in which Bonds are to be 13 offered and sold, the initial fees of the Trustee, Registrar, Paying Agent and Authenticating Agent, and other similar expense; provided that the term shall not include any underwriter's discount which is taken into account in the sale price (or any costs and expenses paid by the underwriter which are not to be reimbursed by the Issuer). "Issuer" means City of Clearwater Florida, a municipal corporation duly created and validly existing under the laws of the State of Florida including, particularly, the Act, and its successor public bodies. "Issuer Docwnents" means the Agreement, the Assignment and the Indenture. "Loan" means a loan by the Issuer to the Company of the proceeds received from the sale of Bonds. "Loan Payment Date" means (i) the fifth Business Day immediately preceding the last day of each calendar month and (ii) the fifth Business Day immediately preceding the date on which any principal of or interest or any premium on the Bonds shall be due and payable, whether at maturity, upon acceleration, call for redemption or otherwise. "Loan Payments" means the amounts required to be paid by the Company in repayment of the Loan pursuant to Section 4.1 of the Agreement. "Long-Term Debt" means Debt having an original maturity greater than one year (including demand notes with alternative stated maturities of less than one year unless and until a demand for the payment thereof shall have been made) or renewable at the option of the obligor for a period greater than one year from the date of original incurrence or issuance thereof, which shall not include the current portion of such Long-Term Debt as determined in accordance with generally accepted accounting principles. "Maximwn Principal and Interest Requirement" means as to any Series of Bonds, the maximum Principal and Interest Requirement coming due on such Bonds in any Fiscal Year provided that the Maximum Principal and Interest Requirement for any Long Term Debt shall be disregarded for any period during which the interest on such Long Term Debt is funded from the proceeds thereof. "Mortgage" means the Mortgage and Security Agreement dated as of July 1, 1999, from the Company to the Issuer, as amended or supplemented from time to time. "Net Income Available for Debt Service" means, with respect to any period of time, the (a) the Company's excess/deficiency of revenue over/under expenses prepared in conformity with generally accepted accounting principles, plus (b) depreciation, amortization of deferred expenses, and interest expense on Debt, ~ (c) an amount equal to Entrance Fees collected (net of any refunds of Entrance Fees), minus (d) lifetime lease income amortized into income, and (e) from 14 which shall be excluded any extraordinary items, and any gain or loss resulting from either the extinguishment of debt or the sale, exchange or other disposition of assets not made in the ordinary course of business. Restricted gifts shall be included in the computation of Net Income Available for Debt Service to the extent that, and with respect to the period of time during which, the expenditure of such restricted gifts has been included in the computation of expenses. "Net Proceeds," when used with respect to any insurance proceeds or condemnation award, means the gross proceeds thereof less the payment of all expenses, including attorneys' fees incurred in connection with the collection of such gross proceeds. "Notes" means the Series 1999 Notes and any Additional Notes. "Notice Address" means (a) As to the Issuer: (b) As to the Company: (c) As to the Trustee: (d) As to the Remarketing Agent: Margaret L. Simmons, CPA Financial Services Administrator City of Clearwater, Florida 100 South Myrtle A venue Clearwater, Florida 33758 copy to: Pamela Akin, Esq. City Attorney 112 South Osceola Avenue Clearwater, Florida BEF, Inc. 1601 Jack Street. Suite 200 Fort Myers, Florida 33901 Attention: Gerard A. McHale, Jr. SunTrust Bank, Central Florida, National Association 225 East Robinson Street, Suite 250 Orlando, Florida 32801 Attention: Corporate Trust Department Ziegler Securities, a division of B.C. Ziegler and Company 111 Second Avenue, N.E., Suite 915 St. Petersburg, Florida 33701 Attention: Vice President 15 or such different address, notice of which is given under Section 8.4 of the Agreement or Section 12.03 of the Indenture. "Opinion of Bond Counsel" means an opinion in writing signed by a Bond Counsel satisfactory to the Trustee. "Opinion of Counsel" means an opinion in writing signed by an attorney or firm of attorneys not unsatisfactory to the Trustee, who may be counsel to the Company. "Optional Tender Date" means, with respect to the Series 1999B Bonds, each Rate Change Date. "Outstanding Bonds," "Bonds Outstanding" or "Outstanding" as applied to Bonds, mean, as of the applicable date, all Bonds which have been authenticated and delivered, or which are being delivered by the Trustee under the Indenture, except: (a) Bonds cancelled upon surrender, exchange or transfer, or cancelled because of payment or redemption on or prior to that date; (b) Bonds, or the portion thereof, for the payment, redemption or purchase for cancellation of which sufficient moneys have been deposited and credited with the Trustee or any Paying Agents on or prior to that date for that purpose (whether upon or prior to the maturity or redemption date of those Bonds); provided, that if any of those Bonds are to be redeemed prior to their maturity, notice of that redemption shall have been given or arrangements satisfactory to the Trustee shall have been made for giving notice of that redemption, or waiver by the affected Holders of that notice satisfactory in form to the Trustee shall have been filed with the Trustee; (c) Bonds, or the portion thereof, which are deemed to have been paid and discharged or caused to have been paid and discharged pursuant to the provisions of the Indenture; (d) Bonds in lieu of which others have been authenticated under Section 3.07 of the Indenture; and (e) Any Bond as to which an election to tender has been duly submitted and not withdrawn and moneys are held in trust by the Tender Agent for the purpose of purchase of such Bond. "Parity Debt" means any obligation of the Company permitted to be incurred as Parity Debt in Section 5.5 of the Agreement. 16 "Paying Agent" means any bank or trust company designated as a Paying Agent by or in accordance with Section 6.12 of the Indenture. "Pennitted Debt" means the liabilities, obligations and Debt permitted in Section 5.4 of the Agreement. "Penllitted Encumbrances" shall have the meaning assigned such term in Section 5.7 of the Agreement. "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. "Plans and Specifications" means the plans and specifications describing a project as prepared and on file with the Trustee, as they may be changed from time to time. "Prime Rate" means that interest rate announced from time to time by the Trustee in its lending capacity as a bank as its "prime rate" or "base rate." "Principal and Interest Requirements" means, for any period or date, as applied to any Debt means the sum of the principal of and premium, if any, and interest (determined for variable rate date at the highest rate payable on such date) on any Outstanding Debt accruing for that period or due and payable on that date; provided that for this purpose, the term Debt does not include indebtedness for which provision for payment has been made in accordance with the terms of the instruments evidencing or securing such indebtedness. In determining Principal and Interest Requirements accruing for any period or due and payable on any date, mandatory sinking fund requirements on any Debt for that period or on that date shall be included, and principal maturities and mandatory sinking fund requirements for a prior period or on a prior date shall be excluded. "Principal Payment Account" means the Principal Payment Account within the Bond Fund created in Section 5.01 of the Indenture. "Private Business Use" means use, directly or indirectly (i) in a trade or business carried on by any Private Person (other than a Tax-Exempt Organization) other than use as a member of, and on the same basis as, the general public, or (ii) in any activity carried on by a Tax-Exempt Organization (other than use as a member of, and on the same basis as, the general public) which is an "unrelated trade or business" activity within the meaning of Section 513 (a) of the Code. "Private Person" means any person, firm, entity or individual, including a Tax-Exempt Organization other than a governmental unit as that term is used in Section 145 of the Code. "Project" means the capital improvements described in Exhibit B to the Agreement (and more particularly described in the Plans and Specifications related thereto), together with any 17 additions, modifications and substitutions to those facilities, including all furnishings, machinery, equipment and other tangible personal property. "Project Budget" means the budget and trade and materials, breakdown and scheduled values for the Project. "Project Costs" has the meaning assigned such term in Section 3.4 of the Agreement. "Project Fund" means the Project Fund created in Section 5.01 of the Indenture. "Project Site" means the real estate described in Exhibit D to the Agreement, and any additions thereto, less any removals therefrom made in the manner permitted by the Agreement. "Property" means any and all rights, title and interest of the Company in and to property (including cash and cash equivalents) whether real or personal, tangible or intangible and wherever situated, but excluding Excluded Property. "Rate Change Date" means, with respect to the Series 1999B Bonds, the Initial Rate Change Date and any rate change date selected by the Company pursuant to Section 2.03(b) of the Indenture. "Rate Period" means, with respect to the Series 1999B Bonds, the period commencing on each Rate Change Date and ending on and including the date preceding the next Rate Change Date, or the maturity date thereof. "Rating Service" means Fitch Investors Service, Inc., Moody's Investors Service, Inc. or Standard & Poor's Corporation, each of New York, New York or their respective successors. "Rebate Amount" means the amount of Excess Earnings computed as of the most recent prior Computation Date which are required to be paid to the United States of America under Section 148(t) of the Code. "Rebate Fund" means the Rebate Fund created in Section 5.01 of the Indenture. "Refunding Debt" means Debt incurred for the purpose of refinancing or refunding all or any portion of any Outstanding Debt of the Company. "Register" means the books kept and maintained for the registration and transfer of Bonds pursuant to Section 3.06 of the Indenture. "Registrar" means the Trustee or such other bank, trust company or person as may be designated from time to time by the Issuer with the approval of the Company. 18 "Regular Record Date" or "Record Date" means, with respect to any Bond, the last day (whether or not a Business Day) of the calendar month next preceding an Interest Payment Date applicable to that Bond. "Regulatory Body" means any federal state or local government, department, agency, authority or instrumentality (other than the Issuer) and other public or private body, including accrediting organizations, having regulatory jurisdiction and authority over the Company or its facilities or operations. "Remarketing Agent" means the Remarketing Agent appointed and serving a such pursuant to Section 4.15 of the Indenture, initially Ziegler Securities, a division of B. C. Ziegler and Company. "Remarketing Agreement" means the Remarketing Agreement between the Company and the Remarketing Agent then serving under the Indenture. "Renewal and Replacement Fund" shall mean the Renewal and Replacement Fund created under section 5. 19 of the Agreement. "Reset Rate" means, with respect to the Series 1999B Bonds, the adjusted rate of interest born on the Series 1999B Bonds determined as provided in Section 2.03(b) of the Indenture. "Revenues" means all present and future revenues received by or on behalf of the Company from whatever source derived, including without limitation, all (a) Entrance Fees, cash, accounts, deposits, chattel paper, instruments, documents, money and general intangibles, including without limitation, contract rights and rights to payment (i) for goods and properties sold or leased or for services rendered, (ii) under agreements respecting governmental and private insurance arrangements, and (iii) from any insurance, condemnation award or agreement in lieu of a condemnation award resulting from eminent domain proceedings, (b) income from, and revenues realized upon the liquidation or sale of, securities held by or on behalf of the Company, (c) proceeds of those items constituting Revenues to which reference is made in clauses (a) and (b) above, and (d) gifts, grants, bequests, contributions and donations, including without limitation, the unrestricted income and profits therefrom, provided that Revenues do not include 19 (i) gifts, grants, bequests, contributions and donations to the extent restricted specifically to a particular purpose inconsistent with their use for the making of payments into any of the Special Funds, (ii) the proceeds of any borrowing to the extent that those proceeds are required to be excluded from Revenues by the terms of the borrowing, (iii) the proceeds of non-recourse Debt secured by and payable solely from Property financed by such non-recourse Debt and all revenues derived from or attributable to Property financed with the proceeds of such non-recourse Debt, (iv) revenues derived from Excluded Property, or "Series 1999 Bonds" means collectively, the Series 1999A Bonds, the Series 1999B Bonds and the Series 1999C Bonds. "Series 1999A Bonds" means the $ Revenue Bonds, Series 1999A (BEF, Inc. Project). City of Clearwater, Florida "Series 1999B Bonds" means the $ Revenue Bonds, Series 1999B (BEF, Inc. Project), (EXTRAS SM). City of Clearwater, Florida, Extendable Rate Adjustable SecuritiesSM "Series 1999C Bonds" means the $ Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project). City of Clearwater, Florida "Series 1999 Note" means the non-negotiable promissory note of the Company in the aggregate principal amount of $ of even date with the Series 1999A Bonds, Series 1999B Bonds and the Series 1999C Bonds, substantially in the form attached to the Agreement as Exhibit" A," executed and delivered by the Company to the Trustee in connection with the issuance of the Series 1999 Bonds. "Special FWlds" means the Special Funds created pursuant to Section 5.01 of the Indenture, other than the Rebate Fund. "Special Interest Payment Date" means the Special Interest Payment Date created in Section 7.07(d) of the Indenture. "Special Record Date" means, with respect to any Bond, the date established by the Trustee in connection with the payment of overdue interest on that Bond pursuant to Section 3.05 of the Indenture. "State" means the State of Florida. 20 "Supplemental fudenture" means any indenture supplemental to the Indenture entered into between the Issuer and the Trustee in accordance with Article VIII of the Indenture. "Taxable Bond" means any obligation, or issue of obligations which at the time of issuance under the Indenture is not intended to be a Tax-Exempt Bond. "Tax-Exempt Bond" means any obligation, or issue of obligations, the interest on which is, or is intended to be, excluded from gross income for federal income tax purposes within the meaning of Section 103 of the Code. "Tender Agent" means the Tender Agent referred to in Sections 4.10 and 6.14 of the Indenture, which Tender agent shall initially be the Trustee, serving as agent for Registered Owners of Put Option Bonds who shall have elected to tender such Bonds for purchase. "Tender Purchase Price" shall have the meaning assigned in Section 4.09(a) of the Indenture. "Tender Withdrawal" shall have the meaning assigned in Section 4.11 of the Indenture. "Term Bonds" means, with respect to the Series 1999 Bonds, those Series 1999 Bonds designated as Term Bonds in Section 2.03(a) of the Indenture. "Total Operating Revenues" means, for any period, the sum of the Company's (a) operating revenues, less provision for uncollectible accounts, charity cases and any contractual adjustments, plus (b) all other operating revenues. "Trustee" means SunTrust Bank, Central Florida, National Association, a national banking association, Orlando, Florida, until a successor Trustee shall have become such pursuant to the applicable provisions of the Indenture, and thereafter "Trustee" shall mean the successor Trustee. "Unassigned Rights" means the rights of the Issuer under the Agreement to (a) receive Additional Payments as contemplated in Section 4.2 of the Agreement; (b) to purchase the Project as contemplated by Section 4.7 of the Agreement; (c) to be held harmless and indemnified under Section 5.12 of the Agreement; (d) to exercise with the consent, but not to the exclusion, of the Trustee any remedies which are authorized to be exercised by the Issuer under the Agreement in connection with an Event of Default; (e) to be reimbursed, to the extent permitted by law, for attorney's fees and expenses under Section 7.4 of the Agreement; and (t) to execute amendments to the Agreement. "Uuremarketed Bonds" shall have the meaning assigned in Section 4.10 of the Indenture. 21 SECTION 1.02. Interpretation. Any reference herein to the Issuer, or to any member or officer thereof, includes entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or by operation of law or lawfully performing their functions. Any reference to a section or provision of the Constitution of the State or the Act, or to a section, provision or chapter of the Florida Statutes or Laws of Florida, or to any statute of the United States of America, includes that section, provision or chapter as amended, modified, revised, supplemented or superseded from time to time; provided, that no amendment, moditication, revision, supplement or superseding section, provision or chapter shall be applicable solely by reason of this provision, if it constitutes in any way an impairment of the rights or obligations of the Issuer, the officers, employees and members of the Issuer, the Holders, the Trustee, the Registrar or the Company under this Indenture, the Bonds, the Agreement, the Notes, the Mortgage, or any other instrument or document entered into in connection with any of the foregoing, including without limitation, any alteration of the obligation to pay Debt Service Charges in the amount and manner, at the times, and from the sources provided in the Agreement and this Indenture, except as permitted herein. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa; the defined words and terms are equally applicable to the possessive forms of any such word or term; the terms "hereof," "hereby," "herein," "hereto," "hereunder" and similar terms refer to this Indenture; and the term "hereafter" means after, and the term "heretofore" means before, the date of this Indenture. Words of any gender include the correlative words of the other genders, unless the sense indicates otherwise. SECTION 1.03. Captions and Headings. The captions and headings in this Indenture are solely for convenience of reference and in no way detine, limit or describe the scope or intent of any Articles, Sections, subsections, paragraphs, subparagraphs or clauses hereof. 22 ARTICLE II AUTHORIZATION AND TERMS OF SERIES 1999 BONDS; ADDITIONAL BONDS SECTION 2.01. Authorized Amount of Series 1999 Bonds. No Bonds may be issued hereunder except in accordance with this Article. The total authorized principal amount of Series 1999A Bonds which shall be issued is $ , the total authorized principal amount of Series 1999B Bonds which shall be issued is $ and the total authorized principal amount of Series 1999C Bonds which shall be issued is $ . The Issuer may authorize (but shall not be required to), sell and deliver one or more series of Additional Bonds for the purposes provided herein upon satisfaction of the conditions and in the manner provided herein. SECTION 2.02. Issuance of Series 1999 Bonds. The Issuer shall sell and deliver the Series 1999 Bonds for the purpose of financing the Project Costs, including the payment of, and the reimbursement of moneys applied by the Company for, portions of the costs of acquiring, constructing, improving and equipping the Project as more particularly described in the Agreement. The Series 1999 Bonds (i) shall be issued in three series designated as "Revenue Bonds, Series 1999A (BEF, Inc. Project)", "Revenue Bonds, Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiessM (EXTRAssM)" and "Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project)"; (ii) shall be issuable in Authorized Denominations and in fully registered form substantially as set forth in Exhibit A hereto; (iii) shall be transferable and exchangeable only for fully registered Bonds of Authorized Denominations and of the same maturity, as provided herein; (iv) shall be numbered in a manner determined by the Trustee; (v) shall bear interest as provided herein, payable on each Interest Payment Date and computed on the basis of a 360-day year consisting of twelve 30-day months; and (vi) shall be subject to redemption prior to maturity as provided in Article IV hereof. SECTION 2.03. Terms of Series 1999 Bonds. (a) The Series 1999 Bonds shall be dated July 1, 1999, shall bear interest payable semi-annually on the 15th day of May and November of each year, commencing November 15, 1999, initially at the rate or rates per annum hereinafter set forth (and adjusted as provided below), until the principal or Redemption Price of the Series 1999 Bonds is paid and shall mature as follows: $ of the Series 1999A Bonds shall be and are hereby designated as Term Bonds bearing interest at the rates and maturing on the 15th day of November in the years and in the principal amounts as follows: Maturity November 15 Principal Amount Interest Rate 23 $ % (Plus accrued interest, if any) The Series 1999B Bonds shall be and are hereby designated as Extendable Rate Adjustable Bonds bearing interest at the rate of _ % per annum (subject to adjustment as hereinafter provided) and maturing on the 15th day of November, 20_. $ of the Series 1999C Bonds shall be and are hereby designated Term Bonds bearing interest at the rate of % per annum and maturing on the 15th day of November, 20_ The Series 1999 Bonds shall bear interest from the Interest Payment Date next preceding the date of authentication unless such date of authentication is an Interest Payment Date, in which case from such date of authentication, or unless such date of authentication is prior to the first Interest Payment Date, in which case from July 1, 1999 as to the Series 1999A Bonds and the Series 1999C Bonds, and from , 1999 with respect to the Series 1999B Bonds, or unless interest is in default, in which case from the Interest Payment Date as of which interest was last paid. (b) The Series 1999B Bonds shall initially bear interest at the Adjusted Rate equal to the Initial Interest Rate until but not including the Initial Rate Change Date and may continue to bear interest at an Adjusted Rate equal to the Reset Rate from and after the Initial Rate Change Date, or from any succeeding Rate Change Date, until the next succeeding Rate Change Date designated for such Series 1999B Bonds. Not less than 75 days prior to each Rate Change Date with respect to the Series 1999B Bonds, the Company shall deliver to the Trustee and the Remarketing Agent written notice of the Company's determination of the next succeeding Rate Change Date, which Rate Change Date shall be a [November 15] unless the Company specifies in such notice that the Series 1999B Bonds are to bear an Adjusted Rate to maturity; provided, however, that if the Company fails to specify the next succeeding Rate Change Date, such date shall be a [November 15] in such year as will enable the term between the current Rate Change Date and such next succeeding Rate Change Date to equal the preceding term or the final maturity, whichever is earlier. The Adjusted Rate applicable to the Series 1999B Bonds shall be the Reset Rate determined by the Remarketing Agent on a date 65 days prior to the Rate Change Date. The Reset Rate applicable to the Series 1999B Bonds shall be the lowest rate that would, in the judgment of the Remarketing Agent (having due regard to the prevailing market conditions), be necessary to enable the Series 1999B Bonds to be sold at par on the Rate Change Date, provided that the Reset Rate shall not exceed 15 % per annum (the "Maximum Rate") . Upon such determination of the Reset Rate, the Remarketing Agent shall promptly notify the Trustee and the Company of the 24 Reset Rate. Not less than 60 days prior to the Rate Change Date, the Trustee shall promptly notify each Holder of Series 1999B Bonds in writing by first class mail, postage prepaid, of the Reset Rate that will be applicable to such Series 1999B Bonds on and after the Rate Change Date and provide instructions for the procedure to be followed by any Holder wishing to tender Series 1999B Bonds for purchase as hereinafter provided. If for any reason the Reset Rate for the Series 1999B Bonds cannot be determined by the Remarketing Agent in the manner specified above, the Reset Rate will be equal to The Bond Buyer Revenue Bond Index (as published in The Bond Buyer or any successor publication thereto) for the most recent period for which such information is available prior to the giving of notice of the Reset Rate by the Trustee to the Holders of the Series 1999B Bonds, or if such index or its equivalent is no longer published, the interest rate currently in effect, provided that such rate may not exceed the Maximum Rate. In addition, the interest rate on the Series 1999B Bonds will not be reset on any Rate Change Date unless (a) at least 75 days prior to such Rate Change Date and (b) on such Rate Change Date, the Company shall cause to be delivered, at its expense, to the Trustee and the Remarketing Agent an Opinion of Bond Counsel, to the effect that such reset in interest rate and change in the Rate Period will not have an adverse effect on any exemption from Federal income taxation to which the interest on the Series 1999B Bonds would otherwise be entitled. The Company shall use its best efforts to cause such Opinion of Bond Counsel to be delivered to the Trustee by such dates. In the event such Opinion of Bond Counsel is not delivered, the interest rate on the Series 1999B Bonds currently in effect shall remain in effect as the Reset Rate for the next Rate Period, which shall be equal in duration to the preceding Rate Period but shall not in any event extend beyond the date of final maturity of the Series 1999B Bonds. SECTION 2.04. Delivery of Series 1999 Bonds: Allocation of Proceeds of the Series 1999 Bonds: Company Equity Contribution. (a) Upon the execution and delivery of this Indenture, the Issuer shall cause the execution of the Series 1999 Bonds and their delivery to the Trustee. Thereupon, the Trustee shall authenticate the Series 1999 Bonds and shall deliver them to, or on the order of, the original purchaser thereof, but only upon the receipt by the Issuer and the Trustee of the Investor Letter in the form attached hereto as Exhibit B. (b) Simultaneously with the delivery of the Series 1999 Bonds, the Trustee shall apply the proceeds of the Series 1999 Bonds as follows: (i) to the Interest Payment Account in the Bond Fund, any accrued interest; (ii) to the Debt Service Reserve Fund, $ (iii) to the Project Fund, the balance of the proceeds of the Series 1999 Bonds. (c) [Simultaneously with the delivery of the Series 1999 Bonds the Company shall deposit $ in immediately available funds with the Trustee which shall be deposited in the Project Fund by the Trustee.] 25 (d) Prior to delivery by the Trustee of any Series 1999 Bonds, the Trustee must receive a request and authorization, for and in the name and on behalf of the Issuer, signed by an authorized official, to authenticate and deliver the Series 1999 Bonds to, or on the order of, the original purchaser upon payment to the Trustee of the purchase price for the Series 1999 Bonds as provided in the Bond Purchase Agreement related thereto. SECTION 2.05. Issuance and Delivery of Additional Bonds. At the request of the Authorized Company Representative and upon compliance by the Company wi th the requirements of the Agreement with respect to the issuance or incurrence of Parity Debt, the Issuer may (but shall not be required to) issue Additional Bonds from time to time for any purpose or combination of purposes permitted under the Act or other laws of the State. Those Additional Bonds shall be on a parity with the Series 1999 Bonds and any Additional Bonds issued and outstanding at the time or thereafter under this Indenture; provided that nothing herein shall prevent payment of Debt Service Charges on any series of Additional Bonds from (i) being otherwise secured and protected from sources or by property, instruments or documents not applicable to the Series 1999 Bonds or anyone or more series of Additional Bonds, or (ii) not being secured or protected from sources or by property, instruments or documents applicable to the Series 1999 Bonds or one or more series of Additional Bonds. In the event any series of Additional Bonds are issued, the Debt Service Reserve Requirement, if any, with respect to those Additional Bonds shall be as defined in the Supplemental Indenture providing for the issuance of such Additional Bonds; provided that such Additional Bonds shall not be secured by the Debt Service Reserve Fund established for the Series 1999 Bonds. Before the Trustee may authenticate and deliver any series of Additional Bonds, the following items shall have been received by the Trustee: (a) Original executed counterparts of any amendments of or supplements to the Company Documents and to this Indenture which are necessary or advisable to provide that the Additional Bonds will be issued in compliance with the provisions of this Indenture; (b) One or more Additional Notes, as required by the Agreement, in an aggregate principal amount equal to the aggregate principal amount of the Additional Bonds; (c) Bonds. A copy of the resolution of the Issuer authorizing the issuance of the Additional (d) A request and authorization to the Trustee, for and in the name and on behalf of the Issuer, signed by an authorized official, to authenticate and deliver the Additional Bonds to, or on the order of, the original purchaser upon payment to the Trustee of the amount specified in 26 the request and authorization, which amount shall be deposited as determined or designated in or pursuant to the Supplemental Indenture; (e) Original executed counterparts of a Notice of Future Advance under the Mortgage in recordable form; and (t) An opinion of Bond Counsel to the effect that: (i) all conditions precedent under this Indenture to the delivery of the Additional Bonds and any Supplemental Indenture have been fulfilled; (ii) when executed for and in the name and on behalf of the Issuer and when authenticated and delivered by the Trustee, those Additional Bonds will be legal, valid and binding special obligations of the Issuer, enforceable in accordance with their terms, subject to reasonable exceptions for bankruptcy, insolvency and similar laws and the application of equitable principles, and will be secured hereunder equally and on a parity with all other Outstanding Bonds (except as otherwise permitted hereunder); and (iii) the issuance of the Additional Bonds will not result in the interest on the Series 1999 Bonds to the extent such Series 1999 Bonds are Tax-Exempt Bonds (or other Tax-Exempt Bonds then Outstanding under this Indenture) becoming included in the gross income of the Holders for federal income tax purposes. When the conditions described above authorizing such Additional Bonds have been satisfied, and the Additional Bonds have been executed and authenticated, the Trustee shall deliver the Additional Bonds to or on the order of the original purchaser thereof, but only upon payment to the Trustee of the amount specified in the request and authorization to which reference is made above and such amount shall be deposited by the Trustee as specified in such request and authorization, all in conformity with this Indenture. SECTION 2.06. Issuance and Delivery of Notes. At the request of the Authorized Company Representative, the Issuer may, to the extent permitted by law, including without limitation, the Act, issue bond anticipation notes from time to time in anticipation of Additional Bonds for any purpose or combination of purposes permitted under the Act or other laws of the State. The instrument or document providing for the issuance of those notes shall provide that in the event the Issuer or the Company defaults in the observance or performance of any of its covenants, agreements or obligations relating thereto, the sole recourse of the holders of the notes shall be to any reserve fund containing proceeds of those notes and the proceeds derived from the issuance of Additional Bonds or renewal notes in anticipation of Additional Bonds issued pursuant to the Act for the same purpose as the original notes. None of those notes may be issued, however, unless there first shall have been received by the Trustee the items specitied in Section 2.05(a) through (t); provided, that (i) any amendment 27 or supplement described in Section 2.05(a) shall be deemed to provide for this purpose that the obligation of the Company to make any payment of principal of, and premium, if any, and interest on, the notes will be limited to taking the actions by the Company necessary to cause the issuance of the Additional Bonds anticipated by the notes or of renewal notes in anticipation of Additional Bonds and specifically will not be secured by any assignment or security interest hereunder or under the Agreement; (ii) for this purpose, all references in those subparagraphs to Additional Bonds shall be deemed to constitute references to the notes; and (iii) the notes shall be payable only as provided above. 