HomeMy WebLinkAbout1983-102RESOLUTION NO. 83-102
A RESOLUTION PROVIDING FOR 'rHE FINANCING OF
THE ACQUISITION, CONSTRUCT .ON AND EQUIPMENT
OF A 120-BED NURSING HOME FACILITY LOCATED
AT 1310 37TH S'rREET, VERO BEACH, fLORIDA,
IN INDIAN RIVER COUNTY, FLORIDA; PROVIDING
FOR THE ISSUANCE OF NOT EXCEEDING ~2,400,000
INDUS'rRIAL DEVELOPMEN'l' REVENU ,E BONDS, SERIES.
1983 (FLORIDA HEALTH FACILITIES PROJECT), OF
INDIAN RIVER COUNTY, FLORIDA, THE PROCEEDS
OF WHICH WILL BE LOANED TO E'LORIDA HEALTH
FACILITIES CORP. ( OF INDIAN RIVER COUNTY),
THE OWNER OF SUCH PROJECT, TO PAY THE COST
THEREOF: PROVIDING FOR 'r!-lE RIGHTS OF THE
HOLDERS OF SUCH BONDS AND !:'OR THE PAYMENT
THEREOF; APPOINTING A TRUSTEE AND PAYING
AGENT FOR 'rHE HOLDERS OF 'rHE BONDS; AUTH-
ORIZING THE SALE OF THE BONDS AND EXECU-
TION AND DELIVERV OF A TRUST INDENTURE,
LOAN AGREEMEl:JT, MORTGAGE AND SECURITY
A.GREEMENT, AND GUARAN1'Y AGREEMENT: MAKING
CERTAIN OTHER COVENANTS AND AGREEMENTS IN
CONNECTION WITH THE ISSUANCE OF THE BONDS:
AND PROVIDING AN EFFF.CTIVE DATE.
BE IT RESOLVED BY THE BOARU OF COUN'rY COMMISSIONERS OF
INDIAN RIVER COUNTY, FLORIDA:
SEC'rION 1. AUTHORITY FOR RESOLU'l'ION. This resolution
is adopted pursuant to Chapter 159, Part II, Florida Statutes,
and other applicable provisions of law (collectively, the "Act'').
SEC1'ION 2. DEFINI'rIONS, Unless the context otherwise
r euuires, the terms used in this resolution shall have the
meanings specified in the Trust Indenture ( the "Inden1·ure") and
Loan Agreement, Mortgage and Security Agreement ( the "Loan
Agreement") attached hereto as E:Khibits A and 13, respectively.
SECTION 3. FINDINGS. It is hereby ascertained, deter-
mined and declared as follows:
A. Indian River County, Florida ( the "Issuer"), is
authorized by the Act to make and execute financing agreements,
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cont.racts, deeds and other instruments necessary or convenient
for t .he purpose of facilitating the financing of certain
projects, including machinery, equipment, land, rights in land
anJ. other appurtenances and facilities rel.d.ted thereto, to the
end that ~he Issuer may be able to promote the economic develop-
ment of the State of Florida (tli ., "State"), increase oppor-
tunit.ies for gainful employment and otherwise aid in improving
the prosperity and welfare of the State and its inhabitants; and
to provide such financing through the issuance of industrial
development revenue bonds.
El. The acquisition, canst.ruction and equipment of a
120-bed nursing home, including any necessary utilities, by
Florida llealth e'acilities Corp. (of Indian River County), a
floridd. corporat.ion (the "Borrower"), the owner thereof, to be
located at the street address of 1310 37th Street, Vero Beach,
Floricla 33960, entirely within the unincorporated area of the
Issuer (the "Project"), is appropriate to the needs and cir-
cumstances of the community of the Issuer, and the location of
the Project within the jurisdictional territorial limits of the
Issuer "..Jill make a significant contribution to the economic
gro•..Jth of such community, will provide gainfui' employment and
will serve a public purpose by advancing the economic prosperity
and the general welfare of the State and its people,
C. Giving due regard to the ratio of the Borrower's
current assets to its current liabilities, the net worth and ear-
nings trends of the Borrower, coverage of all its fixed charges,
the nature of the business involved, its inherent stability, the
Guaranty Agreement described in Section 9 hereof, and all other
factors determinative of the Oorrower' s capabilities, financial
and otherwise, of fulfilling its obligations consistently with
the purposes of the A.ct, the Borrower is financially responsible
and full.y capable and willing to fulfill its obligations under.
the Loan l\greement, including the obligation to make payments
thereunder in the amounts and at the times required pursuant to
the terms of the Loan Agreement and the obligation t.o operate,
repair d.ncl maint.ain the Project, at its own expense; and t.he
Dorrower is desirous of fully performing all other-obligations
anJ responsibilities imposed upon it. pursuant to the provisions
of t.he Loan Agreement.
D. The Issuer is able to cope satisfactorily with the
impact of the Project, and all the necessary public facilities,
utilities and services that will be necessary for the
construction, operation, repair and maintenance of the Project
and on account of any increase in population or other circumstan-
ces cesulting by reason of the location of the Project within the
jurisdictional. territorial limits of the Issuer, will be provided
by the Borrower when needed.
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E. Adequate provision is made under the provisions of
the Loan 1\gree1nent for the operation, repair and maintenance of
the Project at the expense of the Borrower, and for the payment
of the princi!_)al of, premium, if any, and inter est on the Bonds.
F. The principal of, premium, if any, and interest on
the Bonds and al 1 payments required under the Loan Agreement and
the Indenture shall be payable from the proceeds derived by the
Issuer 1.mder the Loan Agreement., including the Loan Payments
required to be made by the Borrower in connection with its use
and operation of the Project, and the Issuer shall never be
required to (1) levy ad valorem taxes on any property within its
jurisdictional territorial limits to pay the principal of,
premium, if any, and interest on the Bonds or to make any other
payments provided under the Loan ,\greement a.nd the Indenture, or
( 2) pay the same from any funds of the Is suer other than those
derived by the Issuer under the Loan Agreement or the Guaranty
Agreement; and such Bonds shal 1 not constitute a lien upon any
other property owned by or situated within the jurisdictional
territorial limits of the Issuer.
G. The payments to be made by the Borrower to the
Trustee under the Loan Agreement will be sufficient to pay all
principal of, premium, if any, and interest on the Bonds, as the
same shall become due, and to make all other payments :required by
the Loan il.greement and the Indenture.
H. The costs to be paid from the proceeds of the Bonds
will be costs of the Project, within the meaning of the Act.
1. The interest on the Bonds will be eKempt from
federal income taxation under eKisting laws of the United States.
J. Industrial development
tionally solcl on a ne9otiated basis
petitive sale of the Bonds would in
better terms than a negotiated sale,
timing of such an offering and the
bond market.
revenue bonds are tradi-
and, consequently , a com-
all pr.obabili ty not produce
particularly in view of the
current instability of the
K. The Bonds are payable from the proceeds of the Loan
Agreement and, therefore, the Issuer does not have a direct
interest in the terms of sale. The Borrower has expressed its
unwillingness to undertake the risks and expenses attendant to a
public sale of the Bonds.
L. The complex nature of the security for payment of
the Bonds requires a lengthy review of the credit of the Borrower
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which would be financially impractical for bidders to undertake
in a c0mpetitive sale context.
~\. The Issuer expects to sell the Bonds at negotiated
sal~ shortly after their validation,
'.~. Notice of the proposed arloption of this resolution
,\I.is published at least once not later than 14 days prior to the
date rJf adoption of this resolution, in a newspaper of general
circulation in the area of the Issuer.
SECTION 4, FINANCING OF PROJECT AUTHORIZED, ~le
financing of the cost of the Project in the manner provided in
the Loan ~greement is hereby authorized.
SECTION 5. AUTHORIZATION OF BONDS. Obligations of the
Issuer to be known as ~Industrial Development Revenue Bonds,
Seri~s 1983 (Florida Health Facilities Project)," are hereby
authorized to be issued in an aggregate principal amount not
•~ xceed ing S 2,400,000, in the form and manner des er ibed in the
In.Jenture. The Bonds will be dated such date and mature in such
year:; .1nd amounts, will contain such redemption provisions and
will bedr interest at such rate or rates (not exceeding the maxi-
mum interest rate permitted by the Act), all as provided in the
Indenture.
SECTION 6. AUTHORIZATION OF EXECUTION AJ:-lD DELIVERY OP
LOAN ,\GREE:-lENT. The Loan Agreement, in substantially the form
<lttached hereto as Exhibit B, with such changes, insertions and
corrections as may be approved by the Chairman of the Board of
County Commissioners of the Issuer ( the "Chairman"), such appro-
val to be (_)resumed by his execution thereof, is hereby approved
by the Issuer, and the Issuer hereby authorizes and directs the
Chair:nan and Clerk of the Board of County Commissioners of the
Issuer (the "Clerk") to execute and attest under the official
seal. of the Issuer, the Loan Agreement, anu to deliver to the
Dorrower the Loan Agreement, all of the provisions of which, when
executed and delivered by the Issuer as authorized herein and by
the Oorrower duly authorized, shall be deemed to be a part of
this resolution as fully and to the same extent as if incor-
porated verbatim herein.
SEC'rION 7. TIWS'rt.::E AND PAYING AGEN'l'. The IGsuer hereby
.ippuint.s □arnett Danks Trust Company, N.A., Jacksonville,
Florida, as Trustee and Paying Agent with respect to the Bonds.
SEC'rI•JN 8. AUTl-fORIZATION OF' EXEClJ"l'fON /\ND DELIVERY -JF'
r:~Dl:::-ITURE. As security for the payment of the principal of,
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premium, if any, and interest on the Bonds, pro rata and without
preference of any one of the Bonds over any other thereof, the
Indenture, in substantially the form attached hereto as Exhibit
~. with such changes, insertions and corrections as may be
approved by the Chairman, such approval to be presumed hy his
execution thereof, is hereby approved by the Issuer, and the
Issuer her·eby authorizes and directs ~he Chairman and Clerk to
execute and attest under the official seal of the Issuer, the
Indenture, and to deliver to the 1.'rustee the Indenture, all of
the provisions of which, when eitecuted and delivered by the
Issuer as authorized herein and by the Trustee duly authorized,
shall be deemed to be a part of this resolution as fully and to
the same extent as if incorporated verbatim herein. The Issuer
does hereby provide in the Indenture the terms, conditions,
covenants, rights, obligations, duties and agreements to and for
the benefit of the holders of the Bonds, the Issuer, the Borrower
and the Trustee.
SECTION 9. APPROVA.L OF GIJA.RANTY AGREEMENT. The
Guaranty Agreement, in substantially the form attached hereto as
Exhibit C, with such changes, in!'lertions and corrections as may
be approved by the Chair:nan, such approval to be presumed by his
execution thereof, to be dated as of even date with the Indenture
and Loan Agreement, is hereby approved, and the Issuer hereby
authorizes and directs the Chairman and Clerk to execute and
attest un<ler the official seal of the Issuer, the Guaranty
Agreement.
SALE Of BONDS. The Donds may be sold at SECTION 10.
negotiated sale, all
time, for such price
conditions, consistent
in its discretion.
at one time or in installments from time to
or prices and upon such other terms antl
with the Act, as the Issuer may determine
SEC'rION 11. NO PERSONAL LIAl31LITY. No covenant, stipu-
lation, obligation or agreement herein contained or contained in
the Loan Agreement, Indenture or Guaranty Agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of
any member, agent or employee of the Issuer or its governing body
in his individual capacity, and neither the members of the 0oilrd
of Count.y Commissioners of the Issuer nor any officer of the
Issuer executing the same shall be liable personally thereon or
on the 13onds or be subject to <1.ny personal liabi 1.ity or accoun-
tability by reason of the issuance of the Bonus.
SEC'l'ION 12. NO ·mrrrn PAR'rY' 13ENEPICI/\RIES. Except as
herein or in the Loan Agreement, Indenture or Guaranty l\gt·eement
otherwise expressly provided, nothing in this r-esolution or in
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the L-:>an .\9reement, Indenture or Guaranty Agreement, expressed or
i.mp Lied, is intended or shall be construed to confer upon any
per zon or Eirm or corporation other than the Issuer, the
Jorro~er, the Guarantor, the holders of the Bonds anJ the Trustee
,:my ri;iht., remedy or claim, legal or equitable , under and by
r~a:..on ,:,f this resolution, the Loan Agreement, Guaranty Agreement
or Indenture; this r~solution, the Loan Agreement , Guaranty
~greement and Indenture intended to be and being for the sole and
exc lus i. ve benefit of the Issuer, the Dor rower, the holders from
t ime t o time of the Oonds and the Trustee.
