99-18
. . ;
" ",
" , '
., .
. ". .
,:, 'c :I'
. ,
, ,
, .
. .
.~ ' , . , ,
(, .
" .
I,: .' . .
.. .
.,
: , ~
,
'.
. "
. ,
'~ ' '
. >.\... ,
L
. . .
t' . ' ..' RESOLUTIONS
" '
>.. " '
~" .
, .
, .
. ..
" ' , '
I' " ' .
:. . '#
' .,
I
c',.
, ,
o " ' ,
. .
.' ,
"
'.qq -Ii
,
i
!
I
I
, I
1
,
I '
CJ9
(1
,.:) .
'::J
RESOLUTION NO. 99-18
A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$35,000,000 AGGREGATE PRINCIPAL AMOUNT OF CITY OF
CLEARWATER, FLORIDA REVENUE BONDS, SERIES 1999 (BEF, INC.
PROJECT); PROVIDING FOR THE FORMS OF TRUST INDENTURE, LOAN
AND SECURITY AGREEMENT, MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF MORTGAGE; APPROVING AND AUTHORIZING
EXECUTION OF TRUST INDENTURE AND LOAN AND SECURITY
AGREEMENT AND ASSIGNMENT OF MORTGAGE AND SECURITY
AGREEMENT; APPROVING BOND PURCHASE AGREEMENT RELATING TO
THE NEGOTIATED SALE OF THE BONDS TO THE UNDERWRITERS;
APPOINTING A TRUSTEE, REGISTRAR AND PAYING AGENT WITH
RESPECT TO THE BONDS; AUTHORIZING THE DISTRIBUTION OF AN
OFFICIAL 5T A TEMENT IN CONNECTION WITH THE ISSUANCE AND
DELIVERY OF SUCH BONDS; PROVIDING FOR AND AUTHORIZING THE
DELEGATED SALE OF SUCH BONDS; PROVIDING APPROVAL AS
REQUIRED BY SECTION 147(F) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Clearwater, Florida (the "Issuer") by this
Res0lution (the uResolutionU) and as authorized by Ordinance No. 6370-99 (the "Ordinance"),
expresses its agreement as to the issuance of the Issuers Revenue Bonds, Series 1999A, Series 1999B
and Series 1999C (BEF, Inc. Project) (the "Bonds"), in the aggregate principal amount of not to
exceed $35,000,000, for the purpose stated in the Ordinance for the benefit ofBEF, Inc., a Florida
not for profit corporation (the UCompany") and providing for other matters consistent therewith; and
WHEREAS, the Issuer desires to approve the forms ofTnist Indenture, Loan and Security
Agreement, Mortgage and Security Agreement and Assignment of Mortgage and Security Agreement
to be executed in connection with the issuance of the Bonds; and
. WHEREAS, the Issuer wishes to approve the fonn of the Official Statement and to authorize
distribution thereof in connection with the issuance and delivery of its Bonds; and
Resolution 99-18
:')
WHEREAS, the Issuer intends to negotiate the sale ofthe Bonds as hereinafter provided with
B. C. Ziegler and Company (the "Underwriter") pursuant to a Bond Purchase Agreement; and
WHEREAS, the Financial Services Administrator, as designee of the Deputy City Manager
of the Issuer, conducted a public hearing on February 23, 1999, notice of which hearing was
published on February 9, 1999, in the St. Petersburg Times (a copy of which notice is attached hereto
as Exhibit UG" and incorporated herein), for the purpose of considering the issuance of the Bonds by
the Issuer, in accordance with the requirements of Section 147(t) of the Internal Revenue Code of
1986, as amended (the "Code"), and said public hearing disclosed no reason why the Bonds should
not be issued; and
WHEREAS, Section 147(f) of the Code requires approv~ of the issuance of the Bonds by
the City Commission of the Issuer as the uapplicable elected representative" under Section 147(f)
':) after a public hearing following reasonable public notice~ and
WHEREAS, the Issuer now desires to provide for the form of the foregoing documents to
facilitate the issuance and delivery of the Bonds.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF CLEARWATER, FLORIDA, as follows:
SECTION 1. In accordance with the Ordinance, there is hereby authorized and directed to
be issued the Issuer's Revenue Bonds, Series 1999A, Series 1999B and Series 1999C (BEF, Inc.
Project) (the "Bonds"), in the aggregate principal amount of not to exceed $35,000,000. The Bonds
shall be issued under and secured by the Indenture referred to below which by reference is hereby
incorporated in this Resolution as if set forth in full herein. The Bonds shall mature in the amounts
and at the times, shall bear interest at the rates, be redeemable at the redemption prices and upon the
J
2
Resolution 99-18
_!lIIIo"l-oI....,...~....r....,~~
'~
terms as shall be set forth in the Indenture (as hereinafter defined) and in the Bond Purchase
Agreement (as hereinafter approved). The Bonds shall be executed. authenticated and delivered by
the officers of the Issuer authorized below in substantially the form set forth in the Indenture in fully
registered form.
SECTION 2. The Trust Indenture (the "Indenture"). in substantially the form attached hereto
as Exhibit "AU. is hereby approved, and the Mayor-Commissiot).er, City Manager and Clerk of the
Issuer are hereby authorized and directed to execute and deliver the Indenture upon the approval
thereof as to form and legal suffici~ncy by the City Attorney, on behalf of and in the name of the
Issuer with such additional changes, insertions and omissions therein including. but riot limited to. the
insertion of rates, maturities and other details of the Bonds detennined as herein provided and as may
be made prior to the delivery of the Bonds, and as may be otherwise made and approved by the said
"') officers of the Issuer executing the same, such execution to be conclusive evidence of such approval.
In connection with the delivery of the Indenture and the issuance of the Bonds, the Issuer hereby
approves the delivery of a Mortgage and Security Agreement by the Company to the Issuer in
substantially the form attached hereto as Exhibit "B".
SECTION 3. The Loan and Security Agreement in substantially the form attached hereto as
Exhibit "e" (the "AgreementU) and the Assignment of Mortgage And Security Agreement in sub-
stantialIy the form attached hereto as Exhibit "Du (the "Assignment"), are hereby approved,
confirmed and ratified and the Mayor-Commissioner. City Manager and Clerk are hereby authorized
and directed to execute and deliver the Agreement and the Assignment upon the approval thereof as
to form and legal sufficiency by the City Attorney, on behalf of and in the name of the Issuer with
such additional changes, insertions and omissions therein as implement the provisions of the Bond
.:)
3
Resolution 99-18
~'L~";i"~-.#"'"' ,
..~
Purchase Agreement (hereinafter mentioned), and as may be otherwise made and approved by the
. said officers of the Issuer executing the same. such execution to be conclusive evidence of such
approval.
SECTION 4. It is hereby found and detennined that due to the complexity of the financing
and the need to coordinate matters among the Issuer, the Company and Bond purchasers, it is in the
best interest of the Issuer to negotiate the sale of the Bonds. The disclosure required by Section
2] 8.385, Florida Statutes, as amended, shaH be provided to the Issuer. as evidenced by a schedule
attached to the Bond Purchase Agreement hereinafter described, wherein the Underwriter agrees to
provide disclosure to the Issuer prior to execution by the Issuer of the Bond Purchase Agreement.
The negotiated sale of not to exceed $35,000,000 City of Clearwater. Florida Revenue Bonds, Series
1999A, Series 1999B and Series 1999C (BEF. Inc. Project) is hereby approved to the Underwriter
':) upon the terms and conditions set forth in the Bond Purchase Agreement, which is hereby approved
in substantially the form attached hereto as Exhibit "E". The Bond Purchase Agreement, with such
changes. alterations and corrections as may be approved by the City Manager and Financial Services
Administrator of the Issuer. such approval to be presumed by the Issuer's execution thereof: is hereby
approved by the Issuer, and the Issuer hereby authorizes the Mayor~Cornmissioner and City Manager
of the Issuer to execute and deliver (attested by ~he Clerk of the Issuer and approved as to form and
~ '~"', ,. 0
... .., "c>
legal sufficiency by the City Attorney), said Bond Purchase Agreement in the name of and on behalf
of the Issuer. all of the provisions of which, when executed and delivered by the Issuer as authorized
herein shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated
verbatim herein. The Bonds are hereby sold to the Undenvriter in the amount, at the price and upon
.J
4
Resolution 99~ 18
:~....,
)
J
the final terms set forth in the Bond Purchase Agreement subject to the conditions set forth in the
next paragraph.
The City Manager and Financial Services Administrator are hereby authorized to award the
sale ofthe Bonds to the Underwriter under the Bond Purchase Agreement so long as the net interest
cost for the Bonds (detennined based on the initial interest rates at closing) does not exceed 7.50 %
per annum, the Underwriter's discount is not in excess of 4.0%, and the final maturity date of the
Bonds is not later than the year 2035, without need of further authorization of the Issuer.
SECTION 5. The Issuer hereby approves the Preliminary Official Statement, relating to the
Bonds in substantially the fonn attached hereto as Exhibit "Ft' and authorizes the use and distribution
by the Underwriter of said Prelirninwy Official Statement and a Final Official Statement relating to
the Bonds with such revisions as shall hereafter be approved by the Mayor-Commissioner, City
Manager or Financial Services Administrator of the Issuer and, with such approval and authorization,
the distribution of such Final Official Statement by said Underwriter in connection with the sale and
issuance of the Bonds. The Financial Services Administrator of the Issuer is hereby authorized to
deem the Preliminary Official Statement "nearly final" on behalf of the Issuer, as required by Rule
1 Sc2-l2 of the Securities Exchange Commission.
SECTION 6. With respect to the Bonds, SunTrust Bank, Central Florida, National
Association, is hereby appointed as Trustee, Registrar and Paying Agent pursuant to the Indenture.
SECTION 7. The Issuer, pursuant to, and in accordance with, the requirements set forth in
Section 147(f) of the Code, hereby approves the issuance of the Bonds.
SECTION 8. All prior resolutions and motions of the Issuer inconsistent with the provisions
of this Resolution are hereby modified, supplemented and amended to conform with the provisions
5
Resolution 99~18
"}
herein contained and except as otherwise modified, supplemented and amended hereby shall remain
in full force and effect.
SECTION 9. To the extent that the Mayor-Commissioner, City Manager or the Clerk of the
I,
1
Issuer are unable for any reason to execute or deliver the documents referred to above, such
documents may be executed, attested andlor delivered by the Vice-Mayor or any other Commission
Member of the Issuer or by an ~istant City Manager or an assistant or deputy Clerk, with the same
effect as if executed andl or delivered by the Mayor-Commissioner, City Manager or Clerk.
SECTION 10. The Mayor and the Clerk and all other Commission members of the Issuer and
the staff of the Issuer are hereby authorized and directed to execute any and all certifications or other
instruments, agreements or documents required by the Indenture, the Agreement, the Bond Purchase
Agreement, Bond Counselor any other document referred to above as a prerequisite or precondition
.) to the issuance of the Bonds and any representation made therein shall be deemed to be made on
behalf of the Issuer. All action taken to date by the members of the Issuer and the staff of the Issuer
in furtherance of the issuance of the Bonds is hereby approved, confirmed and ratified.
SECTION 11. Notwithstanding anything in this Resolution to the contrary, if at any time
subsequent to the adoption of this Resolution and prior to the date the Bond Purchase Agreement
'. '.
is executed by the City, the City Attorney determines, based on advice from the City's Financial
, .,., ~I ~.,' . "
Services Administrator, the City's Bond Counsel andlor the City's Financial Advisor, that financial,
legal or tax issues related to the Bonds remain unresolved, then the Bond Purchase Agreement
otherwise authorized by this Resolution shall not be executed without further action by the City
Commission or unless the City Attorney determines based on advice from the Citis Financial
'J
6
Resolution 99-18
~~::!- :~~::":':"':"':'_':'-""',"",_____'_ n'..'~
,
I ' .','
, , .
',i.,:/ '
/.
'.: . ',1
.,,' ,',
,1 ~.. ;.
~ ,-rl- c
, ,
,:.:,. ~.....->~ ..... c '/", "t'" C ''''"' , _.
\., ,.v'
}; ,
.,>, V
....,". .
~':A;:
~ :~...'-: I '
," I:)
....~
r..;:.:" ,
c\:. ,
\'". ,., ~
10", .,
'f/<
','
.;' ..
}.J..,;~.,;~~~
l\:,~' ,>
iv:~" " .
t.\,; . . '. ~
i'~ ( ,
,"i" ",
'::, ,
~~'!" . v .
.t.;.
~'{ ,
:'.~.;>~, 'c" , :
" " > ~ ,
"- :,'
l"; :'.
;~~1~~. ':.~ j
'," .
.,';" ,
.,. '
,c, I',.
, '0
:: '/, >
',:.: ":
i '
.,' ,
,',
:' '"
[.
?;\'
c(,',
'.. (~...,\
~"4 ~
, .
",.':T '
", '
LA:,,'.
C",: : '
! ~ -' " .
,~':, " ,
~,t ::'. ~
','
, .
, !.
, :1
" .
,,'
.,'
,. .
Services ,Administrator, the City's ,~ond Counsel and/or the C~ty's Financial Advisor that such
financial. legal or tax issues l1ave been resolved.
i,
SECTION 12. This Resolution shall become effective immediately upon its adoption.
I,
'.'
,;
'. . ~ .....;"t, .' l
',.,~".... -
7,
Resolution 99-18
'~' ,
,.
t~. ' '
f/:>:f':'{;':.~?;:><" ;,:.-
~ I... .,
. ::. ,\..' 1 "
, . ~ " , ,.0 '
., ,
, "~"
I ~ ".
, .~'
"
.,..'..
~
Passed and adopted by the'City Commission of the City ofClenrwater, Florida, thls11!ltlay
of' June, 1999.
, ' (SEAL)
By:
j,.C
~:
ATTEST:
V
)., ~, ' ,
y .
" .
i'." " .
,(:: . ,Ii ~6'; City,C'ser
r~, , ,/ .
~.. ' '.
.:'\~ '
, '
'~C .
Approved as to form and
correctness: .
~ ','
;,.,:,'.
!!, '
I.J
City Attorney
'~ ,J'
"i
-:,
~,.<J'
. , .'. ".J'
, ,~ ... . .u
'. ':'''',\
\..,..J
8
Resolution 99~ 18
',;1
~, .
,~, f ".
.. 1,li,:';," ~
,i
,:.~:.~,~\.,..t....:';..,\.'.:.'.<:~'~'::'I\ : . :".,:~.':..'< . ..t~ , j"', ...,. ,~ ' .
~.t... ," ':~.: ,....~,i:>.:,~, '.. ~ ;. )~~,'i.. '.
f
"
~'I '
;. ,."
,
,.
, ~ '
1::,
,.
? ': .~.
~ .~ ',> ,
;;\'
'.:.;~
~ ~. ~~~;,~1'
EXHIBIT A
t>
FORM OF TRUST INDENTURE
J. ,
"I
:.:.~: '
~', '
fo:"
~' :
:i>.
(
j "
i;',:
~",
~,:'
~L
~,,~i'" :,'
n,;:..
,"'"
I~',
~; ...
{.,
't.'. ,',
r'::~i"""
" .
\,/
~P'"
.- '1<'
:, ~;' '
I,,::,
,.
H
,..~
. 1.....;,1
:,
.,::.:... .
~ ..
l
t.:
,
,
i"
i, .'.
,
::>
..'.'a"-
. .
~ <:. ,
'..l
:,.j
, ,.
t"..
.1-...
,Ie: ':'
~ .J,.' .
tj;i; ~;;,;:,<;. "(J:~~"Li'{"~~'':f;::;i';,,;~,:</ ;~"~'i:.:':,.,:,../i: '.::' :.: :":..~;:'::, ":"".: ::"~" );,;,; ,'., . .::;!"; '/":;';:" .' ,:::,., " .,::', "" ,;,. ;,,,,,.,
~,),~~fIt1EI':\.1l~fbl\~:" ,::b?,\.~0P""';jC;,.f,~ .!. " I ,.,,1:(:., . .1' \ ,','1"' " ",J" ,,,,:.., '. '" . .{, ~k'..r':"'" .'~ ".l\,~i' 'f~ ,',J",,: .,;;,
d,.:~~~~~::'~"~.~':,.W~l!;..)If'.~(~;J",:':ii~f{,f'~I~o'::' .,c:."~',>"'~' ln" '". +': ,'.T';-+ ,'~,,":. .~. >'~~'"'' ;'~.,",' :;'.tY":;.',oV;"';,!', '/.; -'.~, ' . ,'"
.~ "
.. .~~,,:1 :~ ~';" ~~~: ~ ,':~ ',~ ~;~:' ~: I~'~ ~ ': . f..~, . :'"f :L ,
Res'olution 99~18
, t.4. ~>I::' I~:~L;~~~ ;::,:/',i."!~: ~.,:
,,"~
~ ' . '
-:t" ">, ,c'c' '...,
'1
~'I ,""
I.
;:
:)
'J
"
~..
~:
.,
Draft #4
OS/28/99
BMO #3195
TRUST INDENTURE'
between
CITY OF CLEARWATER, FLORIDA
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
as trustee
City of Clearwater, Florida
Revenue Bonds
. (8EF, Inc. Project)
Dated as of July 1, 1999
%. 19-/~
:1
.1
j!
'J
SECTION 1.01.
SECTION 1.'02.
SECTION 1.03.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
,,M)
.... .
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
SECTION 3.05.
SECTION 3.06.
SECTION 3.07.
SECTION 3.08.
SECTION 3.09.
TABLE OF CONTENTS
ARTICLE I
DEFINIT[ONS
Definitions ..... t . . + , . . . + I . . . ... . . . II . .. . I . . " -II . . 5
Interpretation . . . . .. . . .. . . . . I' . . . . .. , . . . . . . . . . . . . 23
Captions and Headings . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE II
AUTHOR[ZA TION AND TERMS OF
SERIES 1999 BONDS; ADDITIONAL BONDS
Authorized Amount of Series 1999 Bonds . . . . . . . . . . . . . 24
Issuance of Series 1999 Bonds . . . . . . .'. . . . . . . . . . . . . 24
Terms o(Series 1999 Bonds ..................... 24
Delivery of Series 1999 Bonds; AlIc:>cation of Proceeds of the Series
1999 Bonds; Company Equity Contribution. . . . . . . . . . . . 26
Issuance and Delivery of Additional Bonds . . . . . . . . . . . . 27
Issuance and Delivery of Notes ................... 29
ARTICLE [II
TERMS OF BONDS GENERALLY
Fonn of Bonds , , I . . . . . . I . . . . . . . . . . ,.. . . . .. .. .. . . .. 30
Variable Terms ......'....................... 30
Execution and Authentication of Bonds .............. 30
Security for Payment of Bonds . . . . . . . . . . . . . . . . . . . . 31
Payment and Ownership of Bonds . . . . . . . . . . . . . . . . . . 31
Transfer and Exchange of Bonds .................. 32
Mutilated, Lost, Wrongfully Taken or Destroyed Bonds. . . . 33
Safekeeping and Cancellation of Bonds .............. 34
Temporary Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV
REDEMPTION OF BONDS; TENDER PROVISIONS
SECTION 4.01.
SECTION 4.02.
SECTION 4.03.
SECTION 4.04.
SECTION 4.05.
,::)
~ ",:,~""\\,,;\.,:;.~\,,,,', ,c~~.~:,' ". ".' '.
Mandatory Sinking Fund Redemption of Series 1999 Bonds . 36
Extraordinary Redemption Without Premium. . . . . . . . . . . 37
Optional Redemption of Series 1999 Bonds . . . . . . . . . . . . 37
Partial Redemption ... . . . . . . . . . . . . . '. . . '. . . . . . . . 38
Company's Election to Redeem . . . . . . . . . . . . . . . . . . . 38
-:;res. '19-1 f
, ' ~, . '.
,)
, ,.
SECTION 4.06.
SECTION 4.07.
'SECTION 4.08.
SECTION 4.09.
SECTION 4.10.
SECTION 4.11.
SECTION 4.12.
SECTION 4.13.
SECTION 4.14.
SECTION 4.15.
SECTION 4.16.
J
SECTION 5.01.
SECTION 5.02.
SECTION 5.03.
SECTION 5.04.
SECTION 5.05.
SECTION 5.06.
SECTION 5.07.
SECTION 5.08.
SECTION 5.09.
SECTION 5.10.
SECTION 5.11.
SECTION 5.12.
Notice of Redemption ...................,..... 38
Payment of Redeemed Bonds . . . . . . . . . . . . . . . . . . . . . 40
Variation of Redemption Provisions ................ 40
Series 1999B Bond Holders Put Option .............. 40
Moneys to Purchase Series 1999B Bonds; Duties of Tender Agent
. . . . . . . . :'. . . . . . . . . . . . . . . . . . . . . . . , . . . . . . 42
Failure to Remarket Tendered Series 1999B Bonds . . . . . . . 43
Remarketing of Series 1999B Bonds ........ . . . . . . . . 43
Delivery of Series 1999B Bonds and Proceeds of Sale . . . . . 43
No Purchases or Sales After Event of Default . . . . . . . . . . 44
Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Resignation of Remarketing Agent ................. 45
ARTICLE V
FUNDS AND PAYMENTS
Creation of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Application of Loan Payments and Additional Payments ... 46
Bond Fund ........,....................... 10 .. . . It . 48
Project Fund ... Ii .. . . . . . . .. . . . . . . . . ,. .. . . . _ . ,. , . . 48
Rebate Fund ...... II .. .. . . . . II ,. . , ... . .. .. ,. .. . . It .. .. . . . 49
Debt Service Reserve Fund . . . . . . . . . . . . . . . . . . . . . . 50
Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . ~ 51
Nonpresentment of Bonds. . . . . . . . . . . . . . . . . . . . . . . 51
Application of the Balances of the Special Funds ........ 51
Investments of Special Funds and the Rebate Fund . . . . . . . 51
Valuation .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE VI
TRUSTEE, REGISTRAR, PA YING AGENTS, AUTHENTICATING AGENTS
AND TENDER AGENTS
SECTION 6.01.
SECTION 6.02.
SECTION 6.03.
SECTION 6.04.
SECTION 6.05.
SECTION 6.06.
SECTION 6.07.
SECTION 6.08.
SECTION 6.09.
'J
Trustee's Acceptance and Responsibilities. . . . . . . . . . . . . 54
Certain Rights and Obligations of the Trustee .......... 55
Fees, Charges and Expenses of Trustee. Registrar, Tender Agents,
Paying Agents, Remarketing Agent and Authenticating Agents 59
Intervention by Trustee ........................ 59
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Appointment of Co-Trustee. . . . . . . . . . . . . . . . . . . . . . 60
Resignation by the Trustee ...................... 61
Removal of the Trustee ........................ 61
Appointment of Successor Trustee ................. 62
ii
'i?es. CJC{-/'l
1
"
SECTION 6.10.
SECTION 6.11.
SECTION 6.12.
SECTION 6.13.
SECTION 6.14.
SECTION 6.15.
SECTION 6.16.
SECTION 6.17.
SECTION 6.18.
.-)
-'
SECTION 7.01.
SECTION 7.02.
SECTION 7.03.
SECTION 7.04.
SECTION 7.05.
SECTION 7.06.
SECTION 7.07.
SECTION 7.08.
SECTION 7.09.
SECTION 7.10.
SECTION 7.11.
Adoption of Authentication . . . . . . . . . . . . . . . . . . . . . . 63
Registrars t t , , . . . . . ... t- . 4 .. . , . . . . .. . ,. -t .. . . . . + .. . -t 63
Designation and Succession of Paying Agents .......... 65
Designation and Succession of Authenticating Agents ..... 65
Designation and Succession of Tender Agents . . . . . . . . . . 66
Dealing in Bonds ............................ 67
Representations, Warranties, Covenants and Agreements of Trustee
. . .. . . III II . .. . I . , ., . , . . . . . t .. . ... It . . . . .. . t . . . . . . 67
Right of Trustee to Pay Taxes and Other Charges . . . . . . . . 68
Several Capacities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE VII
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND HOLDERS
Defaults; Events of Default. . . . . . . . . . . . . . . . . . . . . . 69
Notice of Default .. . . . . . . . . . . . . . . '. . . . . . . . . . . . 69
Acceleration II............,........................ II . . . . 70
Matters Regarding Rights, Remedies and Powers . . . . . . . . 70
Right of Holders to Direct Proceedings .............. 71
Appointment of Receivers . . . . . . . . . . . . . . . . . . . . . . . 72
Application of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . 72
Rights, Remedies and Powers Vested in Trustee. . . . . . . . . 74
Rights, Remedies and Powers of Holders . . . . . . . . . . . . . 74
Termination of Proceedings. . . . . . . . . . . . . . . . . . . . . . 75
Waivers It.. . It .. . .. . . ... . . .. .. I . . II . ill . . . .. . . . .. ... It. . 75
ARTICLE VIII
SUPPLEMENTAL INDENTURES
AND AMENDMENTS TO ISSUER DOCUMENTS
SECTION 8.01.
SECTION 8.02.
SECTION 8.03.
SECTION 8.04.
SECTION 8.05.
SECTION 8.06.
SECTION 8.07.
SECTION 8.08.
SECTION 8.09.
J
Supplemental Indentures Generally . . . . . . . . . . . . . . . . . 77
Supplemental Indentures Not Requiring Consent of Holders . 77
Supplemental Indentures Requiring Consent of Holders . . . . 78
Consent of the Company ....................... 80
Authorization to Trustee; Effect of Supplement ......... 80
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Amendments to the Company Documents Not Requiring Consent of
Holders ..,...... ~ It . , . II- . II- . . . . . .. . . . . . ;. Ii . . . I . 81
Amendments to the Company Documents Requiring Consent of
Holders 1'................. Ii . . . + , . . . . . . ;. It . . . 82
Moditication by Unanimous Consent . . . . . . . . . . . . . . . . 82
Hi
*es. 9q-/~
,j
. i
SECTION 9.01.
SECTION 9.02.
SECTION 9.03.
ARTICLE IX
DEFEASANCE
Release of Indenture .......... . . . . . . . . . . . . . . . . 83
Payment and Discharge of Bonds .. . . . . . . . . . . . . . . . . 84
Survival of Certain Provisions . . . . . . . . . . . . . . . . . . . . 86
ARTICLE X
COVENANTS, AGREEMENTS, REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
SECTION 10.01. Covenants and Agreements of the Issuer. . . ',' . . . . . . . . . 87
SECTION 10.02. Observance and Perfonnance; Representations and Warranties
SECTION 10.03. Enforcement of Issuer's Obligations ................ 88
. . . . ... ... t I . . ... . .. ... . . '" . ... . . . .. . ... . .. . . . . ... . , ... .. ... .. .. 88
"')
SECTION 11.01.
SECTION 11.02.
SECTION 11.03.
SECTION 11.04.
SECTION 11.05.
SECTION 12.01.
SECTION 12.02.
SECTION 12.03.
SECTION 12.04.
SECTION 12.05.
SECTION 12.06.
SECTION 12.07.
SECTION 12.08.
SECTION 12.09.
SECTION 12.10.
SECTION 12.11.
SECTION 12.12.
SECTION 12.13.
SECTION 12.14. "
~
ARTICLE XI
MEETINGS OF HOLDERS
Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Call of Meetings; Place of Meetings ................ 89
Meetings; Regulations of the Trustee . . . . . . . . . . . . . . . . 89
Voting; Speaking at Meeting; Record of Meeting . . . . . . . . 90
Miscellaneous ...........................'... 90
ARTICLE XII
MISCELLANEOUS
Limitation of Rights .......................... 92
Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Nocices . . . . '" .. ~ , . . ... . ... . . . . . ... . . . .. .. .. ... . . . . ... . . . .. 92
Suspension of Mail ...... . . . . . . . . . . . . . . . . . . . . . 93
Payments Due on Saturdays, Sundays and Holidays ...... 94
Ihstruments of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 94
Company to be Bound; Company's Actions ........... 95
Execution Counterparts ........................ 95
SurvivaJ of Representation and Warranties ............ 95
Validity of Assignments and Security Interest ....... " . . 95
Extent of Covenants; No Personal Liability. . . . . . . . . . . . 96
Binding Effect . . . . . . . . . . . . . . . . . . . . . . . .'. . . . . . 96
Captions ~ . Ii . Ii . . . . . . ... . . ;. . , . . t . . . . t . . . . Ii . . . . 96
Governing Law ............................. 96
iv
&5. qq-/8'
I
, ~..
+t "
!':,
;,t:
. ~ l '
.' .'
. l .'
, ,
t : ',l.,".
~ijo 1I.ttl,~Z":
"
, .
.,::~
! ~ .' ~:~'fl.~J
I':..
i'~
I'
....~. '
~i
). "
~.~;. ~.:: ~
l '
!.I< :
,Co
',? c .
.;', '.
" '
;<',
~ > ,~ c
i:,-'
~..
"
','
~., ,
. .
..,....". .
~ " ;
'... ;
~. '
"2)
. .fc'
i,
~. ..
,~. ~ h.
~."" \,'
~\i~ (.<,'.
".
'..~ II..;U'l.':~ ,~~ ....'~'..,
. . .' ~ ...
EXHIBIT A
,EXHIBIT B
.'.
" '
Bond Forin
Form of Inv'estor Letter
~ (
v
7?es.
99- /f6
--<illl<I
~
TRUST INDENTURE
THIS TRUST INDENTURE dated as of July I, 1999 (the "Indenture"), is made between
the CITY OF CLEARWATER, FLORIDA, a municipal corporation, duly created and existing
under the laws of the State of Florida (the "Issuer"), and SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, as trustee, located in Orlando, Florida, national
banking association duly organized and validly existing under the laws of the United States of
America, and authorized to exercise trust powers under the laws of the State of Florida (the
"Trustee"), under the circumstances summarized in the following recitals (the capitalized tenns
not defined in the recitals and granting clauses are defined in Article I hereof):
"'-.")
,../
WHEREAS, pursuant to the Florida Constitution, the Charter of the Issuer and laws of
the State of Florida, particularly Chapter 159, Part II and III, Chapter 166 and Chapter 154.
Florida Statutes, and other applicable provisions of law, the Issuer is authorized to make and
execute financing agreements, contracts and other instrum~nts necessary or convenient for the
purpose of facilitating the financing of certain projects, including machinery, equipment, land,
rights in land and other appurtenances and facilities related thereto, to the end that the Issuer may
be able to promote the health and safety of the inhabitants of the Issuer or industrial development
and the people of Pinellas County and the State of Florida by increasing their access to adequate
medical care and health care facilities, and to provide such financing through the issuance of
revenue bonds; and
WHEREAS, BEF, Inc. (the IlCompany") is a not-far-profit corporation organized and
existing under the laws of the State of Florida, licensed under Chapter 400 of the Florida Statutes,
as amended, which is engaged in the operation of the skilled nursing facilities at the Project and
which will be engaged in the operation of assisted living and independent.1iving facilities at the
Project; and
WHEREAS, the Issuer has determined to issue its $ aggregate principal
amount of Revenue Bonds, Series 1999A (BEF, Inc. Project) (the "Series 1999A Bonds"),
$ aggregate principal amount of Revenue Bonds, Series 1999B (BEF, Inc.
Project), Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the 'tSeries 1999B Bonds") and
$ aggregate principal amount of Taxable Revenue Bonds, Series 1999C (BEF, Inc.
Project) (the "Series 1999C Bonds" and together with the Series 1999A Bonds and the Series
1999B Bonds, the ttSeries 1999 Bonds") for the principal purpose of financing the Project Costs,
as more particularly described in the Agreement; and
WHEREAS, the Series 1999 Bonds and any Additional Bonds (collectively, the "Bonds")
to be issued under this Indenture do not constitute a debt or a pledge of the faith and credit of the
Issuer, the State of Florida or any political subdivision or agency thereof and the holders or
Holders of the Bonds shall have no right to have taxes levied by the Issuer, the State of Florida
or any political subdivision or agency thereof for the payment of principal of or interest or any
,~
1
~5 . crt --I rs
'}
'J
,~
.-~::"~.. .<
premium on the Bonds (although the Issuer has taxing power. it is prohibited by Section 159.34.
Florida Statutes, from using any funds of the Issuer to pay debt service or the Series 1999 Bonds);
and
WHEREAS, the proceeds of the sale of the Series 1999 Bonds will be loaned to the
Company and the Company will be obligated pursuant to the Agreement and the Series 1999 Note
to repay that loan, and the Company's repayment obligation will be secured by the Mortgage,
which will be assigned (other than the Unassigned Rights thereunder) to the Trustee by the
Assignment; and
WHEREAS, the Issuer is authorized to execute and deliver this Indenture and to observe
and perfonn all covenants, agreements and obligations to be observed or performed on its part
hereunder; and
WHEREAS, the execution and delivery of this Indenture has been duly authorized by the
Issuer; and
WHEREAS, all acts and conditions required to happen, exist and be performed precedent
to and in the issuance of the Series 1999 Bonds and the execution and delivery of this Indenture
have happened, exist and have been performed, or at the delivery of the Series 1999 Bonds will
exist, will have happened and will have been observed or performed, (i) to make the Series 1999
Bonds, when issued, authenticated and delivered, legal, valid and binding special obligations of
the Issuer in accordance with the terms of the Series 1999 Bonds and this Indenture, and (ii) to
make this Indenture a legal and valid trust agreement for the protection of the Bonds and the
Holders in accordance with its terms; and
WHEREAS, the Trustee has accepted the trusts created under this Indenture, and the
Registrar has accepted its obligations under this Indenture, and in evidence thereof, this Indenture
has been executed and delivered thereby;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that
(a) to assure (i) the payment of the Debt Service Charges on the Bonds according to
the true intent and meaning of the Bonds, and (ii) the observance and performance of all of the
covenants, agreements, obligations, terms and conditions contained in the Bonds and herein;
(b) to declare the terms and conditions upon and subject to which the Bonds are and
are intended to be issued, held, protected and enforced; and
(c) in consideration of the premises, the acceptance by the Trustee of the trusts created
herein. the purchase and acceptance of the Series 1999 Bonds by the Holders. and other good and
valuable consideration, the receipt of which is acknowledged hereby;
2
~s. q9-/~
)
" ,
",
._)
\
'J
.........~ ~.. ..... ..
the Issuer has executed and delivered this Indenture. and does hereby transfer and irrevocably and
absolutely assign to the Trustee, and grant to the Trustee a security interest in, all right, title and
interest of the Issuer in and to:
(i) the funds and accounts created under this Indenture and all moneys and
investments therein, except for amounts on deposit in the Rebate Fund and investment
income thereon whkh are hereby pledged to the United States of America to secure the
obligation of the Company and the Issuer to make payments of the Rebate Amount
pursuant to Section 148(0 of the Code;
(ii) the Agreement. other than "Unassigned Rights";
(Hi) the Loan Payments and the Additional Payments, excepting Additional
Payments made pursuant to Section 4.2 (a) of the Agreement;
(iv) the Series 1999 Note;
(v) the Mortgage; and
(vi) any and all other real or personal property of every name and nature from
time to time hereafter by delivery or by writing of any kind assigned, pledged or
transferred, as and for additional security hereunder by the Issuer or by anyone on its
behalf, or with its written consent, to the Trustee, which is hereby authorized to receive
any and all such property at any and all times and to hold and apply the same subject to
the terms hereof.
TO HAVE AND TO HOLD unto the Trustee and its successors in that trust and its and
their assigns forever;
BUT IN TRUST, NEVERTHELESS, and subject to the provisions hereof,
(a) except as provided otherwise herein, for the equal and proportionate benefit and
protection of all present and future Holders of the Bonds issued or to be issued under this
Indenture;
(b) for the enforcement of the payment of the Debt Service Charges on the Bonds,
when payable, according to the true intent and meaning' thereof and of this Indenture; and
(c) for the enforcement of the observance and performance of the covenants,
agreements, obligations, terms and conditions of this Indenture,
in each case, without preference, distinction or priority of any Bond over any other by reason of
designation, number, date of the Bonds, date of authorization, issuance, sale, execution,
3
H e5. Cfl-;?5
:~
, I
')
\
J
~.r.I-4<-.~"
authentication. delivery or maturity thereof, or otherwise, so that each Bond and all Bonds have
the same right, protection and privilege under this Indenture, and arc protected equally and ratably
hereby. it being intended that this Indenture take effect from the date hereof, without regard to
the date of actual issue, safe or disposition of the Bonds, as though upon that date all of the Bonds
were actually issued, sold and delivered to purchasers for value; provided, however, that if
(i) the principal of the Bonds and the interest due or to become due thereon,
together with any premium required for redemption of any of the Bonds prior to maturity, shall
be paid well and truly, at the times and in the manner to which reference is made in the Bonds,
according to the true intent and meaning thereof, or the outstanding Bonds shall have been paid
and discharged in accordance with Article IX hereof, and
(ii) all of the covenants, agreements, obligations, terms and conditions of the
Issuer under this Indenture shall have been observed and performed. and there shall have been
paid to the Trustee, the Registrar, the Paying Agents and the Authenticating Agents all sums of
money due or to become due to them in accordance with the terms and provisions hereof,
then this Indenture and the rights assigned hereby shall cease, determine and be void, except as
provided in Section 9.03 hereof with respect to the survival of certain provisions hereof;
otherwise, this Indenture shall be and remain in full force and effect.
IT IS DECLARED that all Bonds issued hereunder and protected hereby are to be issued,
authenticated and delivered in accordance with the covenants, agreements, obligations, terms and
conditions contained herein. The Issuer has covenanted and agreed, and agrees and covenants
he~eby, with the Trustee and with each and all Holders, as follows:
(Balance of page left intentionally blank)
4
r:Re5,
91- /g'
...-- ~"",--,.~~r",:~'~ '.",
. .'.' /
I,: c ..". I . +..... ..~. ~ .: I.. . tIT,. I
,~
( ,}
'J
, '\
'''';
ARTICLE I
DEFINITIONS
SECTION 1.01. Detinitions. In addition to the words and terms detined elsewhere
in this Indenture or by specific reference to another document, unless the context or use clearly
indicates another meaning or intent capitalized words and terms used in this Indenture shall have
the following meanings:
"Act" means the Florida Constitution, the Charter of the Issu~r and <;:hapter 154, Parts II
and III of Chapter 159, and Chapter 166, Florida Statutes, as amended and other applicable
provisions of law.
"Additional Bonds" means the Additional Bonds issued under the provisions of Section
2.05 of the Indenture.
"Additional Notes" means any non-negotiable promissory note or notes, in addition to the
Series 1999 Notes, delivered by the Mortgagor to the Trustee in connection with the issuance of
Additional Bonds as provided in the Agreement.
"Additional Payments" means the payments required to be paid by the Mortgagor under
Section 4.2 of the Agreement.
"Adjusted Rate" means the interest rate borne by the Series 1999C Bonds detennined in
the manner set forth in Section 2.03(b) of the Indenture.
"Affiliate" means a Person which controls or is controlled by the Company or is under
common control with the Company, as follows: (A) one Person shall be deemed to control
another if it owns more than 50% of the outstanding voting stock of or other equity interest in the
other, or it has the power to elect more than 50% of the governing body of the other; and (b) such
control may be exercised by one Person over another directly, indirectly through control over a
third party, or jointly with one or more controlled third parties.
"Agreement" means the Loan and Security Agreement dated as of July 1, 1999 between
the Issu~r and the Company, as amended or supplemented from time to time.
"Annual Cash Operating Expense" means, as of any date of determination thereof, the
expenses of operating the Project, other than depreciation, amortization and other non-cash items,
for the preceding 365 days, all as determined in accordance with generally accepted accounting
principles.
"Appraiser" means a Person designated by the Aulhorized Company Representative, with
written notice to the Trustee, who (i) is a member of the American Appraisal Institute, (ij) has no
5
Kes. CfI-/~
)
'~
u
';.~ .'
~..... ~_.
interest. direct or indirect. in the Company other than payment for services and (iii) in the case
of an individual, is not a member, director, trustee, officer or employee of the Company or, in
the case of another Person, has no partner, member, director, trustee, officer or employee who
is a member, director, trustee, ot"ticer or employee of the Company. In the event that the
American Appraisal Institute should cease to exist, the term "Appraiser" shall mean a Person,
designated by the Company with written notice to the Trustee and not objected to by the Trustee
within 10 days after receipt of such notice, which objection shall not be unreasonably interposed,
who is recognized as quafified to appraise the value of buildings, furnishings and equipment
comparable to the Project and who does not have any relationship prohibited in the preceding
sentence.
"Arbitragc Rcbatc Agrccmcnt" means the Arbitrage Rebate Agreement dated as of July
1, 1999 among the Issuer, the Company and the Trustee.
"ArcWtcct" means a Person, designated by the Authorized Company Representative, with
written notice to the Trustee, who or which Architect (i) is licensed or permitted to practice
architecture or engineering in the State, (ii) has no interest, direct or indirect, in the Company and
(Hi) in the case of an individual, is not a member, director, trustee, officer or employee of the
Company or, in the case of another Person, has no partner, member, director, trustee, officer or
employee who is a member, director, trustee, officer or employee of the Company.
"Assigmnent" means the Assignment of Mortgage of even date with the Mortgage, from
the Issuer to the Trustee, as amended or supplemented from time to time.
"Auditor" means a recognized firm of independent certified public accountants of good
repute, designated by the Authorized Company Representative, which is licensed or permitted to
practice as accountants and auditors in the State.
"Authenticating Agent" means the Trustee, as Registrar for the Bonds and any bank, trust
company or other person designated as an Authenticating Agent for the Bonds by or in accordance
with Section 6.13 of the Indemure, each of which shall be a transfer agent registered in
accordance with section 17A(c) of the Securities Exchange Act of 1934, as amended.
"Authorized Company Representative" means the person at the time designated to act
on behalf of the Company by its Chief Executive Officer by written certificate furnished to the
Trustee and the Issuer, which certificate may designate an alternate or alternates. rn the event that
all persons so designated become unavailable or unable to act and the Company fails to designate
a replacement within ten (to) days after such unavailability or inability to act, the Trustee may
appoint an interim Authorized Company Representative until such time as the Company designates
that person.
6
rueS. CfI-;g
J
"Authorized Denominations" means (a) with respect to the Series 1999 Bonds. $100,000
or any integral multiple of $5,000 in excess thereof, and (b) with respect to Additional Bonds. the
denominations authorized in the applicable Supplemental Indenture.
"Authorized Official" means the' Mayor~Commissioner, Vice Mayor, City Manager or
Assistant City ManaIjer of the Issuer, or such other officer of the Issuer as may be designated in
writing to the Trustee and the Company by the Issuer.
"Bond Cow1Sel" means Bryant, Miller and Olive, P.A., Tallahassee, Florida or such other
firm of attorneys approved by the Issuer of nationally recognized standing in the field of municipal
,finance law whose opinions are generally accepted by underwriters and other purchasers of
obligations issued by state and local governments.
"Bond Fund" means the Bond Fund created by Section 5.01 of the Indenture.
"Bond Purchase Agreement" or "Purchase Agreement" means, with respect to the Series
1999 Bonds, the Bond Purchase Agreement among the Issuer, the Company and the original
purchaser of the Series 1999 Bonds; and as to any Additional Bonds, any bond purchase
agreement for which provision is made to purchase such Bonds by the original purchaser thereof.
"Bond Year" has the meaning set forth in the Arbitrage Rebate Agreement.
'~
"Bonds" means the Series 1999 Bonds and any Additional Bonds.
"Business Day" or "business day" means any day of the year on which banks in any of
the cities in which the principal office of the Trustee or of the designated office of any Paying
Agent are located are not required or authorized by law to remain closed and on which the Trustee
and any Paying Agent and the New York Stock Exchange, Inc. are open for business.
"Capitalized Interest" means accrued interest, if any. received upon the sale of the Bonds
plus any imerest to become due and payable on the Bonds, which is included in the principal
amount of the Bonds. and deposited in the Bond Fund and used to pay interest on the Bonds, until
completion of a related project.
"Chicago Time" means the time on any given day in the City of Chicago, IIlinois,"whether
such time be Central Standard Time or Central Daylight Savings Time.
"Code" means the Internal Revenue Code of 1986, as amended, the Treasury Regulations
(whether proposed, temporary or final) under the Code or the Statutory predecessor of the Code,
and any amendments of, or successor provisions to, the foregoing and any official rulings.
announcements, notices, procedures and judicial determinations regarding any of the foregoing,
all as and to the extent applicable. Unless otherwise indicated, reference to a Section means the
o
7
Q1-/'6
--------I~
'J
Section of the Code, including such applicable Treasury Regulations, rulings. announcements,
procedures, and determinations pertinent to that Section.
"Commercial Code" means the Uniform Commercial Code as enacted in the State, as
from time to time amended or supplemented.
UCompany" means BEF, Inc. ~ Inc., a Florida notHfor-profit corporation and its lawful
successors and assigns, to the extent permitted by the Agreement.
UCompany Documents" mean the Agreement, the Notes, the Mortgage and the Bond
Purchase Agreement.
uCompletion Date" means the date of completion of the Project to be specitied in the
certificate furnished by the Company pursuant to Section 3.6 of the Agreement.
"Computation Date" shall have the meaning set forth in the Arbitrage Rebate Agreement.
)
. "Consultant" means a firm of nationally-recognized consultants, designated by the
Authorized Company representative with written notice to the Trustee and, so long as the Series
1999 Bonds are Outstanding, Ziegler Securities, which Consultant (i) is knowledgeable in both
the operations and fiscal management of continuing care or similar health care facilities, (ii) has
a good reputation for skill and experience in that work, (Hi) has no interest, direct or indirect, in
the Company, and (iv) has no partner, principal, member, director, trustee, officer or employee
who is a member, director, trustee, officer or employee of the Company.
"Continuing Disclosure Certificate" means the Continuing Disclosure Certificate dated
as of July 1, 1999 by the Company.
"Days Cash on Hand" means, as of any date of detennination thereof~ the product of 365
times a fraction, the numerator of which is the sum of cash, readily marketable securities and
other investments of the Company not held by the Trustee as of such date and the denominator
of which is Annual Cash Operating Expense.
"Debt" means all obligations for borrowed money and installment sale and capitalized lease
obligations incurred or assumed by the Company and any guaranty by the Company of
indebtedness of any other Person, but shall not be deemed to include (a) obligations under
contracts for supplies, services and pensions allocable to current operating expenses during the
current or future Fiscal Years in which the supplies are to be delivered, the services rendered or
the pensions paid~ and (b) payments payable in the current or future Fiscal Years under leases not
intended to evidence the acquisitions of capital assets.
"Debt Service Charges" mean, for any period or date, the principal of and premium, if
any. and interest on the Bonds accruing for that period or due and payable on that date. In
,~
8
99"/~
J
determining Debt Service Charges accruing for any period or due and payable on any date.
mandatory sinking fund requirements accruing for that period or due on that date shall be
included.
"Debt Service Coverage Ratio" means the ratio of Net Income Available for Debt Service
for the period in question to the maximum Principal and Interest Requirements of the Company
on outstanding Long-Term Debt for the then current or any succeeding Fiscal year, determined
as of the first day of such period. The calculation of the Debt Service Coverage Ratio shall be
made in accordance with Section 5.3 of the Agreement, except as may be otherwise provided in
other Sections of the Agreement.
"Debt Service Reserve Fund" means the Debt Service Reserve Fund created in Section
5.01 of the Indenture.
"Debt Service Reserve Requirement" means with respect to the Series 1999 Bonds, as
of the date of any calculation, an amount equal to $ . In the event Additional
Bonds are issued, the Debt Service Reserve Requirement, if any, with respect to those Additional
Bonds shall be the lesser of (i) 10% of the proceeds of such Additional Bonds, (ii) the Maximum
Principal and Interest Requirements on such Additional Bonds or (iii) 125% of the average
Principal and Interest Requirements on such Additional Bonds. No such Additional Bonds shall
be secured by the Debt Service Reserve Fund established for the Series 1999 Bonds.
",
J
"Default" means any circumstance which, with the passage of time or the giving of notice
or both, would constitute an "Event of Default" as defined in Section 7.1 of the Agreement or
7.01 of the Indenture, respectively.
"Defeasance Obligations" means:
(a) direct obligations of the United States of America (including obligations
issued or held in book-entry form on the books of the Department of the Treasury of the
United States of America), or obligations the timely payment of the principal of and
interest on which is unconditionally guaranteed by the United States of America,
(b) certificates which evidence ownership of the right to the payments of the
principal of and interest on obligations described in clause (a) or in specified portions
thereof, including without limitation, portions consisting solely of the principal thereof or
solely of the interest thereon, and
(c) obligations of any state or any political subdivision of any state, other than
the Issuer, which are rated by a Rating Service in the highest category for long-term debt,
the interest on which is excluded from gross income for federal income tax purposes and
the full and timely payment of the principal of and any premium and the interest on which
is unconditionally payable from obligations of the character described in (a) or (b) above.
<.J
9
q1- f6
...-/.... rll.. '.
,~
"Disbursement Requestll means a written order to the Trustee for disbursement from the
Project Fund substantially in the form of Exhibit E attached to the Agreement.
"Eligible hlvestmcnts" mean
(a) obligations issued or guaranteed as to full and timely payment by the United
States of America or by any Person controlled or supervised by or acting as an
instrumentality of the United States of America pursuant' to authority granted by
Congress;
(b) obligations issued or guaranteed by any state or political subdivision thereof,
which obligations are rated in the highest category if rated as short therm obligations by
a Rating Service;
{c) commercial or finance paper which is rated in the highest rating category
by a Rating Service;
""""\
j
(d) deposit accounts, bankers'. acceptances, certificates of deposit or bearer
deposit notes in one or more banks or trust ~ompanies (including without limitation, the
Trustee or any bank affiliated with the Trustee) organized under the laws of the United
States of America or any state thereof, the senior debt obligations of which bank or trust
company at the time of purchase of such instruments are rated in one of the three highest
rating categories by a Rating Service or which instruments are secured by a security
interest in obligations described in (a) above or which are fully insured by the FDIC;
(e) any repurchase agreement: (i) with any bank, including the Trustee and its
affiliates, or any broker-dealer with retail customers that falls under the protection of the
Securities Investors Protection Corporation; (ii) which is secured by coJlateraJ of the type
specified in (a) and (b) above which collateral (1) is in the possession of the Trustee or a
third party acting solely as agent for the Trustee, (2) is not subject to any third party
claims, and (3) has a market value (determined at least once every 14 days) at least equal
to the amount invested in the repurchase agreement; and (Hi) which permits the Trustee
to liquidate the collateral immediately upon failure to maintain the collateral at the required
level; and
(f) money market funds invested solely in securities listed in (a) above;
provided that any investment or deposit described above is not prohibited by applicable
law.
"Entrance Fees" shall mean the fees, other than monthly service charges by the residents
of the Mortgaged Property to the Company for the purpose of obtaining the right to reside in the
Mortgaged Property, including any Refundable Resident Deposits described in Residency
\)
10
19,-/<6
'~)
,:)
u
Agreements with respect to the Mortgaged Property, but shall not include any such amounts that
are (i) escrowed pursuant to the requirements of Chapter 651, Florida Statutes or any simi lar law
, unless and until such amounts are released from such escrow to the Company or (ti) escrows
otherwise set aside pursuant to the requirements of any Residency Agreement prior to occupancy
of the unit covered by such Residency Agreement (which amounts shall be included if and when
such occupancy occurs).
"Event of Default" means an Event of Default as defined in Section 7. 1 of the Agreement
and in Section 7.01 of the Indenture.
"Excess Earnings" means, as to lhe Tax-Exempt Bonds of any issue as of each
Computation Date for that issue, an amount determined in accordance with Section 148(t) of the
Code equal to the sum of (a) plus (b) where:
(a) Is the excess of
(i) the aggregate amount earned from the date the Tax-Exempt Bonds
are invested (other than investments attributable to an excess described in this
clause (a)), taking into account any gain or loss on the disposition of nonpurpose
investments, over
(ii) the amount that would have been earned if the amount of the gross
proceeds of the Tax-Exempt Bonds of sllch issue invested in those nonpurpose
investments (other than investments attributable to an excess described in this
clause (a)) had been invested at a rate equal to the yield on the Bonds; and
(b) any income attributable to the excess described in clause (a) above, taking
into account any gain or loss on the disposition of investments.
The foregoing sums shall be determined in accordance with Section 148(t) of the Code.
As used herein, the tenns "gross proceeds, ff Itnonpurpose obligations" and Jlyieldll have the
meanings assigned to them for purposes of Section 148 of the Code.
"Excluded Property" means the property described in Exhibit F of the Agreement, if any.
"Exempt Personlt means (i) any organization described in Section 50l(c)(3) of the Code
and exempt from taxes under Section 501 (a) of the Code, and (ii) a "govenunent unit" as that tenn
is used in Section 103 and 145 of the Code.
"Existing Facilitiesll means the buildings, equipment and improvements located on the
Project Site on the date of execution and delivery of the Agreement.
11
91- If{
~1
, '-"x
,-.-1
,~
~:.r-...l!..::....:.....:.....;..:.:...:..:"""".
"Extendables Purchase Fund" means the Extendables Purchase Fund created pursuant
to Section 4.10 hereof.
"FISCal Year" means. with respc..'Ct to the Company. the period commencing on
I of each year and ending on the 30 of the following year or such other fiscal year
as may hereafter be designated by the Company to the Trustee in writing.
"Force Majeure" means any of the causes, circumstances or events described as
constituting Force Majeure in Section 7.1 of the Agreement or Section 6.2 of the Mortgage.
"Governmental Restrictions" means federal, State or other applicable govemmentallaws
or regulations affecting the Company or its facilities and placing restrictions and limitations on
the rates, fees and charges to be tixed, charged and collected by the Company or any other
operator of the Company's facilities; provided, however, that no change in law or regulation shall
be deemed applicable by reason of this definition if such change would in any way constitute an
impairment of the rights of the Issuer, a Holder, the Company or any other operator of the
Mortgaged Property or the Trustee under the Agreement or the Indenture.
"Holderll or "Holder of a Bond" means the person in whose name a bond is registered
on the Register.
"hnmediate Notice" means notice by telephone. telegram, telex, telecopy or other
telecommunication device, receipt of which has been confirmed by the recipient, promptly
followed by written notice by overnight carrier or delivery service, expenses prepaid. to such
addresses.
"Indenture" means the Trust Indenture dated as of July 1, 1999 between the Issuer and
the Trustee, as amended or supplemented from time to time.
"Independent Counsel" means an attorney or firm of anorneys acceptable to the Company
and duly admitted to practice law before the highest court of the State.
"Initial Interest Ratell means, the interest rate applicable from the dated date of the Series
1999 Bonds to and including at the Initial Rate Change Date.
"fuitial Rate Change Datell means the first date on which the Series 1999B Bonds change
to another interest rate, which shall be 1 t 20_.
"Insurance Consultant" means a Person designated by the Authorized Company
Representative, with written notice to the Trustee, who or which Insurance Consultant is (i)
qualified to survey risks and to recommend insurance coverage for facilities comparable to the
Mortgaged Property and tor organizations engaged in operations similar to those of the Company,
(ii) has a favorable reputation for skill and experience in making those surveys and
12
11-/6
. ~ . .. . c ,~ . .. ." .
,~
recommendations, (iii) has no interest, direct or indirect, in the Company other than payment for
services and (iv) in the case of an individual, is not a member, director, trustee, ofticer or
employee of the Company or, in the case of another Person, has no partner, member, director,
trustee, ofticer or employee who is a member, director, trustee, officer or employee of the
Company; provided that so long as the foregoing requirements are satisfied, the Insurance
Consultant may be a broker or agent with whom the Company transacts business; and provided
further that the collection of reasonable fees for services rendered does not constitute an interest
in the Company for this purpose.
"Insurance Requirements" means all requirements respecting the Mortgaged Property,
or any part thereof, imposed by any policies of insurance in force at any time with respect to any
of the buildings, improvements, machinery, furnishings or equipment constituting a part of the
Mortgaged Property.
, "Interest Payment Account" shall mean the Interest Payment Account within the Bond
Fund created in Section 5.01 of this Indenture.
.')
--..-1
"Interest Payment Date" or "Interest Payment Dates" means, as to the Series 1999
Bonds, the date or dates set forth as such in the form of Series 1999 Bond attached as Exhibit B
to the Indenture, and as to AdditionaJ Bonds, each date or dates designated as an "Interest
Payment Date" or "Interest Payment Dates" in the form of Bond for which provision is made in
the applicable Supplemental Indenture.
"futercst Rate for Advances" means the lesser of (i) the Prime Rate or (ii) the maximum
interest rate permitted by applicable law.
"Investor Letter" means the Investment Letter to be delivered by the purchaser of the
Series 1999 Bonds to the Issuer and the Trustee substantially in the form attached hereto as Exhibit
B.
"Issuance Expenses" means all costs and expenses payable by the Issuer which are
incidental to the issuance of the Bonds and shall include, but not be limited to, fees and expenses
of consultants, advisors, accountants, Bond Counsel and other legal counsel to the Issuer, costs
and expenses of printing such Bonds and disclosure documents relating thereto, fees of bond rating
services, charges for CUSIP numbers, charges of any clearing agent, charges of the Depository
Trust Company CIDTCIr) and other securities depositories, charges payable to the Municipal
Securities Rulemaking Board, Public Securities Association and wire services, charges for
telephone, telegraph, telecopier, telex and fax services, postage and express charges, costs of
federal funds, closing costs (including all legally permitted costs of travelt food and lodging of
officials and employees of the Issuer incurred in connection with attending any closing or
preclosing or any meeting relating to the issuance of the Bonds), any costs incurred in connection
with the sale of the Bonds, including costs incurred in any public or negotiated sale thereof, and
placement fees, costs of compliance with the securities laws of any state in which Bonds are to be
J
13
'11-/f{
')
offered and sold, the initial fees of the Trustee. Registrar. Paying Agent and Authenticating
Agent, and other similar expense; provided that the term shall not include any underwriter's
discount which is taken into account in the sale price (or any costs and expenses paid by the
underwriter which are not to be reimbursed by the Issuer).
"Issuer" means City of Clearwater Florida. a municipal corporation duly created and
validly existing under the laws of the State of Florida including, particularly, the Act, and its
successor public bodies.
"Issuer Documents" means the Agreement, the Assignment and the Indenture.
"Loan" means a loan by the Issuer to the Company of the proceeds received from the sale
of Bonds.
"Loan Payment Date" means (i) the fifth Business Day immediately preceding the last day
of each calendar month and (ii) the fifth Business Day immediately preceding the date on which
any principal of or interest or any premium on the Bonds shall be due and payable, whether at
maturity, upon acceleration, call for redemption or otherwise.
"Loan Payments" means the amounts required to be paid by the Company in repayment
of the Loan pursuant to Section 4.1 of the Agreement.
"--)"
~-
"LongMTerm Debt" means Debt having an original maturity greater than one year
(including demand notes with alternative stated maturities of less than one year unless and until
a demand for the payment thereof shall have been made) or renewable ~.t the option of the obligor
for a period greater than one year from the date of original incurrence or issuance thereof, which
shall not include the current portion of such Long-Term Debt as determined in accordance with
generally accepted accounting principles.
"Maximum Principal and Interest Requirement" means as to any Series of Bonds. the
maximum Principal and Interest Requirement coming due on such Bonds in any Fiscal Year
provided that the Maximum Principal and Interest Requirement for any Long Term Debt shall be
disregarded for any period during which the interest on such Long Term Debt is funded from the
proceeds thereof.
"Mortgage" means the Mortgage and Security Agreement dated as of July 1, 1999, from
the Company to the Issuer, as amended or supplemented from time to time.
"Net Income Available for Debt Service" means, with respect to any period of time, the
(a) the Company's excess/deficiency of revenue over/under expenses prepared in conformity with
generally accepted accounting principles, ~ (b) depreciation. amortization of deferred expenses,
and interest expense on Debt, plus (c) an amount equal to Entrance Fees collected (net of any
refunds of Entrance Fees). m..in.u.s (d) lifetime lease income amortized into income, and (e) from
I
'J
14
q9- /~
~ioU-~":::"""":'....":'.....:..:..:..::.:.:"':""::"':':"-'-.......__~___ _ _ _
~
-:J
",
.',
',-
:"
'I.'.
r
, ".
.J
which shall be excluded any extraordinary items, and any gain or loss resulting (rom either the
extinguishment of debt or the saJet exchange or other disposition of assets not made in the
ordinary course of business. Restricted gifts shall be included in the computation of Net Income
Available for Debt Service to the extent that, and with respect to the period of time during which,
the expenditure of such restricted gifts has been included in the computation of expenses.
JlNet Proceeds,1I when used with respect to any insurance proceeds or condemnation
award, means the gross proceeds thereof less the payment of all expenses. including attorneys'
fees incurred in connection with the collection of such gross proceeds.
"Notes" means the Series 1999 Notes and any Additional Notes.
"Notice Address" means
(a) As to the Issuer:
Margaret L. Simmons, CPA
Financial Services Administrator
City of Clearwatert Florida
100 South Myrtle Avenue
Clearwater, Florida 33758
copy to:
Pamela Akin, Esq.
City Attorney
112 South Osceola Avenue
Clearwater, Florida
. (b) As to the Company:
BEF, Inc.
1601 Jack Street, Suite 200
Fort Myers, Florida 33901
Attention: Gerard A. McHale, Jr.
(c) As to the Trustee:
SunTrust Bank. Central Florida, National Association
225 East Robinson Street, Suite 250
Orlando, Florida 32801
Attention: Corporate Trust Department
(d) As to the
Remarkeling Agent:
Ziegler Securities, a division of
B. C. Ziegler and Company
III Second Avenue, N.E., Suite 915
St. Petersburg, Florida 33701
Attention: Vice President
15
19-/8'
_<~"~~_.",,,,_'h'~ ~". <-.,
~~
,,)
J
or such different address, notice of which is given under Section 8.4 of the Agreement or Section
12.03 of the Indenture.
"Opinion of Bond COWlSCI" means an opinion in writing signed by a Bond Counsel
satisfactory to the Trustee.
"Opinion of COWlSel" means an opinion in writing signed by an attorney or firm of
attorneys not unsatisfactory to the Trustee, who may be counsel to the Company.
"Optional Tender Date" means, with respect to the Series 1999B Bonds, each Rate
Change Date.
"Outstanding Bonds," "Bonds Outstanding" or "Outstanding" as applied to Bonds,
mean, as of the applicable date, all Bonds which have been authenticated and delivered, or which
are being delivered by the Trustee under the Indenture, except:
(a) Bonds cancelled upon surrender, exchange or transfer, or cancelled because
of payment or redemption on or prior to that date;
(b) Bonds, or the portion thereof, for the payment, redemption or purchase for
cancellation of which sufficient moneys have been deposited and credited with the Trustee
or any Paying Agents on or prior to that date for that purpose (whether upon or prior to
the maturity or redemption date of those Bonds); provided, that if any of those Bonds are
to be redeemed prior to their maturity. notice of that redemption shall have been given or
arrangements satisfactory to the Trustee shall have been made for giving notice of that
redemption, or waiver by the affected Holders of that notice satisfactory in form to the
Trustee shall have been filed with the Trustee;
(c) Bonds, or the portion thereof, which are deemed to have been paid and
discharged or caused to have been paid and discharged pursuant to the provisions of the
Indenture;
(d) Bonds in lieu of which others have been authenticated under Section 3.07
of the Indenture; and
(e) Any Bond as to which an election to tender has been duly submitted and not
withdrawn and moneys are held in trust by the Tender Agent for the purpose of purchase
of such Bond.
"Parity Debt" means any obligation of the Company permitted to be incurred as Parity
Debt in Section 5.5 of the Agreement.
16
11,r/f{
~
"Payhlg Agent" means any bank or trust company designated as a Paying Agent by or in
accordance with Section 6. 12 of the Indenture.
"Pennitted Debt" means the liabilities, obligations and Debt permitted in Section 5.4 of
the Agreement.
"Permitted Encumbrances" shall have the meaning assigned such term in Section 5.7 of
the Agreement.
lIPerson" or words importing persons, means firms, associations. partnerships (including
without limitation, general and limited partnerships); joint ventures, societies. estates. trusts,
corporations, public or governmental bodies. other legal entities and natural persons.
"Plans and Specifications" means the plans and specitications describing a project as
prepared and on file with the Trustee, as they may be changed from time to time.
"Prime Rate" means that interest rate announced from time to time by the Trustee in its
lending capacity as a bank as its "prime rate" or "base rate. rt
.'~)
"Principal and Interest Requirements" means, for any period or date, as applied to any
Debt means the sum of the principal of and premium, if any, and interest (determined for variable
rate date at the highest rate payable on such date) on any Outstanding Debt accruing for that
period or due and payable on that date; provided that for this purpose, the term Debt does not
include indebtedness tor which provision tor payment has been made in accordance with the terms
of the instruments evidencing or securing such indebtedness. In determining Principal and Interest
Requirements accruing for any period or due and payable on any date, mandatory sinking fund
requirements on any Debt for that period or on that date shall be included, and principal maturities
and mandatory sinking fund requiremems for a prior period or on a prior date shall be excluded.
"Principal Payment Account" means the Principal Payment Account within the Bond
Fund created in Section 5.01 of the Indenture.
"Private Busin~ Use" means use, directly or indirectly (i) in a trade or business carried
on by any Private Person (other than a Tax-Exempt Organization) other than use as a member of,
and on the same basis as, the general public, or (ii) in any activity carried on by a Tax-Exempt
Organization (other than use as a member of, and on the same basis as, the general public) which
is an "unrelated trade or business" activity within the meaning of Section 513 (a) of the Code.
"Privute Person" means any person, firm, entity or individual, including a Tax-Exempt
Organization other than a governmental unit as that term is used in Section 145 of the Code.
"Project" means the capital improvements described in Exhibit B to the Agreement (and
more particularly described in the Plans and Specifications related thereto), together with any
\
J
17
19--;Cl
)
,~)
'J
additions, modifications and substitutions to those facilities. including all furnishings, machinery.
equipment and other tangible personal property.
"Project Budget" means the budget and trade and materials, breakdown and scheduled
values for the Project.
"Project Costs" has the meaning assigned such tenn in Section 3.4 of the Agreement.
"Project Food" means the Project Fund created in Section 5.01 of the Indenture.
"Project Site" means the real estate described in Exhibit D to the Agreement, and any
additions thereto, less any removals therefrom made in the manner permitted by the Agreement.
"Property" means any and all rights, title and interest of the Company in and to property
(including cash and cash equivalents) whether real or personal, tangible or intangible and wherever
situated, but excluding Excluded Property.
"Rate Change Date" means, with respect to the Series 1999B Bonds, the Initial Rate
Change Date and any rate change date selected by the Company pursuant to Section 2.03(b) of
the Indenture.
"Rate Period" means, with respect to the Series 1999B Bonds, th~ period commencing on
each Rate Change Date and ending on and including the date preceding the next Rate Change
Date, or the maturity date thereof.
"Rating Service" means Fitch Investors Service, Inc., Moody's Investors Service, Inc.
or Standard & Poor's Corporation, each of New York, New York or their respective successors.
"Rebate AmowIt" means the amount of Excess Earnings computed as of the most recent
prior Computation Date which are required to be paid to the United States of America under
Section 148(t) of the Code.
"Rebate Fund" means the Rebate Fund created in Section 5.01 of the Indenture.
"Refunding Debt" means Debt incurred for the purpose of refinancing or refunding all
or any portion of any Outstanding Debt of the Company.
"Registerll means the books kept and maintained for the registration and transfer of Bonds
pursuant to Section 3.06 of the Indenture.
"Registrar" means the Trustee or such other bank, trust company or person as may be
designated from time to time by the Issuer with the approval of the Company.
18
1tI,-~
"
~)
-.
, )
.._~
,~
....-.,a...
"Regular Record Date" or "Record Date" means, with respect to any Bond. the last day
(whether or not a Business Day) of the calendar month next preceding an Interest Payment Date
applicable to that Bond.
"Regulatory Body" means any federal state or local government, department, agency,
authority or instrumentality (other than the Issuer) and other public or private body, including
accrediting organizations, having regulatory jurisdiction and authority over the Company or its
facilities or operations.
"Remarketing Agent" means the Remarketing Agent appointed and serving a such
pursuant to Section 4.15 of the Indenture. ihitially Ziegler Securities, a division of B.C. Ziegler
and Company.
"Rell1arketiug Agreement" means the Remarketing Agreement between the Company and
the Remarketing Agent then serving under the Indenture.
"Renewal and Replacement Fund" shall mean the Renewal and Replacement Fund
created under section 5.19 of the Agreement.
UReset Rate" means, with respect to the Series 1999B Bonds, the adjusted rate of interest
born on the Series 19998 Bonds determined as provided in Section 2.03(b) of the Indenture.
"Revenues" means all present and future revenues received by or on behalf of the
Company from whatever source derived, including without limitation, all
(a) Entrance Fees, cash, accounts, deposits, chattel paper, instruments, documents,
money and general intangibles, including without limitation, contract rights and rights to
payment (i) for goods and properties sold or leased or for services rendered, (ii) under
agreements respecting governmental and private insurance arrangements, and (iii) from any
insurance, condemnation award or agreement in lieu of a condemnation award resulting
from eminent domain proceedings,
(b) income from, and revenues realized upon the liquidation or sale of, securities held
by or on behalf of the Company,
(c) proceeds of those items constituting Revenues to which reference is made in
clauses (a) and (b) above, and
(d) gifts, grants, bequests, contributions and donations, including without limitation,
the unrestricted income and profits therefrom,
provided that Revenues do not include
19
99~/~
c. . c _,. ~ ~ ~ . .
----~.~_......................__. -
~
') ,
. . ,
J
.....'". ~'..+ .,.:;.....L... . ~ .,' .
(i) gifts. grants, bequests. contributions and donations to the extent restricted
specitically to a particular purpose inconsistent with their use for the making of payments
into any of the Special Funds,
(ii) the procet.-ds of any borrowing to the extent that those proceeds are required to
be excluded from Revenues by the terms of the borrowing,
(Hi) the proceeds of non-recourse Debt secured by and payable solely from Property
tinanced by such non-recourse Debt and all revenues derived from or attributable to
Property financed with the proceeds of such non.recourse Debt,
(iv) revenues derived from Excluded Property, or
"Series 1999 Bonds" means collectively, the Series 1999A Bonds, the Series 1999B Bonds
and the Series 1999C Bonds.
"Series 1999A Bonds" means the $
Revenue Bonds, Series 1999A (BEF, Inc. Project).
City of Clearwater, Florida
"Series 1999B Bonds" means the $ City of Clearwater, Florida,
Revenue Bonds, Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiesSM
(EXTRASSM).
"Series 1999C Bonds" means the $
Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project).
City of Clearwater, Florida
"Series 1999 Note" means the non-negotiable promissory note of the Company in the
aggregate principal amount of $ of even date with the Series 1999A Bonds,
Series 1999B Bonds and the Series 1999C Bonds, substantially in the form attached to the
Agreement as Exhibit" A," executed and delivered by the Company to the Trustee in connection
with the issuance of the Series 1999 Bonds.
"Special Funds" means the SpeciaJ Funds created pursuant to Section 5.01 of the Indenture,
other than the Rebate Fund.
"Special Interest Payment Date" means the Special Interest Payment Date created in
Section 7 .07(d) of the Indenture.
"Special Record Date" means, with respect to any Bond, the date established by the Trustee
in connection with the payment of overdue interest on that Bond pursuant to Section 3.05 of the
Indenture.
"State" means the State of Florida.
20
19'-/~
,~
" "
-")
_/
"~
"Supplemental Indenture" means any indenture supplemental to the Indenture entered into
between the Issuer and the Trustee in accordance with Article VIII of the Indenture.
"Taxable Bond" means any obligation, or issue of obligations which at the time of issuance
under the Indenture is not intended to be a Tax-Exempt Bond.
"Tax-Exempt Bond" means any obligation, or issue of obligations, the interest on which
is, or is intended to be, excluded from gross income for federal income tax purposes within the
meaning of Section 103 of the Code.
"Tender Agent" means the Tender Agent referred to in Sections 4.10 and 6.14 of the
Indenture, which Tender agent shall initially be the Trustee, serving as agent for Registered
Owners of Put Option Bonds who shall have elected to tender such Bonds for purchase.
"Tender Purchase Price" shall have the meaning assigned in Section 4.09(a) of the
Indenture.
"Tender Withdrawal" shall have the meaning assigned in Section 4.11 of the Indenture.
"Term Bonds" means, with respect to the Series 1999 Bonds, those Series 1999 Bonds
designated as Term Bonds in Section 2.03(a) of the Indenture.
"Total Operating Revenues" means, for any period, the sum of the Companis (a)
operating revenues, less provision for uncollectible accounts, charity cases and any contractual
adjustments, plus (b) all other operating revenues.
"Trustee" means SunTrust Bank, Central Florida, National Association, a national banking
association, Orlando, Florida, untii a successor Trustee shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter "Trustee" shall mean the successor Trustee.
"Unassigned Rights" means the rights of the Issuer under the Agreement to (a) receive
Additional Payments as contemplated in Section 4.2 of the Agreement; (b) to purchase the Project
as contemplated by Section 4.7 of the Agreement; (c) to be held harmless and indemnified under
Section 5.12 of the Agreement; (d) to exercise with the consent, but not to the exclusion, of the
Trustee any remedies which are authorized to be exercised by the Issuer under the Agreement in ,
connection with an Event of Default; (e) to be reimbursed, to the extent permitted by law. for
attorney's fees and expenses under Section 7.4 of the Agreement; and (t) to execute amendments
to the Agreement.
"Ullremarketcd Bondsll shall have the meaning assigned in Section 4.10 of the Indenture.
21
11'-!~
-"'~MN."-':"'} ,.... .~.~ '" .....-
. .. _._________...0..--.-........-_____
,')
1<,
)
.:J
SECTION 1.02. Interpr~tation. Any reference herein to the Issuer, or to any member or
officer thereof, includes entities or officials succeeding to their respective functions, duties or
responsibilities pursuant to or by operation of law or lawfully performing their functions.
Any reference to a section or provision of the Constitution of the State or the Act, or to a
section, provision or chapter of the Florida Statutes or Laws of Florida, or to any statute of the
United States of America, includes that section, provision or chapter as amended, modified,
revised. supplemented or superseded from time to time; provided, that no amendment,
moditication, revision, supplement or superseding section, provision or chapter shall be applicable
solely by reason of this provision, if it constitutes in any way an impairment of the rights or
obligations of the Issuer, the officers, employees and members of the Issuer, the Holders, the
Trustee, the Registrar or the Company under this Indenture, the Bonds, the Agreement, the Notes,
the Mortgage, or any other instrument or document entered imo in connection with any of the
. foregoing, including without limitation, any alteration of the obligation to pay Debt Service
Charges in the amount and manner, at the times, and from the sources provided in the Agreement
and this Indenture, except as permitted herein.
Unless the context indicates otherwise, words importing the singular number include the
pluraJ number, and vice versa; the defined words and terms are equally applicable to the
possessive forms of any such word or term; the terms "hereof, II "hereby," IIherein," II hereto , "
"hereunderll and similar terms refer to this Indenture; and the term "hereafterll means after, and
the term "heretofore" means before, the date of this Indenture. Words of any gender include the
correlative words of the other genders, unless the sense indicates otherwise.
SECTION 1.03. Captions and Headings. The captions and headings in this Indenture are
solely for convenience of reference and in no way define, limit or describe the scope or intent of
any Articles. Sections, subsections, paragraphs, subparagraphs or clauses hereof.
22
19~/r
+-O;---......;':F/...)r....~.~~'"'u.... >~,~. ''''.,
~
ARTICLE II
A UTHORIZA TION AND TERMS OF
SERIES 1999 BONDS~ ADDITIONAL BONDS
SECTION 2.01. Authorized Amount of Series 1999 Bonds. No Bonds may be issued
hereunder except in accordance with this Article. The total authorized principal amount of Series
1999A Bonds which shall be issued is $ , the total authorized principal amount
of Series 1999B Bonds which shall be issued is $ and the total authorized
principal amount of Series 1999C Bonds which shall be issued is $ . The Issuer
may authorize (but shall not be required to), sell and deliver one or more series of Additional
Bonds for the purposes provided herein upon satisfaction of the conditions and in the manner
provided herein.
SECTION 2.02. Issuance of Series 1999 Bonds. The Issuer shall sell and deliver the Series
1999 Bonds for the purpose of financing the Project Costs, including the payment of, and the
reimbursement of moneys applied by the Company for, portions of the costs of acquiring,
constructing, improving and equipping the Project as more particularly described in the
Agreement.
-)
-,'"
The Series 1999 Bonds (i) shall be issued in three series designated as "Revenue Bonds,
Series 1999A (BEF, Inc. Project)", "Revenue Bonds, Series 1999B (BEF, Inc. Project),
Extendable Rate Adjustable SecuritiessM (EXTRASSM)" and "Taxable Revenue Bonds. Series
1999C (BEF, Inc. Project)"; (ii) shall be issuable in Authorized Denominations and in fully
registered form substantially as set forth in Exhibit, A hereto; (Hi) shall be transferable and
exchangeable only for fully registered Bonds of Authorized Denominations and of the same
maturity, as provided herein; (iv) shall be numbered in a manner determined by the Trustee; (v)
shall bear interest as provided herein, payable on each Interest Payment Date and computed on
the basis of a 360-day year consisting of twelve 3D-day months; and (vi) shall be subject to
redemption prior to maturity as provided in Article IV hereof.
SECTION 2.03. Terms of Series 1999 Bonds. (a) The Series 1999 Bonds shall be dated
July 1, 1999, shall bear interest payable semi-annually on the 15th day of May and November of
each year, commencing November 15, 1999, initially at the rate or rates per annum hereinafter
set forth (and adjusted as provided below), until the principal or Redemption Price of the Series
1999 Bonds is paid and shall mature as follows:
$ of the Series 1999A Bonds shall be and are hereby designated as Term
Bonds bearing interest at the rates and maturing on the 15th day of November in the years and in
the principal amounts as follows:
Maturity
November 15
Principal
Amount
Interest
Rate
.....)
23
Q1-/8'
J '
~
$
%
(Plus accrued interest, if any)
The Series 1999B Bonds shall be and are hereby designated as Extendable Rate Adjustable
Bonds bearing interest at the rate of _ % per annum (subject to adjustment as hereinafter
provided) and maturing on the 15th day of November, 20_,
$ of the Series 1999C Bonds shaH be and are hereby designated Term
Bonds bearing interest at the rate of % per annum and maturing on the 15th day of
November, 20_.
The Series 1999 Bonds shall bear interest from the Interest Payment Date next preceding
the date of authentication unless such date of authentication is an Interest Payment Date. in which
case from such date of authentication, or unless such date of authentication is prior to the first
Interest Payment Date, in which case from July 1, 1999 as to the Series 1999A Bonds and the
Series 1999C Bonds, and from , 1999 with respect to the Series 1999B Bonds, or
unless interest is in default, in which case from the Imerest Payment Date as of which interest was
last paid.
)
(b) The Series 1999B Bonds shall initially bear interest at the Adjusted Rate equal to
the Initial Interest Rate until but not including the Initial Rate Change Date and may continue to
bear interest at an Adjusted Rate equal to the Reset Rate from and after the Initial Rate Change
Date, or from any succeeding Rate Change Date, until the next succeeding Rate Change Date
designated for such Series 1999B Bonds,
Not less than 75 days prior to each Rate Change Date with respect to the Series 1999B
Bonds, the Company shall deliver to the Trustee and the Remarketing Agent written notice of the
Company's detennination of the next succeeding Rate Change Date, which Rate Change Date shall
be a [November 15] unless the Company specifies in such notice that the Series 1999B Bonds are
to bear an Adjusted Rate to maturity; provided, however, that if the Company fails to specify the
next succeeding Rate Change Date, such date shall be a [November 15] in such year as will enable
the term between the current Rate Change Date and such next succeeding Rate Change Date to
equal the preceding term or the final maturity, whichever is earlier.
The Adjusted Rate applicable to the Series 1999B Bonds shall be the Reset Rate determined
by the Remarketing Agent on a date 65 days prior to the Rate Change Date. The Reset Rate
applicable to the Series 1999B Bonds shall be the lowest rate that would, in the judgment of the
Remarketing Agent (having due regard to the prevailing market conditions), be necessary to
enable the Series 1999B Bonds to be sold at par on the Rate Change Dale, provided that the Reset
Rate shall not exceed 15% per annum (the "Maximum Rate"), Upon such determination of the
Reset Rate, the Remarketing Agent shall promptly notify the Trustee and the Company of the
.::.J
24
Q1-/C(
~.,t.;..;. ~ ~-.,,~",~<""
. ". ' ~ ,f, ~ ..... ,
-\
Reset Rate. Not less than 60 days prior to the Rate Change Date. the Trustee shall promptly
notify each Holder of Series 1999B Bonds in writing by first class mail. postage prepaid. of the
Reset Rate that will be applicable to such Series 1999B Bonds on and after the Rate Change Date
and provide instructions tor the procedure to be followed by any Holder wishing to tender Series
1999B Bonds for purchase as hereinafter provided. If for any reason the Reset Rate for the Series
1999B Bonds cannot be determined by the Remarketing Agent in the manner specified above. the
Reset Rate will be equal to The Bond Buyer Revenue Bond Index (as published in The Bond Buyer
or any successor publication thereto) for the most recent period for which such information is
available prior to the giving of notice of the Reset Rate by the Trustee to the Holders of the Series
1999B Bonds, or if such index or its equivalent is no longer published. the interest rate currently
in effect, provided that such rate may not exceed the Maximum Rate.
'-)
In addition, the interest rate on the Series 1999B Bonds will not be reset on any Rate
Change Date unless (a) at least 75 days prior to such Rate Change Date and (b) on such Rate
Change Date, the -Company shall cause to be delivered, at its expense, to the Trustee and the
Remarketing Agent an Opinion of Bond Counsel, to the effect that such reset in interest rate and
change in the Rate Period will not have an adverse effect on any exemption from Federal income
taxation to which the interest on the Series 1999B Bonds would otherwise be entitled. The
Company shall use its best efforts to cause such Opinion of Bond Counsel to be delivered to the
Trustee by such dates. In the event such Opinion of Bond Counsel is not delivered, the interest
rate on the Series 1999B Bonds currently in effect shall remain in effect as the Reset Rate for the
next Rate Period, which shall be equal in duration to the preceding Rate Period but shaIJ not in
any event extend beyond the date of tinal maturity of the Series 1999B Bonds.
SECTION 2.04. Delivery of Series 1999 Bonds: Allocation of Proceeds of the Ser~~
1999 Bolliis: Company EquitY Contribution. (a) Upon the execution and delivery of thh:
Indenture, the Issuer shall cause the execution of the Series 1999 Bonds and their delivery to the
Trustee. Thereupon, the Trustee shaH authenticate the Series] 999 Bonds and shall deliver them
to, or on the order of, the original purchaser thereof, but only upon the receipt by the Issuer and
the Trustee of the Investor Letter in the form attached hereto as Exhibit B.
(b) Simultaneously with the delivery of the Series 1999 Bonds, the Trustee shall apply
the proceeds of the Series 1999 Bonds as follows:
(i) to th~ Interest Payment Account in the Bond Fund, any accrued interest;
(ii) to the Debt Service Reserve Fund, $
(iii) to the Projt.>et Fund, the balance of the proceeds of the Seri~s 1999 Bonds.
(c) [Simultaneously with the delivery of the Series 1999 Bonds the Company shall
d~posit S in immediately available funds with the Trustee which shall be
deposited in the Project Fund by the Trustee.]
---J
25
1?" ;r
"
(d) Prior to delivery by the Trustee of any Series 1999 Bonds. the Trustee must receive
a request and authorization, for and in the name and on behalf of the Issuer, signed by an
authorized official, to authenticate and deliver the Series 1999 Bonds to, or on the order of, the
original purchaser upon payment to the Trustee of the purchase price for the Series 1999 Bonds
as provided in the Bond Purchase Agreement related thereto.
SECTION 2.05. Issuance and Delivery of Additional Bonds. At the request of the
Authorized Company Representative and upon compliance by the Company with the requirements
of the Agreement with respect to the issuance or incurrence of Parity Debt, the Issuer may (but
shall not be required to) issue Additional Bonds from time to time for any purpose or combination
of purposes permitted under the Act or other laws of the State.
Those Additional Bonds shall be on a parity with the Series 1999 Bonds and any Additional
Bonds issued and outstanding at the time or thereafter under this Indenture; provided that nothing
herein shall prevent payment of Debt Service Charges on any series of Additional Bonds from (i)
being otherwise secured and protected from sources or by property, instruments or documents not
applicable to the Series 1999 Bonds or anyone or more series of Additional Bonds, or (ii) not
being secured or protected from sources or by property, instruments or docume~)ts applicable to
the Series 1999 Bonds or one or more series of Additional Bonds.
')
'-
In the event any series of Additional Bonds are issued, the Debt Service Reserve
Requirement, if any, with respect to those Additional Bonds shall be as defined in the
Supplemental Indenture providing for the issuance of such Additional Bonds; provided that such
Additional Bonds shall not be secured by the Debt Service Reserve Fund established for the Series
1999 Bonds.
Before the Trustee may authenticate and deliver any series of Additional Bonds, the
following items shall have been received by the Trustee:
(a) Original executed counterparts of any amenoments of or supplements to the
Company Documents and to this Indenture which are necessary or advisable to provide that the
Additional Bonds will be issued in compliance with the provisions of this Indenture;
(b) One or more Additional Notes, as required by the Agreement, in an aggregate
principal amount equal to the aggregate principal amount of the Additional Bonds;
(c)
Bonds.
A copy of the resolution of the Issuer authorizing the issuance of the Additional
(d) A request and authorization to the Trustee, for and in the name and on behalf of
the Issuer. signed by an authorized ofticia!, to authenticate and deliver the Additional Bonds to,
or 'on the order of, the original purchaser upon payment to the Trustee of the amount specified in
,~
26
19-/~
-........,-"r~.I.. I.~'I-"'''.'.-
/)
the request and authorization. which amount shall be deposited as determined or designated in or
pursuant to the Supplemental Indenture;
(e) Original executed counterparts of a Notice of Future Advance under the Mortgage
in recordable form; and
(t) An opinion of Bond Counsel to the effect that:
(i) all conditions precedent under this Indenture to the delivery of the
Additional Bonds and any Supplemental Indenture have been fulfilled;
(ii) when executed for and in the name and on behalf of the Issuer and when
authenticated and delivered by the Trustee. those Additional Bonds will be legal. valid and binding
special obligations of the Issuer, enforceablt: in accordance with their terms, subject to reasonable
exceptions for bankruptcy t insolvency and similar laws and the application of equitable principles,
and will be secured hereunder equally and on a parity with all other Outstanding Bonds (except
as otherwise permitted hereunder)~ and
,
-_/
(Hi) the issuance of the Additional Bonds will not result in the interest on the
Series 1999 Bonds to the extent such Series 1999 Bonds are Tax-Exempt Bonds (or other
Tax-Exempt Bonds then Outstanding under this Indenture) becoming included in the gross income
of the Holders for federal income tax purposes.
When the conditions described above authorizing such Additional Bonds have been
satisfied, and the Additional Bonds have been executed a'1d authenticatedt the Trustee shaH deliver
the Additional Bonds to or on the order of the original purchaser thereof, but only upon payment
to the Trustee of the amount specified in the request and authorization to which reference is made
above and such amount shall be deposited by the Trustee as specified in such request and
authorization, all in conformity with this Indenture.
SECTION 2.06. Issuance and Delivery of Notes. At the request of the Authorized
Company Representative, the Issuer may, to the extent permitted by law, including without
limitation, the Act, issue bond anticipation notes from time to time in anticipation of Additional
Bonds for any purpose or combination of purposes permitted under the Act or other laws of the
State. The instrument or document providing for the issuance of those notes shall provide that in
the event the Issuer or the Company defaults in the observance or performance of any of its
covenants, agreements or obligations relating theretot the sole recourse of the holders of the notes
shall be to any reserve fund containing proceeds of those notes and the proceeds derived from the
issuance of Additional Bonds or renewal notes in anticipation of Additional Bonds issued pursuant
to the Act for the same purpose as the original notes.
None of those notes may be issued. however, unless there tirst shall have been received
by the Trustee the items specified in Section 2.05(a) through (t); provided, that (i) any amendment
<)
27
9f,-/r
~~.
II"~:'~- ~.".">.~,- '..'.' '". ~'.~'..". ~. < "
"
IC,) "
, '
I" '
"",
~""".I'If,1
'..
-I.:
." II
~" "
" 3
" . :..
. '
; ,
"." ,
"
~ '
,'~"\'
V
"
" ,
, .
or supplement described in Section 2.05(a) shall be deemed to provide for this purpose that the
oHigation of the Company to make any payment of principal of, and premium, if any, and interest
cr~:the notes will be limited to taking the actions by the Company necessary to cause the issuance
, of the Additional Bonds anticipated by the notes or of renewal notes in anticipation of Additional
Bonds and specifically will not be secured by any assignment or security interest hereunder or
under the Agreement: (ii) for this purpose, all references in those subparagraphs to Additional
Bonds shall be deemed to constitute references to the notes; and (iii) the notes shall be payable
only as provided above.
. ~
,
28
19->16
- --- -..--.------------------------------- -- ----.----" -----------------
~
ARTICLE III
TERMS OF BONDS GENERALLY
SECTION 3.01. Form of Bonds. The Series 1999 Bonds, the certificate of
authentication thereon, and the form of assignment thereof shall be substantially in the respective
form thereof set forth in Exhibit A hereto, with any omissions, insertions and variations which
may be authorized or permitted in or pursuant to the Supplemental Indenture, in the case of
Additional Bonds, and which are consistent with this Indenture.
All Bonds shall be in fully registered form. Except as provided in Section 3.05 hereof,
the Holder of a Bond shall be regarded as the absolute owner thereof for all purposes of this
Indenture.
The Bonds shall be negotiable instruments in accordance whh the Act, and shall express
the purpose for which they are issued and any other statements or legends which may be required
by law.
- .,'\
,
'H/
SECTION 3.02. Variable Terms. Subject to the provisions of this Indenture, each
series of Bonds shall be dated, shall mature in the years and the amounts, shall bear interest at the
rate or rates per annum, shall be payable on the dates, shall have the Registrar, Paying Agents and
Authenticating Agents, shall be of the denominations, shall be subject to redemption on the terms
and conditions. and shall have any other terms which are set forth in or for which provision is
made in this Indenture, including Exhibit A hereto, in the case of the Series 1999 Bonds, or in or
pursuant to the applicable Supp1ementaJ Indenture, in the case of any issue of Additional Bonds.
SECTION 3.03. Execution and Authentication of Bonds. Unless provided otherwise
in the applicable Supplemental Indenture, each Bond shall be signed by at least two members of
the Issuer in their official capacities (provided that those signatures may be facsimiles). In case
any officer whose signature, or a facsimile of whose signature, shall appear on any Bond shall
cease to be that officer before the issuance of the Bond, that officer's signature or the facsimile-
thereof shall be valid and sufficient nevertheless for all purposes, the same as if that officer had
remained in office until that time. Any Bond may be executed on behalf of the Issuer by an
officer who is the proper officer on the date of execution, although on the date of the Bond that
individual is not the proper officer.
No Bond shall be valid or become obligatory for any purpose or shall be entitled to any
benefit under this Indenture, unless the certificate of authentication thereon shall have been
manually signed by the Trustee or by any Authenticating Agent on behalf of the Trustee, The
authentication by the Trustee or by an Authenticating Agent upon any Bond shall be conclusive
evidence that the Bond so authenticated has been duly authenticated and delivered hereunder and
is entitled to the benetit hereof. The certiticate of the Trustee or an Authenticating Agent may
be executed by any individual or agent authorized by the Trustee or the Authenticating Agent, but
<J
29
99--;ft
'1
- -')
'.....c.......
,
'J
it shall not be necessary that the samc authorized individual or agent sign the certificates of
authentication on all of the Bonds.
SECTION 3.04. Set:urity tor Payment of Bonds. To the extent provided in and
except as otherwise permitted by this Indenture. the Bonds shall be limited obligations of the
Issuer and the Debt Service Charges thereon shall be (i) payablc equally and ratably from the
Revenues and (ii) secured by the Agreement (except for the Unassigned Rights) thereunder, and
by the Mortgage; provided, that payment of Debt Service Charges on any series of Additional
Bonds may be otherwise sccured and payable from sources or by property or instruments not
applicable to the Series 1999 Bonds or one or more series of Additional Bonds, or not secured and
protected from sources or by property or instruments applicable to thc Series 1999 Bonds or one
or more series of Additional Bonds.
Nothing in the Bonds or this Indcnture shall represent or constitute a general obligation,
a debt or a pledge of the faith and credit or taXing power of the Issuer and further, nothing therein
or herein gives the Holders of any Bonds, and they do not have, the right to have levied ad
valorem taxes or other taxes by the Issuer, or by the State or any other political subdivision or
agency thereof, for the payment of Debt Service Charges on the Bonds.
SECTION 3.05. Payment and Ownership of Bonds. (a) Debt Service Charges shall
be payable in lawful money of the United States of America without deduction for the services of
the Trustee or any Paying Agent. Subject to the provisions of paragraph (b) of this Section, (i)
the principal of and any premium on any Bond shall be payable when due to a Holder upon
presentation and surrender of such Bond at the designated corporate trust oftice of the Trustee or
at the office, designated by the Trustee, of any Paying Agent, and (ii) interest on any Bond shall
be paid on each Interest Payment Date by check or draft which the Trustee shall cause to be
mailed on that date to the Holder in whose name the Bond (or one or more Predecessor Bonds)
is registered at the close of business on the Regular Record Date applicable to that Interest
Payment Date on the Register at the address appearing therein, provided that, at the written
request by and expense of any Holder of $100,000 or more principal amount of Bonds, such Debt
Service Charges may re paid by bank wire transfer or by direct deposit to the designated account
of the Holder. If and to the extent, however, that the Issuer shall fail to make payment or
provision for payment of interest on any Bond on any Interest Payment Date, that interest shall
cease to be payable to the Person who was the Holder of that Bond (or of one or more Predecessor
Bonds) as of the applicable Regular Record Date. Except as provided in paragraph (b) of this
Section, whenever moneys become available for payment of the interest (1) the Trustee shall,
pursuant to Section 7.07(d), establish a Special Interest Payment Date for the payment of that
interest and a Special Record Date which shall be not more than 15 nor tewer than 10 days prior
to the Special Interest Payment Date, and (2) the Trustee shall cause notice of the Special Interest
Payment Date and of the Special Record Date to be mailed by first class mail, postage prepaid,
to each Holder at its address as it appears on the Register not fewer than 10 days prior to the
Special Record Date, and thereafter the interest shall be payable on such Special Interest Payment
Date to the Person who was the Holder of said Bond (or Predecessor Bonds) at the close of
30
11 ~ !~
~,",. '.c...:_,:~~.:....:...:....u_~._
I~
business on the Special Record Dare. If any Bond is redeemed on any date which is not an
Interest Payment Date, accrued interest thereon shall be paid when the redemption price is paid.
If any Bond is redeemed on any Interest Payment Date, the interest due shall be paid in the nonnal
manner specified above.
(b) Each Bond delivered under this Indenture upon transfer thereof, or in exchange for
or in replacement of any other Bond, shall carry the rights to interest accrued and unpaid, and to
accrue on that Bond. or which were carried by that Bond.