28 ARTICLE III TERMS OF BONDS GENERALLY SECTION 3.01. Form of Bonds. The Series 1999 Bonds, the certificate of authentication thereon, and the form of assignment thereof shall be substantially in the respective form thereof set forth in Exhibit A hereto, with any omissions, insertions and variations which may be authorized or permitted in or pursuant to the Supplemental Indenture, in the case of Additional Bonds, and which are consistent with this Indenture. All Bonds shall be in fully registered form. Except as provided in Section 3.05 hereof, the Holder of a Bond shall be regarded as the absolute owner thereof for all purposes of this Indenture. The Bonds shall be negotiable instruments in accordance with the Act, and shall express the purpose for which they are issued and any other statements or legends which may be required by law. SECTION 3.02. Variable Terms. Subject to the provisions of this Indenture, each series of Bonds shall be dated, shall mature in the years and the amounts, shall bear interest at the rate or rates per annum, shall be payable on the dates, shall have the Registrar, Paying Agents and Authenticating Agents, shall be of the denominations, shall be subject to redemption on the terms and conditions, and shall have any other terms which are set forth in or for which provision is made in this Indenture, including Exhibit A hereto, in the case of the Series 1999 Bonds, or in or pursuant to the applicable Supplemental Indenture, in the case of any issue of Additional Bonds. SECTION 3.03. Execution and Authentication of Bonds. Unless provided otherwise in the applicable Supplemental Indenture, each Bond shall be signed by at least two members of the Issuer in their official capacities (provided that those signatures may be facsimiles). In case any officer whose signature, or a facsimile of whose signature, shall appear on any Bond shall cease to be that officer before the issuance of the Bond, that officer's signature or the facsimile thereof shall be valid and sufficient nevertheless for all purposes, the same as if that officer had remained in office until that time. Any Bond may be executed on behalf of the Issuer by an officer who is the proper officer on the date of execution, although on the date of the Bond that individual is not the proper officer. No Bond shall be valid or become obligatory for any purpose or shall be entitled to any benefit under this Indenture, unless the certificate of authentication thereon shall have been manually signed by the Trustee or by any Authenticating Agent on behalf of the Trustee. The authentication by the Trustee or by an Authenticating Agent upon any Bond shall be conclusive evidence that the Bond so authenticated has been duly authenticated and delivered hereunder and is entitled to the benefit hereof. The certificate of the Trustee or an Authenticating Agent may be executed by any individual or agent authorized by the Trustee or the Authenticating Agent, but 29 it shall not be necessary that the same authorized individual or agent sign the certificates of authentication on all of the Bonds. SECTION 3.04. Security for Payment of Bonds. To the extent provided in and except as otherwise permitted by this Indenture, the Bonds shall be limited obligations of the Issuer and the Debt Service Charges thereon shall be (i) payable equally and ratably from the Revenues and (ii) secured by the Agreement (except for the Unassigned Rights) thereunder, and by the Mortgage; provided, that payment of Debt Service Charges on any series of Additional Bonds may be otherwise secured and payable from sources or by property or instruments not applicable to the Series 1999 Bonds or one or more series of Additional Bonds, or not secured and protected from sources or by property or instruments applicable to the Series 1999 Bonds or one or more series of Additional Bonds. Nothing in the Bonds or this Indenture shall represent or constitute a general obligation, a debt or a pledge of the faith and credit or taxing power of the Issuer and further, nothing therein or herein gives the Holders of any Bonds, and they do not have, the right to have levied ad valorem taxes or other taxes by the Issuer, or by the State or any other political subdivision or agency thereof, for the payment of Debt Service Charges on the Bonds. SECTION 3.05. Payment and Ownership of Bonds. (a) Debt Service Charges shall be payable in lawful money of the United States of America without deduction for the services of the Trustee or any Paying Agent. Subject to the provisions of paragraph (b) of this Section, (i) the principal of and any premium on any Bond shall be payable when due to a Holder upon presentation and surrender of such Bond at the designated corporate trust office of the Trustee or at the office, designated by the Trustee, of any Paying Agent, and (ii) interest on any Bond shall be paid on each Interest Payment Date by check or draft which the Trustee shall cause to be mailed on that date to the Holder in whose name the Bond (or one or more Predecessor Bonds) is registered at the close of business on the Regular Record Date applicable to that Interest Payment Date on the Register at the address appearing therein, provided that, at the written request by and expense of any Holder of $100,000 or more principal amount of Bonds, such Debt Service Charges may be paid by bank wire transfer or by direct deposit to the designated account of the Holder. If and to the extent, however, that the Issuer shall fail to make payment or provision for payment of interest on any Bond on any Interest Payment Date, that interest shall cease to be payable to the Person who was the Holder of that Bond (or of one or more Predecessor Bonds) as of the applicable Regular Record Date. Except as provided in paragraph (b) of this Section, whenever moneys become available for payment of the interest (1) the Trustee shall, pursuant to Section 7.07(d), establish a Special Interest Payment Date for the payment of that interest and a Special Record Date which shall be not more than 15 nor fewer than 10 days prior to the Special Interest Payment Date, and (2) the Trustee shall cause notice of the Special Interest Payment Date and of the Special Record Date to be mailed by first class mail, postage prepaid, to each Holder at its address as it appears on the Register not fewer than 10 days prior to the Special Record Date, and thereafter the interest shall be payable on such Special Interest Payment Date to the Person who was the Holder of said Bond (or Predecessor Bonds) at the close of 30 business on the Special Record Date. If any Bond is redeemed on any date which is not an Interest Payment Date, accrued interest thereon shall be paid when the redemption price is paid. If any Bond is redeemed on any Interest Payment Date, the interest due shall be paid in the normal manner specified above. (b) Each Bond delivered under this Indenture upon transfer thereof, or in exchange for or in replacement of any other Bond, shall carry the rights to interest accrued and unpaid, and to accrue on that Bond, or which were carried by that Bond. (c) Except as provided in this Section 3.05 and in the first paragraph of Section 3.07 hereof, (i) the Holder of any Bond shall be deemed and regarded as the absolute owner thereof for all purposes of this Indenture, (ii) payment of or on account of the Debt Service Charges on any Bond shall be made only to or upon the order of that Holder or its duly authorized attorney in the manner permitted by this Indenture, and (iii) neither the Issuer, the Trustee, the Registrar nor any Paying Agent or Authenticating Agent shall, to the extent permitted by law, be affected by notice to the contrary. All of those payments shall be valid and effective to satisfy and discharge the liability upon that Bond, including without limitation, the interest thereon, to the extent of the amount or amounts so paid. SECTION 3.06. Transfer and Exchan~e of Bonds. So long as there are any Outstanding Bonds, the Issuer will cause books for the registration and transfer of Bonds, as provided in this Indenture, to be maintained and kept at the designated office of the Registrar. Unless provided otherwise in the applicable Supplemental Indenture, at the option of the Holder, Bonds may be exchanged for Bonds of any authorized denomination or denominations in an aggregate principal amount equal to the unmatured and unredeemed principal amount of, and bearing interest at the same rate and maturing on the same date or dates as, the Bonds being exchanged. The exchange shall be made upon presentation and surrender of the Bonds being exchanged at the designated office of the Registrar or at the designated office of any Authenticating Agent together with an assignment duly executed by the Holder or its duly authorized attorney in any form which is satisfactory to the Registrar or the Authenticating Agent, as the case may be. Any Bond may be transferred on the Register, upon presentation and surrender thereof at the designated oft ice of the Registrar or the designated oft ice of any Authenticating Agent together with an assignment duly executed by the Holder or its duly authorized attorney in any form which is satisfactory to the Registrar or the Authenticating Agent, as the case may be. Upon transfer of any Bond and upon the request of the Registrar or the Authenticating Agent, the Issuer shall execute and the Trustee or the Authenticating Agent, as the case may be, shall authenticate and deliver, a new Bond or Bonds in the name of the transferee, of any authorized denomination or denominations in an aggregate principal amount equal to the unmatured and unredeemed principal amount of, and bearing interest at the same rate and maturing on the same date or dates as, the Bonds presented and surrendered for transfer. 31 The Trustee shall not register the transfer of any Bond without the prior receipt of evidence acceptable to the Trustee that the transferee is an "accredited investor", as defined in Regulation D, or any successor regulation, promulgated by the United State Securities and Exchange Commission, in accordance with the legend on the face of the Bond. Evidence acceptable to the Trustee shall include, but not be limited to, published lists of "institutional investors" maintained by one or more national bond rating services; provided, however, that such term shall not include a book entry depository, including, but not limited to, The Depository Trust Company. In all cases in which Bonds are exchanged or transferred hereunder, the Issuer shall execute, and the Trustee or any Authenticating Agent, as the case may be, shall authenticate and deliver, Bonds in accordance with the provisions hereof. Except as provided in Section 3.07 hereof, the exchange or transfer shall be made without charge; provided that the Issuer and the Registrar or the Authenticating Agent, as the case may be, may make a charge for every exchange or transfer of Bonds which is sufficient in amount to reimburse them for any tax or excise required to be paid with respect to the exchange or transfer. The charge shall be paid by the Holder before a new Bond is delivered. All Bonds issued upon any exchange or transfer of Bonds shall be the valid obligations of the Issuer and shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Bonds surrendered upon exchange or transfer. Neither the Issuer, the Trustee, the Registrar nor any Authenticating Agent, as the case may be, shall be required to make any exchange or transfer of a Bond (i) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Bonds and ending at the close of business on the day of the mailing, or to transfer or exchange any Bonds selected for redemption, in whole or in part, following the mailing (ii) during a period beginning on the date the Holder of such Bond delivers to the Trustee a notice described in Section 4.10 hereof and ending on the Optional Tender Date. In case any Bond is redeemed in part only, on or after the redemption date and upon presentation and surrender of the Bond, subject to the provisions of Section 4.04 hereof, the Issuer shall cause execution of, and the Trustee or Authenticating Agent, as the case may be, shall authenticate and deliver, a new Bond or Bonds in authorized denominations in an aggregate principal amount equal to the unmatured and unredeemed portion of, and bearing interest at the same rate and maturing on the same date or dates as, the Bond redeemed in part. The designated office of the Registrar and the Authenticating Agent for purposes of this Section shall be established by the Trustee. SECTION 3.07. Mutilated. Lost. Wrongfully Taken or Destroyed Bonds. If any Bond is mutilated, lost, wrongfully taken, improperly cancelled or destroyed, in the absence of written notice to the Issuer, the Trustee, the Registrar or an Authenticating Agent that the lost, wrongfully taken or destroyed Bond has been acquired by a bona fide purchaser, the Issuer shall execute, and the Trustee or an Authenticating Agent, as the case may be, shall authenticate and 32 deliver, a new Bond of like date, maturity, interest rate and denomination as the Bond mutilated, lost, wrongfully taken, improperly cancelled or destroyed; provided, that (a) in the case of any mutilated or improperly cancelled Bond, such Bond shall be surrendered first to the Registrar or an Authenticating Agent; and (b) in the case of any lost, wrongfully taken or destroyed Bond, there shall be furnished first to the Issuer, the Company, the Trustee and the Registrar or an Authenticating Agent (if different persons) evidence of the loss, wrongful taking or destruction satisfactory to the Trustee and the Registrar or the Authenticating Agent, as the case may be, together with indemnification satisfactory to the Trustee and the Registrar or Authenticating Agent (if different persons) indemnifying the Company, the Trustee, the Registrar or Authenticating Agent (if different persons), and the Issuer. If any mutilated, lost, wrongfully taken or destroyed Bond shall have matured or been redeemed prior to maturity, instead of issuing a new Bond, the Authorized Company Representative may direct the Trustee to pay that Bond, without surrender thereof, upon the furnishing of satisfactory evidence and indemnification, as in the case of issuance of a new Bond. The Issuer, the Trustee and the Registrar or an Authenticating Agent may charge the Holder of a mutilated, lost, wrongfully taken or destroyed Bond their reasonable fees and expenses in connection with their actions pursuant to this Section, except for improper cancellation by the Registrar. Every new Bond issued pursuant to this Section by reason of any Bond being mutilated, lost, wrongfully taken, improperly cancelled or destroyed (i) shall constitute a Bond, to the extent of the Outstanding principal amount of, and having the same terms as, the Bond lost, mutilated, taken, improperly cancelled or destroyed, regardless of whether the mutilated, lost, wrongfully taken, improperly cancelled or destroyed Bond shall be enforceable at any time by anyone; and (ii) shall be entitled to all of the benetits of this Indenture to the same extent as the Bond that was mutilated, lost, wrongfully taken or destroyed. All Bonds shall be held and owned on the express condition that the foregoing provisions of this Section are exclusive with respect to the replacement or payment of mutilated, lost, wrongfully taken, improperly cancelled or destroyed Bonds and, to the extent permitted by law, shall preclude all other rights, remedies and powers with respect to the replacement or payment of negotiable instruments or other investment securities without their surrender, notwithstanding any law or statute to the contrary now existing or enacted hereafter. SECTION 3.08. Safekeeping and Cancellation of Bonds. Any Bond received by the Registrar for replacement pursuant to Section 3.07 hereof or exchanged pursuant to Section 3.06 33 hereof shall be promptly cancelled by the Registrar and evidence of such cancellation will be delivered by the Registrar to the Issuer and the Authorized Company Representative upon request. The Issuer, or the Company on behalf of the Issuer, may deliver at any time for cancellation to the Registrar any Bonds authenticated and delivered previously hereunder, which the Issuer or the Company may have acquired in any manner whatsoever. All Bonds so delivered shall be cancelled promptly by the Registrar. Certitication of such surrender and cancellation shall be made to the Issuer, the Company and the Trustee by the Registrar at least once in each calendar year during which any Bonds were surrendered, cancelled and destroyed. Except as provided in the first paragraph of this Section 3.08 and unless directed otherwise by the Authorized Company Representative, cancelled Bonds shall be retained and stored by the Registrar for a period of seven years after their cancellation. Those cancelled Bonds shall be destroyed by the Registrar by shredding or incineration seven years after their cancellation or at any earlier time directed by the Authorized Company Representative. The Trustee or Registrar, as appropriate, shall furnish counterparts of a certificate of destruction relating to any Bonds destroyed under this Section 3.08 evidencing such destruction to the Issuer and the Authorized Company Representative. SECTION 3.09. Temporary Bonds. Pending the preparation of definitive Bonds, interim receipts or certificates (herein referred to as "Temporary Bonds") may initially be issued, exchangeable for definitive Bonds of the same series when the latter are ready for delivery. Such Temporary Bonds may be printed, lithographed or typewritten, shall be of such denomination or denominations as may be determined by the Issuer, with the approval of the Company and the Registrar and Paying Agent, and may contain such references to any of the provisions of this Indenture as may be appropriate. If Temporary Bonds are issued, the Issuer will cause to be furnished duly executed definitive Bonds as soon as practicable, and thereupon the Temporary Bonds may be surrendered for cancellation at the Principal Office of the Registrar in exchange for definitive Bonds and without charge for such exchange, and the Issuer shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange of such Temporary Bonds so surrendered an equal aggregate principal amount of definitive duly executed Bonds, of Authorized Denominations and of the same series, interest rate or rates and maturity or maturities. Until so exchanged, the Temporary Bonds shall be entitled to the same benefits under this Indenture as definitive Bonds of the same series delivered hereunder. 34 ARTICLE IV REDEMPTION OF BONDS; TENDER PROVISIONS SECTION 4.01. Mandatory Sinking Fund Redemption of Series 1999 Bonds. (a) The Series 1999A Bonds maturing November 15, 20_ are subject to mandatory redemption prior to maturity in part, by lot, on November 15TH of each year, beginning November 15, 20_ at a redemption price equal to one hundred percent (100%) of the principal amount of such Series 1999 Bonds being redeemed plus accrued interest to the redemption date, without premium, in the following principal amounts and in the following years: Year Amount * Maturity (b) The Series 1999C Bonds maturing November 15, 20 _ are subject to mandatory redemption prior to maturity in part, by lot, on November 15TII of each year, beginning November 15, 20 , at a redemption price equal to one hundred percent (100%) of the principal amount of such Series 1999 Bonds being redeemed plus accrued interest to the redemption date, without premium, in the following principal amounts and in the following years: Year Amount * Maturity (c) The Series 1999B Bonds are subject to mandatory redemption prior to maturity in part, by lot (except that Series 1999B Bonds that have been tendered for purchase on any Optional Tender Date but were not so purchased shall be redeemed prior to the redemption of any other Series 1999B Bonds), on November 15th of each year, beginning November 15, 20 , at a redemption price equal to one hundred percent (100%) of the principal amount of Seriesl999B Bonds being redeemed plus accrued interest to the redemption date, without premium, in the following principal amounts and in the following years: Year Amount *Maturity (d) The principal amount of Series 1999 Bonds required to be redeemed pursuant to the foregoing provisions shall be reduced prorata by amounts equal to such principal amount of 35 the Series 1999 Bonds of such maturities which are purchased by the Tender Agent or Trustee for cancellation and retirement by the Trustee with moneys provided by the Company. SECTION 4.02. Extraordinary Redemption Without Premium. (a) At the direction of the Company on behalf of the Issuer, the Series 1999 Bonds are subject to extraordinary optional redemption in whole at anytime or in part on any Interest Payment Date in Authorized Denominations from the proceeds of insurance or condemnation payments received in excess of $250,000 as a result of damage or destruction or taking under the power of eminent domain of all or a portion of the Mortgaged Property, in either case at a redemption price of 100 percent of the principal amount redeemed plus interest accrued to the redemption date. SECTION 4.03. Optional Redemption of Series 1999 Bonds. (a) The Series 1999A Bonds and the Series 1999C Bonds maturing on or prior to November 15, 20_ are not subject to redemption prior to maturity at the option of the Company. The Series 1999A Bonds and the Series 1999C Bonds maturing on and after November 15, 20_ are subject to redemption prior to their maturity at the option of the Issuer at the written request of the Company on or after November 15, 20 at any time in whole or in part, in order of maturities as shall be determined by the Company and by lot within a maturity, on any Interest Payment Date, at the redemption prices (expressed as percentages of the principal amount thereof) set forth in the table below, plus accrued interest thereon to the date fixed for redemption: Period of Redemption (All dates inclusive) Redemption Prices November 15, 20_ to November 14, 20_ 102% November 15, 20_ to November 14, 20_ 101 % November 15, 20_ and thereafter 100% (b) The Series 1999B Bonds may be redeemed in whole or in part on any date occurring within the redemption periods, as set forth below, by the Issuer upon direction of the Company. The redemption price for any such redemption shall be at a redemption price equal to 100% of the principal amount of the Series 1999B Bonds or portion thereof so redeemed on the applicable redemption date, plus accrued interest to the redemption date. (i) During the period between the issuance of the Series 1999B Bonds and the Initial Rate Change Date, the Series 1999B Bonds are subject to optional redemption on or after November 15, 20_ (ii) During any Rate Period of three years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 18-month anniversary of the first day for such Rate Period. 36 (iii) During any Rate Period of five years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 24-month anniversary of the first day of such Rate Period. (iv) During any Rate Period of seven years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 30-month anniversary of the first day of such Rate Period. (v) During any Rate Period of ten or more years in length, the Series 1999B Bonds are subject to optional redemption commencing on the fifth anniversary of the first day of such Rate Period. The Series 1999B Bonds tendered for purchase on any Rate Change Date but not so purchased shall be given priority for redemption on each succeeding optional or extraordinary redemption date until redeemed prior to the optional or extraordinary redemption of any other Series 1999B Bonds. Bond so given priority shall be selected by the Trustee, by lot or in such other equitable manner as the Trustee shall deem appropriate, in the event of insufficient funds to redeem all such Bonds on any particular redemption date. SECTION 4.04. Partial Redemption. Subject to the provisions of Section 4.03 hereof, if less than all of the Series 1999 Bonds shall be called for redemption, the particular Series 1999 Bonds or portions thereof to be redeemed shall be designated by the Company and, if not designated, the Bonds to be redeemed shall be redeemed in inverse order of maturity; provided, that in any event Unremarketed Bonds shall be redeemed prior to any other Bonds. If less than all Outstanding Bonds of a single maturity are to be redeemed, the selection of Bonds within such maturity, or portions thereof in Authorized Denominations, to be redeemed shall be made by lot by the Trustee in any manner which the Trustee may determine. The Trustee shall, to the extent practicable, select Bonds for redemption as to avoid redeeming any particular Bond in part. SECTION 4.05. Company's Election to Redeem. Except in the case of mandatory redemption, Bonds shall be redeemed only after written notice from the Authorized Company Representative to the Trustee and the Issuer. That notice shall specify the place or places where the amounts due upon redemption are payable, the redemption date, and the principal amount and the maturity of Bonds of each series to be redeemed. The notice shall be given not less than 45 nor more than 60 days prior to the redemption date. SECTION 4.06. Notice of Redemption. (a) When redemption is authorized or required pursuant to the provisions hereof, the Trustee shall give to the Holders notice, at the expense of the Company, of the redemption of the Bonds. Such notice shall state: (i) the CUSIP numbers of all Bonds being redeemed, (ii) the original issue date of such Bonds, (iii) the maturity date and rate of interest borne by each Bond being redeemed, (iv) the redemption date, (v) the redemption price, (vi) the date on which such notice is mailed, (vii) if less than all Outstanding 37 Bonds are to be redeemed, the Bond number (and, in the case of a partial redemption of any Bond, the principal amount) of each Bond to be redeemed, (viii) that on such redemption date there shall become due and payable upon each Bond to be redeemed the redemption price thereof, or the redemption price of the specified portions of the principal thereof in the case of Bonds to be redeemed in part only, together with interest accrued thereon to the redemption date, and that from and after such date interest thereon shall cease to accrue and be payable, and (ix) that the Bonds to be redeemed, whether as a whole or in part, are to be surrendered for payment of the redemption price at the designated corporate trust office of the Trustee at an address specified. (b) Notice of such redemption shall be given by mail, postage prepaid, not more than sixty (60) days or fewer than thirty (30) days prior to said date of redemption, to the Holders of any Bonds to be redeemed. Such mailing shall not be a condition precedent to such redemption, and failure to mail any such notice, or any defect in such notice as mailed, shall not affect the validity of the proceedings for the redemption of the Bonds. Within sixty (60) days of date of redemption, the Trustee shall give a second notice of redemption by mailing another copy of the redemption notice to the registered Holders of Bonds called for redemption but which have not been presented for payment within thirty (30) days after the date set for redemption. (c) In addition to the forgoing notices, notice of the call for any redemption identifying the Bonds, or portions of Bonds (including CUSIP numbers), and the names of the Registered Holders thereof shall, concurrently with the redemption notices mailed to the Registered Holders of the Bonds to be redeemed, be mailed by registered or certified mail to Ziegler Securities, 215 North Main Street, West Bend, Wisconsin 53905, Attention: Bond Redemption Department, and shall meet the following requirement; provided, however, that failure to provide such further notice of redemption or to comply with the terms of this paragraph shall not in any manner defeat the effectiveness of a call for redemption if notice thereof is given as prescribed above: Each further notice of redemption shall also be sent by certified mail or overnight delivery service or telecopy to all registered securities depositories then in the business of holding substantial amounts of obligations of types comprising the Bonds (such depositories now being the Depository Trust Company, New York, New York, Midwest Securities Trust Company, Chicago, Illinois and Philadelphia Depository Trust Company, Philadelphia, Pennsylvania) and to four or more national information services which disseminate notices of prepayment or redemption of obligations such as the Bonds (such information services now being Financial Information, Inc. 's "Daily Called Bond Service," Jersey City, New Jersey, Kenny Information Services "Called Bond Service," New York, New York, Moody's "Municipal and Government," New York, New York and Standard & Poor's "Call Bond Record," New York, New York). SECTION 4.07. Payment of Redeemed Bonds. Notice having been mailed in the manner provided herein, the Bonds and portions thereof duly called for redemption shall become due and payable on the redemption date, and upon presentation and surrender thereof at the place or places specified in that notice, shall be paid at the applicable redemption price. 