SECTION 13. PREREQUISITES PERFORMl::O. All acts, con-
ditions ,-:ind things relating to the passage of this resolution,
·.1nd t.o the execution of the Loan Agreement, Indenture or Guaranty
Agr,.!e:n~nt, required by the Constitution or laws of the State to
hap~en, exi:..t and be performed by th e Issuer precedent to and in
the !)as sage hereof, and precedent to the execution and delivery
of ~he Lo an Agreement, Indenture or Guaranty Agreement, have
hap~ened, P.xist and have been performed as so required.
51::C 'rION 14. GENERAL AU1'HORITY. The members of the
Iloar.J of Coun t y Commissioners of the Issuer and the officers,
attarneys, engineers or other agents or employees of the Issuer
are hereby authorized to do all acts and things required of them
by t.his resolution, the Loan l\greement, Indenture or Guaranty
i\g rae;nent, or desirable or cons is tent with the requirements
hereof or such documents, for the full, punctual and complete
perf..irmance oE all the te1.·rns , covenants and agreements contained
in the uonds, Loan Agreement, Indenture or Guaranty Agreement and
this reso lution.
SECTION 15,
the r~suer is hereby
proceedin1s in the
Florida, to validate
Vl\LlDl\TION AUTIIORIZED. The attorney for
~uthorizeJ and directed to prepare and file
Circuit Court f o r Indian Riv~r County,
the Bonds in the manner provided by law,
sr.:c·rroN L6. ARDITRl\GE, The Issuer covenants that it
will not ~irect the Trustee to make any investments or acquiesce
in the making of any investments by the 'l'rus tee pursuant to or
unuer the Loan l\greement or the Indenture which coulrl cause the
Oonlis to be ".irbitrage bonds" within the meaning of Section
lOJ(c) of the Internal Revenue Code of 1954, as amended, and the
applicable regulations issued thereunder,
SECT !ON 17. RESOLU'l'ION CONS"r I'rUTES A CONTRACT. 'I'he
rssuer covenants ~nd agrees that this resolution shall constitute
a contract between the Issuer ~nJ the holders Erom time to time
of any of th e Oonus then outstanding, and that all (!Ovenants and
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agreements set forth herein and in the Loan Agre~ment and the
Indenture to be performed by the Issuer shall be for the equal
and ratablo benefit and security of all holders of the Bonds
without privilege, priority or distinction as to lien or other-
wise of any of the Bonds over any other of the i3onds,
SECTION 18, SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreeme_,ts or provisions herein con-
tained shall be held contrary to any express provisions of law or
contrary to the policy of express l aw , though not expressly
prohibit.:!d, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable
from the remaining covenants, agreements or provisions and shall
in no way affect the vislidity of any of the other pr-ovisions
hereof or of the Bonds issued hereunder.
SECTION 19. RE:PEA.LING CLAUSE. All resolutions or parts
thereof of the Issuer in conflict with the provisions herein con-
tained ~re, to the extent of such conflict, hereby superseded and
repealed.
SECTION 20. EFFECTIVE DA'l'E, This r-esolution shall take
effect immediately upon its adoption.
The foregoing resolution was
..,Scurlocjt ----.---who moved its adoption,
by Cornin1ss1oner Bowman anu,
offered by Com.missioner
The motion was secon<led
upon being put to a vote,
the vote was as follows,
Chairman Richard N, Bird
Vice Chairman Don, C, Scurlock, Jr,
Commiss.i.oner Margaret C. Bowman
Connnissioner Patrick n. Lyons
Commisstoner William C, Wodtke, Jr.
Aye
Aye
Aye
Aye
Abse nt
The Chairman
pas~ed and adopted this
thereupon declaceu the
19th:iay of October 1983.
resolution
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duly
' ..
Attest:
APPROVE~ AS TO FORM AND
LEGAL SUFF IENCY
(
DOARD OF COUNTY COMMlSSIONERS OF
INDIAN RIVER COUNTY, FLORIDA
By ~~/M£___c;;;
RICH~RD N. BI-R
Cha::.cman •· ,, ....
i3y~~
ENBUitf. ----
ey -\
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TRUST INDJ:;NTURE
INDIAN nIVER COUNTY, FLOnIDA
to
BARNETT BANKS TRUST COMPANY, N.A.
as Trustee
Dated , 1983 -------
Securjng ~2,400,000 Industrial
Development Revenue Oonds, Series 1983
{Florida Health Facilities Project-.}
Dated /4-l?-J',3 , 1983
/4<J~e-ic.~ f d-(d.:l_
[This document. also constitutes .:i.n assignment of mortgage.]
-E>CHIBI'r "A"
I
TABLE OF CONTENTS
Parti~s ~nJ Background Facts •
for:n of ilond .
Grant of Trust Estate
Section
Section
Section
Section
Section
3ection
Section
l.l.
l. 2.
l • J •
1 • 4.
1.5.
1.6.
l. 7.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Definitions . . . . .
Use of Words and Phrases ,
Date of Indenture and Bonds
Applicable Provisions of Law.
Captions . . . . . . . . .
Successors and Assigns of Parties Hereto
Limitation of Rights . . . . . . . . . .
ARTICLE II
DESCRIPTION, AUTIIORIZATION, MANNER OF EXECUTION,
AUTHENTICATION AND TMNSFER OF 130NDS
Section 2.l. Authorization of Bonds, Limitation on
Amount of Bonds and Purposes for Which
Bonds May be Issued •...••..
Section 2. 2.
Section 2.J.
Section 2. 4.
Sect ion 2. 5.
Sect ion 2. 6.
Sect ion 2.7.
source of Payment of Bonus; Security •
Description of Bonds ••....
Description of Additional Bonds
Bonds Mutilated, Destroyed , Stolen or Lost
Temporary Oonds ..
~xecution of Oonds
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J
• 11
• 13
• 20
, 20
21
• 21
21
• • 21
• 22
, , 22
• 23
, 25
• 26
27
, 27
TADLE OF CONTENTS (Continued)
Section 2.8.
Section 2,9,
Section 2.10.
Section 2, lL
Section 2. 12.
Exchange of Oonds
Transfer
Authentication
Cancellation and Destruction
Miscellaneous . . . . . . . .
ARTICLE III
AUTHENTICATION AND DELIVERY OF BONDS
. 20
. 28
. 29
. . . 29
. . 29
Section 3.1. Limitation of Principal !\mount of Bonds:
Bonds Secured • • • • • • • •••• 31
Section J. 2.
Section 3.3.
Section 3.4.
Section 4. l,
Section 4,2.
Section 4.3.
Section 4,4,
Section 4.5 .
Authentication and Delivery of Bonds .
Authentication and Delivery of Additional Bonds . . . . . . . . . . . . . .
Authentication and Delivery of Ad ditional Bonds for Refunding . . . . . . . . .
ARTICLE IV
ACQUISITION AND CONS'rRUC'l'ION OF PROJEC'r:
DISBURSEMENT OF FUNDS
Application of Bond Proceeds •
Prnject Funu
Requisitions
Retention of Requisitions
Surplus Funds
. 31
. . . J3
. . . 35
• 37
, , , 37
37
• 30
• 38
TABL~ OF CONTENTS (Continued)
ARTICLE V
COLLECTION !\ND APPLICATION OF PAYMENTS
AND REVENUES OP THE PROJECT:
!30ND FUND r REDEMP'rION ACCOUNT:
I NVESTMEN'l' OI:' l~UNDS
Section 5.1. Dond Fund
s~ction 5.2. Release of Funds Upon Payment of Bonds •
S~ction 5.J. Trustee as Paying Agent and Registrar
. 40
41
41
Sect.ion 5,4. Payinents Due on Sundays and Holidays • • • • 41
Secti~n S.S. Security for Funds ••
Section S.G, Investments of Project Fund
Section 5.7. Investment of Money in Bond Fund
Section 5.8. Trustee's Responsibility
Section 5.9. Arbitrage Provision
41
42
42
42
43
Section 5. 10. Investment Through Trustee's Bond Department 43
ARTICLE VI
COVENANTS BY TH~ ISSUER
Section 6.1. To Pay Principal, Premium and Interest of
Bonds . , ••
Section 6.2. Acyuisition of Project
Section 6,3, Cooperation with Borrower
• 44
44
44
Section G, ➔, Covenants and Representations 44
Section 6.5. Right to Finance Project; Instruments of
Further Assurance; Recording of Instruments 44
Section 6.6. Rights Under Loan Agreement 45
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TABLE OF CONTE~TS (Continued)
Section 6.7. Insurance, Repairs and Taxes ..• , • • • 45
Section 6.B. Performance of Covenants by Issuer and
Borrower. . . . . . . .
Section 6.9. Inspection of Projec~ Books
46
46
Section 6.10. No Vacancy in Office of Trustee 46
Section 6.11. Issuer Will Not Extend Time of Payment of
Bonds Without Consent of Bondholders • • . 46
ARTICLE VII
POSSESSION, USE, DESTRuc·rroN I\ND
CONDEMNATION OF PROJECT
Section 7.1. Indenture Subject to Rights of the
Borrower • , ♦ I ♦ • • I I ♦ ♦
Section 7.2. Condemnation or Destruction of or Damage
to the Project
Section 7.3. No Liens ... . . . .
ARTICLE VI Ir
REDEMPTION o~-Bo:ms
Section 8.1. Exclusive Procedure
Section 8.2. Limitations
Section 8.3. Notice •.
Section 0.4. Redemption
ARTICLE: IX
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Section 9,1. Events of Default
Section 9.2. Remedies on Default
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47
• • 4 7
48
, , 40
• 48
49
51
51
T,\OL.~ ,)F CO~TE~TS (Continued)
3ection 9.J . Sale of Project • 54
S ect.ion '). -L Rights antl Remedies of Trustee on De fa ult
under Loan Agreement • • • • • • . 55
Section 1.5. Rights and Remedies of rc ustee in the Event
of aankruptcy, Etc. • 56
Se ction 9 .6. Rights of Borro wer in Event of Default
by Issuer und er t his Indenture ••• . . . 56
3ecti.on 9 .7. Applicatio n of Money Co llected . . . . . 56
Se-::tion 9.~. Bondhold e rs Need Not be J oined 5 7
S ect.ion 9.9. Right of l3o ndholders to Direct Proceedings 57
Sect.ion 9.10. Limitat ion on Suits by IJonc.lholders 5 7
Sect.ion 9.11. Rem ed ies Cumulative . . 58
Secti on 9,12. Delay or Om i ssion Not a Wa i ver . 59
ART I CLt:: ){
TliE TRU S'rEE:
Sect.ion 10. 1. Certa in Du t ies and Responsibilities . 60
Sect ion to. 2. Not jce of De fau lts 61
Section 10.J. Certa in Righ ts of 'l'rus tee 61
Section 10.~. 'trustee not Responsible for Recitals and
Other Matters 63
Section 10. 5, May Hold Bonds . . . 63
S ect ion 10,6 . Right of •rrustee to Perform Ce rtain Acts
on Fa ilure of Issuer . . 64
Sec tion 10.7. Com pensa tion o f •rrus tee; Lien . 64
3ect.ion 10.8. Resignation and Removal; Appointment of succ essor . . . 64
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Tl!IS [NDENTURC, dated ~---,----,--1903, is between
I::or.\:~ :UVER COUNTY, a political subdivision of the St.ate of
Fl..:iri.-i.\ (tne "Issuer"), and Bi\.RNETT BANKS 'l'RUST COMPANY, N.A., a
n~tt0nal ~an~in; association having its principal office and
pl4=e of business in the City of Jacksonville, Florida (the
"·rr·J~Lee" J, ati Trustee.
BACKGROUND FACTS:
l. The Issuer is authorized under Chapter 159, Part II,
flor1Ja 3tatutes, and other applicable provisions of law, and all
iut.ure l~~s supplemental thereto or amendatory thereof, to make
and ~xecute financing agreements, contracts, deeds and other
inscruraents necessary or convenient for the purpose of facili-
t.::i.ti:1-; the financing of certain projects, including machinery,
e~uip~enc, land, rights in land and other appurtenances and faci-
lici~s ~elated thereto, to the end that the Issuer may be able to
pr'J::1ot.-~ the economic development of the State of Florida ( the
"5tc1te" :is hereinafter Llefinet.l), increase opportunities for gain-
!:'Jl ?::i,)lu'jT:lent. and otherwise aid in improving the rrosperity and
~el~~re ~f the State and its inhabitants; and to provide such
financinJ through the issuance of industrial development. revenue
b..:,nJ:,,;.