(c) Except as provided in this Section 3.05 and in the first paragraph of Section 3.07
hereof, (i) the Holder of any Bond shall be deemed and regarded as the absolute owner thereof
for all purposes of this Indenture, (ii) payment of or on account of the Debt Service Charges on
any Bond shall be made only to or upon the order of that Holder or its duly authorized attorney
in the manner permitted by this Indenture. and (iii) neither the Issuer, the Trustee, the Registrar
nor any Paying Agent or Authenticating Agent shall, to the extent permitted by law, be affected
by notice to the contrary. All of those payments shall be valid and effective to satisfy and
discharge the liability upon that Bond, including without limitation, the interest thereon, to the
extent of the amount or amounts so paid. '
-)
SECTION 3.06. Transfer and Exchan2e of Bonds. So long as there are any
Outstanding Bonds, the Issuer will cause books for the registration and transfer of Bonds, as
provided i,n this Indenture, to be maintained and kept at the designated office of the Registrar.
Unless provided otherwise in the applicable Supplcmental Indenture, at the option of the
Holder, Bonds may be exchanged for Bonds of any authorized denomination or denominations in
an aggregate principal amount equal to the unmatured and unredeemed principal amount of, and
bearing interest at the same rate and maturing on the same date or dates as, the Bonds being
exchanged. The exchange shall be made upon presentation and surrender of the Bonds being
eXChanged at the designated office of the Registrar or at the designated office of any
Authenticating Agent together with an assignment duly executed by the Holder or its duly
authorized attorney in any form which is satisfactory to the Registrar or the Authenticating Agent,
as the case may be.
Any Bond may be transferred on the Register, upon presentation and surrender thereof at
the designated office of the Registrar or the designated office of any Authenticating Agent together
with an assignment duly executed by the Holder or its duly authorized attorney in any form which
is satisfactory to the Registrar or the Authenticating Agent, as the case may be. Upon transfer of
any Bond and upon the request of the Registrar or the Authenticating Agent, the Issuer shall
execute and the Trustee or the Authenticating Agent, as the case may be. shall authenticate and
deliver, a new Bond or Bonds in the name of the transferee. of any authorized denomination or
denominations in an aggregatc principal amount equal to the unmatured and unredeemed principal
amount of. and bearing interest at the same rate and maturing on the same date or dates as, the
Bonds presented and surrendered for transfer.
'J
31
9'1, 1ft
)
The Trustee shall not register the transfer of any Bond without the prior receipt of evidence
acceptable to the Trustee that the transferce is an t1accrcditcd investor" I as defined in Regulation D,
or any successor regulation, promulgated by the United State Securities and Exchange Commission,
in accordance with the legend on the face of the Bond. Evidence acceptable to the Trustee shall
include, but not be limited to, published lists of "institutional investors" maintained by one or more
national bond rating services; provided, however, that such term shall not include a book entry
depository, including, but not limited to, The Depository Trust Company.
In all cases in which Bonds are exchanged or transferred hereunder, the Issuer shall
execute, and the Trustee or any Authenticating Agent, as the case may be, shall authenticate and
deliver, Bonds in accordance with the provisions hereof. Except as provided in Section 3.07
hereof, the exchange or transfer shall be made without charge; provided that the Issuer and the
Registrar or the Authenticating Agent, as the case may be, may make a charge for every exchange
or transfer of Bonds which is sufficient in amount to reimburse them for any tax or excise required
to be paid with respect to the exchange or transter. The charge shall be paid by the Holder before
a new Bond is delivered.
'\
I
All Bonds issued upon any exchange or transfer of Bonds shall be the valid obligations of
the Issuer and shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Bonds surrendered upon exchange or transfer. Neither the Issuer, the Trustee,
the Registrar nor any Authenticating Agent, as the case may be, shall be required to make any
exchange or transfer of a Bond (i) during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Bonds and ending at the close of
business on the day of the mailing, or to transfer ~r exchange any Bonds selected for redemption,
in whole or in part, following the mailing (ii) during a period beginning on the date the Holder
of such Bond delivers to the Trustee a notice described in Section 4.10 hereof and ending on the
Optional Tender Date.
In case any Bond is redeemed in part only. on or after the redemption date and upon
presentation and surrender of the Bond, subject to the provisions of Section 4.04 hereof, the Issuer
shall cause execution of, and the Trustee or Authenticating Agent, as the case may be, shall
authenticate and deliver, a new Bond or Bonds in authorized denominations in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing interest at the
same rate and maturing on the same date or dates as, the Bond redeemed in part.
The designated office of the Registrar and the Authenticating Agent for purposes of this
Section shall be established by the Trustee.
SECTION 3.07. Mutilated. Lost. Wron~fully Taken or Destroyed Bonds. If any
Bond is mutilated, lost, wrongfully taken, improperly cancelled or destroyed, in the absence of
written notice to the Issuer, the Trustee. the Registrar or an Authenticating Agent that the lost,
wrongfully taken or destroyed Bond has been acquired by a bona fide purchaser, the Issuer shall
execute, and the Trustee or an Authenticating Agent, as the case may be, shall authenticate and
'--J
32
'11-1'6
~!Io.~'"'
'J
deliver, a new Bond of like date. maturity. interest rale and denomination as the Bond mutilated.
lost, wrongfully taken, improperly cancelled or destroyed; provided, that
(a) in the case of any mutilated or improperly cancelled Bond, such Bond shall be
surrendered first to the Registrar' or an Authenticating Agent; and
(b) in the case of any lost, wrongfully taken or destroyed Bond, there shall be furnished
first to the Issuer, the Company, the Trustee and the Registrar or an Authenticating Agent (if
different persons) evidence of the loss. wrongful taking or destruction satisfactory to the Trustee
and the Registf'dr or the Authenticating Agent, as the case may be, together with indemnification
satisfactory to the Trustee and the Registrar or Authenticating Agent (if different persons)
indemnifying the Company, the Trustee, the Registrar or Authenticating Agent (if different
persons), and the Issuer.
)
If any mutilated, lost, wrongfully taken or destroyed Bond shall have matured or been
redeemed prior to maturity, instead of issuing a new Bond, the Authorized Company
Representative may direct the Trustee to pay that Bond, without surrender thereof, upon the
furnishing of satisfactory evidence and indemnification, as in the case of issuance of a new Bond.
The Issuer, the Trustee and the Registrar or an Authenticating Agent may charge the Holder of
a mutilated, lost, wrongfully taken or destroyed Bond their reasonable fees and expenses in
connection with their actions pursuant to this Section, except for improper cancellation by the
, Registrar.
Every new Bond issued pursuant to this Section by reason of any Bond being mutilated,
lost, wrongfully taken, improperly cancelled or destroyed
(i) shall constitute a Bond, to the extent of the Outstanding principal amount
of, and having the same terms as, the Bond lost, mutilated, laken, improperly cancelled or
destroyed, regardless of whether the mutilated, lost, wrongfully taken, improperly cancelled or
destroyed Bond shall be enforceable at any time by anyone; and
(ii) shall be entitled to all of the benefits of this Indenture to the same extent as
the Bond that was mutilated, lost, wrongfully taken or destroyed.
All Bonds shall be held and owned on the express condition that the foregoing provisions
of this Section are exclusive with respect to the replacement or payment of mutilated, lost.
wrongfully taken, improperly cancelled or destroyed Bonds and, to the extent permitted by law.
shall preclude all other rights, remedies and powers with respect to the replacement or payment
of negotiable instruments or other investment securities without their surrender, notwithstanding
any law or statute to the contrary now existing or enacted hereafter.
SECTION 3.08. Safekt."eping and Cancellation of Bonds. Any Bond received by the
Registrar for replacement pursuant to Section 3.07 hereof or exchanged pursuant to Section 3.06
J
33
qtI,/'K
--""Ff.~.I.. i 1,.1< "t- _- b. .,~ ,.. ~ -..-
19- / ~
~
hereof shall be promptly cancelled by the Registrar and evidence of such cancelIation wiff be
delivered by the Registrar to the Issuer and the Authorized Company Representative upon request.
The Issuer; or the Company on behalf of the Issuer; may deliver at any time for
cancellation to the Registrar any Bonds authenticated and delivered previously hereunder; which
the Issuer or the Company may have acquired in any manner whatsoever. All Bonds so delivered
shall be cancelled promptly by the Registrar. Certification of such surrender and cancellation shall
be made to the Issuer, the Company and the Trustee by the Registrar at least once in each calendar
year during which any Bonds were surrendered; cancelled and destroyed.
Except as provided in the first paragraph of this Section 3.08 and unless directed otherwise
by the Authorized Company Representative, cancelled Bonds shall be retained and stored by the
Registrar for a period of seven years after their cancellation. Those cancelled Bonds shall be
destroyed by the Registrar by shredding or incineration seven years after their cancellation or at
any earlier time directed by the Authorized Company Representative. The Trustee or Registrar;
as appropriate, shall furnish counterparts of a certificate of destruction relating to any Bonds
destroyed under this Section 3.08 evidencing such destruction to the Issuer and the Authorized
Company Representative.
)
...../
SECTION 3.09. Temporary Bonds. Pending the preparation of definitive Bonds,
interim receipts or certificates (herein referred to as "Temporary Bonds") may initially be issued,
exchangeable for definitive Bonds of the same series when the latter are ready for delivery. Such
Temporary Bonds may be primed; lithographed or typewritten, shall be of such denomination or
denominations as may be determined by the Issuer, with the approval of the Company and the
Registrar and Paying Agent, and may contain such references to any of the provisions of this
Indenture as may be appropriate. If Temporary Bonds are issued, the Issuer will cause to be
furnished duly executed definitive Bonds as soon as practicable, and thereupon the Temporary
Bonds may be surrendered for cancellation at the Principal Office of the Registrar in exchange for
definitive Bonds and without charge for such exchange, and the Issuer shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange of such Temporary
Bonds so surrendered an equal aggregate principal amount of definitive duly executed Bonds, of
Authorized Denominations and of the same series, interest rate or rates and maturity or maturities.
Until so exchanged, the Temporary Bonds shall be entitled to the same benefits under this
Indenture as definitive Bonds of the same series delivered hereunder.
-J
34
~......' '!-..... ,~. . ,... 4....~~......T .
~
-..,
,
.J
, :::;
ARTICLE IV
REDEMPTION OF BONDS; TENDER PROVISIONS
SECTION 4.01. Mandatory Sinkin~ Fund Rt.>demplion of Series 1999 BQnds. (a) The
Series 1999A Bonds maturing November 15, 20_ are subject to mandatory redemption prior
to maturity in part, by lot, on November 15111 of each year, beginning November 15, 20_ at
a redemption price equal to one hundred percent (100%) of the principal amount of such Series
1999 Bonds being redeemed plus accrued interest to the redemption dateJ without premiumJ in the
following principal amounts and in the following years:
~
Amount
*Maturity
I
(b) The Series 1999C Bonds maturing November 15, 20_ are subject to mandatory
redemption prior to maturity in part, by lot, on November ISTII of each year, beginning November
15, 20_, at a redemption price equal to one hundred percent (100%) of the principal amount
of such Series 1999 Bonds being redeemed plus accrued interest to the redemption date, without
p~emium, in the following principal amounts and in the following years:
fur
Amount
*Maturity
(c) The Series 1999B Bonds are subject to mandatory redemption prior to maturity in
part, by lot (except that Series 19998 Bonds that have been tendered for purchase on any Optional
Tender Date but were not so purchased shall be redeemed prior to the redemption of any other
Series 1999B Bonds), on November 15th of each year, beginning November 15, 20 ,at a
redemption price equal to one hundred percent (100%) of the principal amount of Series 19998
Bonds being redeemed plus accrued interest to the redemption date, without premium, in the
following principal amounts and in the following years:
~
A D10unt
* M atu ri ty
(d) The principal amount of Series 1999 Bonds required to be redeemed pursuant to
the foregoing provisions shall be reduced prorata by amounts equal to such principal amount of
35
q9 - !6
I,
"I
/")
the Series 1999 Bonds of such maturities which are purchased by the Tender Agent or Trustee for
cancellation and retirement by the Trust~e with moneys provided by the Company.
SECTION 4.02. Extraordinary Redemption Withou: I?remium. (a) At the direction
of the Company on behalf of the Issuer, the Series 1999 Bonds are subject to extraordinary
optional redemption in whole at anytime or in pan on any Interest Payment Date in Authorized
Denominations from the proceeds of insurance or condemnation payments received in excess of
$250,000 as a result of damage or destruction or taking under the power of eminent domain of all
or a portion of the Mortgaged Property, in either case at a redemption price of 100 percent of the
principal amount redeemed plus interest accrued to the redemption date.
SECTION 4.03. Optional Redemption of Series 1999 Bonds. (a) The Series 1999A
Bonds and the Series 1999C Bonds maturing on or prior to November 15, 20_ are not subject
to rt..>demption prior to maturity at the option of the Company. The Series 1999A Bonds and the
Series 1999C Bonds maturing on and after November 15, 20_ are subject to redemption prior
to their maturity at the option of the Issuer at the written request of the Company on or after
November 15,20_ at any time in whole or in part, in order of maturities as shall be determined
by the Company and by lot within a maturity, on any Interest Payment Date, at the redemption
prices (expressed as percentages of the principal amount thereof) set forth in the table below, plus
accrued interest thereon to the date fixed for redemption:
,)
Period of Redemption
(All dates inclusive)
Redemption Prices
November 15, 20_ to November 14, 20_ 102%
November 15,20_ to November 14, 20_ 101 %
November 15, 20_ and thereafter 100%
(b) The Series 1999B Bonds may be redeemed in whole or in part on any date
occurring within the redemption periods, as set forth below, by the Issuer upon direction of the
Company. The redemption price for any such redemption shall be at a redemption price equal to
100% of the principal amount of the Series 1999B Bonds or portion thereof so redeemed on the
applicable redemption date, plus accrued interest to the redemption date.
(i) During the period between the issuance of the Series 1999B Bonds and the
Initial Rate Change Date, the Series 1999B Bonds are subject to optional redemption on
or after November 15, 20_
(ii) During any Rate Period of three years in length, the Series 1999B Bonds
are subject to optional redemption commencing on the 18-month anniversary of the first
day for such Rate Period.
()
36
q9-lfl
)
(iii) During any Rate Period of five years in length, the Series 1999B Bonds are
subjt.'Ct to optional redemption commencing on the 24-month anniversary of the first day
of such Rate Period.
(iv) During any Rate Period of seven years in length, the Series 1999B Bonds
are subject to optional redemption commencing on the 30~month anniversary of the first
day of such Rate Period.
(v) During any Rate Period of ten or more years in length, the Series 1999B
Bonds are subject to optional redemption commencing on the fifth anniversary of the first
day of such Rate Period.
The Series 1999B Bonds tendered for purchase on any Rate Change Date but not so
purchased shall be given priority for redemption on each succeeding optional or extraordinary
redemption date until redeemed prior to the optional or extraordinary redemption of any other
Series 1999B Bonds. Bond so given priority shall be selected by the Trustee, by lot or in such
other equitable manner as the Trustee shall deem appropriate, in the event of insufficient funds
to redeem all such Bonds on any particular redemption date.
~,)
SECTION 4.04. Partial Redemption. Subject to the provisions of Section 4.03
hereof, if less than all of the Series 1999 Bonds shall be called for redemption, the particular
Series 1999 Bonds or portions thereof to be redeemed shall be designated by the Company and,
if not designated. the Bonds to be redeemed shall be redeemed in inverse order of maturity;
provided, that in any event Unremarketed Bonds shall be redeemed prior to any other Bonds. If
less than all Outstanding Bonds of a single maturity are to be redeemed, the selection of Bonds
within such maturity, or portions thereof in Authorized Denominations, to be redeemed shall be
made by lot by the Trustee in any manner which the Trustee may determine. The Trustee shall.
to the extent practicable, select Bonds for redemption as to avoid redeeming any particular Bond
in part.
SECTION 4.05. Company's Election to Redeem. Except in the case of mandatory
redemption, Bonds shall be redeemed only after written notice from the Authorized Company
Representative to the Trustee and the Issuer. That notice shall specify the place or places where
the amounts due upon redemption are payable, the redemption date, and the principal amount and
the maturity of Bonds of each series to be redeemed. The notice shall be given not less than 45
nor more than 60 days prior to the redemption date.
SECTION 4.06. Notice of Redemption. (a) When redemption is authorized or
required pursuant to the provisions hereof, the Trustee shall give to the Holders notice, at the
expense of the Company. of the redemption of the Bonds. Such notice shall state: (i) the CUSIP
numbers of all Bonds being redeemed. (ii) the original issue date of such Bonds. (iii) the maturity
date and rate of interest borne by each Bond being redeemed, (iv) the redemption date, (v) the
redemption price, (vi) the date on which such notice is mailed~ (vii) if less than all Outstanding
J
37
11-/C!
')
,
~)
..
,~
\;'
Bonds are to be redeemed. the Bond number (and, in the case of a panial redcmption of any Bond.
the principal amount) of each Bond to be redeemed, (viii) that on such redemption dale there shall
become due and payable upon each Bond to be redeemed the redemption price thereof, or the
redemption price of the specitied portions of the principal thereof in the case of Bonds to be
redeemed in part only, together with interest accrued thereon to the redemption date, and that
from and after such date interest thereon shall cease to accrue and be payable, and (ix) that the
Bonds to be redeemed, whether as a whole or in part, are to be surrendered for payment of the
redemption price at the designated corporate trust oftice of the Trustee at an address specified.
(b) Notice of such redemption shall be given by mail, postage prepaid, not more than
sixty (60) days or fewer than thirty (30) days prior to said date of redemption, to the Holders of
any Bonds to be redeemed. Such mailing shall not be a condition precedent to such redemption,
and failure to mail any such notice, or any defcct in such notice as mailed, shall not affect the
validity of the proceedings for the redemption of the Bonds. Within sixty (60) days of date of
redemption, the Trustee shall give a second notice of redemption by mailing another copy of the
redemption notice to the registered Holders of Bonds called for redemption but which have not
been presented for payment within thirty (30) days after the date set for redemption.
(e) In addition to the forgoing notices, notice of the call for any redemption identifying
the Bonds, or portions of Bonds (including CUSIP numbers), and the names of the Registered
Holders thereof shall, concurrently with the redemption notices mailed to the Registered Holders
of the Bonds to be redeemed, be mailed by registered or certified mail to Ziegler Securities, 215
North Main Street, West Bend, Wisconsin 53905, Attention: Bond Redemption Department, and
shall meet the following requirement; provided, however, that failure to provide such further
notice of redemption or to comply with the tenus of this paragraph shall not in any manner defeat
the effectiveness of a call for redemption if notice thereof is given as prescribed above:
Each further notice of redemption shall also be sent by certitied mail or overnight
delivery service or telecopy to all registered securities depositories then in the business of
holding substantial amounts of obligations of types comprising the Bonds (such
depositories now being the Depository Trust Company, New York, New York, Midwest
Securities Trust Company, Chicago, Illinois and Philadelphia Depository Trust Company,
Philadelphia, Pennsylvania) and to four or more national information services which
disseminate notices of prepayment or redemption of obligations such as the Bonds (such
infonnation services now being Financiallnfonnation, Inc. 's "Daily Called Bond Service, "
Jersey City, New Jersey, Kenny Infonnation Services" Called Bond Service," New York,
New York, Moody's "Municipal and Government, II New York, New York and Standard
& Poor's "Call Bond Record, It New York, New York).
SECTION 4.07. fa)!..ment of Redeemed Bonds. Notice having been mailed in the
manner provided herein, the Bonds and portions thercof duly called for redemption shall become
due and payable on the redemption date, and upon presentation and surrender thereof at the place
or places specified in that noticeJ shall be paid at the applicable redemption price.
38
19-/f6
')
~~.)
\J
If moneys for the redemption of all of the Bonds and portions thereof to be redeemed,
including without limitation. interest accrucd thcrcon to the redemption date, arc held by the
Trustee or any Paying Agent on the redemption date, so as to be available therefor on that date,
and if notice of redemption shall have been deposited in the mail as aforesaid, then from and after
the redemption date, those Bonds and portions thereof duly called for redemption shall cease to
bear interest and shall no longer be considered to be Outstanding.
If those moneys shall not be so available on the redemption date, or that notice shall not
have been deposited in the mail as aforesaid, those Bonds and portions thereof shall continue to
bear interest, until they are paid, at the same rate as they would have borne had they not been
called for redemption.
All moneys deposited in the Special Funds and held by the Trustee or a Paying Agent for
the redemption of particular Bonds shall be held in trust for the account of the Holders thereof and
shall be paid te them, respectively, upon presentation and surrender of those Bonds.
SECTION 4.08. Variation of Redemption Provisions. The provisions of this Article
may be varied by the Supplemental Indenture providing for any serres of Additional Bonds,
insofar as they apply to that series.
SECTION 4.09. Series 1999B Bond Holders Put Option. (a) Provided that there then
be no Event of Default under the Indenture, that the Series 1999B Bonds tendered for purchase
shall not have otherwise been called for redemption, and that sufficient funds are available
therefor, as hereinafter provided, the Holder of a Series 1999B Bond will have the right to cause
such Series 1999B Bond to be purchased on any Optional Tender Date at a price equal to 100%
of the principal thereof or any portion of integral multiples of $1,000 (the l'Tender Purchase
Price"), upon written notice to the Tender Agent given not less than 30 days nor more than 60
days prior to the applicable Optional Tender Date. The notice required to be given pursuant to
this paragraph (the "Tender Notice") (i) shall be irrevocable and binding upon the Holder making
such election and any transferee thereof and Oi) shall state the principal amount of such Series
1999B Bonds to be tendered by the Holder to the Tender Agent, for purchase on such Optional
Tender Date. The Tender Agent shall, prior to the close of business on the Business Day
immediately succeeding the last day upon which a Tender Notice may be given to the Tender
Agent, give Immediate Notice to the Trustee, the Company and the Remarketing Agent by
telephone (promptly confirmed in writing) or by telecopy of all Tender Notices and the aggregate
principal amount of Series 1999B Bonds to be tendered for purchase on such Optional Tender
Date. The tendering of Series 19998 Bonds by any Holder shall be in accordance with the
instructions delivered to such Holder by the Tender Agent, specifying the procedures to be
followed in order to tender such Series 1999B Bonds for purchase on an Optional Tender Date.
Failure of any Holder of Series 1999B Bonds to give a Tender Notice, or the failure of such
Holder to comply with the procedures descrilx..>d in the immediately preceding sentence shall result
in such Holder's loss of the right to tender Series 1999B Bonds for purchase on such Optional
Tender Date. Interest for the six-month period immediately prior to the date of such purchase will
39
q9--1<6
,') be mailed to the holder of such Series 1999B Bond as registered on the 15th day of the month
. (whether or not a business day) of the month immediately preceding the date of such purchase.
(b) Prior to 10:30 a.m.. Chkago Time, on each Optional Tender Date. the Holders of
the Series 1999B Bonds to be tenden.>d for purchase on such date shall deliver to the Tender Agent
the Series 1999B Bonds to be tendered for purchase on such date accompanied (if required by the
Trustee) by a written instrument or instruments of assignment or transfer in the form satisfactory
to the Trustee transferring such Bonds to such person or persons as the Remarketing Agent in its
sole discretion shaH designate, or if the Remarkcting Agent shall not have made any such
designation, then to the Tender Agent to be held and registered in accordance with the provisions
of Section 4.13 hereof. If a Holder tiles the requisite Tender Notice but fails to deliver the Series
1999B Bonds so tendered, such Series 1999B Bonds, upon deposit with the Tender Agent on the
Optional Tender Date of the Tender Purchase Price, shall be deemed purchased and no longer
outstanding, and the Holder of such Series 1999B Bonds shall thereafter look solely to the Tender
Purchase Price held by the Tender Agent without interest.
(c) On the Optional Tender Date, the Tender Agent will pay the Tender Purchase Price
of the Series 1999B Bonds to be so purchased from the following sources and in the order listed:
.,.....
'l
.,_"J'
(i) proceeds of the remarketing of the Series 19998 Bonds deposited with the
Tender Agent by the Remarketing Agent pursuant to the terms of the Remarketing Agreement;
and
(ii) moneys deposited by the Company pursuant to Section 5.20 of the
Agreement with the Trustee, for the purpose of paying the Tender Purchase Price of the Series
1999B Bonds to be so purchased, which shall be transferred by the Trustee to the Tender Agent
to pay such Tender Purchase Price.
To the extent that Series 1999B Bonds for which the Remarketing Agent has written
confi rmations of sale are not sold and cash proceeds made available to the Tender Agent as
provided in Section 4.13 hereof, the Remarketing Agent promptly shall so notify in writing the
Trusteet and the Trustee shall take action pursuant to Section 4.10 hereof to obtain the balance of
the Tender Purchase Price from the Company, in accordance with Section 5.20 of the Agreement.
In the event the Remarketing Agent sells additional Series 1999B Bonds between the date
of the notitication required by the immediately preceding paragraph and the Optional Tender Date,
the Remarketing Agent shall promptly h0tify in writing the Tender Agent that the moneys required
to accomplish the purchase of all Series 1999B Bonds tendered for purchase is to be reduced in
an amount equal to the sales price of any such additional Series 1999B Bonds which have been
sold. In such case, any unused moneys derived from the Company shall be returned promptly to
the Company in accordance with Section 4.1O(b) hereof. '
'.,
J
40
qtj-/~
~"""-~~""::'~...:- --~_.:..:.:_...:.~--._.-
-J
(d) The Trustee has becn appointed Tcndcr Agcnt in ordcr to pcrfonn thc duties of such
Tender Agent as required by this Indenture. Thc Company, with thc prior written approval of the
Issuer, shall have the right. from time to time. to appoint anothcr Tender Agent by giving written
notice to the pcrson thcn scrving as Tender Agent and to the Trustee of such appointment. The
Tender Agent may at any time resign and be discharged of thc duties and obligations created by
the Indenture by giving at least sixty (60) days written notice to the Issuer, the Company, the
Remarketing Agent and the Trustee. The successor Tendcr Agent will be designated pursuant to
Section 6.14 hereof.
~_.,-i
SECTION 4.10. Moneys to Purchase Series 1999B Bonds: Duties of Tender
&rnt. (a) Upon receipt of the notice described in Section 4.09(a). the Tcnder Agent shall give
Immediate Notice to the Remarketing Agent, the Company and thc Trustee stating the aggregate
principal amount of Series 1999B Bonds, if any, which have becn properly tendered and delivered
to the Tender Agent for purchase on thc Optional Tender Date. At least three (3) business days
preceding the Optional Tender Date, the Remarketing Agent shall give telephonic or telegraphic
notice confinned in writing to the Trustee specifying (i) the principal amount of thc Series 1999B
Bonds, if any, sold by it for which proceeds will be available on the Optional Tender Date and
(ii) the principal amount of the Series 1999B Bonds required to be purchased which have not been
remarketed (UUnremarketed Donds"). Immediately following the receipt of such notice the
Trustee shaH give telephonic notice, confirmed by written notice, to the Company of the amount
of Unremarketed Bonds and the amount of the aggregate Tender Purchase Price associated
therewith. Upon receipt of such notice from the Trustee, the Company shall notify the Trustee
of the amount of funds available pursuant to Section 5.20 of the Agreement to purchase any or
all of the Unremarketed Bonds. The Tender Agent shall, sell to the Company, all or a portion of
the Unremarketed Bonds on the Optional Tender Date, with payment to. be made directly by the
Company to the Trustee in immediately available funds on such Optional Tender Date.
(b) Any moneys received from or for the account of the Company pursuant to this
Section in the form of immediately available funds paid by the Company shall be held by the
Trustee or the Tender Agent as trust funds in a separate fund established for such purpose (the
"Extendables Purchase Fund") to be used solely for the purpose of purchasing Unremarketed
Bonds and shall be delivered, to the extent necessary, to the Tender Agcnt on the Optional Tender
Date in the amount sufficient to effect the purchase of duly tendered Series 1999B Bonds on such
date. In the event all of the moneys so received are not required to be used to purchase Series
1999B Bonds on such date, any excess moneys shall be returned by the Tender Agent to the
Trustee and then by the Trustee to the Company or the appropriate Special Fund, whichever was
the source of such excess moneys.
SECTION 4.11. Failure to Rcmarket Tendered Series 1999B Bonds. In the event
there are not sufficient moneys available from the sources provided in Section 4.10 hereof to pay
the principal of the Series 1999B Bonds tendered for purchase on the Optional Tender Date, the
Trustee, after notitication in writing from the Tender Agent, will determine by lot the Series
1999B Bonds to be purchased on such Optional Tender Date, and the remaining tendered Series
~
41
CfI-I<t
'"
~
1999B Bonds shall be treated as tendered for purchase on each next succeeding Optional Tendcr
Date unlcss the Trustee shall receive at least 45 days prior to any such succeeding Optional Tender
Date a properly executed notice signed by the Registered Holder; or by its attorney-in-fact duly
authorized in writing, stating thalthe tender of such Series 1999B Bonds has been withdrawn (the
uTender WithdrawalU). Failure to purchase all Series 1999B Bonds tendered for purchase on a
particular Optional Tender Date because of an insufficiency of money to effect such purchase shall
not constitute an Event of Default under this Indenture.
Unremarkcted Bonds tor which a Tender Withdrawal has not been received will be selected
for redemption pursuant to any partial redemption of the Series 1999 Bonds as set forth in Section
4.04 hereof prior to the selection of other Bonds of the same maturity and type.
SECTION 4.12. Remarkcting of Series 1999B Bonds. The Remarketing Agent shall
offer tor sale and use its best efforts to sell all Series 1999B Bonds tendered to the Tender Agent
tor purchase pursuant to the provisions of Section 4.09 hereof and the Remarketing Agreement,
any such sale to be made on the Optional Tender Date on which such Series 1999B Bonds arc to
be purchased.
",
,._,~j
SECTION 4.13. Delivery of Series 1999B Bonds and Proceeds of Sale. (a) Series
1999B Bonds sold by the Remarketing Agent pursuant to Section 4.12 hereof shall be delivered
by the Tender Agent to the Trustee for registration of transfer. The Trustee shall register the
transfer of such Series 1999B Bonds in accordance with written instructions received by it from
the Remarketing Agent prior to 10:30 a.m., Chicago Time. on the business day immediately
preceding the Optional Tender Date and shall authenticate and deliver new Series 1999B Bonds
in an equal aggregate principal amount to the Remarketing Agent for redelivery to the purchasers
thereof.
(b) Series 19998 Bonds purchased by the Tender Agent with moneys provided by the
Company shall be cancelled.
(c) Series 1999B Bonds delivered to the Tender Agent as provided in this Section 4.13
(and not cancelled pursuant to paragraph (b)) shall; subject to the Tender Withdrawal provisions
of Section 4.11 hereof; be registered by the Trustee in the manner directed in writing by the
Remarketing Agent. The Trustee shall have no liability or responsibility for the Remarketing
Agent1s sale and disposition of Series 1999B Bonds.
(d) The Remarketing Agent shall pay to the Tender Agent, on the Optional Tender
Date, in immediately available funds, the purchase price for Series 1999B Bonds which have been
remarketed by the Rcmarketing Agcnt. The moneys so received by the Tender Agent shall be
distributed to Holders who shall have properly tendered and delivered Series 1999B Bonds for
purchase and which have been rcmarketed or cancelled.
J
42
Cj1-/~
I.
')
(e) The Tender Agent agrees, and will cause each of its agents to agree. that it will (i)
hold all Series 1999B Bonds delivered to it hereunder in trust solely for the benefit of the
respective Bondholders that shall have so delivered such Series 1999B Bonds until moneys
representing the purchase price of such Series 1999B Bonds shall have been delivered to or for
the account of or to the order of such Bondholders; and (ii) deposit all moneys delivered to it
hereunder for the purchase of Series 1999B Bonds in the Extcndables Purchase Fund and hold
such moneys in trust solely for the benefit of the person or entity which shall have so delivered
such moneys, until the Series 1999B Bonds purchased with such moneys shall have been delivered
to or for the account of such person or entity.
SECTION 4.14. No Purchases or Sales After Event of Default. Anything herein or
in the Agreement to the contrary notwithstanding, there shall be no purchases or sales of Series
1999B Bonds pursuant to this Article IV at any time (i) during the continuance of an Event of
Default that consists of the failure to pay, when due, any payment (of, premium or interest on.
any Bond), or (ii) after the Trustee shall have received written notitication that an Event of Default
(other than as described in the preceding clause (i)) has occurred under the Indenture and such
Event of Default is continuing.
...~"\
I
SECTION 4.15. Remarketin2 A2ent. B. C. Ziegler and Company, is hereby
appointed as the Remarketing Agent'for the Series 1999B Bonds. The Company shall have the
right, from time to time, to remove the Remarketing Agent and appoint a successor Remarketing
Agent by giving wriuen notice to the person or persons then serving as Remarketing Agent, to the
Issuer and to the Trustee of such appointment; provided. however, the Remarketing Agent may
not be changed during the period commencing one hundred twenty (120) days prior to an Optional
Tender Date and ending thirty (30) days after an Optional Tender Date.
As a condition precedent to serving as ~emarketing Agent, the Remarketing Agent shall
deliver to the Tru3-tee and the Company a written agreement signifying its acceptance of the duties
and obligations imposed upon it hereunder pursuant to the provisions of which, in addition to any
other provisions contained therein. the Remarketing Agent shall:
(a) designate the office Of oftices at which it intends to conduct its activities as
Remarketing Agent and to which Series 1999B Bonds, moneys, notices and communications are
to be delivered and sent; and
(b) use its best efforts in accordance with the Rcmarkcting Agreement to remarket
Series 1999B Bonds delivered to it at a market percentage of par; and
(c) keep such books and records as shall be consistent with prudent industry practice
and make such books and' records available for inspection by the Issuer, and Trustee and the
Company at all reasonable times.
.~
43
Cf9 ~ I~
~'i~~
. . .. .
-..li...-~. L a~~~.~
",
I,
I',
, ':7)
.~..:..~~
J'
:: ",,~)
2)'
,j'
SECTION 4.-16. Resi2nation of Remarketin2 A2ent. Any Remarketing Agent may
aL any Lime resign and be discharged of the duties and responsibilities created by this Indenture
by giving at least ninety (90) days' written notice to the Issuer, the Trustee and the Company;
,provided, however, no such resignation shall be effective during 'the period commencing one
hundred twenty (120) days prior to an Optional Tender Date and ending thirty (30) days after an
Optional Tender Date.
In the event of the resignation or removal of any Remarketing Agent. the Remarketing
Agent shall pay over. assign and deliver any moneys and Series 19998 Bonds held by it in such
capacity to its successor. In the event that the Company fails to appoint a successor Remarketing
Agent" the interest rate in place prior to a Rate. Change Date shall remain the same after the Rate
Change Date. '
44
"
Q1,- /~
.
_l...~.....
/~
~-....
'J
,...)
ARTICLE V
FUNDS AND PAYMENTS
SECTION 5.01. Creation of Funds. In addition to th~ Ext~ndables Purchase Fund
created pursuant to Section 4.10 hereof, the tunds and accounts described in this Section are
created hereby and are designated as indicated. Each fund and account is to be maintained in the
custody of the Trustee as a separate trust account (except when invested in Eligible Inv~stments),
provided that separate subaccounts may be maintained in any such account and separate accounts
may be maintained in the Bond Fund. The funds and accounts are:
(a) the Bond Fund designated the "City of Clearwater, Florida (BEF, Inc. Project) --
Bond Fund" and the Principal Payment Account and the Interest Payment Account therein;
(b) the Rebate Fund designated the "City of Clearwater, Florida (BEF, Inc. Project)
-~ Rebate Fund";
(c) the Debt Service Reserve Fund designated the "City of Clearwater, Florida (BEF,
Inc. Project) -- Debt Service Reserve Fund";
(d) the Project Fund designated the "City of Clearwater, Florida (BEF, Inc. Project)
-- Project ~und. "
The Bond Fund, the Debt Service Reserve Fund. the Project Fund and the Extendables
Purchase Fund are hereby designated as the I1Special Funds".
The proceeds of the sale of the Series 199;) Bonds (including without limitation, premium,
if any, and interest accrued thereon) shall be allocated and deposited by the Trustee pursuant to
Section 2.04 hereof.
SECTION 5.02. Application of Loan Payments and Additional Payments. So long
as there are any Series 1999 Bonds Outstanding, all Loan Payments and Additional Payments shall
be paid monthly, not later than the 25th day of the next preceding month, by the Company directly
to the Trustee, shall be in an amount sufficient to make the payments described below, and after
payment of any fees due the Trustee, shall be deposited by the Trustee as follows:
(a) To the Bond Fund
(i) into the Interest Payment Account on each Loan Payment Date beginning
November 15, 1999, not less than the approximate equal monthly amount necessary, together with
the moneys on deposit in the Interest Payment Account and available for that purpose on that date,
to pay in full the interest due on the Bonds on the next succeeding Interest Payment Date, and
45
11-/t
/,"",
r
......)
t
..~
.
J
....", l . ~ . -......... ~. T
(ii) into the Principal Payment Account on each Loan Payment Date beginning
November 15, 2001, not less than the approximate equal monthly amount necessary to pay in full
the principal of the Bonds that will bccome due and payable on the next succeeding Principal
Payment Date (whether by payment at stated maturity or by mandatory sink'ing fund red~rnption);
less (1) in each case, the moncys on dcposit in the Principal Payment Account and available for
that purpose on that date. and (2) in the case of redemption pursuant to the mandatory redemption
requirements described in Section 4.01, the amount, jf any, of credit described in Section 4.01(c:)
hereof;
which amounts required to be deposited into the Bond Fund may be deposited in the form of either
or both money or Eligible Investments of those maturities which will be sufficient without further
investment or reinvestment to produce the amounts required to be on deposit tive days prior to the
next succeeding Interest Payment Date or Principal Payment Dare. as applicable; and
(b) To the Debt Service Reserve Fund
(i) on or prior to each Loan Payment Date, beginning in the sixth months
following any months in which the amount on deposit in the Debt Service Reserve Fund falls
below the Debt Service Reserve Requirement because moneys are transferred from the Debt
Service Reserve Fund to the Bond Fund to make up a deficiency in the Bond Fund (as permitted
under the provisions of Section 5.06 hereot), not less than one-twelfth (1112th) of the amount so
transferred until the balance in the Debt Service Reserve Fund equals the Debt Service Reserve
Requirement, and
(ii) on or prior to each Loan Payment Date~ beginning in the month foflowing
the month in which the Company receives notice pursuant to Section 5.11 hereof that the balance
in the Debt Service Reserve Fund is below an amount equal to ninety percent (90%) of the Debt
Service Reserve Requirement, an amount not less than Ont~-fourth of the deticiency determined
pursuant to Section 5.11 until the balance in the Debt Service Reserve Fund equals the Debt
Service Reserve Requirement;
provided, that in the event that it is determined pursuant to Section 5.11, subsequent to the
occurrence of the events described in (i) and (ii) above, that the amount on deposit in the Debt
Service Reserve Fund is not less than the Debt Service Reserve Requirement, the obligation to
make payments under this paragraph shalf end; and
(c) In each case and on each Loan Payment Date any amount which may be necessary
to make up any previous deticiency in any of the paymcms described above and to make up any
deticiency or loss in the respective funds or accounts to which payments are required to be made.
The Loan has been made to the Company pursuant to the Agreement, and the Loan
Payments required under the Agreement arc to be remitted directly to the Trustee in the manner
described therein and in the amounts set forth in paragraphs (a) and (b) above.c
46
CJ9-(r
'-)
For purposes of this section, (i) a deficiency in the Interest Payment Account or the
Principal Payment Account shall be the difference by which the respective amounts then held
therein are less than the respective amounts then scheduled to be held therein pursuant to the
applicable provisions of this Article V. and (ii) a deficiency in the Debt Service Reserve Fund
shall be the difference by which the amount then held therein is less than the Debt Service Reserve
Requirement.
SECTION 5.03. Bond Fund. The Bond Fund (and the accounts therein for which
provision is made in this Indenture) and the moneys and Eligible Investments therein shall be used
solely and exclusively for the payment of Debt Service Charges as they become due at stated
maturity, by redemption or pursuant to the mandatory sinking fund requirements under Section
4.01 hereof or for the payment of the purchase or redemption price of Bonds pursuant to Section
4.07 hereof, all as provided herein; provided, that no part thereof shall be used to redeem any
Bonds prior to maturity, except as may be provided otherwise herein or in the Agreement. The
Issuer shall have no interest in the moneys or Eligible Investments in the Bond Fund.
For the purposes of transferring to any other Paying Agents moneys which are necessary
to pay the Debt Service Charges on the Bonds on or before the date when they become due and
payable, the Trustee shall withdraw from the Bond Fund moneys which are available for the
purpose of paying, and which are sufficient to pay, Debt Service Charges as and when they
become due and payable (whether at stated maturity or by redemption).
''\
" In addition to the deposits to be made in the Bond Fund as contemplated otherwise herein.
there shall be deposited into the Interest Payment Account and the Principal Payment Account,
as and when received, all moneys received by the Trustee which are to be deposited in the Interest
Payment Account or the Principal Payment Account under the Agreement, or any other instrument
or document. Amounts so deposited in the Bond Fund shall be applied by the Trustee on the next
Interest Payment Date to pay Debt Service Charges on the Bonds.
SECTION 5.04. Proiect Fund. Moneys in the Project Fund shall be disbursed in
accordance with the prov!sions of the Agreement. The Trustee shall cause to be kept and
maintained adequate records pertaining to the Project Fund and all disbursements therefrom. If
requested by the Issuer or the Authorized Company Representative, after the Project has been
completed and a certificate of payments of all costs is filed as provided in (a) below, the Trustee
shall file with the Issuer and the Company, at the Company's expense, copies of the records
pertaining to the Project Fund and disbursements therefrom.
(a) The completion of the Projl.'Ct (or any addition thereto tinanced with any Additional
Bonds) and payment of all costs and expenses incidelll thereto shall be evidenced by the tiling with
the Trustee of
(i) the certificate of the Authorized Company Representative required by
Section 3.6 of the Agreement, and
'"-'}
47
qq- If{
l
.n,
,~/
J
~. '.-.......;... .~. ,.~..' ~,
(ii) a certificate signed by the Authorized Company Representative stating that
all obligations and costs in connection with the Project and payable out of the Project Fund have
been paid and discharged, except for amounts retained by the Trustee as provided under the
Agreement for the payment of costs of the Project not then due and payable.
As soon as practicable after the tiling with the Trustee of the certificate to which reference is made
in clause (ii) above, any balance remaining in the Project Fund (other than the amounts retained
by the Trustee as described in the preceding sentence) shall be deposited or applied in accordanl.:e
with the direction of the Authorized Company Representative pursuant to Section 3.4 of the
Agreement. Unless otherwise provided in the applica~le Supplemental Indenture, this Section
shall apply to any additional property linanced with the proceeds of any issue of Additional Bonds.
SECTION 5.05. Rebate Fund. Money and investments in the Rebate Fund shall not
be used for the payment of principal, premium. if any. or interest on the Bonds, and any provision
hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear
of any lien hereunder. Moneys in the Rebate Fund shall be invested pursuant to the procedures
and in the manner provided in Section 5.10 hereof. The Issuer, the Trustee and the Company have
agreed to comply with the Arbitrage Rebate Agreement to which each is a party in order to
comply with the requirements of Section 148 of the Code.
Under Section 2.3(h)(G) of the Agreement, the Company is required to make the payments
described in this Section.
The Trustee shaH timely furnish investment and account information to and the Company
shall engage (at the expense of the Company) a Rebate Analyst to calculate the amount of any
Rebateable Arbitrage (as defined in the Arbitrage Rebate Agreement) as of the end of that Bond
Year. Upon the occurrence of an Event of Default hereof, the Trustee shall calculate. or shall
furnish infonnation to and engage (at the expense of the Company) a rebate Analyst to calculate
the amount of any Rebateable Arbitrage (as defined in the Arbitrage Rebate Agreement) as of the
date detennined by the Trustee pursuant to this Section or as of the, date of release of this
Indenture under Article IX hereof. as applicable. After each such calculation, the Trustee
thereafter shall notifY the Company in writing of the amount of such Rebateable Arbitrage and the
amount then on deposit in the Rebate Fund. If the amount then on deposit in the Rebate Fund is
in excess of the Rebateable Arbitrage, the Trustee shall forthwith pay that excess amount to the
Company, after paying the cost of such calculation; provided that no such excess amount shall be
paid to the Company if a Default or an Event of Default has occurred and is continuing hereunder.
If the amount then on deposit in the Rebate Fund is less than the Rebateable Arbitrage. the
Company shall, within seven days after receipt of the aforesaid nOEice from the Trustee. pay to
the Trustee for deposit in the Rebate Fund an amount sufficient to cause the Rebate Fund to
contain an amount equal to the Rcbateable Arbitrage and the cost of such calculation.
Trustee shall be entitled to conclusively rely on any calculation or instruction furnished to
the Trustee by the Company in accordance with this Section 5.05.
48
19--lft
.~'\
;
"
:
. ..~/
',..)
SECTION 5.06. Debt Service Reserve Fund. In the event that moneys in the Interest
Payment Account or moneys in the Principal Payment Account are insuft1cient on any date on
which Debt Service Charges on the Outstanding Bonds secured by the Debt Service Reserve Fund
are due (whether at stated maturity, by mandatory redemption or upon acceleration) to pay such
interest or principal and any premiumt respectively, the Trustee shall withdraw from the Debt
Service Reserve Fund the moneys necessary to make up the deficiency and shall transfer those
moneys to the Interest Payment Account or the Principal Payment Account as the case may be.
[Not less than ten (10) days prior to any withdrawal of moneys from the Debt Service Reserve
Fund which would cause the amount in the Debt Service Reserve Fund to be less than amount
required to fund the minimum liquid reserve under Section 651.035(1), Florida Statutes, as
amended, notice of the withdrawal from the Debt Service Reserve Fund shall be given by the
Trustee by telephone (904-487-3828) (promptly continned in writing) or facsimile (904-487-0313)
to the Florida Department of Insurancet Bureau of Specialty Insurers, Room 637, Larson
Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300 (the "Department of
Insurance"), provided that such notice by telephone, by facsimile or in writing may be given to
the Department of Insurance at other telephone numbers or other addresses if required by the
Department to be used in lieu of the foregoing.]
When the amount on deposit in the Debt Service Reserve Fund is at least equal to the
principal amount of the Outstanding Bonds secured by the Debt Service Reserve Fund, the Trustee
shall transfer from the Debt Service Reserve Fund to the Principal Payment Account an amount
equal to the principal of the Bonds secured by the Debt Service Reserve Fund due and payable on
the next succeeding Principal Payment Date. Those moneys shall be used to pay the principal of
Bonds due on such date. The reduction in the Debt Service Reserve Requirement resulting from
that transfer need not be restored.
When the amount on deposit in the Debt Service Reserve Fund is in excess of the Debt
Service Reserve Requirement the Trustee shall transfer the excess to the Imerest Payment Account
of the Bond Fund to be used by the Trustee to pay Debt Service Charges.
SECTION 5.07. Moneys to be Held in Trust. All moneys required or permitted to
be deposited with or paid to the Trustee or any Paying Agent under any provision of any Issuer
Document including without limitation, any invesunents thereof and income thereon, shall be held
by the Trustee 01' that Paying Agent in trust. Except for (i) moneys deposited with or paid to the
Trustee or any Paying Agent for the redemption of Bonds, with respect to which notice has been
duly given; and (ii) moneys held by the Trustee pursuant to Section 5.08 hereof; all moneys
described in the preceding sentence held by the Trustee or any Paying Agent shall be subject
hereto while so held.
SECTION 5.08. Nonpresentment of Bonds. In the event that any Bond is not
presented for payment when the principal thereof becomes due in whole or in part, either at stated
marurity or by redemption, or in the event that a check or draft for interest is uncashed, if moneys
sufticient to pay that principal or the check or draft shall have been made available to the Trustee
49
I"
q9~ /g
,
.'
for the benefit of the respective Holder. thereupon. (i) all liability of the Issucr to that Holder for
payment of that principal, premium or of the interest rcpresented by the check or draft shall cease
and be discharged completely; and (ii) it shall be the duty of the Trustee to hold those moneys.
without liability for interest thereon. in a separate account of the Bond Fund for the exclusive
benefit of that Holder, who shall be restricted thereafter exclusively to those moneys for any claim
of whatever nature on its part hereunder or on, or with respect to, that principal, premium or
interest or of such check or draft.
Any of those moneys which shall be so held by the Trustee, and which remain unclaimed
by the Holder of a Bond not presented for payment or check or draft not cashed for a period of
four years after the due date thereof. shall be paid to the Company free of any trust or lien. upon
a request in writing by the Company Representative and after the Company provides the Trustee
with indemnification, satisfactory to the Tmstee, with respect to any claims to such moneys.
Thereafter, the Holder of that Bond shall look only to the Company for payment and then only
to the amounts so received by the Company without any inierest thereon, and the Trustee shall not
have any responsibility with respect to those moneys.
.-)
'-,
SECTION 5.09. Application of the Balances of the Special Funds. Except as
provided in Sections 5.08 and 5.12 hereof, after all of the Outstanding Bonds have been deemed
to have been paid and discharged under the provisions of this Indenture, and the fees, charges and
expenses of the Trustee, any Paying Agent, the Registrar and any Tender Agent and all other
amounts required to be paid hereunder and under the Agreement have been paid, any amounts
remaining in the Special Funds shall be free of this Indenture and shall be paid, used and applied
pursuant to the Agreement.
SECTION 5.10. Investments of Special Funds and the Rebate Fund. Moneys held
for the credit of all Special Funds and the Rebate Fund in the custody of the Trustee shall be
continuously invested and reinvested to the extent practicable by the Trustee in Eligible
Investments at the oral direction, confirmed in writing, or written direction of the Authorized
Company Representative. Any investments of moneys held to the credit of the Special Funds and
the Rebate Fund shall mature not later than the respective dates when the money held for the credit
thereof or accounts therein will be required for the purposes intended; provided, that no Eligible
Investments in any fund or account (other than the Rebate Fund) may mature beyond the latest
maturity date of any Bonds Outstanding at the time such investments are deposited.
No less than 50% of the Debt Service Reserve Requirement shall be invested in (a) Eligible
Investments (i) rated by a Rating Service in one of the two highest raling categories and (ii) having
maturities of one year or less, or (b) a mutual fund invested primarily in securities of that type.
The balance of the Debt Service Reserve Requirement shaH be invested in Eligible Investments
with an average maturity not exceeding five years.
The Authorized Company Representative may at any time give to the Trustee written
directions effective for a specified period respecting the investment of any money or certain
,
-
---I
50
19--/~
,
_d'!' :1 \......
?)
moneys in the Special Funds and the Rebate Fund required to be invested hereunder, subject.
however, to the provisions of this Section. and the Trustee shall invest such money under this
Section as so directed by the Authorized Company Representative. The Trustee may request, in
writing, direction or authorization of the Authorized Company Representative with respect to the
proposed investment of money under the provisions of this Indenture. Upon receipt of such
request, accompanied by a memorandum setting forth the details of any proposed investment, the
Authorized Company Representative will either approve such proposed invcstment or will give
written directions to the Trustee respecting the investment of such money and, in the case of such
directions, the Trustee shall then, subject to the provisions of this Section. invest such money in
accordance with such directions.
Eligible lnvestments credited to any Special Fund or the Rebate Fund in the custody of the
Trustee established under this Indenture shall be held by or under the control of the Trustee and
while so held shall be deemed at all times to be pan of such fund or account in which such money
was originally held.
'-"\
-,/
Any profit or loss realized or interest earned from the investment of any Special Funds
during the construction period shall be credited to the Project Fund and any profit or loss realized
or interest earned from the investment of any Special Funds after the termination of the
construction period shall be credited to the Intercst Payment Account of the Bond Fund. Any
profit realized or interest earned from the investment of the Rebate Fund shall remain in the
Rebate Fund to the extent of any deticiency in the amount required to be in the Rebate Fund; if
adequate funds exist in the Rebate Fund, any such profit realized or interest earned, shall be
deposited in the Bond Fund to be used to pay Debt Service Charges on the Bonds.
The Trustee shall sell at the best price obtainable or present for redemption any obligations
so purchased whenever it shall be necessary to do so in order to provide money to make any
payment or transter of money from any such fund or account. The Trustee shall not be liable or
responsible for any loss resulting from any such investment made at the direction of the
Authorized Company Representative. The Trustee may make any investments permitted under
this Indenture through its own bond department or the bond department of any bank or trust
company which is an affiliate of the Trustee.
The Trustee in its discretion may make any investments permitted under this Indenture
through the Trustee in its capacity as a bank or through any bank or trust company which is an
affiliate of the Trustee.
SECTION 5.11. Valuation. For the purpose of dctcrmining the amount on deposit
to the credit of any fund or account, the value of Eligible Investments in which money in such
fund or account shall have been invested shall be computed at the market value or amortized cost,
whichever is lower. ]n calculating the value of any Eligible Investment, the amount of accrued
interest on that Eligible Investment shall be included. The Trustee shall value the Eligible
Investments in the Debt Service Reserve Fund at least quarterly and at any time upon the request
u
51
11-/~
II
~
.)
.-j
:)
of the Authorized Company Representative or the Florida Department of Insurance on reasonable
notice to the Trustee (which period of notice may be waived by the Trustee). A copy of ca~h such
valuation shall be provided by the Trustee to the Company and the Florida Department of
Insu~ance at the address set forth in Section 5.06 hereof. ]1' as a result of any valuation, it is
determined that the balance in the Debt Service Reserve Fund is less than 90% of the Debt Service
Reserve Requirement, the Trustee shalt compute the amount by which the Debt Service Reserve
Requirement exceeds such balance and shall immediately give the Company notice of such
deficiency and the amount, if any, necessary to cure the same in accordance with the provisions
of Section 5.02(b)(ii) hereof.
SECTION 5.12. Repayment to the Company. Any amounts remaining in the Special
Funds after (i) all of the Outstanding Bonds shall be deemed to have been paid and discharged
under the provisions of this Indenture, and (ii) after payment of all tees, charges and expenses of
the Trustee~ the Registrar and any Tender Agent, Paying Agents, Remarketing Agent or
Authenticating Agents and of all Rebate Amounts and other amount required to be paid under this
Indenture, the Agreement, the Mortgage and the Notes or any other instrument or document
, entered into in connection with any of the foregoing or otherwise to provide for the payment of
Debt Service Charges, shall be paid to the Company to the extent that those moneys are in excess
of the amounts necessary to effect the payment and discharge of the Outstanding Bonds.
52
,q1~ I~
-~:..:......o..-.~~:'_":"-.':::'..,_._'___.
,. 'kg.... I' ~ . ~> ., + ~..~. . ,
~)
ARTICLE VI
TRUSTEE. REGISTRAR, PAYING AGENTS, AUTHENTICATING AGENTS
AND TENDER AGENTS
SECTION 6.01. Trustee's Acceptance and Res.ponsibiliri~. The Trustee accepts the
trusts imposed upon it by this Indenture. and agrees to observe and perform those trusts, but only
upon and subject to the terms and conditions set forth in this Article. to all of which the parties
hereto and the Holders, by their acceptance of Bonds, agree.
(a) Prior to the occurrence of a Default or an Event of Default of which the Trustee
has been notitied, as provided in Section 6.02(t) hereof, or of which by that subparagraph the
Trustee is deemed to have notice, and afler the cure or waiver of all Defaults or Events of Default
which may have occurred,
(i) the Trustee undertakes to perform o'nly those duties which are described
specifically in this Indenture, and no additional duties of the Trustee shall be implied;
--."
\
...1
(ii) in the absence of bad faith on its partt the Trustee may rely conclusively,
as to the truth of the statements and the accuracy of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and which confonn to the requirements of this
Indenture. The Trustee is under a duty to examine any certificates or opinions, which are required
specitically hereunder to be furnished to it, to determine whether they conform to the requirements
of this Indenture.
(b) In case a Default or an Event of Default has occurred and is continuing hereunder
(of which the Trustee has been notified or is deemed to have notice), the Trustee shall exercise
those rights, remedies and powers vested in it under this Indenture and shall use the same degree
of care and skill in their exercise as a prudent corporate trustee would exercise or use in the
discharge of the trusts imposed by this Indenture.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liabiUty for its own negligent actiont its own negligent failure to act, or its own wilful misconduct,
except that.
(i) this subparagraph shall not be construed to affect the limitation of the
Trustee's duties and obligations provided in subparagraph (a)(i) of this Section or the Trustee's
right to rely on the truth of statements and the aCl:ural:Y of opinions ~s provided in subparagraph
(a)(ii) of this Section;
(ii) the Trustee shall not be liable with respect to any action taken or omitted
to, be taken by it in good faith in aCl:ordance with the' direction of the Holders of not less than a
majority in principal amount of the Outstanding Bonds relating to the time, method and place of
,J
53
CJq,-/&,
ol-"'~h~ .~. ";... ~
r' -..)
,,)
y
conduct of any proceeding available to the Trustce. or cxercising any trust, right, remedy or
power conterred upon the Trustee under this Indenture; and
(jji) no provision of this Indenture shall rcquire the Trustee to expend its own
moneys in the observance or performance of any of its covenants, agreements, obligations or
duties hereunder or in the exercise of any of its rights, remedies or powers.
(d) Regardless of whether it is provided expressly therein, every provision of this
Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee
is subject to the provisions of this Section.
SECTION 6.02. Certain Ri~hts and Obligations of the Trustee. Except as provided
otherwise in Section 6.01 hereof:
(a) The Trustee
(i) may execute any of the trusts, rights, remedies or powers hereunder and
may observe or perform any of its covenants, agreements, obligations or duties by or through
attorneys, agents, receivers or employees (but the Trustee shall be answerable therefor only in
accordance with the standard specified above);
(ii) shall be entitled to the advice of counsel concerning all matters of the trusts
hereof and its rights, remedies, powers and duties hereunder;
(Hi) may pay reasonable compensation to all of the attorneys, agents, receivers
and employees designated or employed reasonably by it in connection with the trusts hereof and
shall be reimbursed for such expenses by the Company;
(iv) may act upon the opinion or advice of any attorney (who may be an attorney
for the Issuer or the Company) approved by the Trustee in the exercise of reasonable care; and
(v) shall not be responsible for any loss or damage resulting from any action
taken or omitted to be taken in good faith in reliance upon that opinion or advice.
(b) Except for its certificate of authentication on the Bonds, the Trustee shall not be
responsible for:
(i) any recital in this Indenture or in the Bonds;
(H) the validity r priority, recording, rerecording, filing or refiling of this
Indenture, any Supplemental Indenture. the Agreement, or any memorandum thereof. the
Mortgage, the Assignment, or any amendmcnt of or supplement to the forcgoing;
54
1q--/~
,,)
.,")
"J
....-............1...dIII. -.....~.,
(iii) any instrument or document of further assurance or collateral assignment:
(iv) any financing statementst amendments thereto or continuation statements
or the tiling thereof;
(v) insurance of the Mortgaged Properly or collection of insurance moneys;
(vi) the validity of the execution by the Issuer of this Indenture, any
Supplemental Indentur~ or any instruments or documents of further assurance;
(vii) the sufticien~y of the security for the Bonds issued hereunder;
(viii) the value of or title to the Mortgaged Property; or
(ix) the maintenance of the security hereof;
except that, in the event that the Trustee enters into possession of a part or all of the
Mortgaged Property pursuant to any provision of this Indenture, the Mortgage, or any other
instrument or document collateral t11crelOt the Trustee shall use due dWgence in preserving that
property. In no event shall the Trustee be required to take possession of a part or all of the
Project unless it shall have been provided with satisfactory indemnification from the Company,
the Issuer or the Holders tor the reimbursement of all expenses which it may incur and to protect
it against all risk and liability related to or arising from the possession of the Mortgaged Property.
The Trustee shall not be bound to ascertain or inquire as to the observance or performance of any
covenants, agreements or obligations on the part of any operator of the Mortgaged Property under
any lea:,e or agreement for operations of the Mortgaged Property except as set forth hereinafter;
but the Trustee may require of such operator full information and advice as to the observance or
performance of those covenants, agreements and obligations. Except as otherwise provided in
Section 6.04 hereof, the Trustee shall not have any obligation to observe or perform any of the
duties of any operator of the Project under any lease or agreement for operation of the Project.
The Trustee shall not be bound to ascertain or inquire as to the observance or performance
of any covenants, agreements or obligations on the part of the Issuer or the Company under the
Agreement or under any lease, other instrument or document providing for the operation of the
Mongaged Property, except as set forth below; but the Trustee may require of the Issuer or the
Company full information and advice as to the observance or performance of those covenantst
agreements and obligations. Except as provided otherwise in Article VII, the Trustee shall have
no obligation to observe or perform any of, the duties of the Issuer under the Agreement.
(c) The Trustee shall not be accountable for the application by the Company or any
other Person of the proce~ds of any Bonds authenticated or delivered hereunder.
55 '
11 -/~
,,)
(d) The Trustee shall be prolect~d. in the absence of bad faith on its part. in acting
upon any notice, request. consent, certiticate, order, aftidavit, leller, telegram or other instrument
or document believed reasonably by it to be gcnuine and correct and to have been signed or sent
by the proper Person. Any action taken by the Trustee pursuant to this Indenture upon the
request, authority or consent of any Person, who is the Holder of any Bonds at the time of making
the request or giving the authority or consent, shall be conclusive and binding upon all future
Holders of the same Bond and of Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or nonexistence of any fact tor which the Issuer or the Company
may be responsible or as to the sufficiency or validity of any instrument, document or proceeding,
in the absence of bad faith on the part of the Trustee, the Trustee shall be entitled to rely upon a
certiticatet executed for and in the name and on behalf of the Issuer by an authorized ofticial or
officer thereof or for and in the name and on behalf of the Company by the Authorized Company
Representative, as sufficient evidencc of the facts recited therein.
Prior to the occurrence of a Default or an Event of Default of which the Trustee has been
notified, as provided in this Section, or of which by this Section the Trustee is deemed to have
notice, the Trustee may accept a similar certificate to the effect that any particular transaction or
action is necessary or desirable; provided that, in its discretion, the Trustee may require and obtain
any further evidence which it deems to be necessary or advisable; and provided further that the
Trustee shall not be bound to secure any further evidence.
'-'j
, ----I
(t) The Trustee shall not be required to take notice, and shall not be deemed to have
notice, of any Default or Event of Default, except Events of Default described in Section 7.01(a)
and (b), unless the Trustee shall be notified specit1cally of the Default or Event of Default in a
written instrument or document delivered to it by the Company or by the Holders of at least ten
percent of the aggregate principal amount of the Outstanding Bonds. In the absence of delivery
of a notice satisfying those requiremems, the Trustee may assume conclusively that there is no
Default or Event of Default, except as noted above.
(g) At any reasonable time, the Trustee and its duly authorized altorneys, agents,
experts, engineers, accountants, receivers and employees may:
(i) inspect the Mortgaged Property provided that such inspection shall be
conducted in such a manner as not to interfere with the services provided by the Company to the
residents of the Mortgaged Property;
(ii) inspect and copy fully all books, papers and records of the Issucr pertaining
to the Mortgagcd Property and the Bonds; and
(ijj)
respect thereto.
make any memoranda which the Trustee may desire therefrom and with
IJ
56
qq-I f{
.-.....)
(h) The Trustee shall not be required to give any bond or surety with respect to the
execution of the trusts, rights, remedies and powers hcreunder or othcrwise.
(i) Notwithstanding anything contained elsewhere in this Indenture. the Trustee may
demand any showings, certificates, reports. opinions, appraisals and other information, and any
corporate action and evidence thereof, in addition to that requircd by the terms hereof, as a
condition to the authentication of any Bonds or the taking of any action whatsoever within the
purview of this lndenture, if the Trustee deems it to be desirable for the purpose of establishing
the right of the Issuer to the authentication of any Bonds or the right of any Person to the taking
of any other action by the Trustee; provided, that the Trustee shall not be required to make that
demand.
(j) Before taking action under Section 6.16 or Article VII hereof (with the exception
of any action required to be taken under Section 7.02 hereot), the Trustee may require that a
satisfactory indemnity bond be furnished to it for the reimbursement of all expenses which it may
incur and to protect it against all risk and liability by reason of any action so taken, cxcept for any
risk or liability which is adjudicated to have resulted from its gross negligence or willful default.
The Trustee may take action without that indemnification, and in that case, the Company shall be
required to reimburse the Trustee for all of the Trusteefs expenses pursuant to Section 6.03 hereof.
,
, ........v-'
(k) Unless provided otherwise herein, all moneys received by the Trustee under this
Indenture shaII be held in trust for the purposes tor which those moneys wcre received, until those
moneys are used, applied or invested as provided herein; provided that those moneys need not be
segregated from other moneys, except to the extent required by this Indenture or by law.
(I) Any opinions. certificates, reportS and other instruments and documents for which
provision is made in this Indenture, may be accepted by the Trustee, in the absence of bad faith
on its part, as conclusive evidence of the facts and conclusions stated therein and shaH be full
warrant. protection and authority to the Trustee for its actions taken hereunder.
(m) The permissive right of the Trusree to rake actions described specifically herein
shall not be construed as a duty.
(n) In the event that the approval or satisfaction of the Trustee is required under the
Indenture, the Agreement, or any other instrument or document relating to the Bonds, that
approval or satisfaction shall not be withheld unreasonably and shall be given or withheld as the
case may be, within 30 days after the receipt by the Trustee of the request for the approval or
satisfaction.
Co) The Trustee shall not assign, transfer or set over its rights under the Indenture so
long as the Bonds arc outstanding other than to a successor Trustee appointed pursuant to Section
6.05 hereof.
~
57
l1,,/f
-)
SECTION 6.03. FLoeS. Charecs and-Expenscs of To.lstcC. Registrar. Tender Agents.
&ying Agents. RemaJ'ketin~ Agent and Authenticatin~ Agl,;illS. The Trustee, the Registrar and
any Tender Agents, Paying Agents, Remarketing Agent or Authenticating Agents are entitled to
payment or reimbursement by the Company, as provided in the Agreement. for rcasonable fees
for services rendered hereunder and for all advances, counsel fees and other expenses reasonably
and necessarily paid or incurred in connection with the provision of such services.
In the event that it should become necessary for the Trustee, the Registrar or any Tender
Agents, Paying Agent, Remarketing Agent or Authenticating Agent to perform extraordinary
services, that party is entitled, upon prior written notification to the Company, to reasonable extra
compensation therefor and to reimbursement for reasonable and necessary extraordinary cxpenses
incurred in connection therewith; provided that such party is not entitled to compensation or
reimbursement for extraordinary services or extraordinary expenses occasioned by its neglect or
willful misconduct or the neglect or willful misconduct of its agents, officers or employees.
Without creating a Default or an Event of Default hereunder, however, the Company may
contest in good faith the necessity for any extraordinary service and extraordinary expense and the
reasonableness of any fee, charge or expense.
,.._.J
The fees, charges and expenses described above shall be paid and reimbursed only from
(i) Additional Payments made by the Company, as contemplated in the Agreement; or (ii) from
other moneys available therefor. Any amounts payable to the Trustee, the Registrar or any Tender
Agent, Paying Agent, Remarketing Agent or Authenticating Agent pursuant to t.his Section,
together wi th interest thereon at the Interest Rate for Advances from the date of receipt by the
Company of a demand therefor, shall be payable upon demand.
The initial or acceptance fees of the Trustee, and the fees, charges and expenses of the
Trustee, the Registrar or any Tender Agent, Paying Agent, Remarketing Agent or Authenticating
Agent to which reference is made above, may be paid by the Trustee as provided in Section 5.02.
SECTION 6.04. Intervention by Trustee. The Trustee may intervene on behalf of the
Holders, and shall intervene if requested to do so in writing by the Holders of at least 25 percent
of the aggregate principal amount of Outstanding Bonds, in any judicial proceeding to which the
Issuer or the Company is a party and which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of Holders of the Bonds. The rights, remedies, powers and
duties of the Trustee under this Section arc subject to the approval of that intervention by a court
of competent jurisdiction. The Trustee may require that a satisfactory indemnity bond be provided
to it in accordance with this Article before it takes action hereunder.
SECTION 6.05.
Successor Trustee. Anything hcrein to the contrary notwithstanding,
(a) any corporation or association (i) into which the Trustce may be converted or
merged, (ij) with which the Trustee may be consolidated, or (iii) to which it may sell or transfer
I
--./
58
CfI-lft
:)
.
all or substantially all of its assets or corporate trust business. or any corporation or association
resulting from any such conversion, mcrger. consolidation. salc or transfcr. ipso facto, shall be
the successor Trustee hercunder and shall be vestcd with all of the titlc to the whole property or
trust estate hereunder; and
(b) that corporation or association shall be vested further, as was its predecessor. with
each and every trust, right, remedy, power, duty. discretion, privilege, claim, demand, cause of
action, immunity, estate. title and interest expressed or intended under this Indenture to be
exercised by, vested in or conveyed to the Trustee, without the execution or filing of any
instrument or document or any further act on the part of any of the parties hereto, the Trustee or
that corporation or association.
Any successor Trustee, however. (i) shall be a trust company or a bank having the powers
of a trust company. (ii) shall be in good standing in the State, (iii) shall be duly authorized to
exercise corporate trust powers in the State, and (iv) shall have an aggregate unimpaired reported
capital, surplus and retained earnings of not less than $75,000,000.
SECTION 6.06. Appointment of Co-Trustee. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction (including without limitation, the State)
denying or restricting the right of banks or trust companies to transact business as trustees in that
jurisdiction. It is recognized that,
-)
"'...-'
(a) if there is litigation under this Indenture or other instruments or documents relating
to the Bonds or the Project. and in parlieu lar, in the case of the enforcement hereof or thereof
upon a Default or an Event of Default, or
(b) if the Trustee should deem that. by reason of any present or future law.
the Trustee may not (i) exercise any of its trusts, rights, remedies or powers hereunder, (ii) hold
title to the properties, in trust, granted herein or hold the property assigned herein, or (Hi) take
any action which may be necessary or desirable in connection therewith. it may be necessary that
the Trustee appoint an individual or additional institution asa co-Trustee. The Trustee shall
appoint a co-Trustee upon consent of the Company and the Issuer, except such consent shall not
be required when appointment of a co-Trustee is neccc;sary for taking remedial action for the
benetit of Holders. The following provisions of this Section are adapted to these ends.
In the event that the Trustee appoints an individual or additional institution as a co-Trustee,
each and every trust, right, remedy, power, duty, disl:relion. privilege, claim. demand, cause of
action, immunity, estate, title and imerest expressed or intended under this lndemure to be
exercised by, vested in or conveyed to the Trustee shall be exercisablc by, vested in and conveyed
to that co-Trustee, but only to the extent necessary for it to be so vcsted and conveyed to enable
that co-Trustee to excrcise it. Every covenant, agrl.-ement and obligation necessary to the eAercise
thereof by that co-Trustee shall run to and be enforceable by it.
. 1
,.-,
59
C;9'-/~
. "~..,,,~.............' "."
"
Should any instrument or document from the Issuer be reasonably rcquired by the
co~ Trustee for vesting and conveying more fully and certainly in and to that co-Trustee those
trusts, rights, remedies, powers, duties. discretions. privileges. claims, demands, causes of action,
immunities, estates, titles and interests, that instrument or documcnt shall bc executed.
acknowledged and delivered, but not prepared, by the Issuer. ]n case any co-Trustee or a
successor to it shall become incapable of acting, resign or be removed. all of the trusts, rights,
remedies, powers, duties, discretions, privileges, claims, demands, causes of action, immunities,
estates, titles and interests of the co~Trustee shall be exercised by, vested in and conveyed to the
Trustee, to the extent permittcd by law, until the appointment of a successor to the co-Trustee.
SECTION 6.07. Resignation by the Trustee. The Trustee may resign at any time as
Trustee hereunder by giving written notice of its resignation to the Issuer, the Company, the
Registrar, any Paying Agents and Authenticating Agents. and by mailing notice of the resignation
to the Holders at the close of business 15 days prior to the mailing, as their names and addresses
appear on the Register on that fifteenth day prior to mailing. The resignation shall take effect
upon the appointment of a successor Trustee.
~ .,.~\
. ',--oJ
SECTION 6.08. Removal of the Trustee. The Trustee may be removed at any time
by an instrument or document or concurrent instruments or documents delivered to the Trustee
and signed either by (i) the Issuer or (ii) on behalf of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Bonds. Copies of any instrument or document shall
be mailed to the Issuer, the Company, the Registrar. any Paying Agents, Authenticating Agents
and Remarketing Agent.
The Trustee shall be removed if the Company sends a communication to the Holders of
the Outstanding Bonds (a) proposing that the Trustee be removed, (b) stating the reasons for
requesting such removal, and (c) specifying that the Trustee shall be removed by the Holders of
a majority in aggregate principal amount of the Outstanding Bonds in an instrument or instruments
signed by such Holders within 30 days that they desire the removal of the Trustee. The Trustee,
at the Company's expense, shall provide the Company with the names and addresses of all Holders
of Outstanding Bonds within ten days of receiving a request for that information from the
Company for purposes of enabling the Company to send that communication, unless, in the
opinion of counsel to the Trustee, to do so would be prohibited by law.
In addition. the Trustee may be removed at any time for any breach of trust or for acting
or proceeding in violation of, or for failing to act or proceed in accordance with, any of its duties,
including without limitation, any of its covenants. agreements and obligations, hereunder. The
removal may be made by any court of competent jurisdiction upon the application of the Issuer,
the Company (if not then in Default) or the Holders of not less than a majority in aggregate
principal amount of the Outstanding Bonds.
For purposes of this Section. whenever actions are to be taken, or consents are to be given,
by or at the direction of the Holders of Outstanding Bonds. Bonds registered in the name of the
l-J
60
t;q~/<t
.,)
Company shall not be taken into account in determining whether the requisite number of Holders
has authorized the action or conscnl.
SEcrrON 6.09. Appoinrmcnr of Successor Truslec. If (i) the Trusree shall resign,
shall be removed, shall be dissolved. or shall become incapablc otherwise of acting hercunder:
(ii) the Trustee shall be taken under the control of any public ofticcr or ofticcrs; or (iii) a receivcr
shall be appointed for the Trustee by a court; then a successor Trustee shall be appointed by the
Issuer, with the written consent of the Authorized Company Rcpresentative; provided, that if a
successor Trustee is not so appointed within twenty days after (a) a. notice or resignation or an
instrument or document of removal is received by the Issuer, as provided in Sections 6.07 and
6.08 hereof, respectively; or (b) the Trustee is dissolved. becomcs incapable otherwise of acting.
or is taken under control, or a receiver is appointed. in each case, as provided above; then the
Issuer may designate a successor Trustee or jf the Issuer fails to designate a successor Trustee, the
Holders of a majority in aggregate principal amount of OUlstanding Bonds, with the written
consent of the Authorized Company Represcntative, may designate a successor Trustee by an
instrument or document or concurrent instruments or documents in writing executed by or on
behalf of those Holders. If, within 60 days after the events described in (a) and (b) above, no
appointment of a successor Trustee shaH have been made pursuant to the foregoing provisions of
this Section, the Holder of any Outstanding Bond. any retiring Trustee or the Company may apply
to any court of competent jurisdiction for the appointment of a successor Trustee. After notice.
if any, which the court may deem to be proper and may prescribe, the court may appoint a
successor Trustee.
"---\
For purposes of this Section, whenever actions are to be taken. or consents are to be given,
by or at the direction of the Holders of Outstanding Bonds, Bonds registered in the name of the
Company shall not be taken into account in determining whether the requisite number of Holders
has authorized the action or consent.
Every successor Trustee appointed pursuant to this Section shall (i) be a trust company or
a bank having the powers of a trust company, (ii) be in good standing in the State, (Hi) be duly
authorized to exercise trust powers in the State, (iv) have an aggregate unimpaired reponed
c3.JJital. surplus and retained eanlings of not less than $75,000,000 and (v) be willing to accept the
trusteeship under the terms and conditions of this Indenture.
Every successor Trustee appointed hereunder shall execute and acknowledge, and shaH
deliver to its predecessor. the Issuer and the Company. an inslrument or document in writing
accepting the appointment. Thereupon, without any further 3t.:t, the successor shall become vested
with all of the trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands.
causes of action, immunities, estates. titles and intcrcsts of its predccessor. Upon the written
request of its successor, the Issuer or the Company, the predecessor Trustee (i) shall execute and
deliver an instrument or doeumcnt transferring to ils SlH.'(.'essor all of the trusts. rights, remedies.
powers, duties, discretions. privileges, claims, demands, causcs of action, immunities. estates,
titles and interests of the prcdeccssor Trustec hcreunder; and Oi) shall take any other action
u
61
11-/r
:....:......-1....,.1.>;' , . c. ~.
-
,....,
necessary or advisable to duly assign, transfer and deliver to its successor all property and records
(including without limitation, all moneys) held by it as Trustce.
Should any instrument or document from the Issuer be reasonably requested by any
successor Trustee for vesting and conveying marc fully and certainly in and to that successor the
trusts, rights, remedies, powers, duties, discretions, privileges, claims, demands, causes of action,
immunities, estates, titles and interests vested or conveyed or intended to be vested or conveyed
h~reunder in or to the predecessor Trustee, the Issuer shall execute, acknowledge and deliver that
i.lstrument or document.
In the cvent of a change in the Trustee, the predecessor Trustee shall cease to be the
custodian of any moneys, including without limitation, any investments, which it may hold
pursuant to this Indenture and shall cease to be thc Registrar, the Tender Agent and Authenticating
Agent and a Paying Agent for any of the Bonds, to the extcnt that it may have served in any of
those capacities and shall have no further responsibility or liability therefore. The successor
Trustee shall become that custodian and, if applicable, the Registrar, an Authenticating Agent and
a Paying Agent to the same extent as the predecessor Trustee shall have served in those capacities.
.'-.......
SECTION 6.10. Adoption of Authentication. In case any of the Bonds shall have
been authenticated, but shall not have been delivered, any successor Trustee, Registrar or
Authenticating Agent may adopt the certificate of authentication of any predecessor Trustee,
Registrar or Authenticating Agcnt and may deliver those Bonds so authcnticated as provided
herein. In case any Bonds shall not have been authenticated, any successor Trustee, Registrar or
Authenticating Agent may authenticate those Bonds either in the name of any predecessor or in
its own name. In all cases, the certificate of authentication shall have the same force and effect
as is provided in the Bonds or in this Indenture with re;.pect to the certificate of authentication of
the predecessor Trustee, the Registrar or the Authenticating Agent.
SECTION 6.11. Reeistrars. (a) Anything herein to the contrary notwithstanding, any
corporation or association (i) into which a Registrar may be converted or merged, (ii) with which
a Registrar may be consolidated, or (iii) to which it may sell or transfer all or substantially all of
its assets, or any corporation or association resulting from any such conversion, merger.
consolidation, sale or transfer, ipso facto, shall be the successor of that Registrar hereunder, if that
corporation or association is eligible otherwise hereunder, and shall be vested with each and every
right, power, duty, discretion and privilege expressed or intended to be exercised by or vested
hereunder in the predecessor Registrar, without the exccution or filing of any instrument or
document or any further act on the part of any of the parties hereto, the Registrar or that
corporation or association.
(b) A Registrar (other than the Trustee) may resign at any time by giving written notice
of its resignation to the Issucr, the Company, the Trustee, any Paying Agents and Authenticating
Agents, and the Original Purchaser of each series of Outstanding Bonds for which it is Registrar.
The notice shall be given at least 60 days before the resignation is to take effect. The resignation
,...)
62
11~/g'
'1
shall take effect immediately. howevcr. upon the appointment of a succcssor Rcgistrar, if the
successor Registrar is appointed and accepts that appointment before thc date stated in the notice.
(c) The Registrar may be removed at any time by an instrument or document or
concurrent instruments or documents delivered to the Registrar and signed by or on behalf of the
Holders of not less than a majority in aggrcgate principal amount of the Outstanding Bonds.
Copies of any instrument Of document shall be mailed to the Issuer, the Company, the Trustee,
any Paying Agents and Authenticating Agents for those series of Bonds and the Original Purchaser
of each series of Outstanding Bonds for which the Registrar served as Registrar.
~~~ ;t.\
-., ~<~)
(d) If (i) a Registrar shall resign. shaH be removed. shall be dissolved, or shall become
incflpable otherwise of acting hereunder; (ii) a Registrar shall be taken under the control of any
public officer or officers; (Hi) a receiver shall be appointed for a Registrar by a court; or (iv) a
Registrar shall have an order for relief entered in any case commenced by or against it under the
federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy,
insolvency. reorganization or similar law, or have such a proceeding commenced against it and
either have an order of insolvency or reorganization entered against it or have the proceeding
remain undismissed and unstayed for 90 days; then a successor Registrar shall be appointed by the
Issuer, with the written consent of the Authorized Company Representative and the Trustee;
provided that if a successor Registrar is not so appointed within ten days after (a) a notice of
resignation or an instrument or document of removal is received by the Issuer, as provided above;
or (b) the Registrar is dissolved, becomes incapable otherwise of acting, or is taken under control,
or a receiver is appoimed, in each case, as provided above; the Issuer, with the consent of the
Trustee or the Holders of a majority in aggregate principal amount of Outstanding Bonds may
designate a successor Registrar, by an instrument or document or concurrent instruments or
documents in writing signed by the Issuer, or in the case of the Holders, by or on behalf of those
Holders.
Every successor Registrar appointed hereunder shall execute and acknowledge, and shall
deliver to its predecessor, the Issuer. the Trustee and the Company t an instrument or document
accepting the appointment. Thereupon, without any further act, the successor shall become vested
with all of the rights. powers, duties, discretions, privileges, claims, demands, causes of action,
immunities, titles and interests of its predecessor. Upon the written request of its successor, the
Issuer or the Authorized Company Representative, a predecessor Registrar (i) shall execute and
deliver an instrument or document transferring to its successor all of the rights, powers, duties,
discretions, privileges, claims, demands, causes of action, immunities, titles and interests of the
predecessor Registrar hereunder; and (ii) shall tnke any other action necessary or advisable to duly
assign, transfer and deliver to its successor all property and records (including without limitation,
the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document
from the Issuer be reasonably requested by any successor Registrar for vesting and conveying
more fully and certainly in and to that successor the rights, powers, duties, discretions, privileges,
claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended
.J
63
99,- / r
--......___..l..I..W!'_...,L...:.......___........_____.___..: .".: "._. ____._._____
-,
to be vested or conveyed hereunder in or to a predecessor Registrar, thc Issucr shall execute,
acknowledge and deliver that instrument or document.
SECTION 6.12. Desienation and Succession of Payine A~cnts. The Trustee shall be
a Paying Agent for the Bonds and, with the consent of the Trustee. the Issuer may appoint
additional Paying Agents with power to act on its behalf and subject to its direction in the payment
of Debt Service Charges on any series of Bonds.
Any corporation or association (i) into which a Paying Agelll may be converted or merged,
(ii) with which a Paying Agent may be consolidated. or (iji) to which it may sell or transfer all
or substantially all of its assets or corporate trust business. or any corporation or association
resulting from any such conversion, merger, consolidation. sale or transfer, ipso facto. shall be
the successor of that Paying Agent hereunder. if that corporation or association is eligible
otherwise hereunder, without the execution or tiling of any instrument or document or any further
act on the part of the parties hereto, the Paying Agent or that corporation or association.
Any Paying Agent may resign at any time by giving 30 days written notice of its
resignation to the Issuer, the Company, the Trustee, the Registrar, any Authenticating Agents and
the Remarketing Agent.
-')
. .~...~~
At any time, the Issuer may tenninate the agency of any Paying Agent (except the Trustee)
by giving written notice of termination (0 the Company. such Paying Agent. the Trustee. the
Registrar, any Authenticating Agents and the Remarketing Agent.
Upon receiving a notice of resignation or upon a tennination, or in case any Paying Agent
shall cease to be eligible under this Section, the Issuer may appoint a successor Paying Agent with
the consent of the Trustee. The Issuer shall give written notice of appointment of a successor
Paying Agent to the Company, the Trustee, the Registrar, any Authenticating Agents and the
Original Purchaser of the Outstanding Bonds for which that Paying Agent served as Paying Agent
and, within ten days after that appointment, shall mail notice thereof to each Holder at the close
of business on the dale of lhat appointment at its address as it appears on the Register on that date
of appointment.
Subject to Section 6.03. the Truslee shall be entitlt..'1:I to reimbursement from the Company
for any compensation which the Trustee may pay to any Paying Agent. Section 6.02(d) is
applicable to any Paying Agent to the same extent as if the Paying Agent were stated therein to
be subject thereto.
SECTION 6.13. Desi~nation and Succession of Authenlicatin2 Agents. With the
consent of the Trustee, the Issuer may appoint Authenticating Agents. in addition to the Registrar,
with power to act on the behalf and subjt.'C1 to the direction of the Trustee in the authentication and
delivery of Bonds in connection with transfers and exchanges under Sections 3.06 and 3.07
hereof. For all purposes of this Indenture, the authentication and delivery of Bonds by an
J
64
99-;r
-......--__~__=:lIL;.~ ~~
,-
.-')
Authenticating Agent pursuant to this Section shall be deemed to constitute authentication and
delivery of those Bonds by the Trustee.
Any corporation or association (i) into which an Authenticating Agent may be converted
or merged, (ii) with which an Authenticating Agent may be consolidated, or (iii) to which it may
sell or transfer all or substantially all of its assets or corporate trust business, or any corporation
or association resulting from any such conversion, merger, consolidation, sale or transter, ipso
facto, shall be the successor of that Authenticating Agent hereunder, if that corporation or
association is eligible othcrwise hereunder. without the execution or tiling of any instrument or
document or any further act on the part of the parties hereto, the Authenticating Agent or the
corporation or association.
Any Authenticating Agent may resign at any time by giving 30 days wriucn notice of its
rcsignation to the Issuer, the Company. the Trustee. the Registrar and any Paying Agents.
At any time, the Trustee may tenninate the agency of any Authenticating Agent by giving
written notice of tennination to the Authenticating Agent, the Issuer, the Company, the Registrar
and any Paying Agents.
....""4...
"'
I
J
......J>.
Upon receiving a notice of resignation or upon a tennination, or in case any Authenticating
Agent shall cease at any time to be eligible under this Section, the Issuer may appoint a successor
Authenticating Agent which shall be approved by the Trustee, such approval not to be
unreasonably withheld. The Issuer shall give written notice of appointment of a successor
Authenticating Agent to the Company, the Trustee, the Registrar, any Paying Agents, and the
Original Purchaser of the Outstanding Bonds for which that Authenticating Agent served as
Authenticating Agent and, within ten days after that appointment, the Trustee shall mail notice
thereof to each Holder at the close of business on the date of that appointment at its address as it
appears on the Register on that date of appointment.
Subject to Section 6.03, the Trustee shall be entitled to reimbursement from the Company
for any compensation which the .Trustee may pay to any Authenticating Agent. Section 6.02(b),
(c), (d), (h) &nd (i) shall be applicable to any Authenticating Agent to the same extent as if the
Authenticating Agent were stated therein to be subject thereto.
SECTION 6.14. Designation and Succession of Tender Aeents. The Trustee shaH be
the Tender Agent for the Series 1999B Bonds and, with the consent of the Trustee, the Issuer may
appoint successor Tender Agents with power to act on behalf of Holders of Series 1999B Bonds
and subject to their direction in the tendering of such Bonds for purchase.
Any corporation or association (i) into which a Tender Agent may be converted or merged.
(if) with which a Tender Agent may be consolidaced, or (iii) (0 which it may sell or transfer all
or substantially all of its assets or corporate trust business, or any corporation or association
resulting from any such conversion, merger, consolidatiuli, sale or transfer, ipso facto, shall be
',.J
65
CfI- If(;
I,
'~ the successor of that Tender Agent hereunder. if that corporation or association is eligible
,,' otherwise hereunder, without the execution or tiling of any instrument or document or any further
act on the pan of the parties hereto, the Tender Agent or that corporation or association.
Any Tender Agent (except the Trustee) may resign at any time by giving 30 days written
notice of its resignation to the lssuer, the Company, the Trustee, the Remarketing Agent, the
Paying Agent, the Registrar and any Authenticating Agents.
At any time, the lssuer may terminate the agency of any Tender Agent by giving written
notice of tennination to the Company, the Tender Agent, the Trustee, the Registrar and any
Authenticating Agents.
Upon receiving a notice of resignation or upon a tennination, or in case any Tender Agent
shall cease to be eligible under this Section, the Issucr may appoint a successor Tender Agent with
the consent of the Trustee. The Issuer shall give written notice of appointment of a successor
Tender Agent to the Company, the Trustee, the Registrar, any Authenticating Agents and the
Remarketing Agent and, within ten days after that appointment, shall mail notice thereof to each
Holder of Series 1999B Bonds Outstanding at the close of business on the date of that appointment
at its address as it appears on the Register on that date of appointment.
'.
Subject to Section 6.03, the Trustee shall be entitled to reimbursement from the Company
for any compensation which the Trustee may pay to any Tender Agent. Section 6.02(d) is
applicable to any Tender Agent to the same extent as if the Tender Agent were stated therein to
be subject thereto.
SECTION 6.15. Dealin~ in Bonds. The Trustee, any Registrar, any Paying Agent
and any Authenticating Agent, their affiliates, and any directors, officers, employees or agents
thereof, may become, in good faith, the Holders of Bonds secured hereby with the same rights,
remedies and powers which it or they would have hereunder if the Trustee, the Registrar, the
Paying Agent or the Authenticating Agent did not serve in those capacities.
SECTION 6.16. Representations. Warranties. Covenants and A2reements of
~. The Trustee represents and warrants hereby that it:
(a) is a national banking association duly organized and validly existing under the laws
of the United States;
(b) is in good standing and duly authorizcd to exercise trust powers in the State; and
(c) has an aggregate unimpaired reported capital, surplus and retained earnings of not
less than $75,000.000.
,~
66
qq-/~
,~ The Trustee covenants and agrees that it will take any action which is necessary to remain
..' in good standing and duly authOriZL~ to exercise trust powers in the State, and that it will maintain
an aggregate unimpaired reported capital, surplus and retained earnings of not less than
$75,000,000.
The Trustee accepts and agrees to observe and perfonn the duties and obligations of the
Trustee to which reference is made in the Mortgage and in any other instrument or document
providing security for any of the Bonds.
SECTION 6.17. Rieht of jntstee to Pay Taxes and Other Char~~s. Reference is
made to the Mortgage whereby the Trustee is authorized to advance funds
(a) to pay taxes, assessments and other charges with respect to the Mortgaged Property;
(b) to maintain and keep in torce insurance for the Mortgaged Property;
(c) to maintain required workers' compensation coverage;
and
(d) to payor discharge mechanics' or other liens relating to the Mortgaged Property;
c.-',\
(e)
to do so.
generally, to make payments and incur expenses in the event that the Company fails
The Trustee may make those advances only upon written notice to the Company and the
Company's failure to make such payments within seven days of such notice. These advances are
made without prejudice to any rights, remedies or powers of the Trustee or the Holders against
the Company for the failure of the Company to do so.
Any moneys so advanced, together with interest thereon at the Interest Rate for Advances
from the date of advancement, (i) shall be an additional obligation hereunder, (ii) shall be given
a preference in payment over any Debt Service Charges, but only following an Event of Default,
and (iii) shall be paid from Additional Payments made by the Company as contemplated in the
Agreement or, (iv) if not paid otherwise, but only following an Event of Default, shall be paid
from the Loan Payments Fund. The Trustee shall make the advance, if it is requested to do so
by the Holders of at least 25 percent of the aggregate principal amount of Outstanding Bonds and
is provided with adequate moneys for the purpose thereof.
SECTION 6.18. Several Capacities. Anything in this Indenture to the contrary
notwithstanding, the same entity may serve hereunder as the Trustee, the Registrar, the Tender
Agent, the Paying Agent and Authenticating Agent and in any other combination of such
capacities, to the extent permitted by law.
~..;)
67
19-/c(
/~)
',:)
o
ARTICLE VII
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND HOLDERS
SECTION 7.01.
of Default hereunder:
Defaults: Events of Default. The tollowing events constitute Events
(a) The payment of any intcrcst on any Bond is not made when and as that interest
becomes due and payable;
(b) The payment of the principal of or any premium on any Bond is not made when
and as that principal or premium becomes due and payable, whether at stated maturity I by
redemption (including without limitation, redemption pursuant to the mandatory sinking fund
requirements) or acceleration or otherwise;
(c) The Issuer fails to observe or perform any other covenant, agreement or obligation
on the part of the Issuer conrained in this Indenture or in any Bonds, which failure shaH have
continued for a period of 60 days after written notice, by registered or certified mail, to the Issuer
and the Company specifying the failure and requiring that it be remedied, which notice may be
given by the Trustee in its discretion and shall be given by the Trustee at the written request of
the Holders of not less than 25 percent in aggregate principal amount of Bonds then outstanding;
provided, that the Trustee may agree in writing to a longer period prior to the expiration of the
first 6D-day period; provided further, that if the Issuer or the Company shall proceed to take
curative action which, if begun and prosecuted with due diligence, cannot be completed within
the first period of 60 days, then upon written notice thereof to the Trustee such period shall be
increased without such written extension until such curative action has been completed (as to
which cffons the Trustee shall be advised from time to time) or umil 60 days after such curative
action can be diligently completed; or
(d)
Mortgage.
Any other event which constitutes an Event of Default under the Agreement or the
The declaration of an Event of Default and the exercise of rights, remedies and powers
upon the declaration of an Event of Default arc subject [0 any applicable limitations of federal
bankruptcy law affecting or precluding the declaration or exercise during the pendency of or
immediately following any bankruptcy, liquidation or reorganization proceedings.
SECTION 7.02. Notice of Default. If an Event of Default occurs, within tive days
after the Trustee has actual knowledge of the Event of Default, the Trustee shall give written
notice of the Event of Default. by registered or certified mail, to the Issuer. the Company, the
Regislrar, any Paying Agent, any Authenticating Agent, the Remarketing Agent, the Original
Purchaser of the Outstanding Bonds and the Holders of the Bonds.
68
99-;<1
'1
-''''\
,
- ..
'-'
,~
-.... ,. ..'~ ':..:" . .. <" .
SECTION 7.03. Acceleratipn. Upon the occurrence of any Event of Default. the
Trustee may, and upon the written request of the Holders of not less than 25 percent in aggregate
principal amount of the Outstanding Bonds. shall. declarc the principal of and premium. if any,
on all of the Outstanding Bonds (if not then due and payable). and the interest accrued thereon,
to be due and payable immediately; provided that, in addition to any indemnity bond required
under Section 6.02(j), the Trustee shall have been provided with satisfactory indemnity for the
reimbursement of all expenses which it may incur and to protect it against all risk and liability
related to or arising from such acceleration. Any such declaration shall be by notice in writing
delivered to the Issuer, the Company, the Registrar, any Paying Agent and any Authenticating
Agent. Upon that declaration, that principal and premium, if any, and interest shall become and
be due and payable immediately. Interest on the Bonds shall accrue to the dale determined by the
Trustee for the tender of payment to the Holders; provided that interest on any unpaid principal
amount of Outstanding Bonds shall continue to accrue after the date determined by the Trustee for
the tendcr of payment to the Holders of those Bonds.