38 If moneys for the redemption of all of the Bonds and portions thereof to be redeemed, including without limitation, interest accrued thereon to the redemption date, are held by the Trustee or any Paying Agent on the redemption date, so as to be available therefor on that date, and if notice of redemption shall have been deposited in the mail as aforesaid, then from and after the redemption date, those Bonds and portions thereof duly called for redemption shall cease to bear interest and shall no longer be considered to be Outstanding. If those moneys shall not be so available on the redemption date, or that notice shall not have been deposited in the mail as aforesaid, those Bonds and portions thereof shall continue to bear interest, until they are paid, at the same rate as they would have borne had they not been called for redemption. All moneys deposited in the Special Funds and held by the Trustee or a Paying Agent for the redemption of particular Bonds shall be held in trust for the account of the Holders thereof and shall be paid to them, respectively, upon presentation and surrender of those Bonds. SECTION 4.08. Variation of Redemption Provisions. The provisions of this Article may be varied by the Supplemental Indenture providing for any series of Additional Bonds, insofar as they apply to that series. SECTION 4.09. Series 1999B Bond Holders Put Option. (a) Provided that there then be no Event of Default under the Indenture, that the Series 1999B Bonds tendered for purchase shall not have otherwise been called for redemption, and that sufficient funds are available therefor, as hereinafter provided, the Holder of a Series 1999B Bond will have the right to cause such Series 1999B Bond to be purchased on any Optional Tender Date at a price equal to 100% of the principal thereof or any portion of integral multiples of $1,000 (the "Tender Purchase Price"), upon written notice to the Tender Agent given not less than 30 days nor more than 60 days prior to the applicable Optional Tender Date. The notice required to be given pursuant to this paragraph (the "Tender Notice") (i) shall be irrevocable and binding upon the Holder making such election and any transferee thereof and (ii) shall state the principal amount of such Series 1999B Bonds to be tendered by the Holder to the Tender Agent, for purchase on such Optional Tender Date. The Tender Agent shall, prior to the close of business on the Business Day immediately succeeding the last day upon which a Tender Notice may be given to the Tender Agent, give Immediate Notice to the Trustee, the Company and the Remarketing Agent by telephone (promptly confirmed in writing) or by telecopy of all Tender Notices and the aggregate principal amount of Series 1999B Bonds to be tendered for purchase on such Optional Tender Date. The tendering of Series 1999B Bonds by any Holder shall be in accordance with the instructions delivered to such Holder by the Tender Agent, specifying the procedures to be followed in order to tender such Series 1999B Bonds for purchase on an Optional Tender Date. Failure of any Holder of Series 1999B Bonds to give a Tender Notice, or the failure of such Holder to comply with the procedures described in the immediately preceding sentence shall result in such Holder's loss of the right to tender Series 1999B Bonds for purchase on such Optional Tender Date. Interest for the six-month period immediately prior to the date of such purchase will 39 be mailed to the holder of such Series 1999B Bond as registered on the 15th day of the month (whether or not a business day) of the month immediately preceding the date of such purchase. (b) Prior to 10:30 a.m., Chicago Time, on each Optional Tender Date, the Holders of the Series 1999B Bonds to be tendered for purchase on such date shall deliver to the Tender Agent the Series 1999B Bonds to be tendered for purchase on such date accompanied (if required by the Trustee) by a written instrument or instruments of assignment or transfer in the form satisfactory to the Trustee transferring such Bonds to such person or persons as the Remarketing Agent in its sole discretion shall designate, or if the Remarketing Agent shall not have made any such designation, then to the Tender Agent to be held and registered in accordance with the provisions of Section 4.13 hereof. If a Holder files the requisite Tender Notice but fails to deliver the Series 1999B Bonds so tendered, such Series 1999B Bonds, upon deposit with the Tender Agent on the Optional Tender Date of the Tender Purchase Price, shall be deemed purchased and no longer outstanding, and the Holder of such Series 1999B Bonds shall thereafter look solely to the Tender Purchase Price held by the Tender Agent without interest. (c) On the Optional Tender Date, the Tender Agent will pay the Tender Purchase Price of the Series 1999B Bonds to be so purchased from the following sources and in the order listed: (i) proceeds of the remarketing of the Series 1999B Bonds deposited with the Tender Agent by the Remarketing Agent pursuant to the terms of the Remarketing Agreement; and (ii) moneys deposited by the Company pursuant to Section 5.20 of the Agreement with the Trustee, for the purpose of paying the Tender Purchase Price of the Series 1999B Bonds to be so purchased, which shall be transferred by the Trustee to the Tender Agent to pay such Tender Purchase Price. To the extent that Series 1999B Bonds for which the Remarketing Agent has written confirmations of sale are not sold and cash proceeds made available to the Tender Agent as provided in Section 4.13 hereof, the Remarketing Agent promptly shall so notify in writing the Trustee, and the Trustee shall take action pursuant to Section 4.10 hereof to obtain the balance of the Tender Purchase Price from the Company, in accordance with Section 5.20 of the Agreement. In the event the Remarketing Agent sells additional Series 1999B Bonds between the date of the notification required by the immediately preceding paragraph and the Optional Tender Date, the Remarketing Agent shall promptly notify in writing the Tender Agent that the moneys required to accomplish the purchase of all Series 1999B Bonds tendered for purchase is to be reduced in an amount equal to the sales price of any such additional Series 1999B Bonds which have been sold. In such case, any unused moneys derived from the Company shall be returned promptly to the Company in accordance with Section 4.1O(b) hereof. 40 (d) The Trustee has been appointed Tender Agent in order to perform the duties of such Tender Agent as required by this Indenture. The Company, with the prior written approval of the Issuer, shall have the right, from time to time, to appoint another Tender Agent by giving written notice to the person then serving as Tender Agent and to the Trustee of such appointment. The Tender Agent may at any time resign and be discharged of the duties and obligations created by the Indenture by giving at least sixty (60) days written notice to the Issuer, the Company, the Remarketing Agent and the Trustee. The successor Tender Agent will be designated pursuant to Section 6.14 hereof. SECTION 4.10. Moneys to Purchase Series 1999B Bonds: Duties of Tender Agent. (a) Upon receipt of the notice described in Section 4.09(a), the Tender Agent shall give Immediate Notice to the Remarketing Agent, the Company and the Trustee stating the aggregate principal amount of Series 1999B Bonds, if any, which have been properly tendered and delivered to the Tender Agent for purchase on the Optional Tender Date. At least three (3) business days preceding the Optional Tender Date, the Remarketing Agent shall give telephonic or telegraphic notice confirmed in writing to the Trustee specifying (i) the principal amount of the Series 1999B Bonds, if any, sold by it for which proceeds will be available on the Optional Tender Date and (ii) the principal amount of the Series 1999B Bonds required to be purchased which have not been remarketed ("Unremarketed Bonds"). Immediately following the receipt of such notice the Trustee shall give telephonic notice, confirmed by written notice, to the Company of the amount of Unremarketed Bonds and the amount of the aggregate Tender Purchase Price associated therewith. Upon receipt of such notice from the Trustee, the Company shall notify the Trustee of the amount of funds available pursuant to Section 5.20 of the Agreement to purchase any or all of the Unremarketed Bonds. The Tender Agent shall, sell to the Company. all or a portion of the Unremarketed Bonds on the Optional Tender Date, with payment to be made directly by the Company to the Trustee in immediately available funds on such Optional Tender Date. (b) Any moneys received from or for the account of the Company pursuant to this Section in the form of immediately available funds paid by the Company shall be held by the Trustee or the Tender Agent as trust funds in a separate fund established for such purpose (the "Extendables Purchase Fund") to be used solely for the purpose of purchasing Unremarketed Bonds and shall be delivered, to the extent necessary, to the Tender Agent on the Optional Tender Date in the amount sufficient to effect the purchase of duly tendered Series 1999B Bonds on such date. In the event all of the moneys so received are not required to be used to purchase Series 1999B Bonds on such date, any excess moneys shall be returned by the Tender Agent to the Trustee and then by the Trustee to the Company or the appropriate Special Fund, whichever was the source of such excess moneys. SECTION 4.11. Failure to Remarket Tendered Series 1999B Bonds. In the event there are not sufficient moneys available from the sources provided in Section 4.10 hereof to pay the principal of the Series 1999B Bonds tendered for purchase on the Optional Tender Date, the Trustee, after notification in writing from the Tender Agent, will determine by lot the Series 1999B Bonds to be purchased on such Optional Tender Date, and the remaining tendered Series 41 1999B Bonds shall be treated as tendered for purchase on each next succeeding Optional Tender Date unless the Trustee shall receive at least 45 days prior to any such succeeding Optional Tender Date a properly executed notice signed by the Registered Holder, or by its attorney-in-fact duly authorized in writing, stating that the tender of such Series 1999B Bonds has been withdrawn (the "Tender Withdrawal"). Failure to purchase all Series 1999B Bonds tendered for purchase on a particular Optional Tender Date because of an insufficiency of money to effect such purchase shall not constitute an Event of Default under this Indenture. Unremarketed Bonds for which a Tender Withdrawal has not been received will be selected for redemption pursuant to any partial redemption of the Series 1999 Bonds as set forth in Section 4.04 hereof prior to the selection of other Bonds of the same maturity and type. SECTION 4.12. Remarketin~ of Series 1999B Bonds. The Remarketing Agent shall offer for sale and use its best efforts to sell all Series 1999B Bonds tendered to the Tender Agent for purchase pursuant to the provisions of Section 4.09 hereof and the Remarketing Agreement, any such sale to be made on the Optional Tender Date on which such Series 1999B Bonds are to be purchased. SECTION 4.13. Delivery of Series 1999B Bonds and Proceeds of Sale. (a) Series 1999B Bonds sold by the Remarketing Agent pursuant to Section 4.12 hereof shall be delivered by the Tender Agent to the Trustee for registration of transfer. The Trustee shall register the transfer of such Series 1999B Bonds in accordance with written instructions received by it from the Remarketing Agent prior to 10:30 a.m., Chicago Time, on the business day immediately preceding the Optional Tender Date and shall authenticate and deliver new Series 1999B Bonds in an equal aggregate principal amount to the Remarketing Agent for redelivery to the purchasers thereof. (b) Series 1999B Bonds purchased by the Tender Agent with moneys provided by the Company shall be cancelled. (c) Series 1999B Bonds delivered to the Tender Agent as provided in this Section 4.13 (and not cancelled pursuant to paragraph (b)) shall, subject to the Tender Withdrawal provisions of Section 4.11 hereof, be registered by the Trustee in the manner directed in writing by the Remarketing Agent. The Trustee shall have no liability or responsibility for the Remarketing Agent's sale and disposition of Series 1999B Bonds. (d) The Remarketing Agent shall pay to the Tender Agent, on the Optional Tender Date, in immediately available funds, the purchase price for Series 1999B Bonds which have been remarketed by the Remarketing Agent. The moneys so received by the Tender Agent shall be distributed to Holders who shall have properly tendered and delivered Series 1999B Bonds for purchase and which have been remarketed or cancelled. 42 (e) The Tender Agent agrees, and will cause each of its agents to agree, that it will (i) hold all Series 1999B Bonds delivered to it hereunder in trust solely for the benefit of the respective Bondholders that shall have so delivered such Series 1999B Bonds until moneys representing the purchase price of such Series 1999B Bonds shall have been delivered to or for the account of or to the order of such Bondholders; and (ii) deposit all moneys delivered to it hereunder for the purchase of Series 1999B Bonds in the Extendables Purchase Fund and hold such moneys in trust solely for the benefit of the person or entity which shall have so delivered such moneys, until the Series 1999B Bonds purchased with such moneys shall have been delivered to or for the account of such person or entity. SECTION 4.14. No Purchases or Sales After Event of Default. Anything herein or in the Agreement to the contrary notwithstanding, there shall be no purchases or sales of Series 1999B Bonds pursuant to this Article IV at any time (i) during the continuance of an Event of Default that consists of the failure to pay, when due, any payment (of, premium or interest on, any Bond), or (ii) after the Trustee shall have received written notitication that an Event of Default (other than as described in the preceding clause (i)) has occurred under the Indenture and such Event of Default is continuing. SECTION 4.15. Remarketing Agent. B. C. Ziegler and Company, is hereby appointed as the Remarketing Agent for the Series 1999B Bonds. The Company shall have the right, from time to time, to remove the Remarketing Agent and appoint a successor Remarketing Agent by giving written notice to the person or persons then serving as Remarketing Agent, to the Issuer and to the Trustee of such appointment; provided, however, the Remarketing Agent may not be changed during the period commencing one hundred twenty (120) days prior to an Optional Tender Date and ending thirty (30) days after an Optional Tender Date. As a condition precedent to serving as Remarketing Agent, the Remarketing Agent shall deliver to the Trustee and the Company a written agreement signifying its acceptance of the duties and obligations imposed upon it hereunder pursuant to the provisions of which, in addition to any other provisions contained therein, the Remarketing Agent shall: (a) designate the office or oftlces at which it intends to conduct its activities as Remarketing Agent and to which Series 1999B Bonds, moneys, notices and communications are to be delivered and sent; and (b) use its best efforts in accordance with the Remarketing Agreement to remarket Series 1999B Bonds delivered to it at a market percentage of par; and (c) keep such books and records as shall be consistent with prudent industry practice and make such books and records available for inspection by the Issuer, and Trustee and the Company at all reasonable times.r 43 SECTION 4.16. Resignation of Remarketing Agent. Any Remarketing Agent may at any time resign and be discharged of the duties and responsibilities created by this Indenture by giving at least ninety (90) days' written notice to the Issuer, the Trustee and the Company; provided, however, no such resignation shall be effective during the period commencing one hundred twenty (120) days prior to an Optional Tender Date and ending thirty (30) days after an Optional Tender Date. In the event of the resignation or removal of any Remarketing Agent, the Remarketing Agent shall pay over, assign and deliver any moneys and Series 1999B Bonds held by it in such capacity to its successor. In the event that the Company fails to appoint a successor Remarketing Agent, the interest rate in place prior to a Rate Change Date shall remain the same after the Rate Change Date. 44 ARTICLE V FUNDS AND PAYMENTS SECTION 5.01. Creation of Funds. In addition to the Extendables Purchase Fund created pursuant to Section 4.10 hereof, the funds and accounts described in this Section are created hereby and are designated as indicated. Each fund and account is to be maintained in the custody of the Trustee as a separate trust account (except when invested in Eligible Investments), provided that separate subaccounts may be maintained in any such account and separate accounts may be maintained in the Bond Fund. The funds and accounts are: (a) the Bond Fund designated the "City of Clearwater, Florida (BEF, Inc. Project) -- Bond Fund" and the Principal Payment Account and the Interest Payment Account therein; (b) the Rebate Fund designated the "City of Clearwater, Florida (BEF, Inc. Project) -- Rebate Fund"; (c) the Debt Service Reserve Fund designated the "City of Clearwater, Florida (BEF, Inc. Project) -- Debt Service Reserve Fund"; (d) the Project Fund designated the "City of Clearwater, Florida (BEF, Inc. Project) -- Project Fund. " The Bond Fund, the Debt Service Reserve Fund, the Project Fund and the Extendables Purchase Fund are hereby designated as the "Special Funds" . The proceeds of the sale of the Series 1999 Bonds (including without limitation, premium, if any, and interest accrued thereon) shall be allocated and deposited by the Trustee pursuant to Section 2.04 hereof. SECTION 5.02. Application of Loan Payments and Additional Payments. So long as there are any Series 1999 Bonds Outstanding, all Loan Payments and Additional Payments shall be paid monthly, not later than the 25th day of the next preceding month, by the Company directly to the Trustee, shall be in an amount sufficient to make the payments described below, and after payment of any fees due the Trustee, shall be deposited by the Trustee as follows: (a) To the Bond Fund (i) into the Interest Payment Account on each Loan Payment Date beginning November 15, 1999, not less than the approximate equal monthly amount necessary, together with the moneys on deposit in the Interest Payment Account and available for that purpose on that date, to pay in full the interest due on the Bonds on the next succeeding Interest Payment Date, and 45 (ii) into the Principal Payment Account on each Loan Payment Date beginning November 15, 2001, not less than the approximate equal monthly amount necessary to pay in full the principal of the Bonds that will become due and payable on the next succeeding Principal Payment Date (whether by payment at stated maturity or by mandatory sinking fund redemption); less (1) in each case, the moneys on deposit in the Principal Payment Account and available for that purpose on that date, and (2) in the case of redemption pursuant to the mandatory redemption requirements described in Section 4.01, the amount, if any, of credit described in Section 4.01(c) hereof; which amounts required to be deposited into the Bond Fund may be deposited in the form of either or both money or Eligible Investments of those maturities which will be sufficient without further investment or reinvestment to produce the amounts required to be on deposit five days prior to the next succeeding Interest Payment Date or Principal Payment Date, as applicable; and (b) To the Debt Service Reserve Fund (i) on or prior to each Loan Payment Date, beginning in the sixth months following any months in which the amount on deposit in the Debt Service Reserve Fund falls below the Debt Service Reserve Requirement because moneys are transferred from the Debt Service Reserve Fund to the Bond Fund to make up a deficiency in the Bond Fund (as permitted under the provisions of Section 5.06 hereof), not less than one-twelfth (1/12th) of the amount so transferred until the balance in the Debt Service Reserve Fund equals the Debt Service Reserve Requirement, and (ii) on or prior to each Loan Payment Date, beginning in the month following the month in which the Company receives notice pursuant to Section 5.11 hereof that the balance in the Debt Service Reserve Fund is below an amount equal to ninety percent (90 %) of the Debt Service Reserve Requirement, an amount not less than one-fourth of the deficiency determined pursuant to Section 5.11 until the balance in the Debt Service Reserve Fund equals the Debt Service Reserve Requirement; provided, that in the event that it is determined pursuant to Section 5.11, subsequent to the occurrence of the events described in (i) and (ii) above, that the amount on deposit in the Debt Service Reserve Fund is not less than the Debt Service Reserve Requirement, the obligation to make payments under this paragraph shall end; and (c) In each case and on each Loan Payment Date any amount which may be necessary to make up any previous deficiency in any of the payments described above and to make up any deficiency or loss in the respective funds or accounts to which payments are required to be made. The Loan has been made to the Company pursuant to the Agreement, and the Loan Payments required under the Agreement are to be remitted directly to the Trustee in the manner described therein and in the amounts set forth in paragraphs (a) and (b) above. 46 For purposes of this section, (i) a deficiency in the Interest Payment Account or the Principal Payment Account shall be the difference by which the respective amounts then held therein are less than the respective amounts then scheduled to be held therein pursuant to the applicable provisions of this Article V, and (ii) a deficiency in the Debt Service Reserve Fund shall be the difference by which the amount then held therein is less than the Debt Service Reserve Requirement. SECTION 5.03. Bond Fund. The Bond Fund (and the accounts therein for which provision is made in this Indenture) and the moneys and Eligible Investments therein shall be used solely and exclusively for the payment of Debt Service Charges as they become due at stated maturity, by redemption or pursuant to the mandatory sinking fund requirements under Section 4.01 hereof or for the payment of the purchase or redemption price of Bonds pursuant to Section 4.07 hereof, all as provided herein; provided, that no part thereof shall be used to redeem any Bonds prior to maturity, except as may be provided otherwise herein or in the Agreement. The Issuer shall have no interest in the moneys or Eligible Investments in the Bond Fund. For the purposes of transferring to any other Paying Agents moneys which are necessary to pay the Debt Service Charges on the Bonds on or before the date when they become due and payable, the Trustee shall withdraw from the Bond Fund moneys which are available for the purpose of paying, and which are sufficient to pay, Debt Service Charges as and when they become due and payable (whether at stated maturity or by redemption). In addition to the deposits to be made in the Bond Fund as contemplated otherwise herein, there shall be deposited into the Interest Payment Account and the Principal Payment Account, as and when received, all moneys received by the Trustee which are to be deposited in the Interest Payment Account or the Principal Payment Account under the Agreement, or any other instrument or document. Amounts so deposited in the Bond Fund shall be applied by the Trustee on the next Interest Payment Date to pay Debt Service Charges on the Bonds. SECTION 5.04. Proiect Fund. Moneys in the Project Fund shall be disbursed in accordance with the provisions of the Agreement. The Trustee shall cause to be kept and maintained adequate records pertaining to the Project Fund and all disbursements therefrom. If requested by the Issuer or the Authorized Company Representative, after the Project has been completed and a certificate of payments of all costs is filed as provided in (a) below, the Trustee shall file with the Issuer and the Company, at the Company's expense, copies of the records pertaining to the Project Fund and disbursements therefrom. (a) The completion of the Project (or any addition thereto financed with any Additional Bonds) and payment of all costs and expenses incident thereto shall be evidenced by the filing with the Trustee of (i) the certificate of the Authorized Company Representative required by Section 3.6 of the Agreement, and 47 (ii) a certificate signed by the Authorized Company Representative stating that all obligations and costs in connection with the Project and payable out of the Project Fund have been paid and discharged, except for amounts retained by the Trustee as provided under the Agreement for the payment of costs of the Project not then due and payable. As soon as practicable after the filing with the Trustee of the certiticate to which reference is made in clause (ii) above, any balance remaining in the Project Fund (other than the amounts retained by the Trustee as described in the preceding sentence) shall be deposited or applied in accordance with the direction of the Authorized Company Representative pursuant to Section 3.4 of the Agreement. Unless otherwise provided in the applicable Supplemental Indenture, this Section shall apply to any additional property financed with the proceeds of any issue of Additional Bonds. SECTION 5.05. Rebate Fund. Money and investments in the Rebate Fund shall not be used for the payment of principal, premium, if any, or interest on the Bonds, and any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder. Moneys in the Rebate Fund shall be invested pursuant to the procedures and in the manner provided in Section 5.10 hereof. The Issuer, the Trustee and the Company have agreed to comply with the Arbitrage Rebate Agreement to which each is a party in order to comply with the requirements of Section 148 of the Code. Under Section 2.3(h)(G) of the Agreement, the Company is required to make the payments described in this Section. The Trustee shall timely furnish investment and account information to and the Company shall engage (at the expense of the Company) a Rebate Analyst to calculate the amount of any Rebateable Arbitrage (as defined in the Arbitrage Rebate Agreement) as of the end of that Bond Year. Upon the occurrence of an Event of Default hereof, the Trustee shall calculate, or shall furnish information to and engage (at the expense of the Company) a rebate Analyst to calculate the amount of any Rebateable Arbitrage (as detined in the Arbitrage Rebate Agreement) as of the date determined by the Trustee pursuant to this Section or as of the date of release of this Indenture under Article IX hereof, as applicable. After each such calculation, the Trustee thereafter shall notify the Company in writing of the amount of such Rebateable Arbitrage and the amount then on deposit in the Rebate Fund. If the amount then on deposit in the Rebate Fund is in excess of the Rebateable Arbitrage, the Trustee shall forthwith pay that excess amount to the Company, after paying the cost of such calculation; provided that no such excess amount shall be paid to the Company if a Default or an Event of Default has occurred and is continuing hereunder. If the amount then on deposit in the Rebate Fund is less than the Rebateable Arbitrage, the Company shall, within seven days after receipt of the aforesaid notice from the Trustee, pay to the Trustee for deposit in the Rebate Fund an amount sufticient to cause the Rebate Fund to contain an amount equal to the Rebateable Arbitrage and the cost of such calculation. Trustee shall be entitled to conclusively rely on any calculation or instruction furnished to the Trustee by the Company in accordance with this Section 5.05. 48 SECTION 5.06. Debt Service Reserve Fund. In the event that moneys in the Interest Payment Account or moneys in the Principal Payment Account are insufficient on any date on which Debt Service Charges on the Outstanding Bonds secured by the Debt Service Reserve Fund are due (whether at stated maturity, by mandatory redemption or upon acceleration) to pay such interest or principal and any premium, respectively, the Trustee shall withdraw from the Debt Service Reserve Fund the moneys necessary to make up the deficiency and shall transfer those moneys to the Interest Payment Account or the Principal Payment Account as the case may be. [Not less than ten (10) days prior to any withdrawal of moneys from the Debt Service Reserve Fund which would cause the amount in the Debt Service Reserve Fund to be less than amount required to fund the minimum liquid reserve under Section 651.035(1), Florida Statutes, as amended, notice of the withdrawal from the Debt Service Reserve Fund shall be given by the Trustee by telephone (904-487-3828) (promptly confirmed in writing) or facsimile (904-487-0313) to the Florida Department of Insurance, Bureau of Specialty Insurers, Room 637, Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300 (the "Department of Insurance"), provided that such notice by telephone, by facsimile or in writing may be given to the Department of Insurance at other telephone numbers or other addresses if required by the Department to be used in lieu of the foregoing.] When the amount on deposit in the Debt Service Reserve Fund is at least equal to the principal amount of the Outstanding Bonds secured by the Debt Service Reserve Fund, the Trustee shall transfer from the Debt Service Reserve Fund to the Principal Payment Account an amount equal to the principal of the Bonds secured by the Debt Service Reserve Fund due and payable on the next succeeding Principal Payment Date. Those moneys shall be used to pay the principal of Bonds due on such date. The reduction in the Debt Service Reserve Requirement resulting from that transfer need not be restored. When the amount on deposit in the Debt Service Reserve Fund is in excess of the Debt Service Reserve Requirement the Trustee shall transfer the excess to the Interest Payment Account of the Bond Fund to be used by the Trustee to pay Debt Service Charges. SECTION 5.07. Moneys to be Held in Trust. All moneys required or permitted to be deposited with or paid to the Trustee or any Paying Agent under any provision of any Issuer Document including without limitation, any investments thereof and income thereon, shall be held by the Trustee or that Paying Agent in trust. Except for (i) moneys deposited with or paid to the Trustee or any Paying Agent for the redemption of Bonds, with respect to which notice has been duly given; and (ii) moneys held by the Trustee pursuant to Section 5.08 hereof; all moneys described in the preceding sentence held by the Trustee or any Paying Agent shall be subject hereto while so held. SECTION 5.08. Nonpresentment of Bonds. In the event that any Bond is not presented for payment when the principal thereof becomes due in whole or in part, either at stated maturity or by redemption, or in the event that a check or draft for interest is uncashed, if moneys sufficient to pay that principal or the check or draft shall have been made available to the Trustee 49 for the benefit of the respective Holder, thereupon, (i) all liability of the Issuer to that Holder for payment of that principal, premium or of the interest represented by the check or draft shall cease and be discharged completely; and (ii) it shall be the duty of the Trustee to hold those moneys, without liability for interest thereon, in a separate account of the Bond Fund for the exclusive benefit of that Holder, who shall be restricted thereafter exclusively to those moneys for any claim of whatever nature on its part hereunder or on, or with respect to, that principal, premium or interest or of such check or draft. Any of those moneys which shall be so held by the Trustee, and which remain unclaimed by the Holder of a Bond not presented for payment or check or draft not cashed for a period of four years after the due date thereof, shall be paid to the Company free of any trust or lien, upon a request in writing by the Company Representative and after the Company provides the Trustee with indemnification, satisfactory to the Trustee, with respect to any claims to such moneys. Thereafter, the Holder of that Bond shall look only to the Company for payment and then only to the amounts so received by the Company without any interest thereon, and the Trustee shall not have any responsibility with respect to those moneys. SECTION 5.09. Application of the Balances of the Special Funds. Except as provided in Sections 5.08 and 5.12 hereof, after all of the Outstanding Bonds have been deemed to have been paid and discharged under the provisions of this Indenture, and the fees, charges