EXHIBIT E - FORM OF BOND PURCHASE AGREEMENT
EXHIBIT E
FORM OF BOND PURCHASE AGREEMENT
Resolution 99-18
DRAFT #[^] 3: 6/8/99
0731O.C[^]
BOND PURCHASE AGREEMENT
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS, SERIES 1999
(BEF, INC. PROJECT)
$
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS, SERIES 1999A
(BEF, INC. PROJECT)
$
CITY OF CLEARWATER, FLORIDA
[^] REVENUE BONDS, SERIES 1999B
[^](BEF, INC. PROJECT),
EXTENDABLE RA TE ADJUSTABLE
SECURITIESSM(EXTRASSM)
$
CITY OF CLEARWATER. FLORIDA
TAXABLE REVENUE BONDS. SERIES 1999C
(BEF. INC. PROJECT)
, 1999
Underwritten By:
B.C. Ziegler and Company
BOND PURCHASE AGREEMENT
This Bond Purchase Agreement (this "Purchase Agreement"), dated , 1999, is
made by and among the following parties (hereinafter collectively called the "Parties"), namely: City
of Clearwater, Florida (the "Issuer"); BEF, Inc., a Florida not-for-profit corporation (the
"Company"); and RC. Ziegler and Company (the "Underwriter").
ARTICLE I
DEFINITIONS
SECTION 1.1. Participants. In addition to the Parties, various persons and firms will
participate in the financing to which this Purchase Agreement relates. Among them are those
identified below (hereinafter collectively called the "Participants"):
Authorized Officers:
Bond Counsel:
Accountants:
Company's Counsel:
Mayor-Commissioner:
Trustee:
City Clerk:
Issuer's Counsel:
Issuer's Governing
Body:
Underwriter's Counsel:
In the case of the Company, its President or any Vice President and
its Secretary or Treasurer.
Bryant, Miller and Olive, P.A.
Tallahassee, Florida.
Moore Stephens LoveLace, P.A.
Baker & Hostetler LLP
Orlando, Florida.
The person at the time incumbent in the office of
Mayor-Commissioner or Vice-Mayor-Commissioner of the Issuer,
or in the event of the death, disability or absence of such person(s),
then the person duly authorized and legally empowered to perform
the duties of such office in such event.
SunTrust Bank, Central Florida, National Association
The person at the time incumbent in the office of City Clerk of the
Issuer or any Deputy City Clerk, or in the event of the death,
disability or absence of such person, then the person duly
authorized and legally empowered to perform the duties of such
office in such event.
Pamela K. Akin, Esquire, City Attorney
Clearwater, Florida.
The City Commission
Nabors, Giblin & Nickerson, P.A.
Tampa, Florida.
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"
Manager:
Manager's Counsel:
Bluff's Developer:
Bluff's Developer Counsel:
Bluff's Counsel:
Financial Advisor to the
City:
Note Holder:
Note Holder's Counsel:
Financial Feasibility
Consultant:
Complete Care Services of Florida. Inc.
Horsham, Pennsylvania
Ehmann, Van Denbergh & Trainor
Philadelphia, Pennsylvania
Asset Development Group, LLC
Clearwater, Florida
Fieldstone Lester Shear & Denberg
Miami, Florida
MacFarlane Ferguson & McMullen
Clearwater, Florida
First Union Capital Markets Corp.
St. Petersburg, Florida
Beal Bank
Dallas, Texas
Jenkens & Gilchrist
Dallas, Texas
BDO Seidman, LLP
Atlanta, Georgia
SECTION 1.2. Contracts. Instruments and Documents. Various contracts, contract
provisions, instruments and documents are involved in the financing to which this Purchase
Agreement relates. Among them are those identified below:
Agreement:
Bonds:
Company Documents:
Closing Papers:
The Loan and Security Agreement, dated as of[^] Julv 1, 1999, to
be entered into by and between the Issuer and the Company.
Collectively, City of Clearwater, Florida Revenue Bonds, Series
1999A (BEF, Inc. Project) (the "Series 1999A Bonds"), City of
Clearwater, Florida [^] Revenue Bonds, Series 1999B (BEF, Inc.
Project) Extendable Rate Adiustable SecuritiesSM (EXTRASSM)
(the "Series 1999B Bonds") and City of Clearwater, Florida
Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project) [^](the
"Series 1999C Bonds") to be issued by the Issuer under the
Indenture and pursuant to the Issuer's Authorizing Resolutions and
the Act.
This Purchase Agreement, the Agreement, the Notes, the Mortgage
and the Continuing Disclosure Certificate.
Collectively, the contracts, certificates, opinions, instruments and
other documents described in Section 4.2 of this Purchase
Agreement.
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Continuing Disclosure
Certificate:
Final Official Statement:
Indenture:
Issuer Documents:
Issuer Portions:
Mortgage:
Notes:
Preliminary Official
Statement:
Title Insurance Binder:
The Continuing Disclosure Certificate, dated as of the Closing
Date, to be executed and delivered by the Company for the benefit
of the holders and beneficial owners of the Bonds and in order to
assist the Underwriter in complying with certain continuing
disclosure requirements of Rule 15c2-12.
The Final Official Statement (including the Appendices thereto),
dated the date hereof, summarizing certain terms of the Bonds, the
security therefor and certain financial and other information related
to the Company and the Manager.
The Trust Indenture, dated asof [A] Julv 1, 1999, to be entered
into by and between the Issuer and the Trustee providing for the
issuance of the Bonds.
This Purchase Agreement, the Bonds, the Agreement, the Indenture
and the assignment of the Mortgage.
When referring to the Preliminary Official Statement or the Final
Official Statement, the portions thereof under the captions
"INTRODUCTION - The Issuer," "THE ISSUER,"
"LITIGATION," "DISCLOSURE MATTERS - Disclosure
Required by Florida Blue Sky Regulations" and "DISCLOSURE
MATTERS - Authorization of and Certification Concerning Official
Statement. "
The Mortgage and Security Agreement, dated as of [A] Julv 1,
1999, to be entered into by and between the Company and the
Issuer.
The non-negotiable promissory notes of the Company to be issued
by the Company in the principal amount of the Bonds pursuant to
the Indenture.
The Preliminary Official Statement (including the Appendices
thereto), dated , 1999, summarizing certain terms of
the Bonds and the security therefor and certain financial and other
information related to the Company and the Manager.
The commitment of Title Insurance
Company to issue a mortgagee's policy of title insurance in respect
of the Mortgaged Real Estate as described in Section 4.2(b)(vi) of
this Purchase Agreement.
SECTION 1.3. Properties. Various properties are involved in the financing to which this
Purchase Agreement relates. Among them are those identified below:
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Mortgaged Equipment:
The personal property of the Company to be subjected to the
Uniform Commercial Code security interest of the Mortgage.
Mortgaged Real Estate:
The real property of the Company to be subjected to the mortgage
lien of the Mortgage.
Proiect:
The Project of the Company to be financed with the proceeds of the
Bonds as described in the Agreement and the Preliminary Official
Statement.
SECTION 1.4. Legal Authorities. Various legal authorities are involved in the financing to
which this Purchase Agreement relates. Among them are those identified below:
Act: The Florida Constitution, the Charter of the Issuer, Chapter 154,
Parts II and III of Chapter 159 and Chapter 166, Florida Statutes,
as amended, and other applicable provisions oflaw.
Code:
The Internal Revenue Code of 1986, as amended through and
including the Closing Date and, to the extent applicable, the
Internal Revenue Code of 1954, as amended, and, to the extent
applicable, the Regulations issued or proposed pursuant thereto.
Ordinance No. _-99 enacted by the Issuer's Governing Body
adopted on April 15, 1999, and Resolution No. 99-_ adopted
on , 1999, relating to the authorization, issuance and
sale of the Bonds.
Rule 15c2-12 of the Securities and Exchange Commission
promulgated pursuant to the Security and Exchange Act of 1934.
Issuer's Authorizing
Resolutions:
Rule 15c2-12:
SECTION 1.5. Times. Dates and Places. Various times, dates and places are significant in
the financing to which this Purchase Agreement relates. Among them are those identified below:
Closing Date:
, 1999, or such other date as the Parties may designate
by written agreement.
Closing Time:
11:00 a.m. prevailing local time on the Closing Date at the Place of
Closing or such earlier or later time as the Parties may agree to.
Offering Period:
The period from and including the date of this Purchase Agreement
through and including the 25th day following the "end of the
underwriting period" as such term is described in Rule 15c2-12.
Place of Closing:
Offices of "
Florida or such other place as the Parties may designate by written
agreement.
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ARTICLE II
REPRESENTATIONS AND COVENANTS
SECTION 2.1. Representations and Covenants oflssuer. As an inducement to the other
Parties to enter into this Purchase Agreement, the Issuer represents, warrants and covenants as
follows:
(a) The Issuer is duly organized and validly existing as a municipal corporation of the
State of Florida, with the powers and authority set forth in the Act.
(b) The Issuer's Authorizing Resolutions were duly adopted by the Issuer at meetings duly
called and held in open session pursuant to the laws of the State of Florida and the ordinances,
standing resolutions, bylaws and rules of procedure of the Issuer. The Issuer's Authorizing
Resolutions have not been amended, repealed, rescinded or revoked.