2. The Issuer has duly authorized as a project the
fin.:inci.n-J of tne acy_uisition, construction and equipment of
inlu:,,;t.rial facilities consisting of a 120-bed nursing home,
inclu,lin1 any necessary utilities, all within the jurisdictional
territorial limits of the Issuer (the "Project" as hereinafter
defined), t.o be acquired, constructed and equipped by and at the
exrense of Florida HealLI1 Facilities Corp. (of Indian River
Counc.y), the "Oorrower," pursuant to a Loan Agreement, Mortgage
anJ S.:curity Agreement, dated the date hereof, entered into by
3nd bee.ween the Issuer and the Borrower (the "Loan Agreement" as
herein.:ifter defined); and the Issuer has further authorized the
issuance ..1nd sale of $2,400,000 .:iggregate principal amount of its
In,Ju3tr1al. Development Revenue □onds, Series 1983 (Florida Health
Facilit.i~s Project), the "!3onds," the proceeds of the sale of
which will be loane~ to the Corporation to pay the costs of
ac4u1rin1, ~onstructing and equipping the Project, as such costs
ilre hereinafter defined.
J, The Issuer, at a meeting Lluly convened and held
after not. less than 14 days public notice, has duly authorized
thd execution and Llelivery of this [ndenture and the issuance
hereunder oft.he Bonds upon and subject to the terms and con-
.Jiti,;ns i\,?reinaf.ter set forth, for the purpose of ,nore udequately
securing payment of the princiraL of and premiu1n, if any, and
interDst ~n the Bon~s.
4. The □onds to be issued hereunder and the Trustee's
authentication certificate are to be substantially i~ the
following forms, respectively, with appropriate omissions, inser-
tions and variations permitted or authorized as hereinafter provided:
[FORM OF FULLY REGISTERED BOND]
:-Io. ,t-------
UNI'rED s·r1\'rEs OF AMERICA
STATE OF FLORIDA
INDIAN RIVER COUNTY
$ _____ _
r:mus·rRI.\L DEVELOPMENT REVENUE BOND, S8RIES 1983
( ~,LORI DA HEAL'rti FACILIT!EP PROJECT)
KNO~ ALL MEN BY THESE PRESENTS, that Indian River County,
rlori.Ja (the "Issuer"), a political subdivision of the State of
2lor1Jd, for value received, hereby promises to pay to
, or registered ------------------------,-:-----ass11 n s, Qn --~-~--~' , upon the presentation and
:iurr-=?ndar hereof, the principal sum of
DOLLARS
sole l'/ fro1n the revenues and receipts of the Issuer from or in
connection with a Loan Agreement (hereinafter defined), and to pay
solely from such revenues and receipts, interest on the unpaid
pr1ncipal oalance from _______________ , at the rate of
786 of the interest ()er annum then quoted by Barnett Bank of
Cenr.r::1L ::'lorida, !:LA,, Orlando, Florida, as its prime rate on
co;:unerci..il loans in effect from time to time, computed on a daily
basis, •1tili2.ing a 360-day year com()osed of twelve 30-<.lay months,
Oeginning on _________ , the principal of and
inr.ercst ~n this Dond shall be payable in consecutive quarterly
i.nst.3llments of $-----=----on the first days of
of ~ach year, and the balance at the maturity of this tlond.
Prior co-----,-------.,--' interest only shall be paid on this
aond in consecutive quarterly installments on the first <.lays of
of each year.
The pcincipal of and riremium, if any, and interast on
this DonJ are payable in any coin or currency of the United
St::ites •>f ,,meric::a which, at the respective times of payment, is
Le:,-ll tenJer for the payment. of public and priva te debts. The
flnal 2ayment of principal of and premium, if any, on this Bond
ar~ p,3yable at the Corporate Trust Office (as defined in the
lndantur<? hereinafter mentioned) of Oarnett [lanks Trust Company,
~.,\. {the ''Trustee") i.n Jacksonville, Floriua, or at the office
Jesi0natcd for such payment of any successor thereof, upon
surrender of this Bond. At all other times, the installments of.
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principal of and interest on this Band, when due and payable,
shall be paid to the registered owner hereof by che~k or draft
mailed, or wire transfer made, to such person at his address last
appearing on the Bond Register. 1'he Trustee shall mai~tain
accurate records of the payment of the installments of the prin-
cipal of, premium, if any, and interest an this Bond.
This Bond is one of a duly authorized issue of Bonds of
the Issuer designated as "Industrial ,evelopment Revenue Bonds,
Series 1983 (Florida Health Facilities Project)," the "Bands,"
issued in the aggregate principal amount of ~2,400,000 under and
pursuant to the Constitution and laws of the State of Florida,
particularly Chapter 159, Part II, rlorida Statutes, and other
applicable provisions of law, and a resolution duly adopted by
the Board of County Commissioners of the Issuer on
1983, as supplemented. The Bonds are issued under and equally
and ratably secured by a Trust Indenture by and between the
Issuer and the Trustee dated as of the date hereof (the
"Indenture"). The Oonds are issued for the purpose of financing
the cost of the acquisition, construction and equipment of a
120-bed nursing home, including any necessary utilities (the
"Project"), to be acquired by and at the ex p ense of Florida Health
Facilities Corp. (of Indian River County), a Florida corporation
(the "13orrower"), within the jurisdictional territorial limits of
the Issuer under and pursuant to a Loan Agreement, Mortgage and
Security Agreement between the Issuer and the Dorrower dated as
of the date hereof (the "Loan Agreement"). Subject to certain
conditions stated in the Indenture, additional bands may be
issued in one or more series for the purpose of financin.g the
cost of completion of the Project or the cost of additions and
improvements thereto.
Copies of the Indenture and the Loan Agreement are on
file at the Corporate Trust Office of the Trustee and reference
is made to the Indenture (and all indentures supplementary
thereto and amendatory thereof) and the Loan Agreement for the
provisions relating, among other things, to the terms and
security of the Bonds, the collection and disposition of the
revenues and receipts of the Issuer from or in connection with
the Loan Agr~ernent, the custody and application of the proceeds
of the 13o nds, the rights and remeJies of the holders of the
Bonds, the rights, d~ties and obligations of the Issuer, the
Bar.rower and the ·rrustee, an.cl the modification or amendment of
any of the foregoing documents.
The Oonds and any a<lditional bonds issued undar and se-
cured by the Indenture ~re anJ will be secured, to the extent
provided in the Indenture, by il pledge of m,d lien upon. the pro-
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-::eeds .)f ~.!1e i3onds and the income fr.om investment of funds under
and co the extent provided in the Indenture, and the revenues and
rccr.:iipts ,lerived by the Issuer from or in connection with the
rep.iy;;icnt ::if .i loan ( the "Loan") from the Issuer to the Borrower
for the iinancing of the Project, including payments received
under the Loan Agreement. The i3onc1s are additionally secured by
.1 security interest in and a mortgage upon the Project, all as
:norc p,uticu l.arly set forth in the Indenture. [~ull payment of
the pri~ci~al of and premium, if any, and interest on the Bonds
has been :ully guaranteed by Clark D0::velopment, Inc., Jack A.,
~l~r~, Christopher A, Clark and Martin B. Clark (collectively,
the "Guar.'.l nt:ir"l pursuant to a Guaranty Agreement dated as of the
dat.e hereof, between the Guarantor, the Issuer and the Trustee.
:;ei:::"'ler this Bond nor the premium, if any, nor the interest
there0n shall. be or constitute a general obligation of the Issuer
or ,-i lien uron any property owned by or situated within the
JurisJicL~onal territorial limits of the Issuer, except upon the
!)rop~rti..~s secured under the Indenture. The holder of this 13ond
shall ~~t. i1ave the right to compel any exercise of the ad valor.em
taxing power of the State of Florida or of any political sub-
.livision of such State to pay this Bond or the interest. thereon.
Th~ Issuer shall not be obligated to pay this □ond or the
i.;-it<.?rest thereon except from the proceeds of the Bonds and
invr:i~t.nent. income under the Indenture ,1nd the revenues and
receipts Jerived from the Loan Agreement.
The Bonds are issuable in the form of fully registered
3onJs, ~ithout coupons, in denominations of $1,000 or any
inte')r.:il r.mltiple of ~1,000. The holder of any Bond or 13onds may
surr~nu.?r t.he same, at the Corporate Trust Office of the Trustee,
i~ exchan1e for an equal aggregate principal amount of fully
registerl.?J Done.ls of any authorized denomination, in the manner,
subj~ct to the conditions and upon the pa~nent of the charges
~rovided in the [ndenture. In like manner, subject to such con-
diLiC>n5 and upon the payment of such charges, the holder of any
bond may !HJrrender the sarne (together with a written instrument
of transfer satisfactory to the Trustee duly executed by the
re~istered owner or his attorney duly authorized in writing), in
ex.chan3e for ;:i,n equal aggrega.te rrincipal amount of full.y
re1ist~rad ilonds, without coupons, of any authorized denomina-
tions, registered in the name of the trannferee,
'l'he .JanJs are subject to mandatory redemption, in some
circumstances with a rremium, only as follows: (a) the Oonds
shall be redeemed by the Issuer as a whole on any date at the
price of the unpaid princi!:)a l. amount thereof plus accrueJ
i~tecest to the Jate fixed for reJemption, upon the discon-
tinu.ince iJy the Borrower of its operations at the ['roject and the
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exercise by the Borrower of its option to accelerate payment of
the entire unuaid balance of the Lo~n upon the occurrence of any
of the following events; {l) all or substantially all of the
Project or the site thereof shall have been damaged or destroyed
and the Borrower shall determine that it is not practicable or
desirable that the Project be rebuilt, repaired or restored: or
(2) all or substantially all of the Project or the site thereof
shall have been condemned or such use or control thereof shall
have been taken und~r eminent domain ~roceedings as to render the
Project unsatisfactory to the Borro~~r for continued operation:
or (3) the Borrower reasonably determines that burdens or liabi-
lities shall have been imposed upon the aorrower with respect to
the Project or the operation thereof, for the purposes expressed
in the Loan ~greernent, which shall be outside the control of the
Borrower and which shall render such operation uneconomic or
unprofitable: or {4) the Borrower reasonably determines that
technological or other changes shall have occurred which shall
render the operation of the Project, for the purposes expressed
in the Loan Agreement, uneconomic or unprofitable; (b) the Bonds
of this issue shall be redeemed by the Issuer on any date at the
price of the unpaid principal amount thereof together with
accrued interest to the date fixed for redemption plus any appli-
cable premium as is fixed by the Loan Agreement, upon the man-
datory prepayment by the Boi:-rower upon the Loan to the extent of
the unpaid principal of and interest on the outstanding Bonus of
this issue as a result of the occurrence of a Determination of
T a xability (as defined in the Indenture); (c) the Bonds of this
issue shall be redeemed by the Issuer in part, by lot, from money
transferred from the Project Fund to the Redemption Account of
the tlond Fun<.l as provided in the Indentllre and the Loan
Agreement, to the extent that proceeds of the aonds exceed the
cost of the Project, at the price of the unpaid principal amount
thereof together with accrued interest to the date fixed for
re~emption; (d) the Bonds of this issue shall be i:-e d eerned by the
Issuer, as a whole or in part, at any time, by lot if Less than
all, upon the optional prepayment of the Loan by the Oorrower, at
the price of the unpaid principal amount of the aonds to be
redeemed, plus accrued interest to the <late of redemption,
without premium; and (e) the !3on<.ls of this issue are subject to
r.e~lempt.ion, at the option of the hol<.lers thereof, as a \</hole oi:-
in part, on September l, 1988, and un September l in eacl1 fi f th
yeur there,1fter, at the price of the unpaid principal a mount ,:if
the Bond s to be so redeemed, plus accrued interest to the date of
redemption, without rremium, by such holders filing written
notice of the exercise of such option at the Corporute Trust
Office by June l of the applicable redemption year.
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rhe Bonds of this issue are subject to redemption, at
the? ,,rti.,rn ..:,f the Issuer, as a whole or in part, by lot if less
than ·,11, rm the date 5 years after the date of the Loan
.\gr<J<J;.ient lnd on any date thereafter, at the price of the unpaid
prin=iral ~mount of the Bonds to be redeemed, plus accrued
interl.!$t to the date of redemption, without premium.