and expenses of the Trustee, any Paying Agent, the Registrar and any Tender Agent and all other amounts required to be paid hereunder and under the Agreement have been paid, any amounts remaining in the Special Funds shall be free of this Indenture and shall be paid, used and applied pursuant to the Agreement. SECTION 5.10. Investments of Special Funds and the Rebate Fund. Moneys held for the credit of all Special Funds and the Rebate Fund in the custody of the Trustee shall be continuously invested and reinvested to the extent practicable by the Trustee in Eligible Investments at the oral direction, confirmed in writing, or written direction of the Authorized Company Representative. Any investments of moneys held to the credit of the Special Funds and the Rebate Fund shall mature not later than the respective dates when the money held for the credit thereof or accounts therein will be required for the purposes intended; provided, that no Eligible Investments in any fund or account (other than the Rebate Fund) may mature beyond the latest maturity date of any Bonds Outstanding at the time such investments are deposited. No less than 50% of the Debt Service Reserve Requirement shall be invested in (a) Eligible Investments (i) rated by a Rating Service in one of the two highest rating categories and (ii) having maturities of one year or less, or (b) a mutual fund invested primarily in securities of that type. The balance of the Debt Service Reserve Requirement shall be invested in Eligible Investments with an average maturity not exceeding five years. The Authorized Company Representative may at any time give to the Trustee written directions effective for a specified period respecting the investment of any money or certain 50 moneys in the Special Funds and the Rebate Fund required to be invested hereunder, subject, however, to the provisions of this Section, and the Trustee shall invest such money under this Section as so directed by the Authorized Company Representative. The Trustee may request, in writing, direction or authorization of the Authorized Company Representative with respect to the proposed investment of money under the provisions of this Indenture. Upon receipt of such request, accompanied by a memorandum setting forth the details of any proposed investment, the Authorized Company Representative will either approve such proposed investment or will give written directions to the Trustee respecting the investment of such money and, in the case of such directions, the Trustee shall then, subject to the provisions of this Section, invest such money in accordance with such directions. Eligible Investments credited to any Special Fund or the Rebate Fund in the custody of the Trustee established under this Indenture shall be held by or under the control of the Trustee and while so held shall be deemed at all times to be part of such fund or account in which such money was originally held. Any profit or loss realized or interest earned from the investment of any Special Funds during the construction period shall be credited to the Project Fund and any profit or loss realized or interest earned from the investment of any Special Funds after the termination of the construction period shall be credited to the Interest Payment Account of the Bond Fund. Any profit realized or interest earned from the investment of the Rebate Fund shall remain in the Rebate Fund to the extent of any deficiency in the amount required to be in the Rebate Fund; if adequate funds exist in the Rebate Fund, any such profit realized or interest earned, shall be deposited in the Bond Fund to be used to pay Debt Service Charges on the Bonds. The Trustee shall sell at the best price obtainable or present for redemption any obligations so purchased whenever it shall be necessary to do so in order to provide money to make any payment or transfer of money from any such fund or account. The Trustee shall not be liable or responsible for any loss resulting from any such investment made at the direction of the Authorized Company Representative. The Trustee may make any investments permitted under this Indenture through its own bond department or the bond department of any bank or trust company which is an affiliate of the Trustee. The Trustee in its discretion may make any investments permitted under this Indenture through the Trustee in its capacity as a bank or through any bank or trust company which is an affiliate of the Trustee. SECTION 5.11. Valuation. For the purpose of determining the amount on deposit to the credit of any fund or account, the value of Eligible Investments in which money in such fund or account shall have been invested shall be computed at the market value or amortized cost, whichever is lower. In calculating the value of any Eligible Investment, the amount of accrued interest on that Eligible Investment shall be included. The Trustee shall value the Eligible Investments in the Debt Service Reserve Fund at least quarterly and at any time upon the request 51 of the Authorized Company Representative or the Florida Department of Insurance on reasonable notice to the Trustee (which period of notice may be waived by the Trustee). A copy of each such valuation shall be provided by the Trustee to the Company and the Florida Department of Insurance at the address set forth in Section 5.06 hereof. If as a result of any valuation, it is determined that the balance in the Debt Service Reserve Fund is less than 90% of the Debt Service Reserve Requirement, the Trustee shall compute the amount by which the Debt Service Reserve Requirement exceeds such balance and shall immediately give the Company notice of such deficiency and the amount, if any, necessary to cure the same in accordance with the provisions of Section 5.02(b)(ii) hereof. SECTION 5.12. Repayment to the Company. Any amounts remaining in the Special Funds after (i) all of the Outstanding Bonds shall be deemed to have been paid and discharged under the provisions of this Indenture, and (ii) after payment of all fees, charges and expenses of the Trustee, the Registrar and any Tender Agent, Paying Agents, Remarketing Agent or Authenticating Agents and of all Rebate Amounts and other amount required to be paid under this Indenture, the Agreement, the Mortgage and the Notes or any other instrument or document entered into in connection with any of the foregoing or otherwise to provide for the payment of Debt Service Charges, shall be paid to the Company to the extent that those moneys are in excess of the amounts necessary to effect the payment and discharge of the Outstanding Bonds. 52 ARTICLE VI TRUSTEE, REGISTRAR, PAYING AGENTS, AUTHENTICATING AGENTS AND TENDER AGENTS SECTION 6.01. Trustee's Acceptance and Responsibilities. The Trustee accepts the trusts imposed upon it by this Indenture, and agrees to observe and perform those trusts, but only upon and subject to the terms and conditions set forth in this Article, to all of which the parties hereto and the Holders, by their acceptance of Bonds, agree. (a) Prior to the occurrence of a Default or an Event of Default of which the Trustee has been notified, as provided in Section 6.02(t) hereof, or of which by that subparagraph the Trustee is deemed to have notice, and after the cure or waiver of all Defaults or Events of Default which may have occurred, (i) the Trustee undertakes to perform only those duties which are described specifically in this Indenture, and no additional duties of the Trustee shall be implied; (ii) in the absence of bad faith on its part, the Trustee may rely conclusively, as to the truth of the statements and the accuracy of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and which conform to the requirements of this Indenture. The Trustee is under a duty to examine any certiticates or opinions, which are required specifically hereunder to be furnished to it, to determine whether they conform to the requirements of this Indenture. (b) In case a Default or an Event of Default has occurred and is continuing hereunder (of which the Trustee has been notified or is deemed to have notice), the Trustee shall exercise those rights, remedies and powers vested in it under this Indenture and shall use the same degree of care and skill in their exercise as a prudent corporate trustee would exercise or use in the discharge of the trusts imposed by this Indenture. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that (i) this subparagraph shall not be construed to affect the limitation of the Trustee's duties and obligations provided in subparagraph (a)(i) of this Section or the Trustee's right to rely on the truth of statements and the accuracy of opinions as provided in subparagraph (a)(ii) of this Section; (ii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Outstanding Bonds relating to the time, method and place of 53 conduct of any ,proceeding available to the Trustee, or exercising any trust, right, remedy or power conferred upon the Trustee under this Indenture; and (iii) no provision of this Indenture shall require the Trustee to expend its own moneys in the observance or performance of any of its covenants, agreements, obligations or duties hereunder or in the exercise of any of its rights, remedies or powers. (d) Regardless of whether it is provided expressly therein, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to the provisions of this Section. SECTION 6.02. Certain Rights and Obligations of the Trustee. Except as provided otherwise in Section 6.01 hereof: (a) The Trustee (i) may execute any of the trusts, rights, remedies or powers hereunder and may observe or perform any of its covenants, agreements, obligations or duties by or through attorneys, agents, receivers or employees (but the Trustee shall be answerable therefor only in accordance with the standard specified above); (ii) shall be entitled to the advice of counsel concerning all matters of the trusts hereof and its rights, remedies, powers and duties hereunder; (iii) may pay reasonable compensation to all of the attorneys, agents, receivers and employees designated or employed reasonably by it in connection with the trusts hereof and shall be reimbursed for such expenses by the Company; (iv) may act upon the opinion or advice of any attorney (who may be an attorney for the Issuer or the Company) approved by the Trustee in the exercise of reasonable care; and (v) shall not be responsible for any loss or damage resulting from any action taken or omitted to be taken in good faith in reliance upon that opinion or advice. (b) Except for its certificate of authentication on the Bonds, the Trustee shall not be responsible for: (i) any recital in this Indenture or in the Bonds; (ii) the validity, priority, recording, rerecording, filing or refiling of this Indenture, any Supplemental Indenture, the Agreement, or any memorandum thereof, the Mortgage, the Assignment, or any amendment of or supplement to the foregoing; 54 (iii) any instrument or document of further assurance or collateral assignment; (iv) any financing statements, amendments thereto or continuation statements or the filing thereof; (v) insurance of the Mortgaged Property or collection of insurance moneys; (vi) the validity of the execution by the Issuer of this Indenture, any Supplemental Indenture or any instruments or documents of further assurance; (vii) the sufficiency of the security for the Bonds issued hereunder; (viii) the value of or title to the Mortgaged Property; or (ix) the maintenance of the security hereof; except that, in the event that the Trustee enters into possession of a part or all of the Mortgaged Property pursuant to any provision of this Indenture, the Mortgage, or any other instrument or document collateral thereto, the Trustee shall use due diligence in preserving that property. In no event shall the Trustee be required to take possession of a part or all of the Project unless it shall have been provided with satisfactory indemnification from the Company, the Issuer or the Holders for the reimbursement of all expenses which it may incur and to protect it against all risk and liability related to or arising from the possession of the Mortgaged Property. The Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, agreements or obligations on the part of any operator of the Mortgaged Property under any lease or agreement for operations of the Mortgaged Property except as set forth hereinafter; but the Trustee may require of such operator full information and advice as to the observance or performance of those covenants, agreements and obligations. Except as otherwise provided in Section 6.04 hereof, the Trustee shall not have any obligation to observe or perform any of the duties of any operator of the Project under any lease or agreement for operation of the Project. The Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, agreements or obligations on the part of the Issuer or the Company under the Agreement or under any lease, other instrument or document providing for the operation of the Mortgaged Property, except as set forth below; but the Trustee may require of the Issuer or the Company full information and advice as to the observance or performance of those covenants, agreements and obligations. Except as provided otherwise in Article VII, the Trustee shall have no obligation to observe or perform any of the duties of the Issuer under the Agreement. (c) The Trustee shall not be accountable for the application by the Company or any other Person of the proceeds of any Bonds authenticated or delivered hereunder. 55 (d) The Trustee shall be protected, in the absence of bad faith on its part, in acting upon any notice, request, consent, certificate, order, at1idavit, letter, telegram or other instrument or document believed reasonably by it to be genuine and correct and to have been signed or sent by the proper Person. Any action taken by the Trustee pursuant to this Indenture upon the request, authority or consent of any Person, who is the Holder of any Bonds at the time of making the request or giving the authority or consent, shall be conclusive and binding upon all future Holders of the same Bond and of Bonds issued in exchange therefor or in place thereof. (e) As to the existence or nonexistence of any fact for which the Issuer or the Company may be responsible or as to the sufficiency or validity of any instrument, document or proceeding, in the absence of bad faith on the part of the Trustee, the Trustee shall be entitled to rely upon a certiticate, executed for and in the name and on behalf of the Issuer by an authorized oftlcial or officer thereof or for and in the name and on behalf of the Company by the Authorized Company Representative, as suftlcient evidence of the facts recited therein. Prior to the occurrence of a Default or an Event of Default of which the Trustee has been notified, as provided in this Section, or of which by this Section the Trustee is deemed to have notice, the Trustee may accept a similar certificate to the effect that any particular transaction or action is necessary or desirable; provided that, in its discretion, the Trustee may require and obtain any further evidence which it deems to be necessary or advisable; and provided further that the Trustee shall not be bound to secure any further evidence. (f) The Trustee shall not be required to take notice, and shall not be deemed to have notice, of any Default or Event of Default, except Events of Default described in Section 7.01(a) and (b), unless the Trustee shall be notified specitically of the Default or Event of Default in a written instrument or document delivered to it by the Company or by the Holders of at least ten percent of the aggregate principal amount of the Outstanding Bonds. In the absence of delivery of a notice satisfying those requirements, the Trustee may assume conclusively that there is no Default or Event of Default, except as noted above. (g) At any reasonable time, the Trustee and its duly authorized attorneys, agents, experts, engineers, accountants, receivers and employees may: (i) inspect the Mortgaged Property provided that such inspection shall be conducted in such a manner as not to interfere with the services provided by the Company to the residents of the Mortgaged Property; (ii) inspect and copy fully all books, papers and records of the Issuer pertaining to the Mortgaged Property and the Bonds; and (iii) make any memoranda which the Trustee may desire therefrom and with respect thereto. 56 (h) The Trustee shall not be required to give any bond or surety with respect to the execution of the trusts, rights, remedies and powers hereunder or otherwise. (i) Notwithstanding anything contained elsewhere in this Indenture, the Trustee may demand any showings, certificates, reports, opinions, appraisals and other information, and any corporate action and evidence thereof, in addition to that required by the terms hereof, as a condition to the authentication of any Bonds or the taking of any action whatsoever within the purview of this Indenture, if the Trustee deems it to be desirable for the purpose of establishing the right of the Issuer to the authentication of any Bonds or the right of any Person to the taking of any other action by the Trustee; provided, that the Trustee shall not be required to make that demand. (j) Before taking action under Section 6.16 or Article VII hereof (with the exception of any action required to be taken under Section 7.02 hereof), the Trustee may require that a satisfactory indemnity bond be furnished to it for the reimbursement of all expenses which it may incur and to protect it against all risk and liability by reason of any action so taken, except for any risk or liability which is adjudicated to have resulted from its gross negligence or willful default. The Trustee may take action without that indemnification, and in that case, the Company shall be required to reimburse the Trustee for all of the Trustee's expenses pursuant to Section 6.03 hereof. (k) Unless provided otherwise herein, all moneys received by the Trustee under this Indenture shall be held in trust for the purposes for which those moneys were received, until those moneys are used, applied or invested as provided herein; provided that those moneys need not be segregated from other moneys, except to the extent required by this Indenture or by law. (1) Any opinions, certificates, reports and other instruments and documents for which provision is made in this Indenture, may be accepted by the Trustee, in the absence of bad faith on its part, as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for its actions taken hereunder. (m) The permissive right of the Trustee to take actions described specifically herein shall not be construed as a duty. (n) In the event that the approval or satisfaction of the Trustee is required under the Indenture, the Agreement, or any other instrument or document relating to the Bonds, that approval or satisfaction shall not be withheld unreasonably and shall be given or withheld as the case may be, within 30 days after the receipt by the Trustee of the request for the approval or satisfaction. (0) The Trustee shall not assign, transfer or set over its rights under the Indenture so long as the Bonds are outstanding other than to a successor Trustee appointed pursuant to Section 6.05 hereof. 57 SECTION 6.03. Fees. Charges and Expenses of Trustee. Registrar. Tender Agents. Paying Agents. Remarketing Agent and Authenticating Agents. The Trustee, the Registrar and any Tender Agents, Paying Agents, Remarketing Agent or Authenticating Agents are entitled to payment or reimbursement by the Company, as provided in the Agreement, for reasonable fees for services rendered hereunder and for all advances, counsel fees and other expenses reasonably and necessarily paid or incurred in connection with the provision of such services. In the event that it should become necessary for the Trustee, the Registrar or any Tender Agents, Paying Agent, Remarketing Agent or Authenticating Agent to perform extraordinary services, that party is entitled, upon prior written notitication to the Company, to reasonable extra compensation therefor and to reimbursement for reasonable and necessary extraordinary expenses incurred in connection therewith; provided that such party is not entitled to compensation or reimbursement for extraordinary services or extraordinary expenses occasioned by its neglect or willful misconduct or the neglect or willful misconduct of its agents, officers or employees. Without creating a Default or an Event of Default hereunder, however, the Company may contest in good faith the necessity for any extraordinary service and extraordinary expense and the reasonableness of any fee, charge or expense. The fees, charges and expenses described above shall be paid and reimbursed only from (i) Additional Payments made by the Company, as contemplated in the Agreement; or (ii) from other moneys available therefor. Any amounts payable to the Trustee, the Registrar or any Tender Agent, Paying Agent, Remarketing Agent or Authenticating Agent pursuant to this Section, together with interest thereon at the Interest Rate for Advances from the date of receipt by the Company of a demand therefor, shall be payable upon demand. The initial or acceptance fees of the Trustee, and the fees, charges and expenses of the Trustee, the Registrar or any Tender Agent, Paying Agent, Remarketing Agent or Authenticating Agent to which reference is made above, may be paid by the Trustee as provided in Section 5.02. SECTION 6.04. Intervention by Trustee. The Trustee may intervene on behalf of the Holders, and shall intervene if requested to do so in writing by the Holders of at least 25 percent of the aggregate principal amount of Outstanding Bonds, in any judicial proceeding to which the Issuer or the Company is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of Holders of the Bonds. The rights, remedies, powers and duties of the Trustee under this Section are subject to the approval of that intervention by a court of competent jurisdiction. The Trustee may require that a satisfactory indemnity bond be provided to it in accordance with this Article before it takes action hereunder. SECTION 6.05. Successor Trustee. Anything herein to the contrary notwithstanding, (a) any corporation or association (i) into which the Trustee may be converted or merged, (ii) with which the Trustee may be consolidated, or (iii) to which it may sell or transfer 58 all or substantially all of its assets or corporate trust business, or any corporation or association resulting from any such conversion, merger, consolidation, sale or transfer, ipso facto, shall be the successor Trustee hereunder and shall be vested with all of the title to the whole property or trust estate hereunder; and (b) that corporation or association shall be vested further, as was its predecessor, with each and every trust, right, remedy, power, duty, discretion, privilege, claim, demand, cause of action, immunity, estate, title and interest expressed or intended under this Indenture to be exercised by, vested in or conveyed to the Trustee, without the execution or filing of any instrument or document or any further act on the part of any of the parties hereto, the Trustee or that corporation or association. Any successor Trustee, however, (i) shall be a trust company or a bank having the powers of a trust company, (ii) shall be in good standing in the State, (iii) shall be duly authorized to exercise corporate trust powers in the State, and (iv) shall have an aggregate unimpaired reported capital, surplus and retained earnings of not less than $75,000,000. SECTION 6.06. Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction (including without limitation, the State) denying or restricting the right of banks or trust companies to transact business as trustees in that jurisdiction. It is recognized that, (a) if there is litigation under this Indenture or other instruments or documents relating to the Bonds or the Project, and in particular, in the case of the enforcement hereof or thereof upon a Default or an Event of Default, or (b) if the Trustee should deem that, by reason of any present or future law, the Trustee may not (i) exercise any of its trusts, rights, remedies or powers hereunder, (ii) hold title to the properties, in trust, granted herein or hold the property assigned herein, or (iii) take any action which may be necessary or desirable in connection therewith, it may be necessary that the Trustee appoint an individual or additional institution as a co-Trustee. The Trustee shall appoint a co-Trustee upon consent of the Company and the Issuer, except such consent shall not be required when appointment of a co-Trustee is necessary for taking remedial action for the benefit of Holders. The following provisions of this Section are adapted to these ends. In the event that the Trustee appoints an individual or additional institution as a co-Trustee, each and every trust, right, remedy, power, duty, discretion, privilege, claim, demand, cause of action, immunity, estate, title and interest expressed or intended under this Indenture to be exercised by, vested in or conveyed to the Trustee shall be exercisable by, vested in and conveyed to that co-Trustee, but only to the extent necessary for it to be so vested and conveyed to enable that co-Trustee to exercise it. Every covenant, agreement and obligation necessary to the exercise thereof by that co-Trustee shall run to and be enforceable by it. 59 Should any instrument or document from the Issuer be reasonably required by the co- Trustee for vesting and conveying more fully and certainly in and to that co-Trustee those trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, estates, titles and interests, that instrument or document shall be executed, acknowledged and delivered, but not prepared, by the Issuer. In case any co-Trustee or a successor to it shall become incapable of acting, resign or be removed, all of the trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, estates, titles and interests of the co-Trustee shall be exercised by, vested in and conveyed to the Trustee, to the extent permitted by law, until the appointment of a successor to the co-Trustee. SECTION 6.07. Resignation by the Trustee. The Trustee may resign at any time as Trustee hereunder by giving written notice of its resignation to the Issuer, the Company, the Registrar, any Paying Agents and Authenticating Agents, and by mailing notice of the resignation to the Holders at the close of business 15 days prior to the mailing, as their names and addresses appear on the Register on that fifteenth day prior to mailing. The resignation shall take effect upon the appointment of a successor Trustee. SECTION 6.08. Removal of the Trustee. The Trustee may be removed at any time by an instrument or document or concurrent instruments or documents delivered to the Trustee and signed either by (i) the Issuer or (ii) on behalf of the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds. Copies of any instrument or document shall be mailed to the Issuer, the Company, the Registrar, any Paying Agents, Authenticating Agents and Remarketing Agent. The Trustee shall be removed if the Company sends a communication to the Holders of the Outstanding Bonds (a) proposing that the Trustee be removed, (b) stating the reasons for requesting such removal, and (c) specifying that the Trustee shall be removed by the Holders of a majority in aggregate principal amount of the Outstanding Bonds in an instrument or instruments signed by such Holders within 30 days that they desire the removal of the Trustee. The Trustee, at the Company's expense, shall provide the Company with the names and addresses of all Holders of Outstanding Bonds within ten days of receiving a request for that information from the Company for purposes of enabling the Company to send that communication, unless, in the opinion of counsel to the Trustee, to do so would be prohibited by law. In addition, the Trustee may be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any of its duties, including without limitation, any of its covenants, agreements and obligations, hereunder. The removal may be made by any court of competent jurisdiction upon the application of the Issuer, the Company (if not then in Default) or the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds. For purposes of this Section, whenever actions are to be taken, or consents are to be given, by or at the direction of the Holders of Outstanding Bonds, Bonds registered in the name of the 60 Company shall not be taken into account in determining whether the requisite number of Holders has authorized the action or consent. SECTION 6.09. Appointment of Successor Trustee. If (i) the Trustee shall resign, shall be removed, shall be dissolved, or shall become incapable otherwise of acting hereunder; (ii) the Trustee shall be taken under the control of any public officer or officers; or (iii) a receiver shall be appointed for the Trustee by a court; then a successor Trustee shall be appointed by the Issuer, with the written consent of the Authorized Company Representative; provided, that if a successor Trustee is not so appointed within twenty days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided in Sections 6.07 and 6.08 hereof, respectively; or (b) the Trustee is dissolved, becomes incapable otherwise of acting, or is taken under control, or a receiver is appointed, in each case, as provided above; then the Issuer may designate a successor Trustee or if the Issuer fails to designate a successor Trustee, the Holders of a majority in aggregate principal amount of Outstanding Bonds, with the written consent of the Authorized Company Representative, may designate a successor Trustee by an instrument or document or concurrent instruments or documents in writing executed by or on behalf of those Holders. If, within 60 days after the events described in (a) and (b) above, no appointment of a successor Trustee shall have been made pursuant to the foregoing provisions of this Section, the Holder of any Outstanding Bond, any retiring Trustee or the Company may apply to any court of competent jurisdiction for the appointment of a successor Trustee. After notice, if any, which the court may deem to be proper and may prescribe, the court may appoint a successor Trustee. For purposes of this Section, whenever actions are to be taken, or consents are to be given, by or at the direction of the Holders of Outstanding Bonds, Bonds registered in the name of the Company shall not be taken into account in determining whether the requisite number of Holders has authorized the action or consent. Every successor Trustee appointed pursuant to this Section shall (i) be a trust company or a bank having the powers of a trust company, (ii) be in good standing in the State, (iii) be duly authorized to exercise trust powers in the State, (iv) have an aggregate unimpaired reported capital, surplus and retained earnings of not less than $75,000,000 and (v) be willing to accept the trusteeship under the terms and conditions of this Indenture. Every successor Trustee appointed hereunder shall execute and acknowledge, and shall deliver to its predecessor, the Issuer and the Company, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, estates, titles and interests of its predecessor. Upon the written request of its successor, the Issuer or the Company, the predecessor Trustee (i) shall execute and deliver an instrument or document transferring to its successor all of the trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, estates, titles and interests of the predecessor Trustee hereunder; and (ii) shall take any other action 61 necessary or advisable to duly assign, transfer and deliver to its successor all property and records (including without limitation, all moneys) held by it as Trustee. Should any instrument or document from the Issuer be reasonably requested by any successor Trustee for vesting and conveying more fully and certainly in and to that successor the trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, estates, titles and interests vested or conveyed or intended to be vested or conveyed hereunder in or to the predecessor Trustee, the Issuer shall