The provisions of the preceding paragraphs are subject, however, 10 the condition that if,
at any time after a declaration of acceleration and prior to the entry of a final judgement in a court
for enforcement hereunder,
(a) all sums payable hereunder (other than the principal of and interest on Bonds which
shaH not have reached their stated maturity dates, but which are due and payable solely by reason
of the declaration of acceleration), together with. to the extcnt permitted by law, interest on any
overdue installments of interest at the rate borne by the Bonds in respect of which the Event of
Default shall have occurred shall have been duly paid, or provision shall have been duly made
therefor by deposit with the Trustee Of any Paying Agent; and
(b) all existing Events of Default shall have been cured;
then in every case, the Trustee shall waive the Event of Default and its consequences and shall
rescind and annul the declaration of acceleration. No waiver Of rescission and annulment shall
extend to or affect any subsequent Event of Default Of shall impair any rights, remedies or powers
consequent thereon.
SECTION 7.04. Matters Re2arding Rights. Remedies and Powers. Regardless of
whether a declaration of acceleration is made hereunder, upon the occurrence and continuance of
an Event of Default. thc Trustt..'e may pursue any available right, remedy or powcr to enforce the
payment of Debt Service Charges and the observance and performance of any other covenant,
agreement or obligation undcr this Indenture, the Agreement. the Mortgage or any of the ;'\otes
or any other instrument providing security directly or indirectly, for the Bonds or any series
thereof.
Upon the occurrence and continuance of an Event of Default, if the Trustee is requested
to do so by the Holders of at least 25 percent in aggregate principal amount of the Outstanding
69
CJc;-;t
~,
Bonds, thc Trustee shall excrcise any rights, remedies and powers hereunder, subject to the
provisions of Sections 6.01 and 6.02. Notwithstanding any other provision in the Indenture to the
contrary, the Trustee is authorized [0 use any amounts held in the funds and accounts under the
Indenturc to pay the cost. liabilities. fees and advances incurred by the Trustee (including legal
counscl t"t.."Cs and expenses) to tinance remedial action under the Indenture upon the occurrence of
an Event of Default.
No right, remedy or power conferred upon or reserved to the Trustee or the Holders under
this Indcnrun: is inlcnded to be exclusive of any other available right, remedy or power, but each
right, remedy or power shall be cumulative and concurrent and shall be in addition to every other
right, rcmf,.>dy or power available Ulider the Agreement or the Mortgage or hereunder or existing
at law, in equity or by statute or otherwise now or hereafter.
No exercise. beginning of the exercise, or partial exercise by the Trustee or the Holders
of anyone or more rights, remedies or powers shall preclude the simultaneous or later exercise
by the Trustc..'C or the Holders of any other right, remedy or power. No delay or omission in the
exercise of any right, remedy or power accruing upon any Event of Default shall impair that or
any other right, remedy or power or shaH be construed to constitute a waiver of any Event of
Default, but every right, remedy or power may be exercised from time to time and as often as
may be deemed to be necessary or desirable.
, ,J
To entitle the Trustee or the Holders to exercise any right, remedy or power hereunder,
it shall not be necessary to give any notice, other than as may be required expressly herein. In
exercising any right, remedy or power thereunder or hereunder, the Trustee shall take all actions
which would best serve the interests of the Holders, in the judgmem of the Trustee, applying the
standards described in Sections 6.01 and 6.02 hereof.
, '..,
Upon the occurrence of an Event of Default, neither the Issuer, the Company, nor anyone
claiming through or under either of them. shall set up, claim or seek to take advantage of any
appraisement, valuation, stay t extension or redemption laws in force from time to time, to prevent
or hinder the enforcement of this Indenture, and the Issuer, for itself and all who may claim
through or under it, waives hereby, to the extent that it may do so lawfully, the benefit of all of
those laws and all rights of appraisement and redemption to which it may be entitledt and all rights
of marshaling.
SECTION 7.05. Right of Holders to Direct Proceedings. Notwithstanding anything
to the contrary in chis Indenture, the Holders of a majority in aggregate principal amount of
Outstanding Bonds have the right to direct at any time, pursuant to Article Xl or by an instrument
Of document Of instruments or documents in writing executed and delivered to the Trustee, the
method and place of conducting all proceedings to be taken in conncction with the enforccment
of this Indenture or any other proceedings hereundcr; provided. that
(a)
no direction shall be other than in accordance with law and this Indenture;
,
'J
70
q9//~
"
f .
,.~
(b)
the Trustee shall be indemnified as provided in Sections 6.01 and 6.02; and
(c) the Trustee may take any other action which it deems to be proper and which is not
inconsistent with the direction.
SECTION 7.06. Appointment of Receivers. Upon the occurrence of an Event of
Default and upon the filing of a suit or other commencement of judicial proceedings to enforce
the rights of the Trustee and the Holders, as a matter of right, to the extent permitted by law, the
Trustee is entitled to the appointment of a receiver or receivers of the Mortgaged Property pending
those proceedings, with all powers which the court making the appointment shall confer.
0,
1
.~j
SECTION 7.07. Application of Moneys. All moneys received by the Trustee
pursuant to the exercise of any right. remedy or power or any action taken under this Article VII
or under the Agreement and all other amounts held by the Trustee hereunder, subject to any
provision made pursuant to Sections 5.07 or 5.08 hereof, shall be (i) first, used to pay the costs,
expenses, liabilities, fees and advances incurred by the Trustee including legal counsel fees and
expenses, (ii) second, used to pay any refunds to residents of the Mortgaged Property pursuant
to applicable provisions of Chapter 651, Florida Statutes, as amended, and (iii) third, deposited
in the Rebate Fund in an amount sufficient to cause the Rebate Fund to contain an amount equal
to the Excess Earnings with respect to the Outstanding Bonds calculated as of a date determined
by the Trustee subsequent to the Event of Default and in accordance with Section 5.05 hereof, and
(iv) fourth, shall be applied by the Trustee as set forth below.
(a) Unless the principal of all of the Bonds has become or has been declared to be due
and payable, all of those moneys shall be applied:
First -- To the payment of all installments of interest then due on the Bonds in the
order of maturity of the installments of that interest, beginning with the earliest maturity, and if
the amount available is not sufficient to pay in full a panicular installment, then to the payment
thereof ratably, according to the amounts due on that installment, without any discrimination or
privilege, except as to any difference in the respective rates of interest on the Bonds; and
Second -- To' the payment of the unpaid principal of any Bonds which shall have
become due (other than the Bonds called previously for redemption, for the payment of which.
moneys are held hereunder), whether at maturity or by redemption, including without limitation,
redemption pursuant to the mandatory redemption requirements, in the order of their due dates,
beginning with the earliest due date, with interest on those Bonds from the respective dates upon
which they shall have become due, and if the amount available is not sufficient to pay in full all
unpaid principal on all Bonds due on any particular date, then to the payment thereof ratably,
according to the amounts of principal due on that date, without any discrimination or privilege.
Third-n Any additional amounts the Trustee receives shall be applied as follows in
the following order of priority:
....J
71
99-/g
,~... .1, _"" I
~)
"
.'"
,
I
J
'J
.-.....~.-\....._,>..~.... ...
-~~~.......~-~
(1) to the paymcnt of currcnt dcposits then required to be made to the Bond
Fund for the payment of Debt Service Charges;
(2) to the payment of current Operating Expenscs rcquisitioned by the
Company and disbursed by the Trustee monthly in accordance with the annual
budget for the Mortgaged Property, which budget may be modified from time to
time if such moditication is approved by the Board of Directors of the Company
and such approval, along with the modified budget is submitted to the Trustee;
provided that during the continuation of an Event of Default the annual budget for
the Mortgaged Property shall not be increased by any such modification unless
such modi tication is recommended by the Consultant;
(3) to remedy any deficiency in the Debt Service Reserve Fund;
(4) to remedy any deficiency or make current payments into the Renewal and
Replacement Fund, the moneys in which Fund shaH be disbursed by the Trustee
only upon submission of a written request therefore signed by the Chief Financial
Officer of the Company and accompanied by written evidence of approval of such
expenditures by the Board of Directors of the Company.
(5) to establish such additional reserves which the Trustee reasonably requires,
with the advice of any Consultant engaged by the Trustee for such purpose, to
ensure the prompt payment of Debt Service Charges and Operating Expenses;
Any surplus funds remaining shall be held by the Trustee but may be paid to the
Company for extraordinary operating or capital expenses which are approved by
the Board of Directors of the Company, and such approval is submitted to the
Trustee along with a request for disbursement signed by the Chief Financial Officer
of the Company.
For so long as the Trustee receives Revenues, the Trustee shall, and is hereby
authorized to, establish and maintain such funds and accounts as the Trustee deems
necessary or desirable in order to provide for the proper application of Revenues
in accordance with the terms hereof.
(b) If the principal of all of the Bonds has become or has been declared to be, due and
payable, pursuant to this Article, all of those moneys shall be applied to the payment of the
principal and premium, if any, and interest then due and unpaid upon the Bonds. without
preference or priority of
(i)
principal or premium, if any, over interest.
(ii)
interest over principal or premium, if any,
72
11- /~
"J
(iii) any installment of interest over any other installment of interest, or
(iv) any Bond over any other Bond.
ratably, according to the amounts due respectively for principal and premium, if any, and interest,
without any discrimination or privilege, except as to any difference in the respective rates of
intel'est on the Bonds.
(c) If the principal of all of the Bonds has been declared to be due and payable pursuant
to this Article, and if the declaration shall thereafter have been rescinded and annulled hereunder,
then subject to the provisions of subparagraph (b) of this Section, in the event that the principal
of all of the Bonds shall later become due or shall be declared to be due and payable. the moneys
shall be applied in accordance with the provisions of subparagraph (a) above.
.~')
(d) Whenever moneys are to be applied pursuant to the provisions of this Section, those
moneys shall be applied at those times, and from time to time, which the Trustee shall determine,
having due regard to the amount of moneys available for application and the likelihood of
additional moneys becoming available for application in the future. Whenever the Trustee shall
direct the application of those moneys, it shall determine a Special Interest Payment Date upon
which the application is to be made, and upon the date as detennined, interest shall cease to accrue
on the amounts of principal, if any. to be paid on that date, if the moneys are available therefor.
The Trustee shall give notice of the deposit with it of any moneys and of the detennination of that
date, all in a manner which is consistent with the requirements hereof for the establishment of,
and for giving notice with respect to, a Special Record Date for the payment of overdue interest,
the Trustee shall not be required to make payment of principal of or premium, if any, on a Bond
(0 the Holder thereof, until the Bond is presented to the Trustee for appropriate endorsement or,
if it is to be paid fully, for cancellation.
SECTION 7.08. Rights. Remedies and Powers Vested in Trustee. All rights.
remedies and powers (including without limitation, the right to file proof of clain.~) under this
Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any
of the Bonds or the production thereof in any trial or other proceeding relating thereto. Any suit
or proceeding instituted by the Trustee shall be brought in its name as Trustee without the
necessity of joining any Holders as plaintiffs or defendants. Any recovery of judgment shall be
for the benefit of the Holders of the Outstanding Bonds, subject to the provisions hereof.
SECTION 7.09. Ri~hts. Remedies and Powers of Holders. No Holder shall have any
right, remedy or power to institute any suit, action or proceeding for the enforcement of this
Indenture, for the execution of any trust hereof, or for the exercise of any other right, remedy or
power hereunder, unless '
.J
73
19-;8'
-.)
(a) there has occurred and is continuing an Event of Default of which the Trustee has
been notified, as provided in Section 6.02(t) hereof, or of which it is deemed to have noiice under
that subparagraph;
(b) the Holders of at least 25 percent in aggregate principal amount of the Outstanding
Bonds shall have made written request to the Trustee and shall have afforded the Trustee a
reasonable opportunity to proceed to exercise the rights, remedies and powers or to institute the
suit, action or proceeding in its own name, and shall have offered indemnitication to the Trustee
as provided in Sections 6.01 , 6.02 and 7.03 hereof; and
(c) the Trustee shall have failed or refused thereaft~r to exercise the rights, remedies
and powers or to institute the suit, action or proceeding in its own name.
At the option of the Trustee, such notitication, request, opportunity and offer of indemnitication
shall be conditions precedent in every case, to the institution of any suit, action or proceeding
described above.
-....
, ')
, ----'
No one or more Holders of the Bonds shall have any right, remedy or power to affect,
disturb or prejudice this Indenture in any manner whatsoever by its or their action, or to enforce
any right, remedy or power hereunder, except in the manner provided herein. Any suit, action
or proceeding shall be instituted, had and maintained in the manner provided herein for the benefit
of the Holders of all Outstanding Bonds. Nothing in this Indenture shall affect or impair,
however, the right of any Holder to enforce the payment of principal and interest on any Bond
owned by that Holder at and after the maturity thereof, at the place, from the sources, and in the
manner expressed in that Bond.
SECTION 7.10. Termination of Proceedings. If the Trustee shall have proceeded to
enforce any right, remedy or power under this Indenture in any suit, action or proceeding, and
the suit, action or proceeding shall have been discontinued or abandoned for any reason, or shall
have been detemlined adversely to the Trustee, then the Issuer, the Company, the Trustee and the
Holders shall be restored to their former positions and rights, remedies and powers hereunder,
respectively, and all rights, remedies and powers of the Trustee and the Holders shall continue as
if no suit, action or proceeding had been taken.
SECTION 7.11. Waivers. Except as provided below, at any time, in its discretion,
the Trustee may waive any Event of Default hereunder and its consequences and may rescind and
annul any declaration of acceleration of the Bonds. The Trustee shall do so upon the written
request of the Holders of
(a) at least a majority in aggregate principal amoum of all Outstanding Bonds in respect
of which an Event of Default exists in the payment of Debt Service Charges; or
v
74
91-/'(
r-'.' ... ~; _, '... ~ ~.' ~ . .
; ,
~
'.J
,-)
._" ...,........T-:1.---,.......... ~ "
(b) at least 25% in aggregate principal amount of all Outstanding Bonds. in the case
of any other Event of Default. '
There shall not be so waived. however, any Event of Default described in Section 7.01(a}
or (b) hereof. and no declaration of accelt:ration in connection therewith may be rescinded or
annulled, unless at the time of the waiver, rescission or annulment. payments have been duly
made, or provision has been duly made for the payment. of the amounts provided in Section 7.03
hereof for waiver. rescission and annulment in connection with a declaration of acceleration.
In the event of the waiver, rescission or annulment, the Issuer, the Company, the Trustee
and the Holders shall be restored to their former positions and rights, remedies and powers
hereunder, respectively. No waiver, rescission or annulment shall extend to any subsequent or
other Event of Default or impair any right, remedy or power consequent thereon.
In the event that any covenant, agreement or obligation hereunder or under the Agreement,
the Mortgage or the Bonds shall be breached by either the Company or the Issuer, and the breach
shall have been waived thereafter, the waiver shall be limited to the .particular breach so waived
and shall not be deemed to waive any other or any subsequent breach thereunder. No waiver shall
be deemed to apply to any existing or subsequent right, remedy or power with respect to the
breach, except to the extent provided expressly in the waiver.
No failure by the Trustee or the Holders to insist upon the strict observance or performance
by the Company or the Issuer of any covenant, agreement or obligation hereunder or under any
Company Document, any Issuer Document or the Bonds, and no failure to exercise any right,
remedy or power consequent upon a breach thereof, shall constitute a waiver of any right, remedy
or power to enforce strict observance or performance or a waiver of such breach.
75
11~/e'
'J
ARTICLE VIII
SUPPLEMENTAL INDENTURES AND AMENDMENTS TO ISSUER DOCUMENTS
".
SECTION 8.01. Supplemental Indentures Generally. The Issuer and the Trustee may
not enter into indentures supplemental to or amending of this Indenture, except as provided in this
Article and pursuant to the other provisions therefor in this Indenture.
SECTION 8.02. Supplemental Indentures Not Requiring Consent of
Holders. Without the consent of or notice to the Holders, the Issuer and the Trustee may enter
into Supplemental Indentures, which shall not be inconsistent. in the opinion of the Issuer and the
Trustee, with the tenns and provisions hereof, for anyone or more of the following purposes:
(a) to cure any ambiguity, inconsistency or fonnal dett..'Ct or omission in this Indenture;
(b) to grant to or confer upon the Trustee for the benefit of the Holders any additional
rights, remedies, powers or authority which lawfully may be granted to or conferred upon the
Trustee;
(c) to assign additional revenues under this Indenture;
. -,
"
.1
(d) to accept additional security and instruments and documents of further assurance
with respect to the Mortgaged Property;
(e) to add to the covenants, agreements and obligations of the Issuer or the Company
under this Indenture, other covenants, agrccments and obligations to be observed for the protection
of the Holders, or to surrender or limit any right. remedy, power or authority reserved to or
conferred upon the Issuer or the Company under this Indenture;
(0 to evidence any succession to the Issuer and the assumption by its successor of the
covenants, agreements and obligations of the Issuer under the Issuer Documents and the Bonds;
(g) to make necessary or advisable amendments or additions in connection with the
issuance of Additional Bonds in accordance herewith, or with the incurrence of Parity Debt in
accordance with the Agreement, which do not adversely affect the interests of Holders of
Outstanding Bonds;
(h) to pennit the use of a book-entry system to identify the Holder of an interest in an
obligation issued by the Issuer under this Indenture, whether that obligation was formerly, or
could be, evidenced by a physical security;
(i) to facilitate (A) the transfer of Bonds or notes issued by the Issuer under this
Indenture and held in book-entry form from one depository to another and the succession of
.
J
76
tfi, I C(
-.......-- ~u !t..1ndIi.~....",--..
;.........., depositories, or (B) the withdrawal of Bonds or notes issul'<i by the Issuer under this Indenture and
,. delivered to a depository for use in a book-entry system and the issuance of replacement Bonds
or notes in fully registered form and in the form of physical certificates to others than a
depository;
(j) to permit the Trustee to comply with any duties imposed upon it by law;
(k) to specify further the duties and responsibilities of, and to define further the
relationships among, the Trustee, the Registrar, any Authenticating Agents, any Paying Agents
and any Tender Agent;
(I) to achieve compliance of this Indenture with any applicable federal or state
securities or tax law;
(m) to make any other change which is not prejudicial to the Trustee or the Holders,
in the judgment of the Trustee;
'-j
'-'"
(n) to make amendments to the provisions hereof relating to arbitrage matters under
Section 148 of the Code, if, in the Opinion of Bond Counsel, those amendments would not cause
the interest on Bonds outstanding to become included in gross income of Holders for federal
income tax purposes which amendments may I among other things, change the responsibility for
making the relevant calculations; or
(0) to provide for Additional Bonds to the extent permitted by Section 2.05 hereof.
The provisions of subparagraphs U) and (I) shall not be deemed to constitute a waiver by
the Trustee, the Registrar, the Issuer or any Holder of any right, remedy or power which it may
have in the absence of those provisions to contest the application to this Indenture or the Bonds
of any change in law.
SECTION 8.03. Supplemental Indentures ReQuirin~ Consent of Holders. Exclusive
of Supplemental Indentures to which reference is made above, and subject to the terms, provisions
and limitations contained in this Section, and not otherwise, with the consent of the Holders of
not less than a majority in aggregate principal amount of the Outstanding Bonds, evidenced as
provided herein, and with the prior written consent of the Company, if required below, the Issuer
and the Trustee may execute and deliver Supplemcntal Indentures adding any provisions to,
changing in any manner, or eliminating any of the provisions of this Indenture or any
Supplemental Indenturc, or restricting in any manner the rights of the Holders. Nothing in this
Section or the preceding Section shall permit, however, or be construed as permitting:
(a) without the consent of the Holder of each Bond so affected, (i) an extension of the
maturity of the principal of or the interest on any Bond, (ii) a reduction in the principal amount
of any Bond or the rate of interest or premium thereon, or (iii) a reduction in the amount or
'..J
77
11-1C(
- ~ ..~.,.:.. --.. ........ .
....-"
~
extension of the time of payment of any mandatory redemption requirements, including without
limitation, any mandatory r~emption pursuant to Section 4.02 hereof; or
(b) without the consent of the Holders of all Outstanding Bonds, (i) the creation of a
privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (ii) a reduction in
the aggregate principal amount of the Bonds required for consent to a Supplemental Indenture.
If the Issuer shall request that the Trustee execute and deliver any Supplemental Indenture
for any of the purposes of this Section, upon (i) being indemnified satisfactorily with icSpect to
its expenses in connection therewith. and (ii) if required by Section 8.04, receipt of the
Company's consent to the proposed execution and delivery of the Supplemental Indenture. the
Trustee shall cause notice of the proposed execution and delivery of the Supplemental Indenture
to be mailed to each Holder at the close of business on the fifteenth day preceding such mailing
at its address as it appears on the Register on that fifteenth day preceding such mailing.
The Trustee shall not be subject to any liability to any Holder by reason of the Trustee's
failure to mail, or the failure of any Holder to receive. the notice required by this Section. Any
failure of that nature shall not affect the validity of the Supplemental Indenture when there has
been consent thereto as provided in this Section. The notice shall describe briefly the nature of
the proposed Supplemental Indenture and shall state that copies thereof are' on tile at the office of
the Trustee designated therein for inspection by all Holders.
",
) If the Trustee shall receive, within a period of not fewer than 60 days. but not exceeding
one year, as prescribed by the Company, following the mailing of the notice, an instrument or
document or instruments or documents', in a form or forms to which the Trustee does not object
reasonably, purporting to be executed by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Bonds, but not otherwise, the Trustee shall execute and
deliver the Supplemental Indenture in substantially the form to which reference is made in the
notice, without liability or responsibility to any Holder, regardless of whether that Holder shall
have consented thereto. The instrument or document or instruments or documents described in
this paragraph shall refer to the proposed Supplemental Indenture in the form described in the
notice arid shall consent specifically to the Supplemental Indenture in substantially that form.
Any consent shall be binding upon the Holder of the Bond giving the consent and, anything
herein to the contrary notwithstanding, upon any subsequent Holder of that Bond and of any Bond
issued in exchange therefor (regardlcss of whether the subsequent Holder has notice of the consent
to the Supplemental Indenture).
If the Holders of the required percentage in aggregate principal amount of Outstanding
Bonds shall have consented to the Supplemental Indenture, 35 provided in this Section, no Holdcr
shall have any right (i) to object to the execution or delivery of the Supplemental Indenture, any
of the terms and provisions contained therein. or the operation thereof; (ii) to question the
-.)
78
99 - If(
..."'. ."'.......-.
-
,~ propriety of the execution and delivery thereof; or (iii) to enjoin or restrain the Trustee or the
, " Issuer from that execution or delivery or from taking any action pursuant to the provisions thereof.
SECTION 8.04. Consent of the Company. Anything herein to the contrary
notwithstanding, no Supplemental Indenture executed and delivered in accordance herewith which
affects any rights, remedies or powers of the Company shall become effective, unless the
Company shall have consented in writing to the execution and delivery of that Supplemental
Indenture. Unless waived by the Company, the Trustee shall cause notice of the proposed
execution and delivery of any Supplemental Indenture and a copy of the proposed Supplemental
Indenture to be mailed to the Company,
(a) at least 30 days before the date of the proposed execution and delivery in the case
of a Supplemental Indenture to which reference is made in Section 8.02 hereof; and
(b) at least 30 days before the giving of the nmice of the proposed execution and
delivery in the case of a Supplemental Indenture for which provision is made in Section 8.03
hereof.
:,""j
."...,'"
SECTION 8.05. ' Authorization to Trustee: Effect of Supplement. The Trustee is
authorized to join with the Issuer in the execution and delivery of any Supplemental Indenture in
accordance with this Article and to make the further covenants, agreements and stipulations which
may be contained therein. Thereafter,
(a) that Supplemental Indenture shall form a pan of this Indenture;
(b) all terms and conditions, contained in that Supplemental Indenture as to any
provision authorized to be contained therein shall be deemed to constitute a part hereof for all
purposes;
(c) this Indenture shall be deemed to be modified, amended and supplemented in
accordance with the Supplemental Indenture; and
(d) the respective rights, remedies, powers, covenants, agreements and obligations
under this Indenture of the Issuer, the Company, the Trustee. the Registrar, the Paying Agents,
the Authenticating Agents, the Tender Agent, the Rem3rketing Agent and all Holders of
Outstanding Bonds shall be determined, exercised and enforced hereunder in a manner which is
subject in all respects to those modifications, amendments and supplements made by the
Supplemental Indenture.
Express reference to any executed and delivered Supplemental Indenture may be made in
the text of any Bonds issued thereafter, if that reference is deemed necessary or desirable by the
Trustee. A copy of any Supplemental Indenture for which provision is made in this Article,
except 3 Supplemental Indenture described in Section 8.02(g) hereof, shall be mailed by the
, ,~
79
19,/C6
--)
Trustee to the Registrar, each Authenticating Agent. each Paying Agent. each Tender Agent and
the Original Purchaser of the Bonds affected thereby.
SECTION 8.06. Opinion of Counsel. The Trustee shall be entitled to receive, and
shall be protected fully in relying upon, the opinion of any counsel approved by it as conclusive
evidence that (i) any proposed Supplemental Indenture complies with the provisions of this
Indenture, and (ii) it is proper for the Trustee to join in the execution of that Supplemental
Indenture under the provisions of this Article. That opinion may be an Opinion of Bond Counsel.
SECTION 8.07. Amendments to the Company Documents Not Requirin~ Consent of
Holders. The Issuer and the Trustee may not enter into amendments. changes or modifications
of the Agreement or Mortgage except as provided in this Section and Section 8.08 hereof and
pursuant to the other provisions of this Indenture. Without the consent of or notice to the Holders.
the Issuer and the Trustee may consent to any amendment, change or modification of the
Company Documents which may be required
(a) to comply with the provisions of the Company Documents and this Indenture;
~~
<,~)
(b) to make necessary or advisable amendments or additions in connection with the
issuance of Additional Bonds in accordance herewith, or with the incurrence of Parity Debt in
accordance with the Agreement, which do not affect adversely the interests of Holders of
Outstanding Bonds;
(c) to cure any ambiguity, inconsistency or formal defect or omission in the Company
Documents;
(d) to release any real estate in accordance with the Company Documents or to accept
additional real estate or any interest therein which becomes hereafter a part of the real property
included in the Mortgaged Property under the Company Documents;
(e) to amend or to effect any purpose for which there could be a Supplemental
Indenture pursuant hereto without the consent of or notice to the Holders; or
(f) to make any other change which is not prejudicial to the Trustee, the Issuer or the
Holders, in the judgment of the Trustee.
Anything herein to the contrary notwithstanding, no Company Documents executed and
delivered in accordance herewith which affect any rights, remedies or powers of the Company
shall become effective, unless the Company shall have consented in writing to the execution and
delivery of such Company Documents. Unless waived by the Company. the Trustee shall cause
notice of the proposed execution and delivery of any amended or modi tied Company Documents
and a copy of the proposed Company Document to be mailed to the Company,
'~
,_4
80
tf1r/~
.__.~-Ir,...:---w,.;,.~~..:z ~
...-
,/-\
!
(i) at least 30 days before the date of the proposed execution and delivery in
the case of a Company Document to which reference is made in this Section~ and
(ji) at least 30 days before the giving of the notice of the proposed execution
and delivery in the case of a Company Document for which provision is made in Section 8.08
hereof.
SECTION 8.08. Amendml:nts to the Company Documents Requirin2 Consent of
Holders. Exclusive of amendments, changes or moditications to which reference is made in
Section 8.07 ~ and subject to the tenns, provisions and limitations contained in this Section, neither
the Issuer nor the Trustee shall consent to, execute or deliver
(a) any amendment, change or modification of the Company Documents which would
change the amount of or the time as of which the Revenues are required to be paid. without giving
notice as provided in this Section of the proposed amendment, change or modification and receipt
of the approval or consent thereto of the Holders of all of the Outstanding Bonds; or
(b) any other amendment, change or modification of the Company Documents without
giving notice as provided in this Section of the proposed amendment, change or modification and
receipt of the approval or consent thereto of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Bonds.
-,
~.) The approval or consent of the Holders shall be obtained as provided herein with respect
to Supplemental Indentures. If the Issuer and the Company request the consent, execution or
delivery of the Trustee to any proposed amendment, change or modification of the Agreement or
the Mortgage as contemplated in this Section, upon being indemnified satisfactorily with respect
to expenses in connection therewith, the Trustee shall cause notice of the proposed amendment,
change or modification to be given in the same manner as provided herein with respect to notice
of Supplemental Indentures. The notice shall describe briefly the nature of the proposed
amendment, change or modification' and shall state that copies of the instrument or document
embodying it are on file at the designated corporate trust office of the Trustee tor inspection by
all Holders.
SECTION 8.09. Modification by Unanimous Consent. Notwithstanding anything
contained elsewhere in this Indenture, the rights, remedies. powers, covenants, agreements and
obligations of the Issuer and the Holders, and the terms and provisions of the Bonds, this
Indenture or any Supplemental Indenture, may be modified or alteredf and any Company
Documents may be amended, changed or modified, in any respect with the consent of (i) the
Issuer, (ii) the Trustee. (Hi) the Holders of a1l of the Outstanding Bonds. and (iv) if required by
Section 8.04 hereof, the Company.
v
81
19-/'6
" ....,
ARTICLE IX
DEFEASANCE
SECTION 9.01. Release of Indenture. If (a) the Issuer shall pay all of the
Outstanding Bonds, or shall cause them to be paid and discharged, or if there shall be paid
otherwise to the Holders of the Outstanding Bonds, all Debt Service Charges due or to become
due thereon;
(b) the Trustee shall receive an amount sufficient to cause the Rebate Fund to contain
an amount equal to the Excess Earnings with respect to the Outstanding Bonds calculated as of the
date of release of this Indenlure in accordance with Section 5.05 hereof and provision shaH be
made for the payment to the United Stales of Excess Earnings with respect to the Outstanding
Bonds accruing subsequent to the date of release of this Indenture; and
(c) provision shall be made also for the payment of all other sums payable hereunder
and under the Agreement, the Mortgage and the Notes; then
\
I
. ,,,,..."
this Indenture shall cease, determine and become null and void (except for those provisions
surviving by reason of Section 9.03 hereof in the event that the Bonds are deemed to be paid and
discharged pursuant to Section 9.02 hereof), and the covenants, agreements and obligations of the
Issuer and the Company hereunder shall be released, discharged and satisfied; provided that in
addition to any other requirements set forth herein, within 15 days after that payment or discharge,
the Trustee shall cause a notice to be mailed to each Holder at the close of business on the date
on which the payment and discharge shall have occurred at its address as it appears on the Register
on that date of payment and discharge, which notice shall set forth
(i) the date or dates, if any, designated for the redemption of the Bonds and, if
applicable, any reservation retained by the Issuer and the Company to designate one or more
redemption date or dates or to replace any designated redemption date or dates with an earlier
. redemption date or dates;
(ii) a description of the method of payment or discharge and of any obligations held
by the Trustee therefor; and
(iii) a statement that, except for the provisions set forth in Section 9.03, this Indenture
has ceased, detenninlXl and become null and void in accordance with the provisions of this Article.
Thereupon, and subject to the provisions of Section 9.03 hereof if applicable, the Trustee
shall release this Indenture and shall execute and deliver to the Company any instruments or
documents which may be requisite to evidence that release and discharge or which may be
requested reasonably by the Company; and the Trustee and any other Paying Agents shall assign
and deliver to the Company any property subject to this Indenture which may be in their
:~
82
Cf/~ /~'.
,~)
.~)
"
'J
,..:<" ~ t.............' .... .
possession at the time. except for moneys. including without limitation, investments. in the
Special Funds required (i) to be paid to the Company under Section 5.09 hereof, or (ii) to be held
by the Trustee and the Paying Agents for the payment of Debt Service Charges.
SECTION 9.02. Payment and Discharge of Bonds. All or any part of the Bonds shall
be deemed to have been paid and discharged within the meaning of this Indenture, including
without limitation, Section 9.01 hereof, if
(a) the Trustee and any Paying Agents shall have received, in trust for and committed
irrevocably thereto, sufficient moneys; or
(b) the Trustee shall have received, in trust for and committed irrevocably thereto,
noncallable Deteasance Obligations which are certified by an independent certitied public
accountant or firm of such accountants, acceptable to the Trustee, to be of those maturities or
redemption dates, to have payment dates, and to bear interest at those rates, in each case which
will be sufficient. together with any moneys [0 which reterence is made in subparagraph (a)
above, without further investment or reinvestment of either the principal amount thereof or the
interest earnings therefrom (which earnings arc to be held likewise in trust and so committed.
except as provided herein);
for the payment of (i) moneys into the Rebate Fund sufficient to make rebate payments to the
United States of A llerica required by the Code, (ii) all Debt Service Charges on those Bonds, at
their maturity or redemption dates, as the case may be, or if a default in payment shall have
occurred on 'any maturity or redemption date, then for the payment of all Debt Service Charges
thereon to the date of the tender of payment and (ii) all fees, charges and expenses provided for
by Section 6.03 hereof. If any of those Bonds are to be redeemed prior to the maturity thereof,
notice of that redemption shall have been duly given or irrevocable provision satisfactory to the
Trustee shall have been duly made for the giving of that notice or notice that the Issuer and the
Company have reserved the right to replace the designated redemption dates with earlier
redemption dates should be given as provided below.
Any moneys held by the Trustee in accordance with the provisions of this Section may be
invested by the Trustee only in noncallable Defeasance Obligations having maturity dates or
redemption dates not later than the date or dates at which moneys will be required for the purposes
described above. To the extent that any income or interest earned by, or increment to, the
investments held under this Section is determined from time to time by the Trustee to be in excess
of the amount required to be held by the Trustee for the purposes of this Section, that income,
interest or increment shall be transferred at the time of that determination in the manner provided
herein for transfers of amounts remaining in the Special Funds.
If any Bonds are deemed to be paid and discharged pursuant to (his S~ction, within 15 days
after those Bonds are so deemed to be paid and discharged, the Trustee shall cause a written notice
to be given to each Holder at the close of business on the date on which the Bonds are deemed to
83
1'/,/6
')
"
.,_J
'J
........ ............ ." t... ; ." . . ,.~
be paid and discharged at its address as it appears on the Register on that dale on which the Bonds
are deemed to be paid and discharged. The notice shall
(i) state the numbers of the Bonds deemed to be paid and discharged. or shall
state that all Bonds of a panicular series are deemed to be paid and discharged;
(H) set fonh a description of the obligations held as described above; and
(Hi) if any Bonds will be so called for redemption, specify the date or dates on
which those Bonds are to be called for redemption pursuant to a notice of redemption given or
irrevocable provision made for that notice pUisuant to this Section.
If the Issuer and the Company have reserved the right at the time of release of this
Indenture to designate one or more redemption date or dates or to replace any designated
redemption date or dates with an earlier redemption date or dates, notice shall be mailed by the
Trustee, within 15 days after that payment and discharge, stating that the Issuer and the Company
expressly reserve the right to direct the Trustee to caJl the Outstanding Bonds, or any of them, for
redemption on a date or dates earlier than those specified at the time of the release of this
Indenture or to direct that the Outstanding Bonds, or any of them, be redeemed prior to their
stated maturity, on a date or dates to be designated subsequent to the release of this Indenture.
In the event that the Issuer and the Company reserve such rights at the time of release of
this Indenture, any such direction to designate one or more redemption dates or to replace any
designated redemption date or dales with an earlier redemption dale or dates shall be (i) delivered
to the Trustee in writing by the Company not fewer than 60 days prior to the newly designated
redemption date of the Outstanding Bonds. (ii) accompanied by a written repon of an independent
certified public accountant or tirm of such accountants acceptable to the Trustee that the
noncallable Defeasance Obligations held by the Trustee are of those maturities or redemption
dates, have the payment dates and bear interest at those rates, in each case which will be
sufficient, together with any moneys delivered to the Trustee, without further investment or
reinvestment of either the principal amount thereof or the interest earnings therefrom, (which
earnings are to be held likewise in tnIst and so committed, except as provided herein) for the
payment of all Debt Service Charges on the Outstanding Bonds at their maturity or redemption
dates as may then be designated by the Company, and (iii) accompanied by an opinion of Bond
Counsel to the effect that such direction is authorized or permitted under the terms of this
Indenture and will not adversely affect the exclusion of interest on the Outstanding Tax-Exempt
Bonds from gross income for federal income tax purposes. Within 30 days of receipt of such
directiont report and opinion. the Trustee shall give notice of such direction to each Holder of a
Bond on which payment of Debt Service Charges is affected thereby, at the Holder's address then
shown on the Register, stating
(c)
a description of the obligations held as described above;
84
crt-1ft
'"1
, -"
\
'._J
":.J
_..~L~,.i,.,...:..' :~..' '. ,r ~
(d) whether any Bonds will be called for redemption prior to their scheduled maturity
or their redemption pursuant to mandatory redemption, including without limitation, the
mandatory sinking fund requirements Of prior to any previously designatcd redemption dates and,
if applicable. whether thc Issuer and the Company have reserved the right to designate one or
more redemption date or dates or to replace any designated redemption date or dates with an
earlier redcmption date or dates, and '
(e) if any Bonds will be so called for redemption, specify the date or dates on which
those Bonds arc to be called for redemption pursuant to a notice of redemption given or
irrevocable provision made for that notice pursuant to this Section.
SECTION 9.03. Survival of Certain Provisions. Notwithstanding the foregoing, any
provisions hereof which relate to (i) the maturity of Bonds; (ii) the interest payments and dates
thereof; (iii) the optional and mandatory redemption provisions; (iv) the credits against the
mandatory sinking fund requirements; (v) the exchange, transfer and registration of Bonds; (vi)
the replacement of mutilated, destroyeq, lost or stolen Bonds; (vii) the safekeeping and
cancellation of Bonds; (viii) the non-prcsentment of Bonds; (ix) the holding of moneys in trust;
.<x) the repayments to the Company from the Special Funds; (xi) the calculation of a payment of
the Rebate Amounts to the United States; and (xii) the duties of the Trustee and the Registrar in
connection with all of the foregoing; shall remain in effect and shall be binding upon the Issuer,
the Company, the Trusteet the Registrar, the Authenticating Agents, the Paying Agents and the
Holders, notwithstanding the release, discharge and satisfaction of this Indenture. The provisions
of this Article shall survive the release, discharge and satisfaction of this Indenture.
85
q1~/'6
'. .. .".,.
'.
:/-'\
ARTICLE X
COVENANTS, AGREEMENTS, REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
SECTION 10.01. Covenants and A2reements of the Issue(. In addition to any other
covenants and agreements of the Issuer contained in this Indenture, any other Issuer Documents
or the Bonds, the Issuer covenants and agrees further with the Holders and the Trustee as follows:
(a) The Issuer will pay all Debt Service Charges. or cause them to be paid, solely from
the sources, on the dates, at the places, and in the manner provided in this Indenture and the
Bonds.
(b) The Issuer will not assign the Revenues or any of the funds and accounts or cause
to be created any debt, lien or charge thereon, except as contemplated herein.
(c) All books, instruments and documents in the Issuer's possession relating to the
Project or the Revenues shall be open to inspection at all times during the Issuer's regular business
hours by any attorneys, accountants or other agents or employees of the Trustee which the Trustee
may designate from time to time.
\
. .~_.".,/
(d) At reasonable times and under reasonable regulations established by the Registrar,
the Register may be inspected and copied by the Company, the Trustee, the Holders of 25 percent
or more in aggregate principal amount of the Outstanding Bonds, or a designated representative
of any of those panies, provided that the Registrar may refuse to allow such inspection or copying
if advised by counsel that such inspection or copying is prohibited by law.
(e) The Trustee may enforce, in its name or in the name of the Issuer, aJl rights,
remedies and powers of the Issuer for and in the name and on behalf of the Holders and may
enforce all covenants, agreements and obligations of the Company hereunder and under the
Agreement and Mortgage,' regardless of whether the Issuer is in default in the pursuit or
enforcement of those rights, covenants, agreements or obligations. The Issuer will take, however,
all actions on its part which are necessary or advisable to comply with all covenants, agreements
and obligations to be observed or perfonned by it on its part under the Issuer Documents. and will
take all actions within its authority to maintain the Issuer Documents in effect.
(t) The Issuer will take, or cause to be taken, all actions necessary or advisable to
qualify the interest paid on the Series 1999 Bonds as excludable from gross income of the Holders
for federal income tax purposes and from treatment as an item of tax preference for purposes of
the alternative minimum tax imposed on individuals and corporations under the Code. It will not
take or authorize to be take'n any actions that would adversely affect that exclusion under the
Code.
:0
86
1C;-f(
--.-:':~I'~-~
. 1
/'}
"
1
t
'~.../
(.)
,I
SECTION 10.02. .observance and Performance: Representations and Warranties. The
Issuer will observe and perform faithfully at all times all covenants, agreements and obligations
on its pan under the Issuer Documents and the Bonds and under all of its proceedings pertaining
thereto.
The Issuer represents and warrants that
(a) It is duly authorized under the laws of the State, including particularly and without
limitation, the Act, to issue the Series 1999 Bonds, to execute, deliver, observe and perform the
Issuer Documents and the Series 1999 Bonds and to pledge and assign the Revenues and the
Special Funds in the manner and to the extent contemplated hereunder~
(b) All covenants, agreements and obligations required to be observed and performed
by the Issuer for the issuance. sale and delivery of the Series 1999 Bonds and for the execution
and delivery of the Issuer Documents have been observed and performed; and
(c) The Issuer Documents and the Series 1999 Bonds are legal, valid and binding
, special obligations of the Issuer, enforceab~e in accordance with their respective tenns, except that
the binding effect and enforceability thereof are subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws in effect from time to time affecting the rights of
creditors generallYt and except to the extent that the enforceability thereof may be limited by the
application of general principles of equity.
SECTION 10.03. Enforcement ofIssuer's Obli2ations. Each obligation of the Issuer
required to be undertaken pursuant to this Indenture, the Agreement and the Bonds is binding upon
the Issuer, and upon each ofticer or employee thereof as may have from time to time the authority
under law to take any action on behalf of the Issuer which may be necessary to perform all or any
part of that obligation, as a duty of the Issuer and of each of those officers and employees.
87
99 ~ 18'
,~
ARTICLE Xl
!
,
"'
"
.!
.,
MEETINGS OF HOLDERS
SECTION 11.01. Pur:poses of Meetin2s. A meeting of Holders, or of the Holders of
any series of the Bonds, may be called at any time and from time to time pursuant to the
provisions of this Article XI, to the extent relevant to the Holders of all of the Bonds or of Bonds
of that series to take any action (i) authorized to be taken by or on behal f of the Holders of any
specified aggregate principal amount of the Bonds, (ii) under any provision of this Indenture or
authorized or permitted by law.
SECTION 11.02. Call of Meetin~s: Place of Meetin~s. The Trustee may call at any
time a meeting of Holders pursuant to this Article to be held at any rcasonable time and place
which the Trustee shall determine. Notice of that meeting, setting forth the time and the place of
the meeting and, in general tcrms, the subject thereof and the action proposed to be taken, shall
be mailed not fewer than 15 nor more than 90 days prior to the date detennincd for the meeting.
That notice shall be mailed to the Company and to each Holder at the close of business on the
fifteenth day preceding the mailing of the notice at its address as it appears on the Register on that
tlfteenth day preceding the mailing. The date of determination of Holders for purposes of the
mailing shall constitute the record date for the meeting.
--'"
)
At any time, the Issuer, the Company or the Holders of at least 25 percent in aggregate
principal amount of the Outstanding Bonds may request the Trustee in writing to call a meeting
of Holders. The request shall describe in general terms the subject of the meeting and the action
proposed to be taken. If the Trustee shall not have mailed the notice of the meeting within 20
days after receipt of the request, the Issuer, the Company or the Holders of Bonds in the amount
descrilx.>d above, as the case may be, may determine a reasonable time and place of the meeting
and may caB the meeting to take any action authorized in this ArticJe, by mailing notice thereof
as provided above.
"'-"'/
Any meetings of Holders of the Bonds affected by a particular matter, shall be valid
without notice, if
(a) the Holders of Outstanding Bonds are present in person or by proxy; or notice is
waived before or after the meeting by the Holders of all Outstanding Bonds who were not so
present at the meeting; and
(b) the Issuer, the Company and the Trustee are either present by duly authorized
representatives or have waived notice, before or after the meeting.
SECTION I 1.03. M.t:~tings: Regulations of the Tnlste~. Notwithstanding any other
provisions of this Indenture, the Trustee may make any reasonable regulations which it may deem
to be advisable for meetings of Holders, with regard to
)
'-"';
88
9?~(6
~-_I...~----,,--........-.._-_.. -..
.'.~
(a)
proof of the holding of Outstanding Bonds and of the appointment of proxies;
(b) the appointment and duties of inspectors of votes;
(c), recordation 'of the proceedings of those me~tings;
(d) the execution, submission and examination of proxies and other evidence of the
right to vote; and
(e) any other matters concerning the conduct, adjournment or reconvening of meetings
which it may consider to be necessary or desirable.
The Trustee shall appoinl a temporary chair of the meeting by an instrument or document
in writing, unless the meeting shall have been called by the Issuer. the Company or Holders, in
which case, the Issuer, the Company or the Holders calling the meeting, as the case may be, shall
appoint a temporary chair in like manner. A permanent chair and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal amount of the
Outstanding Bonds represented at the meeting and entitled to vote.
SECTION 11.04. Votine: Speaking at Meetin2: Record of Meeting. To be entitled to
vote at any meeting of Holders, a Person shall
,".-) (a) be a Holder of one or more Outstanding Bonds as of the record dale for the meeting
as determined above; or
'.
o
""........W.....4n"'~iIt. ".,...............
(b) be a Person appointed in writing by an instrument or document as proxy by a
Holder, as of the record date for the meeting, of one or more Outstanding Bonds.
The only Persons who shall be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at the meeting and their counsel, any representatives of the
Trustee and its counsel, any representatives of the Issuer and its counsel, and any representatives
of the Company and its counsel. Each Holder or proxy shall be emitled to one vote for each
$1,000 principal amount of Outstanding Bonds held or represented by it; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Bonds challenged as not
Out.standing and ruled by the chair of the meeting to be not Outstanding.
The vote upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be'subscribed the signatures of the Holders of Outstanding Bonds or of their
representatives by proxy and the identifying number or numbers of the Outstanding Bonds held
or represented by them.
SECTION 11.05. Miscellaneous. Nothing contained in this Article shall be deemed
or construed to authorize or permit any hindrance or delay in the exercise of any right, remedy
89
99 -/~
>',
" '
. ".:".
I., >,. ,",
, '
. '
;. ~'.
~ <.
. ..5, I,," "
,-' .
.' ,,',
, '
~ . I ..
" ,
~t:,"'\+~'~~+J. "
t', ,
, '
~; ", ....-..
I, 'f __ ,
~(:~;':' \:'~i:"'lt
J
.: I: .I. ~': .
. ," ~.. .
'C'
~.\ .
}:. .. >.
t': .
1-/:l," ,".
:., "."
T'.,,> ~
?:~ \ .
'"
~\:=c: :
~, . .
, ,
'/", . ,
.:~: "
",
...t. '
,""
j;.. " c
I., .
, "
.'.
!:".;.c
,;. .
','I,
, "-~,
;-. . ,i I
!'~' "'-./
~ ',' .
"
<.
, '
." ,
~ ~ .
~ "
!". '
.~ . . ,
, ,
" ,
1:< : :,
" ,.,\.:q
" ," '~
.... 'W'
, .
, .
i.< .
, .
c.", j
t.,',,'."
" '
"" "
, ..
" ,
. I
or pow~r:conferre(fupon or reserved to the Trustee or to the Holders under any of the provisions
of. this Indentu're or of the Bonds by reason of any call of a mceling of Holders or any right,
remedy or power conferred expressly or impliedJy hereunder to make a caJl of such a meeting.
, '
,I
r
.
.~ I .
.
, ,
,,'
, ,
,,90
19,/8'
."
.
ARTICLE XII
M ISCELLAN EOUS
SECTION 12.01. Limitation of Riehts. With the exception of rights, remedies and
powers conferred expressly in this Indenture, nothing expressed or mentioned in or to be implied
from this Indenture or the Bonds is intended, or shall be construed, to give to any Person other
than the parties hereto, the Registrar, the Paying Agents, the Authenticating Agents, the Tender
Agent, the Company and the Holders of the Bonds any legal or equitable right, remedy, power
" or claim under or with respeci to this Indenture or any covenants, agreements or obligations
hereunder or conditions and provisions herein.
This Indenture and all of those covenants. agreements, obligations. conditions and
provisions are intended to be. and are, for the sole and exclusive benefit of the parties hereto. the
Company t the Registrar, the PaYing Agents. the Authenticating Agents arid the Holders of the
Bonds, as provided herein.
~)
SECTION 12.02. Severability. In case any article, .section or provision of this
Indenture, or any covenant, agreement, obligation, condition, provision, act or action, or part
thereof, made, assumed, entered into or taken under this Indenture, or any application thereof.
is held to be illegal or invalid for any reason, or is inoperable at any time, that illegality, invalidity
or inoperability shall not affect the remainder thereof or any other article, section, provision,
covenant, agreement, obligation, condition, provision, act. action, part or application, made,
assumed, entered into or taken under this Indenture, all of which shall be construed and enforced
,at the time as if the illegal, invalid or inoperable portion were not contained therein or herein.
No illegality, invalidity or inoperability shall affect any legal. valid and operable article,
section, provision, covenant, agreement, obligation, condition, provision, act, action, part or
application, all of which shall be deemed to be effective, operative, made, assumed, entered into
or taken in the manner and to the full extent permitted by law from time to time.
SECTION 12.03. Notices. Except as provided in Section 7.02 hereof, it shall be
sufficient service or giving of any notice, request, complaint, demand or other instrument or
document, if it is duly mailed by first class mail, postage prepaid.
(a) if the notice. request, complaint, demand or other instrument or document is to be
served upon or given to the Issuer, the Company or the Trustee as follows:
(i) if to the Issuer, at City of Clearwater. Florida, c/o Margaret L. Simmons,
CPA, Financial Services Administrator, 100 South Myrtle Avenue, Clearwater, Florida 33756-
5520, whh copy to: City of Clearwater, City Attorney, 112 South Osceola Avenue. Clearwater.
Florida;
i,,' .i
,.
91
i
i
i
I
i I
qCj-/f(
L..
.
~1
, .'
')
<..J
.....1 ~ ,. ~I 10_ . .~,... ,,' .
(ii) if to the Company, at BEF, Inc., 1601 Jack Street, Suite 200, Fort Myers,
Florida 33901, Attention: President:
(iii) if to the Trustee. SunTrust Bank. Central Florida. National Association, 225
East Robinson Street, Suite 250. Orlando. Florida 32801, Attention: Corporate Trust
Departmcnt; and
(iv) if to the original purchaser of the Scries 1999 Bonds, Ziegler Securities, a
division of B.C. Ziegler and Company, 111 Second Avcnuc. N.E., Suite 915, St. Petersburg,
Florida, Attention: President.
(b) if the notice, request, complaint, demand or other instrument or document is to be
served upon or given to the Registrar, any Paying Agent. any Authenticating Agent or any
Original Purchaser, to the respective parties at their addresses provided by them in writing to the
Trustee, which shall provide those addresses promptly upon request to any party obligated or
entitled to serve or give that notice, request, complaint, dcmand or other instrument or document.
Duplicate copies of each notice, request, complaint, demand or other instrument or
document given hereunder by the Issuer, the Company or the Trustee shall be given also to the
others. By a notice given hereunder, the Issuer, the Trustee and the Company may designate any
further or different addresses to which any subsequent notice, request, complaint, demand or other
instrument or document shall be sent. By a notice to the Issuer and the Company, the Trustee
shall designate the addresses to which notices or copies thereof shall be sent to the Registrar, the
Authenticating Agents, the Tender Agent and the Paying Agents.
In connection with any notice, request, complaint, demand or other instrument or
document hereunder, a certificate of the Trustee, the Issuer, the Company, the Registrar, any
Paying Agent, any Authenticating Agent, or the Holders of the Bonds, whichever or whoever
mailed that notice, request. complaint, demand or other instrument or document, that the notice,
request, complaint, demand or other instrument or document was so mailed shall be conclusive
evidence of the proper mailing thereof.
Whenever Holders are to be determined for purposes of any notice or mailing as of 'a
particular date, and that date is a date on which the Trustee is closed in accordance with Section
12.05(a), the applicable date shall be instead the next succeeding business day on which the
Trustee is open for business.
SECTION 12.04. Suspension of Mail. If because of the suspension of delivery of first
class mail or, for any other reason, the Trustee shall be unable to mail by the required class of
mail any notice, request, complaint, demand or other instrument or document required to be
mailed hereby, the Trustee shall give it in any other manner which shall approximate most
effectively the mailing thereof in accordance herewith in the judgment of the Trustee. The giving
of that notice, request, complaint, demand or other instrument or document in that manner shall
92
11-/9:
I~
be deemed for all purposes of this Indenture to be in compliance with the requirement for the
mailing thereof. Except as provided otherwise herein, the mailing of any notice, request,
complaint, demand or other instrument or document shall be deemed to be complete upon deposit
thereof in the mail. and the giving thereof by any othcr mcans of delivery shall be deemed to be
complete upon receipt thereof by the delivery service.
SECTION 12.05. Payments Due on Saturdays. Sundays and Holidays. If any date of
maturity of the principal of any Bonds. date fixed for redemption of any Bonds, or Interest
Payment Date is a Saturday, Sunday or a day on which
(a) the Trustee is required, or authorized or not prohibited. by law (including without
limitation, executive orders) to close and is closed, payment of principal, redemption premium,
if any. and interest need not be made by the Trustee or any Paying Agent on that date, but that
payment may be made instead on the next succeeding business day on which the Trustee and the
Paying Agent are open for business with the same force and effect as if that payment were made
on the date of maturity, the date fixed for redemption, or the Interest Payment Date, and no
interest shall accrue for the period after that earlier date; or
--)
L.....,.
(b) a Paying Agent is required, or authorized or not prohibited, by law (including
without limitation, executive orders) to close and is closed, payment of principal, redemption
premium, if any, and interest need not be made by that Paying Agent on that date, but that
payment may be made instead on the next succeeding business day on which that Paying Agent
is open for business with the same force and effect as if that payment were made on the date of
maturity, the date tixed for redemption, or the Interest Payment Date, and no interest shall accrue
for the period after that earlier date.
SECTION 12.06. Instmments of Holders. Any writing, including without limitation,
any consent, request, direction, approval, objection or other instrument or document, required
under this Indenture to be executed by any Holder may be in any number of concurrent writings
of similar tenor and may be executed by that Holder individually or by an agent or attorney
appointed in writing. Proof of (i) the execution of any writing, including without limitation, any
consent, request, direction, approval, objection or other instrument or document, (ii) the execution
of any writing appointing any agent or attorney, and (iii) the Ownership of Bonds, shall be
sufficient for any of the purposes of this Indenture, if made in the manner provided under this
Section or under Article XII, and if so made, shall be conclusive in favor of the Trustee with
regard to any action taken thereunder. Proof under this Section is as follows:
(a) the fact and date of the execution by any individual of any writing may be proved
(i) by the certificate of any notary public or other officer in any jurisdiction,
who has power by law to take acknowledgments within that jurisdiction, that the individual
signing the writing acknowledged that execution before that officer,
.:..)
93
99 -/C?
.-)
(ii)
by affidavit of any witness to that execution. or
(iii) by a guarantee of the execution by any bank; and
(b)
Registrar.
the fact of Ownership of Bonds shall be proved by the Register maintained by the
Nothing contained herein shall be const'11ed to limit the Trustee to the foregoing proof. and
the Trustee may accept any other evidence of the matters stated therein which it deems to be
sufticient. Except as provided otherwise herein, any writing. including without limitation, any
consent, request, direction, approval, objection or other instrument or document. of the Holder
of any Bond shall bind every future Holder of the same Bond, with respect to anything done or
suffered to be done by the Issuer. the Trustee. the Registrar or any Paying Agent or
Authenticating Agent pursuant to that writing.
.~...
,
'_../
SECTION 12.07. Company to be Bound: Company's Actions. The Issuer will require
each Person having charge of the operation of the Project to covenant and agree in writing to be
bound by the provisions of this Indenture applicable to the Company, including without limitation,
the provisions of the Agreement incorporated herein by reference, except as modified with the
written consent of the Trustee. The Issuer shall include in any lease or other instrument or
document, or in appropriate rules or regulations adopted by the Issuer. regarding the operation
of the Mortgaged Property sufficient requirements which make those provisions controlling and
binding upon each Person having charge of the operation of the Mortgaged Property.
,
The Trustee covenants and agrees that, for purposes of compliance with this Indenture. if
the Company observes or performs any of the covenants, agreements or obligations required to
be observed or performed by the Issuer under this Indenture, that observance or performance will
satisfy the requirements of this Indenture.
SECTION 12.08. Execution Counterparts. This Indenture may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute but
one and the same document. It shall not be necessary in proving this Indenture to produce or
account for more than one of those counterparts.
SECTION 12.09. Survival of Representation and Warranties. All representations and
warranties of the Issuer and the Trustee herein shall survive the execution and delivery hereof and
the issuance and delivery of the Bonds.
SECTION 12.10.
permitted by law:
Yiilldity of Assignments and Security Interest. To the extent
(a) The Revenues and the funds and accounts created hereunder are subject to the
assignments made herein and the security interests granted herein without any further act.
..J
94
qq~/'6
,~)
(b) The assignments and security interest arc valid and binding against all parties
having claims of any kind against the Issuer. without regard to whether those parties have notice
thereof.
(c) The assignments are absolute and unconditional present assignments and Lhe security
interest creates a perfected security interest for all purposes, without the necessity for separation
or delivery of the Revenues or of the funds and accounts created hereunder, and the filing,
recording or registration hereof or of any resolution, legislation, instrument or document by which
. the assignments and security interest arc created, granted or made or the filing, recording or
registration of any certificate, statement or other instrument or document with respect to the
assignment and security interests. .
(d) The assignments and the security interest arc eftective and the moneys, including
without limitation, investments, Lherefrom, thereof and therein may be applied to the purposes for
which the assignments and grant are made without the necessity of any further act of
appropriation.
......
'~'c)
SECTION 12.11. Extent of Covenants: No Personal Liability. All covenants,
stipulations, obligations and agreements of the Issuer contained in this Indenture are and shaH be
deemed to be covenants, stipulations, obligations and agreements of the Issuer to the full extent
authorized by the Act and permitted by the .Constitution and laws of the State. No covenant,
stipulation, obligation or agreement of the Issuer contained in this Indenture shall be deemed to
be a covenant, stipulation, obligation or agreement of any present or future member, officer, agent
or employee of the Issuer in other than that person t s official capacity. Neither the members of
the Issuer nor any official executing the Bonds, this Indenture, the Agreement or any amendment
or supplement hereto or thereto shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance or execution hereof or thereof.
SECTION 12.12. Bindin2' Effect. This Indenture shall inure to the benefit of and shall
be binding upon the Issuer and the Trustee and their respective successors and assigns, subject,
howevert to the limitations contained hercin.
SECTION 12.13. Captions. The captions and headings in this Indenture are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections hereof.
SECTION 12.14. Governine Law. This Indenturc shall be governed by and construed
in accordance with the laws of the State.
, -...J
95
Cf/-If{
......~.,t~.....~,.,......-'I;;......... .,
: ".i
\' <
+,..l.:'. I,'.
,~
, '. .J
.'rl'''.
'"
i" ,
8,
.c,
, ,
~. '.
o
. \
,. t '
"
IN WITNESS' WHEREOF, the Issuer has caused this Indenture to be executed and
. delivered for it and in its name and on its behalf by its duly authorized officers; and in token of
its acceptance of the trusts created hereunder, the Trustee has caused this Indenture to be executed
and delivered for it and in its name and on its behalf by its duly authorized ofticers; all as of the
day and year first above written.
(SEAL)
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
By:
1
.1
I
,
!
I
[Assistant] City Manager
" ATTEST:
. Clerk
Approved as to form and
, legal sufficiency
City Attorney
SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION,
as Trustee
By:
Vice- President
, '
96
99~/r
....-....,,-...... .. .......:..r..:....~~-......:.............:....:........---...:._.. - .................~.~...j'el.....t... ..~~
',"
. .'
:~
~<'r'.''''
,
.'
:'1
. .........
" ~;)
,
i.
...r..J;I~,
I..J'
"
",0',
Acceptance of Appointment as
Registrar t Paying' Agent,
Authenticating Agent and Tender Agent
for tbe Series 1999 Bonds
The undersigned, by its execution hereof, in its name and on its behalf by its duly
, authorized officers, does hereby accept the appointment as Registrar, Paying Agent,
'. A~thenticating Agent and Tender Agent for the Series 1999 Bonds and, hereby assumes all the
. rights, powers and duties of such Registrar, Paying Agent, Authenticating Agent and Tender
, " Age~t under the IndentUre. For all purposes of Section 12.03 of the Indenture. the foIlowing
, shall be the notice address for the undersigned until further written notitication to the Issuer, the
Trustee, the Registrar and the CompaflY:
'Attention: Corporate Trust Department
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION. as Trustee
,-
By:
Title:
97
Cf1.-/~
a
.~~)
'-)
......_...;...;,..,...,~ r . '.,~. ~ .
EXHIBIT A
[FORM OF SERIES 1999 [A][C] BOND]
THIS BOND MAY BE TRANSFERRED ONLY TO AN tlACCREDITED INVESTORtI, AS
SUCH TERM IS DEFINED IN REGULATION 0, OR ANY SUCCESSOR PROVISION
THERETO, OF THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
AND OTHERWISE TN ACCORDANCE WITH APPLICABLE FEDERAL AND STATE
SECURITIES LAWS.
NO. R-
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF CLEARW A'fER, FLORIDA
[TAXABLE] REVENUE BOND, SERIES 1999[A][C]
(BEF, INC. PROJECT)
MATURITY DATE:
CUSIP:
DA TED DATE:
INTEREST RATE:
Registered Holder:
Principal Amount:
DOLLARS
The City of Clearwater, Florida (the tllssuer"), a municipal corporation duly created
under the laws of the State of Florida, for value received, promises to pay to the Registered
Holder (named above) or registered assigns (the "Registered Holder't), but solely from the
sources and in the manner referred to herein, the Principal Amount (stated above) on the
Maturity Date (stated above), unless this Bond is called for earlier redemption, and to pay I from
those sources, interest thereon as hereinafter provided until the principal amount is paid or duly
provided for. This Bond will bear interest at the Interest Rate (stated above) from the most
recent date to which interest has been paid or duly provided for Of, if no interest has been paid
or duly provided for, from the Dated Date (stated above). Interest shall be computed on the
basis of a 360-day year of twelve 30-day months and shall be payable semiannually on May 15
and November 15 of each yea!" ("Interest Payment Dates") commencing on November 15, 1999
until the principal of this Bond shall have been paid or provided for.
A-I
19-/'6
, ,
, '
"\
The principal or redemption price of this Bond shall be payable upon presentation and
surrender hereof at the designated corporate trust office of the Paying Agent, initially SunTrust
Bank, Central Florida, National Association, 225 East Robinson Street, Suite 250. Orlando,
Florida, 32801 (the "Paying Agent"). Interest on this Bond is payable on cach Interest Payment
Date by check or draft mailed by the Paying Agent to the person in whose name this Bond (or
one or more predecessor bonds) is registered (the "Holder") on the Register for this issue
maintained by the Registrar, initially SunTrust Bank, Central Florida, 225 East Robinson Street,
Suite 250, Orlando, Florida, 32801. at whose address appearing therein at the close of business
on the 15th day (whethcr or not a business day) of the calendar month next preceding that
Interest Payment Date (the "Regular RL'Cord Date"). Any interest installment which is not timely
paid or duly provided for shall cease to be payable to the Registered Holder hereof as of the
Regular Record Date, and shall be payable together with interest on such past due interest at the
Interest Rate (stated above) to the date established by the Trustee for the payment thereof (a
uSpecial Interest 'Payment Date") to the person in whose name this Bond (or one or more
predecessor bonds) is registen.."<l on the Register at the close of business on a special record date
(the "Special Record Date") to be fixed by the Trustee, initially SunTrust Bank, Central Florida,
National Association, 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 (the
"Trustee"). Notice of the Special Record Date and Special Interest Payment Date shall be given
to Holders not less than ten (10) days priOl~ to such Special Record Date. If this Bond is
redeemed on any date which is not an interest payment date, accrued interest shall be paid when
the redemption price is paid. If this Bond is redeemed on any Interest Payment Date, the interest
due shall be paid in the normal manner described below.
r,
-,-/
The principal of, premium, if any. and interest (collectively called "Bond Service
Charges") on this Bond are payable in lawful money of the United States of America, without
deduction for the services of the Paying Agent.
This Bond is one of a duly authorized issue of lTaxable] Revenue Bonds, Series
1999[A][C] (BEF, Inc. Project) (thc "Series 1999[AJ[C] Bonds") of the Issuer, issued under the
Trust Indenture, dated as of July 1, 1999 (the "Indenture"), between the Issuer and the Trustee,
in the aggregate principal amount of $ , the proceeds of which will be used to make
a loan (the "Loan") to BEF, Inc., a Florida not-for-profit corporation (the "Company"), to assist
in the financing of costs of (1) acquiring, constructing, installing, equipping and improving and
renovating its assisted living facilities and skilled nursing Project (collectively, the "Project"),
(2) funding a debt service reserve fund and (3) paying certain costs and expenses relating to the
issuance of the Series 1999[A]l C] Bonds, as more particularly described in the Loan and Security
Agrcement between the Issuer and the Company dated of even date with the Indenture (the
"Agreement"). The Bonds are issued pursuant to the laws of the State of Florida, particularly
Chapter 154, Chapter 159, Part II and Chapter 166, Florida Statutes, as amended, and other
applicable provisions of law, and a resolution duly adopted by the Issuer on March 8, 1999, as
supplemented (collectively, the "Resolution").
.--J
A~2
99,;f{
/
tl
The Series 1999[A][C] Bonds. together with the Issuer's $ aggregate
principal amount of lTaxableJ Revenue Bonds Series 1999lAJlCj(BEF, Inc. Project)(tlu~"Series
1999{AllCJ Bonds") and $ aggregate principal amount of Revenue Bonds. Series 1999B
(BEF, Inc. Project) Extendable Rate Adjustable SecuriticsSM (EXTRASSM) (the "Series 1999B
Bonds") being issued simultaneously with the issuance of the Series 1999lAJ [C] Bonds and any
Additional Bonds which may be issued on a parity therewith under the Indenture (collectively,
the "Bondst'), are limited obligations of the Issuer, issued under and secured and entitled equally
and ratably to the protection given by the Indenture. The Issuer shall not be obligated to pay the
Bond Service Charges on this Bond except from amounts payable under the Agreement in
repayment of the Loan, moneys and investments in the Project Fund (being any unexpended
proceeds of the Bonds), in the Bond Fund and in the Debt Service Reserve Fund. and investment
income thereon and the Companyts Revenues. as more particularly detined in the Indenture.
pledged therefor (collectively, the "Trust Estate"), and neither the faith and credit nor the taxing
power of the Issuer. nor the Slate of Florida or any political subdivision thereof is pledged to the
payment of the Bond Service Charges on this Bond. The Bond Service Charges on the Bonds
are payable solely from the Trust Estate and are an obligation of the Issuer only to the extent of
the Trust Estate. .
\
, t
.,__..1
Pursuant to the Agreement, the Company has executed and delivered to the Trustee a
Series 1999 Note (the "Series 1999 Note"), dated as of [the date of issue] hereof in the priricipal
amount of $ . The Company is required by the Agreement and the Series 1999
Note to make payments to the Trustee in the amounts and at the times necessary to pay the Bond
Service Charges on the Series 1999 Bonds. In the Indenture. the Issuer has assigned to the
Trustee. to provide for the payment of the Bond Service Charges on the Bonds, the Issuer's
right, title and interest in and to the Agreement, except for "Unassigned Rights" as defined in
the Agreement. The Company's obligations under the Agreement and Series 1999 Note are
secured by the Mortgage and Security Agreement dated as of July 1, 1999, from the Company,
as mortgagor, (0 the Issuer~ as mortgagee, which has been assigned by the Issuer to the Trustee
pursuant to the Assignment of Mortgage dated as of July 1, 1999. If additional bonds are issued
as permitted by the Indenture, to make additional loans to the Company, the Company will
execute additional promissory notes which wHl also be secured by the Mortgage. Any such
additional bonds will be secured by the Revenues on a parity with the Series 1999A Bonds, the
Series 1999B Bonds and Series 1999C Bonds.
Reference is made to the Indenture, the Agreement. the Series 1999 Note and the
Mortgage for a more complete description of the Project. the provisions, among others, with
respect to the nature and extent of the security for the Bonds. the rights, duties and obligations
of the Issuer, the Trustee and the Holders of the Bonds, the terms and conditions upon which the
Bonds are issued and secured and the conditions upon which Additional Bonds may be issued.
Each registered owner assents. by its acceptance hereof, to all of the provisions of the Indenture,
the Agreement, the Series 1999 Note and the Mortgage. copies of which are on tile in the
designated corporate trust office of the Trustee.
J
A-3
91-!ff
.'}
The Bonds are issuable only as fully registered bonds in the denominations of $100.000
and any $5,000 multiple thereof (" Authorized Denominations"). Bonds are exchangeable for
fully registered Bonds of Authorized Denominations in equal aggregate principal amounts and
the same maturity at the office of the Registrar. but only in the manner and subject to the
limitations provided in the Indenture. This Bond is transferable on the Register or at the office
of the Registrar by the Registered Holder in person or by his attorney. duly authorized in
writing, upon presentation and surrender hereof to the Registrar in the manner and subject to the
limitations provided in the Indenture. The Registrar is not required to transfer or exchange (i)
any Bond during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Bonds and ending at the close of business on the day of such
mailing, or (ii) any Bonds so selected for redemption in whole or in part within 90 days
following such mailing.
:~~)
""'"
The Series 1999[A][C] Bonds are subject to redemption prior to their stated maturity
pursuant to notice by mail, postage prepaid, sent to the Holders thereof not more than sixty (60)
days or fewer than thirty (30) days prior to the redemption date, as follows:
Extraordinary Redemption Without Premium. (a) The Series 1999[A][C] Bonds are
subject to extraordinary redemption at the direction of the Company on behalf of the Issuer, in
part on any Interest Payment Date in Authorized Denominations from the proceeds of insurance
or condemnation payments received in excess of $250,000 as a result of partial damage or
destruction or taking under the power of eminent domain of a portion of the Mortgaged
Property, in either case at a redemption price of 100 percent of the principal amount redeemed
plus interest accrued to the redemption date. '
(b) The Company shall be obligated to cause the Series 1999B Bonds to be redeemed.
in full, within thiny (30) days following the closing of the sale of the Bluff Building portion of
the Project, at a redemption price of 100 percent of the principal amount thereof plus interest
accrued to the redemption date.
Optional Redemption. The Series 1999[A][C] Bonus maturing on or prior to November
15, 20_, are not subject to redemption prior to maturity at the option of the Company. The
Series 1999[A][C] Bonds maturing on or after November 1St 20_t are subject to redemption
prior to their maturity, at the option of the Issuer at the written request of the Company, on or
after November 15, 20 ,in whole at any time or in part. in order of maturities as shall be
detennined by the Company and by lot within a maturity, on any Interest Payment Date, at the
redemption prices (expressed as percentages of principal amount of Bonds to be redeemed) set
forth in the table below, plus accrued interest thereon to the date fixed for redemption:
.~
A-4
91 ~ I r
f)
Period of Redemption
(All dates inclusive)
Redemption Prices
November 15. 20_ to November 14. 20_
November 15. 20_ to November 14. 20_
November 15. 20_ and thereafter
102%
101 %
100%
Mandatory Redemption. The Series 1999[A][C] Bonds maturing November 15, _
are subject to mandatory redemption prior to maturity in part, by lot, on November 15111 of each
year. beginning November 15, , at a redemption price equal to 100% of the principal
amount of the Series 1999[A][C] Bonds being redeemed plus accrued interest to the redemption
date, without premium. in the following principal amounts and in the following years:
~
Amount
$
*
, "~
*Maturity
If less than all Series 1999[A][C] Bonds are to be redeemed in full at one time, then, for
purposes of partial redemption, each $100,000 of principal shall be deemed to be a separate
Series 1999[A][C]Bond having a $100,000 principal amount. If Series 1999[A][C] Bonds or
portions thereof are called for redemption and if on the redemption date moneys for the
redemption thereof are held by the Trustee or the Paying Agent, then from and after such
redemption date those Series 1999[A][CJ Bonds or portions thereof to be redeemed shall cease
to bear interest, and shall cease to be secured by, and shall not be deemed to be outstanding
under. the Indenture.
The Indenture permits certain amendments or supplements to the Indenture. the
Agreement, the Series 1999 Note and the Mortgage to be made without the consent of or notice
to the Holders, and other amendments or supplements thcreto (with ccrtain exceptions, as
provided in the Indenture) to be made with the consent of the Holders of not less than a majority
in aggregate principal amount of the Bonds (hen outstanding.
The Holder of each Series 1999[A][C] Bond has only those remedies provided in the
Indenture.
",0" "l.
;--J
A-5
tt9-lr
--w~~~:",:::,::",,"":':"'~':.._':""__.,' ........ --~.~"" ....
''J The Series 1999[A][C] Bonds shall not constitute the personal obligation, either jointly
" .0J or sev~ralJy,'of the members of the governing body of the Issuer or of any officer of the Issuer.
This Series I999[AJ[C] Bond shall not be entitled to any security or benetit under lhe
Indenture or be valid or lx.>come obligatory tor any purpose until the Certiticate of Authentication
hereon shall have been duly signed.
It is certified and recited that there have been performed and have happened in regular and
due ronn, as required by law, all acts and conditions and things necessary to be done by the Issuer
or to have happened (i) precedent to and in the issuing of the Series I999[AJ(C] Bonds in order
to make them legal. valid and binding limited obligations of the Issuer. and (ii) precedent to and
in the execution and delivery of the Indenture and the Agreement; that payment in full for the
Series I999(A][Cl Bonds has been received; and that the Series 1999[Al[Cj Bonds do nor exceed
or violate any constitutional or statutory limitation.
IN WITNESS OF THE ABOVE, the City of Clearwater. Florida has issued this Series
1999[A)[C] Bond and has caused the same to be executed in its name by its Mayor-
Commissioner and its City Manager and attested by its City Clerk and approved as to form and
legal sufficiency by its City Attorney either manually or with their facsimile signatures. and its
corporate seal or a facsimile thereof to be affixed, impressed, imprinted. lithographed or
reproduced hereon, all as of the dated date shown above.
<:>
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
(SEAL)
By:
City Manager
ATTEST:
By:
City Clerk
Approved as to form and
legal sufficiency
By:
City Attorney
,~
A-6
1'9 -IP:
. -....WMK.......~i. ffIIt;.l.k............,...............................
.., .. ~.
" J:.... ,.,' ~~ c;
,. 'c' ,~,d ~ . L _ ..' .'
;'--)
. r~J
CERTIFlCATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned Indenture.
Date of Authentication:
SUNTRUST BANK. CENTRAL FLORIDA,
NATIONAL ASSOCIATION. as Trustee
By:
~ l .,
Authorized Signer
, -
~.:--
~egistrable at:
Payable by: .
<J
(FORl\1 OF ASSIGNMENT)
The following abbreviations, when used in the inscription on the face of the within Bonds,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM
as tenants in common
TEN ENT
as tenants by the entireties
1T TEN
as joint tenants with right of
survivorship and not as tenants in common
UNIF TRANSFERS MIN ACT -
Custodian
(Cust)
(Minor)
under Unifonn Transfers to Minors Act
(State)
Additional abbreviations may also be used though not in list above.
.-....~.....
<.J .
A-7
q'q~/g:
,jI~~i';;"l,r.!.~""""'.~',"":~;-~~"~ ' ...
. . . .
'. ~ '. , . . "l' d ~,
., ~ '.' .:~,::. ~', ,'~,,,,,,';'.,.,~'I,.,.L, ~,.. ~., '.I.~. ~,~:
.r]'
. . ....c"..t"~
': '
:',. .
c, '
;:":' ~
:'
J. ."
!
,
',.
-': .r)
:. "-
<0.
" '
., . ~ <
", ~i
'J.
ASSIGNMENT
For, value received. the undersigned sells. assigns and transfers unto
the within Bond and irrevocably constitutes and appoints
attorney to transter thac Bond on the books kept
for registration there9f, with full power of substitution in the premises.
Dated:
Signature Guaranreed:
Notice:
The assignort 5 signature to this assignment must correspond with the name as it
appears upon the face of the within Bond in every particular. without alteration
or any change whatever.
A-8
11-1'l
1--,
[FORM OF SERIES 19998 BOND]
THIS BOND MAYBE TRANSFERRED ONLY TO AN ItACCREDITED INVESTOR'" AS
SUCH TERM IS DEFINED IN REGULATION 0, OR ANY SUCCESSOR PROVISION
THERETO, OF THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
AND OTHERWISE IN ACCORDANCE WITH APPLICABLE FEDERAL AND STATE
SECURITIES LAWS.
NO. R-
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF CLEARWATER, FLORIDA
TAXABLE REVENUE BOND, SERIES 1999B
(BEF, INC. PROJECT)
EXTENDABLE RATE ADJUSTABLE SECURITillSSM
(EXTRA SSM)
,')'~
"
MATURITY DATE:
ORIGINAL ISSUE
DA TED DATE:
INITIAL
INTEREST RATE:
CUSIP:
Registered Holder:
Principal Amount:
DOLLARS
The City of Clearwater, Florida (the "Issuer"). a municipal corporation duly organized
and existing under the laws of the State of Florida. for value receivedt promises to pay to the
Regislered Holder (named above) or registered assigns (the "Registered Holder"), but solely
from the sources and in the manner referred to herein. the Principal Amount (slated above) on
the Maturity Date (stated above), unless this Series 1999B Bond is called for earlier redemption,
and to pay. from those sources, interest thereon as hereinafter provided until the principal
amount is paid or duly provided for. This Series 1999B Bond will bear interest at the Interest
Rate (stated above) from the most recent date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided fort from the Dated Dale (stated above).
Interest shall be computed on the basis of a 360-day year of twelve 30-day months and shall be
payable semiannually on May 15 and November 15 of each year commencing on November 15.
1999 ("Interest Payment Dates") until the principal of this Series 1999B Bond shall have been
paid or provided for.
'~J
A-I
91-lft
.......,..~...'1-;"'....I+"'.....,...<~-'~ '..' c ",.. ~,~.
~~""'''"'~_'''''-'''''''''''''-'''k''----~___
-
i
,~-~)
The principal or redemption price of th,is Scrics 1999B Bonds shall be payable upon
presentation and surrender hereof at the dcsignatcd corporate trust office of the Paying Agent,
initially SunTrust Bank, Central Florida. National Association. 225 East Robinson Street, Suite
250. Orlando, Florida, 32801 ("Paying Agent"). Interest on this Series 1999B Bond is payable
on cach Interest Paymcnt Datc by check or draft mailed by the Paying Agent to the person in
whose name this Series 1999B Bond (or one or more predecessor Series 1999B Bonds) is
registered (the "Holder") on the Register for this issue maintained by the Registrar. initially
SunTrust Bank, Central Florida, National Association. 225 East Robinson Street, Suite 250.
Orlando, Florida, 32801 at whose address appearing therein at the close of business on the 15th
day (whether or not a business day) of the calendar month next preceding that Interest Payment
Date (the "Regular Record Date"). Any interest installment which is not timely paid or duly
provided for shall cease to be payable to the registered owner hereof as of the Regular Record
Date, and shall be payable together with interest on such past due interest at the Interest Rate
(stated above) to the datc established by the Trustee for the payment thercof (a "Spccial Interest
Payment Date") to the person in whose name this Bond (or one or more predecessor bonds) is
registered on the Register at the close of business on a special record date (the "Special Record
Date") to be fixed by the Trustee, initially SunTrust Bank, Central Florida, National
Association. 225 East Robinson Street, Suite 250, Orlando, Florida, 32801 (the "Trustee").
Notice of the Special Record Date and Special Interest Payment Date shall be given to Holders
not less than ten (10) days prior to such Special Record Date. If this Series 1999B Bond is
redeemed on any date which is not an Interest Payment Date. accrued interest shall be paid when
the redemption price is paid: If this Series 1999B Bond is. redeemed on any Interest Payment
Date. the interest due shall be paid in the nonnal manner described below.
/)
The principal of, premium, if any, and interest (collectively called "Bond Service
Charges") on this Series 1999B Bond are payable in lawful money of the United States of
America, without deduction for the services of the Paying Agent.
This Series 1999B Bond is one of a duly authorized issue of Revenue Bonds. Series
1999B Bond (BEF, Inc. Project) Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the
"Series 1999B Bondsll) of the Issuer, issued under the Trust Indenture, dated as of July 1, 1999
(the "Indenture"), between the Issuer and the Trustee, in the aggregate principal amount of $_
, the proceeds of which will be used to make a loan (the .'Loanll) to BEF, Inc., a
Florida not-far-profit corporation (the "Company"). to assist in the financing of costs of (I)
acquiring, constructing, installing, equipping, improving and renovating its assisted living
facilities and a skilled nursing facility (collectively. the t'Project"),(2) funding a Debt Service
,Reserve Fund. and (3) paying certain costs and expenses relating to the issuance of the Series
1999B Bonds, as more particularly described in the Loan and Security Agreement between the
Issuer and the Company dated of even date with the Indenture (the "AgreementU). The Series
19998 Bonds are issued pursuant to the laws of the State of Florida, particularly Chapter 154,
Chapter 159, Part II, and Chapter 166, Florida Statutes, as amended. and other applicable
provisions of law, and a resolution duly adopted by the Issuer on March 8, 1999, as
supplemented (collectively, the" Resolution It).
'-...)
A-2
tttJ-/f(
._~-'.~"!:..:.....:.....;;::.:.....;,.:.;..:..~...:.,~..................................--~---_.:
!~
Thc Bonds, together with the Issuer's $ aggregate principal amount of Housing
Rcvcnuc Bonds, Series 1999A (BEF, Inc. Project) (the ItSeries 1999A Bonds") and thc Issuer1s
$ aggregate principal amount of Taxable Revenue Bonds. Series 1999C (BEF.
Inc. Project)(the "Series 1999C Bonds") being issued simultaneously with the issuance of the
Scries 1999B Bonds and any Additional Bonds which may be issued on a parity thercwith under
the Indenture (coJlectively, the IlBonds"), are limited obligations of the Issuer. issued under and
secured and cntitled equally and ratably to the protection given by the Indenture. The Issucr
shall not be obligated to pay the Bond Service Charges on this Bond except from amounts
payable under the Agreement in repayment of the Loan, moneys and investments in the Project
Fund (being any unexpendt.>u proceeds of the Bonds), in the Bond Fund and in the Debt Service
Reserve Fund. and investment income thereon and the Company's Revenues. as more
particularly dctined in the Indenture, pledged therefor (collectively, the uTrust Estate"). and
neither the faith and credit nor the taxing power of the Issuer. nor the State of Florida or any
political sulxlivision thereof is pledged to the payment of the Bond Service Charges on this Bond.
The Bond Service Charges on the Series 1999B Bonds are payable solely from the Trust Estate
and are an obligation of the Issuer only to the extent of the Trust Estate.
...)
Pursuant to the Agreement. the Company has executed and delivered to the Trustee a
Series 1999 Note (the "Series 1999 Note"). dated as of the date of issue hereof in the principal
amount of $ . The Company is required by the Agreement and the Series 1999
Note to make payments to the Trustee in the amounts and at the times necessary to pay the Bond
Service Charges on the Series 1999B Bonds. In the Indenture. the Issuer has assigned to the
Trustee, to provide for the payment of the Bond Service Charges on the Series 1999B Bonds.
the Issuer's right, title and interest in and to the Agreement. except for "Unassigned Rights" as
defined in the Agreement. The Company's obligations under the Agreement and Series 1999
Note are secured by the Mortgage and Security Agreement dated as of July 1, 1999. from the
Company. as mortgagor, to the Issuer. as mortgagee. which has been assigned by the Issuer to
the Trustee pursuant to the Assignment of Mortgage dated as of July 1, 1999, and the Company
has issued its Series 1999 Note securing the payment of the Series 1999A, the Series 1999B
Bonds and the Series 1999C Bonds. If additional bonds are issued as permitted by the Indenture,
to make additional (oans to the Company, the Company will execute additional promissory notes
which will also be secured by the Mortgage. Any such additional bonds will be secured by the
Revenues on a parity with the Series 1999A Bonds, the Series 1999B Bonds and the Series
I999C Bonds.
Reference is made to the Indenture, the Agreement, the S~ries 1999 Note and the
Mortgage for a more complete description of the Project. the provisions, among others, with
respect to the nature and extent of the security for the Series 1999B Bonds, the rights. duties and
obligations of the Issuer. the Trustee and the Holders of the Series 1999B Bonds. the temlS and
conditions upon which the Series 1999B Bonds are issued and secured and the conditions upon
which Additional Bonds may be issued. Each registered owner assents, by its acceptance hereof,
to all of the provisions of the Indenture, the Agreement, the Series 1999 Note and the Mortgage,
copies of which are on file in the designated corporate trust office of the Trustce.
~
A-3
99,-1fJ'
..)
The Series 1999B Bonds are issuable only as fully registered bonds in the denominations
of $100,000 and any integral multiple of $5,000 in excess thereof ("Authorized
Denominations"). Series 1999B Bonds arc exchangeable for fully registered Bonds of
Authorized Denominations in equal aggregate principal amounts and the same maturity at the
office of the Registrar. but only in the manner and subject to the limitations provided in the
Indenture. This Series 1999B Bond is transferable on the Register at the oftice of the Registrar
by the Registered Holder in person or by his attorney. duly authorized in writing, upon
presentation and surrender hereof to the Registrar in the manner and subject to the limitations
provided in the Indenture. The Registrar is not required to transfer or chl..hange (i) any Series
1999B Bond during a period beginning at the opening of business ] 5 days before the day of the
mailing of a notice of n.>demption of Serics 1999B Bonds and ending at the closc of business on
the day of such mailingt or (ii) any Series 1999B Bonds so selected for redemption in whole or
in pan within 90 days following such mailing.
The Series 1999B Bonds will bear interest from t 1999 to and including
[November 15. 20~ (the "Initial Rate Change Date"), at the rates set fOftl1 and established in
accordance with Section 2.03(a) of the Indenture. The interest rates (thc "Adjustable Rates")
on the Series 1999B Bonds from and after the Initial Rate Change Date will be established by
the Remarketing Agent under the Remarketing Agreement, between the Remarketing Agent and
the Company t in the manner described therein.
,_W..)
\""'\1':";:
The Adjusted Rate applicable to the Series 1999B Bonds shaJl be the rate (the "Reset
Rate") deternlined by the Remarketing Agent on a date not less than 65 days prior to the Initial
Rate Change Date and any rate change date selected by the Company pursuant to Section 2.05(b)
of the Indenture (the "Rate Change Dare"). The Reset Rate applicable to the Series 1999B Bonds
shall be the lowest rate that would, in the judgment of the Remarketing Agent (having due regard
to the prevailing market conditions), be necessary to enable the Series 1999B Bonds to be sold
at par on the Rate Change Date, provided that the Reset Rate shall not exceed 15% per annum
(the "Maximum Rate"). Upon such determination of the Reset Rate, the Remarketing Agent
shall promptly notify the Trustee and the Company of the Reset Rate. Not less than 60 days
prior to the Rate Change Date, the Trustee shall promptly notify each Holder of Series 1999B
Bonds in writing by first class mail, postage prepaidt of the Reset Rate that will be applicable
to such Series 1999B Bonds on and after the Rate Change Date and provide instructions for the
procedure to be followed by any Holder wishing to tender Series 1999B Bonds for purchase as
hereinafter provided. If for any reason the Reset Rate for the Series 1999B Bonds cannot be
determined by the Remarketing Agcnt in the manner specitied above, the Reset Rate will be
equal to The Bond Buyer Revenue Bond Index (as published in n,e BUild Buyer or any successor
publication thereto) for the most recent period for which slH.:h information is available prior to
the giving of notice of the Reset Rate by the Trustee to the Holders of the Series 1999B Bonds,
or if such index or its equivalent is no longer published. the interest rate currently in effect.
provided that such rate may not exceed the Maximum Rate.
,
'-~
A-4
91-/'6
....... ,.-......,.~, '. ,,',
'J
In addition, the interest rate on the Series 1999B Bonds will not be reset on any Rate
Change Date unless (a) at least 75 days prior to such Rate Change Date and (b) on such Rate
Change Date. the Company shall cause to be delivered. at its expenset to the Trustee and the
Remarketing Agent an Opinion of Bond Counsel. to the effect that such reset in interest rate and
change in the Rate Period will not have an adverse effect on any exemption from Federal income
taxation to which the interest on the Series 1999B Bonds would otherwise be entitled. The
Company shall use its best eflorts to cause such Opinion of Bond Counsel to be delivered to the
Trustee by such dates. In the event such Opinion of Bond Counsel is not delivered. the interest
rate on the Series 1999B Bonds currently in effect shall remain in effect as the Reset Rate for
the next rate period. which shall be equal in duration to the preceding fate period but shall not
in any event extend beyu'nd the date of tinal maturity of the Series 1999B Bonds.
I
The Series 1999B Bonds are subject to redemption prior to their stated maturity pursuant
to notice by mail. postage prepaid. sent to the Holders thereof not more than sixty (GO) days or
fewer than thirty (30) days prior to the redemption date. as follows:
~- ')
""tr'j
Extraordinary Redemption Without Premium. (a) The Series 1999B Bonds are subject
to extraordinary optional redemption at the direction of the Company on behalf of the Issuer, in
part on any Interest Payment Date in Authorized Denominations from the proceeds of insurance
or condemnation payments received as a result of partial damage or destruction or taking under
the power of eminent domain of a portion of the Mortgaged Property in excess of $250,000, in
either case at a redemption price of 100 percent of the principal amount redeemed plus interest
accrued to the redemption date.
Optional Redemption.
The Series 1999B Bonds may be redeemed in whole or in part on any date occurring
within the redemption periods. as set torth below, by the Issuer upon direction of the Company.
The redemption price for any such redemption shall be at a redemption price equal to 100% of
the principal amount of the Series 1999B Bonds or portion thereof so redeemed on the applicable
redemption date. plus accrued interest to the redemption date.
(i) During the period between the issuance of the Series 1999B Bonds and the
Initial Rate Change Date, the Series 1999B Bonds are subject to optional redemption on
or after 15. 20_,
(ii) During any Rate Period of three years in length, the Series 1999B Bonds
are subject to optional redemplion commencing on the IS-month anniversary of the first
day for such Rate Period.
(Hi) During any Rate Period of five years in length, [he Series 1999B Bonds
are subject to optional redemption commencing on the 24-momh anniversary of the first
day of such Rate Period.
)
A-5
91-1<6
-,r~~>:'~;"t: .....c,~ ~ .~
')
,.' )
............
\~
~.~I~..:-~~V"""'.' -.
l.
(iv) During any Rate Period of seven years in length, the Scries 1999B Bonds
are subject to optional redemption commencing on the 30.month anniversary of the first
day of such Rate Period.
(v) During any Rate Period of ten or morc years in length. the Series 1999B
Bonds are subject to optional redemption commencing on the fifth anniversary of the first
day of such Rate Period.
The Series 1999B Bonds tendered for purchase on any Rate Change Date but not so
purchased shall be given priority for redemption on each succeeding optional or extraordinary
redemption date until redeemed prior to the oplional or extraordinary redemption of any other
Series 1999B Bonds. Series 1999B Bonds so given priority shall be selected by the Trustee, by
lot or in such other equitable manner as the Trustee shall deem appropriate. in the event of
insufficient funds to redeem all such Series 1999BBonds on any particular redemption date.
Mandatory Sinking Fund Redemption. The Series 1999B Bonds are subject to mandatory
redemption prior to maturity in part, by lot (except that Series 1999B Bonds that have been
tendered for purchase on any Optional Tender Date but were not so purchased shall be redeemed
prior to the redemption of any other Series 1999B Bonds), on November 15th of each year,
beginning November 15. 20_, at a redemption price equal to one hundred percent (100%) of
the principal amount of the Series 1999B Bonds being redeemed plus accrued interest to the
redemption date, without premium, in the following principal amounts and in the following
years:
~
Amount
$
*
*Maturity
If less than all Series 1999B Bonds are to be redeemed in full at one time, then, for
purposes of partial redemption. each $100.000 of principal shall be deemed to be a separate
Series 1999B Bond having a $100,000 principal amount. If Series 1999B Bonds or portions
thereof are called for redemption and if on .the redemption date moneys for the redemption
thereof are held by the Trustee or the Paying Agent. then from and after such redemption date
those Series 1999B Bonds or portions thereof to be redeemed shall cease to bear interest. and
shall cease to be secured by, and shall not be deemed to be outstanding under. the Indenture.
[TENDER OPTION - TO COME]
A-6
q9 -/g
()
The Indcnture pcrmits certain amendments or supplements to the Indenture, the
Agreement, the S~ries 1999 Note and the Mortgage to be made without the consent of or notice
to the Holders, and other amendments or supplements thereto (with certain exceptions, as
provided in the Indenture) to be made with the consent of the Holders of not less than a majority
in aggregate principal amount of the Series 1999B Bonds then outstanding.
The Holder of each Series 1999B Bond has only those remedies provided in the
Indenture.
The Series 1999B Bonds shall not constitute the personal obligation, either jointly or
severally, of the members of the governing body of the Issuer or of any officer of the Issuer.
This Series 1999B Bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose until the Certificate of Authentication
hereon shall have been duly signed.
---)
c. It .
,....
It is certified and recited that there have been perfonned and have happened in regular and
. due foflTl, as required by law, all acts and conditions and things necessary to be done by the Issuer
or to have happened (i) precedent to and in the issuing of the Series 1999B Bonds in order to
make them legal. valid and binding limited obligations of the Issuer, and (ii) precedent to and
in the ex~ution and delivery of the Indenture and the Agreement; that payment in full for the
Series 1999B Bonds has been rt..-ceived; and that the Series 1999B Bonds do not exceed or violate
any constitutional or statutory limitation.
. I.
<J
A-7
1'9 - /'6
~~~.4t'.:;~===-----__~_..__.:_:__., .
. \. . ..IJ..., '''. ,;,.: ", ....' '..
" '
,
c \:'
t', .
:> ()
;.~ .'~'r"
.~ ~ . .
, .
. ".
': .
.',.
".
':
,
>.,. .
c" " .
" ,
. "
: ',.,-. '.
~:",U
'.....
';'0.
, '
""
'l' 'J
, .
.~;.'i ~ . ,
: ~:..'. ~'. .}. .
I
I
IN WITNESS OF THE ABOVE, the City of Clearwater, Florida has issued this S~ries
. 19998 Bond and has caused the same to be ex~uted in its name by its Chairman and attested by
its Secretary ..either manually or with their facsimile signatures, and its corporate seal or a
facsimile thereof to be aftixed. impressed. imprinted. lithographed or reproduced hereon. all as
of the dated date shown above.