~ny such redemption, either in whole or in part, shall
be :n-iJe upon at least 30 days' and no more than 60 days' (except
w1.t.!1 :'.L!spect to redemption at the optio11 of the holders of the
i3011Js) :1r1.or notice in the manner and upon the terms and con-
J iti~ns provided in the Indenture. If this Bond or any portion
ther:~of shall have been duly called for redemption and payment of
':.hl.! ::-e.Jcmr,tion price, together with unpaid interest accrued to
the Lit-! ::i:<e<i for redemption, shall have been made or provided
for, 11 l .15 more fully set forth in the Indenture, interest on
thi3 BonJ or such portion shall cease to accrue from such date,
and ::r:.Jm .:1n<l .:ifter such date this Bond or such portion shall no
lon·~.:?r ·.Je •?ntit.led to any lien, benefit. or security under the
!n..l<'.!nt:.1rc, <1nd the registered owner hereof and thereof shall have
no riJhts ~xcept to receive payment of such redemption price and
unp:\iol i.:-iterest accrued to the date fixed for redemption. If
less than the entire principal amount of this Bond shal l be
c.:i.lled ::or redemption, the holder hereof shall, on the redemption
<lat•~, 'iUo,nit this Bond to the Trustee for notation hereon of the
port1.□n of ~he unpaid principal amount so redeemed.
This ~ond shall not be entitled to any benefit under the
Indenture or be valid or become obligatory for any purpose until
this BonJ shall have been authenticated by the execution by the
;:1anual si<Jnature of a duly authorizeu signatory of the Trustee of
the Trustee's certificate of authentication hereon.
:lo covenant or agreement contained in this Bond or the
InJonture ~h<lll be deemed to be a covenant or agreement of any
o[ficLal, agent or employee of the I ssuer in his individual
c.:1p.Jcity, and neither the members of the Ooard of County
Comnissioners of the Issuer nor any official executing this Bond
shall ~o liable personally on this Bond or be subject to any per-
son<1l l i.,:ibi lity or accountability by reason of the issuance of
this iJond.
To the extent permitted by and as provided in the Inclen-
turo, rno~ifications or alterations of the Indenture, or of any
inuentun~ supplemental thereto, and of the riqhts and obligations
of tne Issuer and of the holders of the Aonds in any particular
1nay b~ maJe with the consent of the narrower and (a) the holders
of not l~ss than 51% in aggregate principal amount of the Bon~s
then outstanding under the Indenture, and (b) in case less than
all of the Bonds then outstanding are affected by the modifica-
tions or amendments, the holders of not less than 51% in aggre-
gate principal amount of the Bonds so affected then outstanding:
provided , however, that if such modification or amendment will
by its terms not take effect so long as any specified Bonds
remain outstanding, the consent of the holders of such Oonds
shall not be required and such Bonds shall not be deemed to be
outstanding for the purpose of any calculation of outstanding
Bonds under the Indenture; provided, further, that no such modi-
fj_cation or amendment shall be made which will reduce the percen-
tage of aggregate principal amount of Bonds, the consent of the
holders of which is required for any such modification or
amendment, or permit the creation by the Issuer of any lien prior
to or on a parity with, the lien of the Indenture upon the pro-
ceeds of the Oonds, the investment income under the Indenture,
the Project or the receipts and revenues of the Issuer from or in
connection with the Loan Agreement. or which will affect the
priority, time, amounts and currency of payment of the principal
of or premium, if any, or interest on the Bonds without the con-
sent of the holders of all such Bonds then outstanding affected
by such modification or amendment. Any such consent by the
registered owner of this Bond shall be conclusive and binding
upon such registered owner and all future registered owners of
this Bond irrespective of whether or not any notification of such
consent is made upon this Bond.
This Bond is and has all the qualities and incidents of
a negotiable instrument under the laws of the State of Florida.
rt is hereby certified and recitgd that all acts,
conditions and things requirec.l by law and the Indenture to exist,
to have happened and to have been performed precedent to and in
the issuance of this Bond, exist, have happened and have been
performecl; and that the issuance of this Bond and the issue of
which it forms a part ,).re within every applicable debt and other
limit prescribed by the laws of the State of Florida.
IN WITN8SS WHEREOF, the Issuer has caused this Bond to
be si<Jned by the manual or facsimile signatnre of the Chairman
of its 13oard of County Commissioners and attested and counter-
signed by the manual or facsimile signature of the Clerk of such
Board, and its seal or a facsi1nile thereof to be impressed,
imprinted or otherwise reproduced hereon, all as of the day
of _______ , 198"3. ---
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INDIAN RIVER COUNTY, FLORIDA
( $ L:,\L)
Chairman, Board of County
At-:.•.!St~u a.nd Countersigned : Commissioners
~ldr~. JoJrJ of County
...:J;:i:n1,; stoner s
[FORM OF TRUSTEE'S CGRTIFICATE
OP AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
~his Bond is one of the Indian River County, Florida,
InJu~trtal iJ~velopment Revenue Bonds, Series 1983 (Florida Health
2aciliti~s Project}, described in the Indenture.
DARNETT BANKS TRUST COMPANY, N.A.,
Trustee
By
---:A-u--;t:-;h::--o':'"""'.r:-'!i-:z:-e:-d~~S:-,i-g:-n:-a~t-o_r_y _______ _
[FORM OF V/,LIDATION STA'rEMEN"r]
VALIDA'rioN s·rA·rEMEN'1'
rnis □and is one of an issue of 13onds which were vali-
dat~~ by judgment of the Circuit Court for Indian Rivec County,
Fl~riJ~, ren~ere~ on ________ , 1983.
Chairamn, Board of County
Co,o:niss ioners
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[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received, the undersigned sells, assigns and
transfers to
PLEASE INSERT SOCIAL Sl::CURITY OR O'fHER IDENTIFYING ~U.1BER OF
ASSIGUEE
the within bond and does hereby irrevocably constitute and
appoint the Trustee as his agent to transfer the bond on the
b ooks kept for registration thereof, with full power of substitu-
tio n in the premises,
Dated:
Payment Date
13y
(FORM OF PARTIAL REDE MPTION RECORD]
PARTIAL REDEMPTION PAYMENTS
i?rincipal
Amount Paid
-10-
l3alance of
Principal Unpaid
Authorized
Officer of
Trustee
5. The Issuer has represented and Joes hereby represent
th~t it ~as full power and authority to issue and sell the Bonds,
to i.J.:in th~ proceeds to the Borrower, to pledge the receipts from
'lnJ t:1 •.:onnection with the Loan Agreement and to assign its
1n:.er•1sts under the Loan Agreement and the Note as security for
th~ :k>nJsi .1nd that the Issuer has taken all action required by
l~~ to 1uthorize its officers to execute, acknowledge and deliver
this ra:.lcnture and to execute and issue the Bonds.
o. All things necessary to m~ke the Bonds, when authen-
tic.:it~d ,:,y ti1e Trustee and issued as provided in this Indenture,
th~ ·.·.-1 l 1 J, binding and legal obligations of the Issuer according
to t:1e import thereof, and to make this Indenture a valid
•lqret?.,1ent of the Issuer, in accordance with its terms, and a lien
oa -::1e .:mct·-1aged property and a valid pledge of the proceeds
deri.•J•~d from the Loan A3reement, have been done and performed,
1.nJ ':.'.h? ,:r•.?ation, execution and delivery of this Indenture, and
the :re3tiJn, execution and issuance of the Bonds, subject to the
t~r~s ~er~of, have in all respects been duly authorized.
7. The Trustee has duly accepted the trusts created by
thi3 :~Jenture and as evidence thereof has joined in the execu-
ti:in i1.:!rcof.
GilAWI' Or-' TRUST ESTA'rl:::
l, Por and in consideration of the premises, the mutual
coven3nts of the Issuer an~ the Trustee and the purchase of the
donjs ·.)1 t.he holders thereof and in order to secure the payment
of the ~rincipal of, premium, if any, and interest on the Bonds,
accocji.ng to their tenor and effect, and the performance and
ui.Jser-1,J.ace iJy the Issuer of all the covenants expressed or
implit3d herein and in the Donds, the Issuer does hereby grant,
bar3~i~. sell, convey, assign, ~ortgage, grant a security
inter~st. in and pledge to the Trustee and its successors and
assi~ns forever all of its right, title and interest in and to
ti1e f:J l lJ•,..i.ng ( the "Trust Estate"), upon the terms herein for the
equal ~nJ proportionate benefit, security and protection of all
nolJers and owners of the nonds, without privilege, priority or
Jistinction .:1s to the lien or otherwise of any of the 13onds over
.:iny ,Jths.!r :l~n<ls:
(a) Th~ ,-Jote.
(h) The Loan /\grcement (except for any rights of the
rs;;uer ~m.ler the Loan /\greement necessary to protect the Issuer's
intecests in connection with the performance of its obligations
un,J,!r ~he Lo.:in Agreement .:incl the Indenture, incluc.ling the right
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of indemnity provided in Section 5.6 thereof), including the
Mortgage and Security Interest granted thereby, and in particular
the payments and other amounts cterived by the Issuer. hereunder.
(c) The real and personal property comprising the
Project, together with all additions and improvements thereto
hereaf~er made or acquired, with the tenements, hereditaments,
appurtenances, easements, rights, privileges and immunities
thereunto belonging or appertaining.
(d) The proceeds from the sale of the nonJs and the
income earned from the investment of such proceeds and any other
funds hereunder subject to the applications of such proceeds in
accordance with the provisions hereof and the Loan Agreement.
(e) ~ny and all other real or personal property of
every kind and nature from time to time hereafter by delivery or
by writing of any kind conveyed, mortgaged, pledged, assigned or
transferred, as and for additional security hereunder by the
Issuer or by anyone in 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.
Provided, however, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal and
premium, if any, of the Bonds and the interest due or to become
due thereon, at the times and in the manner :nentioned in the
Bonds, according to the true intent and meaning thereof, and
shall cause the payments to be made into the ~uncls as requireu
hereunder, or shall provide, as permitted hereby, for the payment
thereof as specified in Section 12.1 hereof, and shall well and
truly keep, perform and observe all the-covenants and conditions
of this Indenture to be kept, performed and observed by it, and
shall pay or cause to be paiJ. to the •rrus tee c1ll sums of money
due or to become due to it in accordance with the terms and pr-o-
visions hereof, then upon such final payments or provision for
such rayments by the Issuer, this Indenture and the rights hereby
granted shall cease, determine and be void; otherwise this
lnJ.enture shall be and remain in full force and effect.
ARTICLI:: [
01::rINITJ.ONS AND OTIIER PROVISIONS OP
GENERAL APP LICATION
Section 1.1 Definitions. In add ition to the words and
ter::is t.?l s e ·..,here defined in this Indenture, the following word s
a nd te rms as used in this Indenture shall have the following
;ne a.nin1s unlt.?ss the context or use indicates another or diffe rent
~ean1~1 o r intent:
"ii.ct" s hall mean Chapter 153, Part II, florida Statu t es,
and J ther applicable p rovisions of law, and all future ac ts
.:;uppl~.:ient.J.l the reto or amen datory thereof.
",\dditional 13onds" shall mean any Bonds issued pursuant
t~ Sec~iJns 2 ,➔ and J,3 of this Indenture.
"Ac.lministration Expenses" shall rnean the r-ea sonable and
n.::c~ssar1 expense s incurred by the Is su er and the ·rrustee pur-
su~nt to the Loan Agreement and this Inden tur-e, and the compen-
3ation ~nJ expenses paid to or incurred by the Trustee or-Paying
A:_ient ~nJer this Inde nture, i ncluu ing but not li.nited to all
expenses lnd taxes, if any, applicable to or arising fr-om any
transfec ~f title or-any creation or transfer-of a ny lien or
=securit:t interest provided for in oc contemplateu by the Loan
,\gr-~e:n t.?nt or this Inde nture a nd any inter-est and pena l ties f or
no:1 ~,:iy:1ent ,)c ,lelay in the payment o f ;iny such ta xes, which s hall
not a..ivP. b een paid out of the procaeds from the sale of the Bo nus
or ~y tha ilorrower.
"Affiliates of the Bor-rower" shall mean Per-sons
controll i.ng, contolle<l by or under-crn:imon control with the
:lorr~wer.