(c) The Issuer has full right, power and authority (i) to adopt the Issuer's Authorizing
Resolutions, (ii) to issue the Bonds and loan the proceeds thereof to the Company for the purposes
set forth in the Preliminary Official Statement, (iii) to secure the Bonds in the manner contemplated
by the Indenture, the Agreement and the Mortgage, (iv) to enter into, execute and deliver this
Purchase Agreement and the other Issuer Documents, and (v) to perform its obligations hereunder
and thereunder.
(d) When delivered to and paid for by the Underwriter on the Closing Date in accordance
with the provisions of this Purchase Agreement, the Bonds will have been duly authorized, executed,
issued and delivered and, subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally
applicable and subject also to the exercise of judicial discretion in appropriate cases, will constitute
valid and binding limited obligations of the Issuer in conformity with, and entitled to the benefit and
security of, the Indenture, the Agreement and the Mortgage.
(e) The Mayor-Commissioner and the City Clerk are authorized for and in the name of
the Issuer to execute, deliver and perform the obligations of the Issuer under this Purchase Agreement
and the other Issuer Documents and to execute, deliver, file or record such other incidental papers,
documents and instruments as shall be necessary to carry out the intention and purposes of this
Purchase Agreement and the Issuer's Authorizing Resolutions.
(f) The adoption of the Issuer's Authorizing Resolutions and the execution, delivery and
performance of this Purchase Agreement and the other Issuer Documents will not conflict with or
constitute a breach of or default under any commitment, agreement or instrument to which the Issuer
is a party or by which it is bound.
(g) Except as disclosed in the Preliminary Official Statement, there is no litigation,
administrative proceeding or investigation pending (nor, to the knowledge of the Issuer, is any such
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action threatened) against the Issuer which in any way affects, contests, questions or seeks to restrain
or enjoin any of the following: (i) the Act or the Issuer's Authorizing Resolutions; (ii) any of the
proceedings had or actions taken leading up to the issuance of the Bonds or the execution, delivery
or performance ofthis Purchase Agreement; (iii) the delivery, validity or enforceability of the Bonds
or any of the other Issuer Documents; (iv) the pledge or application of any money or security
provided for the payment of the Bonds; (v) the corporate existence of the Issuer; (vi) the right of the
Mayor-Commissioner, the City Clerk or any member of the Issuer to hold his or her office; (vii) the
transactions on the part of the Issuer contemplated herein or in the Preliminary Official Statement;
(viii) the Federal tax-exempt status of the interest on the Series 1999A Bonds; or (ix) the Federal,
State or local tax-exempt status of amounts to be received by the Issuer from the Company pursuant
to the Company's Documents.
(h) The Issuer has not been advised by the Commissioner, any District Director or any
other official of the Internal Revenue Service that certifications by the Issuer with respect to arbitrage
may not be relied upon.
(i) Prior to the execution hereof, the Issuer delivered to the Underwriter the Preliminary
Official Statement that the Issuer, with respect solely to the Issuer Portions thereof, deemed final as
of its date for purposes of Rule 15c2-12, except for "permitted omissions" as defined in such Rule;
provided, however, that in making such representation, the Issuer shall not be deemed to have made
any representation as to the truth, accuracy or completeness of the Preliminary Official Statement
beyond the scope of the representations made elsewhere in this Section 2.1.
G) The Issuer authorizes the Final Official Statement to be used in connection with the
offering of the Bonds.
(k) If during the Offering Period the Issuer becomes aware of any fact or event which
might or would cause the Final Official Statement, as then supplemented or amended, to contain any
untrue statement of a material fact or to omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in the light of the circumstances under which they
were made, not misleading, it shall notify the Underwriter, and ifin the opinion of the Underwriter
such fact or event requires the preparation and publication of a supplement or amendment to the Final
Official Statement, the Issuer shall, at the expense of the Company, cooperate with the Company to
supplement or amend the Final Official Statement in a form and in a manner approved by the
Underwriter and furnish to the Underwriter (i) a reasonable number of copies of the supplement or
amendment, and (ii) if such notification shall be subsequent to the Closing Date, such legal opinions,
certificates, instruments, and other documents as the Underwriter may deem necessary to evidence
the truth, accuracy and completeness of such supplement or amendment to the Final Official
Statement. The obligations of the Issuer set forth in this paragraph shall not require the Issuer to
monitor the business affairs or financial condition of the Company.
(I) The information contained in the Issuer Portions of the Preliminary Official Statement
and the Final Official Statement is true and correct in all material respects, in the case of the
Preliminary Official Statement, on the date hereof, and will be true and correct in all material respects,
in the case of the Final Official Statement, at all times during the Offering Period. The Issuer Portions
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of the Preliminary Official Statement do not contain on the date hereof and the Issuer Portions of the
Final Official Statement will not contain during the Offering Period, any untrue statement of a
material fact; and the Issuer Portions of the Preliminary Official Statement do not omit on the date
hereof, and the Issuer Portions of the Final Official Statement will not omit during the Offering
Period, a material fact required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading. The Issuer is not
making any representations with respect to the accuracy. of the information contained in the
Preliminary or Final Official Statement other than the Issuer Portions.
(m) Except as disclosed in the Preliminary Official Statement, the Issuer is not in breach
of or default under any existing law, court order or administrative regulation, decree or order, and
the Issuer is not in payment default on any of its outstanding bonds, notes or other evidences of
indebtedness which are payable from funds provided by the Company; and to the best ofthe Issuer's
knowledge, no event has occurred which, with the passage of time or the giving of notice, or both,
would constitute a material breach or default by the Issuer thereunder.
(n) The Issuer, as a conduit issuer, issues its bonds as limited obligations of the Issuer
payable solely from payments made to it from the respective non-governmental entities which use or
own the facilities financed. Some bonds issued by the Issuer may have been, and may continue to be,
in default, but the borrowers under the related loan or lease agreements are unrelated to the
Company. The Issuer has not been in default at any time after December 31, 1975, as to any debt
obligations relating to the Company.
SECTION 2.2. Representations of the Underwriter. As an inducement to the other Parties
to enter into this Purchase Agreement, the Underwriter represents and warrants that, except for any
violation of law arising out of any misrepresentation or breach of covenant by any other Party, the
Bonds purchased by the Underwriter will be offered and sold by the Underwriter in accordance with
all state and federal laws applicable to the Underwriter and the aggregate total of the initial offering
prices of the Bonds is not more than $ plus accrued interest from , 1999 to
the Closing Date. The Underwriter has this day filed with the Issuer a Disclosure Statement pursuant
to Section 218.385(4), Florida Statutes, as amended, a copy of which is attached hereto as Exhibit
H. The Underwriter shall notify the Issuer and the Company when the "end of the underwriting
period" for the Bonds has occurred for purposes of Rule 15c2-12 with respect to the unsold balances
of Bonds that were originally sold to the Underwriter for resale to the public and which are held by
the Underwriter for resale to the public. Such notice may be based upon representations made to it
by the other underwriters that the "end of the underwriting period" for the Bonds for purposes of
Rule 15c2-12 has occurred on a date which shall be set forth in such notification. The Issuer and the
Company shall be entitled to treat as the "end of the underwriting period" for the Bonds the date
specified in the notice from the Underwriter stating the date which is the "end of the underwriting
period." The Underwriter is authorized to execute and deliver this Purchase Agreement on behalf
of the Underwriter and to act for the Underwriter as contemplated hereby.
SECTION 2.3. Representations and Covenants of the Company. As an inducement to the
other Parties to enter into this Purchase Agreement, the Company represents, warrants and covenants
as follows:
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( a) The Company is a not-for-profit corporation duly organized and validly existing under
the laws of the State of Florida.
(b) The Company is licensed or qualified to do business in each state in which the
ownership of property or the transaction of business by the Company requires that the Company be
licensed or qualified and in which failure to qualify or be licensed could have a material adverse effect
on the business or financial condition of the. Company.
(c) The Company has full right, power and authority to enter into, execute and deliver this
Purchase Agreement and the other Company Documents and to perform its obligations hereunder
and thereunder.
(d) The Authorized Officers of the Company are authorized for and in the name of the
Company to execute, deliver and perform the obligations of the Company under this Purchase
Agreement and the other Company Documents and to execute, deliver, file or record such other
incidental papers, documents and instruments as shall be necessary to carry out the intention and
purposes of this Purchase Agreement.
( e) No authorization, approval, consent or license of any governmental body or authority,
not already obtained, is required for the valid and lawful execution and delivery by the Company of
this Purchase Agreement and the other Company Documents and the assumption by the Company
of its obligations hereunder and thereunder.
(f) The Company has not received any notice of an alleged violation and, to the
knowledge of the Company, the Company is not in violation of any zoning, land use, environmental
or other similar law or regulation applicable to the Mortgaged Property or applicable to any of its
other property which would have a material adverse affect on the operations or financial condition
of the Company or the Project.
(g) The execution and delivery by the Company of this Purchase Agreement and the other
Company Documents and the performance by the Company hereunder and thereunder will not
conflict with or constitute a breach of or default under the Company's Articles of Incorporation or
Bylaws, or, to the extent they are material to the performance of this Purchase Agreement or any
other of the Company Documents, any indenture, agreement or other instrument to which the
Company is a party or by.which it or its properties are bound or are subject.