(SEAL) " , .
ATTEST: .
By:
City Clerk
Approved as to fom and
legal suft1ciency
By: .
City Attorney
Jo ... ..
'~ . \. 0'" [ ; ..
.,'
I
I
. (
i
1
CITY OF CLEARWATER. FLORIDA
By:
By:
.' A-8
Mayor-Commissioner
City Manager
. ,.l
tt1 ,-/~
I'.
<~]
. . J '-~1
.....J
".
-)
.I
CERTIFICA TE OF AUTHENTIC A TION
This Series 1999B Bond is one of the Series 1999B Bonds described in the within~
mentioned Indenture.
Date of Authentication:
SUNTRUST BANK, CENTRAL FLORIDA.
NATIONAL ASSOCIATION. as Trustee
By:
Authorized Signer
. Registrable at:
Payable by:
(FORl\'I OF ASSIGNMENT)
The following abbreviations, when used in the inscription on the face of the within Series
1999B Bonds, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM
as tenants in common
TEN ENT
as tenants by the entireties
JT TEN
as joint tenants with right of
survivorship and not as tenants in common
UN IF TRANSFERS MIN ACT ~
Custodian
(Cust)
under Uniform Transfers to Minors Act
(State)
Additional abbreviations may also be used though not in list above.
A.9
.....~::'tIt~,~u......'"':""....._...,...........
.". ".". ."/ . ..,." .
(Minor)
1'9 -;r
, ,
'"'"
'r')
.'
ASSIGNMENT
For value received, the undersigned sells" assigns and transfers unto
the within Series 1999B Bond and irrevocably constitutes
and appoints ' attorney to transfer that Series 1999B Bond
. on the books kept for registration thereof. with full power of substitution in the premises.
Dated:
,!
";:
Signature Guaranteed:
), (0
,.
Notice:
The assignor's signature to this assignment must correspond with the name as it
appears upon the face of the within Series 1999B Bond in every panicular.
without alteration or any change whatever.
,.
, ,
:.:)
. A-IO
11" !~
~~~~,~~f~"""~~~._~=-~~'_,;._
" . ~. . '.'
.. <,.'.",
,';.::" ;..:
. .~.,'. c, '....c.. ~ . .".
, . ~ I, ..'. <
", "."
~ . . "," "
.,-"\
,
')
..J .
. "">
.J
EXHIBIT 8
FORM OF INVESTOR LETTER
City. Commission
City of Clearwater
Clearwater. Florida
SunTrust Bank. Central Florida.
National Association
Orlando. Florida, 32801
Ladies and Gentlemen;
This letter is being executed and delivered by the undersigned as purchaser (the llPurchaserll)
to the City of Clearwater, Florida (the llIssuerll). and SunTrust Bank, Central Florida, National
Association, as trustee, so that the Issuer will enter into a Trust Indenture (the llIndenturell). dated
as ofJuly 1, 1999 between the Issuer and SunTrust Bank. Central Florida, National Association,
a national banking association, as trustee (the llTrustee") and other related agreements and will
issue, sell and deliver its Revenue Bonds, Series 1999 (BEF, Inc. Project) (the "Bonds") to the
Purchaser to finance the acquisition and renovation of existing adult assisted living and skilled
. nursing home facilities (the "Project") owned by BEF. Inc. (the lICompanyll). Terms defined in the
Indenture are used in this letter with the meanings assigned to them iri the Indenture.
The undersigned hereby represents, warrants and agrees to and with the Issuer that:
1.
The Purchaser is an accredited investor as such tenn is defined in the Securities Act of 1933
and Regulation D issued pursuant thereto, a principal part of whose business consists of
buying securities such as the Bonds and which is a bank, savings institution, trust company!
insurance company, investment company as defined in the Investment Company Act of
1940. pension or profit-sharing trust or other financial institution or institutional buyer or
a broker dealer.
2.
The Purchaser has received copies of the Indenture, the Loan and Security Agreement, the
Mortgage and Security Agreement and certain of the other documents or instruments being
delivered in connection with the issuance of the Bonds, and said documents are in fonn and
substance satisfactory to the Purchaser and its counsel. The Purchaser has received and
reviewed a copy of the [Official Statement] from the Underwriter.
B-1
ri'-Iff
I
i'
I
.~
3.
The Purchaser has conducted its own investigations, to the extent it deems satisfactory or
sufficient into matters relating to the business. properties. management, and financial
position and results of operations of the Company and the Project.
4. The Purchaser is aware that the operation of the Project involves certain economic variables
that could etlect the security of its investment in the Bonds.
5. The Purchaser acknowledges that the Issuer is acting merely as a conduit issuer on behalf
of the Company, and that no revenue or assets of the Issuer are or can be used to pay the
principal ot: premium. if any, and interest 0 the Bonds except for payments to be made by
the Company under the Notes and the Loan and Security Agreement. which have been
assigned to the Trustee.
6. The Purchaser understands that the Bonds are not registered under the Securities Act of
1933, as amended. The Purchaser is purchasing the Bonds for its own account for invest~
ment and not with a view to, and with no present intention ot: distributing or reselling the
Bonds or any portion thereof, providing that the Purchaser reserves the right to transfer any
or all of the Bonds purchased or any interest therein at any time and in our sole discretion
and, in the event that we so transfer Bonds, we assume the responsibility for complying with
any applicable federal and state securities laws and the terms of the Indenture.
. ,.' )
-,'
The Purchaser understands and agrees that the foregoing representations will be relied upon
by the Issuer in the issuance of the Bonds and by Bond Counsel to the Issuer [and counsel to the
Underwriter] in rendering opinions on the exclusion of the Bonds from the registration requirements
of the Securities Act of 193,3, as amended, 15 U.S. C, Section 77a.
Very truly yours,
as Purchaser
.f .
By:
Name:
Title:
~J
B.2
91-/~
'f,"
., ;
"
.". ,"
.','
~~:"P". ": Ir'~ ~.,'
, ~ ~ . "
o
...'
< ,
;. I
If -:
\ .
'.'
'I, -i:::'
'\' :
Jo, "
,;
1 L>:
,.'
'.,
\
'<,
i~
Lt..
..... , ~ . "
. "
f,:'
I.,. '"
(
G
,.
,
I '
.. /'
\-.'
0"
l.<
"
...., "~
. ,
< ~:.
.'
1:-"
.:'"->,
:'1,
.'
".r .1."'
EXHIBIT B
FORM OF MORTGAGE AND SECURITY AGREEMENT
~ I, . ~ ',(. ~'\ .. .
Resolution 99-18
I
I',
<)
i .
"
j
.,
-j
,
,
1
l
I
,
--....,
)
'-
...
.-.J
,'''l-I
DRAFT 113
OS/28/99
BMO #3195
This instrument was prepared by or under the
supervision of (and after recording should be returned
to):
Robert C. Reid. Esq.
Bryant. Miller and Olive. P.A.
201 South Monroe Street
Suite 500
Tallahassee, Florida 32301
(SpgCC ~",ed ror CierI:: or Coun)
MORTGAGE AND SECURITY AGREEMENT
from
BEF, INC.,
a Florida not-for-profit corporation
(Mortgagor)
to
CITY OF CLEARWATER, FLORIDA
(Mortgagee)
relating to
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS
(BEF, Inc. Project)
Dated as of July I. 1999
THIS INSTRUMENT, THE NOTES AND THE MORTGAGOR'S OBLIGATIONS SECURED
HEREBY ARE GIVEN TO SECURE THE BONDS DESCRIBED HEREIN WHICH ARE
ISSUED PURSUANT TO THE PROVISIONS OF CHAPTER 159. PART 11, FLORIDA
STATUTES, AS AMENDED, AND THIS INSTRUMENT, THE NOTE. THE MORTGAGORtS
OBLIGATIONS AND THE BONDS ARE EXEMPT FROM FLORIDA DOCUMENTARY
STAMP TAX AND FLORIDA INTANGIBLE PROPERTY TAX AS PROVIDED IN
SECTIONS 159.27(1) AND 159.31, FLORIDA STATUTES, AS AMENDED.
Cfl-/S
..,..... .....'..., ..jo".'- "". .
,". I.
. L . I
_ ..M. __,.....~...........-......__...o....-_,_..__.
.,' .,. .,,..,
,.")
INDEX
(The Index is not a part of this Mortgage
and is only for convenience of rcferc~ce.)
ARTICLE I
DEFINITIONS
Section 1.1. JJse of Defined Terms ................................... 6
Section 1.2. Definitions........................................... 6
Section 1.3. Interpretation........................................ II
. ARTICLE II
PRESERVATION OF SECURITY
. r<"~
Section 2.1. Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
Section 2.2. Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
Section 2.3. After~AcQuired Property . . . . . . . . . '. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.4. Liens and Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.5. Security Aereement and Financing Statement . . . . . . . . . . . . . . . . . . .. 13
Section 2.6. No Claims Against Mon~agee .............................. 13
Section 2.7. Security for Future Advances . . . . . . . . . . . . . . . .'. . . . . . . . . . . . .. 13
Section 2.8. Hazardous WaSt: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'. . . . .. 14
Section 2.9. In~ectjon ..........,.,..... II- .. .. . . .. . . . . . .. .. .. .. . .. .. .. . .. . .. . . . .. .. .... 16
ARTICLE III
TAXES, MECHANICS' LIENS AND INSURANCE
Section 3.1. Payment of Taxes and Other Governmental Charges ............... 17
Section 3.2. Mechanics' and Other Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
Section 3.3. Insurance........................................... 17
Section 3.4. Workers' Compensation Coveragt: . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
Section 3.5. Title InsurancG ............................. . . . . . . . . . . 19
ARTICLE IV
MAINTENANCE AND USE OF MORTGAGED PROPERTY
(J
Section 4.1. Compliance with Leial and Insurance Requirements ............... 20
. Section 4.2. Maintenance and Use of Mortga~ed PropertY . . . . . . . . . . . . . . . . . . . . 20
Section 4.3. Additions. Modifications and Improvements ........:........... 21
Section 4.4. fulbstitutions and Removals ............................... 21
Section 4.5. IndemnificatioQ....................................... 22
ii
19" If{
()
.:)
o
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
ARTICLE V
DAMAGE, DESTRUCTION AND CONDEMNATION
D D. f P' 1- '1"
ama2-e to or estrucllon 0 roJect 'ael Illes ...................
Use of Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Eminent Domain . .. , , . ... III III 01 . . . . ... . ... 01 ... ... . . . .. . ... .. 01 .. . .. .. . . 01 .. .. .. iI
Investment and Disbursement of Net Proceeds
ARTICLE VI
REMEDIES
23
23
24 .
25
Section 6. 1. Ri2ht to Perform Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.2. Events of Default ...................................... 26
Section 6.3. Remedies........................................... 27
Section 6.4. Waiver of Appraisement: Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.5. Appointment of Receiver. . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.6. Possession. Management and Income: Assignment: Application of Money&
Received . ... ... . . . .. ... .. . .. ... .. .. ... . . of . .. .. ... ... ... .. ... ... .. .. .. 01 .. .. . . . .. .. .. .. ... ... .. 28
Section 6.7. Remedies Cumulative . .'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.8. Provisions Subiect to Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.9. No Waiver by Mortgagee ................................ 29
Section 6.10. Discontinuance of Proceedings and Restoration of Status Quo ......... 29
Section 7. 1.
. Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 7.6.
Section 7.7.
Section 7.8.
Section 7.9.
Section 7.10.
Section 7.11.
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
ARTICLE VII
MISCELLANEOUS
Additional Security .................................. .' . 30
Release of Mortgaged Property and Easements . . . . . . . . . . . . . . . . . . . 30
30
30
31
31
31
31
31
32
32
Expenres .. .. .. .. .. .. . .. ... .. . ... .. jI ... ... III ... .. .. III 01 ... ... .. .. ... -II ... .. ... .. .. .. III .. . .. III .. .. .. ..
Books. Records and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Estoppel A ftictavits ....................,.,.............
Subrogation . . . . . . . . . . . , , , . . . . . . . . . . . . . . . . , . . . . . . . . . .
No Mer~er .. . .. ... ... r I ... .. III .. .. . .. ... ... .. . ... .. ... .. .. .. .. . .. ... III .. . .. .. .. .. .. .. . .. . .. ..
Oeneral Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. " . . . . . .
Amendments. Chang.es and Moditications . . . . . . . . . . . . . . . . . . . . . .
D' ...
ISposltlon .. iI .. . . . . . .. iI . . . . . . . .. . . , . . . . . .. .. . . . . .. . iI . . iI .. .
Issuer's Right of Purchase , . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . .
PROJECT SITE LEGAL DESCRIPTION
PERMITTED ENCUMBRANCES
FORM OF PROMISSORY NOTE
. ASSIGNMENT OF MORTGAGE AND SECURITY AGREEMENT
jji
qq ---I 'it
r)
MORTGAGE AND SECURITY AGREEJ\.'IENT
Maxilllwll Indebtedness Not to Exceed $35tOOO,OOO
TIllS MORTGAGE AND SECURITY AGREEl\IENT (the "Mortgage"), dated as of
July 1. 1999. executed and delivered by BEF, INC., a Florida not-for-protit corporation (the
,. Mortgagor"). to the CITY OF CLEARWATER, FLORIDA. a municipal corporation duly
created and existing under the laws of the State of Florida (the "Issuer" or the tlMortgagee"),
under the circumstances summarized in the following recitals (the capitalized terms not defined
in the recitals hereto are defined in Article I hereot):
,.~)
A. Pursuant to the Act. the Issuer has issued. sold and delivered its Series 1999 Bonds
in the aggregate principal amount of $ , consisting of $
aggregate principal amount of Revenue Bonds. Series 1999A (HEF, Inc. Project) (the "Series
1999A Bonds"). $ aggregate principal amount of Revenue Bonds, Series 1999B (HEF,
Inc. Project), Extendable Rate Adjustable SecuritiesSM (EXTRASSM) (the "Series 1999B Bonds")
and $ aggregate principal amount of Taxable Revenue Bond I Series 1999C (BEF,
Inc. Project)(the "Series 1999C Bonds" and together with the Series 1999A Bonds and the Series
1999B Bonds, the "Series 1999 Bonds"). The Series 1999 Bonds have been issued pursuant to the
Indenture between the Issuer and First Union National Bank of Florida. Jacksonville. Florida. as
Trustee. Reference is hereby made to the Indenture. a counterpart of which is on tile and
available for inspection at the Notice Address of the Trustee.
B. Pursuant to the Agreement to which reference is hereby made and a counterpart of
which is on file and available for inspection at the Notice Address 'of the Trustee, the Issuer has
loaned to the Mortgagor the proceed; t:'cceived from the sale of the Series 1999 Bonds and, if
Additional Bonds are issued under the Indenture, the Issuer shall loan to the Mortgagor the
proceeds received from any such Additional Bonds.
..
C. By the Agreement and as further evidenced by the Series 1999 Notes and any
Additional Notes which hereafter may be executed to evidence loans made with proceeds of any
Additional Bonds (collectively. the "Notes"), the Mortgagor is required to repay all amounts so
loaned by Issuer to the Mortgagor (collectively. the ttLoan") by making Loan Payments. as
defined in the Agreement. to the Trustee, at such times and in such amounts as shall be sufficient
to pay the toral amounts due with respect to the principal of and premium. if any~ and interest on
the Series 1999 Bonds and any Additional Bonds (collectively. the "Bonds") payable at any time
for that period or payable at that time (the "Debt Service Charges"). The final principal payment
on the Series ]999 Bonds. if not earlier redeemed. is due and payable on November 15, 20_.
o
D. By the Indenture, the Issuer has. with the consent of the Mortgagor, assigned to the
Trustee. as security for the payment of the Debt Service Charges (i) all of its rights and interest
qt;-(f{
...- '~"I,~:.~':1a:.::"=:':':"'':''''':''''-",_",,~~~~__
'}
under. in and to the Agreement except for the Unassigned Rights (as thcrein defincd). and (ii) the
Revenues (as defined in the Indenture).
NOW THEREFORE, as an inducement to and in consideration of the issuance of the
Series 1999 Bonds by the Issuer, the loan of the proceeds of the sale of the Series 1999 Bonds by
the Issuer to the Mortgagor pursuant to the Agreement, and for other valuable consideration, the
receipt of which is hereby acknowledged. for the purpose of securing the Bonds and for the
purpose of securing the following, whether now or hereafter owing:
(i) All payments to be made by the Mortgagor under the Agreement. the Notes
and this Mortgage. including. without limitation, all Loan Payments and
Additional Payments,
(ii) Any amounts advanced or costs incurred by the Mortgagee for the
protection of the hereinaftcr described Mortgaged Property, as hereinafter
defined, or in connection with the enforcement of this Mortgage, the Notes,
the Indenture or the Agreement, together with interest thereon at the
Interest Rate for Advances,
(Hi) The perfonnance and observance of each covenant and agreement of the
Mortgagor contained in this Mortgage. the Notes and the Agreement. and
, ,,:)
. (iv)
all fees and expenses of the Trustee under the Indenture.
the Mortgagor does hereby grant, bargain, sell, convey. mortgage, assign, grant a security interest
in and transfer unto the Mortgagee, its successors and assigns, all of its respective right. title and
interest in and to the following property, whether now owned or hereafter acquired (the
"Mortgaged Propertyll):
(a) All that certain piece, par..::el u.' tract (if land in which the Mortgagor has a fee
simple interest situate in the County of Pinellas, State of Florida (hereinafter called
the "Project Site"), more particularly described in Exhibit A attached hereto and
made a part hereof;
(b)
All lands, buildings, structures and improvements of every nature whatsoever now
or hereafter situated on the Project Site, and all fixtures. machinery, equipment,
furniture and other personal property of every nature whatsoever now or hereafter
owned by the Mortgagor and located in, on. or intended to be used in connection
with the opcration of the Projl.>et Site. buildings, structures or other improvements,
betterments, renewals and replacements to any of the foregoing; and all of the
right, title and interest of the Mortgagor in any such personal propcrty or tixtures
subject to a lease, conditional sales contract, chattel mortgage or similar lien or
claim together with the benefit of any deposits or payments now or hereafter made
by the Mortgagor or on Mortgagor's behalf (the "Project Facilities");
...;)
2
19 -/~
,,)
!
',~-,'
.oJ
(c) All easements. rights of way. strips and gores of land, streets, ways, alleys,
passages, sewer rights, rights, titles. interest, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the property hereinabove described. or which hereafter shall
in any way belong, relate or be appurtenant thereto. whether now owned or
hereafter acquired by Mortgagor and the reversion and reversions remainder and
remainders, rents. issues, and profits resulting from or relating to the Mortgaged
Property. and all the estate. right, title, interest, property, possession, claim and
demand whatsoever. at law as well as in equity. of the Mongagor of, in and to thc
same, including, but not limited to. all judgments. .awards of damages and
settlements hereafter made resulting from condemnation proceedings or the taking
of the Mortgaged Property or any part thereof under the power of emincnt domain,
the alteration of the gradc of any street. or for any damage (whether caused by
such taking or otherwise) to the Mortgaged Property or any part thereof, or to any
rights appurtenant thereto. and all prOt:ecds of llilY sales or Olhcr dispositions of the
Mortgaged Property or any part thereof;
(d) All rents, royalties, issues, profits, revenue. income and other benefits from the
Mortgaged Property to be applied against the indebtedness secured hereby,
provided however, that pcrmission is hercby given to Mortgagor so long as no
default has occurred hereunder, to collect. receive. take, use and enjoy such rents,
royalties, issues, protits, revenue, income, licenses, foreclosures, com:essions and
other benefits as they become due and payable, but not in advance thereof. The
foregoing assignment shall be fully operative without any further action on the part
of eith~r party and, specifically, Mortgagce shall be emitled, at its option upon the
occurrence of a default hereunder, to all rents, royalties, issues. profits, revenue,
income and other benefits from the Mortgaged Property. whether or not Mortgagee
takes possession of the Mortgaged Property. Upon any such notice of default
hereunder, the permission hereby givcn to Mortgagor to collect such rents,
royalties, issues. profits, revenue, income and other benefits from the Mortgaged
Property shall terminate and such permission shall not be reinstated upon a cure of
the default without Mortgagee's specific written consent. Exercise of rights under
this paragraph and the application of any such rents, royalties, issues, profits.
revenue. income or other benefits to such indebtedness, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant hereto,
but shall be cumulative and in addition to all other rights and remedies of
Mortgagee;
(e) All right. title and interest of Mortgagor in and to any and all leases now or
hereafter on or affecting the Mortgaged Propcrty (exccpting the portion of
escrowed paymcnts due pursuant to any residency agrcemcncs which are excluded
from the detinition of "Revenue" hereunder), togethcr with all security therefor
and all monies payable thereunder, subject, however. to the conditional permission
hereinabove given to Mortgagor to collect the rentals undcr any such lease and
3
q9~/fl
.-iIt.....~...:..-____~~:..:..:...':~u.:'-_:.... _.. ~, c. . .
(~)
subject to any nondisturbance agreement executcd by the Mortgagee with respect
thereto. The foregoing assigrunent of any Icase shall not be deemed to impose upon
Mortgagee any of the obligations or duties of Mortgagor provided in any such
lease, and Mortgagor agrees (0 fully perform all obligations of the lessor under all
such leases. Upon Mortgagee's request, Mortgagor agrees to send to Mortgagee
a list of all leases covered by the foregoing assignment and as any such lease shall
expire or terminate or as any new lease shall be made. Mortgagor shall so notify
Mortgagee in order that at all times Mortgagee shall have a current list of all leases
affecting the Mortgaged Propeny, Mortgagee shall have the right, at any time and
from time to time, to notify any lessee of the rights of the Mortgagee as provided
by this paragraph. From time to time, upon request of Mortgagee. Mortgagor shall
specitically assign to Mortgagee as additional security hereunder, by an assignment
in writing in form approved by Mortgagee. all right, title and interest of Mortgagor
in and to any and all leases now or hereafter on or affecting the Mortgaged
Property, together with all security therefore and all monies payable hercunder.
subject to the conditional pennission hereinabove given to Mortgagor to collect the
rentals under any such lease. No such separate assignment instrument shall be
necessary, however, to grant to Mortgagee rights in such leases as this instrument
is intended to be a self-operative present assignment of such leases and all rights
thereunder. Mortgagor shall also execute and deliver to Mortgagee any
notification, financing statement. or other document reasonably required by
Mortgagee to perfect the foregoing assignment as (0 any such lease. (This
instrument constitutes an absolute and present assignment of the terms. royalties,
issues. profits, revenue, income. and othcr benetits from the Mortgaged Property,
subject, however, to the conditional pem1ission given to Mortgagor to collect.
receive, take. use and enjoy the same as provided hereinabove; provided, further,
that the existence or exercise of such right of Mortgagor shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part, by
Mortgagor and any such subsequent assignment by Mortgagor shall be subject to
the rights of Mortgagee hereunder); and
~
~
(t) A security interest in (i) all property, equipment, inventory and fixtures now or
hereafter affixed to or located on the Mortgaged Property (except motor vehicles
. subject to certificate of title), which, to the fullest extent permitted by law, are or
shall be deemed fixtures and a part of the real property, (ii) all articles of per~ona1
property now or hereinafter acquired and all materials situated or hereinafter
delivered to the Mortgaged Property for the use and operation of said property or
for use in any construction being conducted thereon, and now or hereinafter owned
by Mortgagor; (Hi) all contract rights. including construction contracts. architects
contracts, service contracts, advertising contracts, payment or performance bonds,
licenses and permits, purchase orders. equipment leases. all other contract rights
now or hereinafter associated with the Mongaged Property, general intangibles,
actions and rights of action, all deposits (to the extent such deposits constitute
"Revenuest' as hereinafter defined). prepaid expenses, permits, licenses. including
4
qq-/fl
.~\
f
all rights to Net Proceeds now or hereinafter acquired or accruing to the
Mortgagort (iv) all right. title and interest of the Mortgagor in all tradenames and
trademarks now or hereinafter used in connection with the use of the Mortgaged
Property, (v) all accounts receivable of the Mortgagor, general intangibles of the
Mortgagor and all Revenues now or hereafter accruing to Mortgagor including any
cash, securities or other assets of the Mortgagor held by the Trustee, and (vi) all
proceeds, products, replacements, additions, substitutions. renewals and accessions
of any of the toregoing. Mortgagor hereby grants to the Mortgagee, as a secured
party, a security interest in all personal property described herein. This Mortgage
is a self-operative security agreement with respect to such property, but Mortgagor
agrees to execute and deliver on demand such other security agreements, financing
statements and other instruments as Mortgagee may request in order to perfect its
security interest or to impose the lien hereof marc specifically upon any of such
property. In addition to those specitied herein Mortgagee shall have all the rights
and remedies of a secured pany under the Uniform Commercial Code.
PROVIDED, HOWEVER, that Mortgaged Property shall not include any amounts on
deposit in the Operating Reserve; and
'......../
PROVIDED, FURTHER, that these presents are upon the condition that, if the Mortgagor
shall payor cause to be paid to the Mortgagee all amounts payable in respect to the Agreement,
the Notes. this Mortgage, including. without limitation, aU Loan Payments and Additional
Payments and any amounts advanced or costs incurred by the Mortgagee for the protection of the
Mortgaged Property, or in connection with the enforcement of this Mortgage, the Notes or the
Agreemem on the dares on the day or days when payment shall become due, aU without deduction
or credit for taxes or other similar charges paid by the Mortgagor, and shall keep. perfonn and
observe all and singular the covenants and promises in the Agreement, and the Notes, and any
renewal, extension, consolidation or modification thereof, and in this Mortgage expressed to be
kept, perfonned and observed by and on the part of the Mortgagor, all without fraud or delay'and
Mortgagee shall have no commitment or obligation to advance funds to or for the benefit of the
Mortgagor, then this MortgageJ and all the propenies, interest and rights granted, bargained, sold,
remised, released, conveyed. assigned. transferred, mongaged, hypothecated, pledged, delivered,
set over, warranted and confinned, shall cease, terminate and be void; but shall otherwise remain
in full force and effect.
TO HAVE AND TO HOLD the Mortgaged Property unto lhe Mortgagee, its successors
and assigns, forever;
AND, IT IS HEREBY COVENANTED that this Mortgage is given and the Mortgaged
Property is to be held upon the terms herein set forth.
I
,....,)
5
1tt~/fi
f)
':)
v
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and tenns elsewhere
defined in this Mortgage or by reference to another documentt the words and tenns set forth in
Section 1.2 hereof shall have the meanings therein set forth unless the context or use expressly
indicates different meaning or intent. Such dctinitions shall be equally applicable to both the
singular, possessive and plural forms of any of the words and tcrms thcrein defined.
Section 1.2. Detinitions. As used herein:
"Act" means the Florida Constitution, the Charter of the Issuer and Chapter 154, Parts II
and III of Chapter 159 and Chapter 166, Florida Statutes, as amended and other applicable
provisions of law.
"Additional Bonds" means the Additional Bonds as defined in the Indenture.
"Additional Notes" means any non-negotiable promissory note or notes, in addition to the
Series 1999 Notes, delivered by the Mortgagor to the Issuer and assigned by the Issuer to the
Trustee in connection with the issuance of Additional Bonds as provided in the Agreement.
"Additional Payments" means the payments required to be paid by the Mortgagor under
Section 4.2 of the Agreement.
"Agrecmentli means the Loan Agreement dated as of even date with this Mortgage,
between the Issuer and the Mortgagor, as amended or supplemented from time to time.
"Bond Fundlt means the Bond Fund created by the Indenture.
"Bond Resolutiont' means (a) when used with reference to the Series 1999 Bonds, the
resolution providing for tl1eir issuance and approving the Agreement, the Indenture and related
matters; (b) when used with reference to an issue of Additional Bonds, the resolution providing
for the issuance of the Series 1999 Bonds. to the extent applicable. and the resolution providing
for the issuance of the Additional Bonds and approving any amendment or supplements to the
Agreement and the Indenture and related matters; and (c) when used with reterence to Bonds when
Additional Bonds arc outstanding, the resolution providing for the issuance of the Series 1999
Bonds and the resolution providing for the issuance of the then outstanding Additional Bonds; in
each case as amended or supplemented from time to time.
"Bonds" means the Series 1999 Bonds and any Addilional Bonds.
"Commercial Code" means the Unifonn Commercial Code as enacted in the State. as from
time to time amended or supplemented.
6
19-/ft
-"T-.J'."':,":.~~'~":~~........-........-....__~~-=-_'__._:.._________
~..
-..)
"Debt" means all obligations for borrowed money and installment sale and capitalized lease
obligations incurred or assumed by the MOrlgagor and any guaranty by the Mortgagor of
indebtedness of any other Person.
"Debt Service Reserve Fund't means the Debt Service Reserve Fund created in Section
5.01 of the Indenture.
"Engineer" means an individual or firm acceptable to the Mortgagee and qualified to
practice the profcssion of engincering or architecture under the laws of the State.
"Entrance Fees" shall mean the fees, other than monthly service charges by the residents
of the Mortgaged Property to the Company for the purpose of obtaining the right to reside in the
Mortgaged Property, including any refundable resident deposits described in Residency
Agreements with respect to the Mongaged Property, but shall not include any such amounts that
are (i) escrowed pursuant 10 thl! requirements of Chapter 651. Florida Statutes or any similar law
unless and until such amounts are released from such escrow to the Company or (ii) escrows
otherwise set aside pursuant to the requirements of any Residency Agreement prior to occupancy
of the unit covered by such Residency Agreement (which amounts shall be included if and when
such occupancy occurs).
ItEvent of Default" means any of the events described as an Event of Default in Section
6.2 hereof.
-,..~
~)
"Excluded Property" means the property described in Exhibit G of the Agreement
"Force Majeure" means any of the causes, circumstances or events described as
constituting Force Majeure in Section 6.2 hereof.
"Holder" or "Holder of a Bondlt means the person in whose name a bond is registered on
the Bond Register.
"Indenture.t means the Trust Indenture dated as of even d~te with this Mortgage between
the Issuer and the Trustee, as amended or supplemented from time to time.
flIndependent Counsel" means an attorney or linn of attorneys acceptable to the Mortgagor
and duly admitted to practice law before the highest court of the State.
"Insurance Requirements" means those insurance requirements described in Section 4.1
hereof.
"Interest Rale for Advances" means the lesser of (i) the Prime Rate or (ii) the maximum
interest rate permitted by applicable law.
...)'
7
Cf!;,/fI
")
r., ..
:,,,..")
I.....!'"
-...J
IIlssuer" means City of Clearwater. Florida, a public body corporate and politic duly
crcated and validly existing under the laws of the State of Florida including, particularly, the Act,
and its successor and assigns.
"Legal Requirements" means those legal requirements described in Section 4.1 hereof.
"Loan" means the loan by the Issuer to the Mortgagor of the proceeds received from the
sale of Bonds.
IlLoan Payments" means the amounts required to be paid by the Mongagor in repayment
of the Loan pursuant to Section 4. 1 of the Agreement.
IIMortgage" means this Mortgage and Security Agreement, as amended or supplemented
from time to time.
IINet Proceeds, II when used with respect to any insurance proceeds or condemnation award,
means the gross proceeds thereof less the payment of all expenses, including attorneys' fees
incurred in connection with the collection of such gross proceeds.
tlNotes" means the Series 1999 Notes and any Additional Notes.
"Notice Address" means as to the Mortgagor: BEF, Inc., 1601 Jack Street, Suite 200, Fort
Myers, Florida 33901 Attention: Gerard A. McHale, Jr., as to the Issuer: City of Clearwater.
Florida, c/o Margaret L. Simmons, CPA, Financial Services Administrator. 100 South Myrtle
Avenue, Clearwater, Florida 33756-55209. copy to Pamela Akins. City Attorney, 112 South
Osceola Avenue. Clearwater, Florida; and as to the Trustee. SunTrust Bank. Central Florida.
National Association, 225 East Robinson Street, Suite 250, Orlando, Florida. 32801, Attention:
Corporate Trust Department.
ttOutstanding Bonds" means the Outstanding Bonds as defined in the (ndenture.
"Permitted Encumbrances" means the exceptions, restrictions, easements and
encumbrances set forth in Exhibit B hereto.
IIPrime Rate" means that interest rate announced from time to time by the Trustee in its
lending capacity as a bank as its "prime rate" or "base rate. "
"Project Fund" means the Project Fund created by the Indenture.
"Rebate FundI' mcans the Rebate Fund crcaled by the Indenture.
"Required Propeny Insuram.:c Coverage" means (a) insurance insuring the Project Facilities
against loss or damage by fire. lightning, windstorm, vandalism and malicious mischief and all
other perils covered by standard "extended coverage" or "all risks.' policies in the State, business
8
11--1([
"
interruption and against such other perits as the Mortgagee may require, in an amount equal to
100% of the rcplacement cost of the Project Facilities. presently estimated to be
$ without deduction for depreciation, and containing a "rcplacement cost
endorsement" (b) any sinkhole insurancc requircd by Section 3.3 hcreof and (c) any tlood
insurance required by Section 3.3 hereof, all subject only to co-insurance and or deductibles as
are customary in the industry.
..........
l
"Required Public Liability Insurance Coverage" means comprehensive general accident and
public liability insurance in the minimum amounts of [$1.000.000J for death or bodily injury
resulting from each occurrence in connection with the Project site or Project Facilities and other
property and operations of the Mortgagor and [$3,OOQ,OOOJ for property damage for any such
occurrence, with a loss deductible not to exceed [$1,000.]
"Revenues" means all present and future revenues received by or on behal f of the
Mortgagor from whatever sourcc derived. including withoullimitation. all
. (a) cash, accounts, deposits, Entrance Fees. chattel paper, instruments, documents,
money and general intangibles, including without limitation, contract rights and
rights to payment (i) for goods and properties sold or leased or for services
rendered, (ii) under agreements respecting governmental and private insurance
arrangements. and (iii) from any insurance, condemnation award or agreement in
lieu of a condemnation award resulting from eminent domain proceedings.
,"~-')
.........;0..,,'"
(b)
income from. and revenues realized upon the liquidation or sale of, securities held
by or on behalf of the Mortgagor,
(c) proceeds of those items constituting Revenues to which reference is made in clauses
(a) and (b) above, and
(d) gifts, grants, bequests, contributions and donations. including without limitation,
the unrestricted income and profits therefrom,
provided that Revenues do not include
(i) gifts, grants, bequests, contributions and donations to the extent restricted
specifically to a particular purpose inconsistent with their use for the
making of payments into any of the Special Funds,
(ii) the procceds of any borrowing [0 the extent that those proceeds arc required
to be excluded from Revenues by the terms of the borrowing.
(iii) the proceeds of non-recourse Debt secured by and payable solely from
property financed by such non-recourse Debt and all revenues derived from
---J
9
tfj--I}f
:')
'.,
, ;
'-.."
or attributable to property financed with the proceeds of such non.recourse
Debt.
(iv)
revenues derived from Excluded Property, or
ItSeries 1999A Bonds" means the $
Bonds, Series 1999A (BEF. Inc. Project).
City of Clearwater, Florida Revenue
uSeries 1999B Bonds" means the $ City of Clearwater. Florida Rcvenue
Bonds, Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiessM (EXTRASSM).
"Series 1999C Bonds" means the $
Revenue Bonds, Series 1999C (BEF, Inc. Project).
City of Clearwater, Florida Taxable
If Serics 1999 Bonds" means. collectively, the Series 1999A Bonds. the Series 1999B Bonds
and the Series 1999C Bonds.
uSeries 1999 Note" means the non-negotiable promissory note of the Mortgagor in the
aggregate principal amount of $ , of even date with the Series 1999A Bonds, the
Series 1999B Bonds and the Series 1999C Bonds, a copy of which note is attached hereto as
Exhibit ltC," executed and delivered by the Mortgagor to the Issuer and assigned by the Issuer to
the Trustee in connection with the issuance of the Series Bonds.
"Special Funds" means the Special Funds created pursuant to Section 5.01 of the
Indenwre, other than the Rebate Fund.
ItStatelt means the State of Florida.
"Unassigned Rights" means the rights of the Issuer under the Agreement to (a) receive
Additional Payments as contemplated in Section 4.2 of the Agreement; (b) to be held harmless
and indemnified under Section 5.12 of the Agreement; (c) to exercise with the consent, but not
to the exclusion. of the Trustee any remedies which are authorized to be excrcised by the Issuer
under the Agreement in connection with an Event of Default; (d) to be reimbursed, to the extent
permitted by law. for attorney's fecs and expenses under Section 7.4 of the Agreement; and (e)
to execute amendments to the Agreement.
Section 1.3. lntelpretation. Any reference to a section or provision of the Constitution
of the State, or to a section. provision or chapter of the Florida Statutes or Laws of Florida,
includes that section, provision or chaplcr as amended, modified, revised, supplemcnt~d or
superseded from time to time; provided. that no amendment. modification, revision, supplement,
or superseding section, provision or chapter shall be applicable solely by reason.of this provision.
if it cons[itutes in any way an impairment of the rights or obligations of the Issuer, [he Holders.
the Mortgagee, the Trustee or the Mortgagor under thc Indenture, the Bond Resolution. the
~ Bonds, the Agreement, the Notcs, this Mortgage or any other instrument or document entered into
10
99;/f{
.' ,
i.,
,'I ."
f
, ,(:-:.
. '::)~:.I>!J
\: ,
" ..
j. .~
'"
;': .
,
f: .
: . ~
,.-
f ~ .
, '
":"; L. ~
""0
'." . I .
'j,
:'
, .
..i:)
-
..'
'. :. ,;",'.~. ':..' ,'..
in connection with any of the foregoing, including without limitation. any alteration of the
obligation to pay Debt Service Charges, Loan Payments and Additional Payments in the amount
. and manner, at the times,' and from the sources provided in the Bond Resolution and the
Indenture, except as permitted in the Indenture and the Agreement.
. . The tenns "hereof," "hereby," Ithereint It "hereto," tthercunder" and similar terms refer to
this Mortgage; and the term tthereafter" means after, and the term "heretofore" means before, the
date of delivery of this Mortgage. Words of the masculine gender include the feminine and neUler,
and when the sense so indicates words of the n~uter gender may refer to any gender.
. (End 'of Article I)
. ,',
, I
. ,/
J'
. .
I1
f'9;- 1</
en.....
1
ARTICLE II
PRESERV A TION OF SECURITY
Section 2.1. Representations and Warranties. Mortgagor represents and warrants that
(i) it is lawfully seized with good and marketable fee simplc title to the Project Site and has, or
will acquirc upon the acquisition or construction thereof, good title to the other Mortgaged
Property subject only to Pennitted Encumbrances. (ii) it has full right and authority to sell and
convey the Mortgaged Property and (ijj) it will warrant and defend to the Mortgagee such title to
the Mortgaged Property and the lien and interest of the Mortgagee therein and thereon against all
claims and demands whatsoever and will. except as otherwise herein expressly provided. maintain
the priority of the lien of, and the security interest granted by, this Mortgage upon the Mortgaged
Propcrly until it shall be entitled to defeasance as provided herein.
:' "".')'
":',,1
Section 2.2. Recordation. The Mongagor, at its expense, shall cause this Mortgage. any
instruments supplemental hereto, financing statements, including all neccssary amendments,
supplements and appropriate continuation statements to be timely recorded. registered and filed,
and to be kept recorded, registered and' filed, in such manner and in such places as may be
required in order to establish, preserve and protect the lien of this Mortgage as a valid, first
mortgage lien on the Project Site and that portion of the Project Facilities which constitute real
property and interests therein included in the Mortgaged Property and a valid, perfected first
priority security interest in all personal property, fixtures and interests therein included in the
Mortgaged Property (including in each such case. without limitation, any such properties acquired
after the execution hereot). If requested by the Mortgagee but in each case not more than once
in each calendar year, the Mortgagor, at its expense, will furnish to the Mortgagee an opinion of
Independent Counsel, specifying the action required to be taken by the Mortgagor to comply with
this Section 2.2 since the date of this Mortgage or the date of the most recent sllch opinion or
stating that no such action is lIecessary.
i'
I
i'
I
I
Section 2.3. After-Acquired Property. All property of every kind acquired by the
Mortgagor after the date hereof, which by the terms hereof is to be subject to the lien of this
Mortgage, shall immediately upon the acquisition or construction thereof by the Mortgagor, and
without further mongage, conveyance or assignment, become subject to the lien of this Mortgage
as fully as though now owned by the Mortgagor and specifically described herein. Nevertheless.
the Mortgagor shall take such actions and execute and deliver such additional instruments and
opinions of counscl as the Mortgagee shall reasonably require to further evidence or confirm the
subjection to the lien of this Mongage of any such property.
Section 2.4. Liens and Encumbrances. Except as otherwise expressly permitted by this
Mortgage or the Agreement. the Mortgagor shall not, without the prior written consent of the
Trustee. directly or indireclly create or permit to remain. and will promptly discharge. any
mortgage, lien, encumbrance or charge on. pledge of, security interest in or conditional sale or
other title retention agreement with respect to the Mortgaged Property or any part thereof or the
:~ interest of the Mortgagor or the Mortgagee therein or any revenues, income or profit or other
12
l1~/rt
....,.~.. ~-'~"'''''_~_''Ii.''''''''.''''-''''--''''''--__---':_ .. __ ____~____._,_____
/
.....,
.
sums arising from the Mongaged Property or any part thereof (including. without limitation. any
lien. encumbrance or charge arising by operation of law) other than:
(a) the lien of lhis Mortgage;
(b) liens for taxes, assessments and other governmental charges which are not at the
time required to be paid pursuant to Section 3.1 hereof;
(c) liens of mechanics. matcrialment suppliers or vendors or rights thercto to thc extent
permitted by Section 3.2 hereof; and
(d) Permitted Encumbrances.
Section 2.5. Security Agreement and Financing Statement. This Mortgage constitutes
a security agreement as to all or any part of the Mortgaged Property which is of a naturc that a
security interest therein can be perfected under the Uniform Commercial Code of the State. This
Mortgage also constitutes a financing statement with respect to any and all property included in
the Mortgaged Property which is or may become fixtures.
'-.
,.' "1
\....".4r~
Section 2.6. No Claims A2ainst Mort2a2ee. Nothing contained in this Mortgage shall
constitute a request by the Mortgagee, expressed or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the Mortgaged Property
or any part thereof, or be construed to give the Mortgagor any right, power or authority to
contract for or permit the performance of any labor or services or the furnishing of any materials
or other property in such fashion as would provide the basis for any claim either against the
Mortgagee or that any lien. induding, without limitation, liens described in Chapter 713, Florida
Statutes, as amended. based on the performance of such labor or services or thc furnishing of any
such materials or other property is prior to the lien of this Mortgage.
~
Section 2.7. Security for Future Advances. The Agreement and the Indenture permit
the Mortgagee to advance additional sums under certain conditions set forth in the Agreement and
the Indenture. This Mortgage is given to secure not only the existing indebtedness of
$ of the Mortgagor to the Mortgagee evidenced by the Series 1999 Notes and
Agreement secured hereby t but also such future advances up to an additional $
as are made within twenty (20) years from date hereoft plus interest thereon, and any
disbursements made by the Mortgagee for the payment of laxes, insurance or other liens on the
property encumbered by this Mortgage, with interest on such disbursements, which advances shall
be secured hereby to the same extent as if such future advances were made this date. The total
amount of indebtedness secured hereby may incrcase or decrcase from time to time. The
provisions of this paragraph shall not be construed to imply any obligation on Mortgagee to make
any furure advances, it being the intention of the partics that any future advances shall be solely
at thc discretion and option of the Mortgagee. Any reference to "Series 1999 Notes" or
1JAgrecment" in this Mortgage shall be construed to refcrence any future advances made pursuant
to this paragraph.
13
I
1f~/<t
! '
I
:r)
'''')
"
..."'.....,.,
'J
. ........ ~.....~ .....,1- " ~ ,.r rU. ..' ..' . ,
Section 2.8. Hazardous Waste.
(a)
(b)
Mortgagor warrants and represents to Mortgagee after thorough investigation that:
(i) the Mortgaged Property described herein is now and at all times hereafter will
continue to be in full compliance with all federal, state and local environmental
laws and regulations, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 C.CERCLAOI),
Public Law No. 96w510, 94 Stat. 2767, 42 USC 9601 et scq.. and the Superfund
Amendments and Reauthorization Act of 1986 (SARA), Public Law No. 99-499.
100 Stat. 1613, and (ii) (aa) as of the date hereof there are no hazardous materials,
substances, wastes or other environmentally regulated substances (including
without limitation, any materials containing asbestos) located on, in or under the
Mortgaged Property or used in connection therewith, or (bb) Mortgagor has fully
disclosed to Mortgagee in writing thc existence, extent and nature of any such
hazardous matl~rials. substances, wastes or othcr environmentally regulated
substances. which Mortgagor is legally authorized and empowered to maintain on,
in or under the Mortgaged Property or use in connection therewith, and Mortgagor
has obtained and will maintain all licenses, permits and approvals required with
respect thereto, and is in full compliance with all of the terms, conditions and
requirements of such licenses, permits and approvals. Mortgagor further warrants
and represents that it will promptly notify Mortgagee of any changes in the nature
or extent of any hazardous materials, substances or wastes maintained on, in or
under the Mortgaged Property or used in connection therewith. and will transmit
to Mortgagee copies of any citation, orders, notices or other material governmental
or other communication received with respect to any other hazardous materials,
substances, wastes or other environmentally regulated substances affecting the
Mortgaged Property.
Mortgagor hereby agrees to indemnify Mortgagee and its successors and assigns
and hold Mortgagee harmless from and against any and all liabilities, obligations.
charges, losses, damages, injuries, penalties. claims actions, suits, costs of any
settlement or judgment, costs, expenses and disbursements, including without
limitation title insurance costs and premiums, engineers' and professional fees, soil
tests and chemical analysis, court costs, including reasonable legal tees and
expenses through all trial. appellate and administrative levels of whatsoever kind
and nature imposed on, incurred by or'asserted against Mortgagee by any person
or entity or governmental agency for, with respect to, or as a direct or indirect
result of, the presence on or under, or the escape, seepage, leakage. spillage,
discharge, emission, discharging or release from the premises of any Hazardous
Substance (including, without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable attorneys' fees, costs
of any settlement or judgment or claims asserted or arising under CERCLA, any
so called federal, state or local "Superfund" "Superlicn" laws, statutes, law.
ordinance, code. rule, regulation. order or decree regulating with respect to or
14
19--('6
'-,
. "~.....
\
:...J
(e)
, ;
(t)
~
imposing liability, including strict liability substances or standards of conduct
concerning any Hazardous Substance), regardless of whether within the control of
. Mortgagee. The foregoing indemnification shall survive repayment of the Note
and satisfaction or assignment of this Mortgage.
(c)
For purposes of this Mortgage. "Hazardous Substances" shaH mean and include
those elements or compounds which arc contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (EPA)
and the list of toxic pollutants designated by Congress or the EPA or detined by
any other Federal, State or local statute, law. ordinance, code, rule. regulation.
order or decree regulating, relating to. or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material as now
or at any time hereunder in effect and shall include asbestos-containing materials.
(d)
If Mortgagor receives any notice of (i) the happening of any material event
involving the spill, release, leak, seepage, discharge or cleanup of any Hazardous
Substance on the Mortg~ed Property or in connection with Mortgagor's operations
thereon or (ii) any complaint, order, citation or material notice with regard to air
emissions, water discharges, or any other environmental, health or safety matter
affecting Mortgagor (an "Environmental Complaint") from any person or entity
(including without limitation the EP A) then Mortgagor shall immediately notify
Mortgagee' orally and in writing of said notice.
Mortgagee shall have the right. but not the obligation, and without limitation of
Mortgagee's rights under this Mortgage, to enter onto the Mortgaged Property or
to take such other actions as it deem necessary or advisable to cleanup, remove,
resolve or minimize the impact of, or otherwise deal with, any such Hazardous
Substance or Environmental Complaint following receipt of any notice from any
person or entity (including without limitation the EP A) asserting the existence of
any Hazardous Substance or an Environmcntal Complainl pertaining to the
Mortgaged Property or any' part thereof which, if true, could result in an order,
suit or other action against Mortgagor and/or which, in the sole opinion of
Mortgagee, could jeopardize its security ,under this Mortgage. All reasonable costs
and expenses incurred by Mortgagee in the exercise of any such rights shall be
secured by this Mortgage and shall be payable by Mortgagor upon demand.
Mortgagee shall have thc right. in its sole discretion, to require Mortgagor to
periodically (but not more frequently than annually unless an Environmental
Complaint is then outstanding) pertbml (at Mortgagor)s expense) an environmental
audit and, if deemed necessary by Mortgagee. an environmental risk assessment,
each of which must be satisfactory to Mortgagee. of the Mortgaged Property,
hazardous waste management practices and/or hazardous waste disposal sites used
by Mortgagor. Said audit and/or risk assessment must be by an environmental
15
19,-/C(
,',
".Po"". "'\.
,,, "'"
. ~~. ",)
........t....
'-, >
i."
I;
1'.: ".
" ,
,.,
. .' ~ I
: , ' . . . ~
~ . ,
~ ,,'
.- ,
l~ < .
.,'
, '.
...
. l "
I.' 1
'. '- -:.~
:;'I~J
",
"
"
o
:,4
, .
,
l' .
.1 ,,: "'~ ,
consultant satisfactory to Mortgagee. Should Mortgagor fail to perform said
environmental audit or risk assessment within 30 days of the Mortgagee's written
request, Mortgagee shall have the right but not the obligation to retain an
environmental consultant to perform said environmental audit or risk assessment.
All costs and expenses incurred by Mortgagee in the exercise of such rights shull
be secured by this Mortgage and shall be payable by Mortgagor upon demand or
. charged to the Mortgagor's loan balance at the discretion of Mortgagee.
(g) .' Any breach of any warranty, representation or agreement contained in this Section
2.8 shall be an Event of Default hereunder and shall entitle Mortgagee to exercise
any and all remedies provided in this Mortgage, or otherwise permitted by law.
Section 2.9. Inspection. The Mortgagee shall have the right, at all reasonable times, to
enter upon and inspect the Mortgaged Property and to review the books' and records of the
Mortgagor relating to the Mortgaged Property.
(End of Article II)
16
91~ fer,
~~~Lt,:";,"'~-:;~~:':':'::"':"'~:::_"'..:.l,"'~.),,."'J~""'<'H...1....~.....,.' ...
,- .", ,...~;.t'1 ~.."-: , ~':". tL""~U ......u......I....'... ,..
l.. .. .. ~ ~ ~ .".. ,., ,'_ - .
'}
-: ~)
--J
ARTICLE III
TAXES. MECHANICS' LIENS AND INSURANCE
Section 3. I. P~ment of Taxes and Other Governmental Charges. The Mortgagor shall
pay, promptly when due and before penalty or interest accrue thereon, all taxes, assessments,
whether general or special, and other governmental charges of any kind whatsoever, foreseen or
unforeseen. ordinary or extraordinary, that now or may at any time herearter be assessed or levied
against or with respect to the Mortgaged Property or any part thereof (including, without
limitation, any taxes levied upon or with respect to the revenues, income or profits of the
Mortgagor from the Mortgaged Property) which, if not paid, may become or be made a lien on
the Mortgaged Property, or any part thereof, or a charge on such revenues, income or profits.
Notwithstanding the preceding paragraph. the Mortgagor may. at its expense and after
prior notice [0 the Mortgagee, by appropriate proc~edings diligently prosecUled, ,contest in good
faith the validity or amount of any such taxes, assessments or other charges and during the period
of contest, need not pay the items so contested; provided, Mortgagor shall deliver to Mortgagee
an opinion of Independent Counsel to the effect that by nonpayment of any such items, the lien
or security interest created by this Mortgage as to any part of the Mortgaged Property will not be
materially affected and the Mortgaged Property or any part tllereof will not be subject to imminent
loss or forfeiture. During the period when the taxes, assessments or other charges so contested
remain unpaid, tIle Mortgagor shall set aside on its books adequate reserves with respect thereto.
Section 3.2. Mechanics' and Other Liens. The Mortgagor shall not permit any
mechanics. or other liens to be filed or to exist against the Mortgaged Property by reason of work,
labor, services or materials supplied or claimed to have been supplied to, for or in connection with
the Mortgaged Property or to the Mortgagor or anyone holding the Mortgaged Property or any
part thereof, through or under the Mortgagor. If any such lien shall at any time be tiled, the
Mortgagor shall, within thirty days after notice of the filing thereof but subject to the right to
contest as set fonh herein, cause the same to be discharged of record by payment, deposit, bond.
order of a court of competent jurisdiction or otherwise. Notwithstanding the foregoing, the
Mortgagor shall have the right, at iLl) own expense and after prior written notice to the Mortgagee,
by appropriate proceedings duly instituted and diligently prosecuted, to contest in good faith the
validity or the amount of any such lien; provided, Mortgagor shall deliver to Mortgagee an
opinion of Independent Counsel to the effect that by nonpayment of any such items, the lien or
security interests created by this Mortgage will not be materially affected and the Mortgaged
Property or any part thereof will not be subject to imminent loss or forfeiture and, if requested
by the Mortgagee, shall post adequate bond or other acceptable collateral to secure payment of all
such amounts. including penalties and interest.
Section 3.3. Insurance. The Mortgagor shall keep the Project Facililies continuously
insured with Required Property Insurance Coverage. For purposes of establishing the amount of
the Required Property Insurance Coverage. "replacement COSllI of the Project Facilities shall be
17
91- Ie;(
"'"'')
determined not less frcqucntly than at three year intcrvals by an Engineer or a competent
appraiser. appraisal company or one of the insurers, in each instance, acceptable to the Trustee.
During any period during which any building, structurc or improvcment is under
construction, in lieu of the insurance provided for above, the Mortgagor shall maintain or cause
to be maintained, with respect to such building. structure or improvement. builders' risk insurance
(non-reporting fonn) with coverages and in an amount, detcrmined to be appropriate by an
insurance consultant acceptable to the Trustee.
If the Project Site is located in an area which is prone to the development of sinkholes, and
if sinkhole insurance on the Project Site is available at reasonable cost. the Trustee shall require
the Mongagor to maintain or cause to be maintained sinkhole insurance on the Project Site in an
amount detennined to be appropriate by an insurance consultant acccptable to the Trustee.
If the Project Site is located in an area that has been idenlilied by the United Statcs
Department of Housing and Urban Development as an area having special flood hazards and if
the sale of flood insurance has been made available under the National Flood Insurance Act of
1968, the Trustee shall require the Mortgagor to maintain or cause to be maintained flood
insurance in an amount at least equal to the lesser of (i) the replacement cost of the Project
Facilities or (ii) the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968. or (iii) some lesser amount
dctcnnined by an insurance consultant acceptable to the Trustee.
"-
)
"
The Mongagor shall keep and mainlain Required Public Liability Insurance Coverage with
reference to the Project Site and the Project Facilities provided that the Required Public Liability
Insurance Coverage shall be increased to such larger amounts as shall be dctcnnincd by an
insurance consultant acceptable to the Trustee to be appropriate in light of inflationary increases,
the operations conducted by the Mortgagor and the insurance coverage carried by other entities
conducting similar operations.
All insurance shall be obtained and maintained either by mcans of policies with generally
recognized. responsible insurance companies or in conjunction with other companies through an
insurance trust or other arrangements satisfactory to an insurance consultant acceptable to the
Trustee, and all such companies are to be qualified to do business in the State. The insurance to
be provided may be by blanket policies. Each policy of insurance shall be written so as not to be
subject to cancellation or substantial modification upon less than thirty (30) days' advance written
notice to the Trustee or such shortcr period of notice as shall be satisfactory to the Trustee. The
Mortgagor shaH deposit with the Trustee cenificates or other evidence, satisfactory to the Trustee.
that (i) the insurance requircd hereby has been obtained and is in full force and effect and (ii) all '
premiums thereon have becn paid in full. Prior to the expiration of any such insurance, the
Mongagor shall fumish the Trustce with evidence satisfactory to the Trustee that such insurance
has been renewed or replaced and that all premiums thcreon have been paid in full and all
insUrance policies required hereby are in full forcc and effect. The Morlgagor shall file with the
(.)
18
91-/1
i '.
.Q
. "'J.~..
".
I. .
;..
.~
,:',-
'0
"
I
Trustee a copy of any claim in excess of [$100.000] it may make under the Required Property
Insurance Coverage.
AII' policies providing the Required Property Insurance Coverage shall contain standard
mo'rtgagee clauses requiring all proceeds resulting from any claim for loss or damage in excess
of [$100,000] to be paid to the Trustee. Any Net Proceeds of insurance providing such coverage
shall be paid and applied as provided in Section 5.2 hereof. Any proceeds of policies providing
Required Public Liability Insurance Coverage shall be applied toward the extinguishment or
satisfaction of the liability with respect to which such insurance proceeds have been paid.
Section 3.4. Workers' Compensation Coverage. The Mongagor shall maintain or cause
to be maintained in connection with the Mortgaged Property workers' compensation coverage
required by the applicable laws of the State.
Section 3.5. Title Insurance, The Mongagor shall provide the' Mortgagee Wilh a standard
Mortgagee's Title Insurance Policy in the amount of $ containing only such exceptions
as constitute Permitted Encumbrances.
(End of Article Ill)
19
99-- 10t
. ,
'~_~~~~~~.........":'~:"....":-'''''''' .....;;....,~'..1.-'! ,,,,,,...
.,,' .\ ,~,,"". , ~"... '. .
-.-.---.---
-I
.~)
f........~.
, ,
I
, I
....--.,...,
~
ARTICLE IV
MAINTENANCE AND USE OF MORTGAGED PROPERTY
Section 4.1. Compliance with Legal and Insurance ReQuircments. The Mortgagor, at
its expense, shall promptly comply with all Legal RequirementS and Insurance Requirements, and
shall procure, maintain and comply with all permits, licenses and other authorizations required
for any use of the Project Site or Project Facilities or any part thereof then being made or
anticipated to be made. and for the proper construction. installation. operation and maintenance
of the Mortgaged Property or any part thereof. and will comply with any instruments of record
at the time in force burdcning the Morlgagcd Property or any part thereof. As used in lhis
Section, "Legal Requirements" means all laws. statutes. codes. acts, ordinances, resolutions,
orders, judgments, decrees. injunctions, rules, regulations. permits, licenses. authorizations.
directions and requirements of aU govcrnmental entities. departments. commissions, boards.
courts, authorities, agencies, officials and officers, foreseen or unforeseen, ordinary or
~xtraordinary, which now or at any time hereafter may be applicable to the Project Site or Project
Facilities or any part thereof, any use, anticipated use or condition of the Project Site or Project
Facilities or any part thereof. including, without limitation. Chapter 713. Florida Statutes.
"Insurance Requirements" means all provisions of any insurance policy covering or applicable to
the Project Site or Project Facilities or any part thereof, all requirements of the issuer of any such
policy, and all orders. rules. regulations and other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) applicable to or affecting the
Mortgaged Property or any pan thereof. The Mortgagor may. at its expense and afu:r prior notice
to the Mortgagee, by any appropriate proceedings diligently prosecuted. contest in good faith any
Legal Requirement and postpone compliance therewith pending the resolution or settlement of
such contest provided that such postponement does not, in the opinion of Independent Counsel,
materially affect the lien or security interests created by this Mortgage as to any part of the
Mortgaged Property or subject the Mortgaged Property, or any part thereof, to imminent loss or
forfeiture.
Section 4.2. Maintenance and Use of Mortl:aeed Pro~. The Mortgagor, at its
expense, will keep or cause to be kept the Project Site and Project Facilities in good order and
condition (ordinary wear and tear excepted) and wilt make all necessary or appropriate repairs,
rcplacements and rencwals thereof. interior, exterior. structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen. The Mortgagor will not do. or permit to be done, any
act or thing which might materially impair the value or usefulness of the Project Site or Project
Facilities or any part thcreof. will not commit or permit any materiaJ waste of the Project Site or
Project Facilities or any part thereof. and will not permh any unlawful occupation. busincss or
trade to be conducted on the Project Site or Project Facilities or any p3rl thereof. The Mortgagor
shall also, at its expense. promptly comply with all rights of way or use. privileges. franchises,
servitudes, licenses, easements, tenements. hcrediwments and appurtenances forming a part of the
Project Site and all instruments creating or evidencing the same, in each case. to the eXlellt
compliance therewith is required of the Mortgagor under the terms thereof.
20
crt; -/<6
.~
Section 4.3. Additions. Modifications and Improvements. The Mortgagor may, in its
discretion and at its expense. make from time to time any additions, modifications or
improvements to the Project Site or Project Facilities which it may deem dcsirable for its business
purposes provided thal the Trustee shaH tirst have rCl.:cived a report from an Engincer staling that
such additions, modifications or improvements will not, in the opinion of such Engineer.
adversely affect the structural integrity or strength of any improvements constituting a part of the
Project Site or Project Facilities or materially interfere with the use and operation, value or
marketability thereof. All additions. modifications and improvements so made by the Mortgagor
shall become or be deemed to constitute a part of the Mortgaged Property, except as may be
provided herein.
Section 4.4. Substitutions and Removals. In any instancc where the Mortgagor. in its
reasonable discretion, determines that any'fixture or item of personal property constituting a part
of the Projcct Facilities shaH have become inadequate. obsolete. worn-out. unsuitable. undesirable
or unnecessary or should be replaced, the Mortgagor may remove slIch items provided that such
removal (taking into account any substitutions) shall not impair the operating unity of the Project
Site or Project Facilities and providing that the Mortgagor shall:
(a)
substitute and install as part of the Project Facilities property of equal or greater
utility and value (but not necessarily fulfilling the same function) as the removed
property, which such substituted property shall be free from 'all liens and
cncumbrances (other than Penniued Encumbrances) and shall become part of the
Project Site or Project Facilities; or
'.,~)
(b) in the case of removal of any Project Facilities from the Project Site without
substitution. 'promptly pay to the Trustee for application as provided in Section 4.6
of the Agreement an amount equal to (i) if the removed property is sold or
scrapped, the proceeds of such sale or the scrap value thereof, (ii) if the removed
property is used as a trade-in for property not to be used at the Project Site as part
of the Project Facilities, the trade-in credit received by the Mortgagor or (iii) in the
case of the retention of such removed property by the Mortgagor for other
purposes, the fair market value of such property, as determined by an Engineer or
appraiser acceptable to the Trustee.
If, prior to any such removal, the Mortgagor shall have acquired with its own funds
personal property which is located on the Project Site and which has become or shall, by an
amendment hereto, be made a part of the Project Facilities. the Mortgagor may take credit to the
extent of the mnount so spent by them against the requirement that they either substitute other
property or make payment under this Section on account of such removal, provided that such
previously acquired and installed property meets the requirements for substituted property under
Section 4.4(a) hereof.
o
The Mortgagor shall promptly report to the Mortgagee each such removal, substitution,
sale or other disposition and shall pay to the Trustee such amounts as are required by the
21
19 -/C6
__"l"~~~~~~_---..-.....__-...........-.-_~._ _____ ,.
/)
. -"
J
'.~. "
~.J
---- ---~-~------
------- ~- ---- ----- - -----------
provisions of the pn..-ceding subsection (b) of this Section promptly after thc sale, trade-in or other
disposition requiring such payment; provided, however. that no such payment need be made until
the amount to be paid to the Trustee on account of all such sales. trade-ins or other dispositions
not previously paid aggregates to at least l$100,OOOJ in the calendar year.
At the request of the Trustee, the Mortgagor shall deliver to the Mortgagce such
instruments, including financing statements and amendments thereto, as may be necessary or
advisable to perfect the Mortgagee's lien upon and security interest in any personal property
installed in substitution for any property removL."d pursuant to this SI.'Ction; the Trustee may require
the Mortgagor to provide, at the expense of the Mortgagor, an opinion of counsel as to the
perfection of the Mortgagl.."e's lien and security interest. Upon the rcqucst of the Mortgagor. the
Trustee shaH execute and deliver to the Mortgagor appropriale instruments releasing any property
removed pursuant to this Section from the liens and security intcrests hereunder.
Section 4.5. Ind~mnitication. The Mongagor shall protect, indemnify and save harmless
the Mortgagee from and against all liabilities, obligations, claims, damages, penalties, causes of
, action, costs and expenses (including, without limitation. reasonable attorneys' fees and expenses
except as may be limited by law or judicial order or decision entered in any action brought to
recover moneys under this Section) imposed upon, incurred by or asserted against the Mortgagee
by reason of (a) ownership of any interest in the Mortgaged Propeny or any part thereof, (b) any
accident. injury to or death of persons or loss of or damage to property occurring on or about the
Project Site or any part thereof or the adjoining sidewalks, curbs. vaults and vault space, if any,
streets or ways, (c) any use. disuse or condition of the Project Sitc or Project Facilities or any part
thereof. or the adjoining sidewalks. curbs. vaults and vault space, if any, streets or ways, Cd) any
failure on the part of the Mortgagor to perfonn or comply with any of the terms hereof. (e) any
necessity to defend any of the rights, title or interests conveyed by this Mortgage, (t) the
performance of any labor or services or the furnishing of any materials or other property in respect
of the Project Site or Project Facilities or any part thereof or (g) any lease or contract relating to
the Project Site. the Project Facilities, or any part thereof. In case any action, suit or proceeding
is brought against the Mortgagee for any such reason, the Mortgagor, upon the request of the
Mortgagee, will at the Mortgagor's expense. cause such action, suit or proceeding to be resisted
and defended by Independent Counsel. Any amounts payable to the Mortgagee under this Section
which are not paid within ten (10) days after written demand therefor shaH bear interest at the
Interest Rate for Advances from the date of such demand, and such amounts, together with such
interest, shall be considered a future advance hereunder and indebtedness secured by this
Mortgage. The obligations of the Mortgagor under this Section shall survive any defeasance of
the Bonds, any discharge of the Indenture. any termination of the Agreement or any satisfaction
of this Mortgage.
(End of Article IV)
22
19-18>
J
ARTICLE V
DAMAGE. DESTRUCTION AND CONDEMNATION
Section 5.1. Dama~e to or Destruction of Project Facilities. In case of any damage to
or destruction of the Project Site or Project Facilities or any part thereof, the Mortgagor will
promptly give or cause to be given written notice thereof to the Mortgagee generally describing
the nature and extent of such damage or destruction. Unless in lieu thereof all Outstanding Bonds
are to be redeemed pursuant to the Agreement, the Mortgagor shall. whether or not the Net
Proceeds of insurance. if any, received on account of such damage or destruction shall be
sufficient for such purpose, promptly commence and complete. or cause to be commenced and
completed. the repair or restoration of the Project Site or Project Facilities as nearly as practicable
to the value. condition and character thereof existing immediately prior (0 such damage or
destruction, with such changes or alterations, however, as the Mortgagor may deem necessary for
the proper conduct of its business 'activities conducted on the Project Site.
--'\
--j
Section 5.2. Jjse oflnsurance Proceed~. In connection with the repair or restoration of
the Project Site or Project Facilities pursuant to Section 5.1 hereof. Net Proceeds of Required
Property Insurance Coverage not in excess of [$100,000] shalJ b;.; paid to the Mortgagor for
application of as much as may be necessary for such repair and restoration. Any such Net
Proceeds in excess of [$100,000] shall be paid to and held by the Trustee in a separate insurance
loss account within the Project Fund, for application of as much as may be necessary of the Net
Proceeds to the payment of the costs of repair or restoration. either on completion thereof or as
the work progresses, as directed by the Mortgagor. The Mortgagee may, prior to making
payment from such Joss account, require the Mortgagor to provide evidence that, or deposit with
the Trustee moneys to be placed in such account so that, there will be adequate moneys available
for such repair and restoration, including a contingency reserve satisfactory to the Mortgagee.
The Trustee shall not be obligated to make any payment from such account if there exists any
Event of Default hereunder. Any balance of the Net Proceeds (together with any investment
income therefrom) held by the Trustee remaining after payment of all costs of such repair or
restoration shall be paid to the Trustee for deposit into the Bond Fund for application as provided
in the Agreement.
.~
As a condition to approval of any repair or restoration of the Project Facilities and the
release of any Net Proceeds in excess of [$IQO.OOOJ held by the Trustee for such purpose. the
Mortgagee may, at the Mortgagor! s expense, obtain the services of a construction consultant or
consultants to advise the Mortgagee as to the adequacy of the plans and specifications, as-built
value and utility of the proposed work. adequacy of funds available for such work and such other
matters as the Trustee may require. The right of the Mongagor to repair or restore the Project
Facilities shall be subjet:t to such terms and conditions as the Mortgagee or its construction
consullants may reasonably impose. Without limiting the generality of the foregoing, the
Mortgagee and its construction consultants shall have the right to approve all plans and
specifications, contractors. subcontractors, architects, engineers and suppliers and all construction
contracts (including retaining provisions) and may require a fixed price contract and/or payment
23
19-/~
.~
and performance bonds as deemed necessary or desirable by the Mortgagee or its construction
consultants. The Mortgagee and. its construction consultants shall be entitled to such
documentation. opinions, appraisals and other protections and assurances as may be customarily
required by construction lenders or as they may otherwise reasonably require.
Failure by the Mortgagor to fully satisfy all conditions and requirements for the rcpair or
restoration of the Project Facilities within six months after occurrence of the casualty giving rise
to the need therefor shall constitute an Event of Default hereunder.
If, in lieu of repair or restoration. all Outstanding Bonds are to be redeemed pursuant to
the Agreement, an amount equal to any Net Proceeds received by the Trustee prior to such
prepayment shall (together with any investment income therefrom) be credited against the amount
payable by rhe Mortgagor pursuant to the Agreement to effect such redemption. '
Section 5.3. Eminent Domain. If title to or the tcmporary use of the Projecl Sile or any
. part thereof, shall be taken under the exercise of the power of eminent domain by any
governmental body or by any person, firm or corporation acting under governmental authority,
the Mortgagor will promptly give written notice thcreof to the Mortgagee describing the nature
and extent of such taking. Any Net Proceeds received from any award made in such eminent
domain proceedings (or from any sale made by the Mongagor and Trustee jointly under threat
of condemnation) shall, if received prior to the release and discharge of this Mortgage, be paid
to and held by the Trustee in a separate condemnation award account for application to one or
,.:.~) more of the following purposes:
(a) The moditication of th~ Project Site and Project Facilities so that the Mortgagor
may be able to conduct its busin~ss activities at the Project Site as nearly as
practicable to the same manner as cxisted immediately prior to the exercise of the
power of eminent domain with such changes or alterations, howevert as the
Mortgagor may deem necessary for proper operation of said activities.
(b) The acquisition of additional land which shall be made a pan of the Project Site or
construction of other improvemcnts suitable for the Mortgagor's operations on the
Project Site (which improvements shall be made a part of the Project Facilities);
provided. that such land and improvements shall be subject to no liens or
encumbrances (other than thc Iicn hereof and Permitted Encumbrances).
(c) Payment into the Bond Fund to l~ uSt'<l for the rL>dernption of Bonds, in the manner
and to the extcm permitted by the Indenture.
,~
Within ninety days from the dalc of clllry of a tlnal order in any cminent domain proceeding (or
any sale under threat of (.:'ondemnation). the Mortgagor sh:11l advise the Mongagee in writing as
to which purpose or combination of purposcs ahove specified the Net Proceeds of the
condemnation award or sale (together with any invcstment income therefrom) shall be applied.
Any balance of the Net Proceeds (togethcr with any investment income therefrom) not required
24
Cjtf- / ~
.---...._~t_....~
I
I .
I
'J
. I '. -or ~
! '
!>"
i,
i' .
i.
,
,
j, ~ .
I:
I. .
i
l'. .
"
i, . )
I .~-
,
::J
for the purpose or purposes so directed shall be applied by the Trustee as provided in Scction 4.6
of the Agreement. .
Application of Net Proceeds of condemnation for the acquisition and/or rcslOfmion of
Project Facilities shall be subject to the same terms and conditions as repair or rcstoration of
Project Facilities following a casualty, as set forth in Section 5.2 hereof.
Section 5.4. Investment and Disbursement of Net Proceeds. All moneys received by thc
Trustee or its designee constituting Net Proceeds shall. pending application, be invested at the
direction of the Mortgagor (tor the account of and at the risk of the Mortgagor) and shalJ (lOgclher
with any investment income therefrom) be disbursed, to the extent to be uscd for rcpair.
rebuilding, restoration, acquisition or construction, as provided herein and in the Agrccmcnt and
the Indenture for the investment and disbursement of moneys in the Project Fund and. to the
extent held in the Bond Fund for the redemption of Bonds. as provided in the Agrecment and
Indenture for the investment and disbursement of moneys in the Bond Fund. Any balance of Net
Proceeds (together with any investment income therefrom) held by the Trustee or its designee
upon the release and satisfaction of this Mortgage pursuant to Section 7.3 hereof, or any Net
Proceeds thereafter received by the Trustee shall, to the extent not retained by the Trustee to pay
amounts then due or to become due under the Agreement or the Indenture (including amounts
needed to pay fees and expenses of the Trustee, Paying Agent, Registrar and Authcnticating
Agent, amounts due the Issuer with respect to the Issuer's Unassigned Rights and amounts
required to be deposited in the Rebate Fund) be paid to the Mortgagor.
(End of Article V)
25
91,If{
~~~~~"'t ~ "-~h""=' ~--................"':'_...'.. 't.__ ..._ ~. ...,....\ ""I... .,1'"
ARTICLE VI
'J
REMEDIES
Section 6.1. Ri.eht to Perform Covenants. If the Mortgagor fails to make any payment
or perform any act required to be made or performed hereunder (including. without limitation,
the payments described in Article III hereot) or under the Agreement or the Notes, the Mortgagce
without demand upon the Mortgagor and without waiving or rcleasing any obligation or default.
may (but shall be under no obligation to) make such payment or pertorm such act for the account
and at the expense of the Mortgagor and may enter upon the Mortgaged Property or any part
thereof tor such purpose and take all such action thereon as. in its opinion. may be necessary or
appropriate therefor. All advances for payments so made by the Mortgagee and all advances tor
costs, tees and expenses (including. without limitation, reasonable attorneys' fees and expenses)
incurred in connection therewith or in connection with [he performance by the Mortgagee of any
such act, together with interest thereon at the Interest Rate tor Advances from the date of payment
or incurrence, shall. to the extent permitted by law, be additional indebtedness secured by this
Mortgage, and shall be paid by the Mortgagor to the Mortgagee on demand. . In any action
brought to collect such indebtedness, or to foreclose this Mortgage, the Mortgagee shall be entitled
to the recovery of the reasonable legal fees and expenses and costs incurred by Mortgagee in such
action, including fees and expenses on appeal or in insolvency proceedings.
Section 6.2. Events of Default. Anyone or more of the following events shall be an
'.:) Event of Default under this Mortgage:
(a) Failure by the Mortgagor to pay when due any installment of principal, interest or
premium under the Notes.
(b) An Event of Default as defined in Section 7.1 of the Agreement.
(c) Failure by the Mortgagor to pay to the Mortgagee (within 10 days of receipt of
notice of the Mortgagee of the sum owing) any amounts due under Section 6. 1
hereof.
(d) Failure by the Mortgagor to observe or perform any term, covenant or agreement
on the Mortgagor's part to be observed or performed under this Mortgage, and
continuation of such failure for 30 days after written notice thereof shall have been
given to the Mortgagor by the Mortgagee, or for such longer period as the
Mortgagee may agree to in writing; provided that if the failure is other than [he
payment of money and is of such nature that it cannot be correcled within the
applicable period, such failure shall not constitute an Event of Default so long as
the Mortgagor institutes curative action and diligently pursues such action 10
completion unless, in the reasonable judgment of the Mortgagee, such failure
would materially impair the value or marketability or title to the Mortgaged
Property or Mortgagor's business or operations.
J
26
~'1-lt
J
')
(c) The Mortgagor shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) have an order for relief entered in any case commenced by or against it
under the federal bankruptcy laws, as now or hereafter in effect;
, ,
I
! (iv)
I
I
i (v)
I
(iii) commence a proceeding under any other federal or state bankruptcy.
insolvency. reorganization or similar law, or have such a proceeding
commenced against them and either have an order of insolvency or
reorganization entered against them or have the proceeding remain
undismissed and unstayed for ninety days;
make an assignment for the benefit of creditors; or
have a receiver or trustee appointed for them or for the whole or any
substantial part of its property.
I~)
J ,
Notwithstanding the foregoing, if, by reason of Force Majeure, the Mortgagor is unable
to perform or observe any agreement. term or condition hereof. other than any obligation to make
payments required hereunder, the Mortgagor shall not be deemed in default during the continuance
of such inability. However, the Mortgagor shall promptly give notice to the Trustee of the
existence of an event of Force Majeure and shall use its best efforts to remove the eftects thereof;
provided that the settlement of strikes or other labor disturbances shall be entirely within its
discretion.
. The term Force Majeure shall mean, without limitation, the following:
(i) strikes or other labor disturbances; acts of public enemies; orders or
restraints of any kind of the government of the United States of America or
of the State or any of their departments, agencies, political subdivisions or
officials~ or any civil or military authority; insurrections; civil disturbances;
riots; epidemics, landslides; lightning; earthquakes; tires; hurricanes;
tornados; stonns; droughts; floods and other natural disasters; explosions;
breakage, malfunction or accident to facilities, machinery, transmission
lines or pipes; partial or entire failure of utilities; shortages of labor,
materials, supplies or transportation; or
(ii) any cause, circumstance or event not reasonably within the cOnlrol of the
Mortgagor.
Section 6.3. Remedies. If an Event of Default shall have occurred and be continuing,
the Mortgagee, at any time, at its election. may exercise any or all or any combination of the
, remedies conferred upon or reserved to it under this Mortgage, the Agreement, the Notes or any
,....)
27
99-lt
.~
instrument collateral thereto. or now or hereafter existing at law. in equity or by statute. Without
limitation, the Mortgagee may (a) declare the entire unpaid principal balance of the indebtedness
secured hereby immediately due and payable, without notice or demand. the same being expressly
waived by the Mortgagor; (b) proceed at law or in equity to collect all indebtedness secured by
this Mortgage due hereunder, whether at maturity or by acceleration; (c) foreclose the lien of this
Mortgage as against all or any part of the Mortgaged Property; and (d) exercise any rights, powers
and remedies it may have as a secured party under the Uniform Commercial Code of the State,
or other similar laws in effect including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with the Mortgageets rights with respect to real
property. Any moneys received by the Mortgagee pursuant to the exercise of remedies provided
in this Mortgage or by law shall be applied as provided in Section 7.06 of the Indenture.
Section 6.4. Waiver of Appraisement: Valuation. The Mortgagor does hereby waive to
the full extent it may lawfully do so, the benefit of all appraisement, valuation, stay and extension
laws now or hereatier in force and all rights of marshaling of assets in the event of any sale of the
Mortgaged Property, any part thereof or any interest therein and any court having jUrisdiction to
foreclose the lien hereof may sell the Mortgaged Property in part or as an entirety.
.-.
')
, /
Section 6.5. t\ppointment of Receiver. If an Event of Default shaH have occurred and
be continuing, the Mortgagee shall, as a matter of right and to the extent permitted by applicable
law and without regard to the adequacy of the Mortgaged Property as security, be entitled to the
appointment of a receiver for aU or any part of the Mortgaged Property. whether such receivership
is incidental to a proposed sale of the Mortgaged Property or otherwise. and the Mortgagor hereby
consents to the appointment of such a receiver and covenants not to oppose any such appointment.
Section 6.6. Possession. Manae:emem and Income: Assi2nment: Application of Moneys
Received. If an Event of Default shall have occurred and be continuing. the Mortgagee, to the
extent permitted under applicable law, ex parte and without notice may notify all lessees and
account debtors to make payment directly to the Mortgagee or its agents and may retain such
amounts for application to the indebtedness secured hereby and enter upon and take possession of
the Mortgaged Property or any part thereof by force, summary proceedings, ejectment or
otherwise, and may remove the Mortgagor and all other persons and any and all property
therefrom and may hold, operate and manage the same and receive all revenues, income or profits
accruing with respect thereto or any part thereof. The Mortgagee shall be under no liability for
or by reason of any such taking of possession, entry, removal, holding, operation or management.
All amounts received by the Trustee pursuant to this Article shall be applied as provided in the
Indenture.
'~
Section 6.7. Remedies Cumulative. Each right. power and remedy of the Mortgagee,
provided for in this Mortgage. in the Agreement. in the Notes or now or hereafter existing at law
or in equity or by stature or otherwise. shall be cumulativc and concurreru and shall be in addition
to every other right, power or remedy provided for in this Mortgage, in the Agreement, in the
Notes or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise
or beginning of the exercise or partial exercise by the Mortgagee of anyone or more of such
28
99-/~
~)
<.......
,
I
I
I
I,
I
"
.
.~)
\......... .
0,
"
rights, powers or remedies shall not preclude the simultaneous or later exercise by the Mortgagee
of any or all such other rights. powers or remedies.
. Section 6.8. Provisions Subject to Applicable Law. All rights, powers and remedies
provided herein may be exercised only to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent necessary so that they will not render
this Mortgage invalid, unenforceable or not entitled to be recorded, registered or filed under any
applicable law.
Section 6.9. I':iQWaiver by Mortga2ee. No failure by the Mortgagee to insist upon the
strict perfonnance of any term hereof or to exercise any right, power or remedy consequent upon
a breach thereof shall constitute a waiver of any such tenn or of any such breach. No waiver of
any breach shall affect or alter this Mortgage, which shall continue in full force and effect with
respect to any other then existing or subsequent breach.
. ,
Section 6.10. Discontinuance of Proceedines and Restoration of Status QUQ. 1n case the
Mortgagee shall have proceede;d to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned
, for any reason, or shall have been detennined adversely to the Mortgagee, then and in every case
the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder.
and all rights, powers and remedies of the Mortgagee shall continue as if no such proceeding had
been taken.
(End of Article VI)
29
19-1'6
~L
ARTICLE VII
~
MISCELLANEOUS
Section 7.1. Additional Security-. Without notice to or consent of the Mortgagor and
without impairment of the lien and rights created by this Mortgage, the Mortgagee may accept
from the Mortgagor or from any other person or persons, additional security for the indebtedness
secured by this Mortgage. Neither the giving of this Mortgage nor the acceptance of any such
additional SL'Curity shall prevent the Mortgagee from resorting, tirst, to such additional security,
or first, to the security created by this Mortgage, in either case without affecting the lien hereof
and the rights conferred hereunder.
,~,,)
Section 7.2. Release of Mortgaged Property and Easements. At the request of the
Mortgagor, the Mortgagee may, at any time and from time to time, in its sole discretion. consent
to, join in or permit a release of any part of the Mortgaged Property or the granting of any
easements, licenses, party wall rights and rights of lateral support with respect to the Project Site
or the Project Facilities. As a condition to the granting of such release, the Mortgagor will
deposit any money received by the Mortgagor with respect to the released Mortgaged Property
in the Bond Fund or in escrow for the payment of the Bonds. Such a release shaH be pennitted
only if the Mortgagee shall have determined that any of the foregoing is not prejudicial to the
Holders of the Bonds and does not impair the value or marketability of the Mortgaged Property
(taking into account any amounts to be deposited in the Bond Fund or held in escrow, as
aforesaid). as security under this Mortgage. None of the foregoing shall impair in any manner
the validity. or except as spedtically provided therein the priority of this Mortgage.
Section 7.3. Expen~s. The Mortgagor will, to the extent permitted by law, immediately
upon demand payor reimburse the Mongagee for all auorneys' fees, costs and expenses incurred
by the Mortgagee hi any proceedings involving an insolvent or a debtor under federal bankruptcy
law, or in any action, proceeding or dispute of any kind in which the Mortgagee is made a party,
or appears as an intervenor or party plaintiff or defendant, affecting or relating to the Series 1999
Notes or any other NOleS secured hereby, this Mortgage or the Agreement, the Mortgagor or any
of the Mortgaged Property, including, but not limited to, the foreclosure of this Mortgage, any
condemnation action involving the Mortgaged Property, or any action to protect the security
hereof, and any such amounts paid by the Mortgagee shall be added to the indebtedness secured
hereby and secured by the lien and security interest of this Mortgage and shall bear interest at the
Interest Rate for Advances.
,
'..~
Section 7.4. Books. Reconls and Accounts. The Mortgagor will keep and maintain or
will cause to be kept and maintained proper and accurate books, records and accounts reflecting
all items of income and cxpense in conncction with the opcration of the Mortgaged Property or
in connection with any services. equipment or furnishings provided in connection with the
operation of the Mortgaged Property, whether such income or expenses be realized by the
Mortgagor or by any other person or entity whatsoever cxcepting sublessors unrelated to and
unaffiliated with the Mortgagor and who leased from the Mortgagor portions of the Mortgaged
30
f9-lr
tl
Property for the purposes of occupying same. Thc Mortgagee and ils dcsignee shall have the right
from timc to time at all times during normal busincss hours to examine such books. records and
accounts at the office of the Mortgagor or other person or entity maintaining such books. records
and accounts and to make copies or extracts thereof as the Mortgagee shall desire.
Section 7.5. Estoppel Affidavits. The Mortgagor. within ten days after written request
from the Mortgagee, shall furnish a written statement, duly acknowledged. setting forth the unpaid
principal of and interest on the indebtedness secured hereby and whether or not any offsets or
defenses exist against such principal and interest.
Section 7.6. Subrollation. The Mongagee shall be subrogated to the claims and liens of
all parties whose claims or liens are discharged or paid by the Mortgagor with the proceeds of the
indebtedness secured hereby.
Section 7.7. No Merger. It being the desire and intention of the parties hereto that this
Mortgage and the lien thereof do not merge in fee simple title to the Mortgaged Property, it is
hereby understood and agreed that should the Mortgagee acquire any additional or other interests
in or to the Mortgaged Property or the ownership thereof, then. unless a contrary intent is
manifested by the Mortgagee as evidenced by an appropriate document duly recorded, this
Mortgage and the lien thereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
<:)
Section 7.8. General Provisions. This Mortgage shall be deemed to be made under the
laws of thc State and for all purposes shall be governed by and construed in accordance with the
laws of the State and shall inure to the benetit of and be binding upon the Mortgagor, the
Mortgagee and their respective pennitted successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid. illegal or unenforceable, the validity of the remaining
provisions hereof shall in no way be affected thereby. The captions or headings herein shall be
solely for convenience.
Section 7.9. Amendments. Chan2es and Moditications. Except as otherwise provided
herein. this Mortgage may not be effectively amended. changed. modified. altered or terminated
without the prior written consent of the Mortgagee and the Trustee.
In the event of the issuance of Additional Bonds, this Mortgage may not be effectively
cancelled, changed, modified or altered without written title evidence that the Trustee. as holder
of the Mortgage and of any amendments or supplements thereto relating to those Additional
Bonds, will have a valid. direct first mortgage upon the Mortgaged Property constituting real
property subject only to (i) taxes and assessments which are not delinquent, and (ii) liens and
encumbrances permitted by the terms and provisions of this Mortgage. as so supplemented or
amended. The title evidence shall consist of an American Land Title Association form of loan
policy of title insurance. or a commitmcm therefor, in usual and customary form in a face amount
acceptable to the Trustee. The policy or lhe commitment therefore shall be issued by a title
. '1
\.~
31
'If,- /~
......~~~..~----.....-........_-_.~.:
I :.
, .
,t""r
,~
'"
""0
, .
. .~.......
..:<.)
. .J
..M....................~........--. "'..,
_ ~....-- .lII.
company authorized to transact business in the State. selected by the Mortgagor and approved by
the Mortgagee.
Section 7. I 1. Disposi tio(1. Except as permi ued by and subject to the provisions of the
Agreement and Sections 3.1,3.2.4.3,4.4.. 5.1,5.2,5.3,5.4 and 7.2 hereof, the Mortgagor
shall not sell, transfer, convey, lease or encumber (except Permitted Encumbrances) the
Mortgaged Property without the prior written consent of Mortgagee.
Section 7.11. Issuer's Rieht of Purch~. Notwithstanding the foregoing, the Mortgagee.
during any period the Series 1999 Bonds are Outstanding, shall, have the right. but not the'
. obligation. to purchase the Cove Building following an Event of Default hereunder by paying the
Outstanding principal amount of the Series 1999 Bonds. In either such event. prior to such
purchase the Issuer shall deliver written notice of its election to purchase the Cove Building.
Upon such purchase this Mortgage shall terminate as to the purchased property and the
'Mortgagee shall take such steps as may be required or permitted to remove the lien of this
Mortgage from such property.
(End of Article VII)
32
99~!gr
"." " ~. .. L .;.' . '.< _1.'.. . ._, ~ . . .
'." .... , .' /:, r ',. ... ,".1 'r' -.. ' .~. .. '.> <", ":\.....; '.. ,..;: .. ' :.~! _.: .. ." 1
. .' . ".'
'.i c,
.,'.' , .
().
I
-"
j
.....~... ~
-, :..J
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage as of the date
hereof. .
Signed and acknowledged
in the presence of:
BEF, INC., a Florida not-far-profit.
corporation
1
,
i
.
By:
Title: President
Attest:
Title: Secretary
Witnesses as to BEF. Inc., a Florida not-for-
profit corporation
STATE OF FLORIDA )
) SS
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before this I II day of May. 1999 by
and the President and Secretary,
respectively, of BEF, Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and seal as of this pi day of
May, 1999.
Name:
Notary Public. State of Florida
My Commission Expires:
(SEAL)
Personally Known 0 or Pro~uced Identification 0
Type of Identification Produced
33
rr-/~
~"'~~~.~T""::::~_'~ .
'., v....
. . r' , ~..
~ ,,~..' . ,c ~d~.~. ... 'C.c'.C~.I.. ~ "~l. ' , ., ,~~ ~, '. .
. ._.._---~~-~~------~~
i',.
ioi!}~~ ~~~:,.: :~11>:".1 ~..c
,. ,~.,..... ,.... ,.... +
fi
f...
I'
'.
!.~
. :".:,t,.'"
\";>;'
.',
:~:' . ~
..
" .
:;~ ',' .
:,,t ,
~~oj' " ~I
.'
"
.. ,
, .
,;
?: ";>;~;'
" ,. ~
'-'.,' .
,"
w', "
"\' ~ . ' '
'~~ J. ~
. ~,o J .
'(,
':~.7)
--'"
I
~H ~
",
',.
i:
~\, ,
t;:
c:;
r~:..::.:.=~~ '.:;t: 2.~.1.
.c "
I ::.~:
\,
\ ".
.~~ -.......... ..,..,'" .t.:t.>,,..'~ ~,t';,,;.b.I..., "-~..,..:-,,,~' r
. . .
EXHIBIT A
PROJECT SITE LEGAL DESCRIPTION
Site I - Cove BUildini
[to be provided]
" .
: + -"~'4.~,~V~W.j.,.I.."o/j;~lrt: ,,},',~l...~~4";.;';'i'''''''.ol-~fiI.y4H.''~"'- ':~... -- ,..'
f9 ~ 1ft
. .
',.
. .:.'
.l....:
I'
-?'
. .', ~
. :~'''.~
! I'"
.:t,
\ ' '~1.~~" ,:.' .': "'~\'~"~:':d~"i' - .~.
,
, >
o
I"
,,"
'..i
.-(.":: .
. ',.;
:. ~.
I . ~.
'\:,
.e.
"
,
~ \ ~
~:. ,
..,'
,I:
, :,,:, ",/.
:, . ."
.\ . .
,~'. ,
:.\,..
.'
. "
'~: " . ~
, ,
~. . ~
. ,
< ~ ~ . ~
f~
..,<J
'"
'j:
".'
0'
"
:'
.\'~, . ,.
I'..,. ."t',
,.
'.\' ' ) . > e . , . . "
~~~'~~:'.' i:::~~~:~~~.~',_.j.~. ";~'."~T~...~..,.~~~,,,.I;~!I~\~~'<"'~~)~:~ .': :.c .
EXHIBIT B
PERMITTED ENCUMBRANCES
:'\
, .1
,I
B.l
1'1-/8'
..... .....~,. WI"'~'~~""-',r.:~',"'"drrJY"'lJ;,~.~:;"~''''.'''''''.. ,..It; ,"-...,.'t~""'~1."'....f-l;';k;~ ~.':"':I.:.~'.:J~ i'~' ,.'.' ~.
,-,.~"."....I' ,..<' ~'B;~' .1,- . ........- .-'-.-rl'. ,'.
.'/.'
. ',' ~
~ I .'
l~:"';, ':, :.
q
>.." ',p
. .. ...
,..... .,' . . <, ..
\>"
'I' ..
....'
c,
,. ,
~~:", .,...., ,
-~.i~:<~\':' ,';
~lr~{hr:\;' ~';' "" ""0":':" ",
f 0 .
:I "
I,"
,
( ,
,
~"t
:':.'.':iA
.....~.:. .'....~Jo::'f~~
,
}:::, .
, ,
:,.,-.
~ /;: : . .
" ..:.
.;t: .~ 1
"~., ~ r
1 ~ , .
:': ~ ,
,.<<
:'~>.'J :1.
r~~: :
",' ,,'
~'1,: ~
~ ~.
',,'.:.
:,'/1,: :
V.:"
~ .,~< "
-:;:.~.. .
I~' . .:-:..
.t' r".:
, .
d
.... .~~ ~ ~ .
t~'!'','
~'~ l. :
,',. (
~. <, ~
J' "
fo,,',':.,. _
,.,. .).
,;.;;i~ .
.'
'.'
:.>1' . f
, c
I:':
'1."
, "
0"
:~;\.
.. ,
"
i'.' .
,',
};.
.. ,
r..-::
,
(.
,.'~.:,o
':',..'
~.'; ,
I' .. <
,
" "
- .-
.
,f"
:~~~.JiIIoII"-''''''''''''''''''~::~'T"~,';'. :" ,. ';,.-......':"'...."h.1+I.."'~..:l~~...I..,...
.~~),~::'~(I;:~':." 1,1,~.~:<.~,,~.;~:..~'t:./..... ',. '},
. _-.1____________.___' '~;- '.
EXHIBIT C
FORM OF PROMISSORY NOTES
,I
I
I
i
i
, I
i
I
B-2
,99~/~,
'I
T ~...... "'.~'>-"l~ :~...... Lj ..~:~~) "'>~l .~~:~ ~.i';:; ,.:'.'1..,;, I.' ~ ~.'. ., ,tot ''-''':"''of I. ',,!.. ....l+.~I..".? .(,..~...,.i :.".. ~"d.... '......., . ~ ;.r
! '
~" .~
4-~tt:,.'" ~ .,.. -' .
t ....,
~
t.
T .;". '.. '. "r . ~.-
;'
t.:. .l. J )
".<" , ~ .
':!
~..: :'
:..!." ',".
f',:/
,~~ ,j
l ~. .
.; .
; ~~. '" : /
.~':'" ',.": '. ",
;:'j,~' I..
':
,i .
:" c~.l:
< ,
.( ~ .'
",.;,.<:-.'
~~' ~J
,.
I .'
.~~ .>'t
.1.
i'
.>
~"
~;, .
i ~ '
".
'1-',<. I
,!:':",
"
','
, '
.'
" .
.', " ;'~-'l
1.;:J
.-
t,:.
~4.7:T:!;. ~~. ~ ,. \ " ' <
. ._-= ._~ ,
EXHIBIT D
ASSIGNMENT OF MORTGAGE
AND SECURIT'( AGREEMENT
.'.