"Au tho rized □orr ower Rep rasentati ve" sha ll me an any per-
$On ,lt the time designated to act on behalf of the Borrower by a
.. ..,rittcn c er tificate , signed o n behalf of the nor-rower by its
President or o ne of its Vice Presidents or its Tr-easurer, and by
its 3ecretilry or one o f its Assistant Secretaries, or its
man::i J ill'J partner, whiche ver is applicable, and furnisheLl to the
[sduer an<l t he Trustee, cont~i ni ng the specimen signature of each
such pt.?rson.
"Uo ndho lder " or "holder o f the Bonds" o r "ho l der" sha ll
:nean the registered o,-1 ne r of any regi stered Bon.J .
"Bonus" shall me an the Cnclustrial Devolopment !1evenu c~
llon:JG,, Se ri es 1983 (PloriJa llealt.h Fi.lcilities Project), of the
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Issuer issued pursuant to this Indenture, and any Additional
Bonds.
"Bond Fund" shall mean the fund establishe(~ as a trust
fund under this Indenture for the payment of the principal of anu
interest on the aonds.
"Oond Purchase Agreement" shall mean any agreement
entered into by the Issuer and a purchaser in connection with the
sale and purchase of the Bonds authorized and issued pursuant to
this Indenture.
"Oond Register" and "Bond Registrar" shall have the
respective meanings specified in Section 2,9 of this Indenture.
"Bond Year" shall mean the period beginning with each
and extending through the next succeeding
"Uorrower" shall mean Florida Health Facilities Corp.
(of Indian River County), a Florida corporation.
"Code" shall mean the Internal Revenue Code of 1954, as
amended, and the rules and regulations promulgated thereunder.
"Corporate Trust Office" shall mean the office of the
Trustee, at which at any particular time its corporate trust
business shall be principally administered, which office as of
the date hereof is located at 801 Riverside ~venue, Jacksonville,
Florida 32204,
"Cost," when used in connection with the Project, shall
be deemed to include, whether incurred prior to or after the data
of the Agreement, (a) expenditur,'!s or obligations of the Issuer
or the Borrower incurred for the acquisition, construction and/or
equipment of the Project, and all other expenses incidental
thereto including, but not limited to, the costs of issuance of
the Bonds; (b} interest on the Bon~s prior to and during
construction; (c) the cost of contract bonds and of insurance of
all kinds that may be required or necessary during the course of
construction which is not paid by the contractor or contractors
or otherwise provided for; (d) the expenses for test borings,
surveys, test and pilot operations, estimates, Plans and
Specifications and preliminary investigations therefor, and for
supervising construction, as well as for the performance of all
other duties required by or consequent upon the proper erection,
construction or install.at.ion of the Project; (e) compe nsation and
expenses of the 1'rust:ae, Legal, accounting, financial and
printing expenses, fees and all other •~Xpenses incurred in con-
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nect. i'..ln ,.,.it!, the issuance of the Donds or the transactions
ti:1•:inccd t:h~reby: (.f) all other costs ....,hich the Issuer or the
dorrawe r shall be re~uired to pay under the terms of any contract
0r contr~cts Eor the acquisition, construction and equipment of
the i'r.::>jt?ct: (q) payment o f the taxes, documentary stamp taxes
and i:1tan~Lbl.~ taxes, if any, to the extent such taxes may b e
l,;i·-,i:ul.l·t .luti, ,ciss essments and other charges, if any, that may
b~co:,e p.l y,'lble with respect to the Project or reimbursement
tt1-~r eo .t: i:: pa i<.l by the Issuer; (h) payment of expenses incurred
in ~nfo rci n~ any remedy against any contractor or subcontractor
in rl'.?spect of any default under a cc'ltra ct rela ting to the
?r~~~c::.: and (i} any sums required to r e imburse the Issuer or the
Oorro•,1er ror advances made by any of them for any of the above
itc~s, ~r ~or any other costs incurred and for work done by any
,:i f ::.ht!.a, ..i hic~ are p roper l y chargeable to the Project.
":.later;;iination of Taxability" shall mean a Determination
of ~~x ~b i lity as spec if ied in Sect ion 10.2 of the Agreement.
'' :.:.,u ipment" shnll mean. a ll personal property consti-
t~t1.n .J tny !)O rt.ion of the Project, incl uding the furnishings,
::lacninery, equipment and oth er t angible p erso na l p r operty, as
.~or~ pa rti cula rly de scri bed in Exhibit "A" her€to.
"L:ve nt of Default" sha l l me an any Event of Defau lt spe-
=ificc.J in Sect i on 9 ,1 hereof .
"Guaranto r" shall menn, jointly and severally, Cla rk
llevcL::i~ .. teni:., Inc., Jack A, Clark, Christopher /\. Clark and Martin
J. :::L1rk.
"Guaranty" shall mean t he Gu ara nty Agreement, date d as
of the .lat13 hereof, between the Gua rantor , the Issue r and the
·~r~st~~. ?U r sua nt to which the Guarantor has g uaranteed full and
prompt pa.yr.lent of the principal of , premium, i f any, and interest
on ti\e donJ s .
"tnc.Jenture" shal l me an this Trust Inden tu re as amended
or su;,plcmented from time to t ime in acco rda nce with the terrns
hereof .
"tnvestment Securities" shall mea n any of the following
securities, Lf and to the extent the same are at the time legftl
for i.n•,,~st::wnt of t he funJs of the Issuer:
(~) any bonds o r other obliga tions which as to prin -
cip~l ~nJ inte rest constitu te ,IL ~ec t obligations of, or are
un.canuiti.onal ly gu.:ir anteec! by, the United Stat es of l\meric~,
-15 -
including obligations of any of the federal agencies set forth in
clause (b) below to the extent unconditionally guaranteed by the
United Stutes of America;
(b) obligations of the Federal National Mortgage
Association, Government National Mortgage Association, Federal
Financing Bank, Federal Intermediate Credit Cor~oration, Federal
Danks for Cooperatives, Federal Land Oank3, Federal Home Loan
Banks, Farmers Home Ad1ninistration and Federal Home Loan Mortgage
Association,
(c} direct and general obligations of any state of the
United States of l\merica, to the payment of the principal of and
interest on which the full faith and credit of such state is
plec.lged, provided that at the time of their purchase such obliga-
tions are rated in the highest. rating category by a nationally
recognized bond rating agency,
(d) time deposits (which may be represented by cer-
tificates of deposit} in any bank or trust company (including the
Trustee or any Paying Agent); provided, that such time deposits
( l} are continuously and fully insur•~<l by the Federal Deposit
Insurance Corporation, or (2} do not exceed at any one time in
the aggregate 10% of the total of the capital and surplus of such
bank or trust company, and such bank or trust <:ompany has a com-
bined capital and surplus of at least $15,000,000 (or, in the
case of a bank or trust company not organized under the laws of
the United States or any st.ate thereof, a combined capital and
surplus of at least $1,000,000,000}, or (3} are continuously and
fully secured by such securities ~s are described above in
clauses (a), (b) or (c) hereof, which shall have a market value
(exclusive of accrueJ interest) at all times at least equal to
the principal amount of such time deposits and shall be lodged
~ith the Trustee, as custodian, by the bank or trust company
issuing such time deposits, and such bank or trust company shall
furnish the Trustee an undertaking satisfactory to it that the
aggregate market value of all such obligations securing such time
deposits will at all times be an amo~nt equal to the principal
amount of such time c.leposits, and the Trustee shall be entitled
to rely on each such undertaking;
(e) prime commercial paper r<lteu A-2, P-2 0r their
equivalent or hiyher by a nationally recognize,l rating agency;
{f} prime finance com~any paper:
( g} banker's :1cce[)t_ances drc11,m on an.J i'l.ccept.e,l by
commercial banks and certificates of deposit ii:;sued by federal
t"l!~llrv,~ ~,stem .::o,nmercial banks; provided, that, except as
,lut.!1(.)c-i.!ed in clause (h) below, no such money shall be invested
i.n ..>·\11,.-;~rs' .:icceptances or in certificates of deposit of fedei:-al
t''.!s,]rv~ s yst t?m commercial banks \~ith capital and surr,lus of less
t.h~n S2J,0OO,OOO;
(h) bankers' a c ceptances drawn on and accepteo by the
-~~uste~ 1nd certificates of Jeposit issueJ by the Trustee: or
(i) repurchase agreements fully secnre d by ob ligations
issu~J or 3uaranteed as to principal and interest by the United
Jt.~~~s of ~nerica.
"Issuer" sha ll mean Indian River County, a political
3u:.>-ii.•11.sion of t.he State of Fl orida.
"Loan" shal 1 mean the loan from the Issuer to the
Jo r r~~er Jur s ~ant. to the Loan ~greement,
"[,oan ,\greement" or "Agreemi.?nt" s hall mean the Loan
:\-Jrce1:1~nt., :,1ortga']e and Security i\gr-eement, dated as o f the date
ner~ui, aec.ween the Issuer an~ the narrower.
":.\ort3age" sha l l mean the mortgage ']ranted to t he Issuer
by cne ~orro~er pursuant to Section 4,5 of the Loan Agreement,
"'.let Proceeds," when used with respect to any insurance
•.>r ::0:1 lemnat.ion a\-1ard, shall me-'.ln the gross proceeds from the
in:;ur.:tnce Jr condemnation award with respect to which that term
is ·JseJ remaining after paym ent of all reasonable expenses
(incluuin:1 reasonable attorneys' fees and any extraordinary fee
of ~ne rrustee) incurred in the coll~ction of such gross pro-
ce~d:;.
":lote" s hall ine.:\.n tl'l"it Promissory Note in the f orm
att.1che<l hereto as tXhibit "Il" given to the Issuer by the
aorr~wer, and ~ny supplemental Note.
"Outstanding," when used with reference to Ilonds, sh.:ill
:n eaI1, ~X C(l [lt. ,J.s otherwise provided in Article XII hereof, at any
,iate .,s v f ·.-1hich the amount of outstan<ling Oonds is to he
•Jct.<:!r;:n:11:!<.l, the ,lq gregat.e of all Oonds authorized, issue<.],
.:,ut.:1e11t.ic:1te,l aoJ delivered under this indenture, except:
(~) Bonds cancelled or surren~ered to the Trustee for
can~ellat.ion pursuant t o Section 2.11 of this Indenture on or
priJr ~a such Jate;
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(b) Donds for the payment of which cash sh3ll have been
theretofore deposited with the Trustee in an amount equal to Lhe
principnl amount thereof and interest thereon to maturity;
(c) Oonds for the redemption of which cash shall have
been theretofore deposited with the Trustee in an amount equal to
the unpaid principal thereof and the premium, if any, and
interest thereon to the date of such redemption; provided , that
notice of such redemption shall have been given as required in
this Indenture or provision satisfactory to the Trustee shall
have been made therefor;
(d) Bonds otherwise deemed to be paid as provided in
Section 12.l hereof; and
(e} Bonds in lieu of or in substitution for which other
aonds shall have been authentic~ted and delivered pursuant to
Article II hereof,
Where the holders of a certain percentage of Oonds are
required to take or to consent to any action taken hereunder,
Dando which are owned by the Oorrower, Affiliates of the Borrower
or the Issuer shall be disregarded and ueemed not to be
Outstanding for the purpose of any such determination,
"Payin; Agent" shall mean any paying agent for the nonds
(and may include the Trustee) and its successor or successors
appointed pursuant to the provisions of this Indenture,
"Payment," "Loan Payment" or "pay;nents {or prepayments)
upon the Loan (or the Note)" shall mean those installments
payable to the Issuer pursuant to Sect.ion 4.2 of the Agreement,
"Permitted Encumbrances" shall mean as of any particular
time, (a) liens for ad valorem taxes permitted to exist as pro-
vided in the Agreement or not then delinquent; (b) this Indenture
anu the l\greement; (c) utility, access or othor easements and
rights-of-way, party walls, :lgreements with respect to common use
of utilities and restrictions and exceptions th~t may be granted
or are permitted under the Agreement; (J) any mechanics',
laborers', materialmen's, suppliers' or vendors' lien or right 0r
pLtrchase money security interest if pay:nent. is not yet ;lue and
payable under the contract in question; (a} such subordinate,
junior and secondary encumbrances as are expressly permitt~l b y
this Indenture; and (f) such minor defects, irregularities,
encumbrances, easements, rights-of-\~ay urlLl clouds on t.itli.? as
normally exi::;t witJ1 property siiniLtr i.n ch.:ir:ictcr to th0 Project
real property .:1s do not ;nateri.-illy impair the use of the Project
for the purpose for which it was acquire~!.