(h) No event has occurred which, with the lapse of time or the giving of notice or both,
would give any creditor of the Company the right to accelerate the maturity of any of the Company's
outstanding indebtedness for money borrowed.
(i) Except as described in the Preliminary Official Statement, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body,
pending or, to the knowledge of the Company, threatened against the Company (or, to the knowledge
of the Company, any meritorious basis therefor) wherein an unfavorable decision, ruling or finding
8
would have a material adverse effect on (i) the financial condition of the Company, (ii) the acquisition,
construction, installation or operation of the Proj ect or the operation of the other properties referred
to in Section 1.3 hereof, (iii) the transactions contemplated by this Purchase Agreement and the
Preliminary Official Statement, (iv) the validity or enforceability of the Company Documents or (vi)
the corporate existence or powers of the Company.
(j) Except as described in the Preliminary Official Statement, the Company is in
compliance, in all respects material to the financial condition of the Company, with all applicable
federal, state and local laws, rules, regulations, orders and decrees relating to the conduct of their
business as currently conducted; and no order, decree, judgment, fine or penalty has been issued,
assessed or threatened based upon any violation or alleged violation of any of the foregoing that could
have a material adverse effect on the financial condition of the Company.
(k) The Company owns or possesses or is licensed under all the patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets and rights necessary for the present and
planned future conduct of its business including, without limitation, the licenses from the State of
Florida necessary to own and operate assisted living and skilled nursing facilities.
(1) The Company is not in default in any material respect under any lease, contract or
agreement to which the Company is a party and which is material to the business, properties or
financial condition of the Company; and no event has occurred which, with the passage of time or the
giving of notice or both, would constitute a material default by the Company.
(m) Except as described in the Preliminary Official Statement, the Company has good and
marketable title to all real and personal property described as being owned by it, in each case free and
clear of all liens, encumbrances and defects except Permitted Encumbrances (as defined in the
Mortgage) and except such as are not material to the financial condition of the Company.
(n) The Company will not take or omit to take any action which in any way cause or result
in the proceeds of the sale of the Bonds being applied in a manner than as provided in the applicable
Indenture or as described in the Preliminary Official Statement and the Final Official Statement.
(0) Except as may be described in the Preliminary Official Statement, there are in force
no Uniform Commercial Code security interests conflicting with the security interest of the Mortgage
in the Mortgaged Equipment; and, the Company has signed no currently effective Uniform
Commercial Financing Statements affecting the Mortgaged Equipment other than as permitted by the
Mortgage.
(p) Except as described in the Preliminary Official Statement, the Company has good and
marketable title in fee simple to the Mortgaged Real Estate owned by the Company. There are no
parties in possession of the Mortgaged Real Estate or any part thereof claiming rights thereto other
than the Company. There are no claims or easements affecting the Mortgaged Real Estate which are
not of public record. There are no judgments, tax liens, taxes or special assessments affecting the
Mortgaged Real Estate and known to the Company which are presently unpaid other than current
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taxes and the lien securing the same. The Company has received no notices of material violations of
building or zoning laws, ordinances or regulations with respect to the Mortgaged Real Estate which
have not been corrected. The Company knows of nothing affecting its title to the Mortgaged Real
Estate which is not described in the Title Insurance Binder. None of the "special exceptions" set forth
in the Title Insurance Binder materially interferes with or impairs the operations to be conducted on
the Mortgaged Real Estate and none of said special exceptions materially adversely affects the value
of the Mortgaged Real Estate.
(q) Except as set forth in the Preliminary Official Statement, (i) the Company has not
sustained any loss or interference with its business from fire, explosion, flood or any labor dispute or
court or governmental action, order or decree and (ii) there has been no increase in short-term debt
or long-term debt, of the Company or any adverse change, or any development involving a
prospective adverse change, in or affecting the general affairs, management, properties, financial
condition or results of operations of the Company, which in any such case described in clause (i) or
(ii) is material to the financial condition of the Company.
(r) The information contained in the Preliminary Official Statement is true and correct in
all material respects on the date hereof, and the information contained in the Final Official Statement
will be true and correct in all material respects at all times during the Offering Period; and the
Preliminary Official Statement does not contain on the date hereof, and the Final Official Statement
will not contain during the Offering Period, any untrue statement of a material fact; and the
Preliminary Official Statement does not omit on the date hereof, and the Final Official Statement will
not omit during the Offering Period, a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not be deemed to cover or apply to the statements in or omissions
from the Issuer Portions of the Preliminary Official Statement or the Final Official Statement.
(s) Prior to the execution hereof, the Company delivered to the Underwriter the
Preliminary Official Statement that the Company deemed final for purposes of Rule 15c2-12 as of the
date thereof, except for (i) the omission of no more than the following information: the offering price,
interest rate, underwriting discount, aggregate principal amount and other terms of the Bonds
depending on such matters, and (ii) the Issuer Portions thereof; provided, however, that in making
such representation, the Company shall not be deemed to have made any representation as to the
truth, accuracy or completeness of the Preliminary Official Statement beyond the scope of the
representations made elsewhere in this Section 2.3.
(t) As soon as practicable after the date hereof, and in any event within seven business
days of the date hereof, the Company, assuming compliance by the Issuer with the applicable
requirements of Section 2. 1 of this Purchase Agreement, shall deliver to the Underwriter executed
copies of the Final Official Statement dated the date hereof, in substantially the form of the
Preliminary Official Statement, with only such changes therein as shall have been approved by the
Issuer, the Company and the Underwriter (the delivery of the Final Official Statement by the
Company to the Underwriter and the acceptance thereof by the Underwriter to constitute the
Company's approval), executed on behalf of the Company by Authorized Officers. The Final Official
Statement shall be provided for distribution, at the expense of the Company, in such quantities as shall
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be requested by the Underwriter in order to permit the Underwriter to comply with the provisions
of Rule 15c2-12 and the applicable rules of the Municipal Securities Rulemaking Board with respect
to distribution of a copy of the Final Official Statement to each potential customer upon request and,
in any event, to each actual customer.
(u) If during the Offering Period the Company becomes aware of any fact or event which
might or would cause the Final Official Statement, as then supplemented or amended, to contain any
untrue statement of a material fact or to omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in the light of the circumstances under which they
were made, not misleading, the Company shall notify the Underwriter, and if in the opinion of the
Underwriter such fact or event requires the preparation and publication of a supplement" or
amendment to the Final Official Statement, the Company shall, at its expense, supplement or amend
the Final Official Statement in a form and in a manner approved by the Underwriter and furnish to
the Underwriter (i) a reasonable number of copies of the supplement or amendment, and (ii) if such
notification shall be subsequent to the Closing Date, such legal opinions, certificates, instruments, and
other documents as the Underwriter may deem necessary to evidence the truth, accuracy and
completeness of such supplement or amendment to the Final Official Statement.
(v) The Company's audited financial statements for the fiscal year ending December 31,
1998 compared to the audited financial statements of the Company for the fiscal years ending
December 31, 1997, and the Company's unaudited financial statements for the three-month period
ending March 31, 1999, contained in the Preliminary Official Statement present fairly the financial
position of the Company as of the dates indicated and the results of its operations, changes in net
worth and cash flows for the periods specified, and such financial statements have been prepared in
conformity with generally accepted accounting principles consistently applied in all material respects
to the periods involved, except as stated in the notes thereto. To the best knowledge of the
Company, the Accountants are independent public accountants as required by the Securities Act of
1933, as amended, and the rules and regulations of the Securities and Exchange Commission
thereunder.
(w) The Company has been determined to be and is an organization described in Section
501(c)(3) of the Internal Revenue Code, which is exempt from the payment offederal income taxes
under Section 501(a) of said Code and which is not a "private foundation" as defined in Section
509(a) of said Code. The Company does not have "unrelated business taxable income" as defined
in Section 512 of the Internal Revenue Code which could have a material adverse effect on the
Company's tax-exempt status or which, if such income were subject to federal income taxation, would
have a material adverse effect on the condition, financial or otherwise, of the Company. The Company
has (i) not impaired its status as an organization exempt from federal income taxes under the Code,
(ii) is in compliance with the provisions of the Code and any applicable regulations thereunder
necessary to maintain such respective status, (iii) is organized and operated exclusively for charitable
and religious purposes; and (iv) is organized and operated such that no part of the net earnings of the
Company will inure to the benefit of any private shareholder or individual.
(x) The Company is not engaged in termination proceedings as to its participation in third
party reimbursement or payment arrangements, and the Company has not received notice that its
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current participation in any third party reimbursement or payment arrangements is subject to any
termination or suspension as a result of alleged violations or any noncompliance with participation
requirements.
(y) The Company agrees to furnish the Underwriter montWy financial reports for the
Facility and to the Issuer and the Underwriter such other information as the Underwriter or the Issuer
may reasonably request from time to time regarding the Facility or the Company.
(z) The Company will furnish such information, execute such instruments and take such
other action in cooperation with the Underwriter as the Underwriter may reasonably request to
qualify the Bonds for offer and sale under the Blue Sky or other securities laws or regulations of such
states and other jurisdictions of the United States as the Underwriter may designate and to provide
for the continuance of such qualification; provided, however, that the Company will not be required
to qualify as a foreign corporation or to file any general or special consents to service of process
under the laws of any state.