B~3
99~/~
.... . :..........,.,,~L ,.~"......\f,..".T j ~ l'
.... ~.~'h,.:..u,~ ',~..:t, ~~j'".~,~;II;.~;il.(~~J.,..,~"",,,.,JJ.-J'''''''''
; ~ .
'.1,
, . "\ ~ .. :.
:';;11 .
; ~ ,\ ~ ~.
. ,.. J
.'.".
. , ~ .". .
'Ii".; ~. . . ~ ',.<0 . .
"'~
.~. ,1
, t~"!J,...:""'''
~ '
j'
"
'-
. 'i.~ :-
:;}.
I:
i
,.
n
" .
~ i"
'.'
. ,
'.~ c"
, I
.:v
."i., ~ '
_.~
t .".
,~
{ (.... ~
<~ .. .
0'
p,
"
, ..
'.
. >,
'.
f.:'
,fl' "
'.",
'. ~,
,. ,
>' J.';'
,
.:j":'
..
,.-
"'0'-
. .. .'
j::, ..
, '0
'.
.'
,"J
:.;~ .'::. . ': .
'I.'.' ",'
Y
;\;:
.,
-l_,___r ~ ~," ~ .-...t'TY"~~~~...4_.\.~t"'~"J.r....'O/--olo'"-'''
,!
: ,,~~ t ~.
EXHIBIT C
FORM OF LOAN AND SECURITY AGREEMENT
'0
< ' '. ~
...-....-d~~~Lj:.>LI~... ;r.....~,...r. '''7 ,,1,-;:.,: ",~...-t. ~ t:."~",,,,, ~'l"i"'ll..'~,,~",' ,"., "~.,
.,
,
.,
:1
'I
;1
Resolution 99-18
.',.~.', \.~......., O......~." .~.rU.."'f>_i..
<<0':""'_..'
,
~ ',~
i.I'.,
, .
-:
.',.(~.
. ..~> foil
'.
I, ..
"
r.
l~: .
, ;'
"~ .
~ .
j.. .'
\).
, .
'"
" ~ . ",~,,".' . ,.- ". ~
Draft #4
OS/28/99
BMO #3195
, .,
LOAN AND SECURITY AGREEMENT
between
.'
. CITY OF CLEARWATER, FLORIDA
AND '
BEF, INC.
,. '
'. ,
City of Clearwater,' Florida.
Housing Revenue Bonds
(BEF, Inc. Project) , .
Dated as of July 1, 1999
This Instrument Prepared by:
"
Raben C. Reid, Esq.
Bryant, Miller and Olive. P.A.
201 South Monroe Street
Suite 500
TaJJahassee, Florida 32301
qq ,- If.('
';..y'''-~-'~~L~_:''''::::"_:::::_,"--.!.: -'.'_~~.?"".~'-'\~ n.-............ftrH.~'t~#II.....::. A rl... _.-".....,'
. ,~. .>. .~. ~< ','.' ~~,,'.\oo~~~o.J~U''''''"''"''''''''''''''''''1.rt,..
i~.., , . .
.', :r-)
.'
~~'^...~
Section 1. 1.
e' Section 1.2.
Section 1.3.
,
Section 2.1.
Section 2.2.
Section 2.3
Section 2.4.
'.
,
I
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Use of Defined Terms .. . . t t . , . ,.. . .. .. . ~ ,.. , .. . . . . ~ . , . .. . . . . . 2
Intel:Pretation ,,"".............,....................,...... I . . . . . . ... 19
Captions and Headings ...........................'.. 20
ARTICLE II
REPRESENTATIONS
, Representations and Covenants of the Issue( . . . . . . . . . . . . . . . . 21
Representations and Covenants of the Company . . . . . . . . . . . . . . 21
Tax Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . 22
Use of Project , . . . .. . ... . . . . : . . . ...'. . . . . , . + .. , . . . + , . ... ... ... 27
ARTICLE III
COMPLETION OF THE PROJECT;
ISSUANCE OF THE SERIES 1999 BONDS
~)
Section 3.]. Acquisition. Conscnfction. Installation. Equipment and Improvement
. Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
, Section 3.8
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7
::;
. . . . ... . . ~ ~ . . . . . . . .. . . Ii . t . . . . .. . . . . . . . . . -to . . . Ii . . . 28
Plans and Specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Issuance of the Series 1999 Bonds: Application of Proceeds: Company
Equity' .. . . . . . ... . + , . . . . . . . .. .. .. , . . . . . . . . . , . . . "" . . + . .. 28
Disbursements from the Proiect Fund .................... 29
-
Company Required to Pay Costs in Event Project Fund Insu~m . 31
Completion Date ........"...... . . ... . " . . , .. . . . ... . .. . . .. .. . . , 31
Investment of Fund MQ.O.ell . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Additional Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PA YMENTS
Loan Repayment: Delivery of Notes and Mortgage. . . . . . . . . . . . 33
Additional Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Place of Payments ................................ 36
Obligations Unconditional ........................... 36
Assi2nment of Aereement and Revenues . . . . . . . . . . . . . . . . . . 36
Application of Certain Moneys ................ . . . . . . . . 36
Issuer's Right of Purchase ........................... 37
11 r If{
j"'-')
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Pledee of Revenues. Security Interest and Transfer of Intanl:ibles .. 38
Debt Service Coveraf:e Ratio ......................... 39
Calculation of Ptincipal and Interest Requirements . . . . . . . . . . . . 40
permitt~d Debt ...................,..........,... 41
Pari ty Debt . .. . . . . . .. .. . . 4 .. . . .. . . .. .. . .. . .. . .. , . of . . + . . .- . .- 44.
Restrictions on Disposition of Property: Lease or Use of Project . . . 46
Permitted Encumbrances ......................,..... 48
Maintenance of Corporate Existence. . . . . . . . . , . . . . . . . . . . . 50
Annual Audit and Periodic Report ..,...........,.....,. 52
Perfection of Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . 53
Riehl of Jn~ection . , , .. ~ , . , " . . + . , , I . . , . . . . . . , . .. . . .. , 53
Indemnification . . .. . . . . . . .. . . .. .. .. .. . . . .. .. . . . . .. . .. , , .- . . .. 54
Company Not to Adversely A ffeet the Exclusion From Gross Income of
Interest on Tax~Exempt Bonds. . . . . . . . . . . . . . . . . .'. . . . . . . 56
Section 5.14. Litieation Notice ........,........................ 56
Section 5.15. Governmental Permits and Reeulations ... . . . . . . . . . . . . . . . . 57
Section 5.16. Annual Bud~ets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 57
Section 5.17. Project as Public Facili~ ' , . . , , . . . . . . . , . . . . , . . . . . . . . . 57
Section 5.18. Restriction Aeainst Religious Activities. . . . . . . . . . . . . , . . . . . 58
Section 5.19. Application of Revenues: Renewal and Replacement Fund , . . . . . . 58
Section 5.20. Purchase of Tender Bonds by Company, . . . , . . . . . . . . . . . . . . 59
Section 5.21 Minimum Liquid Reserve and Operating Reserve Amount . . . . . . . 59
[Section 5.22 Special Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 5.23. Liquidity Covenant. . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . 59
Section 5.24. Trade ~3.Yable Covenant ...,.......,................ 60
Section 5.25. Occupancy Covenant. . . . , . . . . . . . . . . . . . , . . . . . . . . . . . . 60
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6.
Section 5.7.
Section 5.8.
Section 5.9.
Section 5.10.
Section 5.11.
Section 5. 12.
Section 5.13.
--,
,
, ;
"..--
ARTICLE VI
REDEMPTION OF BONDS
Section 6.1. .QpJional Redemption ............,.............. .. . . 61
Section 6.2. Mandatory Redewption or Purcha~ . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default . . . . . , . . . . . . . , . . . . . . . . . . . . . . . . . . . 62
Section 7.2. Remedies on Default . . . . . . , . . . . . . . . . . . . . , . . . . . , , .. . 63
Section 7.3. No Remedy Exclusive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
o
_.....~~........----_:-
ii
11-(~
n...(.~, .. ,
',C)
~4: ,.fl'
"
;;1-
. ,<
\ .
,
\:.' .
<'
"
~:' .: '
~),
'I
. : -"".\
. . "'-"
: ,
, , .
. , '
.'\
, "
o d .......
Section 7.4. ' A2teement to Pay Attorneys' Fees and Expenses . . . , . . . . . . . , . 65
Section 7.5.' No Waive( . . . .. II ,.. . II . .. 01 .. . .. . , .. II .' .. .. .. . .. II , ..' II II . ... . II . iii II . 65
, Section 7.6. Notice of Default . . . . . , . . . , . . . . ~ . . . . . . . . . " . . . . . . . . 66
I
1
i
I
I
I
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Term of Agreement ,........,.........,...,....... 67
, Section 8.2. ' Amounts Remainin& in Funds . . . . . , , . . . . . . , . . , . . . .. . . . 67
Section 8.3. Notices II II II . II .. ,.. II . . ,.. . 01- .. III . . . -II .. . . ... + . . .. II .. .. II . . .. . . .. .. . 67
Section 8.4, Extent Qf Covenants of the Issuer: No Personal Liability . . . . . , . , 67
Section 8.5. Bindin2 Effect. . . . . . , . . . . . . . . . . . , , . . . . , . . . . . . . . , , 68
Section 8.6. Amendments and Supplements ........................ 68
,:Sectlon 8.7. Execution of Counterparts ... .'. . . . , . . . . . . , . . . . , . . . . . . 68
Section 8.8. Severability .................,.........,........ 68
Section 8..9.. Governing Law ... III .. . II . III .. .. -II II .. . II . 01 . . .. II : 01 ,.. ~ . . . ... . . . ,.. 69
. Exhibit A
Exhibit B
. Exhibit C
. Exhibit D
Exhibit E
Exhibit F
SERIES 1999 NOTES
DESCRIPTION OF THE PROJECT
PROJECT SITE
FORM OF DISBURSEMENT REQUEST
EXISTING PERMITTED LIENS
EXCLUDED PROPERTY
Hi
91-/~
. .
. . .: . > i .'. . ~
, \
, ' .
,
,:)
]"
i
(
I
I
I
j
\~~)'
,.~
LOAN AND SECURITY AGREEMENT
. .
THIS LOAN AND SECURITY AGREEMENT made and entered into as of July I. 1999,
between'the CITY OF CLEARWATER. FLORIDA, a municipal corporation, duly created and
validly existing under the laws of the State of Florida (the "Issuertt), and BEF. INC. ~ a Florida
not-for-profit corporation duly organized and validly existing under the laws of the State of
Florida (the "Company");
A. Pursuant to, the provisions of the Act. .the Issuer has determined to issue. sell and
deli ver its Series 1999 Bonds and to loan the proceeds derived from the sale thereof to the
Company to assist in the financing of the Project Costs.
B. The Company and the Issuer each have lull right and lawful authority to enter into
this Agreement and to perform and observe the provisions hereof on their rt:spective parts to be
performed and observed.
NOW THEREFORE, in consideration of. the premises and the mutual representations and
agreements hereinafter contained. the parties hereto agree as follows (provided that any obligation
of the Issuer created by or arising out of this Agreement shall never constitute a general debt of
the Issuer nor give rise to any pecuniary liability of the Issuer but shall be payable solely out of
the Revenues):
1
91'/r
~""'._~_~~L"""'+'~"-"~~. -.. ",
. '. _"_:...-. --:--c... 1'11.-\1441......, .r....~. .
""J
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Tenns. Capitaliaxl tenns uSL'd in lhis Agreement shall have
the meanings set forth below unless the context or use clearly indicates another meaning or intent.
Such definitions shall be equally applicable to the singular, possessive and plural forms of any of
the words and terms defined therein.
!
. i
"Act" means the Florida Constitution. the Charter of the Issuer and Chapter 154, Parts II
and III of Chapter 159. and Chapter 166. Florida Statutes, as amcnded and other applicable
provisions of law.
"Additional Bonds" mcans the Additional Bonds issued under the provisions of Section
2.05 of the Indenture.
"Additional Notes" means any non~negotiable promissory note or notes. in addition to the
Series 1999 Notes, delivered by the Mortgagor to the Trustee in connection with the issuance of
Additional Bonds as provided in this Agreement.
"Additional Payments" means the payments required to be paid by the Mortgagor under
Section 4.2 of this Agreement.
,."~
~"""'.rf)
"Adjusted Rate" means the interest rate borne by the Series 1999B Bonds determined in
the manner set forth in Section 2.03(b) of the Indenture.
"Affiliate" means a Person which controls or is controlled by the Company or is under
common control with the Company. as follows: (A) one Person shall be deemed to control
another if it owns more than 50% of the outstanding voting stock of or other equity interest in the
other, or it has the power to elect more than 50% of the governing body of the other; and (B) such
control may be exercised by one Person over another di rectly. indirectly through control over a
third party. or jointly with one or more controlled third panies.
"Agreement" means this Loan and Security Agreement dated as of July 1. 1999 between
the Issuer and the Company. as amended or supplemented from time to time.
"Annual Casb Operdting Expense" means, as of any date of determination thereof, the
expenses of operating the Project. other than depreciation. amortization and other non-cash items,
for the preceding 365 days, all as determined in accordance with generally accepted accounting
principles.
"Appraiser" means a Person designated by the Authorized Company Representative, with
written notice to the Trustee. who (i) is a member of the American Appraisal Institute, (ii) has no
'. )
'-'
2
19~ Ifl
~ (
..'
interest, direct or indirect. in the Company other than payment for services and (iii) in the case
of an individual, is not a member, director. trustee. officer or employee of the Company or. in
the case of another Person. has no partner. member, director. trustee. officer or employee who
is a member, director, truslee. ofticer or employee of the Company. In the event that the
American Appraisal Institute should cease to exist. the term "Appraiser" shall mean a Person,
designated by the Company with written notice to the Trustee and not objected to by the Trustee
within 10 days after receipt of such notice. which objection shall not be unreasonably interposed,
who is recognized as qualified to appraise the value of buildings, furnishings and equipment
comparable to the Project and who does not have any relationship prohibited in the preccding
sentence.
,...-. .
, )
"Arbitrage Rebate Agreement" means the Arbitrage Rebate Agreement dated as of
May 1, 1999 among the Issuer, the Company and the Trustee.
"Architect" means a Person, designated by the Authorized Company Representative, with
written notice to the Trustee, who or which Architect (i) is licensed or permitted to practice
architecture or engineering in the State, (ii) has no interest, direct or indirect, in the Company and
(Hi) in the case of an individual, is not a member. director. trustee, officer or employee of the
Company or. in the case of another Person, has no partner, member, director, trustee, officer or
employee who is a member, director. trustee, officer or employee of the Company.
"Assignment" means the Assignment of Mortgage and Security Agreement of even date
with the Mongage. from the Issuer to the Trustee. as amended or supplemented from time to time.
......-..
"Auditor" means a recognized tirm of independent certified public accountants of good
repute, designated by the Authorized Company Representative. which is licensed or permitted to
practice as accountants and auditors in the State.
"Authcnticating Agent" means the Trustee, as Registrar for the Bonds and any bank. trust
company or other person designated as an Authenticating Agent for the Bonds by or in accordance
with Section 6.13 of the Indenture. each of which shall be a transfer agent registered in
accordance with section 17A(c) of the Securities Exchange Act of 1934, as amended.
If Authorized Company Represcntative" means the person at the time designated to act
on behalf of the Company by its Chief Executive Officer by written certiticare furnished to the
Trustee and the Issuer, which certificate may designate an a1ternatc or alternates. In the event that
all persons so designated become unavailable or unable to act and the Company fails to designate
a replacement within ten (10) days after such unavailability or inability to act, the Trustee may
appoint an interim Authorized Company Represcntalive until such time as the Company designates
that person.
\.J
3
19 -/~
.....~. .~..;"'. ,. ,,-'
;,')
"Authorized Dcnombmtions" means (n) with respect to the Series 1999 Bonds. $100.000
or any integral multiple of $5,000 in excess lhcf<."Of, and (b) with rcspcct to Additional Bonds. the
denominations authorized in the applicable Supplemental Indenture.
"Authorized Official" means the MayorhCommissioner, Vice Mayor, City Manager. or
Assistant City Manager of the Issuer, or such other officer of the Issuer as may be designated in
writing to the Trustee and the Company by the lssuer.
"Bond CowlSCl" means Bryant, Miller and Olive. P.A.. Tallahassc..->e, Florida or such other
finn of attorneys approved by the Issuer of nationally recognized standing in the field of municipal
finance law whose opinions are generally accepted by underwriters and other purchasers of
obligations issued by state and local governments.
"Baud Fund" means the Bond Fund created by the Scction 5.01 of the Indenture.
"Bond Purchase Agreement" or "Purchase Agreement" means, with respect to the Series
1999 Bonds, the Bond Purchase Agreement among the Issuer, the Company and the original
purchaser of the Series 1999 Bonds; and as to any Additional Bonds, any bond purr;hase
agreement for which provision is made to purchase such Bonds by the original purchaser thereof.
"Bond Year" has the meaning set forth in the Arbitrage Rebate Agreement.
.-..
l
"Bonds" means the Series 1999 Bonds and any Additional Bonds.
"'t..........."..J
"Business Day" or "business day" means any day of the year on which banks in any of
the cities in which the principal office of the Trustee or of the designated office of any Paying
Agent are located are not required or authorized by law to remain closed and on which the Trustee
and any Paying Agent and the New York Stock Exchange, Inc. are open for business.
"Capitalized Interest" means accrued interest, if any, received upon the sale of the Bonds
plus any interest to become due and payable on the Bonds, which is included in the principal
amount of the Bonds, and deposited in the Bond Fund and used to pay interest on the Bonds, until
completion of a related project.
"CWcngo Time" means the time on any given day in the City of Chicago. Illinois, whether
such time be Central Standard Time or Central Daylight Savings Time.
"Code" means the Internal Revenue Code of 1986, as amended, the Treasury Regulations
(whether proposed. temporary or final) under the Code or the Statutory predecessor of the Code.
and any amendments of, or successor provisions to, the foregoing and any ofticia1 rulings.
announcements, notices. procedures and judicial determinations regarding any of the toregoing,
all as and to the extent applicable. Unless otherwise indicated. reference to a Section means the
\,~
4
11-/g
')
\,.....,/
<.J
...... '.. .':l'" ~ ... ~.. . .
Section of the Code. including such applicable Treasury Regulalions. rulings. announcement.s,
procedures. and determinations pertinent to that Section.
"Commercia] Code" means the Uniform Commercial Code as enacted in the State, 3S
from time to time amended or supplemented.
"Company" means BEF, Inc., Inc., a Florida not-for-profit corporation and its lawful
successors and assigns, to the extent permitted by the Agreement.
"Company Documeutlill mean this Agreement, the Notes, the Mortgage and the Bond
Purchase Agreement.
"Completion Date" means the date of completion of the Project to be specified in the
certificate furnished by the Company pursuant to Section 3.6 of this Agreement.
"Computation Date" shall have the meaning set forth in the Arbitrage Rebate Agreement.
"Consultant" means a firm of nationally-recognized consultants, designated by the
Authorized Company representative with written notice to the Trustee and, so long as the Series
1999 Bonds are Outstanding. B.C. Ziegler and Company, which Consultant (i) is knowledgeable
in both the operations and fiscal management of continuing care or similar health care facilities,
(ii) has a good reputation for skill and experience in that work. (iii) has no interest, direCt or
indirect, in the Company, and (iv) has no partner, principal. member, director, trustee. officer
or employee who is a member, director, trustee. officer or employee of the Company.
"Contilluing Disclosure Certificate" means the Continuing Disclosure Certificate dated
as of July 1, 1999 of the Company.
"Days Cash on Hand" means, as of any date of detennination t11ereof, the product of 365
times a fraction, the numerator of which is the sum of cash, readily marketable securities and
other investments of the Company not held by the Trustee as of such date and the denominator
of which is Annual Cash Operating Expense.
"Debt" means all obligations for borrowed money and installment sale and capitalized lease
obligations incurred or assumed by the Company and any guaranty by the Company of
indebtedness of any other Person, but shall not be deemed to include (a) obligations under
contracts for supplies, services and pensions allocable to current operating expenses during the
currem or future Fiscal Years in which the supplies are to be delivered, the services rendered or
the pensions paid. and (b) payments payable in the current or futun~ Fiscal Years under leases not
intended to evidence the acquisitions of capital assets.
"Debt Service Charges" mean, for any period or date, the principal of and premium. if
any. and interest on the Bonds accruing for that period or due and payable on that date. In
II
I:
\'
i
,
5
q1', I<?
. ........................-.--...___'"''---'..M................................__...
I~
..-....
I
~._."'Jr
.-.J
determining Debt Service Charges accruing for any period or due and payable on any date.
mandatory sinking fund requiremcnts accruing for that pcriod or duc on that date shall be
included.
IIDcbt Service Coverage Ratio" means the ratio of Net Income Available for Debt Service
for the period in question to the maximum Principal and Interest Requirements of the Company
on outstanding Long~ Tenn Debt for the then current or any succeeding Fiscal year, determined
as of the first day of such period. The calculation of the Debt Service Coverage Ratio shall be
made in accordance with Section 5.2 of this Agreement, except as may be otherwise provided in
other Sections of this Agreement.
"Debt Service Reserve Fundll means the Debt Service Reserve Fund created in Section
5.01 of the Indenture.
"Debt Service Resen'e Requirement II means with respect to the Series 1999 Bonds. as
of the date of any calculation. an amount equal to $ . In the event Additional
Bonds are issued, the Debt Service Reserve Requirement, if any. with respect to those Additional
Bonds shall be the lesser of (i) 10% of the proceeds of such Additional Bonds, (ii) the Maximum
Principal and Interest Requirements on such Additional Bonds or (Hi) 125 % of the average
Principal and Interest Requirements on such Additional Bonds. No such Additional Bonds shall
be secured by the Debt Service Reserve Fund established for the Series 1999 Bonds.
"Default" means any circumstance which. with the passage of time or the giving of notice
or both. would constitute an "Evenr of Default" as detined in Section 7.1 of this Agreement or
'7.01 of the Indenture, respectively.
lIDefeasancc Obligations" means:
(a) direct obligations of the United States of America (including obligations
issued or held in book-entry form on the books of the Department of the Treasury of the
United States of America). or obligations the timely payment of the principal of and
interest on which is unconditionally guaranteed by the United States of America,
(b) certificates which evidence ownership of the right to the payments of the
principal of and interest on obligations described in clause (a) or in specified ponions
thereof, including without limitation, portions consisting solely of the principal thereof or
solely of the interest thereon, or
(c) obligations of any state or any political subdivision of any state, otl1t~r lhan
the Issuer, which are rated by a Rating Service in the highest category for long-term debt.
the interest on which is excluded from gross income for federal income tax purposes and
the full and timely payment of the principaJ of and any premium and the interest on which
is unconditionally payable from obligations of the character described in (a) or (b) above.
6
91-lr
~
er,
1.':\'1:'1
, \
'. ....,.I
"Disbursemcnt Rcquest" means a written order to the Trustee for disbursement from the
Project Fund substantially in the form of Exhibit D attached to this Agreement.
"Eligible Iuvestmcnts" mean
(a) obligations issued or guaranteed as to full and timely payment by the United
States of America or by any Person controJled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority granted by
Congress;
(b) obligations issued or guarantcc..>d by any state or political subdivision thereof,
which obligations are rated in the highest category if rated as short therm obligations by
a Rating Service;
(c) commercial or finance paper which is rated in the highest fating category
by a Rating Service;
(d) deposit accounts, bankers' acceptances. certificates of deposit or bearer
deposit notes in one or more banks or trust companies (including without limitation, the
Trustee or any bank affiliated with the Trustee) organized under the laws of the United
States of America or any state thereof. the senior debt obligations of which bank or trust
company at the time of purchase of such instruments are rated in one of the three highest
rating categories by a Rating Service or which instruments are secured by a security
interest in obligations described in (a) above or which are fully insured by the FDIC;
(e) any repurchase agreement: (i) with any bank, including the Trustee and its
affiliates. or any broker-dealer with retail customers that falls under the protection of the
Securities Investors Protection Corporation; (ii) which is secured by collateral of the type
specified in (a) and (b) above which collateral (1) is in the possession of the Trustee or a
third party acting solely as agent for the Trustee. (2) is not subject to any third party
claims, and (3) has a market value (determined at least once every 14 days) at least equal
to the amount invested in the repurchase agreement; and (iii) which permits the Trustee
to liquidate the collateral immediately upon failure to maintain the collateral at the required
level; or
(f) money market funds invested solely in securities listed in (a) above;
provided that any investment or deposit described above is not prohibited by applicable
law.
"Entrance Fees" shall mean the feesJ other than monthly service charges paid by the
residents of the Mortgaged Property to the Company for the purpose of obtaining the right to
reside in the Mortgaged Property, including any Refundable Resident Deposits described in.
7
9c/,,!'t
,r')
Residency Agreements with respect to the Mortgaged Property t but shall not include any such
amounts that are (i) escrowed pursuant to the requirements of Chapter 651 t Florida Statutes or any
similar law unless and until such amounts are released from such escrow to the Company or (ii)
escrows otherwise set aside pursuant to the requirements of any Residency Agreement prior to
occupancy of the unit covered by such Residency Agreement (which amounts shall be included
if and when such occupancy occurs).
"Event of Default" means an Event of Default as defined in Section 7. 1 of this Agreement
and in Section 7.01 of the Indenture.
IIExcess Earc.ings" means, as to the Tax-Exempt Bonds of any issue as of each
Computation Date for that issue. an amount determined in accordance with Section 148(t) of the
Code equal to the sum of (a) plus (b) where:
(a) Is the excess of
(i) the aggregate amount earned from the date the Tax-Exempt Bonds
are invested (other than investments attributable to an excess described in this
Clause (a))~ taking into account any gain or loss on the disposition of nonpurpose
investments. over
--
. ,
(ii) the amount that would have been earned if the amount of the gross
proceeds of the Tax-Exempt Bonds of such issue invested in those nonpurpose
investments (other than investments attributable to an excess described in this
clause (a)) had been invested at a rate equal to the yield on the Bonds; and
.'..............'
(b) any income attributable to the excess described in clause (a) above. taking
into account any gain or loss on the disposition of investments.
The foregoing sums shall be determined in accordance with Section 148(t) of the Code.
As used herein, the terms "gross proceeds, to "nonpurpose obligationst. and "yield" have the
meanings assigned to them for purposes of Section 148 of the Code.
"Excluded Property" means the property described in Exhibit F of this Agreement, if any.
"Exempt Person" means (i) any organization described in Section 501(c)(3) of the Code
and exempt from taxes under Section 501(a) of the Code, and (ii) a "government unit" as that term
is used in Sections 103 and 145 of the Code.
"Existing Facilities" means the buildings. equipment and improvements located on the
Project Site on the date of execution and delivery of this Agreement.
"
"
<../
8
99 -/?5
~-)
,.'~"""
'" )
~_.,.s
~:.J
"Extcndablcs Purchase Fund" means the Extendables Purchase Fund created pursuant
to Section 4.10 of the Indenture.
"FISCal Year" means, with rcspt.'Ct to the Company, the period commencing on
1 of each year and ending on the 30 of the following year or such other fiscal year
as may hereafter be designated by the Company to the Trustee in writing.
"Force Majeure" means any of the causes, circumstances or events described as
constituting Force Majeure in Section 7.1 of this Agreement or Section 6.2 of the Mortgage.
lIGoverlUllcntal Restrictions" means fl.-deral, State or other applicable governmental laws
or regulations affecting the Company or its facilities and placing restrictions and limitations on
the rates. fees and charges to be fixed, charged and collected by the Company or any other
operator of the Companis facilities; provided. however. that no change in law or regulation shall
be deemed applicable by reason of this detinition if such change would in any way constitute an
impairment of the rights of the Issuer, a Holder. the Company or any other operator of the
Mortgaged Property or the Trustee under this Agreement or the Indenture.
"Holder" or "Holder of a Bond" means the person in whose name a bond is registered
on the Register.
"Immediate Notice" means notice by telephone, telegram. telex, telecopy or other
telecommunication device, receipt of which has been contirmed by the recipient. promptly
followed by written notice by overnight carrier or delivery service, expenses prepaid. to such
addresses.
"Indenture" means the Trust Indenture dated as of July 1. 1999 between the Issuer and
the Trustee, as amended or supplemented from time to time.
"Independent Counsel" means an attorney or finn of attorneys acceptable to the Company
and duly admitted to practice law before the highest court of the State.
"Initial Bondholders"
"Initial Interest Rate" means, the interest rate applicable from the dated date of the Series
1999 Bonds to and including at the Initial Rate Change Date.
"Initial Rate Change Date" means the fi rst date on which the Series 1999B Bonds change
to another interest rate, which shall be [November 15. 20_]..
"Insurance COllsultautll means a Person designated by the Authorized Company
Representative. with written notice to the Trustee, who or which Insurance Consultant is (i)
qualified to survey risks and to recommend insurance coverage for facilities comparable to the
9
11- It
\
Mortgaged Property and for organizations engaged in operations similar to those of the Company,
(ii) has a favorable reputation for skill and experience in making those surveys and
recommendations, (Hi) has no interest, direct or indirect. in the Company other than payment for
services' and (iv) in the case of an individual, is not a mcmbcr, director. trustee. ofticer or
employee of the Company or, in the case of another Person, has no partner. member, director,
trustee, officer or employee who is a member, director. trustee, officer or employee of the
Company; provided that so long as the foregoing requirements are satisfied, the Insurance
Consultant may be a broker or agent with whom the Company transacts business; and provided
further that thc collection of reasonable fees for scrvices rendered docs not constitute an interest
in the Company for this purpose.
"Insurance Requirements" means all requirements respecting the Mortgaged Property,
or any part thereof, imposed by any policies of insurance in force at any time wi~h respect to any
of the buildings. improvements, machincry. furnishings or equipment constituting a pare of the
Mortgaged Property.
"Interest Payment ACCOWlt" shall mean the Interest Payment Account within the Bond
Fund created in Section 5.01 of the Indenture.
"Interest Payment Date" or "Interest PaJment Dates" means, as to the Series 1999
Bonds, the date or dates set forth as such in the form of Series 1999 Bond attached as Exhibit A
to the Indenture, and as to Additional Bonds, each date or dates designated as an "Interest
Payment Date" or "Interest Payment Dales" in the form of Bond for which provision is made in
the applicable Supplemental Indenture.
"Iuterest Rate for Advances" means the lesser of (i) the Prime Rate or (ii) the maximum
interest rate permitted by applicable law.
"Investor Letter" means the Investment Letter to be delivered by the purchaser of the
Series 1999 Bonds to the Issuer and the Trustee substantially in the form attached as Exhibit B to
the Indenture.
"Issuance Expenses" means all costs and expenses payable by the Issuer which are
incidental to the issuance of the Bonds and shall include. but not be limited to, fees and expenses
of consultants, advisors. accountants, Bond Counsel and other legal counsel to the Issuer, costs
and expenses of printing such Bonds and disclosure documents relating thereto, fees of bond rating
services, charges for CUSIP numbers, charges of any clearing agent, charges of the Depository
Trust Company C'DTC") and other securities depositories, charges payable to the Municipal
Securities Rulemaking Board, Public Securities Association and wire services. charges for
telephone, telegraph. telecopier, telex and fax services. postage and express charges. costs of
federal funds, closing costs (including all legally permitted costs of travel, food and lodging of
ofticials and employees of the Issuer incurred in connection with attending any closing or
preclosing or any meeting relating to the issuance of the Bonds), any costs incurred in connection
, I
'--"
10
19 ~ I ~
'." . . .,.... ~ J:
with the sale of the Bonds, including costs incurred in any public or negotiated sale thereof. and
) placement fees, costs of compliance with the St.'Curities laws of any state in which Bonds are to be
offercd and sold, the initial fees of the Trustee. Registrar. Paying Agent and Authenticating
Agent. and other similar expense: provided that the term shall not include any underwriter's
discount which is takcn into account in the sale price (or any costs and expenses paid by the
underwriter which are not to be reimbursed by the Issuer).
"Issuer" means City of Clearwater Florida, a municipal corporation duly created and
validly existing under the laws of the State of Florida including, particularly. the Act, and its
successor public bodies.
"Issuer Documents" means this Agreement, the Assignment and the Indenture.
"Loan" means a loan by the Issuer to the Company of the proceeds received from the sale
of Bonds.
I "Loan Payment Date" means (i) the fifth Business Day immediately preceding the last day
of each calendar month and (ii) the fifth Business Day immediately preceding the date on which
any principal of or interest or any premium on the Bonds shall be due and payable, whether at
maturity, upon acceleration. call for redemption or otherwise.
"Loall Payments" means the amounts required to be paid by the Company in repayment
,~"-", of the Loan pursuant to Section 4. 1 of this Agreement.
,'"-""
"Long.Term Debt" means Debt having an original maturity greater than one year
(including demand notes with alternative stated maturities of less than one year unless and until
a demand for the payment thereof shaJI have been made) or renewable at the option of the obligor
for a period greater than one year from the date of original incurrence or issuance thereof, which
shall not include the current portion of such Long- Tenn Debt as detennined in accordance with
generally accepted accounting principles.
"Maximum Principal and Interest Requirement" means as to any Series of Bonds, the
maximum Principal and Interest Requirement coming due on such Bonds in any Fiscal Year,
provided that the Maximum Principal and Interest Requirement for any Long Term Debt shall be
disregarded tor any period during which the interest on such Long Term Debt is funded from the
proceeds thereof.
"Net Proceeds," when used with respect to any insurance proceeds or condemnation
award, means the gross proceeds thereof less the payment of all expenses. including attorneys'
fees incurred in connection with the collection of such gross proceeds.
UNotes" means the Scries 1999 Notes and any Additional Notcs.
',:.J
11
11j'lr
J
8 "Notice Address" means
(a) As to the Issuer: Margaret L. Simmons, CPA
. Financial Services Administrator
City of Clearwater, Florida
I, 100 South Myrtle Avenue
Clearwater, Florida 33758
copy to:
Pamela Akin. Esq.
. . City Attorney
112 South Osceola Avenue
Clearwater. Florida
, c (b) As to the Company: BEF, Inc.
1601 Jack Street, Suite 200
Fort Myers, Florida 33901
Attention: Gerard A. McHale, Jr.
(c) As to the Trustee: SunTrust Bank. Central Florida, National Association
225 East Robinson Street, Suite 250
Orlando, Florida, 32801
,~.... Attention: Corporate Trust Department
'0
(d) As to the
Remarketing Agent:
B. C. Ziegler and Company
1 South Wacker Drive. Suite 3080
Chicago, Illinois 60606
Attention: President
or such different address. notice of which is given under Section 8.3 of this Agreement or Section
12.03 of the Indenture.
"Opinion of Bond Counsel" means an opinion in writing signed by a Bond Counsel
satisfactory to the Trustee.
"Opinion of CouIlSel" means an opinion in writing signed by an attorney or fion of
attorneys not unsatisfactory to the Trustee, who may be counsel to the Company.
"Optional Tender Date" means, with respect to the Series 1999B Bonds, each Rate
Change Date.
::)
12
I'.
Cj9-/~ '
-~-""-~-:"""""'-"'''''-'---
f.~-\
,
.'-:--"
\..)
()
"Outstanding Bonds, II "Bonds Outstanding" or "Outstanding" as applied to Bonds,
mean, as of the applicable dale, all Bonds which have been authenticated and delivered. or which
are being delivered by the Trustee under the Indenture, except:
(a) Bonds cancelled upon surrender. exchange or transfer. or cancelled because
of payment or redemption on or prior to that date;
(b) Bonds, Of the portion thereof, for the payment, redemption or purchase for
cancellation of which sufticient moneys have been deposited and credited with the Trustee
or any Paying Agents on or prior to that date for that purpose (whether upon or prior to
the maturity or redemption date of those Bonds); provided, that if any of those Bonds are
to be redeemed prior to their maturity, notice of that redemption shall have been given or
arrangements satisfactory to the Trustee shall have been made for giving notice of that
redemption. or waiver by lhe affected Holders of that notice satisfactory in form to the
Trustee shall have been tiled with the Trustee;
(c) Bonds. or the portion thereof, which arc deemed to have been paid and
discharged or caused to have been paid and discharged pursuant to the provisions of the
Indenture;
(d) Bonds in lieu of which others have been authenticated under Section 3.07
of the Indenture; and
(e) Any Bond as to which an election to tender has been duly submitted and nol
withdrawn and moneys are held in trust by the Tender Agent for the purpose of purchase
of such Bond.
"Parity Debt" means any obligation of the Company permitted to be incurred as Parity
Debt in Section 5.5 of this Agreement.
"Pa~tillg Agent" means any bank or trust company designated as a Paying Agent by or in
accordance with Section 6.12 of the Indenture.
"Pennitted Debt" means the liabilities, obligations and Debt penniued in Section 5.4 of
this Agreement.
"Pennitted Encumbrances" shall have the meaning assigned such term in Section 5.7 of
this Agreement. .
. "Person" or words importing persons, means firms, associations, partnerships (including
without limitation. general and limited partnerships). joim vemures, societies. estates. trusts,
corporations, public or governmental bodies, other legal entities and natural persons.
13
II
I'
I
I
i
I
i
19"1l(
"Plans Hud Specifications" means the plans and specifications describing a project as
prepared and on tile with the Trustee, as they may be changed from time to time.
"Prime Rate" means that interest rate announced from time to time by the Trustee in its
lending capacity as a bank as its tlprime rate" or IIbase rate. "
. "Principal and Interest Requirements" means. for any period or date, as applied to any
Debt means the sum of the principal of and premium, if any t and interest (determined for variable
rate date at the highest rate payable on such date) on any Outstanding Debt accruing for that
period or due and payable on that date; provided that for this purpose, the term Debt does not
include indebtedness for which provision for payment has been made in accordance with the terms
of the instruments evidencing or securing such indebtedness. In determining Principal and Interest
Requirements accruing for any period or due and payable on any date. mandatory sinking fund
requirements on any Debt for that period or on that date shall be included. and principal maturities
and mandatory sinking fund requirements for a prior period Qr on a prior date shall be excluded.
"Principal Payment Account" means the Principal Payment Account within the Bond
Fund created in Section 5.01 of the Indenture.
"
"Private Business Use" means use, directly or indirectly (i) in a trade or business carried
on by any Priva~e Person (other than a Tax-Exempt Organization) other than use as a member of,
and on the same basis as. the general public. or (ij) in any activity carried on by a Tax-Exempt
Organization (other than use as a member of. and on the same basis as. the general public) which
is an "unrelated trade or business" activity within the meaning of Section 513 (a) of the Code.
~_..",,'
"Private Person" means any person, firm, entity or individual, including a Tax-Exempt
Organization other than a governmental unit as that term is used in Section 145 of the Code.
"Project" means the capital improvements described in Exhibit B to this Agreement (and
more particularly described in the Plans and Specifications related thereto), together with any
additions. modifications and substitutions to those facilities, including all furnishings. machinery,
equipment and other tangible personal property.
"Project Budget" means the budget and trade and materials, breakdown and scheduled
values for the Project.
"Project Costsll has the meaning assigned such term in Section 3.4 of this Agreement.
"Project Fund" means the Project Fund created in Section 5.01 of the Indenture.
"Project Site" means [he real estate described in Exhibit C to this Agreemem. and any
additions thereto, less any removals therefrom made in the manner permitted by this Agreement.
--J
14
99' I ~
...."'itt..~.':'~..:.~_:.::..:~~:~.~"_ ._, .._._u
I)
"Property" means any and all righls. title and interest of the Company in and to property
(including cash and cash equivalents) whether real or personal, tangible or intangible and wherever
situated. but excluding Excluded Property.
"Rate Change Date" means, with respect to the Series 1999B Bonds, the Initial Rate
Change Date and any rate change date selected by the Company pursuant to Section 2.03(b) of
the Indenture.
"Rate Period" means, with respect to the Series 1999B Bonds. the period commencing on
each Rate Change Date and ending on and including the date preceding the next Rate Change
Date. or the matu'rity date thereof. '
"Rating Service" means Fitch meA, Moody's Investors Service. Inc. or Standard &
Poor's Ratings Services Group. each of New York, New York or their respective successors.
"Rebate AmoWJt" means the amount of Excess Earnings computed as of the most recent
prior Computation Date which are required to be paid to the United States of America under
Section 148(f) of the Code.
"Rebate Fund" means the Rebate Fund created in Section 5.01 of the Indenture.
"Refunding Debt" means Debt incurred for the purpose of retinancing or refunding all
o or any portion of any Outstanding Debt of the Company.
"Register" means the books k~pt and maintained for the registration and transfer of Bonds
pursuant (0 Section 3.06 of the Indenture.
"Registrar" means the Trustee or such other bank, trust company or person as may be
designated from time to time by the Issuer with the approval of the Company.
"Regular Record Date" or "Record Date" means, with respect to any Bond. the last day
(whether or not a Business Day) of the calendar month next preceding an Interest Payment Date
applicable to that Bond.
"Regulatory Body" means any federalm,state or local govenunent, department, agency,
authority or instrumentality (other than the Issuer) and other public or private body, including
accrediting organizations, having regulatory jurisdiction and authority over the Company or its
facilities or operations.
"Relllarketillg Agent" means the Remarkcting Agent appointed and serving a such
pursuant to Section 4.15 of the Indenture, initially B.C. Ziegler and Company.
\~
IS
19r-/'1
. "
/~
")
,~........
o
"Remarkctillg Agreemcnt" means the Remarketing Agreement between the Company and
the Remarketing Agent then serving under the Indenture.
"Rcncwal and Rcplacement Fund" shall mean thc Rencwal and Replacemcnt Fund
created under section 5.19 of this Agreement.
"Reset Rate" means, with respect to the Series 1999 Bonds, the adjusted rate of interest
born on the Series 1999B Bonds determined as provided in Section 2.03(b) of the Indenture.
"Revenues" means all present and future revenues received by or on behalf of the
Company from whatever source derived, including without limitation, all
(a) Entrance Fees, cash, accounts, deposits, chattel paper, instruments, documents,
money and general intangibles, including without limitation, contract rights and rights to
payment (i) tor goods and properties sold or leased or tor services rendered. (ii) under
agreements respecting governmental and private insurance arrangements, and (Hi) from any
insurance. condemnation award or agreement in lieu of a condemnation award resulting
from eminent domain proceedings.
(b) income from, and revenues realized upon the liquidation or sale of, securities held
by or on behalf of the Company.
(c) proceeds of those items constituting Revcnues to which reference is made in
clauses (a) and (b) above, and
(d) gifts, grants, bequests, contributions and donations, including without limitation.
the unrestricted income and profits therefrom,
provided that Revenues do not include
(i) gifts, grants, bequests, contributions and donations to the extent restricted
specifically to a particular purpose inconsistent with their use for the making of payments
into any of the Special Funds,
(ii) the proceeds of any borrowing to the extent that those proceeds are required to
be excluded from Revenues by the terms of the borrowing. .
(Hi) the proceeds of non-recourse Debt secured by and payable solely from Property
financed by such non-recourse Debt and all revenues derived from or attributable to
Property financed with the proceeds of such non-recourse Debt,
(iv) revenues derived from Excluded Property, or
I
I
\
l
J
II
I'
I
I
i
16
11,/<6
.~'i~~~'~-~':~':""'-___... "1 ...,..:~ ,~....'
........ . < .....
o
(v) amounts on deposit in the Operating Reserve.
"Series 1999 Bonds" means collectively. the Series 1999A Bonds, the Series 1999B Bonds
and the Series 1999C Bonds.
"Series 1999A Bonds" means the $
Revenue Bonds, Series 1999A (BEF, Inc. Project).
City of Clearwater, Florida
"Series 1999B Bonds" means the $ City of Clearwater. Florida,
Revenue Bonds. Series 1999B (BEF, Inc. Project), Extendable Rate Adjustable SecuritiesSM
(EXTRASSM).
"Series 1999C Bonds" means the $
Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project).
City of Clearwater. Florida
"Series 1999 Note" means the non-negotiable promissory note of the Company in the
aggregate principal amount of $ of even date with the Series 1999A Bonds,
the Series 1999B Bonds and the Series 1999C Bonds, substantially in the form attached to this
Agreement as Exhibit" A, tt executed and delivered by the Company to the Trustee in connection
with the issuance of the Series 1999 Bonds.
"Special Ftmds" means the Special Funds created pursuant to Section 5.01 of the Indenture.
/.._\ other than the Rebate Fund.
........./
,...)
"Special Interest Payment Date" means the Special Interest Payment Dine created in
Section 7.07(d) of the Indenture.
"Special Record Date" means, with respect to any Bond, the date established by the Trustee
in connection with the payment of overdue interest on that Bond pursuant to Section 3.05 of the
Indenture.
"State" means the State of Florida.
"Supplemental Indenture" means any indenture supplemental to the Indenture entered into
between the Issuer and the Trustee in accordance with Article VIII of the Indenture.
"Taxable Bond" means any obligation, or issue of obligations which at the time of issuance
under the Indenture is not intended to be a Tax-Exempt Bond.
"Tax-Exempt Bond" means any obligation, or issue of obligations, the interest on which
is, or is intended to be, excluded from gross income for federal income tax purposes within the
meaning of Section 103 of the Code.
17
1C!'lr
...)
"Tendcr Agcnt" means the Tender Agent referred to in Sections 4. to and 6.] 4 of the
Indenture, which Tender agent shall initially be the Trustce, scrving as agcnt for Rcgistcred
Owners of Put Option Bonds who shall have elected to tender such Bonds for purchase.
"Tender Purcbase Price" shall have the meaning assigned in Section 4.09(a) of the
Indenture.
"Tcnder Withdrawal" shall have the meaning assigned in Section 4.11 of the Indenture.
"Tenn Bonds" means~ with respect to the Series 1999 Bonds, those Series 1999 Bonds
designated as Term Bonds in Section 2.03(a) of the Indenture.
"Total Operating Revenucs" means, for any period. the sum of the Company's (a)
operating revenues. less provision for uncollectible accounts, charity cases and any contractual
adjustments, plus (b) all other operating revenues.
"Trustee" means SunTrust Bank, Central Florida. National Association, a national banking
association, Orlando. Florida, until a successor Trustee shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter "Trustee" shall mean the successor Trustee.
'\
. ......J
"Unassigned Rights" means the rights of the Issuer under this Agreement to (a) receive
Additional Payments as contemplated in Section 4.2 of this Agreement; (b) to purchase the Project
as contemplated by Section 4.7 of this Agreement; (c) to be held harmless and indemnitied under
Scction 5.12 of this Agreement; (d) to exercise with the consent. but not to the exclusion, of the
Trustee any remedies which are authorized to be exercised by the Issuer under this Agreement in
connection with an Event of Default; (e) to be reimbursed, to the extent permitted by law, for
attorney's fees and expenses under Section 7.4 of this Agreement; and (t) to execute amendments
to this Agreement.
"Ullremarl\:cted Bouds" shall have the meaning assigned in Section 4.10 of the Indenture.
Section 1.2. Interpretation. Any reference herein to the Issuer, or to any member or
officer of the Issuer, includes entities or officials succeeding to their respective functions, duties
or responsibilities pursuant to or by operation of Jawor JawfuJJy performing their functions.
Any reference to a section or provision of the Constitution of the State or the Act, or to a
section, provision or chapter of the Florida StanJtes, as amended. or Laws of Florida~ includes that
section, provision or chapter as amended, moditied. revised, supplemented or superseded from
time to time; provided, that no amendment, modification. revision. supplement or superseding
section, provision or chapter shall be applicable solely by reason of lhis provision, if it constitutes
in any way an impairment of the rights or obligations of the Issuer, the Holders, the Trustee or
the Company under this Agreement.
, '
'J
18
19 -- (~
) I I I .
"
"
.1....,.. ,
,', ~
':: r"
I,' ."
, } . ~
!". .......'I"j.
:. .
::: .
. .'
~. \,'
~ . .
,', .,~,' .
, ,.
"
;\.' ~:
':.1 '
u, .
',;".:".. .
,,'
\., .
: :.
'J '...
';: : "
,
'" .
, ,-:)
'. ."....
.. l.~'
j' ,..:;."
: ,,~:~",} .
" , \"-" .
,.,
. ,
'..'1-1. "
. Unless the context indicates otherwise, the terms "hereof." "hereby," "herein,;' "hereto,"
"hereunder" and similar terms refer to this Agreement; and the term "hereafter" means after, and
. . the term "heretoforet. means before. the date of delivery of the Series 1999 Bonds. Words of any
gender include the correlative words of the other genders, unless the sense indicates otherwise.
. Section 1.3.. Captions and Headine-s. The captions and headings in this Agreement are
solely for convenience of reference and in no way define, limit or describe the scope or intent of
any'articles. sections, subsections. paragraphs or subparagraphs or clauses hereof.
(End of Article I)
"
19
Cjtj,-/'r
.. ~.~.~~.~~,.,lt;~'~;...,,,.t~\,,,:~'..t;...~.,~~..... .~. ~""'~-'4""'~jVi&,.~'J:.~.:~I'~.l' ~~-.i-{,.;..",." ,.". d., .......f".,..,~:.. '.I':i.~~,;
, .';'.~,' I ~. ,< . > .....
"~~~r~~~~::::::.::~nd.:";'.', .,', "
.~.-')
~......
, " l
~'-..-,,/
\
\.-J
ARTICLE II
REPRESENT A nONS
Section 2.1. Representations ami Covenants of the Issuer. The Issuer represents that:
(a) It is duly created and validly existing under the laws of the State;
(b) It has duly accomplished all conditions necessary to be accomplished by it prior
to the issuance and delivery of the Series 1999 Bonds and the execution and delivery of this
Agreement and the Indenture;
(c) It is not in violation of or in contliet with any provisions of the laws of the State
which would impair its ability to carry out its obligations contained in this Agreement, the
Mortgage or the Indenture;
~ '
(d) It is empowered (i) to enter into the transactions contemplated by this
Agreement, the Mortgage and the Indenture and (ii) to issue, sell and deliver the Series 1999
Bonds as provided in the Indenture;
(e) It has duly authorized the execution, delivery and performance of this
Agreement, the Mortgage, the Assignment and the Indenture; and
(t) Irwill do all things in its power in order to maintain its existence or assure lhe
assumption of its obligations under this Agreement, the Mortgage and the Indenture by any
successor public body.
Section 2.2.
and covenants that:
Representations and Covenants of the Company. The Company represents
(a) It is a not-for-protit corporation duly organized and validly existing under the laws of
the State no part of the net earnings of which inure or may inure lawfully to the benefit of any
member or private individual;
(b) It has full power and authority to execute, deliver and perform this Agreement, the
Mortgage, the Continuing Disclosure Certificate and the Series 1999 Note and to enter into and
carry out the transactions contemplated by those documents. The execution, delivery and
performance of said agreements do not, and will not, violate any provision of Jaw applicable to
the Company or the Company t s Articles of Incorporation or Bylaws and do not. and will not,
contlict with or result in a default under any agreement or instrument to which the Company is
a party or by which it or any of its respective property is bound. This Agreement, the Mortgage.
the Continuing Disclosure Certificate and the Series 1999 Note have, by proper action, been duly
authorized, executed and delivered by the Company and all steps necessary have been taken to
20
99 ~ I~
'~
constitute this Agreement, the Mortgage. the Continuing Disclosure Certificate and the Series
1999 Note valid and binding obligations of the Company;
(c) The Project will preserve existing employment and serve the health care needs of the
, community;
(d) The Project will be completed in accordance with the PJans and Specifications and the
Project will be operated and maintained in such manner as to conform with all applicable zoning.
planning. buildingt environmental and other applicable governmental regulations and as to be
consistent with the Act~ .
(e) It presently intends to use or operate the Project and the Existing Facilities of which
it is a part as a continuing care retirement faciJity until the date on which the Bonds have been
fully paid and knows of no reason why the Project and Existing Facilities will not be so operated.
1ft in the futuret there is a cessation of that operation. it will use its best efforts to resume that
operation or accomplish an alternate use by the Company or others which will be consistent with
the Act and the Code;
......-<+41fL....
(t) It is an organization described in Section 50l(c)(3) of the Code and has received a
detennination letter from the Internal Revenue Service to such effect. which determination letter
has not been adversely modified, Hmited or revoked. It has not been notitied by the Internal
Revenue Service of, and has no knowledge of any facts or circumstances that would form the basis
for the revocation of ilS status as an organization described in said Section of the Code. It has not
taken and will not take any actions that would jeopardize its status as slIch organization; and
I
........../
(g) It has obtained a certificate of need for all portions of the Project ror which a
certificate of need is required under State law and has complied with all conditions and
requirements of those certificates.
Section 2.3 Tax Covenants of the Company. For so long as any Tax~Exempt Bonds
(including, without Jimitation. the Series 1999 Bonds) remain outstanding the Company hereby
covenants as follows:
(a) It will comply with, and timely make or cause to be made all filings required by I all
effective rules, rulings or ReguJations promulgated by the DeparUTIent of the Treasury or the
Internal Revenue Service;
(b) It wiff continue to conduct its operations in a manner that will result in its continuing
to qualify as an organization described in Section 501(c)(3) of the Code including but not limited
to the timely filing of all returns. reports and requests for determination with the Internal Revenue
Service and the timely notitication of the Imernal Rcwnue Service of aU changes in its
organization and putposes from the organization and purposes previously disclosed to the Internal
Revenue Service;
"'.)
21
1Cf--/~
-_..........-.. ~...
-~. -.
~)
(c) It will not divert any substantial part of its income for the purpose or purposes other
than those for which it is organized and operated;
(d) It will not use or invest the proceeds of the Series 1999 Bonds or any other amounts
held by the Trustee under the Indenture or any investment earnings thereon in a manner that wiJI
result in the Tax-Exempt Bonds becoming Itprivate activity bondslt (other than qualified 501(c)(3)
bonds) within the meaning of Sections 141 and 145 of the Code;
(e) It will not use or permit to be used more than five percent (5 %) of the proceeds of the
Tax-Exempt Bonds (including any amounts used to pay costs associated with issuing such Tax-
Exempt Bonds), including all investment income earned on such proceeds directly or indirectly.
in any trade or business carried on by any person who is not an Exempt Person. For purposes of
the preceding sentence, use of the proceeds by an organization described in Section 501(c)(3) of
the Code with respect to an "unrelated trade or business." determined in accordance with Section
513(a) of the Code, does not constitute a use by an Exempt Person;
(0 It will not use or permit the use of any portion of the proceeds of the Tax-Exempt
Bonds. including all investment income earned on such proceeds prior to the Completion Date,
directly or indirectly, to make or finance loans to persons, who are not a governmental unit or an
organization described in Section 50l(c)(3) of the Code. For purposes of the preceding sentence.
a loan to an organization described in Section 50l(c)(3) of the Code for use with respect to an
"unrelated trade or business" , does not constitute a loan to such a unit or organization;
~:~)
(g) It will not cause the Tax-Exempt Bonds to be treated as "federally guaranteedlt
obligations for purpores of Section 149 of the Code. as may be modified in any applicable rules,
rulings, policies, procedures. regulations or other official statements promulgated or proposed by
the Department of the Treasury or the Internal Revenue Service with respect to "federally
guaranteed" obligations described in Section 149 of the Code. For purposes of this paragraph,
the Tax-Exempt Bonds shall be treated as "federally guaranteed" if (i) all or any portion of the
principal or interest is or will be guaranteed directly or indirectly by the United States of America
or any agency or instrumentality thereof, or (ii) 5% or more of the proceeds of the Tax-Exempt
Bonds will be (A) used in making loans the payment of principal or interest with respect to which
is to be guaranteed in whole or in part by the United States of America or any agency or
instrumentality thereof, or (B) invested directly or indirectly in federally insured deposited or
accounts, and (Hi) such guarantee is not described in Section 149(b) of the Code;
(h) It shall do all things which are necessary in order to comply with the provisions of
Section 148 of the Code, including but not limited to subsection (f) of said Section 148 of the
Code, with respect to the Tax-Exempt Bonds. including but not limited to the following:
(A) Consult with such counsel, cenitied public accounUmts and rebate compliance experts
as shall be necessary to permit such compliance;
~ n
C;Cf ; 1C6
>.......~'t.,"'_ :~.~:'_' ~.......:........._,-....................._._._.._ .._
.'
(B) Keep such records of funds in its possession which constitute "gross proceeds" of the
\ Tax~Exempt Bonds as detined in Section 1 48(t).ot' the Code and to direct the Trustee
:
to keep records of llmds and investments in the Trustee's possession which constitute
such "gross proceeds" in order that int'ornlation Tll..-cessary for the calculation of rebate
payments due to the United States of America may be calculated;
(C) Make or cause certified public accountants or rebate compliance experts to make such
calculations at the times and in the manner required by Section 148(f) of the Code and
the Indenture and otherwise comply with Section 5.05, 5.06 and 5.07 of the
Indenture;
(0) File or cause to be tiled copies of all rebate calculations with the Trustee;
(E) Prepare or cause to be prepan..>d such reports. retums or statements as may be required
to be tiled from time to time with the Imernal Revenue Service or the United States
of America pursuant to the provisions of Section 148(f) of the Code, and execute any
such reports. returns or statements as it is required to execute, direct the Trustee to
execute any such reports, returns or statements as the Trustee may be required to
execute and direct the Issuer to execute such reports, returns or statements as the
Issuer may be required to execute;
I'
(F) Timely file or cause to be filed such reports, returns and statements as are required
:"-..) to be tiled with the [nlernal Revenue Service or the United States of America:
'-l"r.t..v.J
(G) Provide or cause to be provided to the Trustee for deposit in the Rebate Fund moneys
which are sufficient to pay when due all rebate payments with respect to the
Tax-Exempt Bonds required to be paid by Section 148(t) of the Code;
, (H) Direct the Trustee to pay from the Rebate Fund all rebate payments due at the times
required by Section .148(f) of the Code;
(I) Payor cause to be paid to the Trustee, for deposit in the Rebate Fund, and direct the
Trustee to pay from the Rebate Fund dircctly to the Internal Revenue Service or the
. United States of America. as appropriate. any amounts required to be paid to correct
any errors made in the calculation in payment of rebate, including any arrearages of
rebate, interest thereon or penalties attributable thereto which are required to be paid
in order to cause the Tax-Exempt Bonds to comply. to have complied, or to continue
to comply with the provisions of Section 148(f) of the Code; and
(1) Invest any funds in its possession which ~onstitute rtgross proceeds" of the
Tax-Exempt Bonds (within the meaning of S~tion 148(0 of the Code) in such manner
as will not cause the TaxwExempt Bonds to become "arbitrage bondstl within the
meaning of Section 148 of the Code. As to funds held by the Trustee, it shall direct
V 23
q1-/~
I~k~t.:.,;...,~"~_~
r--",
l
investments to be made by the Trustee in such manner as shall not cause the
Tax-Exempt Bonds to become "arbitrage bonds." The Company shall keep records
of the investment of "gross proceeds" of the Tax-Exempt Bonds and shall direct the
Trustee as to the keeping of records of invcstmeI1ls of "gross proceeds~' of the
Tax-Exempt held by the Trustee in a manner which reflects the information necessary
in order to permit the Company or its accountants or other arbitrage and rebate
compliance experts to make calculations as to the yield on such investments and as
necessary to calculate the Issuer's rebate obligation with respect to the Tax-Exempt
Bonds. The Company shall comply with its representations set forth in the Arbitrage
Rebate Agreement which shall be included in the transcript for the Tax-Exempt Bonds
and shall. as necessary, consult with Bond Counsel, its certified public accountants
and arbitrage and rebate expertS to the extent necessary to assure compliance with the
provisions of this Section of this Agreement. With respect to the invesuTIent of any
"gross proceedsu of the Tax-Exempt Bonds, made by the Company or made by the
Trustee at the direction of the Company, the Company will not make, or enter into
any agreement to make or direct the Trustee to make, a "prohibited payment" (as that
term is used for purposes of Section 148 of the Code).
.....,.~.
The Company through the Authorized Company Representative, may eject to make
calculations and cause rebates to be paid more frequently than required under Section 148(0
of the Code. However, it shall only be required to make calculations and pay rebate at the
times required to achieve such compliance. Whenever such calculations are made, the
Company shall payor cause to be paid to the Trustee for deposit in the Rebate Fund an
amount sufficient to cause the balance in the Rebate Fund to cquallhe Issuer's accrued but
unpaid rebate liability as calculated through the most recent calculation date. If the
Company's certified public accountants require its financial statements to reflect the
estimated rebate obligation as an accrued liability, the Company shall cause to be deposited
wjth the Trustee for deposit in the Rebate Fund an amount equal ,0 such estimated accrued
rebate liability. Except for the Company's right under the Indenture to receive excess
moneys in the Rebate Fund, the Company shalt have no right, title or interest in moneys in
the Rebate Fund which are to be held under the Indenture for the benefit of the federal
. government of the United States of America.
(i) The net proceeds of the Tax-Exempt Bonds and any investment earnings thereon shall
be applied solely for the purposes set torth in this Agreement and in the Indenture and no amount
of net proceeds of the Tax-Exempt Bonds in excess of two percent (2 %) of the lesser of (A) the
aggregate face amount of the Tax-Exempt Bonds or (B) the proceeds of the TaxwExempt Bonds
will be expended to pay the costs of issuing such issue of the Tax-Exempt Bonds, as required by
Section 147(g) of the Code.
(j) It will not use or invest the proceeds of the Tax-Exempt Bonds or any other amounts
held by the Trustee under the Indenture or any invcstmcnt earnings thereon in a manner that will
violate the provisions of Section 149(d)(3) or (4) of the Code; ,
\
V
24
11''*'lrt'
')
, ,
''--'"'
u
(k) The average maturity of the Tax-Exempt Bonds will not exceed one hundred twenty
percent (120%) of the reasonably expectcd economic life of any property the cost of which was
financed or refinanced with the net proceeds of the Tax-Exempt Bonds. taking into account the
respective cost of t:ach itcm comprising such property which was tinanced with the net proceeds
of the Tax-Exempt Bonds. For purposes of the preceding sentence, the reasonably expected
economic lite of each item of property shall be determined as of the later of (i) the date on which
the Tax-Exempt Bonds are issued or (ii) the date(s) on which such item of Project property is
placed in service (or expected to be placed in service). In addition, land shall not be taken into
account in dett.mnining the reasonably expected economic life of such property, except that, in the
event twenty-five percent (25%) or more of the proceeds of the Tax-Exempt Bonds have been
expended for land, such land shall be treated as having an economic life of thirty (30) years and
shall be taken into account for purposes of determining the reasonably expected economic life of
such property;
(I) No amount of the proceeds of the Tax-Exempt Bonds will be used, directly or
indirectly, to provide any airplane, sky-box or other private luxury box, facility primarily used
for gambling, store the principal business of which is the sale of alcoholic beverages for
consumption off premises or health club facility (except a health club facility related to the Section
501(c)(3) exempt purposes of the Company); and
(m) It will comply with the information reponing requirements of Section 149(e)(2) of the
Code;
(n) Proceeds of the Tax-Exempt Bonds not in excess of the lesser of: (A) 10% of the
proceeds of the Tax-Exempt Bonds; or (8) 125% of average annual debt service on the
Tax-Exempt Bonds; or (C) 100% of the maximum annual debt service on the Tax-Exempt Bonds,
shall be used to fund a reasonably required rcserve or replacement fund described in Section
148(d) of the Code; for purposes of (B) and (C) of this subsection (0) average annual debt service
and maximum annual debt service on any variable rate Tax-Exempt Bonds shall be determined as
if such Series 1999 Bonds were issued bearing interest at a fixed rate equal to the fixed interest
rate at which such Series 1999 Bonds could have been sold on the date of sale;
(0) All of the property to be acquired with proceeds of the Tax-Exempt Bonds or
investment income therein shall be owned by an Exempt Person, as requircd by Section 145(a)
of the Code;
(p) No other governmental obligalions shall be issued within fifteen (15) days of the Series
1999 Bonds pursuant to a common plan of financing or marketing with the Series 1999 Bonds that
will be paid out of substantially the same source of funds (or will havc substantially the same
claim to be paid out of substantially the same source of funds) as the Series 1999 Bonds;
(q) At the time any issue of Tax~Exempt Bonds is issued. the principal amount of such.
Tax-Exempt Bonds plus the principal amount of outstanding tax excmpt non-hospital bonds
I
I
II
I'
Ii
,
2S
1t(;,/~
~.". ,'.
,..-~\
I
~ ........
. i
....-...
o
..,.,t>i.:..;.v.,,,,,:",,,,"'-' ..,...~..
allocated to any Section 501(c)(3) organization which is or will be a test-period beneficiary (as
such term is used in Section 145(b) of the Code) of the Tax-Exempt Bonds does not and will not
exceed $150.000,000 for purposes of Section 145(b) of the Code;
(r) The intonnation to be furnished by the Company and used by the Issuer in preparing
the certification pursuant to Section 148 of the Code and information statement (Form 8038)
pursuant to Section 149(e) of the Code. is accurate and complete as of the date of the issuance of
the Tax-Exempt Bonds: and
(s) It will requiret in connection with any lease or grant by the Company of the use of any
portion of the Project, that the lessee. sublessee, manager or other user of any portion of the
Project shall not violate the covenants set forth in this section and use that portion of the Project
in any manner which would violate the covenants set forth in this section;
The tenns "Bond Year." "debt service." "gross proceeds, II IIhigher yielding investments."
"net proceeds," "proceeds," and "yield" have the meanings assigned to them for purposes of
Section 148 of the Code.
.Section 2.4. Use of Project. Except to the extent permitted by paragraph (e) of Section
2.3. the Company will not use the Project or suffer or permit the Project to be used (i) in an
ttunrelated trade or business" as detined in Section 513(a) of the Code or (ii) directly or indirectly
for a Private Business Use by any Private Person unless such arrangement is pursuant to a contract
that satisfies the criteria of the Code.
(End of Article II)
26
I
t
I
I
I
I
I,
I.
I
qq~/~
,. 'I. , .~. > '.
, 'r. '. ~ ~ " .
" ".H,'
-
,"-"
,
.....-/
"\
<-'
ARTICLE III
COMPLETION OF THE PROJECT;
ISSUANCE OF THE SERIES 1999 BONDS
Section 3.1. Acquisition. Construction. Installation. Equipment and Improvement. The
Company (a) is acquiring and/or refinancing the Project in conjunction with the issuance of the
Series 1999 Bonds and shall improve and renovate that portion of the Project consisting of the
Core Building on the Project Site with all reasonable dispatch and in accordance with the Plans
and Specifications, (b) shall pay when due all fees, costs and expenses incurred in connection
therewith from funds made available therefor in accordance with this Agreement or otherwise. and
(c) shall ask, demand, sue tor, levy. recover and receive all those sums of money. debts and other
demands whatsoever which may be due, owing and payable under the terms of any contract.
order, receipt, writing and instruction in connection therewith and shall enforce the provisions of
any contract, agreement, obligation. bond or other performance security wilh respect thereto. It
is understood that the Project is that of the Company and any contracts made by the Company with
respect thereto, whether acquisition contracts, construction contracts or otherwise, or any work
to be done by the Company on the Project are made or done by the Company in its own behalf
and not as agent or contractor for the Issuer.
Section 3.2. Plans and SpeciticatioDs. The Company may revise the Plans and
Specitications from time to time. provided that no revision shall be made which would cause the
Project not to be a "project" as defined in the Act or which would cause interest on the Bonds to
re or to become included in the gross income of the Holder for federal income tax purposes. The
Company will provide revised Plans and Specitications to the Trustee, at its Notice Address,
within 30 days of any such revisions.
Section 3.3. Issuance of the Series 1999 Bonds: Application of Proceeds: Company
EQuity. (a) To provide funds to make the Loan for purposes of assisting in paying the Project
Costs, the Issuer wm issue, sell and deliver the Series] 999 Bonds. The Series 1999 Bonds will
be issued pursuant to the Indenture in the aggregate principal amount, will bear interest, will
mature and will be subject to redemption as set forth therein. The Company hereby approves the
terms and conditions of the Indenture and the Series 1999 Bonds, and the terms and conditions
under which the Series 1999 Bonds will be issued, sold and delivered.
The proceeds from the sale of the Series 1999 Bonds shall be paid to the Trustee and
deposited as follows:
A sum equal to any accrued interest shall be deposited in the Interest Payment Account.
A sum equal to $
shall be deposited in the Debt Service Reserve Fund.
The balance of the proceeds shall be deposited in the Project Fund.
27
99~ I~
....""".
!
(b) Pending disbursement pursuant to S~ction 3.4 h~reof, the proceeds so deposited in
the Project Fund. together with any invCslment earnings thereon, shall constitute a part of the
Revenues assigned by the Issuer to the payment of Debt Service Charges as provided in the
Indenture.
I
I
I I
,
,
,
Section 3.4. Disbursement's from the Proiect Fund. Subject to the provisions of
Sections 2.3 and 2.4 above, and subject to the provisions set forth below. disbursements from the
Project Fund shall be made only to reimburse or pay the Company, or any person designatcd by
the Company. for the tollowing costs (collectively, the "Proj~ct Costs") to th~ extent set forth in
the Project Budget:
(a) costs incurred directly or indirectly tor or in connection with the acquiring, renovating
or improving of real and personal property comprising the Project, including costs incurred in
respect of the Project tor preliminary planning and studies; architcctural, legal. engineering,
accounting, consulting. supervisory and other services; labor, scrvices and matcrials; and
recording of documents and title work;
(b) premiums attributable to any surety bonds and insurance required to be taken out and
maintained during the construction period with respect to the Project Site and the Project
Facilities;
"
(c) taxes, assessments and other governmental charges in respect of the Project that may
become due and payable during the construction period;
1
"--./'
(d) costs incurred directly or indirectly in seeking to enforce any remedy against any
contractor or subcontractor in respcct of any actual or claimed default under any contract relating
to the Project;
(e) financial, legal, accounting, printing and engraving fees. charges and expenses, and
all other such fees, charges and expenses incurred in connection with the authorization. sale.
issuance and delivery of the Series 1999 Bonds, including. without limitation, the fees and
expenses of the Trustee. the Registrar, the Authenticating Agent and any paying agent properly
incurred under the Indenture, provided that the costs of issuance of the Series 1999 Bonds financed
by the Tax-Exempt Bonds shall not exceed two percent (2 %) of the proceeds of the Tax-Exempt
Bonds within the meaning of Section 147(g) of the Code and Treasury Regulations Section 1. 150-
1: for purposes hereof, "proceeds" means the issue price of the Tax-Exempt Bonds less accrued
interest;
(t) any othcr costs, expenses, fees and charges properly chargeable, under the Act, to the
cost of the Project; and
(g)
intcrest on the Series 1999 Bonds.
()
28 '
tfI-;r
''J
Providedt no funds shalt be disbursed for rehabilitation of the Project to be completed by
th~ Company as part of the Project until th~ Company delivers to th~ Trustee (i) an executed
construction contract in a form and contcnt acceptable to the Company and for a guaranteed
maximum price acceptable to the Company; and (ii) a payment and performance bond in a form
and content and issued by a company acceptable to the Company.
Any disbursements from any account within the Project Fund for the payment of Project
Costs shall be made by the Trustee only upon the written order of the Authorized Company
Representative accompanied by a ccrtificate of the Architect on standard AlA Forms G702 or
G703 contirmingt among other things. the percentage of completion of the Project. Each such
written order shall be in substantially the form of the disbursement request attached hereto as
Exhibit D and shall be consecutively numbered and accompanied by invoices or other appropriate
documentation supporting the payments or reimbursements requested. The Authorized Company
Representative also shall provide the Truslce with either appropriate mechanicst lien aftidavits or
waivers from each payee under each such wriuen order or with evidence or documentation
satisfactory to the Trustee that provision against the filing of any mechanics' or similar liens with
respect to the payment being made has been taken by the Company by deposit or bonding. In case
any contract or the mechanics lien law of the State provides for the retention by the Company of
a portion of the contract price. there shall be paid from the Project Fund only the net amount
remaining after deduction of any such portion. and only when that retained amount is due and
payable may it be paid from the Project Fund.
'r_..'
Any moneys in the Project Fund remaining after the Completion Date and payment. or
provision for payment, in full of the Project Costst at the direction of the Authorized Company
Representative, promptly shall be
(i) used to acquiret constructt install, equip and improve such additional real or
personal property in connection with the Project as is designated by the Authorized
Company Representative and the acquisition, renovation and improvement of which will be
such as is permitted under the Act and provided that any such direction shall be
accompanied by a representation of the Company, by an Authorized Company
Representative, and such other evidence deemed reasonably necessary and satisfactory to
the Trustee that the average reasonably expected economic life of any such additional
property, together with other properly theretofore acquired with the proceeds of the Series
1999 Bonds, will not be less than 5/6ths of the average maturity of the Series 1999 Bonds;
(ii) used for the purchase of Series 1999 Bonds in the open market for the purpose
of cancellation at prices not exceeding the face value thereof plus accrued interest thereon
to the date of payment therefor;
(iii) paid into the Bond Fund to bc applied to the redemption of the Series 1999
Bonds; or
.
'0
29
I
I
I
'I
9f~/e'
,'.-)
(iv) a combination of the foregoing as is provided in such direction.
In all such cases, any payments made pursuant to this paragraph shall be made only to the extent
that such use or application will not. in the opinion of Bond Counsel. cause the interest on the
Tax-Exempt Bonds to be includible in the gross income of the Holders for federal income tax
purposes.
Section 3.5. Compaoy Required to Pay Costs in Event Project Fund Insufficient. If
moneys in the Project Fund are not sufticient to pay all Project Costs, the Company nonetheless
will complete the Project in accordance with the Plans and Specifications and, unless Additional
Bonds shall have been issued for that purpose, shall pay all such additional Project Costs from its
own funds. The Company shall pay all costs of issuing the Series 1999 Bonds to the extent those
costs exceed the limitation imposed by Section 147(g) of the Code. The Company shall not be
entitled to any reimbursement for any such additional Project Costs or payment of issuance costs
from the Issuer, the Trustee or any Holder; nor shall it be entitled to any abatement, diminution
or postponement of the Loan Payments.
Section 3.6. Completion Date. The Company shall notify the Issuer and the Trustee
of the Completion Date by a cenificate signed by the Authorized Company Representative stating:
(a) The date on which the rehabilitation of the Project was substantially completed.
I
,
......--/
(b) That all other facilities necessary in connection with the Project have been acquired,
renovated and improved.
(c) That the Project confonns with all applicable zoning, planning, building,
environmental and other similar governmental regulations,
(d) That all Project Costs then or theretofore due and payable have been paid, and
(e) The amounts which the Trustee shall retain in the Project Fund for the payment of
Project Costs not yet due or for liabilities which the Company is contesting or which otherwise
should be retained and the reasons such amounts should be retained.
Such Certificate shall be accompanied by a final certificate of the Architect. The certificate may
state that it is given without prejudice to any rights against third parties which then exist or
subsequently may come into being. The Authorized Company Representative shall include with
such certificate a statement specifically describing all items of personal property comprising a part
of the Project. The certificate shall be delivered as promptly as practicable after the occurrence
of the events and conditions referred to in subsections (a) through (d) of this Section.
(..J
30
c;r ~ /~
~'II-~. ~ . ~...' i~ .,~.
..-:.
'-,
. '. ..~~~.
I'
j,
I"'
4 ~ .:.~\
, ~
.'-....,/
.\,
:':.'0
L. ,
,.
The Owner shall, as a condition to final disbursement from the Project Fund for Project
Costs, deliver to the Trustee (a) final lien waivers, contractor aftidavits, and other documentation
required by the construction lien laws of the State and an as-completed survey of the Project
Section 3.7. Investment of Fund Moneys. At the oral request, promptly confirmed in
writing, of the Authorized Company Representative. any moneys held as part of the Bond Fund.
the Project Fund. the Reserve Fund or the Rebate Fund shall be invested or reinvested by the
Trustee in Eligible Investments.
Section 3.8 Additional Bonds. At the request of the Company and for the purposes
and upon fulfillment of the conditions specified in the Indenture. the Issuer may (but shall not be
required to) provide tor the issuance, sale and delivery of Additional Bonds and loan the proceeds
from the sale thereof to the Company and the Company shall execute and deliver one or more
Additional Notes and supplements hereto as provided in Section 4.1 hereof.
(End of Article HI)
31
I
I
I
,
I
I,
.1
I'
99 ~ /g'
ol~UA~'~II"--:-"""~~~
_.0..0 _. ._____......_.....____..______..
.'.. '.'1._.
. h, I
,- . .
.--..-------
ARTICLE IV
1
,
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PA YMENTS
Section 4.1. Loan Repayment: Delivery of Notes and Mortiaie. Upon the terms and
conditions of this Agreement. the Issuer will make Loans to the Company. In consideration of
and in repayment of the Loans, the Company shall make. as Loan Payments. payments which
correspond, as to amount, to the Debt Service Charges payable on each series of Bonds. All such
Loan Payments shall be paid to the Trustee in accordance with the terms of the Series 1999 Note
and any Additional Notes for the account of the Issuer and shall be hdd and disbursed in
accordance with the provisions of the Indenture and this Agrt.'Cment for application to the payment
of Debt Service Charges.
I
!
,
The Company agrees to repay the Loans by paying to the Trustee on or before the
twenty~fifth day of each calendar month afld such other day upon which other payments may be
required under the tenns of this Agreement or the Indenture (a "Loan Payment Date"), in federal
or other funds immediately available on such date, the sum which, together with any moneys on
deposit in the Bond Fund available for such purpose. is sufficient to pay the following amounts:
....._~...4
(a) commencing November 15, 1999, not less than the approximate equal monthly amount
necessary, together with the moneys on deposit in the Interest Payment Account (or the respective
subaccount in the Project Fund with respect to Capitalized Interest) and available for that purpose
on that date, to pay in full the interest due on the Bonds on the next succeeding Interest Payment
Date;
.""")
(b) commencing twelve (12) months prior to the first calendar month in which any
principal is due on the Bonds, not less than the approximate equal monthly amount necessary to
pay in fuIl the principal of the Bonds that will become due and payable on the next succeeding
principal payment date (whether by payment at stated maturity Of by mandatory sinking fund
redemption); less (1) in each case, the moneys on deposit in the Principal Payment Account and
available for that purpose on that date. and (2) in the case of redemption pursuant to the
mandatory redemption requirements described in Section 4.02 of the Indenture, the amount, if
any, of credit described in Section 4.02 of the Indenture;
which amounts required to be deposited into the Bond Fund may be deposited in the form of either
or both money or Eligible Investments of those maturities which will be sufticient without further
investment or reinvestment to produce the amounts required to be on deposit at least five days
prior to the first day of the succeeding month; and
--.-"
32
99"'/~
"'--
'-)
Additionally. the Company shall also pay the sum which, togcther with any moneys on
deposit in the Bond Fund available for such purpose is sufticient to pay the following amounts:
(w) any amount due in connection with a redemption of Series 1999 Bonds (other than a
mandatory sinking fund redemption), such that the Trustee receives such funds not later than 45
days prior to the redemption date;
(x) (i) in any month in which the amount on deposit in the Debt Service Reserve
Fund falls below the Debt Service Reserve Requircment becausc moneys are
transferred from the Debt Service Reserve Fund to the Bond Fund to make up a
deticiency in the Bond Fund (as permitted under the provisions of Section 5.06 of the
Indenture), not less than one-twelfth (l112th) of the amount so transferred until the
balance in the Debt Service Reserve Fund equals the Debt Service Reserve
Requirement. and
(ii) on or prior to each Loan Payment Date. beginning in the month foHowing
the month in which the Company receives notice pursuant to Section 5.11 of the
Indenture that the balance in the Debt Service Reserve Fund is below an amount equal
to ninety percent (90%) of the Debt Service Reserve Requirement. an amount not Jess
than one-fourth of the deficiency detennined pursuant to Section 5.11 of the Indenture
until the balance in the Debt Service Reserve Fund equals the Debt Service Reserve
Requirement;
~"''')
-.,...,
(y) Any amount due the Trustee. the Paying Agent. the Registrar, the Authenticating
Agent, or the Tender Agent which shalJ have then accrued and become payable; and
(z) any other amounts which will become due and payable under this Agreement or the
Indenture including any amount which may be necessary to make up any previous deficiency in
any of the payments described above and to make up any deticiency or loss in the respective funds
or accounts to which payments are required lO be made.
The Company shall be entitled to a credit against the Loan Payments next required to be
made to the extent that the balance of the Bond Fund is then in excess of amounts required (a) for
the payment of Bonds theretofore matured (or principal thereof which has become due and
payable) or theretofore caJled tor redemption, (b) for the payment of interest for which checks or
drafts have been drawn and mailed by the Tmstee, and (c) to be deposited in the Bond Fund by
the Indenture for use other than for the payment of Debt Service Charges on the Interest Payment
Date next following the applicable Loan Payment Date. In any event, however, that if on one
Business Day prior to any Interest Payment Date or any other date on which any Debt Service
Charges shall be due and payable. the balance in the Bond Fund is insufticient to make required
payments of Debt Service Charges, the Company 10rthwith will pay lO the Trustee, tor the account
of the Issuer and for deposit into the Bond Fund, any such deficiency.
,.J
33
99,-lfI
')
,
The Company's obligations under the Notes and this Agreement shall be secured by the
Mortgage. To secure the Company!:, performance of its obligation under this Agreement and the
Series 1999 Note. concurrently with the issuance and del ivery of the Series 1999 Bonds and the
Series 1999 Note. the Company shall execute the Mortgage and deliver the same to the Issuer.
The Issuer shall, upon the Company's execution and delivery of the Mortgage, execute the
Assignment and deliver same to the Trustee.
In connection with the issuance of any Additional Bonds. the Company shall execute and
deliver to the Trustee one or more Additional Notes in a form substantially similar to the form of
the Series 1999 Note together with a supplement hereto. providing, among other things for the
use of the proceeds of such Additional Bonds. All such Additional Notes shall:
(a) Provide for payments of interest equal to the payments of interest on the
corresponding Additional Bonds;
(b) Require payments of principal and n..-demption payments and any premium equal
to the payments of principal, prepayments and sinking fund payments and any premium on
the corresponding Additional Bonds;
(c) Require all payments on any such Additional Notes to be made no later than one
business day prior to the due dates tor the corresponding payments of Debt Service Charges
10 be made on the corresponding Additional Bonds; and
''";
'......._r".
(d) Contain by reference or otherwise optional and mandatory redemption provisions
and provisions in respect cf the optional and mandatory acceleration or prepayment of
principal and any premium corresponding with the redemption and acceleration provisions
of the corresponding Additional Bonds.
All Notes shall secure equally and ratably all Outstanding Bonds. except that, so long as no
Event of Default has occurred and is subsisting hereunder, payments by the Company on any of
the Notes shall be used by the Trustee to make a like payment of Debt Service Charges on the
corresponding Bonds in connection with which those Notes were delivered and shall constitute
Loan Payments 'made in respect of the related Bonds.
Upon payment in full, in accordance with the Indenture. of the Debt Service Charges on any
or all series of Bonds, whether at maturity or by redemption or otherwise. or upon provision for
the payment thereof having been made in accordance with the provisions of the Indenture, (i) the
Notes issued concurrently with such corresponding Bonds of the same maturity. bearing the same
interest rate and in an amount equal to the aggregate principal amount of the Bonds so surrendered
and cancelled or for the payment of which provision has been made. shall be deemed fully paid,
the obligations of the Company thereunder shall be terminated, and any of those NQ[es shaH be
surrendered by the Trustee to the Company, and shall be cancelled by the Company, or (ii) in the
event there is only one Note, an appropriate notation shall be endorsed thereon evidencing the date
'J
34
f9-/~
r_____
I
and amount of the principal paymcnt or prepaymcnt equal to the Bonds so paid. or with respect
to which provision tor payment has I)(.~cn made, and that Note shaH be surrendered by the Trustee
to the Company for cancellation if all Bonds shall have been paid (or provision made therefor) and
canceflcd as aforesaid. Unless the Company is emirled to a credit under express terms of this
Agreement or the Notes, all payments on each of the Notes shall be in the full amount required
thereunder.
Except for such interest of the Company as may hereafter arise pursuant to Section 8.2
hcreof or Section 5.09 of the Indenture, the Company and the Issuer each acknowledge that
neither the Company nor the Issuer has any interest in the Bond Fund and any moneys deposited
therein shall be in the cuslOdy of and held by the Trustee in trust for the benefit of the Holders.
Section 4.2.
Additional Payments.
(a) The Company shall pay [Q the Issuer, as Additional Payments hereunder, any and all
costs and expenses incurred or to be paid by the Issuer in connection with the issuance and
delivery of the Series 1999 Bonds and Additional Bonds, any indemnification due from the
Company to the Issuer or otherwise related to actions taken by the Issuer under this Agreement
or the Indenture.
< .........
\
I
""'.-/
(b) The Company shall pay to the Trustee. the Registrar. the Paying Agent, the
Authenticating Agent and the Tender Agent, as Additional Payments their reasonable fees, charges
and expenses for acting as such under the [tldenture and any indemnitication due the Trustee, the
Registrar, the Paying Agent, the Authenticaling Agent and the Tender Agent from the Company.
Section 4.3. Place of Payments. The Company shall make all Loan Payments directly
to the Trustce at its corporate trust officc. Additional Payments shall be made directly to the
person or entity to whom or to which they are due.
Section 4.4. Obligations Unconditional. The obligations of the Company to make Loan
Payments and Additional Payments shall be absolute and unconditional, and the Company shall
make such payments without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off, recoupment or
counterclaim which the Company may have or assert against the Issuer, the Trustee or any other
Person.
Section 4.5. Assi~nment of Agreement and Revenues. To secure the payment of Debt
Service Charges, the Issuer shall assign. by [he lndemure, its rights under and interest in this
Agrcement (except for the Unassigned Rights) and the Revenues to the Trustee. The Company
hereby agrees and consents to those assignments.
Section 4.6. Application of Cenain Moneys. Any amount deposited in the Bond Fund
pursuant to Section 4.4, 5.2 or 5.3 of the Mortgage shall be used. to the cxtent practicable at the
.J
35
Cf!-/8:'
; .
'/ oI-~.', . .~ \ c
';.0
,..
I ,
-':'(. "
.,'
, ..')
.'~
I
1:.
,.
,
I
!' .
-
.,~~
. 'direction of the Company. for the purchase of Bonds in the open market for purposes of
cancellation or tor the n.-demption of Bonds within one year of rl.'Ccipt of that amount, jf permitted
pursuant to the extraordinary optional redemption provisions in Section 4.03 of the Indenture.
If, in the opinion of the Trustee. that is not practicable or there is any balance remaining after that
appJication, the remaining amount shall be credited against the portion of the next succeeding
Loan. Payment as represents the payment of principal of the Bonds to become due and payable on
..the applicable Interest Payment Date.
Section 4.7 Issuer' s Riehl of Purchase. The Issuer I during any period the Series 1999
Bonds are Outstanding, shall have the right, but not the obligation, to purchase the Cove Building
fol1owing an Event of Default hereunder by paying the Outstanding principal amount of the Series
1999 Bonds. In either such event, prior to such purchase, the Issuer shall deliver written notice.
of its election to purchase the Cove Building. .
(End of Article IV)
36
r'l~ I~
ARTICLE V
')
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1. Pled2e of Revenues. Security Interest and Transfer of Intangibles. To
secure the prompt payment of all Loan Payments, Additional Payments and other amounts
payable, and the observance and performance by the Company of all of its covenants, agreemcnts
and obligations under this Agreement, and to protect the prompt payment of any Parity Debt, the
Company assigns hereby to the Issuer, grants hereby to the Issuer to the eXlent permitted by law
or. the date hereof, and covenants, agrees and acknowledges that subject to Permitted
Encumbrances thc Issuer has and shall continue to have an assignment of and a first lien security
interest in all Revenues. That assignment and the grant of that security interest are and shall be
on a parity with any assignment made or security imerest granted by the Company as contemplated
in this SeGtion. subject to the provisions of Sections 5.4 and 5.5 hereof and Section 2.7 of the
Mortgage.
The Company will execute and cause to be delivered any instruments or documents which
may be necessary or reasonably requested by the Trustee to perfect or maintain, to the extent
pennitted by law on the date hereof, that assignment and security interest or to give public notice
thereof. The Trustee may obtain and rely upon advise of Company counsel in determining what
actions and instruments are necessary under this paragraph.
"
......-.
The foregoing provisions of this Section constitute an absolute and present assignment of
th~ Revenues, subject however to the conditional permission given hereunder to the Company to
collect and use Revenues during a period while no Event of Default shall have occurred and be
continuing under this Agreement. Upon the occurrence and continuation of an Event of Default,
that permission shall terminate, and the Revenues will be required to be immediately deposited
with the Trustee. The existence or exercise of the permission herein granted to the Company shaH
not be construed or operate to subordinate the assignment made or the security interest granted in
this Section, in whole or in part, to any subsequent assignment made or security interest granted
by the Company and shall not be construed or operate to affect in any way the Company's
obligation to make the Loan Payments or the Additional Payments.
Upon the occurrence of an Event of Default and during the continuation thereof, the Trustee
shaH have, in addition to all other rights and remedies, the rights and remedies of a secured party
under the Uniform Commercial Code of the State, including the right to request any Person having
an obligation to the Company to make payment on such obligation directly to the Trustee, and any
such Person is hereby authorized and directed, upon such request, to make such payment directly
to the Trustee. Funher, upon the occurrence of an Event of Default and during lhe continuation
thereof and subject to any non-disturbance and attornment agreement which may be in effect. the
Trustee shall have the right to renegotiate. modi fy, cancel, waive any default with respect to I and
Olherwise take all actions in lieu of the Company with respect to any agreement covering
residential units in the Project.
,~.J
37
f9-/8"
~
. ..........
"
The Company hereby irrevocably designates and appoints the Trustee as the true and lawful
attorney of the Company, for any period during which an Event of Default shall have occurred
and be continuing. and authorizes the Trustee as such attorney. either in the name of the Trustee
or in the name of the Company f (i) to take any and all actions with respect to this Agreements
covering residential units in the Project which the Trustee may deem necessary or desirable and
(ii) to demand, sue for, collect, compromise, compound. receive, give receipts for, and give
acquittances for any and all Revenues and to take any and all actions to realize cash proceeds from
the Revenues which the Trustee may deem necessary or desirable, including the power to open
and dispose of mail addressed to the Company and to endorse in the name of the Company any
checks, drafts, notes or other instruments received in payment of or on account of such Revenues.
The Company represents and warrants that (i) it has full power and authority and has the
lawful right to assign 'and grant a first lien security interest in the Revenues as provided herein,
and (ii) the Revenues are free and clear of all encumbrances other than Permitted Encumbrances.
The Company warrants fully the title lhereLO and to every part thereof, and covenants and agrees
to defend that title against the claims of all Persons and to maintain, except for Permitted
Encumbrances and to the extent provided otherwise herein, the priority of the assignment of and
the security interest granted in the. Revenues.
"
In connection with the incurrence of Parity Debt pursuant to and as permitted by Section 5.5
hereof, the Company may assign or grant to the owner of that Parity Debt a security interest in
all or any part of the Revenues on a parity with the assignment made and the security interest
granted pursuant to the preceding provisions of this Section. Any assignment made or security
interest granted pursuant to the immediately preceding sentence shall be made upon substantially
the same terms as are used in this Section in making the assignment and granting the security
interest in this Section.
~-.."..-/.
Except for Permitted Encumbrances and as otherwise authorized expressly in this
Agreement, tile Company covenants and agrees not to do or suffer anything to be done whereby
any of the Revenues with respect to which an assignment is made or a security interest is granted
in this Section may be encumbered by any lien, charge. security interest or assignment.
The Company shall not pennit any of its Property (other than Excluded Property) to become
subject to any security interest, lien, charge or encumbrance not constituting a Permitted
Encumbrance and not otherwise pennhted under the tenns of this Agreement.
Section 5.2. Debt Service Coverage Ratio. The Company shall tix, charge and collect,
or cause to be fixed, charged and collected, fees, rentals, rates and charges for the use of the
Mortgaged Property and services provided or to be provided in connection therewith, that shall
be at least sufficient to produce in each full Fiscal Year following completion of the Project a Debt
Service Coverage Ratio for such Fiscal Year that is nOl less than 1.30. On or before the one
hundred and twentieth day following the end of each Fiscal Year, beginning with the tirst full
Fiscal Year after completion of lhe Project, the Company shall notify the Trustee of the Debt
. I
~-.,/
38
99 -If{"
.....~ ,'r.' > .:a.:.~ ~ J
.,",
.
,
Service Coverage Ratio for such Fiscal Year. If the Debt Service Coverage Ratio. as calculated
tor any Fiscal Year, is less than 1.30, the Company (i) shall notify the Trustee of the Company's
failure to achieve the Debt Service Coverage Ratio, (ii) take all action necessary to cause the fees,
rentals. rates and charges imposed and collected by it in connection with its operation of the
Mortgaged Property to produce the amount required by such paragraph. and (iii) employ a
Consultant to submit to the Trustee a written report and recommendations with respect to the fees,
rentals, rates and charges imposed and collected by the Company and other items of Revenues in
connection with its operation of the Mortgaged Property and with respect to improvements or
changes in the operations or management of or the services rendered by the Company.
The Company shall follow any reasonable recommendation of the Consultant retained by
or on behalf of the Company pursuant to this Section. If the Company revises or adjusts or causes
to be revised or adjusted its fees, rentals, rates, charges and other Revenues,. operating costs,
occupant mix, intensity or scope of service or marketing approach in conformity with the
recommendations of the Consultant and otherwise follows such recommendmions of the
Consultant, then the Company's failure to achieve the Debt Service Coverage Ratio of 1.30 ;n any
Fiscal Year shall not constitute an Event of Default under this Agreement.
Until such time as the Company shall achieve the Debt Service Coverage Ratio of 1.30, the
Trustee may require the Consultant to update its report and to file such additional reports or
recommendations as may reasonably be requested by the Trustee from time to time.
\...._/.
If approvals of any regulatory or supervisory authority are required in order to fix. charge.
collect and olherwise implement any fees. rentals. rates, charges and olher Gross Revenues
required by the operalion of this Secrion (including, without limitation, any fees~ rentals. rates,
charges and other Revenues recommended by the Consultant), the Company shall take all action
within its power to obtain such approvals in the most expeditious manner available to the
Company.
The Company :;ha11 maH a copy of any report of any Consultant filed with the Truslee in
accordance with this Section to any Holder who has made written request therefor of the
Company, and so long as the Series 1999 Bonds are Outstanding, B.C. Ziegler and Company.
If the Company fails to retain a Consultant as required herein the Trustee may, at the
expense of the Company t retain such Consultant and the Company shall pay such expense as an
Additional Payment.
Section 5.3. Calculation of Principal and Interest Requirements. For all purposes of
this Agreement, the following shall apply to the calculation of the Principal and Interest
Requi rements:
(a) Principal and Interest Requirements on Outstanding Long-Term Debt, or portions
thereof, shall not be included in the computation of the Principal and Interest Requirements until
I.
I
I~
39
91~ /~
;)
c ~."
the Fiscal Ycar in which such principal or interest. or portions thereof, first become payable from
sources other than amounts deposited in trust, escrowed or othcrwise set aside tor the payment
thereof (including, without limitation. capitalized intcrest and accrued interest so deposited into
trust, escrowed or otherwise set aside) with the Trustce or another Person approved by the
Trustee.
i'
I
(b) Principal and Interest Requirements on any Long-Term Debt having a single principal
maturity and no sinking fund redemption requirements, or having a principal amount due in any
Fiscal Year which exceeds 25% of the total principal amount of such Long-Term Debt may be
recast, at the election of the Authorized Company Representative. on the assumption that the
principal amount of such Debt is to be amortized on a level debt service basis over 20 years and
bearing interest at its stated rate or rates.