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"Person" shall mean an individual, a corporation, a
p~r~n~rship, 3n association, a joint stock company, a trust, any
u:\inc0rporated organization or a government or political sub-
livlsL0n thereof.
"Plans and Specifications" shall mean the plans and
sp~c1fications prepared for the Project, cer tified by an
,\utl\oril.1?..I Oorrower Representative and filed with the Trustee
.it the d,1te of issuance of the Bonds, as the same may be revised
from r.1.:ne to time prior to the Completion Date in accordance with
5ecc.Lm J. 2 of the Agreement.
"Prime Rate" shall mean the interest rate per annum then
4uot~d :)y i3arnatt llank of Central Florida, N.A., Orlando,
E-'loci.i.a, 1s its prime rate on commercial loan s in effect from
ti::il! t..o ti:ne, computed on a daily basis.
"Project" shall mean, collectively, the nursing home
i~provcments to be located at the Project Site, to be acquired,
c,nstr~ctdJ and equipped pursuant to the Loan Agreement and this
InJentuc~, including and any Project Additions.
''Project Additions" shall mean any additions, e,cpansions
.:inJ ::1odiiications to the Project financed with the rroceeils of
the $3l e of Additional Bonds,
"Proj~ct Fund" shall mean the fund cre~ted by Sec tion .,.2 he,eot ,
"P,oject Site" shall tnean the real property descc-ibed in
i::xhi,,it "C" to thi s Agreement.
"Rede,nption l\ccount" shall mean the account established
under this indenture as part of the OonJ Fund to provide for the
manJatoC'y c-edemrtion or payment of the Bonus.
"Redemption Date" shal l mean the date fixed for redemp-
tion of Jonds subject to reuemption in any notice of such c-edemp-
tion Jiascminated in accordance with this Indentuce.
"Hedemption Price" shall mean the price at which the
!lo:'\J::J ::\uY be call.:!<l for redemption an<.1 includes the unpi\i1l ~rin-
cipal .1mount of the Oond or Bonds to be redf!emed, accrued
inr.eresr. thereon to the Redemption D.1te, plus the pre1nium, if
any, re~uired to be raid to effect s uch redemption by the terms
of this lndenture.
"~evenues" shall ,11et111 c1ll 1,o an Payments o r other
p,J.yr:\ents by th e narrower to t he 'l'c-u s tee <:>I." the Issuer under the
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Loan A.gr~ement and all amounts derived by the Issuer in any
manner from or in connection wit~ the financing or disposition of
the Project (other than the proceeds of l3onds and money paid by
the Borrower for the purpose of disposing of items of. machinery
or equipment of the Project).
"Security Interest" shall mean the security interest
granted in the Project to the Issuer pursuant to Section 4,4 of
the Loan Agreement.
"State" shall mean the State ,f Florida.
"Supplemental Indenture" or "indenture supplemental
hereto" shall mean any indenture supplementary to or amendatory
of this Indenture as originally executed which is duly entered
into in accordance with the provisions of Article XI of this
Indenture.
"Supplemental Note" shall mean a promissory note given
to the Issuer by the l3orrower evidencinq the 13orrower's obliga-
tion to repay any loan derived from the issuance of ~dditionaI
Bonds.
"Trustee" shall mean the trustee at the time serving as
such under this Indenture.
"Trust Estate" shall. :nean all interest conveyed to the
Trustee by this Indenture.
Section L 2 Use of I-lords and Phrases. "Herein,"
"hereby," "hereunder," "hereof," "hereinbefore," "hereinafter,"
and other equivalent words r.efer to this Indenture as a whole and
not solely to the particular portion thereof in which any such
word is used. "Person" includes natural persons, fir:ns, asso-
ciations, corporations and public bodies. The definitions set
forth in Section 1.1 hereof include both singular anJ plural.
Whenever used herein, any pronoun shall be deemed to include both
singular and plural and to cover all genders. Any percentage of
Hands, specified herein for any purpose, is to be figured on the
unpaid principal amount thereof then Outstanding. TI1e words
"majority in aggregate principal a.rnount of Bonds Outstanding,"
and other equivalent words, shall mean at leust 51% of the aggre-
gate principal amount of ilonds Outstanding.
Section 1.3 Date of Indenture and □onds. The date of
this Indenture anJ of the Bonds is intended as and for a Jate
for the convenient identification of this Indenture and of the
Bonds :ind is not intended t.o indicate that the fJonds ,.,,ere exe-
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cuted, •l~livereu or issued on such c.lat~ or that this inst.rument.
~~s !XacuteJ and delivered on such aate.
Section 1.4 Applicable Provisions of Law. T1~is Inden-
tur,! 'ih-11 l be ']Overned by and construed in accordance with the
la~5 Jf ::he 3tate.
Seccion 1,5 Captions. The captions or headings in this
l:1dencure ,.u-e for convenience only an1 in no way define, limit or
Je~cribe ::he ~cope and intent of any provisions of this instru-
;:1en t. ..
~eccion 1,6 Successors and Assigns of Parties Hereto.
;\11 ':.ne .~ovenants, stipulations, promises and agreements in this
I:1:..len:::1r,! contained by or on behalf of the Issuer or the Trustee
or ,ntiHH" . .)f the,n shall inure to the benefit of and bind their
rasp~c~ive ~uccessors and assigns,
Section 1.7 Limitation of Rights. Noching expressed or
:.i~n::t.:>nl.?d Ln or t.o be implied from this Indenture or the Bonds is
incen-!ed oc shall be construed to give any person other than t.he
2art.1~s hereto and their successors hereunder and the holders of
~~8 Jonds anJ the Borrower any benefit or any legal or equitable
r i,Jht., remedy or claim under or in respect to this Indenture or
.1,1y covendnts, conditions and provisions herein contained; this
In1entur~ ~nd all of the covenants, conditions and provisions
her~of bei~3 intendeJ to be and being for the sole and exclusive
b~ne~i:. -:,f the partie.s hereto and their successors hereunder, the
Jorr''.l',..,er, :inJ the holr1ers of the 13onds as herein provided.
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AR'l' IC LE II
DESCRIPTION, AUTHORIZATION, MANNER OF EXECUTION,
AU'l'HENTICATION AND 'rRANSFER OF BONDS
Section 2.1 Authorization of Bonds, Limitation on
Amount of Bonds and Purposes for Which Bonds May be Issued. This
Indenture secures an issue or issues of Bonds of the Issuer, the
aggregate principal amount of which (exclusive of substitute
Bonds issued pursuant to Section 2.5 hereof and Additional Bonds
issued pursuant to Section 3.3 hereof 1 will not exceed $2,400,000
to be ~esignated generally as "Industrial Development Revenue
Doncls, Series 1983 {Florida Health Facilities Project)," to be
issued as hereinafter provided; and creates a continuing pledge
as provided by this Indenture to secure the full and final
payment of the principal of and redemption premium, if any, and
interest on all of th~ Bonds as the same shall become due and
payable.
The Bonds shall be issued for. the purpose of providing
funds to be loaned to the Borrower to pay the Cost of the
Project, and the Issuer shall be obligated to apply the proceeds
thereof towards such loar, for the payment of such Cost.
Section 2,2 Source of Payment of Bonds: Security. The
Bon<Js herein authorized and all payments by the Issuer hereunder
are special obligations of the Issuer payable sol e ly from the
Trust Estate. The Bonds are secure.J by the Trust Estate in the
manner provided herein. Neither the State nor any political sub-
division or instrumentality thereof shall be liable for payment
of the principal of, redemption preiniurn, if any, or interest on
the Bonds or for the performance of any pledge, obligation or
agreement of any kind whatsoever which is undertaken by the
Issuer or the narrower. Neither the Bonds nor a ny a greement of
the Issuer shall be construed to constitute an indebtedness of
the Issuer or the State within the meaning of any constitut.ional
or statutory provision whatever.
Anything herein to the contrary notwithstanJing, (a) the
Issuer shall never be require~ to (i) levy any ad valorem taxes on
any property within its jurisdictional territorial limits to pay the
pr·incipal of or premium , if any, or interest. on the [lonJs or to make
any other payments providad under the Loc1n l\greerncnt or this Inden-
ture, (ii) pay the sanw from any funds of the Issuer other than the
Trust Es tate, or (iii) require or enforce any payment or performance
by the Borrower as provided in this Article II or elsewhere in this
Inuenture or in t.he Loan ,\gree111ent unless the! Issuer's expen::ics in
respect. thec:-eof shall be available from any money derived unJcr.
-22-
th.? ,.0a.n ,\:Jraement or shall be advanced to the Issuer for such
~ur~~se, 3nd the Issuer shall receive indemnity to its satis-
faction: 1nJ {b) the Bonds shall not be or constitute general
~oliJations af the Issuer or a lien upon any propert~ owned by or
':litUilted ,,...ithin the jurisdictional territorial limits of the
[ssuer, ~xcept upon the Trust Estate.
5ection 2.3 Description of 3onds. (a) The Bonds shall
be issueu ..is fully registered Bonds in the denomination of $1,000
~ac :1 •)~ lny integral multiple thereof including $2,400,000, and
sh.11 l :le ..lated ,:is of the date of their authentication, The Bonds
:;·n.1ll oe;ir interest from the latest interest payment date to
~hicn interest has been paid on the Bonds preceding the date of
authdntication, unless such date of authentication is an interest
pa1::1tc!nt fate on which interest is being paid on the Bonds, in
which c3se the Bonds shall bear interest from such date of
~ut~~ntication; provided, that the Bonds authenticated prior to
tht! ::irst. interest payment date shall bear interest from the date
of ~utnentication. Interest on the Bonds shall accrue at a rate
~qu~l ~~ 781 of the Prime Rate in effect from time to time, com-
putt!•l ~n the basis cf a 360-day year composed of twelve 30-day
:;10:\t:1s. The i3on<ls shall mature 13 years from their date.
~eginning on -----------,--c--.,--• the principal of
3nJ i.~terest on the Bonds shall be ~ayable in equal consecutive
4uurt~rly installments aggregating ~75,147,94, on the first days
.J!: --,------------' and the balance at the maturity of the
Jond~. ,1 r.1.or to ---.------:--:------:-' interest only shall be
~~1J ?n the Bonds in consecutive quarterly installments on the
first ,bys ".Jf
The fin.il payment of principal of and redemption
pr~miur.i, if any, on any Dond shall be payable upon maturity or
reJe,~ption to the registered owner thereof or his assigns upon
surr~nJor thereof at the Corporate Trust Office for such purpose.
At ~11 other times, the installments of principal of and interest
en any Bon<..l, when due and payable, shall be paid to the
reyistare<..l owner thereof by check or draft mailed, or wire
tr3nsfer ~ade, to such P~rson at his address last appearin~ on
the i3onJ i~egister. All payments of principal, redemption
prc1niu:n, Lf i.lny, and interest on the Donds shall be payable in
an/ ,..:?i.n .Jr c1.u-rency of the United States of America which at the
ti;:te of payment is legul tender for the payment of public and
pri'l.:.tte debc.s. The •rrustee shall maintain accurate records of
the tJ,-iyment of the installments of the principal of, redemption
premiu~. if ~ny, and interest on t.he non<..Is.
( b) In the manner .1.nu with the effect provided in this
In.Jcnt~re, the :3onds will be subject to mandatory reuemption
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prior to maturity, pursuant to Article VIII of this Indenture,
only as follows:
(i) The Bonds shall be redeemed by the l:ssuer as a
whole on any date at the principal amount thereof plus accrued
interest t.o the Redemption Date upon the discontinuance by the
Borrower of its operations at the Project and the eKercise by the
Bor.:ower of its option to accelerate payment of the entire unpaid
balance of the Loan upon the occurrence of any of the following
events:
(1) All or substantially all of the Project or the site
tnereof shall have been damaged or destroyed and the Borrower
shall determine that it is not practicable or desirable that the
Project be rebuilt, repaired or restored; or
(2) All or substantially all of the Project or the site
thereof shall have been condemned or such use or control thereof
shall have been taken under eminent domain proceedings as to
render the Project unsatisfactory to the Borrower for continued
operation: or
(3) 'fue Borrower reasonably determines that burdens or
liabilities shall have been imposed upon the Borrower with
respect to the Project or the operation thereof, for the purposes
expressed in the Loan Agreement, which shall be outside the
control of the Borrower and which shall renJer such operation
uneconomic or unprofitable; or
(4) The Borrower reasonably determines that tech-
nological or other changes shall have occurred which shall render
the operation of the Project, for the purposes expressed in the
Loan ~greement, uneconomic or unprofitabl~.