(aa) The Company does not have any actual knowledge that any of the facilities of the
Company or their respective operations are not in compliance in all material respects with all state
and federal environmental laws.
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ARTICLE III
AGREEMffiNT TO PURCHASE BONDS
SECTION 3.1 Contemporaneous Delivery of Documents to Underwriter. Prior to or
simultaneously with the execution and delivery of this Purchase Agreement, the Underwriter has
received (i) one copy each of the Preliminary Official Statement, the Issuer Documents and the
Company Documents in substantially the respective forms thereof on record with the Issuer at the
time of its consideration and adoption of the applicable Issuer's Authorizing Resolutions; and (ii) one
signed copy of a letter from the Accountants, dated within 10 days of the date hereof, substantially
in the form set forth in Exhibit B hereto.
As soon as practicable after the date hereof, and in any event within seven (7) business days
of the date hereof, or by such earlier date, as requested by the Underwriter, as required by paragraph
(b )(3) of Rule 15c2-12 or the rules of the MSRB, the Issuer shall deliver or cause to be delivered to
the Underwriter copies of the Official Statement, dated the date hereof, relating to the Bonds, in
sufficient quantities to allow the Underwriter to comply with paragraph (b)(4) of Rule 15c2-12 and
the rules ofthe MSRB, in substantially the form of the Preliminary Official Statement with only such
changes therein as shall have been approved by the Issuer, the Company and the Underwriter. The
Official Statement, including the cover pages and all exhibits, appendices, reports and statements
included with or attached thereto and any amendments and supplements that may be authorized by
the Issuer and the Company and to which the Underwriter does not reasonably object, and any
amendments and supplements which may be reasonably required by the Underwriter for use with
respect to the Bonds, are referred to herein as the "Official Statement." The Official Statement shall
be executed on behalf of the Issuer and the Company by duly authorized officers of each.
The Issuer authorized and the Company approves the Preliminary Official Statement, and the
Issuer and the Company consent to the use of the Preliminary Official Statement and the Official
Statement and the information contained therein by the Underwriter in connection with the offering
and sale of the Bonds. The Issuer and the Company deem the Preliminary Official Statement, as of
its date, final for purposes of Rule 15c2-12, except for certain omissions therein in connection with
the pricing of the Bonds.
SECTION 3.2 Agreement to Sell and Purchase Bonds. The Bonds shall have the terms
specified in the Final Official Statement, including the maturities, interest rates and call provisions set
forth in Exhibit A annexed hereto. Upon the basis of the representations and warranties and upon
the terms and conditions set forth in this Purchase Agreement, the Underwriter agrees to purchase
from the Issuer, and the Issuer agrees to sell to the Underwriter, all (but not less than all) of the
Bonds for the purchase price specified in Exhibit A annexed hereto (the "Purchase Price"), plus
accrued interest through the day immediately preceding the Closing Date. Payment of the Purchase
Price shall be made by the Underwriter to the order of the Trustee (for the account of the Issuer) at
the Closing Time in immediately available funds at the principal office of the Trustee in[^] Orlando,
Florida[^]. The Bonds shall be made available to the Underwriter for inspection and packaging at
least 24 hours prior to the Closing Date. Unless the Underwriter specifies otherwise at least five
13
business days prior to the Closing Date, the Bonds shall be preexecuted, preauthenticated and
delivered for safekeeping to The Depository Trust Company, New York, New York, at least 24 hours
prior to the Closing Date under arrangements made by the Trustee.
SECTION 3.3 Public Offering of Bonds. The Underwriter agrees to make a bona fide public
offering ofthe Bonds, solely pursuant to the Preliminary Official Statement and the Official Statement
at the initial offering prices set forth in the Official Statement, reserving, however, the rights to (i)
change such initial offering prices as the Underwriter shall deem necessary in connection with the
marketing of the Bonds and (ii) offer and sell the Bonds to certain dealers (including dealers
depositing the Bonds into investment trusts) at concessions to be determined by the Underwriter.
The Underwriter also reserves the right to over-allot or effect transactions that stabilize or maintain
the market prices of the Bonds at levels above that which might otherwise prevail in the open market
and to discontinue such stabilizing, if commenced, at any time.
SECTION 3.4 Condition to Purchase of Bonds. The Underwriter's obligation to purchase
the Bonds shall be conditioned upon its receiving, at or prior to Closing, in form satisfactory to the
Underwriter and its counsel evidence that the Company has made the continuing disclosure
undertaking as set forth in the Continuing Disclosure Certificate for the benefit of the holders of the
Bonds.
SECTION 3.5 Approval of the Company. The Company approves the purchase and sale
described in Section 3.2 of this Purchase Agreement and agrees (to the extent within its control) to
cause each of the conditions set forth in Article IV of this Purchase Agreement to be satisfied at or
prior to the Closing Time.
14
ARTICLE IV
CLOSING CONDITIONS
SECTION 4.1. Performance of Obligations. The obligations and agreements of the
Underwriter under this Purchase Agreement are expressly made subject to the due performance by
the Company and the Issuer at or prior to the Closing Time of their respective obligations and
undertakings pursuant to this Purchase Agreement.
SECTION 4.2. Delivery of Closing Papers. The obligations and agreements of the
Underwriter under this Purchase Agreement are expressly made subject to the condition that, at or
prior to the Closing Time, there shall have been delivered to the Underwriter each of the following:
(a) Basic Documents:
(i) One fully executed counterpart each of the Issuer Documents and the
Company Documents in the respective forms thereof delivered to the Underwriter
pursuant to Section 3.1 of this Purchase Agreement, with only such revisions therein,
or deletions therefrom or additions thereto as shall have been required to incorporate
terms specified in this Purchase Agreement or as shall have been approved by the
Underwriter.
(ii) Ten copies of the Final Official Statement executed by the Company.
(b) Closing Papers to be Furnished by the Company:
(i) One copy of the Company's Articles ofIncorporation, as amended or
restated, certified not more than 30 days prior to the Closing Date by the appropriate
certifying agency of the State of Florida, together with a certificate of the Secretary
or Treasurer ofthe Company, dated the Closing Date, to the effect that there has been
no amendment or restatement of said Articles subsequent to the date of certification
by said agency.
(ii) One copy of a certificate of corporate existence and good standing
issued by the State of Florida on a date as close as reasonably practicable to the
Closing Date.
(iii) One copy of the resolutions or excerpts from minutes of meetings of
the Company's Board of Directors (or the Executive Committee of such Board) which
authorize this Purchase Agreement and the Company Documents and the transactions
contemplated hereby and thereby, certified by the Secretary or Treasurer of the
Company to be a true and correct copy thereof as adopted and as in full force and
effect as of the Closing Date.
15
(iv) One copy of the Bylaws of the Company as in force on the date of the
adoption of the resolutions referred to in Section 4.2(b)(iii) and one copy of all
subsequent amendments, ifany, thereto, in each case certified by the Secretary or
Treasurer of the Company to be a true and correct copy thereof
(v) One original copy of a survey with respect to the Mortgaged Real
Estate located in the City of Clearwater, Florida, certified to the Trustee, which
survey shall be dated no earlier than a date agreed to by the Underwriter. Said survey
shall show the location of all buildings on such land and the location of all easements
and rights-of-way identified in the title insurance policy referred to in Section
4.2(b)(vi).
(vi) One original copy of an form ofloan policy
of title insurance, designating the Trustee as named insured, in the face amount of
$ , with respect to the Mortgaged Real Estate, insuring that good and
marketable fee simple title to that part of the Mortgaged Real Estate located in the
City of Clearwater, Florida, is vested in the Company, that the Mortgage is a first and
paramount mortgage lien on the Mortgaged Real Estate subject to no prior liens or
encumbrances other than "Permitted Encumbrances" as defined in the Mortgage and
other than liens or encumbrances acceptable to the Underwriter and Underwriter's
counsel.
(vii) One signed copy of a letter from the Accountants, dated within five
days of the Closing Date, substantially in the form set forth in Exhibit C hereto.
(viii) One signed copy of a legal opinion from Company's Counsel, dated
the Closing Date, covering the matters set forth in Exhibit D hereto.
(ix) A certificate from the Company signed by Authorized Officers of the
Company, dated the Closing Date (i) confirming that each of the representations of
the Company contained in Section 2.3 of this Purchase Agreement was true and
accurate on the date when made, has been true and accurate at all times since and
continues to be true and accurate on the Closing Date and that each such
representation with respect to the Preliminary Official Statement applies to the Final
Official Statement, (ii) stating that there has been no material adverse change in the
business, properties or financial condition of the Company from that shown in the
Final Official Statement, and (iii) stating that the information contained in the Final
Official Statement (other than in the Issuer Portions thereot) is true and correct in all
material respects and does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) Evidence that the Company has in force insurance meeting the
requirements of the Company Documents.
16
(xi) Receipts or other evidence that financing statements have been filed
for record with the appropriate governmental authorities with respect to the security
interests granted or assigned by the Indenture, the Agreement and the Mortgage.
(xii) One executed copy of a customary "tax compliance certificate," in
form prepared by and acceptable to Bond Counsel, dated the Closing Date and signed
by an Authorized Officer of the Company.