execute, acknowledge and deliver that instrument or document. In the event of a change in the Trustee, the predecessor Trustee shall cease to be the custodian of any moneys, including without limitation, any investments, which it may hold pursuant to this Indenture and shall cease to be the Registrar, the Tender Agent and Authenticating Agent and a Paying Agent for any of the Bonds, to the extent that it may have served in any of those capacities and shall have no further responsibility or liability therefore. The successor Trustee shall become that custodian and, if applicable, the Registrar, an Authenticating Agent and a Paying Agent to the same extent as the predecessor Trustee shall have served in those capacities. SECTION 6.10. Adoption of Authentication. In case any of the Bonds shall have been authenticated, but shall not have been delivered, any successor Trustee, Registrar or Authenticating Agent may adopt the certificate of authentication of any predecessor Trustee, Registrar or Authenticating Agent and may deliver those Bonds so authenticated as provided herein. In case any Bonds shall not have been authenticated, any successor Trustee, Registrar or Authenticating Agent may authenticate those Bonds either in the name of any predecessor or in its own name. In all cases, the certificate of authentication shall have the same force and effect as is provided in the Bonds or in this Indenture with respect to the certificate of authentication of the predecessor Trustee, the Registrar or the Authenticating Agent. SECTION 6.11. Registrars. (a) Anything herein to the contrary notwithstanding, any corporation or association (i) into which a Registrar may be converted or merged, (ii) with which a Registrar may be consolidated, or (iii) to which it may sell or transfer all or substantially all of its assets, or any corporation or association resulting from any such conversion, merger, consolidation, sale or transfer, ipso facto, shall be the successor of that Registrar hereunder, if that corporation or association is eligible otherwise hereunder, and shall be vested with each and every right, power, duty, discretion and privilege expressed or intended to be exercised by or vested hereunder in the predecessor Registrar, without the execution or filing of any instrument or document or any further act on the part of any of the parties hereto, the Registrar or that corporation or association. (b) A Registrar (other than the Trustee) may resign at any time by giving written notice of its resignation to the Issuer, the Company, the Trustee, any Paying Agents and Authenticating Agents, and the Original Purchaser of each series of Outstanding Bonds for which it is Registrar. The notice shall be given at least 60 days before the resignation is to take effect. The resignation 62 shall take effect immediately, however, upon the appointment of a successor Registrar, if the successor Registrar is appointed and accepts that appointment before the date stated in the notice. (c) The Registrar may be removed at any time by an instrument or document or concurrent instruments or documents delivered to the Registrar and signed by or on behalf of the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds. Copies of any instrument or document shall be mailed to the Issuer, the Company, the Trustee, any Paying Agents and Authenticating Agents for those series of Bonds and the Original Purchaser of each series of Outstanding Bonds for which the Registrar served as Registrar. (d) If (i) a Registrar shall resign, shall be removed, shall be dissolved, or shall become incapable otherwise of acting hereunder; (ii) a Registrar shall be taken under the control of any public officer or officers; (iii) a receiver shall be appointed for a Registrar by a court; or (iv) a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days; then a successor Registrar shall be appointed by the Issuer, with the written consent of the Authorized Company Representative and the Trustee; provided that if a successor Registrar is not so appointed within ten days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided above; or (b) the Registrar is dissolved, becomes incapable otherwise of acting, or is taken under control, or a receiver is appointed, in each case, as provided above; the Issuer, with the consent of the Trustee or the Holders of a majority in aggregate principal amount of Outstanding Bonds may designate a successor Registrar, by an instrument or document or concurrent instruments or documents in writing signed by the Issuer, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, and shall deliver to its predecessor, the Issuer, the Trustee and the Company, an instrument or document accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the rights, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successor, the Issuer or the Authorized Company Representative, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the rights, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, titles and interests of the predecessor Registrar hereunder; and (ii) shall take any other action necessary or advisable to duly assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document from the Issuer be reasonably requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the rights, powers, duties, discretions, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended 63 to be vested or conveyed hereunder in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document. SECTION 6.12. Designation and Succession of Paying Agents. The Trustee shall be a Paying Agent for the Bonds and, with the consent of the Trustee, the Issuer may appoint additional Paying Agents with power to act on its behalf and subject to its direction in the payment of Debt Service Charges on any series of Bonds. Any corporation or association (i) into which a Paying Agent may be converted or merged, (ii) with which a Paying Agent may be consolidated, or (iii) to which it may sell or transfer all or substantially all of its assets or corporate trust business, or any corporation or association resulting from any such conversion, merger, consolidation, sale or transfer, ipso facto, shall be the successor of that Paying Agent hereunder, if that corporation or association is eligible otherwise hereunder, without the execution or filing of any instrument or document or any further act on the part of the parties hereto, the Paying Agent or that corporation or association. Any Paying Agent may resign at any time by giving 30 days written notice of its resignation to the Issuer, the Company, the Trustee, the Registrar, any Authenticating Agents and the Remarketing Agent. At any time, the Issuer may terminate the agency of any Paying Agent (except the Trustee) by giving written notice of termination to the Company, such Paying Agent, the Trustee, the Registrar, any Authenticating Agents and the Remarketing Agent. Upon receiving a notice of resignation or upon a termination, or in case any Paying Agent shall cease to be eligible under this Section, the Issuer may appoint a successor Paying Agent with the consent of the Trustee. The Issuer shall give written notice of appointment of a successor Paying Agent to the Company, the Trustee, the Registrar, any Authenticating Agents and the Original Purchaser of the Outstanding Bonds for which that Paying Agent served as Paying Agent and, within ten days after that appointment, shall mail notice thereof to each Holder at the close of business on the date of that appointment at its address as it appears on the Register on that date of appointment. Subject to Section 6.03, the Trustee shall be entitled to reimbursement from the Company for any compensation which the Trustee may pay to any Paying Agent. Section 6.02(d) is applicable to any Paying Agent to the same extent as if the Paying Agent were stated therein to be subject thereto. SECTION 6.13. Designation and Succession of Authenticating Agents. With the consent of the Trustee, the Issuer may appoint Authenticating Agents, in addition to the Registrar, with power to act on the behalf and subject to the direction of the Trustee in the authentication and delivery of Bonds in connection with transfers and exchanges under Sections 3.06 and 3.07 hereof. For all purposes of this Indenture, the authentication and delivery of Bonds by an 64 Authenticating Agent pursuant to this Section shall be deemed to constitute authentication and delivery of those Bonds by the Trustee. Any corporation or association (i) into which an Authenticating Agent may be converted or merged, (ii) with which an Authenticating Agent may be consolidated, or (iii) to which it may sell or transfer all or substantially all of its assets or corporate trust business, or any corporation or association resulting from any such conversion, merger, consolidation, sale or transfer, ipso facto, shall be the successor of that Authenticating Agent hereunder, if that corporation or association is eligible otherwise hereunder, without the execution or filing of any instrument or document or any further act on the part of the parties hereto, the Authenticating Agent or the corporation or association. Any Authenticating Agent may resign at any time by giving 30 days written notice of its resignation to the Issuer, the Company, the Trustee, the Registrar and any Paying Agents. At any time, the Trustee may terminate the agency of any Authenticating Agent by giving written notice of termination to the Authenticating Agent, the Issuer, the Company, the Registrar and any Paying Agents. Upon receiving a notice of resignation or upon a termination, or in case any Authenticating Agent shall cease at any time to be eligible under this Section, the Issuer may appoint a successor Authenticating Agent which shall be approved by the Trustee, such approval not to be unreasonably withheld. The Issuer shall give written notice of appointment of a successor Authenticating Agent to the Company, the Trustee, the Registrar, any Paying Agents, and the Original Purchaser of the Outstanding Bonds for which that Authenticating Agent served as Authenticating Agent and, within ten days after that appointment, the Trustee shall mail notice thereof to each Holder at the close of business on the date of that appointment at its address as it appears on the Register on that date of appointment. Subject to Section 6.03, the Trustee shall be entitled to reimbursement from the Company for any compensation which the Trustee may pay to any Authenticating Agent. Section 6.02(b), (c), (d), (h) and (i) shall be applicable to any Authenticating Agent to the same extent as if the Authenticating Agent were stated therein to be subject thereto. SECTION 6.14. Designation and Succession of Tender Agents. The Trustee shall be the Tender Agent for the Series 1999B Bonds and, with the consent of the Trustee, the Issuer may appoint successor Tender Agents with power to act on behalf of Holders of Series 1999B Bonds and subject to their direction in the tendering of such Bonds for purchase. Any corporation or association (i) into which a Tender Agent may be converted or merged, (ii) with which a Tender Agent may be consolidated, or (iii) to which it may sell or transfer all or substantially all of its assets or corporate trust business, or any corporation or association resulting from any such conversion, merger, consolidation, sale or transfer, ipso facto, shall be 65 the successor of that Tender Agent hereunder, if that corporation or association is eligible otherwise hereunder, without the execution or filing of any instrument or document or any further act on the part of the parties hereto, the Tender Agent or that corporation or association. Any Tender Agent (except the Trustee) may resign at any time by giving 30 days written notice of its resignation to the Issuer, the Company, the Trustee, the Remarketing Agent, the Paying Agent, the Registrar and any Authenticating Agents. At any time, the Issuer may terminate the agency of any Tender Agent by giving written notice of termination to the Company, the Tender Agent, the Trustee, the Registrar and any Authenticating Agents. Upon receiving a notice of resignation or upon a termination, or in case any Tender Agent shall cease to be eligible under this Section, the Issuer may appoint a successor Tender Agent with the consent of the Trustee. The Issuer shall give written notice of appointment of a successor Tender Agent to the Company, the Trustee, the Registrar, any Authenticating Agents and the Remarketing Agent and, within ten days after that appointment, shall mail notice thereof to each Holder of Series 1999B Bonds Outstanding at the close of business on the date of that appointment at its address as it appears on the Register on that date of appointment. Subject to Section 6.03, the Trustee shall be entitled to reimbursement from the Company for any compensation which the Trustee may pay to any Tender Agent. Section 6.02(d) is applicable to any Tender Agent to the same extent as if the Tender Agent were stated therein to be subject thereto. SECTION 6.15. Dealin2 in Bonds. The Trustee, any Registrar, any Paying Agent and any Authenticating Agent, their affiliates, and any directors, officers, employees or agents thereof, may become, in good faith, the Holders of Bonds secured hereby with the same rights, remedies and powers which it or they would have hereunder if the Trustee, the Registrar, the Paying Agent or the Authenticating Agent did not serve in those capacities. SECTION 6.16. Representations. Warranties. Covenants and A2reements of Trustee. The Trustee represents and warrants hereby that it: (a) is a national banking association duly organized and validly existing under the laws of the United States; (b) is in good standing and duly authorized to exercise trust powers in the State; and (c) has an aggregate unimpaired reported capital, surplus and retained earnings of not less than $75,000,000. 66 The Trustee covenants and agrees that it will take any action which is necessary to remain in good standing and duly authorized to exercise trust powers in the State, and that it will maintain an aggregate unimpaired reported capital, surplus and retained earnings of not less than $75,000,000. The Trustee accepts and agrees to observe and perform the duties and obligations of the Trustee to which reference is made in the Mortgage and in any other instrument or document providing security for any of the Bonds. SECTION 6.17. Right of Trustee to Pay Taxes and Other Char~es. Reference is made to the Mortgage whereby the Trustee is authorized to advance funds (a) to pay taxes, assessments and other charges with respect to the Mortgaged Property; (b) to maintain and keep in force insurance for the Mortgaged Property; (c) to maintain required workers' compensation coverage; (d) to payor discharge mechanics' or other liens relating to the Mortgaged Property; and (e) to do so. generally, to make payments and incur expenses in the event that the Company fails The Trustee may make those advances only upon written notice to the Company and the Company's failure to make such payments within seven days of such notice. These advances are made without prejudice to any rights, remedies or powers of the Trustee or the Holders against the Company for the failure of the Company to do so. Any moneys so advanced, together with interest thereon at the Interest Rate for Advances from the date of advancement, (i) shall be an additional obligation hereunder, (ii) shall be given a preference in payment over any Debt Service Charges, but only following an Event of Default, and (iii) shall be paid from Additional Payments made by the Company as contemplated in the Agreement or, (iv) if not paid otherwise, but only following an Event of Default, shall be paid from the Loan Payments Fund. The Trustee shall make the advance, if it is requested to do so by the Holders of at least 25 percent of the aggregate principal amount of Outstanding Bonds and is provided with adequate moneys for the purpose thereof. SECTION 6.18. Several Capacities. Anything in this Indenture to the contrary notwithstanding, the same entity may serve hereunder as the Trustee, the Registrar, the Tender Agent, the Paying Agent and Authenticating Agent and in any other combination of such capacities, to the extent permitted by law. 67 ARTICLE VII DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND HOLDERS SECTION 7.0l. of Default hereunder: Defaults: Events of Default. The following events constitute Events (a) The payment of any interest on any Bond is not made when and as that interest becomes due and payable; (b) The payment of the principal of or any premium on any Bond is not made when and as that principal or premium becomes due and payable, whether at stated maturity, by redemption (including without limitation, redemption pursuant to the mandatory sinking fund requirements) or acceleration or otherwise; (c) The Issuer fails to observe or perform any other covenant, agreement or obligation on the part of the Issuer contained in this Indenture or in any Bonds, which failure shall have continued for a period of 60 days after written notice, by registered or certified mail, to the Issuer and the Company specifying the failure and requiring that it be remedied, which notice may be given by the Trustee in its discretion and shall be given by the Trustee at the written request of the Holders of not less than 25 percent in aggregate principal amount of Bonds then outstanding; provided, that the Trustee may agree in writing to a longer period prior to the expiration of the first 60-day period; provided further, that if the Issuer or the Company shall proceed to take curative action which, if begun and prosecuted with due diligence, cannot be completed within the first period of 60 days, then upon written notice thereof to the Trustee such period shall be increased without such written extension until such curative action has been completed (as to which efforts the Trustee shall be advised from time to time) or until 60 days after such curative action can be diligently completed; or (d) Mortgage. Any other event which constitutes an Event of Default under the Agreement or the The declaration of an Event of Default and the exercise of rights, remedies and powers upon the declaration of an Event of Default are subject to any applicable limitations of federal bankruptcy law affecting or precluding the declaration or exercise during the pendency of or immediately following any bankruptcy, liquidation or reorganization proceedings. SECTION 7.02. Notice of Default. If an Event of Default occurs, within five days after the Trustee has actual knowledge of the Event of Default, the Trustee shall give written notice of the Event of Default, by registered or certified mail, to the Issuer, the Company, the Registrar, any Paying Agent, any Authenticating Agent, the Remarketing Agent, the Original Purchaser of the Outstanding Bonds and the Holders of the Bonds. 68 SECTION 7.03. Acceleration. Upon the occurrence of any Event of Default, the Trustee may, and upon the written request of the Holders of not less than 25 percent in aggregate principal amount of the Outstanding Bonds, shall, declare the principal of and premium, if any, on all of the Outstanding Bonds (if not then due and payable), and the interest accrued thereon, to be due and payable immediately; provided that, in addition to any indemnity bond required under Section 6.020), the Trustee shall have been provided with satisfactory indemnity for the reimbursement of all expenses which it may incur and to protect it against all risk and liability related to or arising from such acceleration. Any such declaration shall be by notice in writing delivered to the Issuer, the Company, the Registrar, any Paying Agent and any Authenticating Agent. Upon that declaration, that principal and premium, if any, and interest shall become and be due and payable immediately. Interest on the Bonds shall accrue to the date determined by the Trustee for the tender of payment to the Holders; provided that interest on any unpaid principal amount of Outstanding Bonds shall continue to accrue after the date determined by the Trustee for the tender of payment to the Holders of those Bonds. The provisions of the preceding paragraphs are subject, however, to the condition that if, at any time after a declaration of acceleration and prior to the entry of a final judgement in a court for enforcement hereunder, (a) all sums payable hereunder (other than the principal of and interest on Bonds which shall not have reached their stated maturity dates, but which are due and payable solely by reason of the declaration of acceleration), together with, to the extent permitted by law, interest on any overdue installments of interest at the rate borne by the Bonds in respect of which the Event of Default shall have occurred shall have been duly paid, or provision shall have been duly made therefor by deposit with the Trustee or any Paying Agent; and (b) all existing Events of Default shall have been cured; then in every case, the Trustee shall waive the Event of Default and its consequences and shall rescind and annul the declaration of acceleration. No waiver or rescission and annulment shall extend to or affect any subsequent Event of Default or shall impair any rights, remedies or powers consequent thereon. SECTION 7.04. Matters Regarding Rights. Remedies and Powers. Regardless of whether a declaration of acceleration is made hereunder, upon the occurrence and continuance of an Event of Default, the Trustee may pursue any available right, remedy or power to enforce the payment of Debt Service Charges and the observance and performance of any other covenant, agreement or obligation under this Indenture, the Agreement, the Mortgage or any of the Notes or any other instrument providing security directly or indirectly, for the Bonds or any series thereof. Upon the occurrence and continuance of an Event of Default, if the Trustee is requested to do so by the Holders of at least 25 percent in aggregate principal amount of the Outstanding 69 Bonds, the Trustee shall exercise any rights, remedies and powers hereunder, subject to the provisions of Sections 6.01 and 6.02. Notwithstanding any other provision in the Indenture to the contrary, the Trustee is authorized to use any amounts held in the funds and accounts under the Indenture to pay the cost, liabilities, fees and advances incurred by the Trustee (including legal counsel fees and expenses) to finance remedial action under the Indenture upon the occurrence of an Event of Default. No right, remedy or power conferred upon or reserved to the Trustee or the Holders under this Indenture is intended to be exclusive of any other available right, remedy or power, but each right, remedy or power shall be cumulative and concurrent and shall be in addition to every other right, remedy or power available under the Agreement or the Mortgage or hereunder or existing at law, in equity or by statute or otherwise now or hereafter. No exercise, beginning of the exercise, or partial exercise by the Trustee or the Holders of anyone or more rights, remedies or powers shall preclude the simultaneous or later exercise by the Trustee or the Holders of any other right, remedy or power. No delay or omission in the exercise of any right, remedy or power accruing upon any Event of Default shall impair that or any other right, remedy or power or shall be construed to constitute a waiver of any Event of Default, but every right, remedy or power may be exercised from time to time and as often as may be deemed to be necessary or desirable. To entitle the Trustee or the Holders to exercise any right, remedy or power hereunder, it shall not be necessary to give any notice, other than as may be required expressly herein. In exercising any right, remedy or power thereunder or hereunder, the Trustee shall take all actions which would best serve the interests of the Holders, in the judgment of the Trustee, applying the standards described in Sections 6.01 and 6.02 hereof. Upon the occurrence of an Event of Default, neither the Issuer, the Company, nor anyone claiming through or under either of them, shall set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws in force from time to time, to prevent or hinder the enforcement of this Indenture, and the Issuer, for itself and all who may claim through or under it, waives hereby, to the extent that it may do so lawfully, the benefit of all of those laws and all rights of appraisement and redemption to which it may be entitled, and all rights of marshaling. SECTION 7.05. Right of Holders to Direct Proceedings. Notwithstanding anything to the contrary in this Indenture, the Holders of a majority in aggregate principal amount of Outstanding Bonds have the right to direct at any time, pursuant to Article XI or by an instrument or document or instruments or documents in writing executed and delivered to the Trustee, the method and place of conducting all proceedings to be taken in connection with the enforcement of this Indenture or any other proceedings hereunder; provided, that (a) no direction shall be other than in accordance with law and this Indenture; 70 (b) the Trustee shall be indemnified as provided in Sections 6.01 and 6.02; and (c) the Trustee may take any other action which it deems to be proper and which is not inconsistent with the direction. SECTION 7.06. Appointment of Receivers. Upon the occurrence of an Event of Default and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and the Holders, as a matter of right, to the extent permitted by law, the Trustee is entitled to the appointment of a receiver or receivers of the Mortgaged Property pending those proceedings, with all powers which the court making the appointment shall confer. SECTION 7.07. Application of Moneys. All moneys received by the Trustee pursuant to the exercise of any right, remedy or power or any action taken under this Article VII or under the Agreement and all other amounts held by the Trustee hereunder, subject to any provision made pursuant to Sections 5.07 or 5.08 hereof, shall be (i) first, used to pay the costs, expenses, liabilities, fees and advances incurred by the Trustee including legal counsel fees and expenses, (ii) second, used to pay any refunds to residents of the Mortgaged Property pursuant toapplicable provisions of Chapter 651, Florida Statutes, as amended, and (iii) third, deposited in the Rebate Fund in an amount sufficient to cause the Rebate Fund to contain an amount equal to the Excess Earnings with respect to the Outstanding Bonds calculated as of a date determined by the Trustee subsequent to the Event of Default and in accordance with Section 5.05 hereof, and (iv) fourth, shall be applied by the Trustee as set forth below. (a) Unless the principal of all of the Bonds has become or has been declared to be due and payable, all of those moneys shall be applied: First -- To the payment of all installments of interest then due on the Bonds in the order of maturity of the installments of that interest, beginning with the earliest maturity, and if the amount available is not sufficient to pay in full a particular installment, then to the payment thereof ratably, according to the amounts due on that installment, without any discrimination or privilege, except as to any difference in the respective rates of interest on the Bonds; and Second -- To the payment of the unpaid principal of any Bonds which shall have become due (other than the Bonds called previously for redemption, for the payment of which moneys are held hereunder), whether at maturity or by redemption, including without limitation, redemption pursuant to the mandatory redemption requirements, in the order of their due dates, beginning with the earliest due date, with interest on those Bonds from the respective dates upon which they shall have become due, and if the amount available is not sufficient to pay in full all unpaid principal on all Bonds due on any particular date, then to the payment thereof ratably, according to the amounts of principal due on that date, without any discrimination or privilege. Third--- Any additional amounts the Trustee receives shall be applied as follows in the following order of priority: 71 (1) to the payment of current deposits then required to be made to the Bond Fund for the payment of Debt Service Charges; (2) to the payment of current Operating Expenses requisitioned by the Company and disbursed by the Trustee monthly in accordance with the annual budget for the Mortgaged Property, which budget may be modified from time to time if such modification is approved by the Board of Directors of the Company and such approval, along with the modified budget is submitted to the Trustee; provided that during the continuation of an Event of Default the annual budget for the Mortgaged Property shall not be increased by any such modification unless such modification is recommended by the Consultant; (3) to remedy any deficiency in the Debt Service Reserve Fund; (4) to remedy any deficiency or make current payments into the Renewal and Replacement Fund, the moneys in which Fund shall be disbursed by the Trustee only upon submission of a written request therefore signed by the Chief Financial Officer of the Company and accompanied by written evidence of approval of such expenditures by the Board of Directors of the Company. (5) to establish such additional reserves which the Trustee reasonably requires, with the advice of any Consultant engaged by the Trustee for such purpose, to ensure the prompt payment of Debt Service Charges and Operating Expenses; Any surplus funds remaining shall be held by the Trustee but may be paid to the Company for extraordinary operating or capital expenses which are approved by the Board of Directors of the Company, and such approval is submitted to the Trustee along with a request for disbursement signed by the Chief Financial Officer of the Company. For so long as the Trustee receives Revenues, the Trustee shall, and is hereby authorized to, establish and maintain such funds and accounts as the Trustee deems necessary or desirable in order to provide for the proper application of Revenues in accordance with the terms hereof. (b) If the principal of all of the Bonds has become or has been declared to be, due and payable, pursuant to this Article, all of those moneys shall be applied to the payment of the principal and premium, if any, and interest then due and unpaid upon the Bonds, without preference or priority of (i) principal or premium, if any, over interest, (ii) interest over principal or premium, if any, 72 (iii) any installment of interest over any other installment of interest, or (iv) any Bond over any other Bond, ratably, according to the amounts due respectively for principal and premium, if any, and interest, without any discrimination or privilege, except as to any difference in the respective rates of interest on the Bonds. (c) If the principal of all of the Bonds has been declared to be due and payable pursuant to this Article, and if the declaration shall thereafter have been rescinded and annulled hereunder, then subject to the provisions of subparagraph (b) of this Section, in the event that the principal of all of the Bonds shall later become due or shall be declared to be due and payable, the moneys shall be applied in accordance with the provisions of subparagraph (a) above. (d) Whenever moneys are to be applied pursuant to the provisions of this Section, those moneys shall be applied at those times, and from time to time, which the Trustee shall determine, having due regard to the amount of moneys available for application and the likelihood of additional moneys becoming available for application in the future. Whenever the Trustee shall direct the application of those moneys, it shall determine a Special Interest Payment Date upon which the application is to be made, and upon the date as determined, interest shall cease to accrue on the amounts of principal, if any, to be paid on that date, if the moneys are available therefor. The Trustee shall give notice of the deposit with it of any moneys and of the determination of that date, all in a manner which is consistent with the requirements hereof for the