(ii) The Bonds shall be redeemed by the Issuer on any
date at the price of the unpaid principal amount thereof together
with accrued interest to the date fixed for redemption plus any
applicable premium as is fixed by the Loan Agreement, upon the
mandatory prepayment by the Borrower upon the Loan to the extent
of the principal of and interest on the Bonds as a result of the
occurrence of .:i Determination of ·raxability ( as Llefined in the
Agreement) .
(iii) 'rhc! Bonds sh.:ill be redeemed by the Issuer in
oart, such 13onds to be determined by lot, from money transferre,l
fron1 the Project Puna to the Redemption /\ccount of the aond l"und
as oroviJe<l in this Indenture anJ the Loan ~green1ent, to the
extent. that proceeds of the ilonds excee,1 the Cost of the Project,
-24-
~t t~c price of the unpaid principal amount of the Oonds to be so
ccJde::iecl, t.oqe ther with accrued interest to the Redemption Date.
( iv) The Oonds shall be redeemed by the Issner, as a
· .. mole 'Jr i.n part, at any time, by lot if less than all, upon the
v!Jtiun.:i.l c>rcray;nent upon the L,oan by the Borrower, at t.he price
of t.he unpaiJ principal amount of the Bonds to be so redeemed,
plus nccrued interest to the RedeITTption Date, without premium.
(c) 1'he Oonds are subject to redemption, at t.he option
of t.ilc hoLJers thereof, as a whole or i·, part, on Se;:,ternber l,
1938, -:rnJ 0n September 1 in each fifth year thereafter, at the
pric~ Jf the unpaid principal amount of the Bonds to be so
reJ~c~eJ, ~lus accrued interest to the date of redemption,
·..,ritnout rr~,niu1;i, by such holder filing written notice of the
excrc1~e of such option at the Corporate Trust Office by June l
~f ~he jpplicable redemption year,
( J) 7he i3onds are subject to redemption at the option
of t.n~ Issuer, as a whole or in part, by lot if less than all, on
::he J~ce 5 years after the date of the Loan Agreement and on any
d.:i.t,~ 1:hcrec1::ter, at the price of the unpaid pr-incipal amount
th~reof ?iUs accrued interest to the Redemption Date, without
premi.J::1.
Section 2,4 Description of Additional nonds.
::1.on.:i.l ]onus:
Addi-
(al shall be dated, shall bear interest at a rate or
r.:it~s ;1ot in excess ol: the maximum rate then permitted by appli-
cable law, shall be payable and shall mature by their terms at
such ti::ie or ti1;ies;
(b) shall be payable, both as to principal and interest
~n~ re!e:nption premium, if .iny, at such place or places in any
coin or <.1urrency of the United Stat<;!S of Americ.i which, at the
tLne of 1,;1yment, is legal tender for the payment of public and
pr:ivat.e ,lebts;
(c) may have such tr:ansfer: privileges and such exchange
pr1.vil<?"JCS:
(J) shall have such particular designation added to
their title a.ncl may be in such denominations:
(e) may be li:nited as to such mc1xirnum [>rincipal amount
ther~uf ~hich may be authenticated by Ll1e Trustee and delivered
or •,mich ;nuy be at any t.irne Outstandin,~, with an appropriate
-25-
insertion in respect of such limitation permissi~le in the Donds
of such series:
{f) may contain provisions for the redemption thereof
at such Redemption Price or prices, at such time or times, upon
such notice, i n suc h manner and u pon such other terms i\nd
conditions, not inconsistent with the provisions of Article VIII
hireoE, the terms of the Loan Agreement and applicable provisions
of law;
(g) may have mandatory provisions requiring payments
for the purchase and sinking fun~ re~emption of such Bonds, in
such amounts, at such time or times, in such manner and upon such
terms and conditions, not inconsis tent with the provisions of
this Indenture; and
(h) may contain such provisions with respect to accel-
eration of maturity on the happening of specified events, and
such other special terms and conditions, not contrary to the pro-
visions hereof or of the Act;
as may be determined by the Issuec-and expressed from time to
time in one or more Supplemental Indentures.
Section 2.5 Donds Muti la ted , Destroyed, Stolen or
Lost. In the event any Outstandin g uon<l, whether temporary or
definitive, is mutilated, lost, stolen or destroyed, the Issuer
may execute, and upon the Issuer's requ es t in writing, the
Trustee shall authenticate and deliver, a new !3ond of the same
principal amount and maturity and o f like <late, tenor and effect
as the mutilated, lost, stolen or d estroyed Bond in e xchange and
substitution for such mutilated Dond, or in lieu of and substitu-
tion for such lost, stolen or destroyed Bond.
Application for exchang e and substitution of mutilated,
lost, stolen or des troyed Bonds s hall be made to the Trust~e at
the Corporate Trust Office. In every case the applicant Eor a
substitute Bond shall furnish lo the Issuer and to the T rustee
such security or indemnity as may be required by them to save
each of them and any Paying Agent harml es s. In every case of
loss, theft or destruction of a l3o nd, the applicant sha ll also
furni sh to the Issuer and to the Trustee evidence to their satis-
f.iction of the loss, theft or ues truction and of the ownership of
such 0ond. In every case of mutilation of a l3o nd, the applicant
shall surren;Jer to the Trustee tile 0ond so mutilate,}.
~otwithstandin3 the foregoin3 provisions of this Section
2.S, in the event .::iny such l3ond shall have matured, and no
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j<?f,1u L '.:. ·:,;:is occurred which is then continuing in the payment of
th~ ~rtncipal of, redemption premium, if any, or interest o n the
JonJs, th<.? ls su e r :nay authorize t he payment of the same (without
.H1c·-.!:l,!tH· t.hereof except in the case of a mutilated Bond) instend
~f i.~suinq a substitute Bond, provided security or indemnity is
:ur:1isi\.:?,I .1s Jbove prov ided in this Section 2. 5.
·Jpon the issuance of any substitute 13ond, the Issuer and
t:i.e ~•::-u ~t.~e :nay charge the holder of such Oond wi th their fees
,:ind -~X!)-c!nscs in connection t:.herewith. Every substitute Bond
i:;su<.?.l )ur sua nt to the provisions of this Section 2, 5 by virtue
0f t.he ~;:ict that any Bond is lost, st01en or destroyed shall
c0nstltut~ a n original additional contractual obligation of the
Issu~r, ,1hether o r not the lost, stolen or destroyed Bond shall
oc ~~und Rt any time, or be enforceable by anyone, and shall be
em;i.t.lt!cl to all the benefits of this Indenture equally and pro-
Jort.i~n~lly Nith any and all other Bonds duly issued under this
lnJenture to the same extent as the Bonds in subs~itution for
,.,hi ..::, :.u..:h i::!.ooJs were issued.
The provisions of this Section 2,5 are exclusive and
sh;:iLl ~recl ude, to the eKtent law f ul, all of the rights a nd r e-
medi-Js· .,.,i.th respect to the payment of mutilated, lost, stolen o r
Jestroyeu Jonas, includinJ those granted by any law or statute
now B~i sting or hereafter enacted,
Section 2.6 T emporary Bonds. Unt il Bonds in Jefini-
ti~~ f~r~ 0f ~ny series are ready fo r delivery, the Issuer may
exc~ute, 1nd upon its request in writing, the Trus tee shall
autl,~nt.i-:ate ;:i nJ deliver in lieu of any thereof, and subject to
th~ -;.,1:ie provisions, '\.imitations and conJitions, one or more
prtr1tetl, lithographed or typewritten 13onds in temporary form,
substuntL:illy of the tenor of the Banc.ls describetl in this Articlf.!
ll, in rully registered form, and with appropriate om iss ions,
variations antl insertions. Bonds in temporary form will be in
such ,rincipal amounts as the Issuer shall determine.
Until exchanged for Bontls in definitive for~, such Bonds
in te:np0r,3ry form shull be en titl eJ to the lien and benefit of
thi :3 C;lJonture. The Issuer shall, without unreasonable del ay,
prep.:ir •:?, ,jxecut.e and deliver to the Trustee, and thereupon, upon
tho pr~sontati~n and surrender of the Bond or Bonds in temporary
forr:1 to t.l\e Trustee at the Corporate Trust Office, the 'l'rustce
shall authenticate and deliver, in exchange therefor, a Bond or
i3ontls of the same maturity, in definitive form in the authoriz.ed
.leno:nin,Jtions, and for the same .,.g,3ragate princlp;:il amount, a s
t!\l;l noa.J 0r 13onJs in te,nporary form surrendered . The eKpense of
such exchange shal l be an Administration Expense and there sh;:\ll
be m.iJc no char9e there for to any !landholder.
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Section 2.7 Execution of Bonds. All the Bonds shall be
eJCecuted on behalf of the Issuer by, oc be.?ar the facsimile signa-
ture of, the Chairman of the Board of County Commissioners of the
Issuer, and be attested and countersigned by the siguature of the
Clerk of such Board (which may be in facsimile), and its official
seal {which may be in facsimile) shall be thereunto affixetl (or
imprinted or engraved if facsimile); provided, however, that at
least one of such signatures shall be 'Tianually subscribed. '1'he
Bonds may also be validated in the manner provided for by State
law. The validation certificate, if any, appearing on the Bonds
shall be executed with the facsimile _,ignature of such Chair:nan.
If any of the officers who shall have signed or sealed
any of the Bonds or whose facsimile signature shall be upon the
Bonds shall cease to hold such office of the lssuer before the
Bonds so signed and sealed shall have been actually authenticated
by the Trustee or delivered by the Issuer, such Bonds neverthe-
less may be authenticated, issued and delivered with the same
force and effect as though the person or persons who signed or
sealed such Oonds or whose facsimile signature shall be upon the
Bonds nad not ceased to be such officer or officers of the
Issuer; an<l also any such Oond may be signed and sealed on behalf
of the Issuer by those persons who, at the actual rlate of the
execution of such aond, shall be the proper officers of the
Issuer, although on the date of such Oond, any such person shall
not have been such officer of the Issuer.
Section 2,8 Exchange of Oonds. The Oont.ls, upon
surrender thereof at the Corporate Trust Office with a written
instrument of transfer or exchange in form satisfactory to the
Dond Re3istrar, duly executed by the reJistered owner or his
attorney duly authorized in writing, may, ~t the option of the
registered owner thereof, and upon pay~ent by such registered
owner of a sum sufficient to cover any governmental taJC or charge
required to be paid as provided in Section 2,12 of this
Indenture, be exchanged for an equal aggregate principal amount
of registered Oonds of any other authorized denominations and
registere<l in the name of the same registered owner.
The cost of printing, lithogra phing and engraving of
Bonds shall be uee1ned to be an Administration Expense and there
shall be no charge therefor to any Bondholder.
Section 2,9 Transfer. The transfer of Oonds shall be
registered on the □and Register, whic~ shall be kept for this
purpose at the Corporate Trust Office, upon surrender of the
Bonds by the registere,l owner in person or by his attorn.:!y ,iuly
authorized in writing together with a written instrument of
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tr~n:3f~r in for~ satisfactory to the Bond Registrar duly executed
by :-_h~ rcqi:n.i!re.l owner or his attorney duly authorized in
·..-rl.t.lll'J ,1nJ upon paymodnt by such registerecl owner of a sum suf-
fi~i~~t. t~ cover any JOVernmental tax or c harge requi-ed to be
p~1J ~s provi<.led in Sect.ion 2.12 of this Indenture. Upon any
~Ul:l\ r~c.J i:;t.raticn of transfer, the Issuer shall issue in the name
or ':.:\e t.r.:1n:3ferode a new registered 13ond or Donds.
rhe issuer, the Trustee, the Bond Registrar and any
?.l'fl.:11 ,\9ent. :nay deem and treat the registered owne r of any Bond
-1» ':.:\<? -'.lr)solut.e owner of such Oond for ".he purpose of receiving
,wy ,>:it::it!nt Jn such ilond and for all other purpose s of this
lnui!nture ,.rn<.l the Loan Agreement, whether such Bo nd shall be
.>vcr.iu~ ·>r not., and neither the Issuer, nor the Trustee, nor the
:3onci ;{eqistrar nor any Payin-3 Agent shall be affected by any
:li.>t1..::L? r_o the contrary. Paym.ent of, or on account oE, the prin-
ci9,1l Jt .inJ interest and redemption premium, if any, on any Dond
sh..1 l l :,e :.1.:i...le to such registered owner or upon his written order.