(xiii) Copies of all certificates of authority, permits and licenses which the
Company is required to have in order to operate its facilities and all certificates of
need, if any, permits, approvals and licenses obtained prior to the Closing Date in
connection with the acquisition, construction and installation of the Project.
(xiv) An acceptable environmental report on the Mortgaged Real Estate
satisfactory to the Underwriter addressed to the Trustee and the Issuer or, if
deficiencies are noted in such report, arrangements satisfactory in form and substance
to the Underwriter to eliminate such deficiencies.
(xv) One executed copy of an architect's certificate, signed by the
Architect and dated within five days of the Closing Date, substantially in the form set
forth in Exhibit I hereto.
(xvi) Evidence satisfactory to Bond Counsel and Underwriter's Counsel
that the Company is an organization described in Section 501(c)(3) of the Code and
is not a private foundation as described in Section 509(a) of the Code.
(xvii) One signed copy of a Letter from the Financial Feasibility Consultant
consenting to the references to it in the Preliminary Official Statement, the Final
Official Statement and to the inclusion of the Financial Feasibility Study in Appendix
C thereto.
(xviii) One signed copy each of Letters from the Accountants consenting to
the references to them in the Preliminary Official Statement, the Final Official
Statement and the inclusion of the Financial Statements in Appendix D thereto.
(xix) One copy of a certificate or certificates, which may be included on the
applicable surveyor surveys, or an independent registered Florida land surveyor
stating whether or not any portion of the Properties is on a flood plain or designated
as a flood plain by any governmental body and if so, evidence of appropriate flood
insurance acceptable to the Underwriter.
(xx) One copy of a Single Guaranteed Maximum Price Construction
Contract for the Project executed by the Company and the General Contractor, which
Contractor shall be required under the Construction Contract to include, among other
17
things, provision for 100% payment and performance bonds, and liquidated damages
satisfactory to the Underwriter (which bonds shall be assigned to the Trustee).
(xxi) One copy of the Financial Feasibility Study.
(xxii) One copy of the Management Agreement between the Company and
the Manager.
(xxiii) One copy of the Development Agreement among the Company, the
Manager and the Bluffs Developer.
(xxiv) One copy of the Ground Lease for the Project.
(xxv) A certificate from the Manager, dated the Closing Date, confirming
that the information contained in the Preliminary Official Statement and Final Official
Statement regarding the Manager is true and correct in all material respects.
(xxvi) A certificate from the Manager, dated the Closing Date, certifying the
enforceability of the Management Contract.
(c) Closing Papers to be Furnished by Issuer:
(i) One copy each of the Issuer's Authorizing Resolutions certified by the
Mayor-Commissioner or City Clerk to be a true and correct copy thereof as adopted
and approved.
(ii) One executed original of a customary incumbency and no-litigation
certificate, in form prepared by and acceptable to Bond Counsel, dated the Closing
Date and signed by the Mayor-Commissioner or the City Clerk.
(iii) One executed copy ofa customary "nonarbitrage certificate," in form
prepared by and acceptable to Bond Counsel, dated the Closing Date and signed by
the Mayor-Commissioner or the City Clerk.
(iv) Evidence that the Issuer has complied with the "public approval
requirements" of Section 147(t) of the Internal Revenue Code.
(v) Evidence that the Issuer has complied with the reporting requirements
of Section 149(e)(2) of the Internal Revenue Code in respect of the Bonds.
(vi) One signed copy of a legal opinion from Issuer's Counsel, dated the
Closing Date, covering the matters set forth in Exhibit E hereto.
(vii) One signed copy of the approving legal opinion of Bond Counsel,
dated the Closing Date, in the form of Exhibit F hereto.
18
(viii) One signed copy of the supplemental legal opinion of Bond Counsel,
dated the Closing Date, covering the matters set forth in Exhibit G hereto.
(ix) One copy of the State of Florida Division of Bond Finance Forms
BF2003 and/or BF2004, as prepared by Bond Counsel.
(d) Closing Papers to be Furnished bv Trustee:
(i) One executed copy of a customary authorization and incumbency
closing certificate, dated the Closing Date and signed by authorized officers of the
Trustee.
(ii) One executed copy of a customary certificate of receipt and
application of the proceeds of the Bonds in accordance with the Indenture.
(iii) One signed copy of the opinion of the Trustee's Counsel, dated the
Closing Date, in the form as set forth in Exhibit J hereto.
(e) Other Assurances: Such additional legal opinions, certificates, proceedings,
instruments and other documents as the Underwriter, Underwriter's Counselor Bond Counsel may
reasonably request to verify or evidence (i) compliance by the Parties and Participants with applicable
legal requirements, (ii) the truth and accuracy of the representations or opinions of the Parties and
Participants contained in this Purchase Agreement or in any Closing Paper, or (iii) the due
perrormance of all agreements and the satisfaction of all conditions required to be performed or
satisfied at or prior to the Closing Time.
SECTION 4.3. Form of Closing Papers: Waiver of Conditions. The Closing Papers to be
delivered to the Underwriter pursuant to this Purchase Agreement shall be deemed to be in
compliance with the conditions of this Purchase Agreement if, but only if, in the reasonable judgment
of the Underwriter, they are satisfactory in form and substance. Time is of the essence with regard
to all matters covered in this Article IV. The legal opinions and certificates described in Section 4.2
shall be addressed to the Underwriter. No condition hereof shall be deemed to have been waived by
the Underwriter unless expressed specifically in a writing signed by the Underwriter.
19
ARTICLE V
TERMINATION; PAYMENT OF EXPENSES
SECTION 5.1. Termination. This Purchase Agreement may be terminated by the
Underwriter on behalf of the Underwriter without liability on the part of the Underwriter, if, at or
prior to the Closing Time:
(a) Any representation of the Issuer or the Company contained in this Purchase
Agreement or in any Closing Paper shall prove to be or to have been false in any material respect;
(b) There shall be a failure of anyone or more of the conditions set forth in Sections 4.1,
4.2 or 4.3 of this Purchase Agreement;
(c) Litigation or an administrative proceeding or investigation shall be pending or
threatened affecting, contesting, questioning or seeking to restrain or enjoin (i) the issuance or
delivery of any of the Bonds or the payment, collection or application of the proceeds of the Bonds
or of other moneys or securities pledged or to be pledged under the Indenture and the Mortgage, (ii)
the validity or tax-exempt nature of the Bonds, (iii) the validity of this Purchase Agreement, any of
the Issuer Documents, any of the Company Documents or any proceedings taken by the Issuer or the
Company with respect to any of the foregoing, (iv) the Issuer's creation, organization or existence
or the titles to office of any of its officers or its power to engage in any of the transactions
contemplated by the Issuer Documents, (v) the incorporation, organization or existence of the
Company, or (vi) the legal power or authority of the Company to enter into and engage in any of the
transactions contemplated by this Purchase Agreement;
(d) Any legislative, executive or regulatory action or any court decision shall occur which,
in the reasonable judgment of the Underwriter casts sufficient doubt on the legality of, or the
tax.;.exempt status of interest on, obligations of the general kind and character as the Bonds so as to
impair materially the marketability, or to reduce materially the market price of, the Bonds;
(e) Any action by Congress, the Securities and Exchange Commission or a court shall
occur which would require registration of any Bond under the Securities Act of 1933, as amended,
or the qualification of the Indenture under the Trust Indenture Act of 1939, as amended;
(f) Any material restriction not presently in force on trading in securities generally, or any
banking moratorium, or the inception or escalation of any war or major military hostilities shall occur,
which, in the reasonable judgment of the Underwriter, substantially impairs the marketability of the
Bonds;
(g) There shall occur any adverse change in the business, properties or financial condition
of the Company from that described in the Preliminary Official Statement which, in the reasonable
judgment of the Underwriter is material and makes it inadvisable to proceed with the sale of the
Bonds; or
20
(h) Any event or condition shall occur which, in the reasonable judgment of the
Underwriter, renders untrue or incorrect, in any material respect as of the time to which the same
purports to relate, the information contained in the Final Official Statement or which requires that
information not reflected therein be included therein in order to make the statements and information
contained therein not misleading in any material respect as of such time.
SECTION 5.2. Payment of Exoenses. The following costs and expenses relating to the
transactions contemplated or described in this Purchase Agreement shall be borne and paid by the
Company regardless of whether the transactions herein contemplated shall close: printing or
photostating of Bonds; printing or photostating of Closing Papers (including the Preliminary Official
Statement and the Final Official Statement) in such reasonable quantities as the Underwriter may
request; fees paid to any state to register, exempt or otherwise qualify the Bonds for sale in such
state; fees paid to any rating agency; fees and disbursements of Bond Counsel; fees and disbursements
of Company's Counsel; fees and disbursements of Issuer's Counsel; fees and disbursements of the
Financial Advisor; Trustee's fees and disbursements; out-of-pocket expenses and fees oflssuer. The
Underwriter shall pay the fees and disbursements of Underwriter's Counsel. The Issuer shall bear no
out-of-pocket expense in connection with the transactions contemplated by this Purchase Agreement.
Except as otherwise provided above, the Company, the Issuer and the Underwriter shall each
bear the costs and expenses incident to the performance of their respective obligations under this
Purchase Agreement.