establishment of, and for giving notice with respect to, a Special Record Date for the payment of overdue interest, the Trustee shall not be required to make payment of principal of or premium, if any, on a Bond to the Holder thereof, until the Bond is presented to the Trustee for appropriate endorsement or, if it is to be paid fully, for cancellation. SECTION 7.08. Rights. Remedies and Powers Vested in Trustee. All rights, remedies and powers (including without limitation, the right to file proof of claims) under this Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceeding relating thereto. Any suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without the necessity of joining any Holders as plaintiffs or defendants. Any recovery of judgment shall be for the benefit of the Holders of the Outstanding Bonds, subject to the provisions hereof. SECTION 7.09. Rights. Remedies and Powers of Holders. No Holder shall have any right, remedy or power to institute any suit, action or proceeding for the enforcement of this Indenture, for the execution of any trust hereof, or for the exercise of any other right, remedy or power hereunder, unless 73 (a) there has occurred and is continuing an Event of Default of which the Trustee has been notified, as provided in Section 6.02(f) hereof, or of which it is deemed to have notice under that subparagraph; (b) the Holders of at least 25 percent in aggregate principal amount of the Outstanding Bonds shall have made written request to the Trustee and shall have afforded the Trustee a reasonable opportunity to proceed to exercise the rights, remedies and powers or to institute the suit, action or proceeding in its own name, and shall have offered indemnification to the Trustee as provided in Sections 6.01 , 6.02 and 7.03 hereof; and (c) the Trustee shall have failed or refused thereafter to exercise the rights, remedies and powers or to institute the suit, action or proceeding in its own name. At the option of the Trustee, such notification, request, opportunity and offer of indemnification shall be conditions precedent in every case, to the institution of any suit, action or proceeding described above. No one or more Holders of the Bonds shall have any right, remedy or power to affect, disturb or prejudice this Indenture in any manner whatsoever by its or their action, or to enforce any right, remedy or power hereunder, except in the manner provided herein. Any suit, action or proceeding shall be instituted, had and maintained in the manner provided herein for the benefit of the Holders of all Outstanding Bonds. Nothing in this Indenture shall affect or impair, however, the right of any Holder to enforce the payment of principal and interest on any Bond owned by that Holder at and after the maturity thereof, at the place, from the sources, and in the manner expressed in that Bond. SECTION 7.10. Termination of Proceedings. If the Trustee shall have proceeded to enforce any right, remedy or power under this Indenture in any suit, action or proceeding, and the suit, action or proceeding shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then the Issuer, the Company, the Trustee and the Holders shall be restored to their former positions and rights, remedies and powers hereunder, respectively, and all rights, remedies and powers of the Trustee and the Holders shall continue as if no suit, action or proceeding had been taken. SECTION 7.11. Waivers. Except as provided below, at any time, in its discretion, the Trustee may waive any Event of Default hereunder and its consequences and may rescind and annul any declaration of acceleration of the Bonds. The Trustee shall do so upon the written request of the Holders of (a) at least a majority in aggregate principal amount of all Outstanding Bonds in respect of which an Event of Default exists in the payment of Debt Service Charges; or 74 (b) at least 25 % in aggregate principal amount of all Outstanding Bonds, in the case of any other Event of Default. There shall not be so waived, however, any Event of Default described in Section 7.01(a) or (b) hereof, and no declaration of acceleration in connection therewith may be rescinded or annulled, unless at the time of the waiver, rescission or annulment, payments have been duly made, or provision has been duly made for the payment, of the amounts provided in Section 7.03 hereof for waiver, rescission and annulment in connection with a declaration of acceleration. In the event of the waiver, rescission or annulment, the Issuer, the Company, the Trustee and the Holders shall be restored to their former positions and rights, remedies and powers hereunder, respectively. No waiver, rescission or annulment shall extend to any subsequent or other Event of Default or impair any right, remedy or power consequent thereon. In the event that any covenant, agreement or obligation hereunder or under the Agreement, the Mortgage or the Bonds shall be breached by either the Company or the Issuer, and the breach shall have been waived thereafter, the waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other or any subsequent breach thereunder. No waiver shall be deemed to apply to any existing or subsequent right, remedy or power with respect to the breach, except to the extent provided expressly in the waiver. No failure by the Trustee or the Holders to insist upon the strict observance or performance by the Company or the Issuer of any covenant, agreement or obligation hereunder or under any Company Document, any Issuer Document or the Bonds, and no failure to exercise any right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any right, remedy or power to enforce strict observance or performance or a waiver of such breach. 75 ARTICLE VIII SUPPLEMENTAL INDENTURES AND AMENDMENTS TO ISSUER DOCUMENTS SECTION 8.01. Supplemental Indentures Generally. The Issuer and the Trustee may not enter into indentures supplemental to or amending of this Indenture, except as provided in this Article and pursuant to the other provisions therefor in this Indenture. SECTION 8.02. Supplemental Indentures Not ReQuirin~ Consent of Holders. Without the consent of or notice to the Holders, the Issuer and the Trustee may enter into Supplemental Indentures, which shall not be inconsistent, in the opinion of the Issuer and the Trustee, with the terms and provisions hereof, for anyone or more of the following purposes: (a) to cure any ambiguity, inconsistency or formal defect or omission in this Indenture; (b) to grant to or confer upon the Trustee for the benefit of the Holders any additional rights, remedies, powers or authority which lawfully may be granted to or conferred upon the Trustee; (c) to assign additional revenues under this Indenture; (d) to accept additional security and instruments and documents of further assurance with respect to the Mortgaged Property; (e) to add to the covenants, agreements and obligations of the Issuer or the Company under this Indenture, other covenants, agreements and obligations to be observed for the protection of the Holders, or to surrender or limit any right, remedy, power or authority reserved to or conferred upon the Issuer or the Company under this Indenture; (f) to evidence any succession to the Issuer and the assumption by its successor of the covenants, agreements and obligations of the Issuer under the Issuer Documents and the Bonds; (g) to make necessary or advisable amendments or additions in connection with the issuance of Additional Bonds in accordance herewith, or with the incurrence of Parity Debt in accordance with the Agreement, which do not adversely affect the interests of Holders of Outstanding Bonds; (h) to permit the use of a book-entry system to identify the Holder of an interest in an obligation issued by the Issuer under this Indenture, whether that obligation was formerly, or could be, evidenced by a physical security; (i) to facilitate (A) the transfer of Bonds or notes issued by the Issuer under this Indenture and held in book-entry form from one depository to another and the succession of 76 depositories, or (B) the withdrawal of Bonds or notes issued by the Issuer under this Indenture and delivered to a depository for use in a book-entry system and the issuance of replacement Bonds or notes in fully registered form and in the form of physical certificates to others than a depository ; (j) to permit the Trustee to comply with any duties imposed upon it by law; (k) to specify further the duties and responsibilities of, and to define further the relationships among, the Trustee, the Registrar, any Authenticating Agents, any Paying Agents and any Tender Agent; (1) to achieve compliance of this Indenture with any applicable federal or state securities or tax law; (m) to make any other change which is not prejudicial to the Trustee or the Holders, in the judgment of the Trustee; (n) to make amendments to the provisions hereof relating to arbitrage matters under Section 148 of the Code, if, in the Opinion of Bond Counsel, those amendments would not cause the interest on Bonds outstanding to become included in gross income of Holders for federal income tax purposes which amendments may, among other things, change the responsibility for making the relevant calculations; or (0) to provide for Additional Bonds to the extent permitted by Section 2.05 hereof. The provisions of subparagraphs (j) and (1) shall not be deemed to constitute a waiver by the Trustee, the Registrar, the Issuer or any Holder of any right, remedy or power which it may have in the absence of those provisions to contest the application to this Indenture or the Bonds of any change in law. SECTION 8.03. Supplemental Indentures Requiring Consent of Holders. Exclusive of Supplemental Indentures to which reference is made above, and subject to the terms, provisions and limitations contained in this Section, and not otherwise, with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds, evidenced as provided herein, and with the prior written consent of the Company, if required below, the Issuer and the Trustee may execute and deliver Supplemental Indentures adding any provisions to, changing in any manner, or eliminating any of the provisions of this Indenture or any Supplemental Indenture, or restricting in any manner the rights of the Holders. Nothing in this Section or the preceding Section shall permit, however, or be construed as permitting: (a) without the consent of the Holder of each Bond so affected, (i) an extension of the maturity of the principal of or the interest on any Bond, (ii) a reduction in the principal amount of any Bond or the rate of interest or premium thereon, or (iii) a reduction in the amount or 77 extension of the time of payment of any mandatory redemption requirements, including without limitation, any mandatory redemption pursuant to Section 4.02 hereof; or (b) without the consent of the Holders of all Outstanding Bonds, (i) the creation of a privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (ii) a reduction in the aggregate principal amount of the Bonds required for consent to a Supplemental Indenture. If the Issuer shall request that the Trustee execute and deliver any Supplemental Indenture for any of the purposes of this Section, upon (i) being indemnified satisfactorily with respect to its expenses in connection therewith, and (ii) if required by Section 8.04, receipt of the Company I s consent to the proposed execution and delivery of the Supplemental Indenture, the Trustee shall cause notice of the proposed execution and delivery of the Supplemental Indenture to be mailed to each Holder at the close of business on the fifteenth day preceding such mailing at its address as it appears on the Register on that fifteenth day preceding such mailing. The Trustee shall not be subject to any liability to any Holder by reason of the Trustee's failure to mail, or the failure of any Holder to receive, the notice required by this Section. Any failure of that nature shall not affect the validity of the Supplemental Indenture when there has been consent thereto as provided in this Section. The notice shall describe briefly the nature of the proposed Supplemental Indenture and shall state that copies thereof are on file at the office of the Trustee designated therein for inspection by all Holders. If the Trustee shall receive, within a period of not fewer than 60 days, but not exceeding one year, as prescribed by the Company, following the mailing of the notice, an instrument or document or instruments or documents, in a form or forms to which the Trustee does not object reasonably, purporting to be executed by the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds, but not otherwise, the Trustee shall execute and deliver the Supplemental Indenture in substantially the form to which reference is made in the notice, without liability or responsibility to any Holder, regardless of whether that Holder shall have consented thereto. The instrument or document or instruments or documents described in this paragraph shall refer to the proposed Supplemental Indenture in the form described in the notice and shall consent specifically to the Supplemental Indenture in substantially that form. Any consent shall be binding upon the Holder of the Bond giving the consent and, anything herein to the contrary notwithstanding, upon any subsequent Holder of that Bond and of any Bond issued in exchange therefor (regardless of whether the subsequent Holder has notice of the consent to the Supplemental Indenture). If the Holders of the required percentage in aggregate principal amount of Outstanding Bonds shall have consented to the Supplemental Indenture, as provided in this Section, no Holder shall have any right (i) to object to the execution or delivery of the Supplemental Indenture, any of the terms and provisions contained therein, or the operation thereof; (ii) to question the 78 propriety of the execution and delivery thereof; or (iii) to enjoin or restrain the Trustee or the Issuer from that execution or delivery or from taking any action pursuant to the provisions thereof. SECTION 8.04. Consent of the Company. Anything herein to the contrary notwithstanding, no Supplemental Indenture executed and delivered in accordance herewith which affects any rights, remedies or powers of the Company shall become effective, unless the Company shall have consented in writing to the execution and delivery of that Supplemental Indenture. Unless waived by the Company, the Trustee shall cause notice of the proposed execution and delivery of any Supplemental Indenture and a copy of the proposed Supplemental Indenture to be mailed to the Company, (a) at least 30 days before the date of the proposed execution and delivery in the case of a Supplemental Indenture to which reference is made in Section 8.02 hereof; and (b) at least 30 days before the giving of the notice of the proposed execution and delivery in the case of a Supplemental Indenture for which provision is made in Section 8.03 hereof. SECTION 8.05. Authorization to Trustee: Effect of Supplement. The Trustee is authorized to join with the Issuer in the execution and delivery of any Supplemental Indenture in accordance with this Article and to make the further covenants, agreements and stipulations which may be contained therein. Thereafter, (a) that Supplemental Indenture shall form a part of this Indenture; (b) all terms and conditions contained in that Supplemental Indenture as to any provision authorized to be contained therein shall be deemed to constitute a part hereof for all purposes; (c) this Indenture shall be deemed to be modified, amended and supplemented in accordance with the Supplemental Indenture; and (d) the respective rights, remedies, powers, covenants, agreements and obligations under this Indenture of the Issuer, the Company, the Trustee, the Registrar, the Paying Agents, the Authenticating Agents, the Tender Agent, the Remarketing Agent and all Holders of Outstanding Bonds shall be determined, exercised and enforced hereunder in a manner which is subject in all respects to those modifications, amendments and supplements made by the Supplemental Indenture. Express reference to any executed and delivered Supplemental Indenture may be made in the text of any Bonds issued thereafter, if that reference is deemed necessary or desirable by the Trustee. A copy of any Supplemental Indenture for which provision is made in this Article, except a Supplemental Indenture described in Section 8. 02(g) hereof, shall be mailed by the 79 Trustee to the Registrar, each Authenticating Agent, each Paying Agent, each Tender Agent and the Original Purchaser of the Bonds affected thereby. SECTION 8.06. Opinion of Counsel. The Trustee shall be entitled to receive, and shall be protected fully in relying upon, the opinion of any counsel approved by it as conclusive evidence that (i) any proposed Supplemental Indenture complies with the provisions of this Indenture, and (ii) it is proper for the Trustee to join in the execution of that Supplemental Indenture under the provisions of this Article. That opinion may be an Opinion of Bond Counsel. SECTION 8.07. Amendments to the Company Documents Not Requiring Consent of Holders. The Issuer and the Trustee may not enter into amendments, changes or modifications of the Agreement or Mortgage except as provided in this Section and Section 8.08 hereof and pursuant to the other provisions of this Indenture. Without the consent of or notice to the Holders, the Issuer and the Trustee may consent to any amendment, change or modification of the Company Documents which may be required (a) to comply with the provisions of the Company Documents and this Indenture; (b) to make necessary or advisable amendments or additions in connection with the issuance of Additional Bonds in accordance herewith, or with the incurrence of Parity Debt in accordance with the Agreement, which do not affect adversely the interests of Holders of Outstanding Bonds; (c) to cure any ambiguity, inconsistency or formal defect or omission in the Company Documents; (d) to release any real estate in accordance with the Company Documents or to accept additional real estate or any interest therein which becomes hereafter a part of the real property included in the Mortgaged Property under the Company Documents; (e) to amend or to effect any purpose for which there could be a Supplemental Indenture pursuant hereto without the consent of or notice to the Holders; or (t) to make any other change which is not prejudicial to the Trustee, the Issuer or the Holders, in the judgment of the Trustee. Anything herein to the contrary notwithstanding, no Company Documents executed and delivered in accordance herewith which affect any rights, remedies or powers of the Company shall become effective, unless the Company shall have consented in writing to the execution and delivery of such Company Documents. Unless waived by the Company, the Trustee shall cause notice of the proposed execution and delivery of any amended or modified Company Documents and a copy of the proposed Company Document to be mailed to the Company, 80 (i) at least 30 days before the date of the proposed execution and delivery in the case of a Company Document to which reference is made in this Section; and (ii) at least 30 days before the giving of the notice of the proposed execution and delivery in the case of a Company Document for which provision is made in Section 8.08 hereof. SECTION 8.08. Amendments to the Company Documents Requiring Consent of Holders. Exclusive of amendments, changes or modifications to which reference is made in Section 8.07, and subject to the terms, provisions and limitations contained in this Section, neither the Issuer nor the Trustee shall consent to, execute or deliver (a) any amendment, change or modification of the Company Documents which would change the amount of or the time as of which the Revenues are required to be paid, without giving notice as provided in this Section of the proposed amendment, change or modification and receipt of the approval or consent thereto of the Holders of all of the Outstanding Bonds; or (b) any other amendment, change or modification of the Company Documents without giving notice as provided in this Section of the proposed amendment, change or modification and receipt of the approval or consent thereto of the Holders of not less than a majority in aggregate principal amount of the Outstanding Bonds. The approval or consent of the Holders shall be obtained as provided herein with respect to Supplemental Indentures. If the Issuer and the Company request the consent, execution or delivery of the Trustee to any proposed amendment, change or modification of the Agreement or the Mortgage as contemplated in this Section, upon being indemnified satisfactorily with respect to expenses in connection therewith, the Trustee shall cause notice of the proposed amendment, change or modification to be given in the same manner as provided herein with respect to notice of Supplemental Indentures. The notice shall describe briefly the nature of the proposed amendment, change or modification and shall state that copies of the instrument or document embodying it are on file at the designated corporate trust office of the Trustee for inspection by all Holders. SECTION 8.09. Modification by Unanimous Consent. Notwithstanding anything contained elsewhere in this Indenture, the rights, remedies, powers, covenants, agreements and obligations of the Issuer and the Holders, and the terms and provisions of the Bonds, this Indenture or any Supplemental Indenture, may be modified or altered, and any Company Documents may be amended, changed or modified, in any respect with the consent of (i) the Issuer, (ii) the Trustee, (iii) the Holders of all of the Outstanding Bonds, and (iv) if required by Section 8.04 hereof, the Company. 81 ARTICLE IX DEFEASANCE SECTION 9.01. Release of Indenture. If (a) the Issuer shall pay all of the Outstanding Bonds, or shall cause them to be paid and discharged, or if there shall be paid otherwise to the Holders of the Outstanding Bonds, all Debt Service Charges due or to become due thereon; (b) the Trustee shall receive an amount sufficient to cause the Rebate Fund to contain an amount equal to the Excess Earnings with respect to the Outstanding Bonds calculated as of the date of release of this Indenture in accordance with Section 5.05 hereof and provision shall be made for the payment to the United States of Excess Earnings with respect to the Outstanding Bonds accruing subsequent to the date of release of this Indenture; and (c) provision shall be made also for the payment of all other sums payable hereunder and under the Agreement, the Mortgage and the Notes; then this Indenture shall cease, determine and become null and void (except for those provisions surviving by reason of Section 9.03 hereof in the event that the Bonds are deemed to be paid and discharged pursuant to Section 9.02 hereof), and the covenants, agreements and obligations of the Issuer and the Company hereunder shall be released, discharged and satisfied; provided that in addition to any other requirements set forth herein, within 15 days after that payment or discharge, the Trustee shall cause a notice to be mailed to each Holder at the close of business on the date on which the payment and discharge shall have occurred at its address as it appears on the Register on that date of payment and discharge, which notice shall set forth (i) the date or dates, if any, designated for the redemption of the Bonds and, if applicable, any reservation retained by the Issuer and the Company to designate one or more redemption date or dates or to replace any designated redemption date or dates with an earlier redemption date or dates; (ii) a description of the method of payment or discharge and of any obligations held by the Trustee therefor; and (iii) a statement that, except for the provisions set forth in Section 9.03, this Indenture has ceased, determined and become null and void in accordance with the provisions of this Article. Thereupon, and subject to the provisions of Section 9.03 hereof if applicable, the Trustee shall release this Indenture and shall execute and deliver to the Company any instruments or documents which may be requisite to evidence that release and discharge or which may be requested reasonably by the Company; and the Trustee and any other Paying Agents shall assign and deliver to the Company any property subject to this Indenture which may be in their 82 possession at the time, except for moneys, including without limitation, investments, in the Special Funds required (i) to be paid to the Company under Section 5.09 hereof, or (ii) to be held by the Trustee and the Paying Agents for the payment of Debt Service Charges. SECTION 9.02. Payment and Discharge of Bonds. All or any part of the Bonds shall be deemed to have been paid and discharged within the meaning of this Indenture, including without limitation, Section 9.01 hereof, if (a) the Trustee and any Paying Agents shall have received, in trust for and committed irrevocably thereto, sufficient moneys; or (b) the Trustee shall have received, in trust for and committed irrevocably thereto, noncallable Defeasance Obligations which are certified by an independent certified public accountant or firm of such accountants, acceptable to the Trustee, to be of those maturities or redemption dates, to have payment dates, and to bear interest at those rates, in each case which will be sufficient, together with any moneys to which reference is made in subparagraph (a) above, without further investment or reinvestment of either the principal amount thereof or the interest earnings therefrom (which earnings are to be held likewise in trust and so committed, except as provided herein); for the payment of (i) moneys into the Rebate Fund sufficient to make rebate payments to the United States of America required by the Code, (ii) all Debt Service Charges on those Bonds, at their maturity or redemption dates, as the case may be, or if a default in payment shall have occurred on any maturity or redemption date, then for the payment of all Debt Service Charges thereon to the date of the tender of payment and (ii) all fees, charges and expenses provided for by Section 6.03 hereof. If any of those Bonds are to be redeemed prior to the maturity thereof, notice of that redemption shall have been duly given or irrevocable provision satisfactory to the Trustee shall have been duly made for the giving of that notice or notice that the Issuer and the Company have reserved the right to replace the designated redemption dates with earlier redemption dates should be given as provided below. Any moneys held by the Trustee in accordance with the provisions of this Section may be invested by the Trustee only in noncallable Defeasance Obligations having maturity dates or redemption dates not later than the date or dates at which moneys will be required for the purposes described above. To the extent that any income or interest earned by, or increment to, the investments held under this Section is determined from time to time by the Trustee to be in excess of the amount required to be held by the Trustee for the purposes of this Section, that income, interest or increment shall be transferred at the time of that determination in the manner provided herein for transfers of amounts remaining in the Special Funds. If any Bonds are deemed to be paid and discharged pursuant to this Section, within 15 days after those Bonds are so deemed to be paid and discharged, the Trustee shall cause a written notice to be given to each Holder at the close of business on the date on which the Bonds are deemed to 83 be paid and discharged at its address as it appears on the Register on that date on which the Bonds are deemed to be paid and discharged. The notice shall (i) state the numbers of the Bonds deemed to be paid and discharged, or shall state that all Bonds of a particular series are deemed to be paid and discharged; (ii) set forth a description of the obligations held as described above; and (iii) if any Bonds will be so called for redemption, specify the date or dates on which those Bonds are to be called for redemption pursuant to a notice of redemption given or irrevocable provision made for that notice pursuant to this Section. If the Issuer and the Company have reserved the right at the time of release of this Indenture to designate one or more redemption date or dates or to replace any designated redemption date or dates with an earlier redemption date or dates, notice shall be mailed by the Trustee, within 15 days after that payment and discharge, stating that the Issuer and the Company expressly reserve the right to direct the Trustee to call the Outstanding Bonds, or any of them, for redemption on a date or dates earlier than those specified at the time of the release of this Indenture or to direct that the Outstanding Bonds, or any of them, be redeemed prior to their stated maturity, on a date or dates to be designated subsequent to the release of this Indenture. In the event that the Issuer and the Company reserve such rights at the time of release of this Indenture, any such direction to designate one or more redemption dates or to replace any designated redemption date or dates with an earlier redemption date or dates shall be (i) delivered to the Trustee in writing by the Company not fewer than 60 days prior to the newly designated redemption date of the Outstanding Bonds, (ii) accompanied by a written report of an independent certified public accountant or firm of such accountants acceptable to the Trustee that the noncallable Defeasance Obligations held by the Trustee are of those maturities or redemption dates, have the payment dates and bear interest at those rates, in each case which will be sufficient, together with any moneys delivered to the Trustee, without further investment or reinvestment of either the principal amount thereof or the interest earnings therefrom, (which earnings are to be held likewise in trust and so committed, except as provided herein) for the payment of all Debt Service Charges on the Outstanding Bonds at their maturity or redemption dates as may then be designated by the Company, and (iii) accompanied by an opinion of Bond Counsel to the effect that such direction is authorized or permitted under the terms of this Indenture and will not adversely affect the exclusion of interest on the Outstanding Tax-Exempt Bonds from gross income for federal income tax purposes. Within 30 days of receipt of such direction, report and opinion, the Trustee shall give notice of such direction to each Holder of a Bond on which payment of Debt Service Charges is affected thereby, at the Holder's address then shown on the Register, stating (c) a description of the obligations held as described above; 84 (d) whether any Bonds will be called for redemption prior to their scheduled maturity or their redemption pursuant to mandatory redemption, including without limitation, the mandatory sinking fund requirements or prior to any previously designated redemption dates and, if applicable, whether the Issuer and the Company have reserved the right to designate one or more redemption date or dates or to replace any designated redemption date or dates with an earlier redemption date or dates, and (e) if any Bonds will be so called for redemption, specify the date or dates on which those Bonds are to be called for redemption pursuant to a notice of redemption given or irrevocable provision made for that notice pursuant to this Section. SECTION 9.03. Survival of Certain Provisions. Notwithstanding the foregoing, any provisions hereof which relate to (i) the maturity of Bonds; (ii) the interest payments and dates thereof; (iii) the optional and mandatory redemption provisions; (iv) the credits against the mandatory sinking fund requirements; (v) the exchange, transfer and registration of Bonds; (vi) the replacement of mutilated, destroyed, lost or stolen Bonds; (vii) the safekeeping and cancellation of Bonds; (viii) the non-presentment of Bonds; (ix) the holding of moneys in trust; (x) the repayments to the Company from the Special Funds; (xi) the calculation of a payment of the Rebate Amounts to the United States; and (xii) the duties of the Trustee and the Registrar in connection with all of the foregoing; shall remain in effect and shall be binding upon the Issuer, the Company, the Trustee, the Registrar, the Authenticating Agents, the Paying Agents and the Holders, notwithstanding the release, discharge and satisfaction of this Indenture. The provisions of this Article shall survive the release, discharge and satisfaction of this Indenture. 