(c) The interest rate on any variable rate Long-Term Debt shall be assumed to be. in any
future period tor which the calculation is being made, the rare per annum which was in effect as
of the last day of the calendar month next preceding thc month in which the calculation of the
Debt Service Coverage Ratio is being made or, if no rate was in effect on such day, then the rate
per annum which was in effect on the date on which such variable rate Long-Term Debt was
issued or incurred.
. .....- ''',
... }
'-
(d) In the case of guarantees of debt which would constitute Long- TenTI Debt if such debt
were Debt of the Company, 20% of the principal and interest due on the guaranteed debt
(Calculated as provid~ in this Section) shall be deemed to be Principal and Interest Requirements
of the Company. However, if the Company makes or has made a payment pursuant to a guaranty,
100% of the principal and interest due on the guaranteed debt shall be deemed to be Principal and
Interest Requircments of the Company unless and until 24 months have elapsed from the last of
such payments. at which time 20% of the principal and interest requirements on the guaranteed
debt shall be counted.
(e) No Debt shall be counted morc than once.
(f) Principal and Interest Requirements on Debt secured by and payable solely from the
revenues and/or property associated with a project financed with such Debt and with no recourse
directly or indirectly to any other Property or revenues of the Company shall not be included in
the Principal and Interest Requirements for purposes of calculating the Debt Service Coverage
Ratio.
Section 5.4. Permitted Debt. Effective as of the date of delivery of the Series 1999
Bonds. the Company will not incur or permit to remain outstanding any Debt other than its Debt.
obligations with respect to the Series 1999 Bonds and any additional Permitted Debt described
below (provided that at the time of incurrence of any additional Debl, no Event of Default or
event which with notice or lapse of time, or both. would constitute an Event of Default shall have
occurred and be continuing under this Agreement):
.~
40
r9'-/~
..)
(a) Long-Term Debt (variable or fixed rate). provided that the rcquirements' of
[subparagraph (i) QJj subparagraph (ii) .or subparagraph (iii) are satisfied and~ if such Debt shall
be Parity Debt. the requirements of Section 5.5 hereof shall be satisfied:
I .
I.
I'
[(i) the principal amount of the Long-Term Debt proposed to be incurred, together
with the currently Outstanding principal amount of any other Long-Term Debt previously
incurred pursuant to this subparagraph (a)(i) of Section 5.4, does not exceed 10% of the
Total Operating Revenues as shown on or calculable from the audited financial statements
of Lhe Company for the most recent Fiscal Year for which audited tinancial statements have
been delivered to the Trustee, or]
(ii) the Company shall have delivered to the Truslce a certificate of the Company's
Auditor to the effect that (A) for each of the two most recent Fiscal Years for which audited
tinancial statements have been delivered to the Trustee. the Debt Service Coverage Ratio,
calculated as if the Long-Tenn Debt proposed to be incurred had been oUlstanding in those
years, was not less than 1.35x; or (B) for the most recent FiscaJ Year for which audited
financial statements have been delivered to the Trustee, the Debt Service Coverage Ratio,
calculated as if the Long- Tenn Debt proposed to be incurred had been outstanding in such
year, was not less than ] .SOx; m:
(iii) the Company shall have delivered to the Trustee the following:
; )
.........
(A) a certificate of the Company's Auditor to the effect that for the most recent
Fiscal Year tor which audited tinancial Slalemems have been delivered to the Trustee,
the Debt Service Coverage Ratio, calculated without including the Long-Term Debt
proposed to be incurred, was at least 1.25x ami
(B) a repon or opinion of a Consultant or an Auditor to the effect that the
forecasted Debt Service Coverage Ratio (including the Long-Term Debt proposed to
be incurred) for each of the first two full Fiscal Years following the completion of the
acquisition, construction, renovation or replacement being paid for with the proceeds
of such additional Long-Term Debt, or following the incurrence of Long- Tenn Debt
for refunding purposes, is not less than 1.25x;
provided; however, that in the event that a Consultant shall deliver a report to the Trustee
to the effect that Governmental Restrictions then in existence do not permit or by their
'application make it impracticable for the Company to produce the required ratios set forth
above and the borrowing is necessary to maintain and preserve the Company's property,
plant and equipment or to maintain or enhance the Company's market position, then such
ratios shall be reduced to the highest practicable ratios then permitted by such laws or
regulations but in no event less lhan 1.00 in case of subparagraphs (A) and (B).
v
41
99 - /fb
'.,
<,../
o
(b) Refunding Debt (variable or fixed rate); provided that the reports or opinions set forth
in paragraph (a) of this Section 5.4 shall be ddivcred unlcss at the time of issuance of such
Refunding Debt and after giving effect thereto and to the application of the proceeds thcreof the
aggregate maximum annual Principal and [nterCSl Rcquirements of the Company (delcrmincd in
the same manner as if a calculation of the Debt Service Coverage Ratio were being made) on all
Long-Term Debt then to be outstanding (Le., after issuance of the Refunding Debt) does not
exceed the aggregate maximum annual Principal and Interest Requirements of the Company
(determined as aforesaid) on all Long-Term Debt outstanding immediately prior to the issuance
01' such Rcfunding Debt by more than ten perccnt (10%).
(c) Short-Term Debt (variable or fixed rate); provided that the combined Outslanding
principal amount of Short-Term Debt incurred pursuant to this paragraph (c) of this Section, does
not cxceed 10% of the Total Operating Revenues as shown on or calculable from the audited
financial statements of the Company tor the most recent Fiscal Year for which financial statements
have been delivered to the Trustee. For a period of 20 consecutive days during each Fiscal Year
no Short- Tenn Debt shalJ be outstanding in excess of 5 % of such rotaJ Operating Revenues.
(d) Nonrecourse Debt secured by and payable solely from property associated with the
Project financed. by such nonrecourse Debt (which shall be property other than the Mortgaged
Property) with no recourse directly or indirectly to any other property or assets of the Company.
(e) Interim Debt incurred in anticipation of being retinanced with Long-Term Debt;
provided that. at the time such Interim Debt is incurred or assumed. there shall be delivered to
the Trustee:
(i) a certificate of an Authorized Company Representative stating that the Company
reasonably expects to retinance the Interim Debt by the issuance of Long-Term Debt within
the next 60 months;
(ii) reports or opinions of the type required by either subsection (a)(ii) or (a)(iii) of
this Section 5.4 demonstrating that all requirements of either subsection would be met if
such Interim Debt were then being issued as Long-Term Debt maturing as provided in
Section 5.3(b); and
(iii) either (x) evidence that such Interim Debt is secured by an irrevocable extension
of credit, or an agreement to purchase such Interim Debt from the holder thereof or (y) a
written statement of an investment banker, experienced in the underwriting of Long-Term
Debt of the type in anticipation of which such Interim Debt is proposed to be incurred or
assumed, to the eftect that Long-Term Debt maturing over the term and bearing interest at
the rate referred to in the foregoing paragraph (ii) would, if then being offered, be
marketable on reasonable and customary terms;
42
99-1 ~
')
provided that in no event shall the outstanding principal amount of Interim Debt outstanding
at any time excecd 10% of Total Opcrating Revenues as shown on or calculable from the
audited financial statements of the Company for the most recent Fiscal Year for which
tinancial statements have been delivered to the Trustee.
(t) Any continuing obligation of the Company to pay principal of and interest on Debt
which is deemed to be discharged or defeased in accordance with the terms of th~ instrument or
instruments creating or evidencing such Debt; provided, however. that there is delivered to the
Trustee a letter from an Auditor veritying the adequacy of any escrow established in connection
with the discharge or defeasance of such Debt.
- ,
,
(g) [Debt subordinate to the Bonds in right of payment if the written instruments
evidencing the subordinated Debt include provisions to the effect that upon any acceleralion of
amounts due Wilh respect to such subordinatcd Debt or upon any dissolution. liquidation or
reorganization of the Company in bankruptcy. insolvency. rcceivership or other proceedings. no
payment shall be made with respect to such subordinated Debt until after all payments due with
respect to Bonds and Parity Debt have been made in full. The Company's compliance with the
provisions of this subparagraph shall be evidenced by delivery to the Trustee, not less than ten
days prior to the incurrence of such subordinated Debt, of (i) copies of all instrumenlc; relating to
the subordinatcd Debt and (ii) an opinion. satisfactory in form and substance to the Trustee, of
Independent Counsel to the effect that those instruments comply with the restrictions of this
subparagraph and are legal, valid, binding and enforceable, with appropriate exceptions for
bankruptcy, insolvency and similar laws and for equitable principles.)
. )
------
Except as provided otherwise herein, including, without limitation, Sections 5.5 and 5.7,
the Debt, liability or obligation of the Company to pay principal, interest, rent, charges,
guarantees and other amounts under any Debt, liability or obligation or any lease, promissory note
or other instrument or document related thereto, shall be unsecured at all times; provided that the
Company may grant a lien on its Revenues and a mortgage on or a security interest in the Project
provided that such lien, mortgage and security interest shall specifically be made subordinate to
the lien on Revenues and security interest on the Project herein created and the mortgage and
security interest created in the Mortgage and there shall be no right to foreclose or otherwise
enforce such lien or mortgage so long as the lien and security interest of this Agrecment and the
mortgage and security interest of the Mortgage are not being foreclosed or enforced.
Debt incurred under one paragraph of this Section may be reclassified to another paragraph
of this Section if, following such reclassification, the Company will be in compliance with the
provisions of this Section, calculated as if such Debt was incurred on the date of such
rec lassi tication.
Section 5.5. Parity Debt. So long as there does not exist an Event of Default and
subject to the conditions provided herein, the Company has the right to incur Parity Debt, secured
by the Mongaged Property (as dcfined in the Mortgage) on a parity with the Series 1999 Bonds,
.J
43
1'1 - I~
.,-..\
,
.J
..
o
~ ~fl I.q.~.~. ..,.em. ..,-
for paying costs of any improvements, completing any improvement, financing acquisitions or
start-up costs of new programs and services and equity contributions in joint ventures or similar
investment opportunities, or refunding or advance refunding all or any portion of any series of
Bonds or any Parity Debt. or any combination of such purposes. The costs of any improvements
for which Parity Debt may be incurred is not restricted by the definition of the term Ucosts of
health care facilities" contained in the Act.
Prior to the incurrence of any Parity Debt, the Company will provide evidence satisfactory
to the Trustee that each of the following conditions has been satisfied and will deliver to the
Trustee the following instruments and documents:
(a) any certifications, reports or opinions required under Section 5.4 to evidence that the
Parity Debt is Permiued Debt;
(b) any instrument or document evidencing the Parity Debl, which shall include:
(i) a cross default provision with respect to this Agreement, the Mortgage and the
Indenture,
(ii) provisions (which may be contained in a separate agreement to which the
Trustee is a pany) to the effect that, prior to exercising any remedies upon a default or event
of default by the Company under any instrument or document relating to the Parity Debt,
the holde,rs of the panty Debt (or a trustee representing their interests) shall cooperate with
the Trustee to the end that the intereSls of those holders and the Holders shall be proteclcd
equally and ratably t and
(iii) a provision that all Parity Debt and all indebtedness, liabilities and obligations
of the Company under this Agreement and the Indenture shall be payable from the Revenues
secured equally and ratably by all security provided for either or both. except that Parity
Debt shall not be protected or secured by the Special Funds;
(c) any instrument or document evidencing due authorization for the incurrence by the
Company of the Parity Debt;
(d) a certificate of the Authorized Company Representative that the Company is not in
default under this Agreement~ the Mortgage or the Indenture; and
(e) an opinion of Independent Counsel that the Parity Debt is legal, valid. binding and
enforceable in accordance wilh its terms subject to usual exceptions for creditors' rights, equity
and public policy.
In conncclion with the incurrence of Parity Debt, there shall be delivered to the Trustee an
opiniont satisfactory in form and substance to the Trustee, of Independent Counsel to the effect
44
9f-;r
. . c. .', ~.',
":
that each of the instruments and documents described in this Section complies with the
requiremenls of this Section and is a legal, valid, binding and enforceable obligation of the parties
signatory thereto and of the owners and holders of the Parity Debt, with appropriate exceptions
for bankruptcy. insolvcm.:y and similar laws and for equitable principles. Thal opinion shall be
delivered to the Trustf..'e at least ten (10) days prior to the incurrence of the Parity Debt or within
any shorter period which shall be satisfactory to the Trustee.
The Company will take aU actions (including without limitation, amending or supplementing
the Indenture, this Agreement and any other collateral instrument or document) and will eXCCUle,
deliver, file and record all instruments and documents of security which are required by this
Agreement or the Indenture, which relate to the Parity Debt. which are required by law. or which
the Company, the Issuer or the Trustee determines to be necessary or advisable, upon the advice
of Independent Counsel, to make or grant lO the holders of the Parity Debt a right for payment
from and an assignment of and a security intereSI in any properly. or to secure those holders
otherwise, on a parity with that of all other holders of ParilY Debt and lhe Holders.
, \,~
I,.. ~-rr~1
As a condition to the incurrence of the Parity Debt. the Company shall execute, deliver, file
and record and cause to be executed, delivered, filed and recorded all instruments and documents
which are required by this Agreement or the Indenture, which relate to the Parity Debt, which are
required by law or which the Company, the Issuer or the Trustee determines to be necessary or
advisable, upon the advice of Independent Counsel, to make or grant to the Trustee an assignment
of and a security interest in any property which is the subject of an assignm~nt made or a security
interest granted to the holders of the Parity Debt and not made or granted theretofore to the
Trustee, or lO secure the Trustee otherwise, on a parity with those holders.
The actions taken pursuant to this Section shall be taken to the end that all of the outstanding
Parity Debt and all Outstanding Bonds !ihall be of equal rank and shall be entitled to share on a
parity in 'all security granted under this Agreement in Revenues, except that Parity Debt shall not
be protected or secured by the Special Funds or any Issuer Document.
Within a reasonable period, not to exceed 180 days, following the issuance of any Parity
Debt, the Company shall deliver to the Trustee conformed copies of all instruments and documents
supporting or evidencing the Parity Debt.
Section 5.6. Restrictions on Disposition of PropertY: Lease or Use of Proiect. The
Company covenants that it wiff not self, lease or otherwise dispose of its Property except as
permitted by this Section or by other provisions of this Agreement.
(a) Subject to Article IV and Section 7.2 of the Mortgage, the Company may sell.
transfer, lease, trade. conveyor otherwise dispose of any Property if: (i) the disposition is in the
ordinary course of the Company's business, (ii) the disposition is in exchange for or results in the
receipt of property of equal or greater value and usefulness, (Hi) the disposition of the Property
is for its fair market value and on terms no less favorable than would be obtained in an armts
.....,)
45
11, I~
\
I
1
I
I
:1
,
i
._.~.~................. ~ _...........--.......-.-..~------
I
J
"~
length transaction and such disposition will not cause the Company to be in breach of any of its
covenants under this Agreement, or (iv) all such dispositions in any consecutive twelve month
pe,riod does not exceed five percent of the total revenue of the Company for the same period and
such disposition will nO[ cause the Company to fail to be in complianct' with the rate covenant sel
torth in Section 5.2 hereof or the liquidity covenant set forth in Section 5.23 hereof.
(b) Subject to Article IV and Section 7.2 of the Mortgage, the Company may sell,
transfer, lease, trade, conveyor otherwise dispose of any real or personal Property if in the
reasonable judgment of the Company set forth in a certiticate delivered to the Trustce and signed
by an Authorized Company Representative, the Property so disposed is, or is expected to become
within the next 24 months, inadequate, obsolete, worn out. unsuitable. undesirable, unprofitable
or unnecessary and the sate, lease, removal or other disposition of the Property will not impair
the structural soundness, efficiency or economic value of the rcmai ning Property.
This Section shall not be construed to limit the rights of the Company to transfer or
otherwise dispose of its cash or investments in connection with arm I s length transactions which
are undertaken for the purpose of investing or reinvesting cash or investments of the Company.
The Issuer and the Trustee shall execute such documents as are necessary to release any
security interest it may have in Property which the Company disposes of in accordance with and
as penniued by this Agreement.
.-.........
(c) Additionally, with respect to the lease or grant of use of the Project, the folfowing
additional conditions shall apply:
I
.......,,/'
(i) No such grant or lease shall relieve the Company from its obligations under this
Agreement, the Irlfjenture, the Mortgage or the Notes;
(ii) In connection with any such grant or lease the Company shall retain such rights
and interests as will permit it to comply with its obligations under this Agreement, the
Indenture, the Mortgage and the Notes;
(Hi) No such grant or lease shall impair materially the purposes of the Act to be
accomplished by operation of the Project as herein provided; and
(iv) Any such grant or tease (i) shall be subject to the terms and conditions of this
Agreement~ including, without limitation, those provisions with respect to the maintenance,
operation and insuring of the Project. (ii) shall expressly prohibit the lessee or user from
assigning its interest to others or subleasing the Project or any part thereof or granting to
others any use of the Project or any part thereof, and (iii) shall contain provisions deemed
by Bond Counsel [0 be necessary to comply with the Act, the Code, and this Agreement.
.J
46
c;q ,/ f{(
l't1ll+ir~"'.i'I:''':~.' ".
Section 5.7. Pennitted Encumbrances. Effective as of the date of delivery of the Series
1999 Bonds, the Company covenants that it will not create or suffer to be created or exist any
mortgage, lien, security interest, charge or other encumbrance ("Lien") on any of its Property
except for Permitted Encumbrances. which shall consist of the following:
(a) the Mortgage, and the liens existing on the Project as of the date of delivery of this
Agreement, as listed in Exhibit E hereof;
(b) any liens securing all Bonds and Parity Debt;
(c) liens arising by reason of good faith deposits by the Company in connection with
tenders, leases of real estate, bids or contracts (other than contracts for the payment of money),
deposits by the Company to secure public or statutory obligations. or to secure, or in lieu of,
surety, stay or appeal bonds and deposits as security for the payment of taxes or assessments or
other similar charges;
. J
.........,~
(d) any liens arising by reason of deposits with, or the giving of any form of security to,
any governmental agency or any body created or approved by law or governmental regulation for
any purpose at any time as required by law or governmental regulation (i) as a condition to the
transaction of any business or the exercise of any privilege or license, or (ii) to enable the
Company to maintain self-insurance or to participate in any funds established to cover any
insurance 'risks or in connection with workers' compensation. unemployment insurance, old age
pensions or other social security, or to share in the privileges or benetits required for companies
participating in such arrangements;
~. \
(e) any judgment lien or mechanic lien against the Company, so long as the finality of
such judgment is being contested and execution thereon is stayed or provision for payment of the
judgment has been made in accordance with applicable law or by the deposit of cash or
invesunents with the Trustee or a commercial bank or trust company acceptable to the Trustee or
adequate insurance coverage is available to satisfy such judgment;
(t) such defects, irregularities, encumbrances, patent reservations, utility easements,
access and other easements and rights-of-way, restrictions, exceptions and clouds on title as do
not, in the reasonable determination of the Company, as evidenced by a certificate of an
Authorized Company Representative delivered to the Trustee, materially adversely affect the
interest of the holders of Bonds and Parity Debt and as do not materially interfere with or impair
the operations being conducted in connection with the Property affected thereby (or, if no
operations are being conducted therein, the operations, if any, for which such Property was
designed or last modified);
(g) any mortgage, security interest, lien, charge or encumbrance securing nonrecourse
Debt, as described and permiued under Section 5.4(d) of this Agreement (including a pledge of
the revenues derived from the Property financed by such nonrecourse Debt which may be superior
v
47
99-18"
..t'..f.....-...:..f(. t' I' ..'
.-.......
" \
,
to the pledge of Revenues under Section 5.1 of this Agreement) and which do not extend to any
Property other than that acquired with the proceeds of such nonrecourse Debt;
I
I.
(h) any security interesl. lien. charge or encumbrance upon Revcnues or othcr current
assets of the Company securing Short-Term Debt permitted under Section 5.4(c) of this
Agreement;
(i) any security interest in Property which may be granted to secure Parity Debt as
permitted under Section 5.5 of this Agreement;
U) liens on proceeds of Debt (and investment income on such proceeds) that secure
payment of such Debt;
(k) encumbrances arising from grants, charitable contributions or donations. loans and/or
guarantees of Debt by federal. state and local governments or agencies thereof; .
(I) liens for taxes, special assessments or other governmental charges not then delinquent
or being contested in accordance with the provisions of this Agreement;
(m) liens resulting from governmental regulations'on the use of property;
.. .'\
'.J
(n) purchase money licns securing permitted Debt incurred within 90 days of the date of
acquisition of Property subject to such lien so long as such lien is limited to the Property so
acquired and the Debt secured thereby does not exceed the lesser of the cost or the fair market
vaJue of the Property so acquired;
(0) mortgages, liens. charges and encumbrances existing on the date on which property
which has not theretofore been owned by the Company is acquired by the Company, so long as
on the date of such acquisition a certificate of an Authorized Company Representative is delivered
to the Trustee contirming that the fair market value of such property, as certified by an Appraiser,
is at least equal to the then outstanding principal balance of all Debt secured by such liens, charges
and encumbrances; and
(p) leases of real Property or agreements relating to the use of space within real Property
for anyone or more of the following purposes (subject to applicable zoning requirements and
restrictions) :
(i) the provision of health care services such as, but not limited to, patient
examinations, medical treatment, physical and occupational therapy. psychiatric or
psychological or social counseling,
(ii) resident or employee convenience activities such as, but not limited to, banking
servicest travel agencies, gift shops, snack shops, barber or beauty shops, doctors. or
I
'.....,/
48
19~tr
~)
dentists' offices and accommodations. flower shops, counseling services. pharmacy and
living accommodations for persons providing services within the Project,
(iii) in connection with arrangemcllls with or for the bem:tit of physicians. nurses,
paramedics, counselors, or other persons providing health and medical or health and medical
support or rehabilitation services to the residents of the Company's facilities, so long as the
Trustee shall have received a certificate of an Authorized Company Representative
confirming that either (A) as of the date of attachment thereof such liens, charges,
encumbrances and leases, both individually and in the aggregate, do not materially and
adversely affect Net Income Available for Debt Service and the lessor has retained the right
to increase the rents payable thereunder to satisfy any recommendations of a Consultant
rendered pursuant to Section 5.2 of this Agreement, (B) the book value of the Property of
the Company (other than that financed with the proceeds of nonrecourse Debt) encumbered
by liens, charges, encumbrances or leases described in this clause (iii) does not exceed 3%
o(the book value of all Property of lhe Company (other than thatlinanced with the proceeds
of nonrecourse Debt) or (C) one of the tests for disposition of Property set forth in Section
5.6 of this Agreement would be satisfied if the attachment of such lien, charge or
encumbrance or the execution of such lease were deemed a sale or other disposition of such
Property,
(iv) in connection Wilh leases to residents for residential purposes,
.~~~)
(v) other purposes so long as such lease (A) shall be, as of the date of the execution
thereof. upon tern1S no less favorable to the lessor lhan "arm's length" and (B) shall permil
the lessor to adjust the rents payable thereunder to satisfy the recommendations of a
Consultant delivered pursuant to Section 5.2 of this Agreement.
Section 5.8. Maintenance of COI:porate Existence. The Company covenants and agrees
that during the term of this Agreement it will maintain its corporate existence as a nonprofit
"health care agency" as defined in the Act with aU of its present rights and franchises, except as
pern1itted otherwise hereunder. In particular, the Company will not:
(i) dissolve, sell, transfer or otherwise dispose of all or substantially all of its assets
(either in a single transaction or a series of related transactions);
(ii) consolidate with or merge into another Person: or
(Hi) permit one or morc other Persons to consolidate with or merge into it;
provided that the Company may, without violating thc covenants, agreements and obligations
containt..'<1 in this Section, consolidate with or mcrge into one or more other Persons, permit one
or more other Persons to consolidate with or merge into it, or sell or lransfer to one or more other
Persons all or substantially all of the Company's assets as an entirety and thereafter dissolve if
;
'-...)
49
r1;" / r
__ ____ __________.___..__..___..________1
/'.,
I.' 1
(a) such Person or Persons (the "Transferee") (i) is organized and existing under the
laws of the Uniled States, one of the states or territories of the United States or the Dislrict
of Columbia, (ii) is qualitied to transact business as now and as intended to be transacted
by the Company and possesses all governmental powers and approvals necessary lO own or
operate the Company's properties, (iii) is a governmental unit, as that term is used in
Section 145 of the Code, or an organization described in Section 501(c)(3) of thc Code and
(iv) expressly assumes in writing aU of the covenants, agreements and obligations of the
Company under this Agreement, the Notes, the Mortgage, the Indenture and all other
instruments and documents executed and delivered by the Company in connection with the
then Outstanding Bonds by an instrument or document satisfactory in form and substance
to the Trustee; and
(b) the Company shall have furnished to the Trustee an opinion of Bond Counsel
that the consolidation, merger. sale or other transfer does not affect adversely lhe validity
of the Outstanding Tax-Exempt Bonds or the exclusion from gross income for federal
income tax of the interest on Outstanding Bonds which have theretofore been deHvered
accompanied by an Opinion of Bond Counsel that interest thereon is excludable from gross
income for federal income tax purposes; and
(c) the consolidation, merger, sale or other transfer does not affect adversely (i) the
priority or the status of this Agreement as a legal, valid and binding agreement or its
enforceability and Oi) the priority or the Slatus of the lien of the Mortgage; and
\",/
(d) the Company causes to be delivcred to the Trustee (i) a written rcport of a
Consultant, dated not more than 90 days prior to the consolidation, merger, sale or other
transfer, to the effect that, based on audited financial statements of the Company and the
Transferee for such Fiscal Year, assuming that such merger, consolidation, sale or other
transfcr occurred as of the last day of the most recent Fiscal Year for which audited
financial statements are available and with any adjustments for differing Fiscal Years, the
Company would have been able to issue one dollar in Parity Debt in accordance with the
provisions of Section 5.5 hereof and (ii) a written opinion of a Consultant stating that, aftcr
giving effect to the consolidation, merger, sale or other transfer, the net worth of the
Transferee will be at least 100% of the net worth of the Company immediately preceding
the consolidation, merger, sale or other transfer; and
(e) the Trustec shall have received an opinion of Independent Counsel, satisfactory
. to the Trustee in form and substance, and based upon certifications and examinations
satisfactory to the Trustee, to the effect that
(i) immedialely after the consolidation, merger, sale or other transfer. the
Transteree will not be in ddault in the observance or pertormance of any covenants,
agreements or obligmions hereunder, including without limitation, Section 5.4 hereof,
~
50
I
1
I
I
:1
I
I
I
11 - If(
..~
(ii) the assumption by the Transferee of the Company's covenants. agreements
and obligations hereunder constitutes a legal, valid, binding and enforceable obligation
of the Transferee, with appropriate exceptions for bankruptcy. insolvency and similar
laws and for equitable principles. and
(Hi) the Company and the Transfcree are authorized by the laws of the State
(and other appropriate jurisdictions) to effect the consolidation, merger, sale or other
transfer and the consolidation, merger. sale or other transfer is permitted hereby.
If a consolidation, merger; sale or other transfer occurs as provided in this Scction. the
provisions of this Section shall continue lO be in full force and effect, and no further
consolidation. merger, sale or other transfer shall be made except in compliance with the
provisions of this Section.
Section 5.9. Annual Audit and Periodic Report. The Company covenants and agrees
that it will keep true and proper books of records and accounts in which full and correct entries
will be made of all of its business transactions, and that it will reflect in its financial statements
the revenues subject to the assignment of Revenues made in Section 5.1 hereof, all in accordance
with generally accepted accounting principles.
The Company will have an annual audit made by the Auditor of its tinancial statements in
accordance with generally accepted auditing standards. So long as any Bonds are outstanding, the
'-) Company will deliver to the Truslee, such Holders as shall make written requests theretor to the
\:~.~ Company and, so long as the Series 1999 Bonds are outstanding, B.C. Ziegler and Company,
promptly within 120 days after thecnd of each Fiscal Year of the Company,
(a) a copy of the Company's audited tinancial statemcnts. including without
limitation, a balance sheet or statements of assets, liabilities and fund balances as of the end
of that Fiscal Year, statements of revenues and expenses or margin, and statements of cash
flows for that Fiscal Year, and
(b) a certificate signed on behalf of the Company by the persons performing the
functions of the administrator or chief financial officer of the Company t which shall state
(i) to the best of the knowledge of each of the officers executing the
certificate, based solely on an examination of the latest financial audits, review of the
corporate minutes or record of proceedings of the Company's Board of Directors and
its Finance, Exel.:utive, Building and Property Committees (or such other major
standing committees then in exislence), there are no Defaults or Events of Default
under this Agreement, lhe Indenture or the MOrlgage or defaults or events of default
under the provisions of any Debt instrument or document and, without further
examination or investigation, lO the best of that officer's knowledge, no Default or
Event of Default exists on the part of the Issuer under the Indenture, or
o
51
qq'lrI
-
,-\
J
(ii) if in any case. a Default, Event of Default, default or event of default
described in or identitied pursuant to subparagraph (a) has occurred and is continuing,
specifying the nature thereof and any action which the Company is taking or proposes
to take with respect thereto.
While the Series 1999 Bonds are outstanding, the Company will furnish quarterly unaudited
financial statements and any other such information as may be reasonably requested to the Truslee,
the Initial Bondholders and B.C. Ziegler and Company within 45 days of the end of each quaner.
For purposes of this Section, the term "default" means a default as defined with respect to
the relevant document or instrument or any circumstance which is a violation thereof or, wilh the
passage of time or the giving of notice or both, would constitute an event of default thereunder.
Section 5.10. . Perfection of Security Interest. At the Company's expense, the Company
will cause any required or advisable tiling, registration, recording, refilingl reregistration or
rerecording to be made on behalf of the Issuer at the timesl in the manner and in the places, and
will pay all recording, registration, filing or other taxeSI fees and other charges, therefor, all in
accordance with all applicable statutes and regulations. Promptly after any filing, registration,
recording, refiJing, reregistration or rerecording, the Company will deliver to the Trustee a
certificate of an Authorized Company Representative or an opinion of Independent Counsel
addressed to the Trustee and acceptable to the Trustee, to the effect that the filing, registration,
, recording, refiling, reregistration or rerecording has been duly accomplished and setting forth the
~") particulars thereof.
"'~.....V'
Section 5.11. Right of Inspection. Subject to reasonable security and safety regulations
and upon reasonable notice, the Issuer, the Truslee, and, so long as the Series 1999 Bopds are
outstanding, B.C. Ziegler and Company, and their respective agents, shall have the right during
normal business hours to inspect the Mortgaged Property.
Section 5.12. Indemnification. The Company (i) releases the Issuer, the members of the
City Commission of the Issuer, its staff, agents, employees and consultants (collectively, the
"Indemnified Parties") from, (ii) covenants and agrees that the Indemnified Parties will not be
liable for, and (Hi) covenants and agrees to indemnify the Indemnified Parties for and to hold the
Indemnified Panies harmless against, all liabilities, claims, costs, losses and expenses (including
without limitation, to the extent pennitted by law, reasonable attorneys' tees and expenses), joint
or several, imposed upon or asscrled against the Indemnified Parties on account of or resulting
from the issuance of the Bonds, its execution, participation in or functioning under the Issuer
Documents and will reimbursc any legal or other expenses incurred reasonably by the Indemnitied
Parties in connection with investigating or defending any such liability, claim, cost, loss, expense,
action or proceeding; provided, however, that indemnitication under this Section shall not extend
to damages resulting from any maller not related to its capacilY hereunder or as issuer of the
Bonds.
.....)
52
1Cf~/~
'"}
The Company covenants and agrees further, that to the extent permitted by applicable law.
the Company shall assume liability for and indemnify. reimburse, protect. save and hold harmless
the Trustee, acting in its capacity as Trustee under the Indenture or as AUlhenticating Agent.
Paying Agent, Registrar or Tender Agent or in any olhcr capacity in connection with the Bonds
(collectively. the "Indemnitied Fiduciaries") and the respective survivors, assigns, agents,
employees, officers and directors from and against any and all liabilities. damages, penalties,
claims, actions, suits, costs, expenses and disbursements, including legal fees and expenses, of
whatsoever kind and nature (an "Indcmnitied Obligation") imposed on, asserted against or
reasonably incurred by the Indemnitied Fiduciaries in any way relating to or arising out of the
Issuer Documents or any of the transactions contemplated thereby, except that the Company shall
not be required to indemnify the Indemniticd Fiduciaries for any Indemnified Obligations
determined by a court of competent jurisdiction to have been the direct result of the gross
negligence or willful misconduct of an Indemnified Fiduciary.
)
.....-"....
The Company covenants and agrees further. as to all representations, warranties, covenants,
agreements and obligations of the Company under the Company Documents or in any other
instrument or document delivered by the Company in connection with the authorization, issuance
or sale of or performance under the Bonds and the provision of any infonnation concerning the
Mortgaged Property, the Company. s properties, management, history, operations or financial
status or forecasts, or any other matter, including without limitation, that information contained
in the [Preliminary Ofticial Statement] and the [Ofticial Statement] relating to the Series 1999
Bonds. each as amended or supplemented from time to time. prepared in connection with the
issuance and sale of the Bonds,
'.,
(a) to assume the cost of, and to indemnify the Issuer and the Trustee and to hold
them harmless against, all liabilities, claims, costs, losses and expenses, not paid from
proceeds of the Bonds, to which the Issuer or the Trustee may become subject. and
(b) to reimburse the Issuer and the Trustee for all out-of-pocket, legal and other
expenses (including without limitation, to the extent permitted by law, reasonable attorneys.
fees) incurred by the Issuer or the Trustee in connection therewith, with investigating any
of those liabilities, claims, costs, losses or expenses, or with defending against any actions,
claims or proceedings, except in each case to the extent related to information regarding the
Issuer or the Trustee furnished solely by the Issuer or the Trustee, as the case may be, which
was not provided by or in the name or on behalf of lhe Company or any other person.
At the request and the expense of the Company I the Issuer and the Trustee shall cooperate
in making any investigation and defense of any. action, claim or proceeding and shall assert
appropriately the righls, privileges and defenses which arc available to the Issuer or the Trustee,
as the case may be, in connection therewith; provided that the Company hereby indemnities the
Issuer and the Truslce and agrees [0 hold lhe Issuer and the Trustee harmless with respect to any
and all costs, losses or expenses in any way incurred or relative to such cooperation, defense or
assertion.
J
S3
1CJ-/f(
..-.......~'(..~c
'\
In case any action. claim or proceeding is brought or asserlcd against the Issuer or the
Trustee with respect to which indemnification may be sought under this Section, the Issuer or the
Trustee. as the case may be. shall give written notice thcreof promptly to the Company. No
failure of the Issuer or the Trustee to give. and no dclay in giving. that notice shall relicve the
Company to any extent from any of its covenants, agreements or obligations under this Section.
unless that failure or delay is not reasonable and materially prejudices the defense by the Company
of the action, claim or proca'ding, and only to the extent of the prejudice. The failure to give that
notice shall not relieve the Company from any obligation which it may have to the Issuer or the
Trustce, as lhe case may be, otherwise than under lhis Scction.
In case any action, claim or proceeding is brought against the Issuer or the Trustee, and the
Issuer or the Trustee, as the case may be, notifies the Company of the commencement thereof and
of its right to indemnification, the Company may, or if so requested by the Issuer or the Trustee
shall, participate therein or assume the detense thereof, with counsel approved by the Issuer or
the Trustee (such approval not to be unreasonably withheld), as the case may be; provided that,
except as provided below, the Company shall not be liable for the expenses of more than one
separate counsel representing the Issuer and one separate counsel representing the Trustee, as the
case may be, in the action, claim or proceeding.
"
After notice from the Company to the Issuer or the Trustee, as the case may be, of an
election by the Company so to assume the defense thereof, the Company shall be liable to the
Issuer or the Trustee, as the case may be. under this Section for any legal or other expenses
incurred subsequently al the request of the Company by the Issuer or the Trustee in connection
. with lhat defense. Notwithstanding any provision herein, the Issuer and the Trustee shall have the
right to assert and prosecute any and all counterclaims or crossclaims in connection with any
action in which either is named as a party. '
, If the Company shall not have employed counsel to have charge of the defense of the action.
claim or proceeding, or if the Issuer or the Trustee, as the case may be, shall have concluded
reasonably that there may be a defense available to it which is different from or in addition to
those available to the Company (i) the Company shall not have the right to direct the defense of
the action, claim or proceeding on behalf of the Issuer or the Trustee, as the case may be, if there
is or reasonably appears to be a conflict of interest between the Company, on the one hand, and
the Issuer or the Trustee, on the other hand, and (ii) reasonable legal and other expenses incurred
by the Issuer or the Trustee (including without limitation, to the extent permitted by law,
reasonable attorneys. fees and expenses) shall be borne by the Company.
The release and indemniticalion pursuant to this Section arc intended to and shall include
lhe release and indemnitication of atl affeclcd officials. directors, ofticers and employees of the
Issuer and the Trustee, respectively. to the same extent and subject to the same terms as are lhe
release and indemnitication of the Issuer and the Trustee, respectively. The release and
indemnification are imended co and shall be enforceable by each indemnified Person to the full
cxtent penniucd by law. All amounts payable under this Section, together with interest thereon
.j
54
Cf1-/f{
/' ~....,\
at the Interest Rate for Advances from the date of any payment of any amount by the indemnified
Person, shall constitute Additional Payments and shall be paid by the Company on demand by the
indemnified Person. In any action brought to collect those Additional Payments. the indemnified
Person shall be entitled to the recovery of the Additional Payments, except as limited by law or
judicial order or decision.
The covenants, agrccments and obligations of the Company under this Section shall survive
the payment of the Series 1999 Bonds.
,
I:
I.
Section 5.13. Company Not to Adversely Affect the Exclusion From Gross Income of
Intercst on Tax~Exempt Bonds. The Company hercby represents that it has taken and caused to
be taken, and covenants that it will take and cause to be taken, all actions that may be required
of it, alone or in conjunction with the Issuer, for the interest on the Tax~Exempt Bonds to be and
remain excluded from gross income for federal income taX purposes, and represents that it has not
taken or permitted lO be taken on its behalf, and covenants that it will not take or permit to be
taken on its behalf, any actions that would adversely affect such exclusion under the provisions
of the Code.
"-/
Section 5.14. Litieation Notice. The Company shall give the Trustee prompt notice of
any action, suit or proceeding by it or against it at law or in equity, or before any governmental
instrumentality or agency, Of of any of the same which may be threatened, which, if adversely
determined, would materially impair the right of the Company to carry on the business which is
contemplated in connection with the Mongaged Property, or would malerially and adversely affecl
its business, operations, properties, assets or condition.
Section 5.15. Governmental Pennits and Re~ulations. The Company shall comply with
all valid governmental regulations applicable to it and its operations and properties and shall obtain
and keep in force all permits and licenses necessary therefof.
Section 5.16. Annual Budgets. So long as any amount shall remain unpaid under the
Notes, the Company will prepare and adopt an annual budget for each fiscal year covering the
operation of the Project and all other operations of the Company. Each such annual budget shall
be prepared and submitted to the Board of Directors of the Company at least thirty (30) days prior
to the commencement of the fiscal year to which it applies, and such annual budget shall be
approved and adopted by the Board of Directors prior to the commencement of such fiscal year.
If an annual budget is not adopted for any new fiscal year prior [0 the commencement thereof,
then the annual budget (if any) in effect as of the end of the next preceding fiscal year shall be
used for such new fiscal year until replaced by an annual budget adopted therefor in accordance
with the provisions of this Section.
The annual budget for each fiscal year shall contain (i) a projection of all Revenues expected
to be received by the Company during each such fiscal year, (ii) a projection of all expenses
expected to be incurred by the Company during each calendar month of such fiscal year, reflecting
o
5S
f'1/lr
-.......~~~....~.... .......~~.r.&.. I
. .' '. .' ~
-------
~.&...
"')
a reasonable breakdown of such projected expenses into separate accounts. (iii) a projection of the
debt service payments and any addilions to or replenishments of reservcs required during each
calendar month of such fiscal year with respect to the Bonds and any indeblcdness of the Company
permitted by this Agreement, together with a corrcsponding projection of the Net Income
Available for Debt Service during each such calendar month, (iv) a projected balance shect for
the Company as of the end of each quarterly accounting period during such fiscal year, (v) a
schedule of capital expenditures (including all installment purchases) proposed to be made by the
Company during such fiscal year. including in the schedule of such capital expenditures. any
proposed lease having a ternl in excess of one year, irrespective of whether such lease is required
to be capitalized under generally accepted accounting principles. and (vi) such other statistical
infonnation related to the projecled operalions of the Company as the Company may deem useful.
,;
[Within 30 days of the adoption of its Annual Budget .or each fiscal year the Company shall
provide a copy of the same to the Trustee, B.C. Ziegler and Company and lhe Florida Department
of Insurance in accordance with Chapter 651, Florida Stalutes.]
.~.')
'..~./
Section 5.17. Proiect as Public Facility. The Company shall, during the term of this
Agreement, operate the Project and any portion of the Existing Facilities of which it is a part
without discrimination as to race, creed, color, sex or national origin, for the pubHc purpose of
providing better health care for the inhabitants of Pinellas County and the State by enhancing the
availability, efficiency and economy of continuing care retirement facilities for the elderly and the
services rendered thereby. During the term of this Agrecment and so long as (here is no Event
of Default under this Agreement, the Company shall have sole and exclusive charge of the
operation of the Project and any portion of the Existing Facilities of which it is a part.
Section 5.18. Restriction Al:ainst Relieious Activities. The Company will use the
Project and any portion of the Existing Facilities of which it is a part only in furtherance of the
lawful corporate purposes of the Company and will not use the Project and any portion of the
Existing Facilities of which it is a part as a facility used primarily in connection with any part of
the program of a school or department of divinity for any religious denomination or for the
training of ministers, priests, rabbis or other similar persons in the field of religion. The
foregoing restrictions, however, shall not be construed to prevent the Company from (i)
maintaining a chapel, (ii) conducting education programs on any subject with one or more
institutions, whether or not sectarian, or (Hi) implementing pastoral care programs of the kind
permitted or provided by continuing care facilities for the elderly gcnerally.
Section 5.19. Application of Revenues: Renewal and Replacement Fund. (a) The
Company hereby covenants that all Revenues received shall be applied in each month in the
following manner and in the following order of priority:
(1) To the payment of all Loan Payments and any other payments required by this
Agreement, the Notes, the Mortgage or the Indenture, including any deficiencies for such
payments;
-J
56
qq - I r(
.--,
\
(2) To the payment of Operating Expenses in accordance with the annual budget for
the Mortgaged Propeny, as may be amended from time to time with the approval of its
Board of Directors.
(3) [To the Renewal and Replacement Fund in lhe amount of $ or such
lesser amount as is necessary to cause the total amount on deposit in the Renewal and
Replacement Fund to equal $ .J
(4) To any other lawful purpose.
(b) The Company shall creale and maintain a separate fund to defray the COSts of capital
improvements to the Mortgaged Property (herein called the II Renewal and Replacement Fund").
Moneys in the Renewal and Replacement Fund may be applied by the Company for the
purpose of paying the cost of making improvements, extensions and repairs to the Mortgaged
Property that are of a capital nature and for the purpose of reimbursing the Company for the costs
of any such improvementst extensions or repairs theretofore made and not previously reimbursed.
In addition the moneys on deposit in the Renewal and Replacement Fund may be used by the
Company to make Loan Payments or Rebate Payments to the Trustee in order to prevent the
occurrence of an Event of Default when other funds of the Company are not sufficient.
'J
Section 5.20. Purchase of Tender Bonds by Company. The Company covenants to
purchase Unremarkcted Bonds from existing cash balances (excluding any funds held in Special
Funds other than the Extendables Purchase Fund) to the extent of all unrestricted Cash on Hand
in excess of 290 Days Cash on Hand.
Section 5.21
[Reserved]
[Section 5.22 Special Covenants. Insert any special covenants requested by the Issuer
related to the Project.]
Section 5.23. LiquiditY Covenant. The Company will deliver a certificate executed by
an Authorized Company Representative within 120 days following the end of each Fiscal Year of
the Company, commencing with the Fiscal Year ending _, 200_, stating that its Days
Cash on Hand was [to be provided following receipt of the feasibility report].
In the event the Company is not in compliance with this Section 5.23 as of the end of any
Fiscal Year, the Company shall (i) notify the Trustee of the Company's failure to achieve the
required Days Cash on Hand, (ii) take all reasonable steps to cause the fees, rentals, rales and
charges imposed and col1ected and the expenses incurred in the operation of the Project [0 produce
the required Days Cash on Hand and (iii) employ a Consultant to submit to the Trustee and the
Company a written report and recommendations with respect to such items of income and
---J
57
19" / r
-)
expenses collected or incurred by the Company to enable the Company lO obtain and maintain
sufficient Days Cash on Hand.
The Company agrees that it will, to the extent commcrcially feasibility and pl~rJ1lillCU by any
applicable Government Restrictions, comply with and implemcm lhc recommendations of the
Consultant. If the Company revises or adjusts its operation in conformity with the
recommendations of the Consultant and otherwise follows such recommendations of the
Consultant, the Company's failure to achieve the required Days Cash on Hand as of the end of
any Fiscal Year shall not constitute an Event of Default under this Agrccmcnt.
Until such time as the Company has come into compliance with the Days Cash on Hand
requirement of this Section 5.23, the Company may require the Consultant to update its rcport and
to file additional reports or recommendations as may be reasonably rcquired by the Trustee from
time to time.
If the Company fails to retain a Consultant as requircd hcrcin the Trustce may, at the
expense of the Company, retain such Consultant and the Company shall pay such expenses as an
Additional Payment.
)
.-
Section 5.24. Irade Payable Covenant. The Company shall maintain not less than 90%
of its operating trade payables aged no more than 60 days and lhe remaining 10% of all operating
trade payables aged no more than 90 days. commencing with the ,Fiscal Year ending _,
200 .
Section 5.25. Occupancy Covenant. The Company will deliver to the Trustee a
certificate of an Authorized Company Representative within 30 days of the end of each fiscal
quarter, commencing _, 200_, stating that the Project has met the quarterly Occupancy
Target. The Company hereby covenants to comply with the following quarterly Occupancy
Targets [to be provided with the feasibility study].
Should the Project achieve 90% occupancy by _, 200_, the Company shall be
required to maintain 90% occupancy, which occupancy level requirement shall be reviewed
annually on each successive _, [provide the terms of such review]. Should the
Company fail to meet the Occupancy Target on an annual basis, a report shall be filed with the
Trustee setting forth the corrective actions to be taken by the Company. Failure to meet the
Occupancy Target on an annual basis will result in lhe Company having to file quarterly
occupancy reports with the Trustee. In the event the Company fails to meet the Occupancy
Targets for any two consecutive fiscal quarters, the Company shall employ a Consultant to ~uhmit
to the Trustee and the Company a written report and recommendations with respect to actions to
be taken to increase occupancy of the Project.
The Company agrees that it, will, to the extent commercially feasible and permitted by any
applicable Government Restrictions, comply with and implement the recommendations of the
,
t
~ -../
S8
f}'j", I rt
u~"';"""'..............___'_.: ...._,..
/7')
. .. <.",-~l J'
-',
.', "J
.-.~
',)
PM
Consultant. If the Company revises or adjusts its operation in conformity with the
recommendations of the' Consultant and otherwise follows such recommendations of the
Consull.;'U1t. the Company's failure to achieve the required Occupancy Targets as of the end of any
tiscal quarter shall. not constitute an Event of Default under this Agreement.
Until such time as the Company has come into compliance with the Occupancy Target
requirement of this Section 5.24, the Company may require the Consultant to update its report and
to tile additional reports or recommendations as may be reasonably rcquired by the Trustee from
time to time.
I f the Company fails to retain a Consultant as requircd here~n the Trustee may, at the
expense of the Company, retain \ such Consultant and the Company shall pay such expenses as an
. Additional Payment.
,59
Cftf ~ I f(
"" ."-
~
~..... .'.
i .~)
I: ' ",.,;
! .
. ,
<)
... ~ ,~
o
A RTICLE VI
REDEMPTION OF BONDS
SeCtion 6.1. Qptionpl Redertlption. If, at any time under the Indenture or any of the
Bonds, the Company may elect to cause thc Issuer or the Trustee to call any of the Bonds for
redemption or may require .he Trustee 10 purchase Bonds. it may exercise such ejection, not less
than forty~tivc (45) days prior to the dale of such redemption or purchase. by notifying the Trustee
in writing of its exercisc of such clection and dclivcring to the TruSlCC therewith moneys sufficient
for such purpose. Pcnding application for thosc purposes. any moneys so delivered shall be held
by the Trustee in a spcdal account in the Bond Fund and delivery of those moneys shall not
operate to abate or postpone Loan Payments or, Additional Payments otherwise becoming due or
to alter or suspend any other obligalions of the Company under this Agreement.
Section6.2. Ma.I1da~ory R~dcmplion or Pun:has~. If. at any time under any provision
of the Indenturc or any of the Bonds, any Bonds are required to be redeemed or purchased or if
the Issuer, the Trustt.."C, any Holdcr or any other person has exercised any election to require any
of the Bonds to be cnJlcd for redemption or purchase, then the Company shall deliver to the
Trustee, on or before one business day of the Trustee prior to the date on which such Bonds are
lO be redeemed or purchased. thc moneys (in immediately available funds) needed to redeem or
purchase such Bonds. In thc case of the Series 1999 Bonds, the Series 1999 Bonds are subject to
mandatory and extraordinary redemption in accordance with Sections 4.01 and 4.02 of the
Indenture.
(End of Article VI)
60
~1t."'::.~_~_~~'~::~~~~--:"~_~~ _
"_',,~~,.'~.,.~~ ~\'.l, , .
. " . . ". . . ~ <
. ... '... .,
q1-/~
,
\
i
\
1
II
I
I
I
ARTICLE VII
<J
EVENTS OF DEFAULT AND REMEDIES
Section 7. 1.
Events of Default. Each of the tollowing shall be an Event of Default:
(a) The Company shall fail to pay any Loan Payment on or prior to the date on which that
Loan Payment is due and payable.
(b) The Company shall fail to deliver to the Trustee, or cause to be delivered on its behalf,
the moneys needed to redeem any outstanding Bonds in the manner and at the time required as
provided in Article VI of this Agreement.
(c) The. Company shall fail to observe and perform any other agreement. term or
condition contained in this Agreement, and that failure continues for a period of thirty (30) days
after written notice of that failure is given to the Company by the Issuer or the Trustee or such
longer period specified in the covenants set forth elsewhere herein, or for such longer period as
the Trustee may agree to in writing; provided, that if the failure is other than the payment of
money and is of such nature that it cannot be corrected within the applicable period, that failure
shall not constitute an Event of Default so long as the Company institutes curative action within
the applicable period and diligently pursues that action to completion.
(d) The Company shall:
, ,-",,'
(i)' Admit in writing its inability to pay its debts generally as they become aue;
(ii) Have an order for relief entered in any case commenced by or against it under
the federal bankruptcy laws, as now or hereafter in effect;
(Hi) Commence a proceeding under any other federal or state bankruptcy,
insolvency, reorganization or similar law, or have such a proceeding commenced against
it and either have an order of insolvency or reorganization entered against it or have the
proceeding remain undismissed and unstayed for ninety (90) days;
(iv) Make a general assignment for the benefit of creditors; or
(v) Have a receiver or trustee appointed for it or for the whole or any substantial
part of its property.
(e) Any representation or warranty made by the Company herein or any statement in any
report, certificate, tinancial statement or other instrument furnished in connection with this
Agreement or with the purchase of the Bonds shall at any time prove to have been false or
misleading in any material respect when made or given.
w
61
91--1 ~
,~'.
(t) There shall have occurred an "Event of Default" as defined in Section 6.2(c) or (d)
of the Mortgage.
Notwithstanding the foregoing, if. by reason of Force Majeure. the Company is unable [Q
perform or observe any agreement. term or condition hereof which would give rise to an Event
of Default under subsection (c) hereof, the Company shall not be deemed in default during the
continuance of such inability. However, the Company shall promptly give notice to the Trustee
and the Issuer of the exislence of an event of Force Majeure and shall use its best efforts to
remove the efft."Cts thereof; provided that the settlement of strikes or other industrial disturbances
shall be entirely within hs discretion. The tenn Force Majeure shall mean. without limitation. the
following:
0) Acts of God; strikes, lockouts or other jndustriaJ disturbances; acts of public
enemies; orders or restraints of any kind of the government of the United SImes of America
or of the State or any of their departments, agencies, political subdivisions or ofticials, or
any civil OJ' miHtary authorhy; insurrections; civil disturbances; riots; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; tornados; storms; falling space debris; droughts;
floods; killer bees; arrests; restraint of government and people; explosions; breakage,
malfunction or accident to facilities, machinery, transmission pipes or canals; partial or
entire failure of utilities; shortages of labor, malerials, supplies or transportation; or
(ii) Any cause, circumstance or event not reasonably within the control of the
Company.
!
I
- .
....--.
The declaration of an Event of Default under subsection (d) above, and the exercise of
remedies upon any such declaration, shall be subject to any applicable limitations of federal
bankruptcy law affecting or precluding that declaration or exercise during the pendency of or
immediately following any bankruptcy, liquidation or reorganization proceedings.
Section 7.2. Remedies on Default. Whenever an Event of Default shall have happened
and be subsisting, anyone or more of the following remedial steps may be taken:
(a) If acceleration of the principal amount of the Bonds has been declared pursuant to
Section 7.03 of the Indenture, the Trustee shall declare all Loan Payments to be immediately due
and payable, whereupon the same shall become immedialely due and payable.
(b) The Issuer or the Trustee may have access to, inspect, examine and make copies of
the books, records, accounts and financial data of the Company pertaining to the Project. In
accordance with applicable law, the Trustee or its designees, may
(i) enter and take possession of the Project, or any part thereof, by summary
proceedings or ejectment or otherwise, without terminating this Agreement,
o
62
Cf9~ 1'1
~.I~~~_~__"L"':___.
-
.,.'
(ii) collect rentals and enforce all olhcr rcmedies of the Company under any leases
of, or assignments or grants of rights to use or occupy, the Project, or any part thereof, but
without being deemed to have affirmed the leases. assignments or grants.
,.)
(Hi) elller into new leases, assignments and grants on any terms which the Trustee
may deem to be suitable for the Project, or any part thereof, which leases, assignments and
grants shall not be terminated or affected if the Company cures the Event of Default,
(iv) remove the Company, all other Persons and all property from the Project, or any
part thereof,
(v) hold, operate and manage the Project, or any pan thereof, and
(vi) receive all earnings. income. rents. fees. charges. issues. profits. proceeds or
other sums accruing with respect thereto.
',-./
All amounts described in clauses (ii) or (vi) of the preceding sentence may be applied by the
Trustee to any costs of administration, operation, repair or maintenance of the Project, or any part
thereof, as the Trustee may deem reasonably useful, and the remaining balance shall be applied
to the Loan Payments, Additional Payments and other amounts payable, or to become payable.
under this Agreement, in the order of priority to be determined by the Trustee. Any balance of
the rents and other amounts femaining thereafter shall be paid promptly to the Company by the
Trustee, and the Trustee may hold the Company liable for the difference between those rems and
other amounts and the Loan Payments, Additional Payments and other amounts payable under this
Agreement.
(c) In accordance with applicable law all Revenues shall become payable immediately
directly to the Trustee, and the Trustee may take whatever steps it deems to be necessary or
advisable to notify payors of the Revenues of the Trustee's right thereafter to receive payments
of Revenues directly.
(d) The Issuer Of the Trustee may pursue all remedies now or hereafter existing at law or
in equity to collect all amounts then due and thereafter to become due under this Agreement, the
Mortgage or the Notes Of to enforce the performance and observance of any other obligation or
agreement of the Company under those instruments.
(e) The Trustee may exercise any or all of any combination of remedies under the
Mortgage, pursuant to the Assignment.
--)
Notwithstanding the foregoing, the Issuer and the Trustee shall not be obligated to take any step
which in its opinion will Of might cause it to expend time or money or otherwise incur liability
unless and until a satisfactory indemnity bond has been furnished to the Issuer and the Trustee at
no cost or expense to the Issuer or the Trustee. Any amounts collected as Loan Payments or
applicable to Loan Payments and any other amounts which would be applicable to payment of
63
91 ~ / '6'"
__......IL'JIo__~----........~~~.."--L...a
-.
..<I>.
/-'...,
I
Debt Service Charges collected pursuant to action taken under this Section shall be paid into the
Bond Fund and applied in accordance with the provisions of the Indcnture or, if the outstanding
Bonds have been paid and dischargc..>d in accordance with the provisions of the Indenture. shall be
paid as provided in Section 5.08 of the Indenture for transfers of remaining amounts in the Bond
Fund.
The provisions of this Section are subject to the further limitation that the rescission by the
Trustee of its declaration that all of the Bonds are immediately due and payable also shall
constitute an annulment of any corresponding declaration made 'pursuant to paragraph (a) of this
Section and a waiver and rescission of the consequences of that declaration and of the Event of
Default with respect to which that declaration has been made, provided that no such waiver or
rescission shall extend to or affect any subsequent or other default or impair any right consequent
thereon.
...._.I"j
Section 7.3. No Remedy Exclusive. No remedy conferred upon or reserved to the
Issuer or the Trustee by this Agreement is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement, the Mortgage or the Notes, or now or hereafter existing
at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair that right or power or shall be construed to be a waiver thereof. but any
such right and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer or the Trustee to exercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice. other than any notice required by law or for
which express provision is made herein.
Section 7.4. Aerccmcnt to Pay Attorneys. Fees and Expenses. If an Event of Default
should occur and the Issuer or the Trustee should incur expenses, including attorneys. fees, in
connection with the enforcement of this Agreement, the Indenture, the Mortgage, the Assignment
or the Notes or the collection of sums due thereunder, the Company shall reimburse the Issuer and
the Trustee, as applicable, for the expenses so incurred upon demand. If any such expenses are
not so reimbursed, the amount thereof, together with interest thereon from the date of demand for
payment at the Interest Rate for Advances, to the extem permitted by law, shall constitute
indebtedness hereunder which is secured by the Mortgage and in any action brought to collect that
indebtedness or to foreclose the Mortgage, the Trustee or the Issuer, as applicable, shall be
entitled to seek the recovery of those expenses in such action except as limited by law or by
judicia] order or decision entered in such proceedings.
Section 7. 5. ~ Waiver. No failure by the Issuer or the Truslce to insist upon the strict
performance by the Company of any provision hereof shall conslitute a waiver of their righl to
strict performance and no express waiver shall be deemed to apply to any other existing or
subsequent right to remedy the failure by the Company to observe or comply with any provision
hereof.
.J
64
91- I ~
'>(1/ .
. , ~'.:
"
" .'
. .
. " '
;~'!<(, .'
'. ' -
:.' .
". E".
'/ .'
:,
.'1. ". .'
~~~~ '.Id .. H
" '
'/.
.:
".;,
.... '.
;r.~
i. ;:...)
....;, ,~.._......; ,
,.:i.' ,
~,~-:.. r ': .
.~ < ' .
",
. ~ .
<,
.'
.,.1:.,. .
i';,.'.
~ f" . .
f' ~ ,
....... "
;-r~:'~'..' " .
.\~,. ,".
> .
"{ "
;-.;' ,
":1.
'1('.. .
") \.' .
.','1 ' ,
,', ,.
,..... .;
. ,
",. .
t:.:.,O"./' .
. . ,
. . .
.. .
. ,
,.
,I;
.. ,
'.'
.., .:. .
, '.~)
',-,
,',' '"'c
,',
. .Section 7.0. MoJice of Default. The Company shall notify the Trustee immediately if
it becomes aware of the occurrence of any Event of Default hereunder or of any fact. condition
or event which, with the giving of notice or passage of time or both~ would become an Event of
. Default. . .
(End of Article VII)
, ,
.;,
.." .
, .
.
, '
65,
" .'fq-/~
,r""',
"
.~ c.: .
...........,vJ~
o
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Tenn of A~reement. This Agreement shaH be and remain in full force and
effect from the date of delivery of the Series 1999 Bonds to the original pu rchascrs until such time
as all of the Bonds shall have been fully paid (or provision made for such payment) pursuant to
the Indenture and all sums payable and any other documents execuled and delivered by the
Company in connection with the execution and delivery of the Bonds by the Company under this
Agreement. the Indenture, the Mortgage and the Notes shall have been paid; except for obligations
of the Company under Sections 4.2, 5.5 and 5.12 hereof, which shall survivc thc terminalion and
this Agreement.
Section 8.2. Amounts Remaining in Funds. Any amounts in the Bond Fund remaining
unclaimed by the Holders of Bonds for four (4) years (or such earlier date as such funds would
be required by law to 'escheat to the State) after the due date thereof (whether at stated maturity,
by redemption or pursuant to any mandatory sinking fund requirements or otherwise) at the option
of the Company shall be deemed to belong to and shall be paid, at the written request of the
Company, to the Company by the Trustee as overpayment of Loan Payments. With respect to that
principal of and any premium and interest on the Bonds to be paid from moneys paid to the
Company pursuant to the preceding sentence, the Holders of the Bonds entitled to those moneys
shall look sojely to the Company for the payment of those moneys. Further ~ any amounts
remaining in the Bond Fund. the Project Fund. lhe Reserve Fund. the Rebate Fund and any other
special funds or accounts created under this Agreement, lhe Mortgage or the Indenture after all
of the outstanding Bonds shall be deemed to have been paid and discharged under the provisions
of the Indenture and all other amounts requircdto be paid under lhis Agreement~ the Notes, the
Mortgage and the Indenture have been paid, shall be paid to the Company to the extent that those
moneys are in excess of the amounts necessary to effect the payment and discharge of the
outstanding Bonds and pay other amounts due under the Indenture.
Section 8.3. Notices. All notices, certiticates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when mailed by
registered or certified mail, postage prepaid, and addressed to the appropriate Notice Address.
A duplicate copy of each notice, certificate, request or other communication given hereunder to
the Issuer, the Company or the Truslee shall also be given to the oUlers. The Company, the Issuer
and the Trustee, by notice given hereunder. may designate any further or di fferent addresses to
which subsequent notices, certificates, requests or other communications shall be sent.
Section 8.4. Extent of Covenants of lhe Issuer~ No Personal Liability. All covenants,
obligations and agreements of the Issuer contained in this Agreement or the Indenture shall be
effective to the extent authorized and permitted by applicable law. No such covenant. obligation _
or agreement shall be deemed to be a covenant, obligation or agreement of any prcsent or future
member, officer, agent or employee of the Issuer in other than his oftlcial capacity, and neither
66
11" / ~
.--)
the members of the Issuer nor any official cxecuting the Bonds shall be liable pcrsonally on the
Bonds or be subject to any personal liability or accountability by reason of the issuance thereof
or by reason of the covenants. obligations or agreements of the Issuer contained in this Agreement
or in the Indenture.
Section 8.5. Bindin2 Effect. This Agreement shall inure to the benefit of and shall be
binding in accordance with its terms upon the Issuer, the Company and its permitted successors
and assigns provided that this Agreement may not be assigned by the Company and may not be
assigned by the Issuer cxcept to the Trustce pursuant to the Indenture or as otherwise may be
.necessary to enforce or secure payment of Debt Service Charges.
Section 8.6. Amendments and Supplements. Except as otherwise expressly provided
in this Agreement or the Indenture, subsequent to the issuance of the Series 1999 Bonds and prior
to all conditions provided for in the Indenture for release of the Indenture having been met. this
Agreement may not be effectively amended, changed, moditied, altered or terminated except in
accordance with the provisions of Article VIII of the Indenture, as applicable.
Section 8.7. Execution of Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original and all of which shall
constitute but one and the same instrument.
Section 8.8. Severability. If any provision of this Agreement, or any covenant,
'...........1 obligation or agreement contained herein is determined by a court to be invalid or unenforceable,
_.J that determination shall not affect any other provision, covenant, obligation or agreement, each
of which shall be construed and enforced as if the invalid or unenforceable portion were not
contained herein. That invalidity or unenforceability'"shall not affect any valid and enforceable
application thereof, and each such provision, covenant, obligation or agreement shall be deemed
to be effective, operative; made, entered into or taken in the manner and to the full extent
pennitted by law.
,~- '~
)
;~ 67
, qq-/'t
i1.lr..;I~ .....,:~<,.. ,..- .
..:.._-.........-...--~ r1r.Ml]--"~ ~.~
, '
" .
,);,/: "
". :)
",
Ii
"
.'
~ .
"
..
:/'. .
,+. .
. : .: -. "\
":,.. . 1
. ',..../
.--''''',
(.;)
I. .
/1
t'
Section 8.9. Govemin~ Law. This Agreement shall be deemed to be a contract made
under the laws of the State and for all purposes shall be governed by and construed in accordance
with the laws of the State.
IN WITNESS WHEREOF, the Issuer and the Company have caused this Agreement to be
duly executed in their' respective names, all as of the date hereinbefore written.
(SEAL)
CITY OF CLEARWATER, FLORIDA
Attest:
By:
City Clerk
By:
Mayor-Commissioner
Approved as to fonn and
. legal sufficiency'
By:
City Attorney'
By:
, , City Manager
(SEAL)
BEF, INC.
Attest:
, By:
Secretary
By;
President
68
qq,. / ~
EXHIBIT A
/)
fu:ries 1999 Note
$
[Date]
FORM OF SERIES 1999 NOTE
BEF. Inc, (the "Company"), a corporation duly organized and validly existing under the
laws of the State of Florida (the "State") and qualified to transact business in the State. tor value
received. promises to pay to the City of Clearwater, Florida, (lhe "]ssuert1).
DOLLARS ($ )
and to pay interest (as hereinafter provided) on the unpaid balance of such principal sum from and
after 1, 1999, until the payment of such principal sum has been made.
This Note has been executed and delivered by the Company to the Trustee pursuant to a
certain Loan and Security Agreement (the "Agreementl1) dated as of July 1, 1999. between the
Issuer and the Company. Under the Agreement, the Issuer has loaned the Company the principal
proceeds received from the sale of the Issuer's $ aggregate principal amount of Health
....\ Care Facilities Revenue Bonds, Series _ (BEF, Inc. Project), dated as of , 1999 (the
0,_.1 "Series _ Bonds"), to assist in the financing of (the "Project") and
the Company has agreed to repay such Joan and interest thereon by making payments ("Loan
Payments") in the amounts required to pay the principal of, premium, if any, and interest on the
Series _ Bonds, collectively called the I1Debt Service Charges," as and when due. The Series
_ Bonds have been issued, concurrently with the execution and delivery of this Note. pursuant
to, and are secured by, the Trust Indenture (the "Indenture"). dated as of July I, 1999, between
the Issuer and First Union National Bank of Florida. a national banking association, as Trustee
(the "Trustee").
The principal hereof, prepayment premium, if any. and interest (including any Additional
Amount) herein shall be payable from time to time in amounts equal to the Debt Service Charges
becoming due and payable from time to time whether at scheduled payment dates or on account
of redemption or acceleration of the Series 1999 Bonds, or otherwise and shall be payable by the
Company to the Trustee on or before the twenty~fifth day of each calendar month and such other
days upon which payments may be required under the terms of the Agreement or the Indenture.
The unpaid principal amount of the Series 1999 Bonds outstanding from time to time shall
bear interest from the most recent Interest Payment Dale to which interest has becn paid or duly
provided for or, if no interest has becn paid or duly provided for. from their Dated Date.
v
]n addition to the Loan Payments, the Company shaH pay to the Issuer and [0 the Trustee
all Additional Payments which may become payable to them under Section 4.2 of the Agreement.
11- /C{
.' '')
.'
""-/
o
The covenants contained in this paragraph shall survive (a) the payment and cancellation of this
Note. (b) the payment of the Series 1999 Bonds, (c) the termination of the Agreement and (d) the
discharge of the Indenture and each person who shall be entitled to payment of any Additional
Payments shall have a claim, enforceable against the Company. therefor.
All Loan Payments shall be payable in lawful money of the United States of America in
immediately available funds and shall be made to the Trustee at its designated corporate trust
oftice for the account of the Issuer and will be deposited by the Trustee in the Bond Fund crealed
by the Indenture. Except as otherwise provided in the Indenture, such Loan Payments shall be
used by the Trustee to pay the Debt Service Charges as and when due.
The obligation of the Company to make the Loan Payments and Additional Payments shall
be absolute and unconditional and the Company shall make such payments without abatement.
diminution or deduction regardless of any cause or circumstances whalsoever including, without
limitation, any defense. set-off, recoupment or counterclaim which the Company may have or
assert against the Issuer, the Trustee or any other person.
".
This Note shall be prepaid, in whole or in part prior to stated maturity, as provided in the
. Agreement if the Series 1999 Bonds are called for redemption. in whole or in part. as provided
in the Indenture. The Company shall have no right to prepay this Note except (i) pursuant to the
exercise by the Company of any right given in the Indenture to direct the redemption or purchase
of Series 1999 Bonds, (ii) upon the occurrence of a Determination of Taxability and a redemption
of the Series 1999 Bonds in accordance with Section 6.2 of the Agreement and (jji) to defease
Bonds as provided in the Indenture; in the latter case. principal of this NOle shall be reduced by
the principal amount of Bonds defeased.
Whenever an event of default under Section 7.01 of the Indenture shall have occurred and.
as a result thereof, the principal of all Bonds then Outstanding, and interest accrued thereon, shall
have been declared to be immediately due and payable pursuant to Section 7.03 of the Indenture,
the unpaid principal amount of and accrued interest on this Note shall also be due and payable on
the date on which the Debt Service Charges on all of the Bonds shall have been declared due and
payable; provided that the annulment of a declaration of acceleration with respect to the Bonds
shall also constitute an annulment of any corresponding declaration of acceleration with respect
to this Note.
11- Iff
C1~~.Lt~r"\ ,..n~" . t.
. "........-..... -..............
. '~
, <'
"",
,~. .
.'c J '.
'"ZJ
' '.., <
, . '....l,..
-;'. .
_,i,"C,.
1::" .
, .
~.' '
~.,: : '.
. .. '~""\
....."J
,..
.,',0
. ~. . .
. .[, . ~. . ~
. "
I '
The Company's obligations under the Agreement and this Series _ Note are secured by
the Mongage and Security Agreement (the "Mongagell) from the Company, as Mortgagor, to the
Issuer, as Mortgagee, dated as of JuJy I, 1999, as assigned by the Issuer to the Trustee pursuant
to an Assignment ot',Mortgage,'dated as of July 1.1999.
The Company hereby waives presentmentt notice of dishonor and protest.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in its name
by its ~uly authorized officers as of
BEF, INC., a Florida not-for-protit
corporation
Attest:
"By:
. Title: .
, By:
Title:
19,/f.
. ~. .
--,._>
... ~
;1'
~'." '. .
" '-:"\,
.. ~'.}
~ .: . . .
'l. '
. '","
, "..' ] .
'. ...".....-/
l
\"t
~ ..... , :'.~ .
"
it
o
ASSIGmfENT TO TRUSTEE
. . .
. .
: For value received, the undersigned hereby sells. assigns and transfers without recourse unto
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Trustee, under
the Indenture of Trust dated as of.luly 1, -1999, the within Note and all rights thereunder.
. (SEAL)
CITY OF CLEARWATER. FLORIDA
. ,
By:
Mayor~Commissioner
ATTEST
. By:
. City Manager
.,
. Secretary
. Approved as to form 'and
legal sufticiency
By:
. City Attorney
19~ /~
I
r
,
I
1
I
'~f~~""~~~~'::'::':'::'~Uh-:' ~:_'.___._ .'..
., ...~ ',......, .c..... '''h .l.. ...1'
.. ~. . . . .. . <.
~ ~' , .' ,.
-,,-:--
t.,' ':
. ,
, ,~
.. .. ,
n, .
,.';.' - .
:/, .~.
/
" ',.
. ,.. I c~. ...." .
",
, "
EXHIBIT B
!
;
!
I
'(J
"~""".t
DESCRIPTION OF THE PROJECT
r. .1
,,'
. "
The Series 1999 Bonds will be issued for the principal purpose of tinancing the cost of acquisition.
construction and.. rehabilitation of various capital improvements to the. Oaks of Clearwater
retirement facility' consisting of 1 building, the Cove Building, located at 210 South Osceola,
Clearw~tert Florida, including the following renovation projects to the Cove Building:
::. '
. ~, .
-,'
" .
;f'..
c~ .'
; .
I:: .
:~'';',
.,.. ..
.::,'1.." .
. i' .
I
I
j
.1
I
I
. ' l
~ ~ , ,
~~' t
\~ ~, ,
., ,
"
If. :: ..
" '
I.:: '
.'{.'
, .
{', :
('
~, ' ' .
~~ "l .>.-:.~~; . '\
:', . \..-/
I'"
,,", .
~', ,.
I"
.; .
, ,
, .
. ,
.' .:..
, ,
':0
91~/r
1
II
I
. B-1 .
~~~':::-~":":'~'':::~._'~:_~~::::''.' .-;....,-.~........til.~f...I-,. .~,..~."......... '
. -,. ,. ,..........,. ~"w ...;s:~ ......n". ,.. "
. ....,,~......~, ..t"" _ I... p' '_'I~~t~'" '... ..~ "'"",,,c~._.
-----
"i. ,
"'", ~.
. ~::.',;.
,
'~:~.',,">"', ~.
,
,. ..... >
".
.i.:. '.
"
~~ !,.
,.~ - ....
, ,
. i:- ,c
~'f .'
'~I.t...""., .
.:1::
1 ;1
I,.'
"
"
'.
i:;., .
I 1 ~.
11.,
o
.:-.(. ."';1
~.
!'
:,r
.~-: '~ .
; .
'..';
"
: ': " I' .
~~, . . .
.1." <'"
(:--'.:.
.'t.: :..,.,'
~:::.~
!L~-..'
. "
t::.:':," .~, c
,f::,I, r
,':,:
I~l:',,::.' _.
;~? ';
it>..:
.,., .;
~ I . ~
{'r'~',::1 ,... .,.
;f,:":
~:-: :',;:
;,.'
/"'(2)">' .
;':.' \. '.,
q.
\':
~ .1
.'
..
".
f,;~ ,
\.',
I,.
,:.. ~ '.
\ .
y'
:r
~, '.-
.: ~
I~-: .
;1,_
~~ ,-;: '.
:;1 ',..
,1.:
'.
j:
1-;
,
. .
:.:J'''~''
, '
,
\ .
,\ :
,"
, .
\'
.~'~ ~ '
,~ '-l
"
.'1'
"
"
, .
EXHIBIT C
PROJECT SITE
LEGAL DESCRiPTION
COVE BUILDING
[TO BE PROVIDED]
, ,t
C-l
I
.J
I
r
'i
I
I
j,
il
I;
I
I
I
'11/ If(
EXHIBIT D
,'......,
" ...,1
FORM OF DISBURSEMENT REQUEST
STATEMENT NO. _ REQUESTING DISBURSEMENT OF FUNDS FROM
PROJECT FUND PURSUANT TO SECTION 3.4 OF THE LOAN AGREEMENT
(dated as of July 1, 1999,
between City of Clearwater. Florida
and BEF. Inc. a Florida not-for-profit corporation)
., .
Pursuant to Section 3.4 of the above-referred to Loan Agrccment (the "Agreement")
between the City of Clearwater. Florida (the "Issuer") and HEF, Inc, a Florida not-far-profit
corporation (the "Company"), the undersigned Authorized Company Representative hereby
requests and authorizes SunTrust Bank. Central Florida, National Association, a national banking
association, as trustee (thc ttTruslee") and depository of the Project Fund created by the Indenture
(as detined in the Agreement), to pay to the Company pr to the person(s) listed on the
Disbursement Schedule hereto. from the moneys deposited in the Project Fund, the aggregate sum
0[$ to pay such person(s) or to reimburse the Company in full. as indicated in
the Disbursement Schedule, for the advances, payments and expenditures made by it in connection
with the items listed in the Disbursement Schedule.
In connection with the foregoing request and authorization, the undersigned hereby certifies
. -. "'. that:
'.--~I
(a) Each item for which disbursement is requested hereunder is properly payable
out of the Project Fund in accordance with the terms and conditions of the Agreement and
none of those items has formed the basis for any disbursement heretofore made from said
. Project Fund.
(b) Each such item is or was necessary in connection with the acquisition,
construction, installation, equipment or improvement of the Project, as defined in the
Agreement.
(c) In the case of amounts requested hereunder for the payment of any item of labor
or materials subject to the Mechanics Lien Law of the State, the Company has received, or
will concurrently with payment receive and deliver to the Trustee. appropriate waivers of
any mechanics' or other liens with respect to each hem for which disbursement is requested
hereunder.
'0
(d) Each item for which disbursement is requested hereunder and the cost for each
such hem. is as described in the int'ommtion stalement tiled by the Issuer in connection with
the issuance of the Series 1999 Bonds (as defined in the Agreement), as requi red by Section
149(e) of the Code; provided that if the foregoing statement is not true, attached hereto is
a computation evidencing that the average reasonably expected economic life of the
0.1
11- /'6
,<-"
I
""
'I
.,,J
, '
o
facilities which have been and will be paid for with money in the Project Fund is not less
than 5/6ths of the average maturity of the Series 1999 Bonds.
(e) This statement and all exhibits hereto. including the Disbursement Schedule.
shall be conclusive evidence of the facts and statements set forth herein and shall constitute
full warrant, protection and authority to the Trustee for its actions taken pursuant hereto.
(t) This statement constitutes the approval of the Company of each disbursement
hereby requested and authorized.
In connection with any item on the Disbursement Schedule which relates to payment or
reimbursement for labor, services. material, supplies and/or equipment rclating to the acquisition.
construction and equipping of the Project, the undersigned further certifies as follows:
(1) That each person signing this rcquest has no notice of any mcchanic's.
materialmen's, suppliers', vendors' or other similar Iicn or right to lien, chattel mortgage
or conditional sale contract, or other contract or obligation (other than those being contested
in good faith as pennitted by Section 3.2 of the Mortgage, as defined in the Agreement),
which should be satisfied or discharged before payment is made of the item or items set
forth on the Disbursement Schedule opposite such person's name;
(2) That this request contains no request for payment on account of any portion of
anobJigation which, as of the date of this request, is entitled to be retained under any
holdback or retainages provided for in any agreement; and
(3) That such labor or services were actually perfomled in a satisfactory manner
and such material, supplies, and/or equipment were actually used in the construction or
installation of the Project or were delivered at the Project Site (as defined in the Agreement)
and will be used for that purpose.
This
day of
, 199_.
Authorized Company Representative
0-2
Cf!-/S
C"lio'''~'::'''';'';I~~'1o'. ~'''' .' '.
-.- .-----....................-.-................-.-....---.-
, .
\':.,; ..
~~.. ''"'"
, .~,
, . I
. '.' . .'
;',
I ~~,
!'
I'
I'..
,
\. .,
,;
~:.j :
.~
',' .
~::'. : .
.;
;"
~ '. .
~ 1
"
'. .' / :-~",
.. . \ .'. ~
. :....;..;/
"
:' J
'. I
:,1.
o
i1J~~ii~,::~ :...T~..5'" ....,n........,. ~
:' L ~ ,
t. I..' .'. . ,< ,c .
.~.I.:'~.:.......
--~-~~-~-~--
I
" '
",,' c ...\ . ',J' c .'
DISBURSEMENT SCHEDULE
'ro' STATEMENT NO.. REQUESTING AND AUTHORIZING
DISBURSEMENT OF FUNDS FROM PROJECT FUND PURSUANT TO SECTION 3.4 OF
THE LOAN AGREEMENT between the City of Clearwater, Florida and BEF, Inc~ a Florida
. not~for~profit corporation.. .
PAYEE
, .
, .
. '~ '''.., '. I. M ....c. '. ~. ,.~, j. r' ~ ' .., . ..
" . ", .
.
AMOUNT
PURPOSE
0-3
qlj-/C{
II
l
: . IC L~' ;... l., " ~~. . c' '
." ,.... c .'~ '" .... ..:. ,'"
'" .
f. "
.~. ,
~ . ~ "
, ,
.. .' '
':;;~~"~I ,:..., .....<.J..),';....ci.":...\.-...~:'.c
:.' ~'
, ,
, '
..', .
( ,:.
.' ,.
, .
"
,;,
, ,
....,>
;.
..It."
"
'.
;'\.', ::
:{; ;"
(t, .'_.
?~:. t':::
,'~ .~'. ~.
'~'.>.
'1'.
~.. , . .
, :
" ,.
, ".
. .>
;::,~,:'<=}, :..'
.i' ,
L' .
;iJ 'c
,', .
>:
....: '
, '.
,.',',1,
'.' ,
':. ':)'."
'\. .
'.. ,\' .
.~~~~..~~....::: " '~,r ',1'
;. -.,....--.
EXH mlT E
EXISTING PERMITTED LIENS
E-I
1q -/'6
t~ ~ \.., ".j. "~~~l' > ~ '~I.~.'" u .,
. .,... \.. ~ " .: ' ',~. : .. . ,', t' ~ i. .... .'
. . .... 'f~"" . 1:1.~,.j, c_"", ~'n .. . .
I
i
I
!
I
I
I
11
Ii
I
I
I
I
~
':
"' ,': :
. ",'1
:i
\
,.
"3'
. el.
" ~
"
,.,
:,':
. '
.,',
1.'-
,"'"
.,.
" .."
j' .
~, -.. .
r:
""
~/.
('.
..~' 'l
:/:l
.'/
.....0.
: '. .'L
, , ,
"',;
:,I)
:\'
t:~ F
.....
,',
! ",c
~ I "
.Ii
,'.
"J'
. .
'~
. , . ~
'.
.~ ' ,
,:.,
.'
, '
,.
, '
"
, ,
-...-...............::.__.~ .
EXHIBIT F
EXCLUDED PROPERTY
: \
.'
..
..
"i.'f'
:.
,:
G~l
91'-lct
'\
I:::
,,'
\;'. ,".:
,~\.: ,,- ,~. ,. ;, ..
,~
~ .' : j" I. J
. ~.:.. ~~
I",
I},.:,
I"~>
:...1: :".
\.:, .
!. ; ~
, ,
" '
~ "l
,', .
} ....
~,., ,
'"
" .
.'
.'. 'u::-
, '
"
'.,
~':; :
:; '~ +
\
r:
';.,
..., 0"""
. . ~\ '
'... .
'{:.: .~. .
{LI. ~
~; > ; " .
:..1': .
,. ';.
. '. F
" . ~ ..\ "
',.' .
", ," 0 .
~!, ~:>"!: I .~,. .
.' . .
.J
," ".
"
~ ':'. . "
",,""""""":...
EXHffilT D
FORM OF ASSIGNMENT OF MORTGAGE AND SECURITY AGREEMENT
Resolution 99~ 18
"I. .
j
. !
I
. I
!
,
~ . ~ '
-
.~
!" J
~ .........".
,
\......~/
~, .1
-J
..do.........)l... ~*..~ ~", . ..
This Instrumcnt prepared by and rcturn to:
Robert C. Reid, Esq.
Bryant, Miller and Olive. P.A.
201 South Monroe Street
Suite 500
Tallahassee, Florida 32301
ASSIGM\.fENT OF MORTGAGE AND SECURITY AGREEMENT
GO
CITY OF CLEARWATER, FLORIDA. a municipal corporation duly created and existing
under the laws of the State of Florida (the" Assignorll), in consideration of the sum of Ten and
NollOO Dollars ($10.(X}) and other good and valuable consideration received from SUNTRUST
BANK, CENTRAL FLORIDA. NATIONAL ASSOCIATION, a national banking associalion,
as Trustee (the" Assignee"), DOES HEREBY grant. bargain, sell, assign, transfer and set over
unto the Assignee (i) all its right, titlc and interest in and to that certain Mortgage and Security
Agreement, executed by BEF, Inc., a Florida not-tor-profit corporation duly organized and validly
existing under the laws of the State of Florida. in favor of the Assignor. dated as of July 1, 1999,
and recorded in Official Records Book _, Page _, of the Public Records of Pinellas County t
Florida {the tt Mortgage") , said Mortgage encumbering the real property legally described as set
forth on Exhibit A attached hereto and incorporated herein by this reference, except its right. title
and interest in the Mortgage to the extent the Mortgage secures Company obligation with respect
to the Unassigned Rights and (ii) all its right, title and interest in and to that certain Note
described in and secured by the Mortgagc, and all monies and payments due and to become due
. thcreon, togethcr with interest thereon from lhc date of this Assignment of Mortgage.
IN WITNESS WHEREOF, this Assignment of Mortgage and Security Agreement has been
duly executed by Assignor as of July 1, 1999.
(SEAL)
ATTEST
CITY OF CLEARWATER, FLORIDA
a municipal corporation, duly created and
existing under the laws of the State of Florida
By:
City Clcrk
Mayor-Commissioner
Approved as to 1brm and
legal sufticiency
By:
City Manager
By:
City Attorney
CjCf-/r?
.' ~.
.". ~ .
.)
4
-....
..: )
''....../
;,
,.
,.'
,
\' ,
.,'
;:',:
-. ,
,:)
STATE OF FLORIDA )
) SS
COUNTY OF PINELLAS )
I HEREBY CERTIFY that on this day, before me. an officer duly authorized in the state
and county aforesaid to take acknowledgments, personally appeared
and , the Mayor-Commissioner and City Manager, fespectively of the
City of Clearwater, Aorida, a municipal corporation duly created and existing under' the laws of
the Sate of Florida, respectively. to me known to be the persons described in and who executed
the foregoing Assignment of Mortgage and acknowledged before me that they, as such ofticers
and with full authority, executed same voluntarily for and as the act of the City of Clearwater t
Florida.
..
WITNESS my hand and official seal in the county arid state aforesaid this
, 1999.
(SEAL)
day of
Name:
Notary Public, State of Florida
My Commission Expires:
Personally. Known 0 Of Produced Identification 0
Type of Identification Produced
2
'7.~~'a1l:"'~
.> ". . .. ',11' '
.,.: .. ~ . . _.'.. ."... K'" p'. . ~
99-/~
c . .,,' .".,'
"
,. . ~ ~
'-,
. ,-.-J
<~
CONSENT TO ASSIGNMENT OF MORTGAGE
The undersigned hereby consents [0 the assignment of that certain Mongage and Security
Agreement,' executed by the undersigned and dated as of July I, 1999, from the City of
. Clearwater, Florida to First Union National Bank, as Trustee, by and pursuant to the Assignment
of Mortgage to which the consent is attached.
Signed and acknowledged
in the presence of:
-
BEF INC.. a Florida not-for-profit
corporation
By:
Tille: President
Attest:
Title: Secretary
Witnesses as to BEF Inc., a Florida not-for-
profit cO,rporation
STATE OF FLORIDA )
) 55
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before this
1999 by and
Secretary respectively t of BEF Inc.
day of
the President, and
IN WITNESS WHEREOF, I have hereunto set my hand and seal as of this
, 1999.
day of
(SEAL)
Name:
Notary Public, State of Florida
My Commission Expires:
Personally Known 0 or Produced Identification 0
Type of Identi tication Produced
3
r9-1f?'
_ ...of'I1_ ~ _~............. ~~
h.. ~.- ~__ LlI
, "
./
.\ '
",
"
.!
. ,'. J ~
lr..,,:
,
,
f~~~?i;:'\:~::?t~;;"", i: ';
,
::: .~ .;'. ' ': .' ~ ~t.
.>
(:,:'; .~. :
')t:>. ."
..t,J:\~:' :
~>t<I..
'r';;:
t" .".
d'l
..
i
I
I
/
f
!
j
!
I
I
.,.
EXHmIT A
"
l" ,.
LEGAL DESCRIPTION
~>!
{.',".
,'..'j:
i:{':~;"",,:
:~~?", 'y:'.~ '
I I" .>!.....
'\:':"',"': ,
~ ... . ..
i"i.~\~> i
~~:,;(', ".
'.'
",
1..1,,:: r.;' ~
..... ",
. ~ . " -'
.i ( . ~:
..I~~:~ -
..'t .~
. ,
,;
:I.i.,
'..: .
::~. ,
'."
':.:J
J('
"
';1.
. .,' " ~
,"
. . "." . ~
~~i ?, ~.., ~ .
" ,
.99-/~
".
<".. .."....
"
... "'\.>'~w~.r~ ....r"..~..~~,
. ~ '
t
,'.
" ~.
'.h:.'
,'\;..'
L.
(j
.c.-......
''':i
,"'.'- .
~.~",:
, .
.,'
,/~
'v
1 :.:..
,. (('
, ik\;
,. . \':'
\
.1
'1,'
:,
'0
!:":
,'.
..~ J'. , .. ~
',/
, !
.',
EXHIBIT E
FORM OF BOND PURCHASE AGREEMENT
'/
"
.,
'~ : . , '; y "~:
, ,t U .
, .
~,
_ .1:' ~ .,
. "
'~... It:~i'j.~~.~~: '~...
Resolution 99-18
..
~ V;-' JllI.~~-..a.r..r...::-.......-.....-"':''''':'''__.:,~.' . T'_~~' <".. ~ <"
'.
DRAFI' ff[^) 3: 6/8199
07310.C[^]
.
,/~
BOND PURCHASE AGREEMENT
:1
I,' "
I'.:'
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS, SERIES 1999
(DEF, INC. PROJECT)
. . S
CITY OF CLEARWATER, FLORIDA
REVENUE BONDS, SERIES 1999A
(DEF, INC. PROJECT)
S
CITY OF CLEARWATER, FLORIDA
(^] REVENUE DONDS, SERIES 1999B
(^](BEF, INC. PROJECT),
EXTENDABLE RATE ADJUSTABLE
SECURITIESSM(EXTRASSM)
.' .....\
'--./ .
S
CITY OF CLEARWATER. FLORIDA
TAXABLE REVENUE BONDS. SERIES 1999C
(DEF. INC. PROJECT)
,1999
Undenvritten By:
B.C. Ziegler and Company
, ~~'.\
J
I.
49-/~
~~~~~
~L. ~;. ' ~ . ~ .
d.. ,', "". . I, ..,
. . ..< ." .. .
),
I
BOND PURCHASE AGREEMENT
'...) This Bond Purchase Agreement (this lIPurchasc Agrcementlt), dated , 1999, is
made by and among the following parties (hereinafter collectively called the "Parties"), namely: City
of Clearwater, Florida (the ItIssuer"); BEF, Inc., a Florida not-for-profit corporation (the
UCompanyU); and B.C. Ziegler and Company (the "Underwriter").
,
I
!
'....~/
\
,J
,,~..' ~\ ..~ rU. ~.+ .'
ARTICLE I
DEFINlTIONS
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: In the case ofthe Company, its President or any Vice President and
its Secretary or Treasurer.
Bond Counsel:
Bryant, Miller and Olive, P.A.
Tallahassee, Florida.
Moore Stephens LoveLace, P,A.
Accountants:
Company's Counsel:
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
Mayor-Commissioner:
Trustee:
City Clerk:
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 perso", 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
Issuer's Counsel:
Issuer's Governing
Body:
Underwriter's Counsel:
Nabors, Giblin & Nickerson, P.A.
Tampa, Florida.
1
19' IV
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: The Loan and Security Agreement, dated as of[^J ~ 1, 1999. to
be entered into by and between the Issuer and the Company.
Bonds: Co))ectively, City of Clearwater, Florida Revenue Bonds, Series
1999A (BEF, Inc. Project) (the IISeries 1999A Bondstl), City of
Clearwater, Florida f ^ J Revenue Bonds, Series 1999B (BEF, Inc.
Project) Fxtendable Rate Adiustable SecuritiesSM (EXTRAS~
(the "Series 1999B Bonds") and City of Clearwater, Florida
Taxable Revenue Bonds, Series 1999C (BEF, Inc. Project) (^ J(the
IISeries 1999C Bondsll) 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, cenificates, opinions, instruments and
other documents described in Section 4.2 of this Purchase
Agreement.
Manager;
.,~
.~ ...J
. ......,.
Manager's Counsel:
Bluffs Developer:
Bluff's Developer Counsel:
Bluff's Counsel:
Financial Advisor to the
City:
Note Holder:
Note Holderts Counsel:
Financial Feasibility
Consultant:
"~')
\~'J~
Company Documents:
Closing Papers:
..~
Complete Care Services of Florida. Inc.
Harsham, 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
Bea) Bank
Dallas, Texas
Jenkens & Gilchrist
DaJlas. Texas
BDO Seidman. LLP
Atlanta, Georgia
2
qt{'1 ~
.~
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 ISc2-12.
The Final Official Statement (including the Appendices thereto),
dated the date hereof: summarizing certain terms of the BondsJ the
security therefor and certain financial and other information related
to the Company and the Manager.
The Trust Indenture, dated as of [^] July 1 J 1999 J to be entered
into by and between the Issuer and the Trustee providing for the
issuance of the Bonds.
This Purchase AgreementJ the BondsJ the AgreementJ 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
MA TIERS - Authorization of and Certification Concerning Official
Statement. "
The Mortgage and Security Agreement, dated as of [A] July I,
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 tenns of
the Bonds and the security therefor and certain financial and other
infonnation 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:
'0
3
1e; -I ~
Mortgaged Equipment:
The personal property of the Company to be subjected to the
Uniform Commercial Code security interest of the Mortgage,
'''j
Mortgaged Real Estate:
The real property of the Company to be subjected to the mongage
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:
Issuer's Authorizing
Resolutions:
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.
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. _w99 enacted by the Issuer's Governing Body
adopted on April 15, 1999, and Resolution No. 99w_ adopted
on t 1999, relating to the authorization, issuance and
sale of the Bonds.
Rule 15c2w 12 of the Securities and Exchange Commission
promulgated pursuant to the Security and Exchange Act of 1934.
Act:
Code:
:...)
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 Cosing 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 ronowing the "end of the
underwriting period" as such term is described in Rule 15c2w 12.
Place of Closing:
Offices of I t
Florida or such other place as the Parties may designate by written
agreement.
',J
4
1q , I ~
.~
ARTICLE II
REPRESENTATIONS AND COVENANTS
SECTION 2.1. Representations and Covenants of Issuer. 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.
,~. . ~
.' ,
l,,,,-,'ll)
(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, (Hi) 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 perfonn its obligations hereunder
and thereunder.
(d) When delivered to and paid for by the Undetwriter on the Closing Date in accordance
with the provisions ofthis 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 confonnity with. and entitled to !he benefit and
security of, the Indenture, the Agreement and the Mortgage.
(e) The Mayor-Commission~r and the City Clerk are authorized for and in the name of
the Issuer to execute, deliver and perfonn 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
perfonnance 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
v
5
qCj - / ~
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 perfonnance of this 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 ofthe 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
ofits date for purposes of Rule 15c2-12, except for "pennitted 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.