SECTION 5.3. Indemnification bv the Company: Contribution. The Company agrees to
indemnify the Issuer and the Underwriter, their respective executive officers, directors and officials
and each person, if any, who controls the Issuer or the Underwriter or any of them within the meaning
of the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
against claims asserted against them if such claims arise out of or are based on (i) the assertion that
the Preliminary Official Statement or the Final Official Statement (except for Issuer Portions thereof
and for information relating to the Underwriter to the extent such information has been provided in
writing by the Underwriter expressly for use in the Preliminary Official Statement and the Final
Official Statement) contains an alleged untrue statement of a material fact or an alleged omission to
state any material fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made, or (ii) the failure to register the Bonds under the
Securities Act of 1933, as amended, or to qualify the Indenture under the Trust Indenture Act of
1939, as amended. This indemnity includes reimbursement for expenses reasonably incurred by an
indemnified party in investigating the claim and in defending it if the Company declines to assume the
defense.
Within 60 days after the commencement of any action against any party indemnified hereunder
in respect of which indemnity is to be sought against the Company, such indemnified party will notify
the Company in writing of such action and the Company may assume the defense thereof, including
the employment of counsel and the payment of all expenses. If the Company shall assume the defense
of any such action, an indemnified party may retain its own counsel for such action and still be
indemnified for the costs and expenses of such counsel despite an assumption of the defense by the
Company. The Company shall not be liable for any settlement of any such action effected without
21
its consent, but if settled with the consent of the Company or if there is a final judgment for the
plaintiff in any such action, the Company agrees to indemnify and hold harmless any indemnified
person from and against any loss or liability by reason of such settlement or judgment. The
indemnification contained in this Section 5.3 shall survive delivery of the Bonds and shall survive any
investigation made by or on behalf of an indemnified party.
If the indemnification provided for in this Section 5.3 is unenforceable (as determined by final
judgment of a court of competent jurisdiction) or otherwise unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to herein,
the Company agrees, in lieu of indemnifying the indemnified party, to contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the indemnified party on the other from the offering of the
Bonds. If, however, the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required herein, then the
Company agrees to contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the indemnified party on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting fees and commissions received by the Underwriter in
connection with this transaction. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or the Underwriter
and the parties' relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this subsection were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section ll(f) of the Securities
Act of 1933, as amended) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
22
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Parties and Interests; Survival of Representations. This Purchase Agreement
is made solely for the benefit of the Issuer, the Company, the Underwriter and the persons entitled
to indemnification or contribution under Section 5.3, and no other person, partnership, association
or corporation shall acquire or have any rights hereunder or by virtue hereof All representations and
agreements in this Purchase Agreement shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Party and shall survive the delivery of and payment
for the Bonds.
SECTION 6.2. Notices. All notices, demands, certificates or other communications (other
than the Closing Papers) under this Purchase Agreement shall be sufficiently given and shall be
deemed given when hand delivered or when mailed by certified or registered mail, postage prepaid,
or by prepaid telegram, with proper address as indicated below:
To the Issuer: City of Clearwater, Florida
112 South Osceola Avenue, Third Floor
Clearwater, Florida 33756
Attention: Mayor-Commissioner
Copy to: City Attorney
112 South Osceola Avenue, Third Floor
Clearwater, Florida 33756
To the Company: BEF, Inc.
1601 Jack Street, Suite 200
Fort Myers, florida 33901
Attention: President
To the Underwriter: B.c. Ziegler and Company
III Second Avenue, N.E., Suite 915
St. Petersburg, Florida 33701-3411
Attention: Richard 1. Scanlon, Vice President
SECTION 6.3. Amendment. No modification, alteration or amendment to this Purchase
Agreement shall be binding upon any Party until such modification, alteration or amendment is
reduced to writing and executed by all Parties.
SECTION 6.4. Governing Law. The laws of the State of Florida shall govern this Purchase
Agreement.
23
SECTION 6.5. Captions. The captions or headings in this Purchase Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any of the provisions
of this Purchase Agreement.
SECTION 6.6. Counterparts. This Purchase Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 6.7. Severability. If any provisions of this Purchase Agreement shall be held or
deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other
provision or provisions hereof or any constitution or statute or rule of public policy, or for any other
reason, such circumstance shall not have the effect of rendering the provision in question inoperative
or unenforceable in any other case or circumstance, or of rendering any other provision or provisions
herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any
one or more phrases, sentences, clauses or Sections in this Purchase Agreement contained, shall not
affect the remaining portions of this Purchase Agreement, or any part thereof.
SECTION 6.8. Effective Time of this Agreement. This Purchase Agreement shall be
effective and binding upon its execution and delivery.
[SEAL ]
ATTEST:
CITY OF CLEARWATER, FLORIDA
By:
City Clerk
By:
Mayor-Commissioner
Approved as to Form and Legal Sufficiency
By:
City Manager
By:
City Attorney
BEF, INe.
By:
President
B.e. ZIEGLER AND COMPANY
By:
Title:
24
EXHIBIT A
Pricing Data
I. Purchase Price:
The Purchase Price for the Series 1999A Bonds is $ which reflects an
underwriting discount of$ <---% of principal amount) and an original issue discount
of $_ <---% of principal amount).
The Purchase Price for the Series 1999B Bonds is $ which reflects an
underwriting discount of$ <---% of principal amount) and an original issue discount
of$_ <---% of principal amount).
The Purchase Price for the Series I999C Bonds is $ which reflects an
underwriting discount of$ <---% of principal amount) and an original issue discount
of$_ <---% of principal amount).
The Underwriting fee is $
<---% of principal amount).
II. Maturities and Interest Rates:
SERIES 1999A BONDS
Due
( . I)
Principal
Amount
Interest
Rate
[To Come]
SERIES 1999B [A] EXTRASSM
Due
( . 1)
Principal
Amount
Interest
Rate
[To Come]
SERIES 1999C [A] BONDS
A-I
~
Due
(----1)
Principal
Amount
Interest
Rate
[To Come]
*
From and after , -.Y the interest rate is subject to adjustment in accordance
with the terms of the Indenture.
III.
Call Provisions:
SERIES 1999A BONDS
Mandatory Sinking Fund Redemption. The Series 1999A Bonds maturing November 15,
20_ are subject to mandatory redemption prior to maturity in part, by lot, on November 15 of each
year, beginning November 15,20_, at a redemption price equal to 100% of the principal amount of
such Series 1999A 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
The principal amount of Series 1999 A Bonds required to be redeemed as set forth above shall
be reduced pro rata by amounts equal to such principal amount of the Series 1999 A Bonds of such
maturities which are purchased by the Tender Agent or Trustee for cancellation and retirement with
moneys provided by the Company.
Optional Redemption. The Series 1999A 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 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 , 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
A-2
of principal amount of Series 1999A Bonds to be redeemed) 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_
November 15,20_ to November 14, 20_
November 15,20_ and thereafter
102%
101
100
SERIES 1999B EXTRASSM
Mandatory Sinkiny Fund Redemotion. The Series 1999B EXTRAssM are subiect to
mandatory redemption prior to maturity in part. by lot (except that Series 1999B EXTRASSM that
have been tendered for purchase on any Optional Purchase Date but were no so purchased shall be
redeemed prior to any other Series 1999B EXTRAssM). on November 15 of each year. beginning
November 15.20 . at a redemption price of 100% of the principal amount thereof, plus accrued
interest thereon to the redemption date. without premium. in the following principal amounts in the
following years:
Year
Amount
· Maturitv
The principal amount of Series 1999B EXTRASSM required to be redeemed as set forth above
shall be reduced pro rata bv amounts equal to such principal amount of the Series 1999B EXTRAssM
of such maturities which are purchased by the Tender Agent or Trustee for cancellation and
retirement with monevs provided by the Company.
Ootional Redemotion. The Series 1999B EXTRASSM may be redeemed in whole or in part
on any date occurring within the redemption periods. as set forth below. by the Issuer upon the
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 EXTRAS SM or portion thereof so
redeemed on the applicable redemption date. plus accrued interest to the redemPtion date.
A-3
(i) During the period between the issuance of the Series 1999B EXTRASSM and
the initial Rate Change. the Series 1999B EXTRASSM are subiect to oPtional redemption on
or after November 15. 20
(ii) During any Rate Period of three years in length. the Series 1999B EXTRASSM
are subiect to optional redemPtion commencing on the 18-month anniversary of the first day
of such Rate Period.
(iii) During any Rate Period offive vears in length. the Series 1999B EXTRASSM
are subiect 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 EXTRASSM
are subiect 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
EXTRASSM are subiect to optional redemption commencing on the fifth anniversary of the
first day of such Rate Period.
The Series 1999B EXTRASSM 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 EXTRASSM Series 1999 Bonds so given Priority shall be selected bv 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 1999 Bonds on any particular redemption date.
SERIES [^] 1999C BONDS
Mandatory Sinking Fund Redemption. The Series [^] 1999C Bonds maturing November 15,
20_ are subject to mandatory redemption prior to maturity in part, by lot, on November 15 of each
year, beginning November 15, 20_, at a redemption price equal to 100% of the principal amount of
A-4
such Series [^] 1999C 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
The principal amount of Series [^] 1999C Bonds required to be redeemed as set forth above
shall be reduced pro rata by amounts equal to such principal amount of the Series [A] 1999C Bonds
of such maturities which are purchased by the Tender Agent or Trustee for cancellation and
retirement with moneys provided by the Company.