85 ARTICLE X COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE ISSUER SECTION 10.01. Covenants and Agreements of the Issuer. In addition to any other covenants and agreements of the Issuer contained in this Indenture, any other Issuer Documents or the Bonds, the Issuer covenants and agrees further with the Holders and the Trustee as follows: (a) The Issuer will pay all Debt Service Charges, or cause them to be paid, solely from the sources, on the dates, at the places, and in the manner provided in this Indenture and the Bonds. (b) The Issuer will not assign the Revenues or any of the funds and accounts or cause to be created any debt, lien or charge thereon, except as contemplated herein. (c) All books, instruments and documents in the Issuer's possession relating to the Project or the Revenues shall be open to inspection at all times during the Issuer's regular business hours by any attorneys, accountants or other agents or employees of the Trustee which the Trustee may designate from time to time. (d) At reasonable times and under reasonable regulations established by the Registrar, the Register may be inspected and copied by the Company, the Trustee, the Holders of 25 percent or more in aggregate principal amount of the Outstanding Bonds, or a designated representative of any of those parties, provided that the Registrar may refuse to allow such inspection or copying if advised by counsel that such inspection or copying is prohibited by law. (e) The Trustee may enforce, in its name or in the name of the Issuer, all rights, remedies and powers of the Issuer for and in the name and on behalf of the Holders and may enforce all covenants, agreements and obligations of the Company hereunder and under the Agreement and Mortgage, regardless of whether the Issuer is in default in the pursuit or enforcement of those rights, covenants, agreements or obligations. The Issuer will take, however, all actions on its part which are necessary or advisable to comply with all covenants, agreements and obligations to be observed or performed by it on its part under the Issuer Documents, and will take all actions within its authority to maintain the Issuer Documents in effect. (f) The Issuer will take, or cause to be taken, all actions necessary or advisable to qualify the interest paid on the Series 1999 Bonds as excludable from gross income of the Holders for federal income tax purposes and from treatment as an item of tax preference for purposes of the alternative minimum tax imposed on individuals and corporations under the Code. It will not take or authorize to be taken any actions that would adversely affect that exclusion under the Code. 86 SECTION 10.02. Observance and Performance: Representations and Warranties. The Issuer will observe and perform faithfully at all times all covenants, agreements and obligations on its part under the Issuer Documents and the Bonds and under all of its proceedings pertaining thereto. The Issuer represents and warrants that (a) It is duly authorized under the laws of the State, including particularly and without limitation, the Act, to issue the Series 1999 Bonds, to execute, deliver, observe and perform the Issuer Documents and the Series 1999 Bonds and to pledge and assign the Revenues and the Special Funds in the manner and to the extent contemplated hereunder; (b) All covenants, agreements and obligations required to be observed and performed by the Issuer for the issuance, sale and delivery of the Series 1999 Bonds and for the execution and delivery of the Issuer Documents have been observed and performed; and (c) The Issuer Documents and the Series 1999 Bonds are legal, valid and binding special obligations of the Issuer, enforceable in accordance with their respective terms, except that the binding effect and enforceability thereof are subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting the rights of creditors generally, and except to the extent that the enforceability thereof may be limited by the application of general principles of equity. SECTION 10.03. Enforcement of Issuer's Obligations. Each obligation of the Issuer required to be undertaken pursuant to this Indenture, the Agreement and the Bonds is binding upon the Issuer, and upon each officer or employee thereof as may have from time to time the authority under law to take any action on behalf of the Issuer which may be necessary to perform all or any part of that obligation, as a duty of the Issuer and of each of those officers and employees. 87 ARTICLE XI MEETINGS OF HOLDERS SECTI ON 11.01. Pu(pOses of Meetings. A meeting of Holders, or of the Holders of any series of the Bonds, may be called at any time and from time to time pursuant to the provisions of this Article XI, to the extent relevant to the Holders of all of the Bonds or of Bonds of that series to take any action (i) authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Bonds, (ii) under any provision of this Indenture or authorized or permitted by law. SECTION 11.02. Call of Meetings: Place of Meetings. The Trustee may call at any time a meeting of Holders pursuant to this Article to be held at any reasonable time and place which the Trustee shall determine. Notice of that meeting, setting forth the time and the place of the meeting and, in general terms, the subject thereof and the action proposed to be taken, shall be mailed not fewer than 15 nor more than 90 days prior to the date determined for the meeting. That notice shall be mailed to the Company and to each Holder at the close of business on the fifteenth day preceding the mailing of the notice at its address as it appears on the Register on that fifteenth day preceding the mailing. The date of determination of Holders for purposes of the mailing shall constitute the record date for the meeting. At any time, the Issuer, the Company or the Holders of at least 25 percent in aggregate principal amount of the Outstanding Bonds may request the Trustee in writing to call a meeting of Holders. The request shall describe in general terms the subject of the meeting and the action proposed to be taken. If the Trustee shall not have mailed the notice of the meeting within 20 days after receipt of the request, the Issuer, the Company or the Holders of Bonds in the amount described above, as the case may be, may determine a reasonable time and place of the meeting and may call the meeting to take any action authorized in this Article, by mailing notice thereof as provided above. Any meetings of Holders of the Bonds affected by a particular matter, shall be valid without notice, if (a) the Holders of Outstanding Bonds are present in person or by proxy; or notice is waived before or after the meeting by the Holders of all Outstanding Bonds who were not so present at the meeting; and (b) the Issuer, the Company and the Trustee are either present by duly authorized representatives or have waived notice, before or after the meeting. SECTION 11.03. Meetings: Regulations of the Trustee. Notwithstanding any other provisions of this Indenture, the Trustee may make any reasonable regulations which it may deem to be advisable for meetings of Holders, with regard to 88 (a) proof of the holding of Outstanding Bonds and of the appointment of proxies; (b) the appointment and duties of inspectors of votes; (c) recordation of the proceedings of those meetings; (d) the execution, submission and examination of proxies and other evidence of the right to vote; and (e) any other matters concerning the conduct, adjournment or reconvening of meetings which it may consider to be necessary or desirable. The Trustee shall appoint a temporary chair of the meeting by an instrument or document in writing, unless the meeting shall have been called by the Issuer, the Company or Holders, in which case, the Issuer, the Company or the Holders calling the meeting, as the case may be, shall appoint a temporary chair in like manner. A permanent chair and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Outstanding Bonds represented at the meeting and entitled to vote. SECTION 11.04. Voting: Speaking at Meeting: Record of Meeting. To be entitled to vote at any meeting of Holders, a Person shall (a) be a Holder of one or more Outstanding Bonds as of the record date for the meeting as determined above; or (b) be a Person appointed in writing by an instrument or document as proxy by a Holder, as of the record date for the meeting, of one or more Outstanding Bonds. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at the meeting and their counsel, any representatives of the Trustee and its counsel, any representatives of the Issuer and its counsel, and any representatives of the Company and its counsel. Each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Bonds held or represented by it; provided, however, that no vote shall be cast or counted at any meeting in respect of any Bonds challenged as not Outstanding and ruled by the chair of the meeting to be not Outstanding. The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders of Outstanding Bonds or of their representatives by proxy and the identifying number or numbers of the Outstanding Bonds held or represented by them. SECTION 11.05. Miscellaneous. Nothing contained in this Article shall be deemed or construed to authorize or permit any hindrance or delay in the exercise of any right, remedy 89 or power conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Bonds by reason of any call of a meeting of Holders or any right, remedy or power conferred expressly or impliedly hereunder to make a call of such a meeting. 90 ARTICLE XII MISCELLANEOUS SECTION 12.01. Limitation of Rights. With the exception of rights, remedies and powers conferred expressly in this Indenture, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is intended, or shall be construed, to give to any Person other than the parties hereto, the Registrar, the Paying Agents, the Authenticating Agents, the Tender Agent, the Company and the Holders of the Bonds any legal or equitable right, remedy, power or claim under or with respect to this Indenture or any covenants, agreements or obligations hereunder or conditions and provisions herein. This Indenture and all of those covenants, agreements, obligations, conditions and provisions are intended to be, and are, for the sole and exclusive benefit of the parties hereto, the Company, the Registrar, the Paying Agents, the Authenticating Agents and the Holders of the Bonds, as provided herein. SECTION 12.02. Severability. In case any article, section or provision of this Indenture, or any covenant, agreement, obligation, condition, provision, act or action, or part thereof, made, assumed, entered into or taken under this Indenture, or any application thereof, is held to be illegal or invalid for any reason, or is inoperable at any time, that illegality, invalidity or inoperability shall not affect the remainder thereof or any other article, section, provision, covenant, agreement, obligation, condition, provision, act, action, part or application, made, assumed, entered into or taken under this Indenture, all of which shall be construed and enforced at the time as if the illegal, invalid or inoperable portion were not contained therein or herein. No illegality, invalidity or inoperability shall affect any legal, valid and operable article, section, provision, covenant, agreement, obligation, condition, provision, act, action, part or application, all of which shall be deemed to be effective, operative, made, assumed, entered into or taken in the manner and to the full extent permitted by law from time to time. SECTION 12.03. Notices. Except as provided in Section 7.02 hereof, it shall be sufficient service or giving of any notice, request, complaint, demand or other instrument or document, if it is duly mailed by first class mail, postage prepaid, (a) if the notice, request, complaint, demand or other instrument or document is to be served upon or given to the Issuer, the Company or the Trustee as follows: (i) if to the Issuer, at City of Clearwater, Florida, c/o Margaret L. Simmons, CPA, Financial Services Administrator, 100 South Myrtle Avenue, Clearwater, Florida 33756- 5520, with copy to: City of Clearwater, City Attorney, 112 South Osceola Avenue, Clearwater, Florida; 91 (ii) if to the Company, at BEF, Inc., 1601 Jack Street, Suite 200, Fort Myers, Florida 33901, Attention: President; (iii) if to the Trustee, SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida 32801, Attention: Corporate Trust Department; and (iv) if to the original purchaser of the Series 1999 Bonds, Ziegler Securities, a division ofB.C. Ziegler and Company, 111 Second Avenue, N.E., Suite 915, St. Petersburg, Florida, Attention: President. (b) if the notice, request, complaint, demand or other instrument or document is to be served upon or given to the Registrar, any Paying Agent, any Authenticating Agent or any Original Purchaser, to the respective parties at their addresses provided by them in writing to the Trustee, which shall provide those addresses promptly upon request to any party obligated or entitled to serve or give that notice, request, complaint, demand or other instrument or document. Duplicate copies of each notice, request, complaint, demand or other instrument or document given hereunder by the Issuer, the Company or the Trustee shall be given also to the others. By a notice given hereunder, the Issuer, the Trustee and the Company may designate any further or different addresses to which any subsequent notice, request, complaint, demand or other instrument or document shall be sent. By a notice to the Issuer and the Company, the Trustee shall designate the addresses to which notices or copies thereof shall be sent to the Registrar, the Authenticating Agents, the Tender Agent and the Paying Agents. In connection with any notice, request, complaint, demand or other instrument or document hereunder, a certificate of the Trustee, the Issuer, the Company, the Registrar, any Paying Agent, any Authenticating Agent, or the Holders of the Bonds, whichever or whoever mailed that notice, request, complaint, demand or other instrument or document, that the notice, request, complaint, demand or other instrument or document was so mailed shall be conclusive evidence of the proper mailing thereof. Whenever Holders are to be determined for purposes of any notice or mailing as ofa particular date, and that date is a date on which the Trustee is closed in accordance with Section 12.05(a), the applicable date shall be instead the next succeeding business day on which the Trustee is open for business. SECTION 12.04. Suspension of Mail. If because of the suspension of delivery of first class mail or, for any other reason, the Trustee shall be unable to mail by the required class of mail any notice, request, complaint, demand or other instrument or document required to be mailed hereby, the Trustee shall give it in any other manner which shall approximate most effectively the mailing thereof in accordance herewith in the judgment of the Trustee. The giving of that notice, request, complaint, demand or other instrument or document in that manner shall 92 be deemed for all purposes of this Indenture to be in compliance with the requirement for the mailing thereof. Except as provided otherwise herein, the mailing of any notice, request, complaint, demand or other instrument or document shall be deemed to be complete upon deposit thereof in the mail, and the giving thereof by any other means of delivery shall be deemed to be complete upon receipt thereof by the delivery service. SECTION 12.05. Payments Due on Saturdays. Sundays and Holidays. If any date of maturity of the principal of any Bonds, date fixed for redemption of any Bonds, or Interest Payment Date is a Saturday, Sunday or a day on which (a) the Trustee is required, or authorized or not prohibited, by law (including without limitation, executive orders) to close and is closed, payment of principal, redemption premium, if any, and interest need not be made by the Trustee or any Paying Agent on that date, but that payment may be made instead on the next succeeding business day on which the Trustee and the Paying Agent are open for business with the same force and effect as if that payment were made on the date of maturity, the date fixed for redemption, or the Interest Payment Date, and no interest shall accrue for the period after that earlier date; or (b) a Paying Agent is required, or authorized or not prohibited, by law (including without limitation, executive orders) to close and is closed, payment of principal, redemption premium, if any, and interest need not be made by that Paying Agent on that date, but that payment may be made instead on the next succeeding business day on which that Paying Agent is open for business with the same force and effect as if that payment were made on the date of maturity, the date fixed for redemption, or the Interest Payment Date, and no interest shall accrue for the period after that earlier date. SECTION 12.06. Instruments of Holders. Any writing, including without limitation, any consent, request, direction, approval, objection or other instrument or document, required under this Indenture to be executed by any Holder may be in any number of concurrent writings of similar tenor and may be executed by that Holder individually or by an agent or attorney appointed in writing. Proof of (i) the execution of any writing, including without limitation, any consent, request, direction, approval, objection or other instrument or document, (ii) the execution of any writing appointing any agent or attorney, and (iii) the Ownership of Bonds, shall be sufficient for any of the purposes of this Indenture, if made in the manner provided under this Section or under Article XII, and if so made, shall be conclusive in favor of the Trustee with regard to any action taken thereunder. Proof under this Section is as follows: (a) the fact and date of the execution by any individual of any writing may be proved (i) by the certificate of any notary public or other officer in any jurisdiction, who has power by law to take acknowledgments within that jurisdiction, that the individual signing the writing acknowledged that execution before that officer, 93 (ii) by affidavit of any witness to that execution, or (iii) by a guarantee of the execution by any bank; and (b) Registrar. the fact of Ownership of Bonds shall be proved by the Register maintained by the Nothing contained herein shall be construed to limit the Trustee to the foregoing proof, and the Trustee may accept any other evidence of the matters stated therein which it deems to be sufficient. Except as provided otherwise herein, any writing, including without limitation, any consent, request, direction, approval, objection or other instrument or document, of the Holder of any Bond shall bind every future Holder of the same Bond, with respect to anything done or suffered to be done by the Issuer, the Trustee, the Registrar or any Paying Agent or Authenticating Agent pursuant to that writing. SECTION 12.07. Company to be Bound: Company's Actions. The Issuer will require each Person having charge of the operation of the Project to covenant and agree in writing to be bound by the provisions of this Indenture applicable to the Company, including without limitation, the provisions of the Agreement incorporated herein by reference, except as modified with the written consent of the Trustee. The Issuer shall include in any lease or other instrument or document, or in appropriate rules or regulations adopted by the Issuer, regarding the operation of the Mortgaged Property sufficient requirements which make those provisions controlling and binding upon each Person having charge of the operation of the Mortgaged Property. The Trustee covenants and agrees that, for purposes of compliance with this Indenture, if the Company observes or performs any of the covenants, agreements or obligations required to be observed or performed by the Issuer under this Indenture, that observance or performance will satisfy the requirements of this Indenture. SECTION 12.08. Execution Counteq>arts. This Indenture may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same document. It shall not be necessary in proving this Indenture to produce or account for more than one of those counterparts. SECTION 12.09. Survival of Representation and Warranties. All representations and warranties of the Issuer and the Trustee herein shall survive the execution and delivery hereof and the issuance and delivery of the Bonds. SECTION 12.10. permitted by law: Validity of Assignments and Security Interest. To the extent (a) The Revenues and the funds and accounts created hereunder are subject to the assignments made herein and the security interests granted herein without any further act. 94 (b) The assignments and security interest are valid and binding against all parties having claims of any kind against the Issuer, without regard to whether those parties have notice thereof. (c) The assignments are absolute and unconditional present assignments and the security interest creates a perfected security interest for all purposes, without the necessity for separation or delivery of the Revenues or of the funds and accounts created hereunder, and the filing, recording or registration hereof or of any resolution, legislation, instrument or document by which the assignments and security interest are created, granted or made or the filing, recording or registration of any certificate, statement or other instrument or document with respect to the assignment and security interests. (d) The assignments and the security interest are effective and the moneys, including without limitation, investments, therefrom, thereof and therein may be applied to the purposes for which the assignments and grant are made without the necessity of any further act of appropriation. SECTION 12.11. Extent of Covenants: No Personal Liability. All covenants, stipulations, obligations and agreements of the Issuer contained in this Indenture are and shall be deemed to be covenants, stipulations, obligations and agreements of the Issuer to the full extent authorized by the Act and permitted by the Constitution and laws of the State. No covenant, stipulation, obligation or agreement of the Issuer contained in this Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future member, officer, agent or employee of the Issuer in other than that person's official capacity. Neither the members of the Issuer nor any official executing the Bonds, this Indenture, the Agreement or any amendment or supplement hereto or thereto shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance or execution hereof or thereof. SECTION 12.12. Binding Effect. This Indenture shall inure to the benefit of and shall be binding upon the Issuer and the Trustee and their respective successors and assigns, subject, however, to the limitations contained herein. SECTION 12.13. Captions. The captions and headings in this Indenture are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections hereof. SECTION 12.14. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State. 95 IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed and delivered for it and in its name and on its behalf by its duly authorized officers; and in token of its acceptance of the trusts created hereunder, the Trustee has caused this Indenture to be executed and delivered for it and in its name and on its behalf by its duly authorized officers; all as of the day and year first above written. (SEAL) CITY OF CLEARWATER, FLORIDA By: Mayor-Commissioner By: [Assistant] City Manager ATTEST: Clerk Approved as to form and legal sufficiency City Attorney SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Trustee By: Vice- President 96 Acceptance of Appointment as Registrar, Paying Agent, Authenticating Agent and Tender Agent for the Series 1999 Bonds The undersigned, by its execution hereof, in its name and on its behalf by its duly authorized officers, does hereby accept the appointment as Registrar, Paying Agent, Authenticating Agent and Tender Agent for the Series 1999 Bonds and hereby assumes all the rights, powers and duties of such Registrar, Paying Agent, Authenticating Agent and Tender Agent under the Indenture. For all purposes of Section 12.03 of the Indenture, the following shall be the notice address for the undersigned until further written notification to the Issuer, the Trustee, the Registrar and the Company: Attention: Corporate Trust Department SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Trustee By: Title: 97 EXHIBIT A [FORM OF SERIES 1999 [AHC] BOND] THIS BOND MAY BE TRANSFERRED ONLY TO AN "ACCREDITED INVESTOR", AS SUCH TERM IS DEFINED IN REGULATION D, OR ANY SUCCESSOR PROVISION THERETO, OF THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, AND OTHERWISE IN ACCORDANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS. $ NO. R- UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF CLEARWATER, FLORIDA [TAXABLE] REVENUE BOND, SERIES 1999[AHC] (BEF, INC. PROJECT) MATURITY DATE: CUSIP: DA TED DATE: INTEREST RATE: Registered Holder: Principal Amount: DOLLARS The City of Clearwater, Florida (the "Issuer"), a municipal corporation duly created under the laws of the State of Florida, for value received, promises to pay to the Registered Holder (named above) or registered assigns (the "Registered Holder"), but solely from the sources and in the manner referred to herein, the Principal Amount (stated above) on the Maturity Date (stated above), unless this Bond is called for earlier redemption, and to pay, from those sources, interest thereon as hereinafter provided until the principal amount is paid or duly provided for. This Bond will bear interest at the Interest Rate (stated above) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the Dated Date (stated above). Interest shall be computed on the basis of a 360-day year of twelve 30-day months and shall be payable semiannually on May 15 and November 15 of each year ("Interest Payment Dates") commencing on November 15, 1999 until the principal of this Bond shall have been paid or provided for. A-I The principal or redemption price of this Bond shall be payable upon presentation and surrender hereof at the designated corporate trust office of the Paying Agent, initially SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 (the "Paying Agent"). Interest on this Bond is payable on each Interest Payment Date by check or draft mailed by the Paying Agent to the person in whose name this Bond (or one or more predecessor bonds) is registered (the "Holder") on the Register for this issue maintained by the Registrar, initially SunTrust Bank, Central Florida, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801, at whose address appearing therein at the close of business on the 15th day (whether or not a business day) of the calendar month next preceding that Interest Payment Date (the "Regular Record Date"). Any interest installment which is not timely paid or duly provided for shall cease to be payable to the Registered Holder hereof as of the Regular Record Date, and shall be payable together with interest on such past due interest at the Interest Rate (stated above) to the date established by the Trustee for the payment thereof (a "Special Interest Payment Date") to the person in whose name this Bond (or one or more predecessor bonds) is registered on the Register at the close of business on a special record date (the "Special Record Date") to be fixed by the Trustee, initially SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 (the "Trustee"). Notice of the Special Record Date and Special Interest Payment Date shall be given to Holders not less than ten (10) days prior to such Special Record Date. If this Bond is redeemed on any date which is not an interest payment date, accrued interest shall be paid when the redemption price is paid. If this Bond is redeemed on any Interest Payment Date, the interest due shall be paid in the normal manner described below. The principal of, premium, if any, and interest (collectively called "Bond Service Charges") on this Bond are payable in lawful money of the United States of America, without deduction for the services of the Paying Agent. This Bond is one of a duly authorized issue of [Taxable] Revenue Bonds, Series 1999[A][C] (BEF, Inc. Project) (the "Series 1999[A][C] Bonds") of the Issuer, issued under the Trust Indenture, dated as of July 1, 1999 (the "Indenture"), between the Issuer and the Trustee, in the aggregate principal amount of $ , the proceeds of which will be used to make a loan (the "Loan") to BEF, Inc., a Florida not-for-profit corporation (the "Company"), to assist in the financing of costs of (1) acquiring, constructing, installing, equipping and improving and renovating its assisted living facilities and skilled nursing Project (collectively, the" Project"), (2) funding a debt service reserve fund and (3) paying certain costs and expenses relating to the issuance of the Series 1999[A][C] Bonds, as more particularly described in the Loan and Security Agreement between the Issuer and the Company dated of even date with the Indenture (the "Agreement"). The Bonds are issued pursuant to the laws of the State of Florida, particularly Chapter 154, Chapter 159, Part II and Chapter 166, Florida Statutes, as amended, and other applicable provisions of law, and a resolution duly adopted by the Issuer on March 8, 1999, as supplemented (collectively, the "Resolution"). A-2 The Series 1999[A][C] Bonds, together with the Issuer's $ aggregate principal amount of [Taxable] Revenue Bonds Series 1999[A][C](BEF, Inc. Project)(the"Series 1999[A][C] Bonds") and $ aggregate principal amount of Revenue Bonds, Series 1999B (BEF, Inc. Project) Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the "Series 1999B Bonds") being issued simultaneously with the issuance of the Series 1999[A][C] Bonds and any Additional Bonds which may be issued on a parity therewith under the Indenture (collectively, the "Bonds"), are limited obligations of the Issuer, issued under and secured and entitled equally and ratably to the protection given by the Indenture. The Issuer shall not be obligated to pay the Bond Service Charges on this Bond except from amounts payable under the Agreement in repayment of the Loan, moneys and investments in the Project Fund (being any unexpended proceeds of the Bonds), in the Bond Fund and in the Debt Service Reserve Fund, and investment income thereon and the Company's Revenues, as more particularly defined in the Indenture, pledged therefor (collectively, the "Trust Estate"), and neither the faith and credit nor the taxing power of the Issuer, nor the State of Florida or any political subdivision thereof is pledged to the payment of the Bond Service Charges on this Bond. The Bond Service Charges on the Bonds are payable solely from the Trust Estate and are an obligation of the Issuer only to the extent of the Trust Estate. Pursuant to the Agreement, the Company has executed and delivered to the Trustee a Series 1999 Note (the "Series 1999 Note"), dated as of [the date of issue] hereof in the principal amount of $ . The Company is required by the Agreement and the Series 1999 Note to make payments to the Trustee in the amounts and at the times necessary to pay the Bond Service Charges on the Series 1999 Bonds. In the Indenture, the Issuer has assigned to the Trustee, to provide for the payment of the Bond Service Charges on the Bonds, the Issuer's right, title and interest in and to the Agreement, except for "Unassigned Rights" as defined in the Agreement. The Company's obligations under the Agreement and Series 1999 Note are secured by the Mortgage and Security Agreement dated as of July 1, 1999, from the Company, as mortgagor, to the Issuer, as