-j
(j) 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 ofa 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 fonn and in a manner approved by the
Underwriter and furnish to the Underwriter (i) a reasonable number of copies orthe supplement or
amendment, and (ii) ifsuch 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 infonnation 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
J
6
11" I ~
')
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 tile 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 aryd 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 th~ "end of the underwriting
period" for the Bonds has occurred for purposes of Rule 1 5c2-12 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 tlend of the underwriting period" for the Bonds the date
specified in the notice from the Undetwriter stating the date which is the uend 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 representst warrants and covenants
as follows:
J
7
qq-/t
1
(0) 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 perfonn 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 perfonn 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.
.~.
Cf) 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 orany of the Company's
outstanding indebtedness for money borrowed.
(i) Except as described in the Preliminary Official Statement, there is no actio", suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body,
pending or, to the knowledge ofthe Company, threatened against the Company (or, to the knowledge
of the Company, any meritorious basis therefor) wherein an unfavorable decision. ruling or finding
o
8
11-/~
"f.... .~.~.. . ~. . .
:)
would have a material adverse effect on (i) the financial condition ofthc Company, (ii) the acquisition,
construction, installation or operation of the Project 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 Officiat 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 constituie 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 Unifonn Commercial Code security interests conflicting with the security interest of the Mortgage
in the Mortgaged Equipment~ and, the Company has signed no currently effective Unifonn
Commercial Financing Statements affecting the Mortgaged Equipment other than as permitted by the
Mortgage.
o
(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
9
qq -/~
":'., ,.;'... ,..,-
-............--.-............
')
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 ofthe "special exceptions" set forth
in the Title Insurance Binder materially interferes with or impairs the operations to be conducted on
the Mongaged 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-tenn 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, propenies. 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 Ponions 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 ofthe
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 Offici~ 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 ofthe Company, in such quantities as shall
I
'-/
10
qq"lr
'I- 'n...'.... -
__ --_....-0............................... .......
,,)
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 ofa copy ofthe Final Official Statement to each potential customer upon request and,
in any event. to each actual customer.
(u) Ifduring the Offering Period the Company becomes aware ofany 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 ifin the opinion of the
Underwriter such fact or event requircs the preparation and publication of a supplement' or
amendment to the Final Official Statemcnt, 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.
I
I
, _../
(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 peri9ds 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 detelmined 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, (Hi) 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
.....J
11
99-/f!
{~
..,......'
"-,,
<J
<"J
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 monthly 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 contmuance of such qua1ification~ 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 Jaws.
12
19,jrf
)
ARTICLE III
AGREEMENT 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) onc 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.
, )
.~* if
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 lSc2~12 or the rules ofthe 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 of the 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 110fficial 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 ISc2-12, except for certain omissions therein in connection with
the pricing of the Bonds.
SECTION 3.2 ~~eement to Sell and Purchase Bonds. The Bonds shall have the tenns
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 seU to the Underwriter, aU (but not less than aU) of the
Bonds for the purchase price specified in Exhibit A annexed hereto (the I1Purchase Price"), plus
accrued interest through the day immediately preceding the Closing Date. Payment ofthe 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 ofthe 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
qq;, / r
!
i
()
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 of the Bonds, solely pursuant to the Preliminary Official Statement and the Official Statement
at the initial offering prices set forth in the Official Statementt reservinSt hawevert 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 ofthe Bonds at levels above that which might otherwise prevail in the open market
and to discontinue such stabilizing, if commencedt at any time.
SECTION 3.4 Condition to Purchase of Bonds. The Underwriter's obligation to purchase
the Bonds shall be conditioned upon its receivingt 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 i'ts control) to
. cause each of the conditions set forth in Article IV oftms Purchase Agreement to be satisfied at or
" prior to the Closing Time.
\'_.-J"
.
.....~
14
qq ~ / g'
f)
'.
:.."....~,)
~~)
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 Underwnter 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 ofFlorid~ together with a certificate of the Secretary
or Treasurer of the 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 dose as reasonably practicable to the
Closing Date.
(iii) One copy ofthe resolutions or excerpts from minutes ofmectings of
the Companyts 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.
IS
1q~/v
"\il~.,),o.a'i. I." ..,. ,.. .
.... --......-..._----.--......,..---.........:.._--~-------
........
.~,
(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, if any, 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 Clearwatert Florida., certified to the Trusteet 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
S I 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 Itpermitted Encumbrances" as defined in the Mortgage and
other than liens or encumbrances acceptable to the UndeIWTiter 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
CompanYt 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 Statementt (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 (Hi) stating that the information contained in the Final
Official Statement (other than in the Issuer Portions thereof) is true and correct in all
material respects and does not contain any untrue statement ofa 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
qq, / f(
:".l" ,
,.~,
''-oJ
._...In:l:......~~..-......
(xi) Receipts or other evidence that financing statements have been filed
for record with the appropriate governmentaJ 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 cenificate," 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, pennits 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 fonn 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 Compai'Y is an organization described in Section SOl(c)(3) of the Code and
is not a private foundation as described in Section 509(a) of the Code.
(xvii) One signed copy ofa 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
qq~/r
.~
"'~' }
(c)
)
.....r__.'
(J
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, confinning
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.
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 Itnonarbitrage certificate, tI 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 It of Section 147(f) of the Internal Revenue Code.
(v) Evidence that the Issuer has complied with the reporting requirements
ofSecti,on 149(e)(2) of the InternaJ Revenue Code in respect of the Bonds.
(vi) One signed copy of a legal opinion from Issuers Counsel, dated the
Closing Datel 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 fonn of Exhibit F hereto.
18
19 -' I c;(
,t)
. '" ,1
(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 BF~004. as prepared by Bond Counsel.
(d) Closing Papers to be Furnished by 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.
(Hi) One signed copy of the opinion of the Trustee's Counsel, dated the
Closing Date, in the fonn as set forth in Exhibit J hereto.
(e) Other Assurance~: 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 (Hi) the due
,~) performance 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 ofClosinQ: 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 fonn and substance. Time is of the essence with regard
to aU matters covered in this Article IV. The legal opinions and certificates described in Section 4.2
shall be addressed to the Underwriter. No condition hereofshalJ be deemed to have been waived by
the Underwriter unless expressed specifically in a writing signed by the Underwriter.
,~
19
C;q,. 1ft
J;w........ri-~..r.~ ,..~~._....
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 shaH be a failure of any one or more of the conditions set forth in Sections 4.1,
4.2 or 4.3 oftbis 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, (Hi) 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;
I
I
I .
(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 a~ 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,
whic~ in the reasonable judgment of the Underwriter, substantially impairs the marketability ofthe
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
"
-.J
20
qq, I~
o
~,:~)
,-)
~ '. "T ,. ~
(h) Any event or condition shan 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 relatc, 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 Expenses. 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 exp'enses 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 UndelVlriter, their respective executive officers, directors and officials
and each person, ifany, 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
] 939, 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 ofany 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 Hable for any settlement of any such action effected without
21
Cf1 ' / gt
~
. ,
)
,~...-/
l
',~J
.'
its consent, but if settled with the consent of the Company or if there is a final judgment for the
plaintiff in any such actionl 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 pany.
Ifthe 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 thereot) referred to herein,
the Company agrees, in lieu ofindemnifying 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 permitte.'d
by applicable law or if the indemnified party faited 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 offraudulent 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
9Q, /~
,~
,.....
C'l)
,~
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 Companv: 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
81. Petersbuf& Florida 33701~3411
Attention: Richard J. ScanIo", 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
19- /r
.L:lt
o
>
..... ". \
'''-)
, )
"-...
""""'..> I:,. ~~.... . ~
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. Severabilitv. 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
reaso", 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 Fonn and Legal Sufficiency
By:
City Manager
By:
City Attorney
DEF, INC.
By:
President
D.C. ZIEGLER AND COMPANY
By:
Title;
24
tJ"/f
..---)
. . .~~
"
'J
<J
~.' .-t'h~)..r.r"".'~"''''''.~'''
:1
EXHIBIT A
Pricinf;t Data
I. Purchase Price:
The Purchase Price for the Series 1999A Bonds is $ which reflects an
underwriting discount ofS L-% of principal amount) and an original issue discount
of $_ L-% 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$_ L-% of principal amount).
The Purchase Price for the Series 1999C Bonds is $ which reflects an
underwriting discount of$ L-% of principal amount) and an original issue discount
. of $_ L-% of principal amount).
The Underwriting fee is S
L-% of principal amount).
II. Maturities and Interest Rates:
SERIES 1999A BONDS
Due
( .1)
Principal
Amount
lnterest
Rate
[To Come)
SERIES 19998 (^J EXTRASSM
Due
( .])
Principal
Amount
Interest
Rate
[To Come)
SERIES 1999C [A) BONDS
A-I
19'1ft
. .
- ~~..-~
.' ..
~
)
'-..,../
o
'. ..ooI_......,........AaIMl;'-..-
Due
. ( . 1)
Principal
Amount
Interest
Rate
[To Come]
.
From and after . --J the interest rate is subject to adjustment in accordance
with ,the terms of the Indenture.
III.
Call Provisio~:
SERIES 1999A BONDS
Mandatory Sinking Fund Redemption. The Series ! 999A Bonds maturing November! 5.
20_ are subject to mandatory redemption prior to maturity in paltt by lot, on November 15 of each
year, beginning November 15, 20 -J at a redemption price equal to 100% of the principal amount of
such Series ) 999A Bonds being redeemed plus accrued interest to the redemption date~ without
premium, in the foUowing principal amounts and in the following years:
Year
Amount
· ~lalunty
The principal amount of Series 1999 A Bonds required to he redeemed as set forth above shall
be reduced pro rata by 8Il1ounts equal to such principal amount of the Series 1999A 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 rot
within a maturity, on any Interest Payment Date, at the redemption prices (expressed as percentages
A-2
1
I
11-/C(
-"
~
..-..)
0'11..,,,,
.-.J
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)
November 15,20_ to November 14,20_
November 15,20_ to November 14,20_
November 15, 20 and thereafter
Redemption Prices
102%
101
100
SERIFS 19998 EXTRASSM
-
Mandatory Sinkinfl Fund Redemption. The Series 19998 EXTRASSM are subiect t~
mandatory redemption prior to maturity in Dart. by lot (except that Series 1999B EXTRASSM that
have been tendered for purchase on any Ootional Purchase Date but were no so purchased shaH be
redeemed orior to anv other Series 1999B EXTRASSM). on November 15 of each year. bel2;inning
November 1 S. 20 . at a redemotion price of 100% of the princioal amount thereof. plus accrued
interest thereon to the redemotion date. without oremium. in the followin~ principal amounts in the
roHowina years:
Year
--
Amount
· MaturitY
The princioal amount of Series 1999B EXTRASSM reauired to be redeemed as set forth above
shall be reduced ora rata by amounts eQual to such orincipal amount ofthe Series 1999B EXTRAssM
2,f such maturities which are purchased by the Tender A~ent or Trustee for ~cellation and
retirement with monevs provided by the Como any.
Optional Redemption. The Series 1999B EXTRASSM may be redeemed in whole or in part
on any date occurring within the redemotion oeriods. as set forth below. by the Issuer uoon the
direction of the Comoany. The redemption price for any such redemotion shall be at a redemption
price eQual to 100% of the principal amount of the Series 1999B EXTRASSM or portion thereof so
redeemed on the applicable redemption date. plus accrued interest to the redemption date.
A~3
CfI-/~
. "":"-:~~_:'::':"'~"""".L':"""_"';''''''"'''''-__'
~
. .
;
"-,1
.~)
".C. H'. 'i'" ~~, .
----~------~~--~------_._-----------------------------~---_.
I
i
(i) Durim~ the oeriod between the issuance of the Series 1999B EXTRASSM and
the initial Rate Change. the Series 1999B EXTRASSM are subiect to ootional redemotion on
or after November 1 5.20 .
.(ii) Durin~ any Rate Period of three years in lenlrth. the Series 1999B EXTRASSM
arc subiect to ootional redemption commencinR on the 18~month anniversary of the first d~X
of such Rate Period~
(iii) Durin~ any Rate Period offive vears in lemzth. the Series 1 999B EXTRASSM
are subiect to oPtional redemPtion comrnencin~ on the 24-month anniversary of the first daX
of such Rate Period.
(iv) During any Rate Period of seven vears in length. the Series 19998 EXTRASSM
are sublect to oPtional redemption commencin~ on the 30-month anniversary of the first day
of such Rate Period.
(v) DurinR any Rate Period of ten or more vears in lensrth) the Series 1999B
EXTRASSM are subiect to oPtional redemption commencinR 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
~~rchased shall be wven orioritv for red emotion on each succeedinR ootional or extraordinary
redemption date until redeemed orior to the oPtional or extraordinary redemPtion ofanv other Series
1999B EXTRASSM Series 1999 Bonds 50 given prioritv shall be selected by the Trustee. by lot or
in such other equitable mann~r as the Trustee shall deem aoprooriate. in the event ofin5ufficient funds
10 redeem all such Series 1999 Bonds on any particular red emotion 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 15t 20-, at a redemption price equal to 100% of the principal amount of
A4
Cf1-,/r
. "
"'
. 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 (^] 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 (^) 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 [^]
1999C Bonds maturing on or after November' IS, 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)
November 15,20_ to November 14, 20_
November 15,20_ to November 14, 20_
November 15, 20 and thereafter
Redemption Prices
102%
101
100
(^][^)[^]
A-S
I
I
I
I
I
1
1
il
1
~~
qq~/ff
......-...""",... . : I __n...............~ .:.. _ nO : _no
.,.~..... ........,,. ..,-.. .
.. t " .
',.
',.
'::1',
..
. "
'~: ". ...: ~:Ic ,',
, ,
. ~.'" .
"
'';..J,~ 'I',,,.,... ,'" _ _ "
I
I'
.'
,;
,
.:~.~ ~.
"
,~
, . ; J
........4..... .
."
~. ," .
'I
Cy.';;'-..,
.,'
"
>I'~
v'
,:1."
.~< I
,"
~.~I"~:
~:\.:. .
\~ :
..',."
. "
Ii . ~ .
;'1" .
.'~: I'
..; '-t"'.
./' "
" .
~..
'p ~;:
.'. .
r<:;',:
, ,
, '
.,
1"'1 ....,~
;::::. ';
.i :'.
~.~ .'.
.:1 ~" .
"" .'
~... ://"~,)
(;',:\..:..:;,1.
, \.
:~", . I . .:
;',)
'I :
"
: ::
'.
,):
.;.
.\
,.
,,'
~" .
~'..~'\
:,'.
~.' .'
}. ...
o
,I;..
, '
'.'
.,e.
~l.ol'>."'!"""-:",",~-.' C""
'~I!'1L:~. ,':1<: '~!'<'~l~:"~ '~:.~:~ ~ . .
-----_-..-.::...~~- ..
,"
.,">
',1
,.
.....-...U\.".'l'W"~ ....'.......l.,....'.)..~.,. ~..
, '
'.
EXHIBIT B
Accountant's Comfort Letter
...
. ,
...
B-1
.............~.t.....L~r.;;.~ .::;-'.
.-:.", ~.".A ,~..... .. ... -.
. ,;. .......~", ...1,
, ~ .. ~ *" .; \.,' /.;.~
I
I
19' let
:~..., ~.;"". '~_~tI.\~..(........ :.,........
~; ':" ::.
" .
" ,f.
.' ........
'~".~ .
, .
'"
" ~', -
, .'
. ,
,
,,'
" ..
"\,~, ,
~';': ~~: ~
"'0
'. ,:"....
'. ;,
.~ ~'
':-
':,
:0-."
.1....:
\: .' ,.
i~'~~ '~:,~ .
.. '
"':
-:", .
t:'..1
) ~ ,.
\,.
o
,'1',
., .~. ,
'~l
l . ~ ~ L
r:...;. !
..J
I: '
',.,
. '.
;.'
\ ~ '<. . r
..,'. "
,..,j,
;..: \ ",
,.
! i ~
,'.
l :,~.'
.~ ., .
';~.:.~\ .
. , '-"
,~?-:,:: ;
:'~>+~>,:..:.. <."
...
~t:;~>.::""" ;
~ .' . < C C
~ . ~ .'
". "
li: i !,:~>::;:;,',:,;~: ';' ,~'~:' '/
'I' ,
, ,)
. ~ c '"
"
'"
".
I I .~,
~;, ":;'(.
EXHIBIT C
Accountant's Bring Down Le:tter
..
'\.>.:,").1\:'
.'
C-l
q9~ / r.
;'
EXHIBIT 0
)
Opinion of Company's Counsel
(Terms 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 limitatio~ 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 pan 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 ofwhich 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 Doaunents
or the Final Official Statement, be engaged in an unrelated trade or business detennined by applying
Section 513(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 SOl{c)(3) of the Code, the Internal Revenue Sef\;ce
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-l
11" I~
~'~~":::~::~...s___~____._
'~-"'\
.~_....
\
-........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(^J. 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.
(^J 2. The form of the Mortgage, the assignment thereof, and the financing statement
executed in cOMection with the Mortgage comply with all applicable recording and filing laws ofthe
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.
[^J J,g. The fuUy executed counterpart of the Mortgage has been recorded in the
offices ofthe 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 ofthe Se~retary of State of the State of Florida. We note that
continuation statements under the Florida Unifonn 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 ofthc 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 Hen 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 potiey (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
q7~/r
---
(^Ill. No c~rtificate of need or other Florida health planning agency approval or
. consent is required for the transactions contemplated by the Company Documents, inc1uding the
~ acquisition, construction and installation of the Project, unless such certificate or other approval has
been obtained.
.~.'c ~
:,-)
o
(^IJZ. No authorization, approval, consent, pennit or license of any regulatory body
or governmental authority, not already obtained, is required on the part of the 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.
(^Ill. 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.
(^Ill. 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
actio", 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.
[^] ll. 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.
0-3
11, /i
-l..~..ai..-I" ......'... .... ,
... I.'''' ...............--~.....................__.
-
r-....
EXHIBIT E
Opinion of Counsel to the Issuer
(Terms defined in Purchase Agreement
are used here with the same meanings)
1. 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 perfonn 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 infonnation, 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 aU 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 army 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.
\.J
E-l
'11" I f'/
':L"l;~~r...,~..::_..~'ltl'.' :~~..............o.a...-________.
~'\.
....-.----~---
.--.. ~ +' c' .: '
. , '
. ", ,
, "
~ <!c. "
':. .,
;.. .
.:,' '.
11 ~ -. ~
t~.: :~~., ~..,
. .
" .
I',
In.,
;:.n.
.'. , '~tb-n'" '
(0'. ' .
.,'
'lY': ~
f"'.' . .,"
<','
.,-
~ "
~" .~ ~
,,'
o.
J.
,,'
. .
,': L.
J. '.
,;. ,. .
:}L.' :
;/.
, ".\"
.. .>
.,....' .
.... ."'
:. ,I .'
::,;'!.>~~
:,,:V
. ,
"
:'.' ,
"
:.'
, '
'. '
, :' .'
~ "
I .'
:;';: .
. "
::('0
,. '
,"j .
. .
. \. "' <
----------
EXl-UBIT F
Form of Bond Counsel Opinior}
:The Form of Bond Counsel Opinion is attached as Appendix G
to the Preliminary Official Statement.
F - 1
;
t
j
j
II
I,
I
!
1'1~/~
EXHIBIT G
.")
", ~.
Supplemental Opinion of Bond Counsel
I
(Terms 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 uINTRODUCTION" (other than the
information contained under the subheadings uThe Company and the Facility," "Historical and
Selected Financial Information" and "Bondholders' Risks" as to which no opinion is expressed), "THE
SERIES 1999A BONDS," liTHE SERIES 1999B [^) EXTRASSM3I" UTIIE SERIES 1999C [^)
BONDS," liTHE SERIES 1999 BONDS - ADDITIONAL INFORMATION," "TAX MATTERS It
and "APPENDIXE - Definitions and Summary ofPrincipal Documents," insofar as the same pUiports
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 10 be
\.,..,J summarized therein.
3. AU 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 to the same extent as if such opinion were addressed to the Underwriter.
,"
'..J
G w 1
Cf'l-/fI
IA./'[..JTU. ..~-II-"'" ,,""," ~. ,
, r"'"
..... t-...-.6iUlIt.........-......ou....-.__
-
~
,',J
.~
I r\'l. ' '. ~...' ~I. z._.,. ~ .
EXffiBIT H
Disclosure Statement
. 1999
City of Clearwater, Florida
112 South Osceola Avenue, 3td 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)
~xtendable Rate Adiustable SecuritiesSM CEXTRASSM) 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 "Bondstl), B, C. Ziegler
& Company (the "Underwriter") is underwriting a public offering of the Bonds.
The purpose of tros 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 UndelVlTiter 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
1f~/~
._..,._-.......---_.....,-~_......._,-
.~
"
\
I
'~J
)~~,. >..
u
ra:.r..~.;i.Wh.t,.,'I,..,"'_:".~' ...... .
S. 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
am~nded), 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 (Hi) 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 Joan 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
99" /C{
, , " . ~. .
\ .. . . :
"
...~ > \.' c ..
, '. ."
,'-
"r"~ J.. " .. " . i. I...
;,'h
~"... I....
,"'
'(,"
. "
';
"
::' .
H.-","
I:'
.: ,"
,',
, :,\'
, J-~
;., /'
. . ;0"
~ ., . , .
}:
".' '
:. ":
"I:
~ ':
. . ("'... .
'U
t(._.
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.
. ,
, .
. ,
H - 3
Very truly yours,
B.C. ZIEGLER AND COMPANY
By:
. Richard J. Scanlon
Vice President
, ,
.1
I
,/
99-/f(
. .
~nWJI"''''''''''''''''''''' ~ . '''::''~':'':'-'~__:...::'__t__~~:~.' . ...~_~__'~__~~::~.~~~_.__~~+~" 1".~~<~'" .""' u.,.~'... L~~L"-;~~ '/'L 1~. ; .'. J' ~~. I. "," " ~ . h:c ,~,.,.""u".........._.. ...,~
"
d, ~ .../
. ,
c.:' ""/
,"J.
",' >: :.
? .
'.l~..-:"~ ."'; c \:i: '.,
. ,
'::'0
'.
" .
::~ " :. .
r. . ~
;
~.: c
;. .
, .
~ \: '
'.
.r"1
"
!.' . .
(: . ~
': ()
'.. r
. }:"
'0
': .
. .
'. .
. ..
1<'. '
,'.
. ,
. . ,11 . . . '." . : I .
SCHEDULE I
UNDERWRITER'S ESTIMATED EXPENSES
Underwriter's Counsel (fee and expenses)
Travel and Out~f.Pocket(l); Federal Funds;
Data Processing and Communir.ations;
MSRB, CUSIP, dalnet, PSA and DTe
.Total
(1) . Includes computer, travel, telephone and telecopy and internal advertising:
..
.
'H - 4
.1
C(9" /'1
I
j
.1
. . .
. -----""---------
1
I
I
1 .
I
"'l
, I
t
I
'.
l
......,/
,~)
EXHIBIT I
Form of Architect's Certificate
The undersigned, (the "Architect")1 hereby certifies to
. as Trustee (the "Trustee"), as follo'ws:
1. The Architect is a licensed architect in the State of Florida and has been engaged by
BEF, Inc. (the uCompanyU) to design and supervise construction ofthe improvements described on
Exhibit A hereto (the "Projectll). In such capacity, the Architect has prepared plans, specifications
and working drawings for the Project (collectively, the nplanslt).
2. In addition, the Architect has been engaged by the Company to advise the Company
as to necessary pennits 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 ofCily 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 pennits, have been received by the Company and are in effect.
5. The Project, as constructed in accordance with the Plans, will satisfy all federall 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 ofinsurance 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
f'r,/CZ(
;!':
~ '
,.~
'0
('~"')
~J
.,'
'.........~,/;..........>104._......:..c
>. ,\'c
\. ,~.. .; ~ .,
'. . ~) > -' > -~
10. ' The Project will have adequate parking. including handicapped parking and curb cuts.
to meet aU governmentaJ requirements and for the practical and efficient use of the Project as
intended.
> J J. 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 win be relied upon by the Trustee on
behalf ofho!ders of the Bonds.
[NAME OF ARCHITECT]
By:
Its:
:1 .
.1 - 2 .
,9'1 ~ /8
. . i . ~.. ..', L '. "... ~ "', .... T""" ,
. " .., ...;~.
,'-'. ,~,. . ...' .
. ,~.. . ~ ...
.'
..' ..."
I .
"
.... ,
r
. ,
.1
''7J
" '
. '~..\
", .'~." J
" ' ......;
.;'"'~"'''t
t.....j
~'~:..:,(.!....~"~~t..L-TI.tn' ._,
EXHIBIT J
Fonnor 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.
~. The execution, delivery and perfonnance 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 teons, except as such enforceability may be
limited by applicable bankruptCYt 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
1r-/rr
'......-....... I.",'
;. ~
;' . .._.~.....:.........-----"-.:.'~~:~~_.,--_.
.',
. . \ ~ '
~'.I ,I
.,.,
:~ ;:"::. {
. ~ } ,I."
..
. :. ~.
'j".,
>/. .
, '.
"-'I
. ,.
"
~'
.. ~ _. ,. r'.. ~ 1'1 . > ....
~ I'
'n
'"':1-....,..,.
. j~' .
, ":,
..:n,<
.. ".'
il
':"'2)"
. I ~ '. ,~, .
". I'" .
"
'l ;>I,,'
~:. "",
.. ,,v.
" ....1
~:, i~\:,.
:' ~<.~.
t' ..,
'.1 ..
".
~
~:.
','
,.
.
~~
.
I,
I".,
';'l
,.~F~ 1,
""j'~'
, .
.....:.
1
';{:ji\
"
:".'\..... " .
.t;~.:.r~;:;:,~.~.~~~~.~~ '-~.~.~'. ;.
,; i" ....
.,
, j
':,
.\
" .
( ,
I
,.1
,\
EXHIBIT F
FORM OF PRELIMINARY OFFICIAL STATEMENT
"
.'
, '.
. ..~ ......, .., "if. '.... ._ .'.. :~\ < '1" :- ~ c~~...'" ~ ~'. . '.";~;' :~
C.,/ !;-;=+,1;C::,,~..~~~~'"..."'-~.t
...,..;.. t ,'.~,,..~ ~
.tl-....i;,.} ~ "..t -cJ ~ c . ~"'"
.'
Resolution 99~ 18
...... '. ..... ...,.~. .., ~. ..... .....,....""-41...... -'" "'"'-".
.'1
OFFICIAL STATEMENT
CITY OF CLEARWATER, FLORIDA
(^J REVENUE BONDS, SERIES 1999
(DEF, INC. PROJECT)
Consisting or
$ .
CITY OF CLEARWATER, FLORIDA
[^) REVENUE BONDS, SERIES 1999A
(DEF, INC. PROJECT)
$. .
CITY OF CLEARWATER, FLORIDA
[^] REVENUE BONDS, SERIES 1999B
[^)(BEF, INC. PROJECT),
EXTENDABLE RATE ADJUSTABLE
SECURITIESSM(EXTRASSM)
$ l\'
CITY OF CLEARWATER. FLORIDA
TAXABLE REVENUE BONDS. SERIES 1999C
tUEF. INC. PROJEC:;!)
\
.._.J
INTRODUCTION
The following introductory statement is subject in all respects to more complete information
contained elsewhere in this Official Statement. The order and placement ofmatenals in this Official
Statement, including the appendices, are not to be deemed to be a determination of relevance,
materiality or relative importance, and this Official Statement, including the cover page and
appendices, must be considered in its entirety. All capitalized terms used in this Official Statement
that are not othenNise defined herein shall have the meanings ascribed to them in APPENDIX D
hereto. See APPENDIX D - "Definitions and Summary of Principal Documents."
Purpose of the Omcial Statement
The purpose of this Official Statement, including the cover page hereof and the appendices
hereto, is to furnish certain information relating to (1) the City of Clearwater, Florida (the "Issuer").
(2) the Issuer's Revenue Bonds, Series 1999A (BEF, Inc. Project), in the aggregate principal amount
of$ · (the IlSeries 1999A Bondslt), (3) the Issuer1s (^) Revenue Bonds. Series 1999B
(BEF, Inc. Project) Extendable Rate Adiustable SecuritiesSM (EXTRASSM), in the aggregate principal.
amount of$ " (the "Series 1999B (^J EXTRASSMU). (4) the Issuer's Taxable Revenue
Bonds, Series 1999C (BEF, Inc. Project) (^), in the aggregate principal amount of$ ·
o
.Preliminary, subject to change
19-fC?
~..Io ~.,oA'~~'..'" ~
...
I,
,~
I
(the "Series 1999C [^) Bonds"}, and (5) BEF, Inc., a Florida not-for-profit corporation (the
"Company"). The Series 1999A Bonds, the Series 1999B [^ J EXTRAS SM, and the Series 1999C [^]
IJonds are collectively referred to herein as the "Series 1999 Bonds. II
The Issuer'
The Issuer is a municipal corporation duly organized and existing under and pursuant to the
Florida Constitution, the Charter of the Issuer and laws of the State of Florida. The Issuer is
authorized pursuant to the provisions of the Florida Constitution, the Charter of the Issuer and
Chapter IS4, Parts II and III of Chapter 159, and Chapter 166, Florida Statutes, as amended and
other applicable provisions oflaw (the "Actlt) to make and execute financing agreements, contracts
and other instruments necessary or convenient for the purpose of facilitating the financing of certain
projects, including machinery, equipment, land, rights in land and other appurtenances and facilities
related thereto, to the end that the Issuer may be able to promote the health and. safety of the
inhabitants of the Issuer, the people of PinelIas County and the State of Florida by increasing their
access to adequate medical care and health care faciHties, and to accomplish such financings through
the issuance of revenue bonds.
The Company and the Facility
The Company was incorporated as a Florida not-for-profit corporation in 1975, as American
Baptist Estates of Clearwater, Inc. The Company changed its name to BEF, Inc. in March of 1999.
..-.. The Internal Revenue Service has detennined that the Company is an organization described in
'~'w) Section 501(c)(3) of the Internal Code of 1986, as amended (the "Code"), and is therefore exempt
from federal income taxation under the provisions of Section 50 I (a) of the Code. The Company
received its Determination Letter from the Internal Revenue Service in May, 1976.
The Company and The Oaks of Clearwaterl Inc. (the "Oaks") own and operate retirement
facilities located in the City of Clearwater, PinelIas County, Florid~ known as The Oaks of
Clearwater Retirement Community (collectively, the "Facility"). The Facility is currently comprised
of two high-rise buildings, Oak Bluffs, a IS-story building (the "Bluffs Building"), and Oak Cove, a
13-story building (the "Cove Building"), and four low-rise villa buildings (the ItViHasn) which contain
skilled nursing facilities owned and operated by the Company (the "Nursing Centers") and
independent and assisted living facilities which are owned and operated by the Oaks.
The Company provides three different levels of care to residents of the Facility: independent
living, assisted living and nursing care.
Residential areas within the Facility include 12 one-bedroom garden apartments located in the
Villas, 8 two-bedroom garden apartments and 391 one-room and two-room high-rise apartments (213
of which are currently unoccupied ane located in the Cove Building and the remainder are located
in the Bluffs Building) (collectively, the (^J"lndependent Living Unitsn)~ [^] ~ assisted living units
(^] located in [^J the Bluffs BuildinJ;t (the "Assisted Living Units")~ and the Nursing Centers, which
o
2
19,.( f/
}
')
,
are comprised of a 60~bed skilled nursing facility located in the Bluffs Building (the "Bluffs Nursing
Centerll) and a 56~bed skilled nursing facility located in the Cove Building (the "Cove Nursing
Center"),
The Facility is located on approximately 7 acres ofland on the Intercoastal Waterway, with
views of the Gulf of Mexico, Clearwater and 81. Petersburg, Florida.
The Project
The Facility was refinanced through a secondary loan from the City of Clearwater, Florida,
from certain proceeds ofa loan from the City of Gulf Breeze, Florida (the HSponsor"), through the
Sponsor's Local Government Loan Program to the City of Clearwater, Florida, funded through the
proceeds of 5ponsorts Local Government Loan Program Floating Rate Demand Revenue Bonds,
Series 1985C-l. The loan to the Company and Oaks was secured by two mortgage notes (the
"Company's 1989 Note" and the "Oaks 1989 Note" and collectively, the If 1989 Notes") guaranteed
as to payment by the Government National Mortgage Association, or GNMA, which is a part of the
United States Department of Housing and Urban Development ("HUO"). In 1996, each of the
Company and Oaks declared bankruptcy and defaulted on the 1989 Notes. In connection with the
plan of reorganization in bankruptcy and pursuant to their guarantee of the ' Notes. HUn purchased
the 1989 Notes and the outstanding bonds were extinguished. HUn then sold the defaulted 1989
Notes at auction to Beal Bank, 5,S.B. ("Beal"). Immediately prior to the closing of the offering of
the Series 1999 Bonds, the outstanding principal and interest on the 1989 Notes was $
. _/ Beal has agreed to sell the 1989 Notes for Twenty Million Dollars ($20,000,000). Pursuant
to the tenns of a Note Purchase Agreement between the Company and Beal, the Company will use
a portion of the proceeds of the Series 1999 Bonds to (i) purchase its 1989 Note from Beal for
$ , with the Company thereby receiving clear title to the Company portions ofthe Facility
(including the Nursing Centers and its portion of the common areas of the Facility), and (ii) purchase
the Oaks 1989 Note from Beal for $ . with the Company acquiring the remaining portions
of the Facility previously owned by Oaks by accepting a deed in lieu offoreclosure from Oaks with
respect to the remaining portions of the Facility. Accordingly, upon the completion of the offering
of the Series 1999 Bonds and the purchase of the 1989 Notes by the Company, the ownership of the
Facility will be consolidated in the Company.
The Company will use a portion of the proceeds from the Series 1999 Bonds to renovate the
Cove Building (the "ProjectU), Currently, the Cove Building j!j vacant except for the Cove Nursing
Center. The third floor of the Cove Building will be renovated into modem, skilled nursing units.
The residents of the Cove Nursing Center wil! be transferred to the new third~floor nursing facility
upon completion. The old Cove Nursing Center wilt then be renovated and rehabilitated to meet
current standards and the residents of the Bluffs Nursing Center wilt be transferred into such
renovated space upon completion. At the same time the remaining floors of the Cove Building will
be completely rehabilitated to provide for senior independent and assisted living units in order to
\..J
3
19" (~
,..-...
. ,
replace the facilities at the Bluffs Building. Upon completion of such living space, the residents in
the Bluffs Building who have consented to move will transfer to the Cove Building. [^]
The Facility will be renovated and redeveloped pursuant to the terms of a Development
Services Agreement (the "Development Agreement") by and between the Company and Complete
Care Services of Florida, Inc. ("CCSFL") a Pennsylvania corporation and a subsidiary of Complete
Care Services, Inc. ("CeS"), which through its subsidiaries manages over 200 nursing homes and
assisted living facilities throughout the United States. primarily on the East Coast and in Ohio, Illinois
and Texas. and provides development services to owners of senior housing. assisted living and
long-term care facilities.
The Development Agreement provides for the payment to CCSFL of three percent (3%) of
the (^) renovation costs of the Project. Seventy-five percent (75%) of such fee is due upon the
issuance of the Series 1999 Bonds, with the remaining twenty-five percent (25%) payable over the
six-month projected construction period. Under the Development Agreement, CCSFL is required
to create a detailed development plan and time schedule, prepare development budgets, oversee
architectural and engineering planning. obtain all necessary regulatory consents and approvals,
identify contractors and coordinate the construction bid process, oversee the construction, and
oversee the transition of the renovated Cove Building until opening.
The Management Company
')
....Jrl.~......
Simultaneous with the issuance of the Series 1999 Bonds, the Company is terminating its
e,Qsting management contracts and is entering into a new management agreement with CCSFL. See
~ description of CCSFL in the Section entitled "THE MANAGEMENT COMP ANY It and the
section entitled "THE PROJECT - The Management Companyll in APPENDIX A herein.
The Series 1999 Bonds
The Series 1999 Bonds will be issued pursuant to a Trust Indenture, dated as of[^] Julv 1,
1999 (the "Indenturen), between the Issuer and SunTrust Bank, Central Florida, National Association.
as trustee (the nTrustee"). Pursuant to a Loan and Security Agreement. dated as of(^] ~ 1999
(the "Agreement"). between the Issuer and the Company, the Issuer willlaan the proceeds of the
Series 1999 Bonds to the Company which, together with certain other funds available therefor. win
be used to (i) acquire the assets of the Oaks which primarily consist ofindependent and assisted living
facilities, (ii) finance the cost of renovations to the Facility, (iii) provide for working capital andlor
capitalized interest, (iv) fund a debt service reserve fund with respect to the Series 1999 Bonds and
(v) pay certain costs with respect to the issuance of the Series 1999 Bonds. Pursuant to the
Agreement. the Company is obligated to make payments which, together with other available funds,
will be sufficient to pay the principal of, redemption premium. if any, and interest on the Series 1999
Bonds as the same becomes due and payable.
....J
4
19-; C6
~
.
.
Security for the Series 1999 Bonds
The Series 1999 Bonds and the redemption premium, ifany. and interest payable thereon, are
special and limited obligations payable solely from (i) payments to be made by the Company under
the Agreement and the Series 1999 (^] Note hereinafter described and other income. revenues and
proceeds derived by the Issuer (or the Trustee acting on behalf of the Issuer) pursuant to the
Agreement or by reason of the disposition of the Mortgaged Property (defined below), (ii) certain
other moneys pledged under the Indenture, including certain proceeds of the Series 1999 Bonds,
moneys held in the Debt Service Reserve Fund, certain insurance proceeds and condemnation awards,
and income from the investment of certain funds held in trust under the Indenture, and (Hi) net
amounts derived by recourse to a Mortgage and Security Agreement, dated as of(^] Julv 1,1999
(the "Mortgage"), from the Company to the Issuer. Pursuant to the Agreement and as evidence of
the borrowing thereunder, the Company will execute ~ promissory [^) note in the principal (^J
amount equal to the aggregate principal amount of the Series 1999 Bonds (the "Series 1999 [^]
Note"). The payment of the Series 1999 [^] Note and the perfonnance by the Company of its
obligations under the Agreement will be secured by the Mortgage. Pursuant to the Mortgage, the
Company win grant a mortgage lien upon and security interest in the Facility, including the land on
which it is located (the "Mortgaged Propertytl), to the Issuer, subject to Permitted Encumbrances (as
such tenn is defined in the Mortgage).
\
1
.......,?
Pursuant(^) to the Agreement and the Mortgage. in order to secure the loan payments and
other payments due thereunder and the perfonnance and observance of each covenant and agreement
of the Company contained in the Agreement, the Series 1999 [^] Note and the Mortgage, the
Company will grant a security interest in its Revenues (as defined in the Indenture and in APPENDIX
D hereto) and certain of its other property to the Issuer, to the extent such security interest can be
perfected under the Florida Uniform Commercial Code and. subject to the provisions of cenain
accounts receivable financing loans. Pursuant to the Indenture, the Issuer wiH assign its rights (except
cenain unassigned rights related to receipt of notices, granting of consents and rights of
indemnification) in and to the Agreement, the Series 1999 (^]~, the Mortgage and the payments
to be made thereunder to the Trustee as security for the Series 1999 Bonds.
~ rL .
At the time of the issuance of the Series 1999 Bonds, the Debt Service Reserve Fund will be
funded with proceeds of the Series 1999 Bonds in an amount equal to the Debt Service Reserve
Requirement. In addition, the Agreement requires the Compa.ny to fix, charge and collect, or cause
to be fixed. charged and collected, fees. rentals, rates and charges for the use of the Mortgaged
Property and services provided or to be provided in connection therewith, that shaH be at least
sufficient to produce in each fuU Fiscal Year following completion of the Project a Debt Service
Coverage Ratio for such Fiscal Year that is not less than 1.20.
See "SECURITY FOR THE SERIES 1999 BONDSIt and APPENDIX D herein.
THE SERIES 1999 BONDS ARE LIMITED OBLIGATIONS AND WILL NOT
CONSTITUTE A DEBT, LIABILITY OR OBLlGATION OF THE ISSUER, THE STATE OF
,
'-.)
5
1?;-/~
"
.~
FLORID~ OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF. NEITHER THE
FAITH AND CREDIT NOR THE TAXING POWER OF THE ISSUER. THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF Wll..L BE PLEDGED
TO THE PAYMENT OF THE PRINCIPAL OFt REDEMPTION PREMIUM. IF ANY. OR
INTEREST ON THE SERIES 1999 BONDS, AND THE SERIES 1999 BONDS WrLL NOT
DlRECTL Y, INDIRECTLY OR CONTINGENTL Y OBLIGATE THE ISSUER, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF TO LEVY ANY
T AXES WHATEVER TIlEREFOR OR MAKE ANY APPROPRIATION FOR TIlElR
PAYMENT.
Historical and Selected Financial Information
Historical and selected financial infonnation regarding the Company and the Facility is
included in APPENDIX C to tlUs Official Statement. Audited financial statements of the Company
for the fiscal years ended December 31, 1998 and 1997 are included in APPENDIX C - Part (i)
herein, and unaudited financial statements of the Company for the three-month periods ending
March 31, 1999 and ] 998 in APPENDIX C - Part (ii) herein.
Historical Statement of Activities and Historical Pro Forma Debt Service Coverage and Cash
Investments and Related Ratios
[TO COME (^))
Financial Feasibility Study
....._E.
Feasibility Study. See APPENDIX B herein for a financial Feasibility Study dated
, 1999t prepared by BDO Seidman, LLP, independent certified public accountants (the
IIFinancial Feasibility Studyll). The Financial Feasibility Study includes management's financial
forecast of the Company for the four (4) years ending December 31, 2002. As stated in the
Financial Feasibility Study, there will be differences between the forecasted data and actual
results because events and circumstances frequently do not occur as expected, and those
differences may be material. The achievement of any financial forecast is dependent upon
future events, many of which are beyond the Company's control and the occurrence ofwhicb
cannot be assured. See "BONDHOLDERS' RISKS" herein. The Financial Feasibility Study
should be read in its entirety, including all notes and assumptions set forth therein.
Forecasted Financial Information for the Company. The table set forth below reflects the
forecasted debt service coverage ratio calculations for the Company and has been extracted from
management's fiJlancial forecast included in the Financial Feasibility Study. See APPENDIX B -
"Financial Feasibility Study It attached hereto.
Forecasted Schedule of Coverage Ratios
(TO COME FROM FINAL DRAFT OF FINANCIAL FEASffiILITY STUDY]
~Jl
:!
r
".J
6
99" / ~
....,,- ": -......: . .........
_B. ~
')
The Series (^] 1999B EXTRASSM
)
......-",
The Series r"J ] 999B EXTRASSM will bear interest at the rate of _% per annum to
November 1St 20_t the initial Optional Tender Date. From and after the initial Optional Tender
Date and to, but not including. each subsequent Optional Tender Date for the Series (^) ]999B
EXTRASSM, the Series (^] 1999B EXTRASSM wilJ bear interest at a rate and for a period (a "Rate
Period'.) determined in accordance with the Indenture. The applicable interest rate on the Series ("]
] 999B EXTRASSM (the 'lReset Rate") will be established for each Rate Period by the Remarketing
Agent in accordance with the Indenture and the Remarketing Agreement. Pursuant to the
Remarketing Agreement, the Company has named B. C. Ziegler and Company, as Remarketing Agent.
The Company has the right to terminate Ziegler Securities as Remarketing Agent on 30 days' written
notice, which tennination will not be effective until a successor Remarketing Agent has accepted the
appointment as such. On each Optional Tender Date, any registered holder ofthe Series (^] 1999B
EXTRASSM then outstanding will have the right to tender such Series [^] 19998 EXTRASSM to the
Trustee for purchase at a price equal to the principal amount thereof. THERE CAN BE NO
ASSURANCE THAT SUFFICIENT FUNDS WILL BE A V AILABLE TO PURCHASE ANY
OR ALL SERIES (^) 1999~ EXTRASSM TENDERED FOR PURCHASE ON ANY
OPTIONAL TENDER DATE. In the event sufficient funds are not available to purchase any or
all Series (^) 1999B EXTRASSM tendered for purchase on any Optional Tender Datet the registered
holders ofthe tendered but unpurchased Series ["] 1999B EXTRASSM will be required to retain their
Series (^]1999B EXTRAssM at the new interest rate determined by the Remarketing Agent. See
"BONDHOLDERS. RISKS - Purchase of Series (^] ]999B EXTRAssMu and 'ITHE SERIES [^J
19998 EXTRASSM - General Description." The maximum rate payable on the Series (^] 19998
EXTRAssM is 15% per annum.
Bondholders' Risks
AN INVESTMENT IN THE SERlES ] 999 BONDS INVOL YES RISK. A
BONDHOLDER IS ADVISED TO READ "BONDHOLDERS' RISKS" HEREIN FOR A
DISCUSSION OF CERTAIN RISK FACTORS WHICH WOULD BE CONSIDERED IN
CONNECTION WITH AN INVESTrvlliNT IN THE SERIES J 999 BONDS. Careful consideration
should be given to these risks and other risks described elsewhere in this Official Statement. Among
other things, since the Series 1999 Bonds are payable solely from the revenues ofo the Company and
other moneys pledged to such payment, careful evaluation should be made of certain factors that may
adversely affect the ability of the Company to generate sufficient revenues to pay expenses of
operation, and the principal of. premium, if any. and interest on the Series 1999 Bonds.
Definitions and Summaries of Legal Documents
This Official Statement contains descriptions of (among other matters) the Project, the
Facility. the Series 1999 Bonds, the Indenture. the Agreement, the Mortgage and the Company. Such
descriptions and infonnation do not purport to be comprehensive or definitive. All references herein
....)
7
11~/Y
~
to the Indenture. the Mortgage and the Agreement are qualified in their entirety by reference to the
complete text of such documents and all references herein to the Series 1999 Bonds aTe qualified in
their entirety by the forms thereof included in the Indenture. Summaries of the Indenture, the
Agreement and the Mortgage referred to in this paragraph are attached hereto as APPENDIX D.
Complete copies of such documents are available from the Trustee.
BONDHOLDERS' RISKS
General
. The paragraphs set forth below discuss certain risks associated with investment in the Series
1999 Bonds. but are not intended to be a complete enumeration of all risks associated with the
Project or the purchase of any of the Series 1999 Bonds. Other investment risks arc discussed in
other sections of this Official Statement.
Except as otherwise noted herein. the Series 1999 Bonds win be payable solely from the
payments to be made by the Company under the Agreement and the Series 1999 (^] ~ and from
certain other available moneys pledged therefor under the Agreement, the Indenture and the
Mortgage. No entity or person other than the Company is. or shall be, in any way liable or
responsible for any payments to be made under the Agreement. Except for certain restricted assets.
the eompany will have no significant assets other than the Mortgaged Property and win have no
significant sources ofincome other than the Monthly Rental Fees, per diem charges from use of the
health care services and other moneys received from the operation of the Facility. Accordingly,
registered owners of the Series 1999 Bonds must look solely to the Sp.curity provided under the
Indenture, the Agreement and the Mortgage for payment of the principal. redemption premium, if
any, and interest due on the Series 1999 Bonds.
General Uncertainty of Revenues
Certain risks are inherent in the successful operation of facilities such as the Facility. The
ability of the Company to generate sufficient revenues from the operation of the FaciHty to pay the
required amounts under the Agreement and the Series 1999 [^) Note will be dependent on the
achievement and maintenance of high future residency levels and turnover thercofat the Facility by
eligible residents who will be able to pay the Monthly Rental Fees which are expected to increase on
a regular basis in subsequent years. the maintenance of occupancy in the Facility and receipt of
adequate per diem charges from the use thereof and the hiring and retention of competent
administrative and operating persoMel to conduct the day to day operations of the Facility. No
representation or assurance can be made that revenues win be realized by the Company in amounts
sufficient to make the required payments with respect to debt service on the Series 1999 Bonds. The
realization of future revenues and control of expenses is dependent upon, among other things.
successful marketing by the Company's personnel, future state and federal funding of certain health
\...J
8
CfI ~ let
~."'tY."."
')
care programs. and future economic and other conditions that are unpredictable. Any ofthese factors
may affect revenues and payment of debt service on the Series 1999 Bonds.
Failure to Achieve or to Maintain Occupancy
The successful operation of the Facility depends in large part upon the ability ofthe Company
to attract sufficient numbers of residents to the Facility and to maintain substantial occupancy at the
Facility throughout the tenn ofthe Series 1999 Bonds. The Company's ability to maintain high levels
of occupancy depends to some extent on factors outside their control, such as the residents' right to
tenninate their Residency Agreements and to receive a refund as provided in the Residency
Agreements. If the Facility fails to achieve and maintain a high level of occupancy. there may be
insufficient funds to pay debt service on the Series 1999 Bonds. Moreover. if a substantial number
of residents live beyond their anticipated life expectancies or if their admissions or transfers to the
assisted living area or the skilled care nursing area are substantially less than anticipated by the
Company, or ifmarket changes prevent an increase in the amount ofthe Monthly Rental Fees payable
by new residents of the Facility, the receipt of additional Monthly Rental Fees could be curtailed or
limited, with a consequent impairment of the Company's revenues, Such impairment would also
result if the Company is unable to remarket units becoming available when residents die, withdraw.
or are transferred to another facility.
No Assurance Forecasted Results Will Be Obtained
"
1
"
-'.
The financial forecast contained in the Financial Feasibility Study included in APPENDIX B
hereto is based upon assumptions made by the management (I1Management") of the Company. As
stated in such financial forecast, there will be differences between the forecasted data and actual
results because events and circumstances frequently do not occur as expected, and those differences
may be material. In addition, the financial forecast is only for the four years ending
December 31. 2002 and consequently does not cover the entire period during which the Series 1999
Bonds may be outstanding.(^] Because there is no assurance that actual events will correspond
to the assumptions of Management, 1:10 guarantee can be made that the financial forecast
contained in the Financial feasibility Study will correspond with the results actually achieved
in the future. Actual operating results may be affected by many uncontrollable factors,
including but not limited to increased costs, lower than anticipated revenues, employee
relations, taxes, governmental controls, changes in applicable governmental regulations,
changes in demographic trends, changes in the retirement living and health care industries,
failure by Management to execute its plans as reflected in the Financial Feasibility Study and
general economic conditions. See the risk factors described in this section and the Financial
Feasibility Study attached hereto as APPENDIX Bt all of which should be read in their entirety.
Malpractice Claims and Losses
The operations ofthe Company, and thereby of the Facility. may also be affected by increases
in the incidence of malpractice lawsuits against physicians and facilities such as the Facility. in general,
co"
)
".....,.,.
9
99~/'6
)
and increases in the dollar amount of patient damages and recoveries, resulting in increased insurance
premiums and an increased difficulty in obtaining malpractice insurance. The Company covenants
to maintain malpractice insurance with private insurance carriers. It is not possible at this time to
detennine either the extent to which such malpractice coverage will continue to be availabJe to the
Company, and thereby to the Facility. or the premiums at which such coverage can be obtained.
Regulation
Recent Legislation. On March 25, 1999. President Clinton signed into law the Nursing Home
Resident Protection Amendments of 1999 (the It 1999 Nursing Home Act"). Generally) a nursing
facility that participates in the Medicaid program may only transfer or discharge a resident under the
following circumstances: the transfer or discharge is necessary for the resident's welfare; the
resident's health has improved enough to leave the faci1ity~ the safety or health of others in the nursing
facility is endangered~ for non-payment of services; or if the nursing facility ceases to operate. Prior
law did not extend any transfer or discharge protections to Medicaid residents if the nursing facility
withdrew from the Medicaid program. The 1999 Nursing Home Act sets forth the rights of residents
in a nursing facility in a case where the facility voluntarily withdraws from participation in the
medicaid program, but continues to provide nursing care services. The nursing facility may not
transfer or discharge any resident. whether or not Medicaid recipients. solely because of its
withdrawal from the Medicaid program. All medicaid participation agreement requirements continue
to apply to all individuals who were residents of the nursing facility on the day before the day the
facility withdrew from the Medicaid program, until such individuals no longer require care.
,....)
Proposed Legislation. During 1998, the Clinton Administration announced a number of
administrative and legislative steps designed to increase the oversight of the nation's nursing homes.
Many of the steps were aimed directly at the survey enforcement process and nursing homes that fail
to provide quality care to their residents. These actions included: ensuring swift and strong penalties
for nursing homes failing to comply with standards; strengthening the oversight of state enforcement
mechanisms~ developing a registry to track and identifY individuals with a history of abusing residents;
and the implementing of efforts to improve nutrition and prevention of bed sores. While most of
these legislative initiatives failed in Congress in 1998. the Clinton Administration has advanced a
number of Executive-branch administrative actions including assessing immediate civil monetary
penalties; tougher nursing home inspections~ stronger federal oversight of state enforcement
mechanisms; publishing regulatory survey results on the Internet and the implementation of new
efforts to measure and m~nitor nursing home quality.
A number of other bills proposing to regulate or control, in some manner. health care costs
and revenues and a number of proposals for a national health insurance program have been submitted
to Congress. There are wide variations among these proposals and the effect on the health care
industry and the Company cannot be determined. There can be no assurance that the implementation
of any such bill or proposal or any future bill or proposal) or the implementation by the federal or
state administrative bodies of nursing care cost containment or revenue control programs. would not
o
10
19 - I~
---I
adversery affect the revenues of the Facility, and thus the revenues ofthe Company. See "PavorlMix
~ ;' Nursim~ Center" in APPENDIX A for information reRarding the Company's current oavor mix [^]
While management of the Company believes that any changes to the Medicare and Medicaid
programs will not have a significant adverse effect upon the Facility combined resident service
revenue and net patient service revenue, circumstances could change in the future and changes in the
Medicare and Medicaid programs could have an adverse impact upon the combined resident service
revenue and net patient service revenue in the future.
Medicare. The federal Balanced Budget Act of 1997 (the UBudget Act"). enacted in August
1997, contains extensive changes to the Medicare and Medicaid programs intended to reduce
payments under those programs by over $100 billion over a five-year period. Virtually all spending
reductions will come from providers and changes in program components. The Budget Act affects
reimbursement systems relating to the Company. The Budget Act changed Medicare cost
reimbursement from a retrospective system to a prospective payment system ("PPS"). There is a
four-year phase-in period for implementing the new system. During the first year (federal fiscal year
1998), a facility's reimbursement rate comprised 75% of such facility.s specific 1995 Medicare costs
(the ufacility specific 1995 rate") and 25% of the national Medicare per-diem costs, adjusted for
acuity. During the second year of the phase-in (federal fiscal year 1999), the rate will comprise 50%
of the facility specific 1995 rate and 50% of the national average. During the third year, the rate will
consist of25% of the facility specific 1995 rate and 75% of the national average. In year four and
thereafter, 100% of the rate will be based on the national average. These amounts willce inflated
forward at a nursing home inflation rate (health care market basket rate. less 1 %).
~.
)
,
-_?
The Federal Health Care Financing Administration C'HCF A") will collect data from skilled
nursing facilities ("SNFs") on each patient and assign the patient to a case-mix category based on an
algorithm employing the data. The system calls for assessing patients on days 5, 14, 30. 60 and 90
of their staysl using a multi-disciplinary form. The data collection tool is called the minimum data set,
or MDS 2.0 rMDS"). The patient classification methodology is called Resource Utilization Group
Version III and the patient classifications and categories are referred to as RUG-III or simply RUGs.
Case-mix reimbursement systems systematically link the amount paid to the types of patients
treated: the more extensive the services and the greater the need, the higher the case-mix index
incorporated in the payment rate. The RUG-III system divides nursing home residents into 44 groups
using two major classification structures: A clinical (medical and mental) topology and a measure
of functionality represented by the Activities of Daily Living. The case-mix index will be used to
adjust patient care costs.
PPS is not a single rate that SNFs receive for the length ofa patient's stay. Periodically, SNFs
must resubmit the MDS data set to re-qualifY the patient for a given level of reimbursement. Thus.
as a patient's condition improves during a SNF stay. the SNFs PPS reimbursement drops. PPS is a
rolling prospective system with data submitted at the milestones affecting going-forward
reimbursement. By linking case-mix measures, which identify and categorize nursing home patients
'oJ
11
99-lt
')
by assessed need, to facility reimbursement, the Medicare payment system is expected to become
more responsive to both facility costs and patient care needs.
Florida Medicaid Program. The State of Florida Agency for Health Care Administration
("AHCA"). which administers the State ofFlorida Medicaid program, reimburses operators of nursing
facilities on a per diem rate set by the Medicaid eost Reimbursement Office. The policies and
procedures for reimbursement under the Florida Medicaid program are set forth in Florida Title XIX
Long-Term Reimbursement Plan Version XIV (effective November 6, 1997) (the "Plan"). The per
diem rate is detennined based on the sizet locationt an allowable costs of the nursing facility. The
federal government requires the state Medicaid rates be reasonable and adequate to meet costs
incurred by efficiently and economically operated nursing facilities to provide service in confomUty
with state and federal laws. regulations, and quality and safety standards.
i
Under the current Medicaid reimbursement plan, rates in Florida are prospectivet facility
specific. cost-based subject to ceilings and set for six-month periods beginning in January and July
of each year (the rate semesters). There are six peer groups (based on location and size) that are used
to detennine the ceilings for reimbursement rates. There are three geographical regions: The
northern counties. the central counties and the southern counties. Size categories include smaIl
nursing homes (100 or fewer beds) and large nursing homes (greater than 100 beds). The
reimbursement rate has three components: patient care, operating costs and property costs. An
additional reimbursement is available in the form ofan incentive. called a Medicaid Adjustment Rate.
which can equal 4- ] /2% of the patient care component. Patient care costs include those costs directly
attributable to nursing services, dietary costs. activity costs. social services costs and all medically
ordered therapies. All other costs, exclusive of property costs, are considered operating costs.
Each provider panicipating in the Florida Medicaid Nursing Home Program is required to
submit a uniform cost report and related documents no later than three calendar months after the
close afits cost reponing year The cost report is used to determine the nursing home's allowable
Medicaid costs. The Medicaid program pays a single level of payment rate for all levels of nursing
care. The single per diem rate is based upon each provider's allowable Medicaid costs divided by the
Medicaid patient days from the most recent cost report - subject to the rate setting methodology in
the Plan. Reimbursement of patient care and operating costs are limited to class ceilings set forth in
the Plan, while property costs are paid under the Fair Rental Value System ("FRVS"). FRVS is based
on the indexed allowable asset cost and the provider specific interest rate plus actual costs of
insurance and real estate taxes.
A new provider is required to submit a budgeted cost report with Medicaid officer in order
to establish an interim rate for reimbursement during the initiaf period foHowing a change of
ownership (the 1I1nitial Periodl1). At the election of the new provider. the term of the Initial Period
can range from six months to eighteen months. At the conclusion of the Initial Period. an initial cost
report is filed by the new provider and a settlement will be made for the difference between actual
costs and the initial interim rate. After the Initial Period, Medicaid rates are set prospectively, based
on actual costs incurred in the prior period. adjusted for inflation.
\...)
12
Cjq". I ~
-\
Related Regulation. There also is an expanding and increasingly complex body of law.
regulation and policy (both federal and state) relating to the Medicare and Medicaid programs. which
is not directly related to payments under such programs. This includes reporting and other technical
rules as well as broadly stated prohibitions regarding improper inducements for referrals and payment
of kickbacks in connection with the purchase of goods and services. Violations of prohibitions
against improper inducements and payments may result in civil and criminal sanctions and penalties.
Civil penalties range from monetary fines which may be levied on a per-violation basis to exclusion
from the Medicaid and Medicare programs.
In addition, Congress. in an act commonly known as Stark II. has restricted the ability of
SNFs and other entities to bill Medicare for designated health services ordered by physicians with
whom the SNFs have a financial relationship. While SNF care is not itself a designated health service,
many ancillary services required by SNF patients are. There are many types offinnncial relationships
which are exempt from Stark II; however, failure to comply strictly with the terms of these
exemptions will make the SNF ineligible to receive Medicare payment for designated health services
ordered by the physician.
To the extent residents may utilize the Medicaid or Medicare programs for reimbursement of
payments made to the Company. changes to the Medicaid and Medicare programs may indirectly
affect the Company's revenues by affecting the ability of current residents to make payments to the
Company and the ability of the Company to market the Facility to prospective residents.
.,
d
,
..........,~,.;
Florida Licensure and Certificate of Need
Nursing Home Facilities. Florida nursing home facilities are regulated and inspected by
AHCA. All nursing home facility licensees are subject to various requirements, including
requirements regarding a safe and sanitary physical plant, minimum dietary standards, record
maintenance and residency contracts.
AReA may take action against a nursing home facility licensee for a number of reasons such
as: (a) intentional or negligent act materially affecting a facility patient's health or safety;
(b) misappropriation or conversion of patient property; or (c) violation of any application statute or
regulation with respect to nursing home facilities. In addition, AHCA, as an alternative to or in
conjunction with an injunctive proceeding against a nursing home facility licensee. may petition a
court of competent jurisdiction for the appointment ofa receiver it: among other things: (a) AHCA
determines that there exist in the facility conditions which present an imminent danger to facility
patients' health. safety or welfare or a substantial probability that death or serious physical harm
would result; or (b) the facility cannot meet its financial obligations to provide food. shelter, care and
utilities.
Assisted Living Facilities. Assisted living facilities are licensed facilities which undertake
through their ownership or management to provide, for a period exceeding 24 hours. housing, food
service. and one or more personal services for four or more adults, not related to the owner or the
...._-,)
13
19- /r
.~'...I,,,,,"1,.l . .', ' .
~-
.~
administrator by blood or marriage, who require such services. In addition, assisted Jiving facilities
may provide extended congregate care, limited nursing services or limited mental health services
when specifically licensed to do so. Assisted living facilities are subject to various licensure
requirements, including requirements regarding maintenance of facilaies, preparation and annual
updating of a comprehensive emergency maintenance plan, number and qualification of personnel,
sanitary conditions and care and maintenance of patients.
AHCA may revoke or suspend an assisted living facility license for a number of reasons,
including (a) an intentional or negligent act seriously affecting a facility residenCs health, safety or
welfare~ (b) misappropriation or conversion of resident property; (c) a determination by AHCA that
the facility owner lacks the financial ability to provide continuing adequate care to residents; or (d)
a licensee's failure during relicensure to meet minimum licensing standards or applicable rules. Also.
AHCA may seek the appointment of a receiver in the same circumstances as indicated above with
respect to nursing home facilities.
Certificate of Need. The Health Facilities and Health Services Planning Act of the State of
Florida provides for a certificate of need ("CONU) program which applies to the offering or
development of new institutional health services, including skilled nursing facilities. The CON
program. administered by ARCA, requires AReA's review and approval of proposed capital
ex.penditures in: excess of threshold amounts, of the initiation ofsubstantiaJ changes in services or any
change in licensed bed capacity, including skilled nursing facility beds.
-"\
I
In Florida. nursing home beds are divided into two categories: sheltered beds and community
beds. Sheltered nursing home beds are located within a continuing care facility and usually are
utilized only by residents who live within the continuing care facility, as certified under Chapter 651,
Florida Statutes. Community nursing home beds are usually located outside of a continuing care
facility. For health planning purposes. sheltered beds are not considered when calculating bed
inventories of a district and are not considered when reviewing CONs for new or additional
community nursing home beds.
.......,.
The current Florida nursing home bed need methodology is based on utilization patterns at
the local level. Bed need allocations are made on a subdistrict basis and are derived by established
utilization statistics. Proposed increases in nursing home beds are reviewed relative to the area's
population growth and the rate of occupancy experienced by existing nursing homes. Relaxation in
the standards or elimination of the CON program could be implemented in the future, which could
result in increased competition for the Company's Facility.
Management ofthe Facility believes that the Facility is, and will continue to be, in compliance
with Florida licensure and CON requirements. Any failure to maintain compliance with Florida
licensure and CON requirements could have a material adverse effect on the operations of the
Facility.
., -../
14
crCf~/g;
,..-.,
The Company ;s licensed by the State of Florida to operate the Cove Nursing Center and the
Bluffs Nursing Cel'l.ter. The Company has received approval to transfer the beds from the Bluffs
Nursing Center to the Cove Nursing Center and to operate under a single license. The licenses
consist of both the Oaks Nursing Center license and the Assisted Living Facility license. The
independent living units are exempt from State licensure. (^ J
Possible Changes in Tal. Status
The possible modification or repeal of certain existing federal income or state tax laws or
other loss by the Company ofthe present advantages of certain provisions of the federal income tax
or state tax laws could materially and adversely affect the status of the Company. and thereby the
revenues of the Facility. See ItEXEMPTIONn herein. The eompany has obtained a letter from the
Internal Revenue Service detennining that it is an exempt organization as defined under Section
SOI(c)(3) of the Code. As an exempt organization, the Company is subject to a number of
requirements affecting its operation. The failure of the Company to remain qualified as an exempt
organization would affect the funds available to the Company for payments under the Agreement.
The tax-exempt status of the Series 1999A Bonds also is based on the continued compliance by the
Company with certain covenants contained in the Indenture and the Agreement. These covenants
relate generally to ownership. use and operation of the Facilityt arbitrage limitations. rebate of certain
excess investment earnings to the federal govemrnentt and restrictions on the amount of issuance
costs financed with the proceeds of the Series 1999 Bonds. Failure to comply with any of these
covenants may result in the treatment of interest on the Series 1999 Bonds as taxable retroactive to
the date of issuance.
'.
, )
....... ~L'~
Limited Use of Facility
The Facility is or will be constructed and equipped to provide residential retirement, assisted
care and healthcare services. As a result. in the event of default, the Issuer's and the Trustee's
remedies and the number of entities which would be interested in purchasing or leasing the Facility
might be limitedt and the sales price or rentals generated by the Facility might thus be adversely
affected.
Possible Effect of Adverse Conditions in Housing Market
It is anticipated that a substantial number of prospective residents of the Facility will be
required to sell their current homes to pay the Monthly Rental Fees or to meet other financiaJ
obligations relating to the Facility. If prospective residents encounter difficulties in selling their
current homes dueto local or national economic conditions affecting the sale of residential real estatet
such prospective residents may not have sufficient funds to pay the fees and rents or to meet other
obligations relating to the Facility, thereby causing a delay in scheduled occupancy of the Facility or
remarketing of vacated units. which would have an adverse impact on the revenues ofthe Company.
\
'... ...../
15
c;q-/r
Construction Risks
~
The ability ofthe Company to make payments of the principal of. redemption premium, if any.
and interest on the Series 1999 Bonds. when due, is in part dependent upon completion of the
construction ofthe Project within available resources and without delays due to strikes, shortages of
materials, adverse weather conditions as well as other factors. The Company wiJl attempt to protect
itself against a portio'n of those risks by requiring the contractors for the Project to furnish
performance and material payment bonds prior to commencement of construction work on certain
portions of the Project. However. attempts to seek recourse against contractors or their sureties for
cost overruns may involve costly and time-consuming litigation. Further. the timely completion of
construction is dependent upon promptly obtaining approvals and permits from various regulatory
and governmental agencies. There can be no assurance that such approvals and permits will be
promptly obtained.
It is anticipated that the proceeds from the sale of the Series 1999 Bonds will be sufficient to
complete the acquisition and construction of the Project; however, cost overruns are not uncommon.
If the Project cannot be completed for its anticipated costs, the Company is obligated to complete the
same at its own expense, with available moneys, through the issuance of additional bonds. parity or
otherwise. or with financing obtained from other sources. The Company's financial resources are
limited. Accordingly, there can be no guarantee, if costs overruns are experienced. that the Project
will be completed. although the Company does not at this time have any reason to believe that
substantial cost overruns will be incurred.
_ /' A substantial portion of the Project involves the renovation of the Facility. Obtaining accurate
estimates of the renovation costs of buildings can be difficult, and often, the extent of the renovations
required to meet current codes is not known until that phase of the Project has begun. Therefore,
some costs may exceed, and some may be below, the original estimates. Additionally, the Company
may reduce in scope, or eliminate. cenain phases of the Project and take on other renovation activities
not envisioned at the outset.
Enforceability of Remedies
In the event of a Default by the Company under the Agreement) the Trustee may not be able
to compel Medicare, Medicaid. Blue Cross. Blue Shield. or other third parties to make payments
directly to the Trustee. Under CUlTent law, such pledge may be further limited by the following: (i)
statutory liens~ (ii) rights arising in favor of the United States of America or any agency thereat (iii)
present or future prohibitions against assignment contained in any state or federal statutes or
regulations~ (iv) constructive trusts, equitable liens, or other rights impressed or conferred by any
state or federal court in the exercise of its equitable jurisdiction~ (v) federal bankruptcy laws affecting
assignments of revenues earned after any institution of bankruptcy proceedings by or against the
Issuer; and (vi) the requirement that appropriate continuation statements be filed pursuant to the UCC
as from time to time in effect.
,-.-J
16
99-/~
Uncertainty of Investment Income
~
I
The investment earnings of, and accumulations in. certain funds established pursuant to the
Indenture have been estimated and are based on assumed earnings rates. White these assumptions
are believed to be reasonable in view of the rates ofretum presently and previously available on the
types of securities in which the Trustee is pennitted to invest under the Indenture. there can be no
assurance that similar interest rates will be available on such securities in the future. nor can there be
any assurance that the estimated funds will actually be realized.
Bankruptcy
The ability of the Issuer and the Trustee to exercise certain rights and remedies under the
Agreement. the Indenture and the Mortgage may be limited by bankruptcy. insolvency,
reorganization. or other' similar laws or equitable principles relating to or affecting the enforcement
of creditors. rights generally.
Rigbts of Residents
Although the Residence Agreement gives to each Resident a contractual right to use space
and not any ownership rights in the Company's propertyt in the event that the Trustee or the
registered holders of the Series 1999 Bonds seek to enforce any of the remedies provided by the
Indenture, the Agreement or the Mortgage upon the occurrence ofa default under any or all of such
documents, it is impossible to predict the resolution that a court might make of competing claims
between the Trustee or the registered holders of the Series 1999 Bonds and a Resident of the Facility
who has fully complied with all the tenns and conditions of the Residence Agreement.
Competition
The Company currently faces competition from other providers of existing retirement living
facilitiest nursing facilities, and comparable facilities servicing the housing and health care needs of
the elderly in its primary market area. The Company may face additional competition in the future
from other providers of new, expanded, or renovated retirement living and nursing facilities servicing
the housing and health care needs of the elderly. See APPENDIX A - THE COi\4PANY AND THE
OAKS - Organization and Operations - Competition.
Investment Risks; Lack of Rating!
No application has been made for a credit rating for the Series 1999 Bonds. The absence of
such a rating could adversely affect the marketability of the Series .1999 Bonds. Although the
Underwriter expects to engage in the purchase and sale of the Series 1999 Bonds in the secondary
mark~ there can be no assurance that there will always be a secondary market for purchase or sale
of the Series 1999 Bonds. and from time to time there may be no market for them depending upon
prevailing market conditions, the financial condition or market position of finns who may make the
"-.)
17
91,/rr
.....~~..::'".':"'~~::~.::. .~_~~______._ u._
c"'T ......
.......,
\
secondary market, and the financial condition and results of operations of the Company and the
Facility. The Series 1999 Bonds should therefore be considered long-term investments in which funds
are committed to'maturity.
Purchase or Series (^] 1999B EXTRASSM
'-....'/
The registered holders of Series [^) 1999B EXTRAssM have the option to tender their Series
(^) 1999B EXTRASSM to the Trustee for purchase on each Optional Tender Date. The only sources
of moneys available to make payments ofthe purchase price of the Series [^)1999B EXTRASSM on
each Optional Tender Date are (i) the proceeds of the remarketing thereof, (ii) moneys required to
be deposited in the Extendables Purchase Fund by the Company pursuant to the Agreement in an
amount not greater than the amount of cash held by the Company on such Optional Tender Date in
excess of (^)_ Days Cash on Hand. and (Hi) any additional amounts deposited into the Extendables
Purchase Fund by the Company, at its sole option, from any available moneys of the Company.
Therefore. ifany of the Series [^] 1999B EXTRAssM tendered on any Optional Tender Date are not
remarketed at par, the Tender Agent may not have available funds with which to purchase such Series
[^J ] 999B EXTRASSM. In the event sufficient funds are not available. the registered holders of the
tendered but unpurchased Series [^) 1999B EXTRAssM will be required to retain their Series [^)
19998 EXTRASSM at the new interest rate detennined by the Remarketing Agent. THERE CAN
BE NO ASSURANCE THAT SUFFICIENT FUNDS WILL BE A V AILABLE TO PURCHASE
ANY OR ALL SERIES (^] 1999B EXTRAssM TENDERED FOR PURCHASE ON ANY
OPTIONAL TENDER DATE. Failure to purchase Series (^) 19998 EXTRAssM tendered for
purchase on any Optional Tender Date does not constitute an event of default under the Indenture
or the Agreement. See liTHE SERIES I ^) ] 999B EXTRAssM - General Description - Purchase on
Optional Tender Datesll herein. In addition. the~e can be no assurance that any interest rate reset
with respect to the Series I ^ ) 1999B EXTRAssM will not cause a material burden on the financial
condition ofthe Company.
Amendments to Documents
Certain amendments to the Indenture and the Agreement may be made without the consent
of the registered holders of the Series 1999 Bonds and other amendments may be made with the
consent of the registered holders of not less than 51% in aggregate principal amount of all
outstanding Bonds including the Series 1999 Bonds and any Additional Bonds issued hereafter. Such
amendments could affect the security for the Series 1999 Bonds.
Year 2000 Compliance
Date sensitive computer applications that currently record years in two-digit. rather than
four-digit, format may be unable to properly categorize and process dates occurring after
December 31. 1999 (the IIYear 2000" problem). If Year 2000 related failures were to occur in the
Company's computer and infonnation systems. the Company could incur significant, unanticipated
liabilities and expenses which could adversely affect its creditworthiness. and could adversely affect
J
18
19-1r
~
,
the timely payment of its indebtedness. including the payment of debt service on the Series 1999
Bonds. In addition, the Company may be adversely affected by the extent to which other companies
and governmental bodies with whom the Company does business are Year 2000 compliant. For
example, the Company's ability to be reimbursed by Medicaid or Medicare for skJUed nursing facj]jty
services may be affected by the extent to which the federal government is Year 2000 compliant. The
failure of any such company or governmental body to be Year 2000 compliant could have a'material
adverse effect on the Company. The Comoany ~cted an internal assessment Q.f the Dotentia1 .
imoact of the Year 2000 orobtem on its internal ooerations and svstems between Janua{}' and Mav.
1999. For a discussion of the Company's assessment and approach to Year 2000 compliance, see
==== ,
APPENDIX A - (^]"ORGANIZATION AND OPERATIONS - Year 2000 Issues,~
Transfer of Residents from the Bluffs Buildine: to the Cove HuUdinl! Upon Completion of
Renovations .
=~
)
The olan offinance anticipates that the Company will gain title to both the Bluffs bui1din~ and
the Cove BuildinR. During the period of renovation of the Cove Building. the current residents of
Jhe Cove Nursing Center win be transferred to the Bluffs Nursing Center. Uoon comoletion of the
renovation ofthe Cove Bui1din~. residents of the Independent UvinR and Assisted LivinR units of the
Bluffs BuildinR will have the oooortunity to move to the newlv renovated Cove BuildinR.
ManaRement has estimated the number ofoersons who may take advantage of such an oooortunity
and has reflected that assumotion in the financial forecast. Should the number of oeeole who
ultimately decide to move from the Bluffs BuildinR to the Cove BuildinlZ. uoon the comoletion of
renovations at the Cove BuildinlZ. be less than has been assumed bv Mana2ement then this could
materiallv imoact the revenues available for debt service.
Other Risk Factors
The occurrence ofany of the following events, or other unanticipated events, could adversely
affect the operations of the Company:
(1) establishment of mandatory governmental wage. rent, or price controls;
(2) inability of the Company to control increases in operating costs, including salaries,
wages and fringe benefits, supplies, and other expenses, without being able to obtain corresponding
increases in revenues from residents of the Facility whose incomes will largely be fixed;
(3) unionization. employee strikes. and other adverse labor actions which could result in
a substantial increase in expenditures without a corresponding increase in revenues;
(4) the occurrence of any natural disasters or other disruptions that impair the operations
of the Facility;
.J
19
91 - I~
i~
I . . ~
i
(5) adoption of federal. state or local legislation or regulations having an adverse effect
on the future operating or financial performance of the Company;
(6) a decline in the population, a change in the age composition of the population or a
decline in the economic conditions of the Company's market area other than those assumed by the
Company; and
(7) the ability of, and cost to, the Company to continue to insure or otherwise protect
itself against malpractice claims.
FLORIDA REGULA nON OF CONTINUING CARE FACILITIES
Continuing care facilities in Florida are regulated by the Department ofInsurance ofthe State
of Florida (the "DOr') under the provisions of Chapter 651. Florida Statutes, as amended ("Chapter
65 I"). The Facility is exempt from regulation under Chapter 6S 1 pursuant to certain agreements
between the DOl and the Company.
/-)
\','>)1"
The Company voluntarily surrendered its continuing care retirement community ("CCRCtI)
certificate of authority for (Oak Bluffs] and (Oak Cove] pursuant to a consent order dated April 22.
1996 between the DOl and the Company. The consent order required the Company to give all CeRe
Residents notice ofcanceUation of their continuing care contracts by April 29, ] 996 with an effective
cancellation date of May 31, 1996. unless such contracts were tenninated earlier by the parties. As
part of the plan of cancellation, the Company was required to offer the following options to each
CeRC Resident regarding living choices: to remain at the Facility as a non-CCRC Resident: or to
relocate to another residence of their choosinR. or another CeRe. [^]
In addition, the Company was required to refund $5,000 from its minimum liquid reserve to
each non-bond holding or non-Medicaid Resident opting to relocate. The Company was also
required to immediately redeem any bond held by a CCRC Resident. The balance of the minimum
liquid reserve held by the State of Florida was to be placed into a trust account pursuant to a trust
agreement. In accordance with the consent order and trust agreement, the trust funds are to be
disbursed by the trustee to the provider, whether it is the Company or a new provider. in equal
monthly installments together with accrued interest over a tenn offive years beginning July IS, 1996.
The balance of the funds in the trust account are to be turned over to the provider as of the date the
last fonner CCRC Resident either moves out of the Facility or expires.
On July ) 8, 1996. a notice of voluntary dismissal without prejudice was filed by the 001
pursuant to the Company's compliance with the consent order. According to the voluntary dismissal,
on or about June 12. 1996. the Company surrendered the certificate ofo authority to the DOl
pursuant to the terms of the consent order and the certificate of authority. the Company is no longer
an entity regulated by the 001 as defined in Chapter 651. Florida Statutes, and the 001 has no
further jurisdiction over the Company.
......)
20
9tj-ff
~
Approximately $361,542.40. representing the amount of the minimum liquid reserves held by
the State of Florida, was released by the DOl Bureau of Collateral Securities on January 23, 1998
to Douglas A. Wright of Holland & Knight LLP as the designated trustee under the trust agreement.
I.
THE ISSUER
The City ofClearwatert Florida is a municipal corporation. duly organized and existing under
and pursuant to the Constitution and laws of the State of Florida. The Act authorizes the Issuer to
promote the health and safety of the inhabitants of the Issuert the people ofPineJ1as County and the
State of Florida by increasing their access to adequate medical care and health care facilitiest and to
accomplish such financings through the issuance of revenue bonds.
The Issuer is located in the middle of the west coast of Florida on the Gulf of Mexico and has
a population of as of 1998. Its city limits comprise approximately 26.4 square miles of
land and 8.5 square miles of waterways and lakes. The Issuer is governed by a City Commission and
operates under a Commission-Manager form of government. The City Commission appoints a
full-time City Manager and a filll.time City Attorney. A fuJ1.time Director of Finance has the
responsibility for all financial operations of the City, and is appointed by the City manager. Also, an
internal audit director is appointed by the City Manager and serves full time. The Issuer is primarily
a resort and residential community. The Issuer has many recreational facilities including tennis. golf,
boating, fishing, water sports, and recreational paths. During the winter months, the hotelst motels.
and restaurants fill with visiting tourists and winter residents. The Issuer offers over 42 acres of
public beach front.
THE COMPANY AND THE FACILITY
The Company was incorporated as a Florida not-for-profit corporation in 1975, as American
Baptist Estates ofClearwatert Inc. The Company changed its name to HEFt Inc. in March of 1999.
The Internal Revenue Service has determined that the Company is an organization described in
Section 501(c)(3) of the Code, and is therefore exempt from federal income taxation under the
provisions of Section 501 (a) of the Code. The Company received its Determination Letter from the
Internal Revenue Service in MaYt 1976.
The Company and the Oaks own and operate the Facility in the City of Clearwater, PineJ1as
CountYt Florida. The Facility is currently comprised of two high-rise buildings and four low-rise
buildings. These buildings contain the Nursing Centers. independent and assisted living facilities
which are owned and operated by the Company.
Jinsert mer~er descriPtionl
..~
21
l1,./r
,.-'\
The Company provides three different levels of care to residents of the Facility: independent
living, assisted living and nursing care.
Residential areas within the Facility include 12 one.bedroom garden apartments located in the
Villas. 8 two-bedroom garden apartments and 391 one.room and two.room high.rise apartments (of
which 213 are currently unoccupied and located in the eove Building and the remainder are located
in the Bluffs Building)~ [^] II assisted living units [^) located in [^] the Bluffs Buildim~; and the
Nursing Centers, which are comprised of a 60.bed skilled nursing facility located in the Bluffs
Building and a 56.bed skilled nursing facility located in the Cove Building.
The Facility is located on approximately 7 acres of land in the City of Clearwater. Pinellas
County, Florida, next to Tampa, Florida, and directly on the coastline on the Intercoastal Waterway,
with views of the Gulf of Mexico, Clearwater and St. Petersburg, Florida
Residence Agreements
The Company requires each resident of the FaciJity (ItResidentlt) to execute a Residency
Agreement. The Company currently utilizes a single form of Residency Agreement (the "Residency
Agreement"), which agreement provides for selection of the level of care and type of
accommodations to be provided at the Facility.
...... ...
\
...~,/
All Residency Agreements require Residents to pay monthly rental fees (the "Monthly Rental
Feesll) which differ based on the housing type, as well as the last month Monthly Rental Fee in
advar.ce, and a security deposit (the "Security DepositU) which is held against the cost of any damages
to the unit. other than reasonable wear and tear, with the remainder of such Security Deposit to be
refunded. without interest, to the Resident or Resident's estate 45 days after receiving notice that such
Resident is not returning to their unit. Health assessments are performed with respect to all
prospective Residents. With respect to potential independent living Residents, each applicant meets
with the Facility's in-house nurse to determine whether such applicant is capable of functioning in the
independent living section of the Facility. Additionally. all Residents must meet the Company's
financial requirements, which require that each applicant have a monthly income that is at least thirty
percent (30%) greater than the applicable Monthly Rental Fee, or have a family member or other
individual wiJJing to cosign for the Monthly Rental Fee. which individual meets such financial
requirements. The Monthly Rental Fees are reviewed annually by the Company and, if deemed
necessary, are increased. See the section entitled "RESIDENCY AGREEMENTS" in APPENDIX
A-herein. (^]
PLAN OF FINANCING
The proceeds from the sale of the Series 1999 Bonds, together with certain other available
funds. will be used to provide funds to (i) acquire the assets of the Oaks which primarily consist of
independent and assisted Jiving facilities, (ii) finance the cost of renovations to the Facility, (iii)
, )
......../
22
11-1 r
h'; ..,'
,"', '
,
.
provide for working capital and/or capitalized interest, (iv) fund a debt service reserve fund with
respect to the Series 1999 Bonds and (v) pay certain costs with respect to the issuance of the Series
1999 Bonds. See uESTIMA TED SOURCES AND USES OF FUNDS,"
THE PROJECT
In 1989~ the Facility was refinanced through a secondary loan from the City of Clearwater,
Florida, from certain proceeds ofa loan from the Sponsor, through the Sponsor's Local Government
Loan Program to the City of Clearwater, Florida, funded through the proceeds of Sponsor's Local
Government Loan Program Floating Rate Demand Revenue Bonds, Series 1985C-l. The loan to the
Company and Oaks was secured by the 1989 Notes guaranteed as to payment by GNl\1A, which is
a part ofHUD. In 1996, each of the Company and Oaks declared bankruptcy and defaulted on the
1989 Notes. In connection with the plan of reorganization in bankruptcy and pursuant to their
guarantee of the Notes. HUn purchased the 1989 Notes and the outstanding bonds were
extinguished. HUD then sold the defaulted 1989 Notes at auction to Beal. Immediately prior to the
closing of the offering of the Series 1999 Bonds~ the outstanding principal and interest on the 1989
Notes was $
,."ll'. ,
: J
....{~., ~ t
Beal has agreed to sell the 1989 Notes for Twenty Million Dollars ($20~OOO,OOO). Pursuant
to the terms ofa Note Purchase Agreement between the Company and Beal. the Company will use
a portion of the proceeds of the Series 1999 Bonds to (i) purchase its ] 989 Note from Beal for
$ , with the Company thereby receiving clear title to the Company portions ofthe Facility
(including the Nursing Centers and its portion of the common areas of the Facility). and (ii) purchase
the Oaks ] 989 Note from BeaJ for $ . with the Company acquiring the remaining portions
of the Facility previously owned by Oaks by accepting a deed in lieu of foreclosure from Oaks with
respect to the remaining portions of the Facility. Accordingly, upon the completion of the offering
of the Series 1999 Bonds and the purchase ofthe 1989 Notes by the Company. the ownership of the
Facility will be consolidated in the Company.
The Company will use a portion of the proceeds from the Series 1999 Bonds to renovate the
Cove Building. Currently, the Cove Building is vacant except for the Cove Nursing Center. The
third floor of the Cove Building will be renovated into modern, skilled nursing units. The residents
of the Cove Nursing Center will be transferred to the new third-floor nursing facility upon
completion. The old Cove Nursing Center will then be renovated and rehabilitated to meet current
standards and the residents of the Bluffs Nursing Center will be transferred into such renovated space
upon completion. At the same time. the remaining floors of the Cove Building will be completely
rehabilitated to provide for senior independent and assisted living units in order to replace the
facilities at the Bluffs Building. Upon completion of such living space, the residents in the Bluffs
Building who have consented to move will transfer to the Cove Building. [^]
The Facility will be renovated and redeveloped pursuant to the terms of a
Development Agreement by and between the Company and CCSFL, which through its subsidiaries
'-)
23
CJ/f,,/r
manages over 200 nursing homes and assisted living facilities throughout the United States, primarily
:r") on the East Coast and in Ohio. l11inois and Texas, and provides development services to owners of
senior housing, assisted living and long- tenn care facilities.
The Development Agreement provides for the payment to CCSFL of three percent (3%) of
the (^) renovation costs of the Project. Seventy-five percent (75%) of such fee is due upon the
issuance of the Series 1999 Bonds, with the remaining twenty-five percent {2S%} payable over the
six-month projected construction period. Under the Development Agreement. CCSFL is required
to create a detailed development plan and time schedule. prepare development budgets, oversee
architectural and engineering planning, obtain aU necessary regulatory consents and approvals,
identify contractors and coordinate the construction bid process, oversee the construction, and
oversee the transition of the renovated Cove Building until opening.
THE MANAGEMENT COMPANY
Simultaneous with the issuance of the Series 1999 Bonds, the Company is terminating its
existing management contracts and is entering into a new management agreement with CCSFL.
(Additional CCS and CCSFL information to come] See the section entitled ItTHE PROJECT - The
Management Companylt in APPENDIX A herein.
FINANCIAL FEASIBILITY STUDY
..............
I
,_/
Feasibility Study
See APPENDIX B herein for a Financial Feasibility Study dated . 1999, prepared
by BDO Seidman, LLP, independent certified public accountants (the ItFinancial Feasibility Study").
The Financial Feasibility Study includes managementts financial forecast of the Company for the four
(4) years ending December 31,2002. As stated in the Financial Feasibility Study, there will be
. differences between the forecasted data and actual results because events and circumstances
frequently do not occur as espected, and those differences may be material. The achievement
of any financial forecast is dependent upon future events, many of which are beyond the
Company's control and the occurrence ofwbich cannot be assured. See "BONDHOLDERS'
RISKS" herein. The Financial Feasibility Study should be read in its entirety, including all
Dotes and assumptions set forth therein.
Forecasted Financial Information for the Company
The table set forth below reflects the forecasted debt service coverage ratio calculations for
the Company and has been extracted from management's financial forecast included in the Financial
Feasibility Study. See APPENDIX B - t1FinanciaI Feasibility Study'f attached hereto.
.J
24
19 - /8"
.~
"~
,{ .. ' ~
\J
(TO COME FROM FINAL DRAFT OF FINANCIAL FEASmn..ITY STUDY}
THE SERIES 1999A BONDS
. Mandatory and Optional Redemption
For information with respect to extraordinary redemption, notices of redemption and
exchanges in transfers of Series 1999A Bonds, see "THE SERIES 1999 BONDS - ADDITIONAL
INFORMATION. "
. .~ .
Mandatory Sinking Fund Redemption. The Series 1999A Bond's maturing November 15,
20_ are subject to mandatory redemption prior to maturity in part, by lot, on November IS 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
Amoun\
· M aruri!)'
The principal amount of Series 1999A Bonds required to be redeemed as set forth above shall
be reduced pro rata by amounts equal to such principal amount of the Series 1999A 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 1 S. 20_ aTe 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 partt 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
2S
7'1-;r
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:
(^]
(^Il^](^] Period of Redemption
(All dates inclusive)
November 15, 20_ to November 14. 20_
November 15, 20_ to November 14, 20_
November 15, 20_ and thereafter
Redemption Prices
102%
101
100
mE SERIES [^) 1999B EXTRASSM
General Description
'\
. ,.->
Interest. The Series [^J J 999B EXTRASSM will initially bear interest at the rate set forth on
the inside cover page hereofuntiJ. but not including, the initial Optional Tender Date and will mature
at the maturity date set forth on the inside cover page hereof. Thereafter, the applicable interest rate
on the Series I^) 1999B EXTRAssM (the "Reset Rate") will be estabHshed for each Rate Period (the
period commencing with an Optional Tender Date and ending on and including the day immediately
preceding the next Optional Tender Date or, if none. the maturity date of the Series [^] 1999B
EXTRASSM) by the Remarketing Agent under the Remarketing Agreement. The Remarketing
Agreement provides for the appointment of a successor Remarketing Agent by and at the option of
the Company.
Not less than seventy-five (75) days prior to each Optional Tender Date, the Company shall
deliver to the Trustee and the Remarketing Agent written notice of the Company's detennination of
the next succeeding Optional Tender Date, which Optional Tender Date shall be a November 15, or
shall specify that the Series (^)1999B EXTRASSM are to bear a Reset Rate to maturity. provided.
however, that if the Company fails to specify the next succeeding Optional Tender Date, such date
shall be a November 15 in such year as will enable the term between the current Optional Tender Date
and such next succeeding Optional Tender Date to equal the preceding term or the final maturity,
whichever is earlier.
Not less than sixty-five (65) days prior to the Optional Tender Date at the commencement of
each Rate Period for the Series (^] 1999B EXTRASSM, the Remarketing Agent shall detennine the
Reset Rate for such Series [^] 1999B EXTRASSM which shall be the lowest rate that would, in the
judgment of the Remarketing Agent having due regard to the prevailing market conditions. enable
the registered holder of the Series [^] 1999B EXTRAssM, as of such Optional Tender Date, to sell
such EXTRAssM at a price equal to the principal amount of the Series [^) 1999B EXTRASSM,
provided that such rate may not exceed ] 5% per annum (the IIMaximum Rate"). Upon such
determination of the Reset Rate, the Remarketing Agent shall promptly notify the Trustee and the
:....J
26
qq-/~
...."'. ,;,... ),....,' .. -, p~
-"'._-~
.I. .
'\
Company of the Reset Rate. Not less than sixty (60) days prior to the Optional Tender Date, the
Trustee shall promptly notify each registered holder ofthe Series (^) 1999B EXTRASSM in writing
by first class mail, postage prepaid. of the Reset Rate which will be applicable on and after the
Optional Tender Date and instructions for the procedure to be followed by any registered holder
wishing to tender Series (^) 1999B EXTRASSM for purchase. If for any reason the Reset Rate
caMot be determined by the Remarketing Agent in the manner specified above. the Reset Rate for
such period shall be equal to The Bond Buyer Revenue Bond Index (as published in The Bond Buyer
or any successor publication thereto) for the most recent period for which such information is
available prior to the giving of notice of the Reset Rate by the Trustee to the registered holders of the
Series (^) 1999B EXTRASSM, or ifsuch index or its equivalent is no longer published. the interest
rate currently in effect. provided that such rate may not exceed the Maximum Rate.
The interest rate on the Series (^) 1999B EXTRASSM win not be reset on any Optional
Tender Date unless (a) at least seventy-five (75) days prior to such Optional Tender Date and (b) on
such Optional Tender Date. the Company shall cause to be delivered, at its expense, to the Trustee
and the Remarketing Agent an Opinion of Bond Counsel, to the effect that such reset in interest rate
and change in the Rate Period will not have an adverse effect on any exemption from federal income
taxation to which the interest on the Series (^) 1999B EXTRAssM would otherwise be entitled. In
the event such Opinion of Bond Counsel is not delivered, the interest rate on the Series I ^ ) 1999B
EXTRASSM currently in effect shall remain in effect as the Reset Rate for the next Rate Period, which
shall be equal in duration to the preceding Rate Period but not shall not in any event extend beyond
the date affinal maturity of the Series (^]1999B EXTRAssM.
Optional Tender. The Series [^] 19998 EXTRAssM are subject to optional tender for
purchase by the Trustee on behalfofthe Company on each applicable Optional Tender Date. THERE
CAN BE NO ASSURANCE THAT SUFFICIENT FUNDS Wll.L BE AVAILABLE TO
PURCHASE ANY OR ALL SERIES [^) 19998 EXTRAssM TENDERED FOR PURCHASE ON
ANY OPTIONAL TENDER DATE. SEE "BONDHOLDERS' RISKS--Purchase of Series [^]
1999B EXTRAS SM. It The Trustee shan give written notice of the next applicable Optional Tender
Date to each registered holder of Series (^] 1999B EXTRASSM when delivering notice of the new
Reset Rate. The registered holder of such Series [^] 1999B EXTRAssM may exercise such option.
and such Series f^) 1999B EXTRAssM shall be purchased by the Tender Agent in accordance with
and subject to the terms of the Indenture. In order to exercise this option, the registered holder shall
deliver a notice (the "Tender Notice'l) to the Trustee. as Tender Agent, not less than thirty (30) and
not more than sixty (60) calendar days prior to the applicable Optional Tender Date. The Tender
Notice must state the principal amount of the tendered Series [^] 1999B EXTRAssM (which amount
shall be $5,000 or an integral multiple thereof). The delivery of the Tender Notice by the registered
holder in connection with an Optional Tender Date shall be irrevocable and binding on the registered
holder and cannot be withdrawn.