Optional Redemption. The Series [A] 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 [A]
1999C 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_, 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 principal amount of Series [^] 1999C Bonds to be redeemed) set forth in the table
below, plus accrued interest thereon to the date fixed for redemption:
Period of Redemption
(All dates inclusive)
Redemotion Prices
November 15, 20~ to November 14,20_
November 15, 20_ to November 14,20_
November 15, 20_ and thereafter
102%
101
100
[^][^][^]
A-5
EXHIBIT B
Accountant's Comfort Letter
B-1
EXHIBIT C
Accountant's Bring Down Letter
C-l
EXHIBIT D
Opinion of Company's Counsel
(T erms defined in the Purchase Agreement
are used here with the same meanings)
I. The Company is a not-for-profit corporation duly organized and validly existing under
the laws of the State of Florida.
2. The Company is duly licensed or qualified to do business in the State of Florida
(including, without limitation, operating the Mortgaged Property as an independent living, assisted
living and skilled nursing facility) and each other state in which the ownership of property or the
transaction of business by the Company requires that the Company be licensed or qualified and in
which the failure to qualify would have a material adverse effect on the Company or the transactions
contemplated by the Final Official Statement.
3. The Company has full right, power and authority to enter into, execute and deliver the
Company Documents, to perform its obligations thereunder and to execute and deliver the Final
Official Statement.
4. The execution, delivery and performance of the Company Documents and the
execution and delivery of the Final Official Statement, for and in the name of the Company, have been
duly authorized by all necessary corporate action on the part of the Company.
5. The Company Documents and the Final Official Statement have been duly executed
and delivered on behalf of the Company, and the Company Documents constitute valid and binding
instruments and obligations of the Company enforceable in accordance with their respective terms.
6. The Company is private not-for-profit corporation of which no part of the net earnings
inures to the benefit of any private shareholder or individual and has the authority to own and operate
the facilities owned and operated by it (including, without limitation, the Project), and the Company
will not, to our knowledge, as a result of any transactions contemplated by the Company Documents
or the Final Official Statement, be engaged in an unrelated trade or business determined by applying
Section 5 13 (a) of the Internal Revenue Code of 1986, as amended (the "Code"), nor is the Bond
financed property proposed to be used to our knowledge, in the trade or business of any non-exempt
person so as to jeopardize the Section 501(c)(3) status of the Company or to render the interest on
the Bonds subject to federal income taxation.
7. The Company has received a letter from the Internal Revenue Service determining it
to be an organization described in Section 501(c)(3) of the Code, the Internal Revenue Service
determination letter is in full force and effect, and, to the best of our knowledge, after due inquiry,
no facts and circumstances have occurred which could cause the determination letter to be revoked;
D-I
the Company is exempt from federal income tax under Section 501(a) of the Code; and the Company
is not a "private foundation" as defined in Section 509(a) of the Code.
8[^]. The current and anticipated use by the Company of the Mortgaged Property is in
compliance applicable zoning, land use and similar laws, ordinances and regulations, the violation of
which would have a material and adverse effect on the use of the Mortgaged Property.
[^] 2. The form of the Mortgage, the assignment thereof, and the financing statement
executed in connection with the Mortgage comply with all applicable recording and filing laws of the
State of Florida. The property descriptions of the real properties contained in the Mortgage are in
proper form for the purposes of all applicable recording, filing, and registration laws.
[^] 10. The fully executed counterpart of the Mortgage has been recorded in the
offices of the Clerk of the Circuit Court of Pine lias County, Florida, and a fully executed counterpart
of the financing statement executed in connection with the Mortgage has been filed in the real estate
records of such County and in the office of the Secretary of State of the State of Florida. To perfect
a security interest in the Mortgaged Equipment, including the Revenues (as defined in the Mortgage),
and other personal property which is intended to be subject to the Mortgage and which can be
perfected by filing a financing statement under the Florida Uniform Commercial Code, it is necessary
to file a financing statement in the office of the Secretary of State of the State of Florida. A fully
executed counterpart of the financing statement executed in connection with the Mortgaged
Equipment has been filed in the office of the Secretary of State of the State of Florida. We note that
continuation statements under the Florida Uniform Commercial Code can be properly and timely filed
in each office in which a financing statement is filed within the six-month period preceding the
expiration of each five year period after the date of filing of each such financing statement in order
to extend the perfection of the security interest beyond five years from the date of filing of such
financing statements. No other filings are necessary for the purpose of creating and perfecting a
mortgage lien and security interest, other than an extension or other similar agreement with respect
to any renewal or extension of the obligations under the Agreement and continuation statements as
required by the Uniform Commercial Code of the State. With such filings, the Mortgage will
constitute as security for the Bonds and the other obligations referenced in the Mortgage, (i) a valid
mortgage lien on all real property and interests in the real property described in the Mortgage as being
mortgaged thereby, and (ii) a perfected prior security interest in all tangible personal property (except
for property in which a security interest cannot be perfected by filing or recording), fixtures and
Revenues described in the Mortgage as being mortgaged thereby to the extent the Uniform
Commercial Code of the State of Florida is applicable thereto. The Uniform Commercial Code filing
search performed by , dated , 1999, shows no other filings by
the Company. Title Insurance Company has issued a standard form AL T A
title insurance policy (Policy No. , effective , 1999) to the Issuer and the
Trustee in the amount of $ insuring in effect (subject to standard exclusions from the
coverage of mortgagee's title insurance policies) that the mortgage lien of the Mortgage will be
superior to any other liens and encumbrances on the real property covered thereby, except for certain
designated encumbrances which, in our opinion, are permitted under the Mortgage. The Mortgage
and financing statements create a lien upon and security interest in the real property and personalty
described therein, subject only to Permitted Encumbrances (as defined in the Mortgage).
D-2
[^] 11. No certificate of need or other Florida health planning agency approval or
consent is required for the transactions contemplated by the Company Documents, including the
acquisition, construction and installation of the Project, unless such certificate or other approval has
been obtained.
[^] 12. No authorization, approval, consent, permit or license of any regulatory body
or governmental authority, not already obtained, is required on the part ofthe Company for the valid
and lawful authorization, execution and delivery of the Company Documents and the assumption by
the Company of the obligations represented thereby or for the acquisition, construction and
installation of the Project.
[^] ll. The execution and delivery of the Company Documents and the assumption
by the Company of the obligations represented thereby will not conflict with, violate or constitute a
breach of or default under the Company's Articles of Incorporation or bylaws or any commitment,
mortgage, indenture, agreement or instrument known to us (after having made due inquiry with
respect thereto) to which the Company is a party or by which the Company is bound or, to the best
of our knowledge, any applicable law, administrative regulation or court decree.
[^] 14. To the best of our knowledge after having made due inquiry with respect
thereto, except as described in the Final Official Statement, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public
board or regulatory agency, against or affecting the Company wherein an unfavorable decision, ruling
or finding would have a material adverse effect on the business, properties or financial condition of
the Company or would adversely affect the Company's powers or existence or the validity or
enforceability of the Bonds, the Company Documents or the Indenture, or which might adversely
affect the Company's ability to perform its obligations under the Company Documents.
[^] 15. Nothing has come to our attention that would lead us to believe that the Final
Official Statement (other than the Issuer Portions, the Feasibility Studies appearing in Appendices A
and B thereto or the financial statements appearing in Appendix D thereto, as to which we express
no opinion) contains any untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
It is to be understood that the enforceability of the Company Documents is subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws
affecting creditors' rights heretofore or hereafter enacted, to the extent constitutionally applicable,
and that their enforcement may be subject to the exercise of judicial discretion in accordance with
general principles of equity.
D-3
EXHIBIT E
Opinion of Counsel to the Issuer
(T erms defined in Purchase Agreement
are used. here with the same meanings)
I. The Issuer is duly organized and validly existing as a municipal corporation of the
State of Florida, with the powers and authority set forth in the Act, including the authority to issue
and sell the Bonds and execute, deliver and perform its obligations under the Issuer Documents:
2. The officials of the Issuer identified in the certificates of the Issuer delivered on the
Closing Date have been duly elected or appointed and are legally qualified to serve as such.
3. To the best of my knowledge, the Issuer Documents do not violate or conflict with
the provisions of any indenture, mortgage, agreement or other instrument to which the Issuer is a
party or by which it or its properties may be bound.
4. No additional or further approval, consent or authorization of any governmental or
public agency or authority not already obtained is required by the Issuer in order to issue or sell the
Bonds or enter into and perform the obligations of the Issuer under the Issuer Documents.
5. There is, to the best of my knowledge and information, no action, suit, proceeding or
investigation at law or in equity before or by any court, public board or body, pending or, to the best
of my knowledge and information, threatened against or affecting the Issuer, wherein an unfavorable
decision, finding or ruling would adversely affect the transactions contemplated by the Final Official
Statement and the Issuer Documents.