mortgagee, which has been assigned by the Issuer to the Trustee pursuant to the Assignment of Mortgage dated as of July 1, 1999. If additional bonds are issued as permitted by the Indenture, to make additional loans to the Company, the Company will execute additional promissory notes which will also be secured by the Mortgage. Any such additional bonds will be secured by the Revenues on a parity with the Series 1999A Bonds, the Series 1999B Bonds and Series 1999C Bonds. Reference is made to the Indenture, the Agreement, the Series 1999 Note and the Mortgage for a more complete description of the Project, the provisions, among others, with respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the Issuer, the Trustee and the Holders of the Bonds, the terms and conditions upon which the Bonds are issued and secured and the conditions upon which Additional Bonds may be issued. Each registered owner assents, by its acceptance hereof, to all of the provisions of the Indenture, the Agreement, the Series 1999 Note and the Mortgage, copies of which are on file in the designated corporate trust office of the Trustee. A-3 The Bonds are issuable only as fully registered bonds in the denominations of $100,000 and any $5,000 multiple thereof ("Authorized Denominations"). Bonds are exchangeable for fully registered Bonds of Authorized Denominations in equal aggregate principal amounts and the same maturity at the office of the Registrar, but only in the manner and subject to the limitations provided in the Indenture. This Bond is transferable on the Register or at the office of the Registrar by the Registered Holder in person or by his attorney, duly authorized in writing, upon presentation and surrender hereof to the Registrar in the manner and subject to the limitations provided in the Indenture. The Registrar is not required to transfer or exchange (i) any Bond during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Bonds and ending at the close of business on the day of such mailing, or (ii) any Bonds so selected for redemption in whole or in part within 90 days following such mailing. The Series 1999[A][C] Bonds are subject to redemption prior to their stated maturity pursuant to notice by mail, postage prepaid, sent to the Holders thereof not more than sixty (60) days or fewer than thirty (30) days prior to the redemption date, as follows: Extraordinary Redemption Without Premium. (a) The Series 1999[A][C] Bonds are subject to extraordinary redemption at the direction of the Company on behalf of the Issuer, in part on any Interest Payment Date in Authorized Denominations from the proceeds of insurance or condemnation payments received in excess of $250,000 as a result of partial damage or destruction or taking under the power of eminent domain of a portion of the Mortgaged Property, in either case at a redemption price of 100 percent of the principal amount redeemed plus interest accrued to the redemption date. (b) The Company shall be obligated to cause the Series 1999B Bonds to be redeemed, in full, within thirty (30) days following the closing of the sale of the Bluff Building portion of the Project, at a redemption price of 100 percent of the principal amount thereof plus interest accrued to the redemption date. Optional Redemption. The Series 1999[A][C] Bonds maturing on or prior to November 15, 20_, are not subject to redemption prior to maturity at the option of the Company. The Series 1999[A][C] Bonds maturing on or after November 15, 20_, are subject to redemption prior to their maturity, at the option of the Issuer at the written request of the Company, on or after November 15, 20_, in whole at any time or in part, in order of maturities as shall be determined by the Company and by lot within a maturity, on any Interest Payment Date, at the redemption prices (expressed as percentages of principal amount of Bonds to be redeemed) set forth in the table below, plus accrued interest thereon to the date fixed for redemption: A-4 Period of Redemption (All dates inclusive) Redemption Prices November 15, 20_ to November 14, 20_ November 15, 20_ to November 14, 20_ November 15, 20_ and thereafter 102% 101 % 100% Mandatory Redemption. The Series 1999[A][C] Bonds maturing November 15, _ are subject to mandatory redemption prior to maturity in part, by lot, on November 15th of each year, beginning November 15, , at a redemption price equal to 100% of the principal amount of the Series 1999[A][C] Bonds being redeemed plus accrued interest to the redemption date, without premium, in the following principal amounts and in the following years: Year Amount $ * * Maturity If less than all Series 1999[A][C] Bonds are to be redeemed in full at one time, then, for purposes of partial redemption, each $100,000 of principal shall be deemed to be a separate Series 1999[A][C]Bond having a $100,000 principal amount. If Series 1999[A][C] Bonds or portions thereof are called for redemption and if on the redemption date moneys for the redemption thereof are held by the Trustee or the Paying Agent, then from and after such redemption date those Series 1999[A][C] Bonds or portions thereof to be redeemed shall cease to bear interest, and shall cease to be secured by, and shall not be deemed to be outstanding under, the Indenture. The Indenture permits certain amendments or supplements to the Indenture, the Agreement, the Series 1999 Note and the Mortgage to be made without the consent of or notice to the Holders, and other amendments or supplements thereto (with certain exceptions, as provided in the Indenture) to be made with the consent of the Holders of not less than a majority in aggregate principal amount of the Bonds then outstanding. The Holder of each Series 1999[A][C] Bond has only those remedies provided in the Indenture. A-5 The Series 1999[A][C] Bonds shall not constitute the personal obligation, either jointly or severally, of the members of the governing body of the Issuer or of any officer of the Issuer. This Series 1999[A][C] Bond shall not be entitled to any security or benefit under the Indenture or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been duly signed. It is certified and recited that there have been performed and have happened in regular and due form, as required by law, all acts and conditions and things necessary to be done by the Issuer or to have happened (i) precedent to and in the issuing of the Series 1999[A][C] Bonds in order to make them legal, valid and binding limited obligations of the Issuer, and (ii) precedent to and in the execution and delivery of the Indenture and the Agreement; that payment in full for the Series 1999[A][C] Bonds has been received; and that the Series 1999[A][C] Bonds do not exceed or violate any constitutional or statutory limitation. IN WITNESS OF THE ABOVE, the City of Clearwater, Florida has issued this Series 1999[A][C] Bond and has caused the same to be executed in its name by its Mayor- Commissioner and its City Manager and attested by its City Clerk and approved as to form and legal sufficiency by its City Attorney either manually or with their facsimile signatures, and its corporate seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the dated date shown above. CITY OF CLEARWATER, FLORIDA By: Mayor-Commissioner (SEAL) By: City Manager ATTEST: By: City Clerk Approved as to form and legal sufficiency By: City Attorney A-6 CERTIFICA TE OF AUTHENTIC A TION This Bond is one of the Bonds described in the within-mentioned Indenture. Date of Authentication: SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Trustee By: Authorized Signer Registrable at: Payable by: (FORM OF ASSIGNMENT) The following abbreviations, when used in the inscription on the face of the within Bonds, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM as tenants in common TEN ENT as tenants by the entireties JT TEN as joint tenants with right of survivorship and not as tenants in common UNIF TRANSFERS MIN ACT - Custodian (Cust) (Minor) under Uniform Transfers to Minors Act (State) Additional abbreviations may also be used though not in list above. A-7 ASSIGNMENT For value received, the undersigned sells, assigns and transfers unto the within Bond and irrevocably constitutes and appoints attorney to transfer that Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or any change whatever. A-8 [FORM OF SERIES 1999B BOND] THIS BOND MAY BE TRANSFERRED ONLY TO AN "ACCREDITED INVESTOR", AS SUCH TERM IS DEFINED IN REGULATION D, OR ANY SUCCESSOR PROVISION THERETO, OF THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, AND OTHERWISE IN ACCORDANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS. NO. R- $ UNITED STATES OF Al\fERICA STATE OF FLORIDA CITY OF CLEARWATER, FLORIDA TAXABLE REVENUE BOND, SERIES 1999B (BEF, INC. PROJECT) EXTENDABLE RATE ADJUSTABLE SECURITIEssM (EXTRASSM) MATURITY DATE: ORIGINAL ISSUE DATED DATE: INITIAL INTEREST RATE: CUSIP: Registered Holder: Principal Amount: DOLLARS The City of Clearwater, Florida (the "Issuer"), a municipal corporation duly organized and existing under the laws of the State of Florida, for value received, promises to pay to the Registered Holder (named above) or registered assigns (the "Registered Holder"), but solely from the sources and in the manner referred to herein, the Principal Amount (stated above) on the Maturity Date (stated above), unless this Series 1999B Bond is called for earlier redemption, and to pay, from those sources, interest thereon as hereinafter provided until the principal amount is paid or duly provided for. This Series 1999B Bond will bear interest at the Interest Rate (stated above) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the Dated Date (stated above). Interest shall be computed on the basis of a 360-day year of twelve 3D-day months and shall be payable semiannually on May 15 and November 15 of each year commencing on November 15, 1999 ("Interest Payment Dates") until the principal of this Series 1999B Bond shall have been paid or provided for. A-I The principal or redemption price of this Series 1999B Bonds shall be payable upon presentation and surrender hereof at the designated corporate trust office of the Paying Agent, initially SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 ("Paying Agent"). Interest on this Series 1999B Bond is payable on each Interest Payment Date by check or draft mailed by the Paying Agent to the person in whose name this Series 1999B Bond (or one or more predecessor Series 1999B Bonds) is registered (the "Holder") on the Register for this issue maintained by the Registrar, initially SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 at whose address appearing therein at the close of business on the 15th day (whether or not a business day) of the calendar month next preceding that Interest Payment Date (the "Regular Record Date"). Any interest installment which is not timely paid or duly provided for shall cease to be payable to the registered owner hereof as of the Regular Record Date, and shall be payable together with interest on such past due interest at the Interest Rate (stated above) to the date established by the Trustee for the payment thereof (a "Special Interest Payment Date") to the person in whose name this Bond (or one or more predecessor bonds) is registered on the Register at the close of business on a special record date (the "Special Record Date") to be fixed by the Trustee, initially SunTrust Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 (the "Trustee"). Notice of the Special Record Date and Special Interest Payment Date shall be given to Holders not less than ten (10) days prior to such Special Record Date. If this Series 1999B Bond is redeemed on any date which is not an Interest Payment Date, accrued interest shall be paid when the redemption price is paid. If this Series 1999B Bond is redeemed on any Interest Payment Date, the interest due shall be paid in the normal manner described below. The principal of, premium, if any, and interest (collectively called "Bond Service Charges") on this Series 1999B Bond are payable in lawful money of the United States of America, without deduction for the services of the Paying Agent. This Series 1999B Bond is one of a duly authorized issue of Revenue Bonds, Series 1999B Bond (BEF, Inc. Project) Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the "Series 1999B Bonds") of the Issuer, issued under the Trust Indenture, dated as of July 1, 1999 (the "Indenture"), between the Issuer and the Trustee, in the aggregate principal amount of $_ , the proceeds of which will be used to make a loan (the "Loan") to BEF, Inc., a Florida not-for-profit corporation (the "Company"), to assist in the financing of costs of (1) acquiring, constructing, installing, equipping, improving and renovating its assisted living facilities and a skilled nursing facility (collectively, the "Project"),(2) funding a Debt Service Reserve Fund, and (3) paying certain costs and expenses relating to the issuance of the Series 1999B Bonds, as more particularly described in the Loan and Security Agreement between the Issuer and the Company dated of even date with the Indenture (the "Agreement"). The Series 1999B Bonds are issued pursuant to the laws of the State of Florida, particularly Chapter 154, Chapter 159, Part II, and Chapter 166, Florida Statutes, as amended, and other applicable provisions of law, and a resolution duly adopted by the Issuer on March 8, 1999, as supplemented (collectively, the "Resolution"). A-2 The Bonds, together with the Issuer's $ aggregate principal amount of Housing Revenue Bonds, Series 1999A (BEF, Inc. Project) (the "Series 1999A Bonds") and the Issuer's $ aggregate principal amount of Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project)(the "Series 1999C Bonds") being issued simultaneously with the issuance of the Series 1999B Bonds and any Additional Bonds which may be issued on a parity therewith under the Indenture (collectively, the "Bonds"), are limited obligations of the Issuer, issued under and secured and entitled equally and ratably to the protection given by the Indenture. The Issuer shall not be obligated to pay the Bond Service Charges on this Bond except from amounts payable under the Agreement in repayment of the Loan, moneys and investments in the Project Fund (being any unexpended proceeds of the Bonds), in the Bond Fund and in the Debt Service Reserve Fund, and investment income thereon and the Company's Revenues, as more particularly defined in the Indenture, pledged therefor (collectively, the "Trust Estate"), and neither the faith and credit nor the taxing power of the Issuer, nor the State of Florida or any political subdivision thereof is pledged to the payment of the Bond Service Charges on this Bond. The Bond Service Charges on the Series 1999B Bonds are payable solely from the Trust Estate and are an obligation of the Issuer only to the extent of the Trust Estate. Pursuant to the Agreement, the Company has executed and delivered to the Trustee a Series 1999 Note (the "Series 1999 Note"), dated as of the date of issue hereof in the principal amount of $ . The Company is required by the Agreement and the Series 1999 Note to make payments to the Trustee in the amounts and at the times necessary to pay the Bond Service Charges on the Series 1999B Bonds. In the Indenture, the Issuer has assigned to the Trustee, to provide for the payment of the Bond Service Charges on the Series 1999B Bonds, the Issuer's right, title and interest in and to the Agreement, except for "Unassigned Rights" as defined in the Agreement. The Company I s obligations under the Agreement and Series 1999 Note are secured by the Mortgage and Security Agreement dated as of July 1, 1999, from the Company, as mortgagor, to the Issuer, as mortgagee, which has been assigned by the Issuer to the Trustee pursuant to the Assignment of Mortgage dated as of July 1, 1999, and the Company has issued its Series 1999 Note securing the payment of the Series 1999A, the Series 1999B Bonds and the Series 1999C Bonds. If additional bonds are issued as permitted by the Indenture, to make additional loans to the Company, the Company will execute additional promissory notes which will also be secured by the Mortgage. Any such additional bonds will be secured by the Revenues on a parity with the Series 1999A Bonds, the Series 1999B Bonds and the Series 1999C Bonds. Reference is made to the Indenture, the Agreement, the Series 1999 Note and the Mortgage for a more complete description of the Project, the provisions, among others, with respect to the nature and extent of the security for the Series 1999B Bonds, the rights, duties and obligations of the Issuer, the Trustee and the Holders of the Series 1999B Bonds, the terms and conditions upon which the Series 1999B Bonds are issued and secured and the conditions upon which Additional Bonds may be issued. Each registered owner assents, by its acceptance hereof, to all of the provisions of the Indenture, the Agreement, the Series 1999 Note and the Mortgage, copies of which are on file in the designated corporate trust office of the Trustee. A-3 The Series 1999B Bonds are issuable only as fully registered bonds in the denominations of $100,000 and any integral multiple of $5,000 in excess thereof ("Authorized Denominations"). Series 1999B Bonds are exchangeable for fully registered Bonds of Authorized Denominations in equal aggregate principal amounts and the same maturity at the office of the Registrar, but only in the manner and subject to the limitations provided in the Indenture. This Series 1999B Bond is transferable on the Register at the office of the Registrar by the Registered Holder in person or by his attorney, duly authorized in writing, upon presentation and surrender hereof to the Registrar in the manner and subject to the limitations provided in the Indenture. The Registrar is not required to transfer or exchange (i) any Series 1999B Bond during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Series 1999B Bonds and ending at the close of business on the day of such mailing, or (ii) any Series 1999B Bonds so selected for redemption in whole or in part within 90 days following such mailing. The Series 1999B Bonds will bear interest from , 1999 to and including [November 15, 20 ] (the "Initial Rate Change Date"), at the rates set forth and established in accordance with Section 2.03(a) of the Indenture. The interest rates (the" Adjustable Rates") on the Series 1999B Bonds from and after the Initial Rate Change Date will be established by the Remarketing Agent under the Remarketing Agreement, between the Remarketing Agent and the Company, in the manner described therein. The Adjusted Rate applicable to the Series 1999B Bonds shall be the rate (the "Reset Rate") determined by the Remarketing Agent on a date not less than 65 days prior to the Initial Rate Change Date and any rate change date selected by the Company pursuant to Section 2.05(b) of the Indenture (the "Rate Change Date"). The Reset Rate applicable to the Series 1999B Bonds shall be the lowest rate that would, in the judgment of the Remarketing Agent (having due regard to the prevailing market conditions), be necessary to enable the Series 1999B Bonds to be sold at par on the Rate Change Date, provided that the Reset Rate shall not exceed 15% per annum (the "Maximum Rate"). Upon such determination of the Reset Rate, the Remarketing Agent shall promptly notify the Trustee and the Company of the Reset Rate. Not less than 60 days prior to the Rate Change Date, the Trustee shall promptly notify each Holder of Series 1999B Bonds in writing by first class mail, postage prepaid, of the Reset Rate that will be applicable to such Series 1999B Bonds on and after the Rate Change Date and provide instructions for the procedure to be followed by any Holder wishing to tender Series 1999B Bonds for purchase as hereinafter provided. If for any reason the Reset Rate for the Series 1999B Bonds cannot be determined by the Remarketing Agent in the manner specified above, the Reset Rate will be equal to The Bond Buyer Revenue Bond Index (as published in The Bond Buyer or any successor publication thereto) for the most recent period for which such information is available prior to the giving of notice of the Reset Rate by the Trustee to the Holders of the Series 1999B Bonds, or if such index or its equivalent is no longer published, the interest rate currently in effect, provided that such rate may not exceed the Maximum Rate. A-4 In addition, the interest rate on the Series 1999B Bonds will not be reset on any Rate Change Date unless (a) at least 75 days prior to such Rate Change Date and (b) on such Rate Change Date, the Company shall cause to be delivered, at its expense, to the Trustee and the Remarketing Agent an Opinion of Bond Counsel, to the effect that such reset in interest rate and change in the Rate Period will not have an adverse effect on any exemption from Federal income taxation to which the interest on the Series 1999B Bonds would otherwise be entitled. The Company shall use its best efforts to cause such Opinion of Bond Counsel to be delivered to the Trustee by such dates. In the event such Opinion of Bond Counsel is not delivered, the interest rate on the Series 1999B Bonds currently in effect shall remain in effect as the Reset Rate for the next rate period, which shall be equal in duration to the preceding rate period but shall not in any event extend beyond the date of final maturity of the Series 1999B Bonds. The Series 1999B Bonds are subject to redemption prior to their stated maturity pursuant to notice by mail, postage prepaid, sent to the Holders thereof not more than sixty (60) days or fewer than thirty (30) days prior to the redemption date, as follows: Extraordinary Redemption Without Premium. (a) The Series 1999B Bonds are subject to extraordinary optional redemption at the direction of the Company on behalf of the Issuer, in part on any Interest Payment Date in Authorized Denominations from the proceeds of insurance or condemnation payments received as a result of partial damage or destruction or taking under the power of eminent domain of a portion of the Mortgaged Property in excess of $250,000, in either case at a redemption price of 100 percent of the principal amount redeemed plus interest accrued to the redemption date. Optional Redemption. The Series 1999B Bonds may be redeemed in whole or in part on any date occurring within the redemption periods, as set forth below, by the Issuer upon direction of the Company. The redemption price for any such redemption shall be at a redemption price equal to 100% of the principal amount of the Series 1999B Bonds or portion thereof so redeemed on the applicable redemption date, plus accrued interest to the redemption date. (i) During the period between the issuance of the Series 1999B Bonds and the Initial Rate Change Date, the Series 1999B Bonds are subject to optional redemption on or after 15,20_ (ii) During any Rate Period of three years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 18-month anniversary of the first day for such Rate Period. (iii) During any Rate Period of five years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 24-month anniversary of the first day of such Rate Period. A-5 (iv) During any Rate Period of seven years in length, the Series 1999B Bonds are subject to optional redemption commencing on the 30-month anniversary of the first day of such Rate Period. (v) During any Rate Period of ten or more years in length, the Series 1999B Bonds are subject to optional redemption commencing on the tifth anniversary of the first day of such Rate Period. The Series 1999B Bonds tendered for purchase on any Rate Change Date but not so purchased shall be given priority for redemption on each succeeding optional or extraordinary redemption date until redeemed prior to the optional or extraordinary redemption of any other Series 1999B Bonds. Series 1999B Bonds so given priority shall be selected by the Trustee, by lot or in such other equitable manner as the Trustee shall deem appropriate, in the event of insufficient funds to redeem all such Series 1999BBonds on any particular redemption date. Mandatory Sinkin2 Fund Redemption. The Series 1999B Bonds are subject to mandatory redemption prior to maturity in part, by lot (except that Series 1999B Bonds that have been tendered for purchase on any Optional Tender Date but were not so purchased shall be redeemed prior to the redemption of any other Series 1999B Bonds), on November 15th of each year, beginning November 15, 20 , at a redemption price equal to one hundred percent (100%) of the principal amount of the Series 1999B Bonds being redeemed plus accrued interest to the redemption date, without premium, in the following principal amounts and in the following years: Year Amount $ * *Maturity If less than all Series 1999B Bonds are to be redeemed in full at one time, then, for purposes of partial redemption, each $100,000 of principal shall be deemed to be a separate Series 1999B Bond having a $100,000 principal amount. If Series 1999B Bonds or portions thereof are called for redemption and if on the redemption date moneys for the redemption thereof are held by the Trustee or the Paying Agent, then from and after such redemption date those Series 1999B Bonds or portions thereof to be redeemed shall cease to bear interest, and shall cease to be secured by, and shall not be deemed to be outstanding under, the Indenture. [TENDER OPTION - TO COME] A-6 The Indenture permits certain amendments or supplements to the Indenture, the Agreement, the Series 1999 Note and the Mortgage to be made without the consent of or notice to the Holders, and other amendments or supplements thereto (with certain exceptions, as provided in the Indenture) to be made with the consent of the Holders of not less than a majority in aggregate principal amount of the Series 1999B Bonds then outstanding. The Holder of each Series 1999B Bond has only those remedies provided in the Indenture. The Series 1999B Bonds shall not constitute the personal obligation, either jointly or severally, of the members of the governing body of the Issuer or of any officer of the Issuer. This Series 1999B Bond shall not be entitled to any security or benefit under the Indenture or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been duly signed. It is certified and recited that there have been performed and have happened in regular and due form, as required by law, all acts and conditions and things necessary to be done by the Issuer or to have happened (i) precedent to and in the issuing of the Series 1999B Bonds in order to make them legal, valid and binding limited obligations of the Issuer, and (ii) precedent to and in the execution and delivery of the Indenture and the Agreement; that payment in full for the Series 1999B Bonds has been received; and that the Series 1999B Bonds do not exceed or violate any constitutional or statutory limitation. A-7 IN WITNESS OF THE ABOVE, the City of Clearwater, Florida has issued this Series 1999B Bond and has caused the same to be executed in its name by its Chairman and attested by its Secretary, either manually or with their facsimile signatures, and its corporate seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the dated date shown above. CITY OF CLEARWATER, FLORIDA By: Mayor-Commissioner (SEAL) By: City Manager ATTEST: By: City Clerk Approved as to form and legal sufficiency By: City Attorney A-8 CERTIFICA TE OF AUTHENTIC A TION This Series 1999B Bond is one of the Series 1999B Bonds described in the within- mentioned Indenture. Date of Authentication: SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Trustee By: Authorized Signer Registrable at: Payable by: (FORM OF ASSIGNMENT) The following abbreviations, when used in the inscription on the face of the within Series 1999B Bonds, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM as tenants in common TEN ENT as tenants by the entireties JT TEN as joint tenants with right of survivorship and not as tenants in common UNIF TRANSFERS MIN ACT - Custodian (Cust) (Minor) under Uniform Transfers to Minors Act (State) Additional abbreviations may also be used though not in list above. A-9 ASSIGNMENT For value received, the undersigned sells, assigns and transfers unto the within Series 1999B Bond and irrevocably constitutes and appoints attorney to transfer that Series 1999B Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Series 1999B Bond in every particular, without alteration or any change whatever. A-lO EXHIBIT B FORM OF INVESTOR LETTER City Commission City of Clearwater Clearwater, Florida SunTrust Bank, Central Florida, National Association Orlando, Florida, 32801 Ladies and Gentlemen: This letter is being executed and delivered by the undersigned as purchaser (the "Purchaser") to the City of Clearwater, Florida (the "Issuer"), and SunTrust Bank, Central Florida, National Association, as trustee, so that the Issuer will enter into a Trust Indenture (the "Indenture"), dated as of July 1, 1999 between the Issuer and SunTrust Bank, Central Florida, National Association, a national banking association, as trustee (the "Trustee") and other related agreements and will issue, sell and deliver its Revenue Bonds, Series 1999 (BEF, Inc. Project) (the "Bonds") to the Purchaser to finance the acquisition and renovation of existing adult assisted living and skilled nursing home facilities (the "Project") owned by BEF, Inc. (the "Company"). Terms defined in the Indenture are used in this letter with the meanings assigned to them in the Indenture. The undersigned hereby represents, warrants and agrees to and with the Issuer that: 1. The Purchaser is an accredited investor as such term is defined in the Securities Act of 1933 and Regulation D issued pursuant thereto, a principal part of whose business consists of buying securities such as the Bonds and which is a bank, savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit-sharing trust or other financial institution or institutional buyer or a broker dealer. 2. The Purchaser has received copies of the Indenture, the Loan and Security Agreement, the Mortgage and Security Agreement and certain of the other documents or instruments being delivered in connection with the issuance of the Bonds, and said documents are in form and substance satisfactory to the Purchaser and its counsel. The Purchaser has received and reviewed a copy of the [Official Statement] from the Underwriter. B-1 3. The Purchaser has conducted its own investigations, to the extent it deems satisfactory or sufficient into matters relating to the business, properties, management, and financial position and results of operations of the Company and the Project. 4. The Purchaser is aware that the operation of the Project involves certain economic variables that could effect the security of its investment in the Bonds. 5. The Purchaser acknowledges that the Issuer is acting merely as a conduit issuer on behalf of the Company, and that no revenue or assets of the Issuer are or can be used to pay the principal of, premium, if any, and interest 0 the Bonds except for payments to be made by the Company under the Notes and the Loan and Security Agreement, which have been assigned to the Trustee. 6. The Purchaser understands that the Bonds are not registered under the Securities Act of 1933, as amended. The Purchaser is purchasing the Bonds for its own account for invest- ment and not with a view to, and with no present intention of, distributing or reselling the Bonds or any portion thereof, providing that the Purchaser reserves the right to transfer any or all of the Bonds purchased or any interest therein at any time and in our sole discretion and, in the event that we so transfer Bonds, we assume the responsibility for complying with any applicable federal and state securities laws and the terms of the Indenture. The Purchaser understands and agrees that the foregoing representations will be relied upon by the Issuer in the issuance of the Bonds and by Bond Counsel to the Issuer [and counsel to the Underwriter] in rendering opinions on the exclusion of the Bonds from the registration requirements of the Securities Act of 1933, as amended, 15 U.s.e. Section 77a. Very truly yours, as Purchaser By: Name: Title: B-2