Purchase on Optional Tender Dates. The Remarketing Agent shall offer for sale and use its
best efforts to remarket the tendered Series [^] 1999B EXTRAssM to third parties for purchase at
par on each Optional Tender Date. In the event that any tendered Series [^) 1999B EXTRASSM
......J
27
11- /~
_ ---.J
., cannot be remarketed, amounts on deposit in the Extendables Purchase Fund. ifany, will be applied
to purchase such Series (^] 1999B EXTRASSM. The only sources of moneys available to make
payments of the purchase price of the Series (^) 1999B EXTRAssM on each Optional Tender Date
will be (i) the proceeds of the remarketing thereof (ii) moneys required to be deposited in the
Extendables Purchase Fund by the Company pursuant to the Agreement in an amount not greater
than the amount of cash held by the Company on such Optional Tender Date in excess of290 Days
Cash on Hand, and (iii) any additional amounts deposited into the Extendables Purchase Fund by the
Company. at its sole option, from any available moneys of the Company.
Prior to 10:30 A.M.. Chicago Time, on each Optional Tender Date, the registered holders of
the Series (^] 1999B EXTRASSM to be tendered for purchase on such date must deliver to the
Tender Agent the Series (^) 1999B EXTRASSM to be tendered for purchase on such date
accompanied by a written instrument or instruments of assignment or transfer in the fonn satisfactory
to the Trustee transferring such Series (^] 1999B EXTRASSM to such person or persons as the
Remarketing Agent in its sole discretion shall designate, or if the Remarketing Agent shall not have
made any such designation, then to the Tender Agent to be held and registered in accordance with
the provisions of the Indenture. If a registered holder files the requisite Tendcr Notice but fails to
deliver the Series [^] 1999B EXTRASSM so tendered. such Series (^) 1999ij, EXTRASSM, upon
deposit with the Tender Agent on the Optional Tender Date of the Tender Purchase Pricc, shall be
deemed purchased and no longer outstanding, and the registered holder of such Series [^] 1999B
EXTRASSM shall thereafter look solely to the Tender Purchase Price held by the Tender Agent
without interest.
I
. .'
In the event there are not sufficient moneys available to pay the principal of the Series (^]
1999B EXTRA SSM tendered for purchase on the Optional Tender Date, the Trustee, after notification
in writing from the Tender Agent, will determine by lot the Series [^ ] 1999B EXTRAssM or portions
thereof to be purchased on such Optional Tender Date. The registered holders of tendered but
unpurchased Series [^ ) 1999B EXTRAssM shall continue to hold such Series I ^] 1999B EXTRAssM
from and after the Optional Tender Date; however, such Series (^] 1999B EXTRAssM shall be given
priority for redemption on each succeeding redemption date including mandatory sinking fund
redemption dates, over any untendered Series [^ ] 1999B EXTRAS SM. Series [^] 1999B EXTRASSM
that are not purchased on an Optional Tender Date shall bear interest from and after the Optional
Tender Da.te at the Reset Rate determined by the Remarketing Agent as described above. Failure to
purchase all Series [^] 1999B EXTRAssM tendered for purchase on a particular Optional Tender
Date because of an insufficiency of money to effect such purpose shall not constitute an Event of
Default under the Indenture.
THERE CAN BE NO ASSURANCE THAT SUFFICIENT FUNDS WILL BE AVAILABLE
TO PURCHASE ANY OR ALL SERIES [^] 1999B EXTRAssM TENDERED FOR PURCHASE
ON ANY OPTIONAL TENDER DATE. THE F All..URE OF TIlE COMPANY TO PURCHASE
ALL SERIES [^] 1999B EXTRASSM TENDERED FOR PURCHASE ON AN OPTIONAL
TENDER DATE BECAUSE OF THE UNAVAll..ABILITY OF SUFFICIENT FUNDS IN THE
.,~
28
1CJ-/r(
.") EXTENDABLES PURCHASE FUND SHALL NOT eONSTITUTE AN EVENT OF DEFAULT
UNDER THE AGREEMENT OR THE INDENTURE.
Preceding each Optional Tender Date, the Remarketing Agent wiJl attempt to remarket the
Series (^J 1999B EXTRASSM duly tendered for purchase. On or before each Optional Tender Date,
the Remarketing Agent shall deliver to the Trustee the proceeds of the remarketing of such Series (^]
1999B EXTRASSM. Based on information supplied by the Remarketing Agent and otherwise
available to it, the Trustee shan authenticate and deliver new Series (^J 1999B EXTRASSM to the
registered holders thereof. The Remarketing Agent, as a condition of serving in that capacity, win
contract with the Company to. among other things, use its best efforts to remarket an Series [^]
I 999B EXTRASSM tendered for purchase at a price equal to 100% of the principal amount thereof.
in accordance with the provisions of the Indenture. mERE CAN BE NO ASSURANCE THAT
THE REMARKETING AGENT Wll..L BE ABLE TO SUCCESSFULLY RE1\1ARKET ANY
TENDERED SERIES [^] 19998 EXTRASSM.
Mandatory and Optional Redemption
For information with respect to extraordinary redemption, notices of redemption, partial
redemption and exchanges and transfers of Series (^] 1999B EXTRAssM Bonds, see liTHE SERIES
1999 BONDS - ADDITIONAL INFORMATION ."
.:)
Mandatory Sinking Fund Redemption. The Series [^] 1999B EXTRASSM are subject to
mandatory redemption prior to maturity in part, by lot (except that Series [^] ) 9998 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 [^] ) 999B EXTRASSM), on November 15 of each year, beginning
November 1 S, 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: .
I^]
Year
Amount
· ~bturllY
The principal amount of Series [^] 1999~ EXTRASSM required to be redeemed as set fonh
above shan be reduced pro rata by amounts equal to such principal amount of the Series (^J 1999B
o
29
11--lrI
~ftt~~~:':':'''::':':~~____..,.
"'........
,
!
EXTRASSM 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 (^119998 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 (^11999B EXTRAssM or portion thereof
so redeemed on the applicable redemption date. plus accrued- interest to the redemption date.
,
I
I
(i) During the period between the issuance of the Series (^)1999B EXTRAssM
and the initial Rate Change. the Series (^) 1999B EXTRASSM are subject to optional
.
redemption on or after November 15,20_.
(ii) During any Rate Period of three years in length, the Series f^] 1999B
EXTRASSM are subject to optional redemption commencing on the IS-month anniversaI)' of
the first day of such Rate Period.
(Hi) During any Rate Period or' five years in length, the Series (^) 1999B
EXTRASSM are subject to optional redemption commencing on the 24-month anniversary of
the first day of such Rate Period.
...~~
(iv) During any Rate Period of seven years in length, the Series [^) 1999B
EXTRAssM are subject to optional redemption commencing on the 30Mmonth anniversary of
the first ~ay of such Rate Period.
(v) During any Rate Period of ten or more years in length) the Series [^) 1999B
EXTRASSM are subject to optional redemption commencing on the fifth anniversary of the
first day of such Rate Period.
The Series (^11999B 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
(^] 1999f! EXTRAS SM. Series 1999 Bonds so given priority shall be selected by the Trustee. by lot
or in such other equitable manner as the Trustee shall deem appropriate, in the event of insufficient
funds to redeem all such Series 1999 Bonds on any particular redemption date.
Remarketing Agent
B.C. Ziegler and Company has been appointed the initial IIRemarketing Agent" for the Series
[^ I 1999B EXTRASSM. As a condition precedent to serving as Remarketing Agent, the Remarketing
Agent will deliver to the Trustee and the Company a written agreement signitying its acceptance of
the duties and obligations imposed upon it under the Indenture pursuant to the provisions of which,
the Remarketing Agent will: (a) designate the office or offices in which it intends to conduct
,-.J
30
91-;CI
..
...-....
\ I
.
f . ~\
l
'. ,
"',,""-1:
"'~)
activities as Remarketing Agent and to which Series [^ I 1999B EXTRAS SM. moneys, notices and
communications are to be delivered and sent~ and (b) use its best efforts in accordance with the
Remarketing Agreement to remarket Series (^ I 1999B EXTRA.SSM delivered to it at par~ and keep
such books and records as shall be consistent with the prudent industry practice and make such books
and records available for inspection by the Issuer, the Trustee and the Company at all reasonable
times.
The Remarketing Agent must be a member of the National Association of Securities Dealers.
Inc. and will be authorized by law to perform all duties imposed upon it by the Indenture. The
Remarketing Agent may at any time resign and be discharged of the duties and obligations crea.ted
by the Indenture by giving at least thirty (30) days' written notice to the Issuer. the Trustee aud the
Company; providedt however, no such resignation shall be effective duting the period commencing
one hundred twenty (120) days prior to an Optional Tender Date and ending thirty (30) days after
an Optional Tender Date. In no event shall the resignation or I~moval of the Remarketing Agent be
effective until a qualified successor has accepted appointment as such.
In the event of the resignation or removal of the Remarketing Agent, the Remarketing Agent
win pay over, assign and deJiver any moneys and Series f^) I 999B EXTRASSM held by it in such
capacity to its successor. The Company has the right, from time to timet to remove the Remarketing
Agent and appoint a successor Remarketing Agent by giving written notice to the person or persons
then serving as Remarketing Agent, to the Issuer and to the Trustee of such appointment; provided,
howevert the Remarketing Agent may not be changed during the period commencing one hundred
twenty (120) days prior to an Optional Tender Date and ending thirty (30) days after an Optional
Tender Date.
THE SERIES 1999C BONDS
Mandatory and Ootional RedemPtiol!
For information with respect to extraordinarv redemption. notices of redemption and
exchanp;es in transfers of Series 1999C Bonds. see tiTHE SERIES 1999 BONDS - ADDITIONAL
~ORMATIQN."
Mandatorv Sinkim! Fund Redemvtion. The Series 1999C Bonds maturinlZ November 15.
20 are subiect to mandatorv redemPtion prior to maturity in part. by lot. on November IS of each
year. beginnin~ November] S. 20 . at a redemotion orice equal to ] 00% of the orincioal amount of
31
Cf/; !~
,~
luch Series 199ge Bonds beinA: rc@emed 'plus accrued interest to the redemption date: without
premium. in the following principal amounts and in the followimz years:
Year
Amount
'" Maturity
The principal amount of Series 1999C Bonds required to be redeemed as set forth above shall
be reducedj)TO rata by amounts equal to such princioal amount of the Series 1999C Bonds of such
maturities which are purchased bv the Tender Allent or Trustee for cancellation and retirement with
monevs provided bv the Comoanv.
. i
'--.-'
Omional Redemption. The Series 1999C Bonds maturinA: on or Driorto November 15.20
are not subject to redemption prior to maturity at the option of the Comoany. The Series 1999C
Bonds maturing on or after November 15. 20)) are subiect to redemption orior to their maturity. at
the option of the Issuer. at the written request of the Comoany 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 bv lot
within a maturitv. on any Interest Payment Date. at the redemotion prices (exoressed as oercentaRes
ofprinciosl amount of Series 1999C Bonds to be redeemed) set forth in the table below. plus accrued
interest thereon to the date fixed for redemotion:
Period of Red emotion
(All dates inc1usive1
November 15. 20 to November 14. 20
November 15. 20 to November 14. 20
November 15. 20 and thereafter
Redemotion Prices
102%
10]
100
THE SERIES 1999 BONDS - ADDITIONAL INFORMATION
Extraordinary Redemption
The Series 1999 Bonds are subject to extraordinary optional redemption at the direction of
the Company on behalf of the Issuer, in whole at any time or in part on any Interest Payment Date
o
32
91- If;'
...........
, \
in Authorized Denominations from the proceeds of insurance or condemnation payments received
in excess of $250,000 as a result of damage or destruction or taking under the powel' of eminent
domain of all or a portion of the Mortgaged Property, in either case at a redemption price of 100
percent of the principal amount redeemed plus interest accrued to the redemption date.
(^)
Partial Redemption
If less than all of the Series 1999 Bonds shall be called for redemption, the particular Series
1999 Bonds or portions thereof to be redeemed shall be designated by the Company and, if not
designated, the Series 1999 Bonds to be redeemed shall be redeemed in the inverse order of maturity;
provided. that Unremarketed Bonds shall be redeemed prior to any other Bonds. If less than an
Outstanding Series 1999 Bonds of a single maturity are to be redeemed, the selection of Series 1999
Bonds within such maturity. or portions thereofin Authorized Denominations, to be redeemed shall
be made by lot by the Trustee in any manner which the Trustee may determine. The Trustee shall,
to the extent practicable, select Series 1999 Bonds for redemption as to avoid redeeming any
particular Series 1999 Bond in part.
Notice of Redemption
!
.../'
The notice of any redemption of Series 1999 Bonds shall be given by mailing, postage
prepaid, a copy of the redemption notice at least 30 days and not more than 60 days prior to the date
fixed for redemption to the registered holder of each such Series 1999 Bond to be redeemed at the
address shown on the registration books; provided. however, that failure to mail any such notice to
any such registered holders shall not affect the validity of the proceedings for the redemption of Series
1999 Bonds.
Such notice shan state: (i) the CUSIP numbers of all Series 1999 Bonds being redeemed, (ii)
the original issue date of such Series 1999 Bonds. (iii) the maturity date and rate ofinterest borne by
each Series 1999 Bond being redeemed, (iv) the redemption date. (v) the redemption price. (vi) the
date on which such notice is mailed, (vii) ifless than all Outstanding Series 1999 Bonds are to be
redeemed, the Series 1999 Bond number (and, in the case ofa partial redemption of any Series J999
Bond, the principal amount) of each Series 1999 Bond to be redeemed, (viii) that on such redemption
date there shall become due and payable upon each Series 1999 Bond to be redeemed the redemption
price thereof, or the redemption price of the specified portions of the principal thereofin the case of
Series 1999 Bonds to be redeemed in part only, together with interest accrued thereof shall cease to
accrue and be payable and (ix) that the Series 1999 Bonds to be redeemed. whether as a whole or in
part, are to be surrendered for payment of the redemption price at the designated corporate trust
office of the Trustee at an address specified.
)
33
99 -/~
SECURITY FOR THE SERIES 1999 BONDS
I' .----..
I
THE SERIES 1999 BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT,
LIABll..ITY OR OBLIGATION OF THE ISSUER THE STATE OF FLORIDA. OR ANY
POLITICAL SUBDIVISION OR AGENCY THEREOF, AND NEITHER THE FAITH AND
CREDIT NOR THE TAXING POWER OF THE ISSUER, TIlE ST ATE OF FLORIDA, OR ANY
POLITICAL SUBDMSION OR AGENCY THEREOF IS PLEDGED TO TIlE PAYMENT OF
THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, OR THE INTEREST ON THE
SERIES 1999 BONDS. THE ISSUANCE OF THE SERIES 1999 BONDS SHALL NOT
DIRECTL Y.INDIRECTL Y, OR CONTINGENTLY OBLIGATE THE ISSUER, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF TO LEVY OR TO
PLEDGE ANY FORM OF TAXATION WHATEVER THEREFOR OR TO MAKE ANY
APPROPRIATION FOR THEPA YMENTOF THE PRINCIPAL OF, REDEMPTION PREMIUM,
IF ANY, OR INTEREST ON THE SERIES 1999 BONDS.
The Agreement provides, among other things, for the payment by the Company directly to
the Trustee on behalf of the Issuer of payments in amounts sufficient to pay the principal of,
redemption premium, ifany. and interest on the Series 1999 Bonds as the same shall become due and
payable. Payments under the Agreement, when deposited with the Trustee, shall be deposited in a
special fund designated the "Bond Fund," which is pledged under the Indenture to the payment of the
principal of, redemption premium, if any, and interest on the Series 1999 Bonds. The Indenture
provides, among other things, for a pledge and assignment by the Issuer to the Trustee of (i) all of
the Issuer's rights and interests under the Agreement and the Mortgage (except for certain rights of
the Issuer to indemnification and to reimbursement for its expenses), (ii) all of the Issuer's right, title,
and interest in and to the funds and property held by the Trustee under the Indenture (other than the
Rebate Fund).
The Series 1999 Bonds and the redemption premium, ifany, and interest payable thereon. are
special and limited obligations payable solely from (i) payments to be made by the Company under
the Agreement and the Series 1999[^) ~ hereinafter described and other income, revenues and
proceeds derived by the Issuer (or Trustee acting on behalf of the Issuer) pursuant to the Agreement
or by reason of the disposition of the Mortgaged Property (defined below), (ii) certain other moneys
pledged under the Indenture, including certain proceeds of the Series 1999 Bonds, moneys held in
the Debt Service Reserve Fund, certain insurance proceeds and condemnation awards, and income
from the investment of certain funds held in trust under the Indenture, and (iii) net amounts derived
by recourse to the Mortgage. Pursuant to the Agreement and as evidence of the borrowing
thereunder, the Company will execute! promissory [^ J ~ in ~ principal[^] amount equal to the
aggregate principal amount ofthe Series 1999 Bonds. The payment of the Series 1999 [^] ~ and
the performance by the Company of its obligations under the Agreement will be secured by the
Mortgage. Pursuant to the Mortgage. the Company will grant a mortgage lien upon and security
interest in the Facility, including the land on which it is located, to the Issuer, subject to Permitted
Encumbrances (as defined in the Mortgage).
',..J
34
99-, /~
"\
Pursuant[^) to the Agreement and the Mortgage, in order to secure the loan payments and
other payments due thereunder and the performance and observance of each covenant and agreement
of the Company contained in the Agreement, the Series 1999 I ^ J ~ and the Mortgage, the
Company will grant a security interest in its Revenues (as defined in the Indenture and in APPENDIX
D hereto) and certain of its other property to the Issuer. to the extent such security interest can be
perfected under the Florida Uniform Commercial Code and, subject to the provisions of certain
accounts receivable financing loans. Pursuant to the Indenture, the Issuer will assign its rights (except
certain unassigned rights related to receipt of notices. granting of consents and rights of
indemnification) in and to the Agreement. the Series 1999 [^] ~, the Mortgage and the payments
to be made thereunder to the Trustee as security for the Series 1999 Bonds.
)
The Agreement requires the Company to fix, charge and collect, or cause to be fixed, charged
and co]]ected, fees, rentals, rates and charges for the use of the Mortgaged Property and services
provided or to be provided in connection therewith. that shall be at least sufficient to produce in each
full Fiscal Year following completion of the Project a Debt Service Coverage Ratio for such Fiscal
Year that is not less than 1.20. If the Debt Service Coverage Ratio. as calculated for any Fiscal Year,
is less than 1.20. the Company (i) shall notify the Trustee of the Company's failure to achieve the
Debt Service Coverage Ratio, (ii) take all action necessary to cause the fees, rentals, rates and
charges imposed and collected by it in connection with its operations of the Mortgaged Property to
produce the amount required by such paragraph and (iii) employ a Consultant to submit to the
Trustee a written report and recommendation with respect to the fees, rentals. rates and charges
imposed and coUected by the Company and other items of Revenues in connection with its operation
of the Mortgaged Property and with respect to improvements or changes in the operations or
management of or the services rendered by the Company. See APPENDIX D - ItDefinitions and
Summary of Principal Documents - Loan Agreement" herein for a further description, including such
further actions as are required to be taken if this covenant is not met.
At the time of the issuance of the Series 1999 Bonds. the Debt Service Reserve Fund securing
the Series 1999 Bonds will be funded from proceeds of the Series 1999 Bonds in an amount equal
to the Debt Service Reserve Requirement. "Debt Service Reserve Requirement" means with respect
to the Series 1999 Bonds, as of the date of any calculation, an amount equal to $ . In the
event Additional Bonds are issued, the Debt Service Reserve Requirement, if any, with respect to
such Additional Bonds shall be the lesser of (i) 10% of the proceeds of such Additional Bonds, (ii)
the Maximum Principal and Interest Requirements on such Additional Bonds or (iii) 125% of the
average Principal and Interest Requirements on such Additional Bonds. No such Additional Bonds
shall be secured by the Debt Service Reserve Fund established for the Series 1999 Bonds. See the
section entitled 'The Indenturelt in APPENDIX D herein.
Additional Bonds may be issued under the Indenture and the Company may incur Parity Debt
in accordance with and subject to the conditions set forth in the Indenture and the Agreement. Any
Additional Bonds and any Parity Debt, ifissued, will be secured by the Mortgaged Property and the
Revenues equally, ratably and on a parity with the Series 1999 Bonds. See the sections entitled "The
~
3S
19-/r
;
I"
I
.' ,
~ ." .
~
" -:J'
o
~#...-~...... .
, .......dlI!Ii!~
, .
.Indenture-Issuance and Delivery of Additional Bonds" and "The Agreement - Pennitted Debt" in
APPENDIX D herein.
HISTORICAL AND SELECTED FINANCIAL INFORMA nON
Historical and selected financial information regarding the Company and the Facility is
included in APPENDIX A to this Official Statement. Audited financial statements of the Company
for the fiscal years ended December 31, 1998 and 1997 are included in APPENDIX C - Part (i)
herein. and unaudited financial statements of the Company for the three-month periods ending
March 31. 1999 and 1998 in APPENDIX C - Part (ii) herein.
36
qr~ If{
..., '1~"1'\....~... ....~...~...~. '. .,......
I........l.;~' .....~. ,....." -. '.' ... ... . '> '-' . .. .
~I ~ '.
i.
.., _ l
. .
. .
. ,'-:.'\
. \ ""'-.- }
, I''''
!<', ...
I.
I'
}.'.
l:,'
,.
'"
::,
. ". ~
~). .', .\ d
.'\: ..
. ;
'~".~
t-:'~\
V
./ .
;: .
o
I
ESTIMATED SOURCES AND USES OF FUNDS
The total costs estimated to be incurred in connection with the financing of the Project and
the issuance of the Series 1999 Bonds. and the anticipated sources of funds to pay such costs, are.
summarl:ied in the following table. The footnotes following the table are an integra! part of the table
and should be read in conjunction therewith.
,
SOURCES OF FUNDS:
USES OF FUNDS:
(To Come)
..1
37
~--"'''<'.':,'~.:~'' .
.. Jlod1l;l
....
I....? ..: ~'"*' .'. c,', .' .~..' h....... ,'i -,j ,
. I" .;. I /; f II .. , . ,'.' ~ .
.,.. -" ,-
99-/r
I
i
I
I
I
I
I
,
,
I
!
I
'-"C'"O ~l i
tEf;:a
U_1r\
:c a.-
cu._ >-.
~ g~
>'C
cU e. c
u u 0
li5.!!
Uui1 III
.c"CCU 11
OCe.
-0.8 ~
5~= I
U 1
0- 1
>. 0\ ';t g:
..c: 0\ I
u__ -
ti Ii e rl
'C
"B'C U ~
cue: 1
...... CIJ __
'5 u"'O
go ..c ,C
- ru . 'C
.~ '- c .. Q"
.:!l' 0 ~
:z c_
= ,~ '-
~ o '. '=- .8
::E' e U e
~ cu C u
cu.- >
"="Co
- -::aZ
~ i
0' Ir\ rIJ C
.~ 7:=0 ~ 1
u U U l:C )
.c 8:s I
~ 8 U S; 0\ j
0\
0 U u .... 0\
> .- ru
- o 6- c. ~
> Z U 4)
== .....c 'C
r.5:I EPc_ ~ 1
rI.l .- o~
"'0 .=
t; C 0. rIJ
US"O .C
'- u C Q"
, ~ cu '"0 0
Q ~~CQ
..J "C t':' 0\
< 600-.
~ .c_0\
cu -
Z "fi-g~
:z 5 as'e
-< ,-E~ '2
..s"iu ~
.c"3-5 <
15-gco 0\
0\
&.i:iofirIJ 0\ I
-
.:!lrIJc fl 11
u ~=
rIJ "ii3 0 'C
U c. e ~ 1 j
:E 'u ru
ru c c I
- 'C 0 ..
e.o 0..- 'c I
c _
.~ u Co Q..
o ..s 5 !
- c... '"0 . ~1I'l
'OOulr\ I
c.;:; _ '"" _ c-
U c t':' '"" .- ""
..c: u u ;fi~
Eo- ~ S -e "" u \
cu as cu ij !i ,
0.1 > 19~ /~ i
1,,.oOE....., U 0 >-;z;
V ..c: Z
-
~ \' '. ~-' .., .
,r')
I :
'>t.
~"f~.:".~_=':'.~:~__'_..' _. .
38
." 'r.. ~"'.~ ~;L~."" ~ . I"
~, .. >~. '" I
. .1 . .... '..~ :: c ."f': ". t
.~.:~- .-,~ ~
.....
. c. . I' ~ .
. -. --," ~., I .
LITIGA TION
'.-....
,
Upon delivery of the Series 1999 Bonds to the Underwriter, a certificate of no litigation will
be provided by the Issuer and will state that there is no litigation pending against the Issuer, nor. to
the knowledge of the official executing such certificate. threatened, to restrain or enjoin the issuance
or delivery of the Series 1999 Bonds, to contest the authority for. or validity of, the Series 1999
Bonds. or to contest the corporate existence or powers of the Issuer.
Th(^) ere is no litigation pending or. to the knowledge of the Company, threatened against
the Company which is not adequately covered by the Company's insurance policies, or which, in the
opinion ofthe Company. could have a material adverse effect on the Company's business or financial
position.
UN[^) DERWRITING
/
B.(^) C. Ziegler and Company (the "Underwriter"), has agreed to be the underwriter of the
Series 1999 Bonds under a Bond Purchase Agreement entered into by and among the Issuer, the
Company and said Underwriter. The price and other tenns regarding underwriting of the Series 1999
Bonds were established through negotiations rather than through a public bidding process. The
Underwriter has agreed to purchase the Series 1999 Bonds at an aggregate discount of$
or _% of the proceeds thereof.[^) The Bond Purchase Agreement provides that the Underwriter
will purchase all of the Series 1999 Bonds if any are purchased. the obligation to make such purchase
being subject to certain terms and conditions set forth in the Bond Purchase Agreement. the approval
of certain legal matters by counsel and certain other conditions. The Underwriter intends to offer the
Series 1999 Bonds to the public initially at the offering prices shown on the inside cover page hereof,
which prices may subsequently change without any requirement of prior notice, The Underwriter
reserves the right to join with other dealers and underwriters in offering the Series 1999 Bonds to the
public. The Underwriter may offer and sell the Series 1999 Bonds to certain dealers at prices lower
than the public offering prices.
LEGAL MATTERS
Legal matters incident to the issuance of the Series 1999 Bonds and with regard to the
tax.exempt status ofthe interest on the Series 1999A Bonds and the Series (^) 1999B EXTRASSM
(see "TAX EXEMPTIONIt) arc subject to the legal opinion of Bryant. Miller and Olive, P.A..
Tallahassee, Florida, whose legal services as Bond Counsel have been retained by the Issuer and the
Company. The signed legal opinion. dated and premised on law in effect as of the date of original
delivery of the Series 1999 Bonds, will be delivered to the Issuer and the Underwriter at the time of
original delivery, and the text of the opinion will be printed on the Series 1999 Bonds,
.-J
39
119-/ ~
~
\
The proposed text of the legaJ opinion is set forth in APPENDIX F. The actual legal opinion
to be delivered may vary ITom that text if necessary to reflect facts and law on the date of delivery.
The opinion will speak only as of its date, and subsequent distribution of it by recirculation of the
Official Statement or otherwise shall create no implication that Bond Counsel has reviewed or
expresses any opinion concerning any of the matters referenced in the opinion subsequent to its date.
Bond Counsel has not been engaged tat nor has it undertaken to, review the accuracy.
completeness or sufficiency of this Official Statement or any other offering material relating to the
Series 1999 Bonds~ provided, however) that Bond Counsel shan render an opinion to the Underwriter
of the Series 1999 Bonds (upon which opinion onJy the Undenvriter may rely) relating to the
accuracy of certain statements contained herein.
Certain other legal matters are subject to approval by Pamela K. Akin, City Attorney) by
Baker & Hostetler LLP, Orlando. Florida, as counsel to the Company. and by Nabors, Giblin &
Nickerson, P.A., Tampa. Florida, as counsel to the Underwriter. First Union Capital Markets Corp..
St. Petersburg, Florida has acted as Financial Advisor to the Issuer in connection with the issuance
of the Series 1999 Bonds.
TAX EXEMPTION
. --',
',~~J
The Code establishes certain requirements which must be met subsequent to the issuance and
delivery of the Series 1999A Bonds in order that interest on the Series 1999A Bonds be and remain
excluded from gross income for purposes of federal income taxation. Non-compliance may cause
interest on the Series 1999A Bonds to be included in federal gross income retroactive to the date of
issuance of the Series 1999A Bonds, regardless of the date on which such non-compliance occurs or
is ascertained. These requirements include, but are not limited to, provisions which prescribe yield
and other limits within which the proceeds of the Series 1999A Bonds and the other amounts are to
be invested and require that certain investment earnings on the foregoing must be rebated on a
periodic basis to the Treasury Department of the United States. The Issuer and the Company have
covenanted in the Trust Indenture and the Agreement to comply with such requirements in order to
maintain the exclusion from federal gross income of the interest on the Series 1999A Bonds.
In the opinion of bond counselt assuming compliance with the aforementioned covenants,
under existing lawst regulations, judicial decisions and rulingst interest on the Series 1999A Bonds
is excluded from gross income for purposes offederal income taxation. Interest on the Series 1999A
Bonds is not an item of tax preference for purposes of the federal alternative minimum tax imposed
on individuals or corporations~ however) interest on the Series 1999A Bonds may be subject to the
alternative minimum tax when any Series 1999A Bond is held by a corporation. The alternative
minimum taxable income of a corporation must be increased by 75% of the excess of such
. corporationts adjusted current earnings over its alternative minimum taxable income (before this
adjustment and the alternative tax net operating loss deduction). "Adjusted Current Earning'. will
, '
".-..1'
40
c;9~ I r
')
include interest on the Series 1999A Bonds. The Bonds are exempt from all present intangible
personal property taxes imposed pursuant to Chapter 199, Florida Statutes.
Except as described above, Bond Counsel will express no opinion regarding the federal
income tax consequences resulting from the ownership of: receipt or accrual of interest on, or
disposition of Series 1999A Bonds. Prospective purchasers or Series 1999A Bonds should be aware
that the ownership of Series 1999A Bonds may result in collateral federal income tax consequences.
including (i) the denial ofa deduction for interest on indebtedness incurred or continued to purchase
or carry Series 1999A Bonds. (ii) the reduction of the loss reserve deduction for property and
casualty insurance companies by 15% of certain items. including interest on the Series 1999 A Bonds,
(iii) the inclusion of interest on the Series 1999A Bonds in earning of certain foreign corporatipns
doing business in the United States for purposes ora branch profits tax. (iv) the inclusion of interest
on Series 1999A Bonds in passive income subject to federal income taxation of certain Subchapter
S corporations with Subchapter C earnings and profits at the close of the taxable yeart and (v) the
inclusion of interest on the Series 1999A Bonds in "modified adjusted gross income" by recipients
of certain Social Security and Railroad Retirement benefits for purposes of determining whether such
benefits arc included in gross income for federal income tax purposes.
PURCHASE, OWNERSHIP, SALE OR DISPOSITION OF THE SERIES 1999ABONDS
AND THE RECEIPT OR ACCRUAL OF THE INTEREST THEREON MA Y HAVE ADVERSE
FEDERAL TAX CONSEQUENCES FOR CERTAIN INDIVIDUAL AND CORPORATE
BONDHOLDERS. PROSPECTIVE SERIES 1999A BONDHOLDERS SHOULD CONSULT
WITH THEIR TAX SPECIALISTS FOR INFORIvlATION IN THAT REGARD.
,:)
During recent years legislative proposals have been introduced in Congress, and in some cases
enacted, that altered certain federal tax consequences resulting from the ownership of obligations that
are similar to the Series 1999A Bonds. In some cases these proposals have contained provisions that
altered these consequences on a retroactive basis. Such alteration of federal tax consequences may
have affected the market value of obligations similar to the Series 199'9A Bonds. From time to time.
legislative proposals are pending which could have an effect on both the federal tax consequences
resulting from ownership of Series 1999A Bonds and their market value. No assurance can be given
that legislative proposals will not be introduced or enacted that would or might apply tOt or have an
adverse effect upon, the Series 1999A Bonds.
Tax Treatment of Original Issue Discount
Under the Code, the difference between the maturity amounts of the Series 1999A Bonds
maturing in ~[the years _ through ~ and the initial offering price to the public, excluding
bond houses, brokers or similar persons or organizations acting in the capacity of underwriters or
wholesalers, at which price a substantial amount of Series 1999 A Bonds of the same maturity was
sold is "original issue discount.1t Original issue discount will accrue over the term of the such Series
1999A Bonds at a constant interest rate compounded periodically. A purchaser who acquires such
Series 1999A Bonds in the initial offering at a price equal to the initial offering price thereof to the
,...)
41
99-' It
')
public win be treated as receiving an amount of interest excludabJe from gross income for federal
income tax purposes equal to the original issue discount accruing during the period he holds such
Series I 999A Bonds. and will increase his adjusted basis in such Series 1999A Bonds by the amount
of such accruing discount for purposes of determining taxable gain or loss on the sale or other
disposition of such Series 1999A Bonds. The federal income tax consequences of the purchase,
ownership and redemption, sale or other disposition of Series 1999A Bonds which are not purchased
in the initial offering at the initial offering price may be determined according to rules which differ
from those above. Owners of such Series 1999A Bonds should consult their own tax advisors with
respect to the precise determination for federal income tax purposes of interest accrued upon sale.
redemption or other disposition of Series 1999A Bonds and with respect to the state and local tax
consequences of owning and disposing of Series 1999A Bonds,
!VDdate to include B EXTRAS Series 1999\'
FINANCIAL ADVISOR
the Issuer has retained First Union Capital Markets Corp., St. Petersburg. Florida, as financial
advisor in connection with the issuance of the Series 1999 Bonds. Although First Union Capital
Markets Corp. has assisted in the preparation of the Official Statement, First Union Capital Markets
Corp. is not obligated to undertake, and has not undertaken to make, an independent verification or
to assume responsibility for the accuracy, completeness or fairness of the information contained in
the Official Statement.
,'J
DISCLOSURE MA TIERS
Disclosure Required by Florida Blue Sky Regulations
Section 517.051, Florida Statutes. as amended, provides for the exemption from registration
of certain governmental securities, provided that. if an issuer of governmental securities has been in
default any time after December 31, 1975 as to principal and interest on any obligation, its securities
may not be offered or sold in Florida pursuant to the exemption, except by means of an offering
document containing full and fair disclosure, as prescribed by rules of the Florida Department of
Banking and Finance (the "Departmenf'), Under the rules of the Departmen~ the prescribed
disclosure is not fequired if the information is not an appropriate disclosure because the information
would not be considered material by a reasonable investor.
The Issuer has the power to and has issued bonds for the purpose of financing projects fOf
other facilities which are payable from the revenues of the applicable loan. Revenue bonds issued by
the Issuer for other projects may have been, or may be. in default as to principal and interest. The
source of payment, however, for any. such defaulted bonds is separate and distinct from the source
of payment for the Series 1999 Bonds. and therefore. any default on such bonds is not considered a
material fact with respect to the payment of the Series 1999 Bonds offered hereby.
.J
42
19;, I g'
- ----...
'1
The Company has not been in default as to principal or interest at any time after December 31,
1975 on bonds; notes or other debt obligations issued or guaranteed by the Company.
Continuing Disclosure
No financial or operating data concerning the Issuer is material for an evaluation of the
offering of the Series 1999 Bonds or to any decision to purchase. hold or sell the Series 1999 Bonds
and,. therefore. the Issuer will not provide any such infonnation. The Company has undertaken all
responsibility for any continuing disclosure to the registered or beneficial owners of the Series 1999
Bonds as described below, and the Issuer shall have no liability to the registered and beneficial owners
of the Series 1999 Bonds or any other person With respect to Securities and Exchange Commission
Rule 15c2.12 (the 11Rulelt).
The Company has covenanted for the benefit of the registered and beneficial owners of the
Series 1999 Bonds to provide certain annual financial information and operating data relating to the
Company by not later than 120 days following the end of the Company's fiscal year (the ttArmual
Report"); commencing with the report for the fiscal year ending , 1999. and to provide
notice of certain enumerated events, ifmaterial. The Annual Report will be filed with each nationally
recognized municipal securities infonnation repository, the applicable state repository, ifany, and the
Trustee. See APPENDIX E - uFonn of Continuing Disclosure Certificate" herein. The covenants
set forth in the Continuing Disclosure Certificate have been made in order to assist the Underwriter
in complying with the Rule.
'.,
\
. ,j' Authorization of and Certification Concerning Official Statement
This Official Statement has been authorized by the Issuer and the Company. Concurrently
with the delivery of the Series 1999 Bonds, the Company and, to a limited extent described below,
the Issuer, win furnish their certificates to the effect that, to the best of their knowledge, this Official
Statement did not as ofits date, and does not as of the date of the delivery of the Series 1999 Bonds,
contain any untrue statement of a material fact or omit to state a material fact which should be
included therein for the purposes for which this Official statement is to be used~ or which is necessary
in order to make the statements contained herein, in the light of the circumstances in which they were
made, not misleading. Any such representation by the Issuer will address only the statements
contained herein under the heading uTIlE ISSUER" and statements relating to the Issuer included
above under "Disclosure Required by Florida Blue Sky Regulationtl under this heading.
MISCELLANEOUS
This Official Statement does not constitute an offer to sell the Series 1999 Bonds ~n any
jurisdiction to any person to whom it is unJawfuJ to make such offer in such jurisdiction. No dealer,
salesman or other person has been authorized to give any information other than that contained in this
Official Statement or to make any other representations concerning the Series 1999 Bonds and, if
~
43
99~ It
-
. . ~ .. .. . .
.
"
1
,
............
I:. .
".
'. '
,'.
.",- ......,
~J
o
#'"......t tV'.;J:./JI. v,...- ...' ,-
./
given or made, such other information or representations must not be relied upon as having been
authorized by the Issuer, the Company or any other person mentioned herein. Certain information
contained in this Official Statement has been obtained from the Issuer, the Company and other
sources which are believed to be reliable. but it is not guaranteed as to accuracy or completeness, and
nothing in this Official Statement (except the matters under the caption "UNDERWRITING") is to
be construed as a representation of the Underwriter. The information and expressions of opinion
herein are subject to change without notice, and neither the delivery of this Official Statement nor any
sale made hereunder shall, under any circumstances. create any implication that there has been no
change in the affairs of the Issuer or any other person mentioned herein, or in the other matters
described in the Official Statement, since the date hereof. Neither this Official Statement, nor any
statements which may have been made orally or in writing, are to be construed as a contract with the
registered holders of any ofthe Series 1999 Bonds. All estimates, whether or not so stated, are not
to be construed as representations that they will be realized. Any statements in this Official Statement
involving matters of opinion. whether or not expressly so stated. arc intended as such and not as
representation,s of facts.
.
This Official Statement was approved, and the execution and delivery of this Official
Statement authorized, by the Company.
DEFt INC.
By:
. President
44
;
I
,
I
I
I
I
I
l,
I,
I
!
,
CfI//r
..... . ~ c
~.,
. .;;. ~! ...
.~ ~ ' ,
:'. c"
;c ~:
'., ~ ,C"'.
" ".' .
. ." >
.ti.:' .
y; ~. -
...~.. o;~: ~. :..
~ . ",:
.'0'1:. "~ .:... ,t;' '"
:..1
/.;. '.,
'~ .
""(3)
.'.{ \ ')1
',:.' . ~ "t '" ...
~ : ~,'~ ' .
t,~;. '. .
":~~':' ~~ l.
. { ,~ - ~
./-::.,,>
.f,
~ ~.; .:-
j.." .
::};....,
t......' .
~;.. :; '. ,.
I".
I ~ '.' ' .
(~., .
; :~" .: .
I.,:,;'"
I~f.::':';
;~. /.
;:.....
':, ~ ,
J~i;>:. "
.',
~:" ):' ," ... .
....... '.
~"
.; ", :,"'-::;", .
r...;0..
;r:.
>. ;,.
," ,
" .
I',:
".
r.~ .
<. '
':
!',
....,<.,
Ir . '\
IV
. 1,1
, '.
'j:',.\,(,:.:
"..-...--
.
"'., ..' . .-.::............
.,".
"
"
. :. ~ "
'f
:.
j.
'"
~ . ,,,.
".
. ,.
~ , >...
APPENDIX A
(^) ~~F ~ ~ - Organization and Operations
. "
!
!
i
I
\
,
i
'1:(9., 1>1.
__~~r
-, .
.;. ,.T
t.' :..,.
.:' : ~ "
~! ~. c J ~' ~
~"L ,
,:
.,
. ,..' ~ .
.l~_~....
,
'.
,.,
.,~ .
I,: ."
n.
" ,
\~,.,,",,", >
;;":,'
'!::':..l "
'.'
cl',.c""
;.';;'.
':;'/-'.
, ,
;'~:..~,:.
'~ ;
,/.' ,
~" :~ I.' " >
....
"
I'
::...
.,:. .
..-.. ...
; ":.
.~y..I".1
t~.":.... ' c
'~." ;' ,
'.,
, . ~ :
~ .' ,
. ,
9~
,. ,'.
. .r,'.
.' ,
':' ,j
';.
,.
.'
'r>.."
"
i.:
.:)
,';
!.
. .'
. "
- ,
". '.
':!
..('"
APPENDIX B
Financial Feasibility Study
: ~ "
. .
CfI- I.r
" "
..... +
, .,
'.
I. '.
.,'r
>'1-"
l" ,:
'0' .
;_:.
~', '
,'y
,~ l',
'i" ":
~.\ ,; . '
::>,>.:,'
.",-
.
,n
. ~,~ ,J.1
."r:
',t, ,
I ~ .' ~
" ,
I ,~1 ~>",
, ,c
~. .'
/:~.'" '
~~ ~:. "
~}".'
,~ . ~ -,
C,"."
.i.'~ ...: '~
d::'. ~
~i~~:c - ,
/..,
'.,\
,.
J;. ~ +:"
\" .
1:'.. ~.;
d~ ,
~)!>'"
1\.<'.>
'~' I
I,' I
::; ,
.'~':~~-:)
'V
,,( ~,
;,'
.i "
,.
,~ ~:
,;",
"J.
'I
:.'{
., '
C.........t:.1t,
(oi.)
...
,.J
CI"
:'
APPENDIX C
Fin'ancial Statements
)
".
"I
':1
;1
I'
\.
'1
i
,
i
,
I
I
I
19~/l(
.' ..
t ~:i ,/
"'
.'
',: j,
}.{., .
, ,
"ft"l:""-"~ ....l'~' .'~c.
.
I';'. .
....
. . ~
:~
" "'/
.~,.""
J _
, .
"'
".
(:-.
~'. \
, "
t..
.-t....
-.j' >
{.:'
..' 'i
~ ; ~
.' '...:' ,
,I
\,' .
',j'. ". .
'.'i':
"fJ1:; ~ .:.'...
. ~ ~ .
.":
;\ .'.
~ . :
~';..
:',..' ~U.~';
.' '." .
"
; ~ .
.0
:'
...':
.P~-'~~::':::_~-'.:'-~-~;-~ ,_.,:_:~.
APPENDIX D
Definitions and Summary of Principal Documents
\'
.1
I
I
t
i
I
'I
1
'I
99.-1ft'
.,-. "c~' ~ ~.l....~ : l ~'..J I\..!:;.......~ '........I.h..... '. .~.-<"~..:.,~l.!\:.....~):\,;., ,. '.: .:::~ ~ ~ J ~',~{~ is, 3-,-:':'Lr,. ~ ~P"'''' ...-~ .... .~"'" ,H~. t.. .,~_~ ..:..~-~
'-;,
, '.
" .'
lb- :., " , '. ',." .
i
/
II'
',~
/~.
......."".
...' ~.
::'"
"
:<.'
/..
',.
,.
.'
, ,
)'. C
.'
::'; /..
,.
~J, ". .
~." .' "
;:1".:.,
.(
"i~ :
1:1
,~'"
~~;"
~~ : . I
~.~.: ., :
'; .f .
t:.'::
~ . ~
....:..
i
>i'
/~\'
o
(;
: ~ . ~ .
"
,
,.
'.
~. .
l.,.
",
:.'
:',\ ,t.'~-':}
~0
..
\.
< .
: ~.
!. .
L'
r~ .
'=h~y:='~~~~~:~~_~~_ "
APPENDIX E
Form of Continuing Disclosure Certificate
.,
~...: '';~, ~"'.'. "~T:'t' C\' ",:I..,~ \' ~ '~.f,:~:.:, .:~~.":";)~....~~\r'.~.'t<:'" .4~,9-.TI>~' ..,.~. ....1-<-..
'... ~ ~'t' t
,....:.., 'r'"
!
,
if
II
"
'I
I:
'19-/~
-
.\,:. , '
.~ 'J
.'/
.,
L
. ., ~ ~
,'.
','y
C":"
,.
..
0, \ .
~~:...~, '....,. .~.. ..... <.:
\.
: '.
.,
II
...~'
+' .... \
.,
. '. ..'~
,,'
'.
.' ~...
U
IS
1,\ .'
~ '~<.
'.;
;L"
~~" '.
~~
"r.t'
" '
.. "
"
I ; ~. .
. ,"' ~ .
....
!T.,
". '.
~.' I,
:.',
<~ .f"
.j:
':"
, "
'ij ~ .
.,,;.".. ,
.':t. ""
,
.-':.; '1
?".
.:;.. .-
lj I. 'r~'':.
k. ~
It.',
I ~ .~ . .
5.;;'.
,:;---"
4...:::;.,1
\~ ,
< ~.::
. .
.1.... .,
.'.
.~ ," . ". .
"
;~ .'
....,,'\
L.
.,
.',1
I:.
I. ,
" .
~ .: .
" .
J.':,
i,': i ~.
"
~:: 'i
':Jo'
f :;~ :
','.
.1',',<
t,;
\'.
. '. ~
"
.: :'
o
\. .
'."
~); :~-;::~""'7:~'-:,~:;:,~::: .~, .:;. .
.'
I,
.". ~. "
. r '....~. ~ ' r. J.. . ~"i ....:...i l . ~. .I'.'
APPENDIX F
Form of Bond Counsel Opinion
.
I
j
l
il
i!
Ii
CfI~/~
,;
...~.~. \"~;H9"i.~~:;~<'t~.I.,~~(~ "'~'''.lfi1'~ I. t ht'... ~..
'\
NEW ISSUES
DRAIT #[^) 4: 6/8/99
07310.B["')
UNRATED
In the opinion of Bond Counsel, assuming compliance with certain covenants in the Indenture and
the Agreement (as hereinafter defined). interest on the Series 1999A Bonds and the Series 1999 Bonds
is excluded from gross income for purposes of federal income taxation and the Series 1999 A ~onds ane!
the Series 1999 Bonds are exempt from all present intangible personal property taxes imposed pursuant
to Chapter 199, Florida Statutes. See. however liT AX EXEMPTIONn herein for a description of certain
federal minimum and other special taxes that may affect the tax treatment ofinterest on the Series 1999A
Bonds and the Series 1999 Bonds.
-
CIlY OF CLEARWATER, FLORIDA
(^) REVENUE BONDS. SERIES 1999
(BEF, INC. PROJECT)
Consisting of
S ",
CITY OF CLEARWATER, FLORIDA
[A] REVENUE DONDS, SE.RIES 1999A
(DEF, INC. PROJECT) ,
S ",
CITY OF CLEARWATER, FLORIDA
IA] REVENUE BONDS, SERIES 19998
I^J(BEF, INC. PROJECT),
EXTENDABLE RA TE ADJUSTABLE
SECURITIES5M(EXTRASSM)
I
-.--...
S ",
CITY OF CLEARWATER. FLORIDA
TAXABLE REVENUE BONDS. SERIES 1999C
CBEF, INC. PROJECT)
Dates, Interest Rates, Prices and Yields and Maturities
as Shown on Inside Front Cover and the Initial Facing Page
The Series 1999A Bonds, the Series 1999B Bonds and the Series 1999C Bonds (collectively. the
"Series 1999 Bonds") win be issued by the City ofCleaJWater, Florida (the "Issuer") pursuant to a Trust
Indenture, dated as of[^]~, 1999 (the "Indenture"). between the Issuer and SunTrust Bank. Central
Florida. National Association, [Orlando, Florida], as trustee (the "Trusteen). The Series 1999 Bonds are
issuable as fully registered bonds in the denominations of $100,000 and multiples of $5,000 above
$100,000. Interest on the Series 1999 Bonds will be payable semiaMua11y on May 15 and November 15
of each year. commencing November 15, 1999. by check or draft mailed to the registered holder thereof
as of the Regular Record Date~ provided that, at the written request by and expense of any registered
holder of$1 ,000,000 or more in aggregate principal amount of Series 1999 Bonds, by bank wire transfer
or direct deposit to the designated account of such registered holder. Principal of all Series 1999 Bonds
J
19,/~
...........
-
''"""'\
,
..~)
,~
will be payable at the designated corporate trust office of the Trustee, presently located in (Orlando,
Florida) upon surrender of the Series 1999 Bonds.
The Series 1999 Bonds are being issued to provide funds which. together with certain other
funds available therefor. will be used to (i) finance or refinance the cost of [^J aCQuirinlZ the
tndeoendenllivinR. and assi~ted living units of the Oaks (as further described herein) and construction
of various capital improvements to certain independent, assisted Ih.;ng and skilled nursing facilities
(collectively. the "Facility") owned or to be owned by BEF, Inc., a Florida not-for-profit corporation
(the "Company") and located in the City of Clearwater, Florida, (ii) provide for working capital
and/or capitalized interestt (Hi) fund a debt service reserve fund with respect to the Series 1999
Bonds, and (iv) pay certain costs with respect to the issuance of the Series 1999 Bonds.
In connection with the issuance of the Series 1999 Bonds. the Issuer and the Company wi))
entednto a Loan and Security Agreement, dated as of [^) Julv 1, 1999 (the "Agreement") and the
Company wi)) execute and deliver to the Issuer ~ non-negotiable promissory [^] note of the
Company in the aggregate principal amount of the Series 1999 Bonds (^ l(the U Series 1999 (^ J
Noten). The Company will be obligated under the Agreement and the Series 1999 [^] Note to make
payments sufficient, together with other available funds, to pay the principal of, redemption premium,
if any, and interest on the Series 1999 Bonds as the same becomes due and payable.
The Series 1999 Bonds and the redemption premium. ifany. and interest payable thereon, are
special and limited obligations payable solely from (i) payments to be made by the Company under
the Agreement and the Series 1999 [^) Note and other income, revenues and proceeds derived by
the Issuer (or the Trustee acting on behalf of the Issuer) pursuant to the Agreement or by reason of
the disposition of the Mortgaged Property (defined below), (ii) certain other moneys pledged under
the Indenture, including certain proceeds of the Series 1999 Bonds. moneys held in a Debt Service
ReselVe Fund, certain insurance proceeds and condemnation awards. and income from the investment
of certain funds held in trust under the Indenture, and (Hi) net amounts derived by recourse to a
Mortgage and Security Agreement. dated as off ^]~, 1999 (the "Mortgage"), from the Company
to the Issuer. The payment of the Series 1999 [^) ~ and the performance by the Company of its
obligations under the Agreement will be secured by the Mortgage. Pursuant to the Mortgage. the
Company will grant a mortgage lien upon and security interest in the Facility. including the land on
which it is located (the "Mortgaged PropertyU), to the Issuer. subject to Permitted Encumbrances
(as such tenn is defined in the Mortgage). [^] In addition, pursuant to the Agreement and the
Mortgage, in order to secure the loan payments and other payments due thereunder and the
performance and observance of each covenant and agreement of the Company contained in the
Agreement, the Series 1999 (^J ~ and the Mortgage. the Company will grant a security interest
in its Revenues (as defined in the Indenture and in APPENDIX D hereto) and certain of its other
property to the Issuer, to the extent such security interest can be perfected under the Florida Uniform
Commercial Code. Pursuant to the Indenture, the Issuer will assign its rights (except certain
unassigned rights related to receipt of notices, granting of consents and rights ofindemnification) in
and to the Agreement. the Series 1999 [^] ~. the Mortgage and the payments to be made
thereunder to the Trustee as security for the Series 1999 Bonds.
fti-ICl
~......
, l
TIlE SERIES 1999 BONDS WILL BE LIMlTED OBLIGATIONS PAYABLE SOLELY
FROM THE REVENUES PROVIDED AND PLEDGED THEREFOR IN ACCORDANCE WITH
THE INDENTURE, THE AGREEMENT AND THE MORTGAGE, THE SERIES 1999 BONDS
Wll.L NOT CONSTITUTE A DEBT. LIABll...ITY OR OBLIGATION OF THE ISSUER, THE
STATE OF FLORIDA, OR ANY POLITIeAL SUBDIVISION OR AGENCY THEREOF. AND
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE ISSUER. THE
STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF. IS
PLEDGED TO THE PAYMENT OF TIlE PRINCIP AL OF, REDEMPTION PREMIUM, IF ANY,
OR INTEREST ON THE SERIES 1996 BONDS.
I..
The Series 1999A Bonds and the Series (^) 1999C Bonds are subject to mandatory.
extraordinary and optional redemption as more fully described herein. The Series (^) 1999B
. EXTRAssM are subject to optional tender on November IS, 2004, and thereafter at various dates
deoendin~ on the lenlrth of the Rate Period as described herein. [^]
Prospective investon should be aware of certain risks. anyone of which, if it
materialized to a sufficient degree, could delay or prevent payment of debt service on the Series
1999 Bonds. This Official Statement, including all Appendices. 5hould be read in its entirety.
See "BONDHOLDERS. RISKS" herein for a summary of certain of these risks.
,.J
The Underwriter intends to engage in secondary market trading in the Series 1999 Bonds,
subject to applicable securities laws. However. the Underwriter is not obligated to repurchase any
of the Series 1999 Bonds at the request of any registered holder thereof. For details of the
Underwriter's compensation, see "UNDERWRITING" herein.
The Series 1999 Bonds are offered, subject to prior sale, when, as. and ifissued and received
by the Underwriter, and subject to the approving legal opinion of Bryant. Miller and Olive, P.A.,
Tallahassee, Florida, as Bond Counsel. Certain other legal matters are subject to approval by
Pamela K. Akin, City Attorney, by Baker & Hostetler LLP, Orlando) Florida. as counsel to the
Company, and by Nabors, Giblin & Nickerson, P.A., Tampa. Florida. as counsel to the Underwriter.
First Union Capital Markets Corp., 51. Petersburg, Florida has acted as Financial Advisor to the
Issuer in connection with the issuance of the Series 1999 Bonds. It is expected that the Series 1999
Bonds will be available for delivery on or about , 1999. in . Florida.
B.C. ZIEGLER AND COMPANY
The date of thi! Official Statement is
. 1999.
"'Preliminary. subject to change.
~.)
Legend for Cover Page:
99 -/~
~:;. ::' . ,....... .
, .
.' c.' ~ .' \.
., ~..
.' ,
c,
, ,
.' ,
I' I ~
; .".
"
~~'r, ..<~.. f ~ ~,.-
i ..
. .
:....0.
.' .
. . .
",
. .,.'
" .
I. _.
...: ? .
.,.,'
j,l'i.,
;~:'.c
.,~'.., . .
, .
, '
,.i
..
.,
','
fj<: '
. . I,"
"
, 'c'
;. ' . ,
'"3
" . ,"
. " I
:~ ::
"
I,
., .
I. ,.
,;..
o
> : .
This Preliminary Official Statement and the information contained herein are subject to completion
or amendment. These securities may not be sold, nor may. an offer to buy be accepted prior to the
time the Official Statement is delivered in final form. Under no circumstances shall this Preliminary
Officiat Statement constitute an offer. to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any jurisdiction in which said offer. solicitation or sale would be
unlaWful prior to registration or qualification under the securities laws 'of such jurisdiction.
.' .
J
.1
. I
..J;~, .
I.
.'
:\
99~/~
')
"
" ')
~"""-~..
I
, --..,)
Dated:
. 1999
Maturity
November 15
Principal
Amount
Dated:
. 1999
MATURITY SCHEDULE
s *
CITY OF CLEARWATER, FLORIDA
[^) REVENUE BONDS, SERIES 1999A
(HEF, INC. PROJEC'!) .
Due: November IS, as shO\\n below
Interest
Rate
Maturity
November 15
Principal
Amount
Interest
~
Price
Price
Due: November 15. 20
Dated:
, 1999
Maturity
November 15
Principal
Amount
[To Come)
(plus accrued interest. if any)
s *
CITY OF CLEARW A l'ER. FLORIDA
[^J REVENUE BONDS, SERIES 19998
(BEF. INC. PROJECn.
EXTENUAHLt; KA I ~ AUJUSTABLE
~t.:CU~11'lt.:S:>M(eX rKAS-~
CITY OF CL~ARW ATER FLORIDA
TAXX8Lt.: JQ;VJ!;NU~ HUNUS~S~Rlf.:S 1999C
(H~", INL. I'KOJe i)
Due: November IS, as shown below
Interest
Rate
Maturity
November IS
Principal
Amount
Price
(To Come)
(plus accrued interest. if any)
Interest
.~
Price
?fj,/f6
')
._)
,J
(^] THE SERIES 1999 BONDS HAVE NOT BEEN REGISTERED WlTH THE UNITED
ST ATES SECURITIES AND EXeHANGE COM1vlISSION UNDER THE SECURITIES ACT OF
1993, AS AMENDEDt NOR HAS THE INDENTURE BEEN QUALIFIED UNDER THE TRUST
INDENTURE ACT OF 1939, AS AMENDED. IN RELIANCE UPON EXEMPTIONS
CONTAINED IN SUCH ACTS. IN MAKING AN INVESTMENT DECISION INVESTORS
MUST RELY ON THEIR OWN EXAMlNA TION OF THE COMPANY AND THE TERMS OF
THE OFFERING INCLUDING TIlE MERITS AND RISKS INVOLVED. THE SERIES 1999
BONDS HAVE NOT BEEN RECOM:MENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE. THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERl\1INED THE
ADEQUACY OF TInS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY MAY
BE A CRIMINAL OFFENSE.
Ifand when a registered holder of Series 1999 Bonds elects to sell a Series 1999 Bond prior
to its maturity, there can be no assurance that a market will have been established, maintained, and
in existence for the purchase and sale of the Series 1999 Bonds. The Underwriter of the Series 1999
Bonds assumes no obligation to establish or maintain such a market and is not obligated to repurchase
any of the Series 1999 Bonds at the request of the holder thereof. See t1UNDERWRITING."
No dealer, salesman, or any other person has been authorized to give any information
or to make any representation other than those contained in this Official Statement, in
connection with the alTering of the Series 1999 Bonds and, if given or made, such other
information or representation must not be relied upon. This Official Statement does not
constitute an alTer to sell or a solicitation of an alTer to buy any securities, other than the
securities oITered hereby, or an offer or a solicitation of an oITer of the securities oITered hereby
to any person in any jurisdiction where such oITer or solicitation of such offer would be
unlawful. The information set forth herein has been obtained from the Issuer and the
Company and other sources which are believed to be reliable, but is not guaranteed as to
accuracy or completeness by, and is not to be construed as a representation of, the
Underwriter. The information and expressions of opinion stated herein are subject to change
without notice, and neither the delivery of this Official Statement nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof.
IN CONNECTION WITH TIllS OFFERING. THE UNDERWRlTERMA Y OVER-ALLOT
OR EFFECT TRANSACTIONS WHICH 5T ABILIZE ORMAINT AIN THE MARKET PRICE OF
THE SERIES 1999 BONDS OFFERED HEREBY AT A LEVEL ABOVE THAT WlflCHMlGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED,
MAY BE DISCONTINUED AT ANY TTh1E.
qq"/~
',~ ~
s.' <.
\....: .
.'.:>";' "
:i".'
.-
,
.~...: . ,~ '
",
/7'"
<~~w.-)
>.
,.,
:,
~.'
:.'\
,., . I
.~l ....
,.,
,.
.,...,'
/......
.(r. ~
.,' ..
~;>.
J~. _.
\ ,..
./..
",
:,0
I.
r.
1,;;.'0
.Jl'".
i'~
" \
J'
. ~, .
....
'I
"
. '.
: :'o:t~,. J.I" ,<.!,
.,
'.
.',
lINSERT A~RIAL PHOTO OF FACILITY!
',.
q9-/~
'j
SUMMARY STATEMENT
The information set forth in this Summary Statement is subject in all respects to more
complete information set forth elsewhere in this Official Statement, which should be read in its
entirety. The offering of the Series 1999 Bonds to potential investors is made only be means of this
entire Official Statement. No person is authorized to detach this Summary Statement from this
Official Statement or otherwise to use it without this entire Official Statement. For the definitions
of certain words and terms used in this Summary Statement, see APPENDIX D - "Definitions and
Summary of Principal Documents" herein.
The Issuer
The City of Clearwater.' Florida (the "Issuerll) is a municipal corporation duly organized and
existing under and pursuant to the Florida Constitution, the Charter of the Issuer and laws of the
State of Florida. The Issuer is authorized to make and execute financing agreements, contracts and
other instruments necessary or convenient for the purpose of facilitating the financing of certain
projects, including machinery. equipment, land, rights in land and other appurtenances and facilities
r"elated thereto, to the end that the Issuer may be able to promote the health and safety of the
inhabitants of the Issuer, the people of Pin ell as County and the State of Florida by increasing their
access to adequate medical care and health care facilities, and to accomplish such financings through
the issuance of revenue bonds.
..,~':r) The Series 1999 Bonds
The Issuer proposes to issue its [^J Revenue Bonds, Series 1999A (HEF, Inc. Project), in
the aggregate principal amount of $ (the 'I Series 1999A Bonds"). the Issuers [^)
Revenue Bonds, Series 1999B (BEF, Inc. Project){^) Extendable Rate Adiustable Securitie~~
(EXTRASSMl in the aggregate principal amount of {^J $ (the "Series 1999B Bondstl)
and the Issuer's Taxable [^) Revenue Bonds, Series 1999C (BEF. Inc. Project) [^)" in the aggregate
principal amount of [^) $ (the "Series 1999C Bonds"). The Series 1999A Bonds.
the Series 1999B Bonds and the Series 1999C Bonds are collectively referred to as the" Series] 999
Bonds. "
Proceeds derived from the sale of the Series 1999 Bonds will be loaned to BEF, Inc., a Florida
not-for-profit corporation (the "Company"), and applied to (1) acquire the assets of The Oaks of
Clearwater, Inc. (the !tOaks") which primarily consist ofindependent and assisted living facilities; (2)
finW"ce the cost of renovations to the Facility (defined below); (3) provide for working capital and/or
capitalized interest; (4) fund a debt service reserve equivalent to the maximum annual debt service
on the Series 1999 Bonds; and (5) pay costs of issuance associated with the transaction.
THE SERIES ] 999 BONDS Wll.L BE LIMITED OBUGA TIONS PAY ABLE SOLELY
FROM THE REVENUES PROVIDED AND PLEDGED THEREFOR IN ACCORDANCE WITH
.....J
99-/~
.--,
\
!
THE INDENTURE, THE AGREEt-.1ENT AND THE MORTGAGE. THE SERIES 1999 BONDS
WILL NOT CONSTITUTE A DEBT, LIABILITY OR OBLIGATION OF THE ISSUER, THE
STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF. AND
NEITHER THE F AlTH ANI.' CREDIT NOR THE TAXING POWER OF THE ISSUER, THE
ST ATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF, IS
PLEDGED TO THE PAYMENT OF THE PRINelP AL OF, REDEMPTION PREMIUM, IF ANY,
OR INTEREST ON THE SERIES 1999 BONDS.
The Company and the Facility
The Company was incorporated as a Florida not-for-profit corporation in 1975. as American
Baptist Estates of Clearwater, Inc. The Company changed its name to BEF~ Inc. in March of 1999.
The Internal Revenue Service has detennined that the Company is an organization described in
Section 501(c)(3) of the Internal eode of 1986, as amended (the "Code"). and is therefore exempt
from federal income taxation under the provisions of Section 501 (a) of the Code. The Company
received its Determination Letter from the Internal Revenue Service in May, 1976.
The Company and the Oaks own and operate retirement facilities located in the City of
Clearwater, PineUas County~ Florida, known as The Oaks of Clearwater Retirement Community
(collectively, the "Facility"). The Facility is currently comprised of two high-rise buildings, Oak
Bluffs, a IS-story building (the liB luffs Buildinglt), and Oak Cove, a l3-story building (the "Cove
Building"), and four low-rise villa buildings (the "ViIlas") which contain skilled nursing facilities
owned and operated by the Company (the tlNursing Centers"), and independent and assisted Hving
facilities which are owned and operated by the Oaks.
)
---,-..
Iinsert mer~er descriPtionl
The Company provides three different levels of care to residents of the Facility: independent
living, assisted Jiving and nursing care.
Residential areas within the Facility include 12 one-bedroom garden apartments located in the
Villas, 8 two-bedroom garden apartments and 391 one-room and two.room higla.rise apartments (213
of which are currently unoccupied and located in the Cove Building and the remainder are located
in the Bluffs Building) (collectively, the (^)ItIndeDendent Living Unitst1); (^] ~ assisted living units
(the" Assisted Living Units") (^] located in (^] the Bluffs BuildinR; and the Nursing Centers, which
are comprised ora 60.bed skilled nursing facility located in the Bluffs Building (the "Bluffs Nursing
Center") and a 56-bed skilled nursing facility located in the Cove Building (the ttCove Nursing
Center").
The Facility is located on approximately 7 acres ofland on the Intercoastal WatelWay, with
views of the Gulf of Mexico, Clearwater and St. Petersburg, Florida.
ii
I---J
11f-/~
.......I...,.~.........;_~-._.-........-....--"-'------,.-
The Project
..--.....
The Facility was refinanced through a secondary loan from the City of Clearwater, Florida,
from certain proceeds of a loan from the City of Gulf Breeze, Florida (the .'Sponsorll), through the
Sponsors Local Government Loan Program to the City of Clearwater, Florida, funded through the
proceeds of Sponsors Local Government Loan Program Floating Rate Demand Revenue Bonds,
Series I98SC-1. The loan to the Company and Oaks was secured by two mortgage notes (the
"Company's 1989 Note" and the "Oaks 1989 Note" and collectively, the" 1989 Notes") guaranteed
as to payment by the Government National Mortgage Association, or GNMA, which is a part of the
United States Department of Housing and Urban Development ("HUD"). In 1996. each of the
Company and Oaks declared bankruptcy and defaulted on the 1989 Notes. In connection with the
plan of reorganization in bankruptcy and pursuant to their guarantee of the Notes, HUD purchased
the 1989 Notes and the outstanding bonds were extinguished. HVD then sold the defaulted ] 989
Notes at auction to Beat Bank, 5.S.B. ("Beal"). Immediately prior to the closing of the offering of
the Series 1999 Bonds. the outstanding principal and interest on the 1989 Notes was $
Beal has agreed to sell the 1989 Notes for Twenty Million Dollars ($20.000.000). Pursuant
to the tenns ofa Note Purchase Agreement between the Company and Beal, the Company will use
a portion of the proceeds of the Series 1999 Bonds to (i) purchase its 1989 Note from Beal for
$ , with the Company thereby receiving clear title to the Company portions ofthe Facility
(including the Nursing Centers and its portion of the common areas ofthe Facility). and (ii) purchase
the Oaks 1989 Note from Beal for $ , with the Company acquiring the remaining portions
of the Facility previously owned by Oaks by accepting a deed in lieu offoreclosure from Oaks with
respect to the remaining portions of the Facility. Accordingly, upon the completion of the offering
of the Series 1999 Bonds and the purchase of the 1989 Notes by the Company, the ownership of the
Facility will be consolidated in the Company.
The Company will use a portion of the proceeds from the Series 1999 Bonds to renovate the
Cove Building (the "Project"). Currently. the Cove Building is vacant except for the Cove Nursing
Center. The third floor of the Cove Building will be renovated into modem, skilled nursing units.
The residents of the Cove Nursing Center will be transferred to the new third-floor nursing facility
upon completion. The old Cove Nursing Center wjJJ then be renovated and rehabilitated to current
standards and the residents of the Bluffs Nursing Center will be transferred into such renovated space
upon completion. At the same time. the remaining floors of the Cove Building will be completely
rehabilitated to provide for senior independent and assisted Jiving units in order to replace the
facilities at the Bluffs Building. Upon completion of such living space. the residents in the Bluffs
Building who have consented to move will transfer to the Cove Building. [^J
The Facility will be renovated and redeveloped pursuant to the terms of a Development
Services Agreement (the "Development Agreement") by and between the Company and Complete
Care Services of Florida, Inc. ("CCSFL") a Pennsylvania corporation and a subsidiary of Complete
Care Services. Inc. C1CCS"). which through its subsidiaries manages over 200 nursing homes and
assisted Jiving facilities throughout the United States, primarily on the East Coast and in Ohio. Illinois
..J
Hi
99-{6
.,-..,
and Texas. and provides development services to owncrs of senior housing, assisted living and
long-term care facilities,
The Development Agreemcnt provides for the payment to CCSFL of three percent (3%) of
the (^) renovation costs of the Project. Seventy-five percent (75%) of such fee is due upon the
issuance of the Series 1999 Bonds. with the remaining twenty-five percent (25%) payable over the
six-month projected construction period. Under the Development Agreementt CCSFL is required
to create a detailed development plan and time schedule, prepare development budgets, oversee
architectural and engineering planning. obtain all necessary regulatory consents and approvals.
identify contractors and coordinate the construction bid process, oversee the construction, and
oversee the transition of the renovated Cove Building until opening.
The Management Company
Simultaneous with the issuance of the Series 1999 Bonds, the Company is terminating its
existing management contracts and is entering into a new management agreement with CCSFL. See
~ description of CCSFL in the section entitled liTHE MANAGEMENT COMPANY" and the
section entitled liTHE PROJECT - The Management Company" in APPENDIX A herein.
Security for the Series 1999 Bonds
In connection with the issuance of the Series 1999 Bonds, the Issuer and the Company will
enter into a Loan and Security Agreement, dated as of [^] ~, 1999 (the "Agreement") and the
,__~~J Company will execute and deliver to the Issuer ~ non-negotiable promissory [^] note of the Company
in the aggregate principal amount of the Series 1999 Bonds (the "Series 1999 [^] Noten) The
Company will be obligated under the Agreement and the Series 1999 (^] Note to make payments
sufficient, together with other available funds, to pay the principal of, redemption premium, if any,
and interest on the Series 1999 Bonds as the same becomes due and payable.
The Series 1999 Bonds and the redemption premium, if any. and interest payable thereon, are
special and limited obligations payable solely from (i) payments to be made by the Company under
the Agreement and the Series 1999 I ^) ~ and other income, revenues and proceeds derived by
the Issuer (or the Trustee acting on behalf of the Issuer) pursuant to the Agreement or by reason of
the disposition of the Mortgaged Property (defined below), (ii) certain other moneys pledged under
the Indenture, including certain proceeds of the Series 1999 Bonds, moneys held in a Debt Service
Reserve Fund, certain insurance proceeds and condemnation awards. and income from the investment
of certain funds held in trust under the Indenturet and (Hi) net amounts derived by recourse to a
Mortgage and Security Agreement, dated as of(^ ] July 1, 1999 (the "Mortgage"). from the Company
to the Issuer. The payment of the Series 1999 [^] Note and the performance by the Company orits
obligations under the Agreement win be secured by the Mortgage. Pursuant to the Mortgage, the
Company will grant a mortgage lien upon and security interest in the Facility, including the land on
which it is located (the "Mortgaged Property"). to the Issuert subject to Permitted Encumbrances (as
such term is defined in the Mortgage).
.....J
iv
1q--/fr
.._....-P"'-or..:.....~,.......~~...._________________~_. ..___ ... ._., ,._________
,~
,
J
~ "... .~.<t!
1
-..,.;
Pursuant(^) to the Agreement and the Mortgage. in order to secure the loan payments and
other payments due thereunder and the performance and observance of each covenant and agreement
of the Company contained in the Agreement, the Series 1999 (^) ~ and the Mortgage, the
Company will grant a security interest in its Revenues (as defined in the Indenture and in APPENDIX
D hereto) and certain of its other property to the Issuer, to the extent such security interest can be
perfected under the Florida Unifonn Commercial Code and, subject to the provisions of certain
accounts receivable financing loans. Pursuant to the Indenture, the Issuer win assign its rights (except
certain unassigned rights related to receipt of notices, granting of consents and rights of
indemnification) in and to the Agreement. the Series 1999 (^] Note, the Mortgage and the payments
to be made thereunder to the Trustee as security for the Series 1999 Bonds. For more information,
see "SECURlTY FOR THE SERIES 1999 BONDS" herein.
Certain Covenants of the Company
Debt Service Coverage Ratio. The Agreement requires the Company to fix, charge and
collect, or cause to be fixed, charged and collected. fees, rentals, rates and charges for the use of the
Mortgaged Property and services provided or to be provided in connection therewith. that shall be
,at least sufficient to produce in each full Fiscal Year following completion of the Project a Debt
Service Coverage Ratio for such Fiscal Year that is not less than 1.20. If the Debt Service Coverage
Ratio, as calculated for any Fiscal Year. is less than 1.20, the Company (i) shall notify the Trustee of
the Company's failure to achieve the Debt Service Coverage Ratio, (ii) take aU action necessary to
cause the fees, rentals, rates and charges imposed and coUected by it in connection with its operations
of the Mortgaged Property to produce the amount required by such paragraph. and (Hi) employ a
Consultant to submit to the Trustee a written report and recommendation with respect to the fees,
rentals, rates and charges imposed and collected by the Company and other items of Revenues in
connection with its operation of the Mortgaged Property and with respect to improvements or
changes in the operations or management of or the services rendered by the Company. See
APPENDIX D - I1Definitions and Summary of Principal Document - Loan Agreement" herein for a
further description, including such further actions as are required to be taken if this covenant is not
met.
Other Covenants. The Agreement also contains covenants which impose limitations on the
issuance of additional debt. on transfers of assets and transfers of cash and investments, and on
consolidation, merger, sale or conveyance. For more information, see APPENDIX D - "Definitions
and Summary of the Principal Documents - Loan Agreement" herein. .
Purchase or Series [^J 1999B EXTRASSM
The registered holders of Series [^) 19998 EXTRASSM have the option to tender their Series
f^J19991! EXTRAssM to the Trustee for purchase on each Optional Tender Date. The only sources
of moneys available to make payments ofthe purchase price ofthe Series [^) 1999B EXTRASSM on
each Optional Tender Date are (i) the proceeds of the remarketing thereof, (ii) moneys required to
be deposited in the Extendables Purchase Fund by the Company pursuant to the Agreement in an
v
CfI-lft
') amount not greater than the amount of cash held by the Company on such Optional Tender Date in
excess of (^ J_ Days Cash on Hand, and (Hi) any additional amounts deposited into the,Extendables
Purchase Fund by the Company, at its sole option. from any available moneys of the Company.
Therefore, ifany of the Series (^] 1999B EXTRAssM tendered on any Optional Tender Date are not
remarketed at par. the Tender Agent may not have available funds with which to purchase such Series
[^) 1999B EXTRASSM. In the event sufficient funds are not available. the registered holders of the
tendered but unpurchased Series (^] 1999B EXTRASSM will be required to retain their Series [^]
1999B EXTRAssM at the new interest rate determined by the Remarketing Agent. THERE CAN
BE NO ASSURANCE THAT SUFFICIENT FUNDS WILL BE A V AIT..ABLE TO PURCHASE
ANY OR ALL SERIES (^] 1999B EXTRASSM TENDERED FOR PURCHASE ON ANY
OPTIONAL TENDER DATE. Failure to purchase Series (^ ) 1999B 'EXTRASSM tendered for
purchase on any Optional Tender Date does not constitute an event of default under the Indenture
orthe Agreement. See liTHE SERIES [^] I 999I! EXTRASSM [^];; General Description . Purchase
on Optional Tender Dates" herein. In addition, there can be no assurance that any interest rate
adjustment with respect to the Series (^) 1999B EXTRAssM will not cause a material burden on the
financial condition ofthe Company. See ttBONDHOLDERS' RISKS - Purchase of Series [^] 1999B
ExtrasSM" herein.
Historical and Selected Financial Information
.,)
Historical and selected financial information regarding the Company and the Facility is
included in APPENDIX A to this Official Statement. Audited financial statements of the Company
for the fiscal years ended December 31, 1998 and 1997 are included in APPENDIX C - Part (i)
herein, and unaudited financial statements of the Company for the three-month periods ending March
31, 1999 and 1998 in APPENDIX C - Part (ii) herein.
Historical Statement of Activities and Historical Pro Forma Debt Service Coverage and Cash
Investments and Related Ratios
[TO COME (^ J]
Financial Feasibility Study
Feasibility Study. See APPENDIX B herein for a Financial Feasibility Study dated
, 1999, prepared by BDO Seidman, LLP. independent certified public accountants (the
"Financial Feasibility Studyll). The financial Feasibility Study includes management's financial
forecast of the Company for the four (4) years ending December 31, 2002. As stated in the
Financial Feasibility Study, there will be differences between the forecasted datu and actual
'0
vi
qq-/g;
c. L.
r")
"
. , I
. --'"
'J
)
results because events and circumstances frequently do not occur as elpec'ted, and those
differences may be material. The achievement of any financial forecast is dependent upon
future events, many of which are beyond the Company's control and the occurrence ofwhich
cannot be assured. See "BONDHOLDERS' RISKS" herein. The Financial Feasibility Study
should be read in its entirety, including all notes and assumptions set forth therein.
Forecasted Financial Information for the Company. The table set forth below reflects the
forecasted debt service coverage ratio calculations for the Company and has been extracted from
management's financial forecast included in the financial Feasibility Study. See APPENDIX B -
t1Financial feasibility Study" attached hereto.
Forecasted Schedule of Coverage Ratios
. I
I
(TO COME FROM FINAL DRAFT OF FINANCIAL FEASffiILITY STUDY]
vii
9q-/~
----<l!b..1
,~
,,~
~.)
::;
. .' . '. ~
Bondholders. Risks
AN INVESTMENT IN THE SERIES 1999 BONDS INVOLVES RISK. A
BONDHOLDER IS ADVISED TO READ "BONDHOLDERS' RISKS" HEREIN FOR A
DISCUSSION OF CERTAIN RISK FACTORS wmCH WOULD BE CONSIDERED IN
CONNECTION WITH AN INVESTMENT IN THE SERIES 1999 BONDS. Careful consideration
should be given to these risks and other risks described elsewhere in this Official Statement. Among
other things. since the Series 1999 Bonds are payable solely from the revenues of the Company and
other moneys pledged to such payment, careful evaluation should be made of certain factors that may
adversely affect the ability of the Company to generate sufficient revenues to pay expenses of
operation, and the principal of. premium, if any, and interest on the Series 1999 Bonds,
The Principal Documents
Definitions of cenain words and terms used in this Official Statement and summaries of the
Indenture) the Agreement) the Mongage and other principal documents are included in this Official
Statement in APPENDIX D hereto. Such definitions and summaries do not purport to be
comprehensive or definitive. All references herein to the specified documents are qualified in their
entirety by reference to the definitive forms of such documents. copies of which may be viewed at the
offices of B.C. Ziegler and Company, 1 South Wacker Drive, Chicago, Illinois, or will be provided
to any prospective purchaser requesting the same, upon payment by such prospective purchaser of
the costs of complying with such request. .
viii
q'l-/~
"',<: >
TABLE OF CONTENTS
o
PaKe
INTRODUCTION... . ..... . . . . . . .. . .. ., ..... . , ,. . , . , . . . ,. . , . '. . . . ... . . . ,. .... ,.. . .. I
Purpose of the Official Statement , . . . . . . , . . . . . . . . . . , . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . .. 1
The Is:sucr . .. . . . . . . . a , .. a I . t . I . . t . . . t I . , . . . . . . . .. , .. . I . .. . . . . .I- , I . . + a .. . .. + . I . I . I . . . .. . 2
TIle Comp.any.and the Facility. . . . . I , . + .. . . . , , .. . I , . .. . 4- . .. . . t . I . I . .. I I . . . t I + I . , + , . . , . . I 2
'TIle Project .......... I . . . .. , . . I . . . .. . I . . . I . I . . . . I I , .. . 4- _ I . .. I . .. . + I , I . + . . . . . , . .. . . . . . I . . 3
The Management Company .. . . . . . , . . . , . , . . . . . , . . . . . . . . . . . , . , . . , . . . . , . , . . . . . . , , . . . 4
The Series 1999 .Boncls .... _ .. . . . . . . .. . . . t . . . . .. .. . I . + , . . .. , .. , . . , . . . . . . . . . . 4- . . . . t .. ... . of . . 4
'"
Security for the Series 1999 Bonds .............,..................... I . . . . . . . . .. [^] 4
. =
Historical and Selected Financiallnfonnation . . . . , . . . . . . . . . . , . . , . . . . , . . . . . . . . . . . . . . . . . . 6
Historical Statement of Activities and Historical Pro Fonna Debt Service Coverage and [^] Cash.
InvestInents and Related Ratios .,....,............... , . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Financial Feasibility Study. . . . . , . . , . . . . . . . . . . , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 6
The Series [^].!222!! EXTRAssM ..............,.............,.................... 7
Bondl1olderst Risks "..'..'................,...... t . .. I . t I I , I . . . . + , . .. . . I . + , . .. . , . . .. . . . . 7
"
Definitions and Summaries of Legal Documents . . . . . . . . . . . . . . . . . , . . . . . . . . . , . . . . . . . .. [^] Z
BONDHOLDERS' RISKS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . , . . 8
G-en.eral ............. . . I- t . . . , .. . .. I . , . .. I , , . . , . .. . . . . . . . . . 4- a I I . .. . . 4- . .. .. 01 . . . . .. . , t . . , . . 8
General Uncertainty of Revenues , . . . . . . , , . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Failure to Achieve or to Maintain Occupancy. . . . . . . . . . . . . . , . . . . . . . , . . , . . . . . . . . . . , . . . . . 9
No Assurance Forecasted Results Will Be Obtained . , , . . , . . . . . , ... . . . , . . , . . . . . . . . . . . . . . . . 9
Malpractice Claims and Losses .,..,..."......,...,...,.,.....,..,.......,..... [^ J 2
Regulation . . . . , . . . . . . . . . . . . . . . , . . . . , . . . . . . , . . . , . , . , . . . . . . , , . . , . . . . . . . . . . . . . .. 10
Florida Licensure and Certificate of Need ..............,....,..................'. [^} 13
Possible Changes in Tax Status ..... . . . . . . . . . . . . . . . , . , . . . . " . . . . . . . . . . . . . . . . . . . . . .. IS
Limited Use of Facilit)' .........."................,........,....,..,.,...,.,. [^] II
Possible Effect of Adverse Conditions in Housing Market ..... .'. , . . , . . . . . . . . . , . . . , . .. [^] 15
Construction Risks ...........,...................,...............,..,...... [^] ll.
Enforceability of Remedies ................................................... [^J ~
Uncertainty of Investment Income ...,................................,......... [^ ] ,!g
Ban.kr'uptcy ....,.... I I . I , .. ... , . . , . . . . , , . . .. . I . t . . .. . , I . , . . . of . . I . .. I . . , . . . . . . . I . . . . ;. I . t 17
Rights of Residents ............................................................ 1 7
COI1lpctition I . , . . .. + I . . I . .. . . . . .. . . of . , . . . . I . . . . . .. , . . . .. . . , . . . . I I . . . . .. . . . .. . a , . .. [^] II
Investment Risks; Lack of Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. I ^ ] J2
Purchase of Series [^] 19998 EXTRASSM . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
. Amendments to Documents '........,...........".....,................,..,., I ^ J 18
Year 2000 Compliance ...................................................... [^] l!
Transfer of Residents from the Bluffs Buildinll to the Cove Buildinp. Uoon Comoletion of
Renovations ..,..,..,.....,.."...",.....,.,. - . . . . . . . . . . . . . . . . . . . . . . . . . ., 19
==
Other Risk Factors ..............,.....,........................ .' . . . . . . . . . . . . .. 19
FLORIDA REGULA nON OF CONTINUING CARE FACILITIES ......,.......,...,...... 20
TliE ISSUER. . . . . . .. . . . .. .. . . . . , . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
.--J
ix
99~ I~
,~
1
THE COMPANY AND THE FACILITY ,....,.,.,..,......,..........,...,.."....,.,. 21
Residence Agreements .. , , . . , . . , . . , , . , . , . . . . . . . , . , . . . . , . . , . , . , . , . . . . , . . , , . . . , . , . 22
PLAN OF FINANCING.... ,.. ., ., .. . . . . .. . . . . . . . . ., . . . . , . . , . . . .. . . . , .. . . , . . . .. (^) 22
. -
THE PROJECT. . . . . . . . . . . , . . , . . , , . . . . , . . . . , . , . . . . , . . , . , . . , . , . , . . , , , . . . . . , . . . . , . , 23
(^) TIiE MANAGEMENT COMPANY ....,....,.,..,..............................., 24
. FINANCIAL FEASIBILITY STUDY .. . . . . . . . . . . . . . . , . . . . . . . , . . , . . . , . . . . . . . . . . . . . . . . . 24
Fea.sibilit:}' Shldy t'. + I . . I + It. . . ~ . . . If. f t , . . . t . I , . t ~ . . . . , . . . .. '" . . . .. . . . ~ , . . . . . . . . , 24
Forecasted Financiallnfonnation for the Company . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . .. (^ J ~
THE SERIES 1999A BONDS . . . . . . . . , . . . . . . . . . . . , . . . . . , . . . . . . . . . . . , . . . . . . . , . . . . . . , . 2S
Mandatory and Optional Redemption . . . , . . . . . . . . , . . . . . . . . . . . , . , . , . . . . . . . . . . . . . . . . . . 25
THE SERIES 1999B ~XTRASSM ..,.' , . . , . , . . , . , . , , . . , . . . . , . . , . , . , . . , . , . . , . . , . , , . ,f,g (^)
General Description . . . , . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . , . . . . . . . . . . . , . . . . . . . . ,. [^ I ~
Mandatory and Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. (^ J t.2
Rernarketing Agent ...........................,....,..,..................... [^) ~
THE SERIES 1999C BONDS . . . , . , , . . , . . , . . . . . . . . , . . . , . . , . . . . . . , . . , . . . , . . . , , . , . , . . . .li
Mandator\' and Optional Redemption . , . . , . , . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...... 3T
lHE SERIES 1999 BONDS -ADDITIONAL INFORMATION .,..,......,............. [^) II
Extraordinary Redemption . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . .. [^) II
Partial.Redemption ..,..........." t , . . . + , . . . . . , + , . , . . t * . I . + , . . . t . . . . . . . . .. . . . . . . 33
(
.--.....
Notice of Redemption .......................................................... 33
SECURITY FOR TI-IE SERJES 1999 BONDS .. . . . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . 34
HISTORICAL AND SELECTED FINANCIAL INFORMATION ........................... 36
ESTIMATED SOURCES AND USES OF FUNDS-. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . , . 37
ANNUAL DEBT SERVICE REQUIREMENTS. . , . . . . . , . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . 38
LITIGATION .....................,...............,..,..,....,.,..,.,...,....,.. 39
UNDERWRITING .......,......,..,....,..,........,..,..,..,....,.,............. 39
LEGAL MA TIERS ........................,.,...,........,...................... 39
TAX EXEMPTION. . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . , . . . . . , . . . . . . . . . . . . . . . . . . , . , . . . . 40
Tax Treatment of Original Issue Discount ...,....,............,.,.................., . 41
FINANCIAL ADVISOR . . . . . . . . . . . , . . . . . . . . . . , . . . . . , . . , . . . . . , . . . , , . . . , . . , . . . . . . . , . 42
DISCLOSURE MAITERS .......................,..,.............................. 42
Disclosure Required by Florida Blue Sky Regulations ..........................,....... 42
Continuing Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . , . . . . . . . . . . . . . . . . . . . . , . . 43
Authorization of and Certification Concerning Official Statement . . . , . . . . . . . . . . . . . . . . . . . , . . 43
MISCELLANEOUS ... c' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 43
APPENDIX A-
APPENDIX B -
APPENDIX C -
[^) BEF. INC..: - Organization and Operations
Financial Feasibility Study
Financial Statements:
(i) Audited financial statements of the Company for the fiscal year ending
December 31. 1998 compared to the audited fmancial statements of the
Company for the fiscal year ending December 31. 1997; and
(ii) Unaudited financial statements of the Company for the three-month periods
ending March 31, 1999 and 1998.
Definitions and Summary of Principal Documents
Fonn of Continuing Disclosure Cenificate
Fonn of Bond Counsel Opinion
APPENDIX D-
APPENDIX E-
APPENDIX F-
x
,
I
I
II
.. ....,
'-.J
91-/~
" ..
,\
. : .~.
",
l.'
~: :,~. ""
0': .,.
,. ;
~~>~:i:~t!~;O .' . '..
I,.
,,'
';:'.
~ :
."=.
A
'1~~'4.""
"
.~:
1<: ...~.
.~. ! '; .
I~: > :!.': i-
I ../:~ .
..:(~". .:.<
",I ;.
1""
',"T
.:';r"J.
.'.
,'I:
" "
... >: L~" . ~
",'
P. .
,'+u .
'" ~ . .
.~:: . ,>
,
1/-
..,.....
'?~~"
.... .
.' c
.'~ ,
cL
{l t.
.' ",
",
<~ :
,
I"
v
. . ....--
. ~ + ~ 'I
Q
.~ .
"
".
.,; ~ '
~. ;
~<
.~..,. .
f. .1
....., .
)
" ,
::: ~ ~ t r.
, ",'
. ~ . ,
" ,
.
"C. .
(;I
.' ~~.,...
'?;:.-.'
7?;;f::<;
~\l(.'~:,j:,
"'IA. -' .
',:: ~V'I:~f '\
\\~,;" :: ~,
'~~..I~ ,~.~... '
';
'. 1.'~
.~'.. I .~,' >,~'.
.~ ",'
EXHIBIT G
NOTICE OF PUBLIC HEARING
..'
\
Resolution 99-18
"
---
ST. PETERSBURG TIMES
STATE OF FLORIDA } 8.S. hll h d
Pu s c Dally
COUNTY OF PINELLAS St. Petersburg, Plnellas County. Florida
J~efore the undersigned authority personally appeared P:H11 ~ T.~ne
who on onth says that he Is Legal Clerk
of the St. Petersburg Times Nnrth Pi np 11 ~!'l. Eel i H nn
D daUy newspaper published at St. Petersburg, In PineHas County, Florida: that
the attached copy of ad,'ertlsement, being n Legal Notice
In the matter RE: NnH (':r-o nf Pllhl i r Hp~T'ing
Adll QQOOfiQ40h in the Court
was published in said newspaper in the Issues of F'phr"~ry 9 J 199Q
Affiant further says the sold St. Petersburg Times
is a newspaper published at St. Petersburg, in said Pinellas County, Florida, and
that the sold newspnper has heretofore been continuously published In sold
Pinellas County, Florida, each day and has been entered as second class mail
matter at the post office In St. Petersburg, in said PlneUas County, Florida, for a
period of one year next preceding the first publication of the attached copy of
advertisement., and affinnt further says that he has neither paid nor promised
any person. firm, or corporation any discount, rcbnte, commission or refund for
the purpose of ~Ing this. ad~ise~lnt for publication in the said
newspaper. ~, ~
Sworn to and subscribed before J ,""'"
me this 11 th day of .~'Ai\'l\"~' BEnY M. TAYLOR
Fe ruar A. 19 9 9 N i.\ MY COMMISSION' CC 588664
~~ .,j!.l EXPIRES: October 14, 2001
, :L.z..... ~ ..,w,..';i,'" 80nded ThI\J Hotuy Public Iblerwrtlll1
Public
....---'
/J
PwatJl1 ban J fJfI ~ j.;kutil1ctdo1l_
~ of ~~ procblo4
. '. . .' ~.. '" +
"...)
~;..-"'. I......
NOTICE OF PUBLIC HeARINO
PLEASE TAKE NOTICE thallhe S.ll1fv1jt)).u;;:o,:.-
~~~VJ'~t~~ ~tU.f Clearwater, "'oriiki {,~<o;Cr',yT'~
fhe hmlna/ler descrl~~~Z~hr::l ~~! ,Iht elf... rega rdlng
pOsed bonds bv Ihe ClI... at Ihe Clfv C'''' 'fuance or Ihe pro.
llE..,S. OKl!ola Avenut, Cleorwalet Fro~WaSSIO~be~,
.n at 2:00 a.m., at Whrch time a ' on rY
OOrdlng Ihe arOPOJl!d llluance a ny person mayll& &al'd, .
ThhtEI.!'" Commlssron of Iht CI~th(f"'eu~.hcbo'l ncdsand,orOled.
as """,n requesfed to Is II R y omm ulan")
hlllowlnll capttal ara,eJfe s evenue Bonds to Ifnance lhe
n requesled bv BEF I " t Clly Commlulon
IIDf for oroUt col'PDratlon ,nc. (the Owner"l. a FlorIda
tton pursuanl fo SectIon m~)1~r:n:'1I rlltemat organlza.
Code of 19'~. as amended fIe n una' Revenut
.$JS,OOQ,OOO Revenue Bonds serres 'IsM ('!~I~tBto UCted
OIIe or more 'orin at OIl ' ... ands"), In
1 m Bond' will bear mo,.. limes. The proceeds ollhe
lion and eqUIPPI:gu~e~g ~~fl~f~Jr1:c~~Slllon. rl!boblllla.
", ue betwten Ihe Clly at Clearwater Clla... HaOll'1 Ondlcleoh la Ave-
os Counly Courthouse d a e PInel.
Blull build/nil. located' an presently known as fhll Oak
da and 'he Oak Calle ~11~n~~~~:f~u~hCJfg~ater, FIori.
~ lJ~=:f' Florida (colledrVely. ltle "Prol~}.tAi'h';
senior I)ouslng, :::jl~~~cTrl~~t~~~~ltl'hon, We/nlll consist of a
faclllly. The Oak BI I' bulldl 'V car urslng care
renovation ar lhe Oa~ Cove ~fdl~~lolwlnll the completion of
a tar prollt owner wh II w, 'l!koeded fa be IOld to
and convert It Inlo a Of IN I renovate the oak Bluff bulldln
lIet II currenltv oPl!rar.gr::~a~ J',o~r'ng focllllY. The pror.
Owner. and will be owned earwater. Inc. and rhe
once of 'ht 1999 Bonds sorer;g:~~J:'~~~lowrnll the Iuu.
Any oerlOll who decides t I'
City CommISSIon with r~:~: :~: d~ilslon made by the
It, meeltnll or h&arlnv will nlled a ~ormad of "hr conlldered at
Sech person may ...... f ' n . proceedings,
the ProceedIngs li;,.- 0 ~Urt thot a verbatim record of
dence UPOI'I which the O::~'f,~~~~ tesltmony and evl.
..!!XlO69406l February 9, 1999 sed.
~ ~:\\..,
CL402.\V
111(,..,,1)\. ~'t i"lff\' '1...[ 111:,11 .1 ~l1IC anJ
corrl.~ll:i ;,', ~: \"1:1 t.:j.,'Lti.I)'}-I ii
;l;~pt'iLt ~;'I i;Jt: ~~i~ I u} tLI~ C:Hy nf
Cl'.:.~,' ,',:.~, \\ ,n/:,~ lilY ];.1::,( M.d
or dl.~.d :-l,;~J (If :hc {~H~. (jf <..;h..lr..:r:\IJ~:~i..
This a .... U!iY pi .~~S 19:>li'
,If . S"".~ . ".' "-
-~- --
Clty Clerk
,
'\
-;
1q-lf6
~~--oII!l b.-