6. The Issuer's Authorizing Resolutions have been duly adopted by the Issuer, comply
in all respects with the procedural rules of the Issuer and the requirements of Florida law and remain
in full force and effect on the date hereof
7. To the best of my knowledge, the information contained in the Issuer Portions of the
Preliminary Official Statement and the Final Official Statement is true and correct in all material
respects and such documents do not contain any untrue statements of material fact and do not omit
to state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; it being understood that
no opinion is being rendered with respect to the information contained in the Preliminary Official
Statement or the Final Official Statement other than the Issuer Portions.
E-I
EXlllBIT F
Form of Bond Counsel Opinion
The Form of Bond Counsel Opinion is attached as Appendix G
to the Preliminary Official Statement.
F - 1
ExmBIT G
Supplemental Opinion of Bond Counsel
(T erms defined in Purchase Agreement
are used here with the same meanings)
1. No registration with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, need be made in connection with the offering and sale of the Bonds by the
Underwriter, and the Indenture is not required to be qualified under the Trust Indenture Act of 1933,
as amended.
2. With respect to the information in the Final Official Statement, and based on our
review of said Final Official Statement as bond counsel, and without having undertaken to determine
independently the accuracy or completeness of the contents of the Final Official Statement, the
information in the Final Official Statement under the headings "INTRODUCTION" (other than the
information contained under the subheadings "The Company and the Facility," "Historical and
Selected Financial Information" and "Bondholders' Risks" as to which no opinion is expressed), "THE
SERIES 1999A BONDS," "THE SERIES 1999B [^] EXTRAssM." "THE SERIES 1999C [^]
BONDS," "THE SERIES 1999 BONDS - ADDITIONAL INFORMATION," "TAX MATTERS"
and" APPENDIX E - Definitions and Summary of Principal Documents," insofar as the same purports
to describe or summarize the provision of the Bonds, the Agreement, the Notes, the Indenture, the
Mortgage, the Act and the Code, are accurate and fair summaries of the information purported to be
summarized therein.
3. All conditions precedent in the Indenture relating to the authentication and delivery
of the Bonds have been satisfied.
4. The Underwriter may rely on our bond opinion dated even herewith, with respect to
the Bonds t.o the same extent as if such opinion were addressed to the Underwriter.
G - 1
EXlllBIT H
Disclosure Statement
,1999
City of Clearwater, Florida
112 South Osceola Avenue, 3rd Floor
Clearwater, Florida 33756
BEF, Inc.
1601 Jack Street, Suite 200
Fort Myers, Florida 33901
Re: City of Clearwater, Florida Revenue Bonds, Series 1999A (BEF, Inc.
Project), [^] Revenue Bonds, Series 1999B (BEF, Inc. Project)
Extendable Rate Adiustable SecuritiesSM (EXTRASSM) and Taxable
Revenue Bonds, Series 1999C (BEF, Inc. Project) [^]
Ladies and Gentlemen:
In connection with the proposed issuance by the City of Clearwater, Florida (the "Issuer") of
$ aggregate principal amount of the above- referenced bonds (the "Bonds"), B.C. Ziegler
& Company (the "Underwriter") is underwriting a public offering of the Bonds.
The purpose of this letter is to furnish, pursuant to the provisions of Section 218.385(6),
Florida Statutes, as amended, certain information in respect of the arrangements contemplated for the
underwriting of the Bonds as follows:
1. The nature and estimated amount of expenses to be incurred by the Underwriter in
connection with the purchase and offering of the Bonds are set forth in Schedule I attached hereto.
2. No person has entered into an understanding with the Underwriter, or to the
knowledge of the Underwriter, with the Issuer for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the
Issuer and the Underwriter or to exercise or attempt to exercise any influence to effect any
transaction in the purchase of the Bonds.
3. The underwriting spread (the difference between the price at which the Bonds will be
initially offered to the public by the Underwriter and the purchase price to be paid to the Issuer for
the Bonds, exclusive of accrued interest) will be $
4. As part of the estimated underwriting spread set forth in paragraph (3) above, the
Underwriter will charge a management fee of $
H - 1
5. No other fee, bonus or other compensation is estimated to be paid by the Underwriter
in connection with the issuance of the Bonds to any person not regularly employed or retained by the
Underwriter (including any "finder" as defined in Section 218.386(1)(a), Florida Statutes, as
amended), except as specifically enumerated as expenses to be incurred by the Underwriter, as set
forth in paragraph (1) above.
(1) The name and address of the Underwriter is:
B. C. Ziegler and Company
III Second Avenue, N.E., Suite 915
St. Petersburg, Florida 33701-3411
Attention: Richard 1. Scanlon, Vice President
We understand that you do not require any further disclosure from the Underwriter pursuant
to Section 218.385(6), Florida Statutes, as amended.
Truth-in-bonding Statement
The Issuer is proposing to issue the Bonds for the purpose of providing funds
sufficient, together with other available moneys, to (i) finance or refinance the cost of the acquisition
and construction of various capital improvements to certain continuing care retirement facilities
owned by BEF, Inc. and located in the City of Clearwater, Florida, (ii) fund a debt service reserve
fund with respect to the Bonds and (iii) pay certain costs with respect to the issuance of the Bonds.
The Bonds are expected to be repaid over a period of30 years. At interest rates shown on the back
of the cover page of the Final Official Statement, dated , 1999, relating to the Bonds, and
assuming an interest rate of _ for the variable rate portion of the Bonds, total interest paid over
the life of the Bonds will be $
The source of repayment or security for the Bonds consists of loan payments to be
made by BEF, Inc., as repayment for the loan of the proceeds of the Bonds, and certain other
revenues and proceeds as provided in the Indenture relating to the Bonds. Authorizing the Bonds
will not result in any adverse change in the amount of Issuer moneys available to finance other
H - 2
services of the Issuer. The foregoing statements are intended to comply with Section 218.385(2) and
(3), Florida Statutes, as amended, and shall not affect or control the actual terms and conditions of
the Bonds.
Very truly yours,
B. C. ZIEGLER AND COMPANY
By:
Richard J Scanlon
Vice President
H - 3
.
SCHEDULE I
UNDERWRITER'S ESTIMATED EXPENSES
Underwriter's Counsel (fee and expenses)
Travel and Out-of-Pocket(I); Federal Funds;
Data Processing and Communications;
MSRB, CUSIP, dalnet, PSA and DTC
Total
(I) Includes computer, travel, telephone and telecopy and internal advertising:
H - 4
..
EXIDBIT I
Form of Architect's Certificate
The undersigned, (the "Architect"), hereby certifies to
, as Trustee (the "Trustee"), as follows:
1. The Architect is a licensed architect in the State of Florida and has been engaged by
BEF, Inc. (the "Company") to design and supervise construction of the improvements described on
Exhibit A hereto (the "Project"). In such capacity, the Architect has prepared plans, specifications
and working drawings for the Project (collectively, the "Plans").
2. In addition, the Architect has been engaged by the Company to advise the Company
as to necessary permits and the applicability of governmental regulations to the construction of the
Project.
3. The Architect acknowledges that the Company is obtaining a portion of the funds for
construction of the Project from the proceeds of City of Clearwater, Florida Revenue Bonds (BEF,
Inc. Project) (the "Bonds") and that the Trustee is indenture trustee for holders of the Bonds.
4. All necessary permits for construction of the Project, including a building permit and
any required stormwater drainage permits, have been received by the Company and are in effect.
5. The Project, as constructed in accordance with the Plans, will satisfy all federal, state
and local building codes and other regulations, including, without limitation, all requirements of the
Americans with Disabilities Act and with all zoning, setback and other land use regulations.
6. The Architect has satisfied itself that the soils beneath the Project will provide
adequate, stable support for the Project as completed.
7. Adequate water, sewer and electrical lines are available at the Project site to
adequately serve the needs of the Project and adequate utility capacity has been reserved, if
applicable. Water is provided by and sewer service is provided by
8. The Project budget, trade and materials breakdown and schedule of values, as
previously provided to the Trustee, are sufficient to complete the project in accordance with the
Plans.
9. The certificate of insurance attached hereto as Exhibit B accurately reflects the errors
and omissions coverage of the Architect and such coverage has not been terminated or reduced.
I - 1
~
10. The Project will have adequate parking, including handicapped parking and curb cuts,
to meet all governmental requirements and for the practical and efficient use of the Project as
intended.
11. The Architect has reviewed applicable zoning, concurrency and other applicable land
use regulations and such regulations permit the construction and use of the Project for its intended
purpose without the necessity of a variance or exception.
12. The Architect has reviewed a current survey of the Project site and construction of
the Project will not encroach upon any property lines, easements, rights-of-way or setback lines.
This certificate is given with the understanding that it will be relied upon by the Trustee on
behalf of holders of the Bonds.
[NAME OF ARCHITECT]
By:
Its:
1-2
-
EXHIBIT J
Form of Opinion of Counsel to the Trustee
1. The Trustee is a national banking association with trust powers, and is duly organized,
validly existing and in good standing under the laws of the United States of America.
2. The Trustee has the corporate power and authority to carry out the duties and
obligations of the Trustee under the Indenture.
3. The execution, delivery and performance by the Trustee ofthe Indenture has been duly
authorized by all necessary corporate action on the part of the Trustee.
4. The Indenture constitutes a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, moratorium, insolvency or other similar laws affecting the rights
of creditors generally and by general principles of equity.
5. The Bonds have been duly authenticated by the Trustee.
J - 1