All ~uch pay~ents shall be valid and effectual to satisfy and
lis.:n;:ir]~ the liability upon such Dond to the extent. of the sum
·.Jr .j u.:is :10 i:)a id.
~11 Donds issued under this Indenture shal l have such
uttri~utes of negotiability as are provi<led under the laws of the
State of Plorida.
Section 2,10 Authentication. No Dond sha ll be secureu
b/ ~hia Cndenture or en titled to the benefit hereof or shall be
~3LiJ ~r ooligatory for any purpose unless there shall be
1.1nJorse~I o n such Oond the Trustee's certificate of authentica-
tion , ~ubstant.ially in the forra prescribed in this Indenture,
exL?cuted i>y the manual signature of ,':l duly authorized signatory
ci t.he ·rrustee; and such certificate on any Bond issued by the
i,;suer .;hall be c oncl usive evidence and the only competent evi-
Jodnce thut. such Bond has been uuly authenticated and delivered
under thi,; Indenture.
Section 2.11 Cancellation ~nd Destruction. Upon the
surren.JiJr to the Trustee of any t:.empor.:iry or mut i lated Oona, or
any ,Jon.1 transferred or excha nged for another Bond or Bonds, r..>r
any JonJ ~c4uirert, re<.leemed or paid at maturity by the Trustee,
t:ie :;.1 ,:te :;hall forthwith be cancell.arl an..I, at. the written reque~t
uf th~ Issuer, be cre~ated or otherwise <lestroyeJ by the Trustee,
and the Trustd~ shall, if such Bond is so cremated o~ ~estroyec1,
deliver its certificate of such cremation or other destruction to
the [~:-;u~r.
dection 2,12 Miscellaneous. In all cuses in ~hich the
?rivildqe of exchan9ln3 Uonus or reylst.ering the transfer of
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Bonds is exercised, the Issuer shall execute and the Trustee
shall authenticate and deliver Bonds in accordance with the pro-
visions of this Indenture. All Bonds surr ende red in any such
exchanges or upon any such registration of transfer ~hall forth-
with be delivered to the Trustee to be cancelled or, at the
option of the Trustee, to be held for possible future redelivery.
There shall be no charge to the holder or his transferee for any
such exchange or registration of transfer of □on<ls, and all
expenses incurred by the Trustee in connection with any such
exchange or registration shall constitute Anministration
Expenses. 'rhe Trustee may, however, r~quire the payment of a sum
sufficient to pay any tax or other governmental charge required
to be paid with respect to any such exchange or registration of
transfer. Neither the Issuer nor the Trust ee shall be required
to register the transfer of or exchange any Bond f or a period of
10 days next preceding any interest or principal payment date on
such Bond or after the selection of such Bond for redemption and
notice of its re<lemption shall have been given in the manner pro-
vided in Article VIII hereof.
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ARTICLE III
AUTlll::NTICA'rION AND DSLIV8RY OF BONDS
Section J,l Limitation of Princi al Amount of 13onds;
uon~s 31.!cured. The aggregate principal amount o Oonds which may
b~ JX~~u~d~ 0y the Issuer and authenticated by the Trustee and
-l1.!Li•1 lrt.!d ,1nd secured by this Indenture is not limited, except as
is .Jr ·:1t1y :1erea.Eter be provided in this Indenture or as may be
li~ita~ by law. All Bonds issued and to be issued hereunder are,
.1n..l ,lr-~ to be, to the extent provider' in this Indenture, equally
,:i.n,I ~.:i.t.:i.bly secured by this Indenture without preference,
pri~ri~/ or Jistinction on account of the actual time or times of
t!1e 1uth-?ntication or delivery or maturity of the Bonds, or any
')t ~he~, so th~t, except as is or may hereafter be provided in
tn~3 :~J~nture or as may be limited by law, all Bonds at any time
~utst.:i.nJinq hereunder shall have the same right, Lien and pre-
f<H,~:1ce ,rnder anJ by virtue of this Indenture and shall all be
~4u~lly lnd ratably secured hereby with like effect as if they
h-1d ill :,een e;<ecuted, authenticated an::i deliverou simultaneously
on the .late hereof, whether the same, or any of them shall
1ctu1llr be issueu on such date, or whether they, or any of them,
sh~ll oe L3sued on some future date, or whether they, or any of
t~em, sn3ll have been authorized to be authenticated and deli-
vere•l un,icr Section 3. 2 or may be authorize<l to be authenticated
an.l ,leli'l'?reu hereafter pursuant to Sections 2.5, 2,6, 2,8, 2.9,
J,J, 0r J,4 of this Indenture.
Section 3.2 Authentication and Delivery of Bonds .
~onJs, to be designated Series 1903, in the aggregate principal
~~aunt ~f ~2,~00,000, shall be executed by the Issuer, delivered
to the Tru~tee for authentication, authenticated by the Trustee
anu Jelivered to the purchaser or purchasers thereof, but only
upon the receipt by the Trustee of the proceeds of the sale of
the ilonJs . .,,hich shall be deposited in the Project Fund. Prior to
authentication and delivery of the Oonds, the Trustee shall also
h~v~ recuived the following:
(a) a copy of the resolution or resolutions a<lopted by
the ilo,1r J :,f County Commissioners of the Issuer authorizing the
~xccucion and delivery of the Loan Agreement t1nd this Indenture
and th~ i.;su::i.nce, sale anu delivery of the 13onds, ,luly Cl:lr.tifie,l
b:,' till! ..::teri:. of such uourJ, under its official seal, to have been
dul1 ~doptcd by the Issuer:
( i)) .::i 'n'ritten or,Jer of the Chu i.rman of the □oaru of
..:cunt·/ :;ommissioners or other officec-of t:.he Issuer, which may be
conta1n~,l in 3ny closin3 certificate, requesting and authori~ing
-31-
the Trustee on behalf of the Issuer to authenticate and Jeliver
the Bonds to the purchaser or purchasers therein identified upon
payment to the Trustee of the proceerJs of the sc1le of the nonds;
(c) the original ~ate, an original executed counterpart
of the Loan Agrsement and Mortgage, and a copy of the l?orrn UCC-1
Financing Statement filed to perfect the Security Interest;
(d) a policy of title insurance in the form of an ALTA
mortgagee's policy (or a binding commitment therefor) in an
amount at least equal to the lesser , f ( i) the total cost of the
Project, or (ii) the aggregate principal amount of the Bonds,
which policy or co~nitment shall insure or commit to insure to
the Trustee a lien on the Project, subject only to the aorrower's
ri~hts hereunder and under the Loan Agreement, and to other
Permitted 8ncumbrances;
(e) an original signed counterpart of an opinion of
counsel for the Borrower, addressed to the Issuer, the Trustee
and bond counsel referred to below, with respect to the due
organization and existence and good stc1nding of the Oorrower in
its state of organization and its qualification to do business in
the State, and to the effect that the Loan ~greement, this
Indenture and other instruments and ,locuments executed and deli-
vered by the narrower in connection herewith are and constitute
legal, valii, binding and enforceable obligutions of the Borrower,
except to ti1e extent that the enforceability thereof U\ay be
limited by banl<:raptcy, reorganization or simil.lr lilws Li..11itin1
the enforceability of cretlitor's rights generally i'\nd ex:::ept that
no opinion need be expressed as to the availability of ~ny
discretionary e4uitable remedies;
(£) an opinion of bond coun3el to the Issuer, addressed
to the Issuer and to the Trustee, to the effect that the Oonds
are legal and valid and that under existin1 statutes and court
decisions, interest thereon is exempt fr-:Jm fe,1ar3.l income
taxation, c1ssuming compliance with certain conrtitions imposed by
the 'l'ax 1':quity and Fiscal Responsibility Act of 19l!2 (if not
satisfied at the □on~ closing), except interest for any period
during which any Dond shall be held by ct holder who is a
"substantial user" of the l?rojec:t or who is a "relate<'\ person" to
such user (as used in Section 103 (b) (9) of the co,la);
(g) an opinion of counsel to the Guarantor, addressdd
to the Issuer, the Tru~tee and bond counsel referreJ to above,
with respect to the due or-.:1ani7.ation ancl existence and 100<1
stanuing of the Guar:rntur in its state of or,JcHli;'.;:J.tion, ancl to
the effect that the Guar,1nty an,1 other instruments .1n,l .Joc1~ments
-32-
c?Xl.!CtJt,?d •lnd ,lelivered by the Guarantor in connection herewith
,lr<.! .\n,I constitute legal, valid, bindin3 and enforceable obliga-
t.1-:>ns ,1f the Guarantor, except to the extent that the enfor-
~,?,~i>iLity thereof may be limited by bankruptcy, reorganization or
s 1::1.i L1e· laws limiting the enforceability of creditor's rights
Jenar1 L ly ,J.n-1 except that no opinion need be expressed as to the
Jvailaoility of any discretionary equitable remedies; and
(\1) such other instruments as the Tr.ustee may reaso-
nlol·1 !;"·:?,1uest.
Seccion 3,3 Authentication and Delivery of Additional
Bonus. Subject to the provisions of Section 3.1 of the Loan
.:qr•Jd::tlilnt, .:ind if no Ev.ent of Default has occurred and is con-
t.u1u1n.J umler the Loan Agreement, the Guara.nty or this Indenture,
suu~<.?quent to the authentication, issuance and delivery of the
uonJ~ :escribeu in the preceding Section 3.2, one or more series
of ,1,1ri :Ja5su Additional Bonds may be authenticated by the
'::'r·c.1:.tee ,rnd delivered upon original issuance for the purpose of
[HJ'Ji..J1n--1 funJs to complete payment of the Cost of the Project or
?ro ject. ,\Juitions. 1'he Issuer may execute and deliver to the
Tr;.u,t.L?e, and the Trustee shall thereupon authenticate, such
~JJit1onal 3onds and deliver them to the purchaser or purchasers
ther-:?of, :1rovicled t.hat, prior to such delivery, there shall have
be~n Jeliverej to the Trustee:
(a) a copy of the resolution or resolutions authorizing
:,uch ,,\Jditional 3onds and the execution and delivery by the
Issuer of a Supplemental Indenture providing for the terms and
conJiti.ons upon which such Bonds are to be issued and containing
t:1~ ~i:1Jin,Js required by Section 3.1 of the Loan P-greement duly
c~rt.ified by the Clerk of the Doar1 of County Commissioners of
the Issuar under its official seal to have been duly adopted by
thd Issuer together with an executed counterpart of such
~uppi~mental Indenture;
(b) a copy, similarly certified by such Clerk, of the
resolution or resolutions authorizing the execution ancl delivery
by t.he [3suer of an agreement to amend the Loan Agreement to (i)
incranse ~r adjust the pay~ents to be made unJer the Loan
,\::3r,ii?;aent to an amount sufficient to pay, a:; and ...,hen the same
:nc1t:1re ,..Jr become due, the principal of clnd premium, if any, and
intet'est. c;rn all outstanding Bonds, including such Additional.
ilonJ,; ( ~:<cert to such extent as the same rnay be !_)ayable out of
~oney then in the Bond Fund or otherwise on deposit with the
Tr~stee in ~ccorJance with this Indenture), ~nd (ii) make such
0ther rcvi::;ions to the I~oan ,\<3reement and Mortgage ,,s ,"Ire
n12i;css1t..1t,~d by the issuance of such Additional Oon,ls 1 provided,
-33-
however, that such other revisions shall not prejudice the rights
of the holders o f Outstanding 1'3ond s a s granted them under the
terms o f this Indenturei together wi th an executed counterpart of
the a greeraent amendi ng the Loan Ag reement and the or~1 inal
Supplemental Note evidencing the Borrower's agreement and obliga-
tion to pay to Issuer the additiona l funds required to make, as
and when due, all required pay:nents in respect of the Additional
Bonds;
(c) an appropriate endorsement to the p o licy of title
insurance described in Section J.2(d) ·.ereof;
(d) a wr itten statemen t by the Borrower {i) approving
the is sua nce and delivery of such Ad ditional Bonds and t he execu-
tion a nd delivery of the agreement amending t he Loan Agreement
and (ii) certifying that the Borrower is not then in default
unde r the Loan ,'\greement ;
( e) appropriat e ev idence fro,n the Do r rower showing
a pprov a l of the issuance of such Additional Bonds and the execu-
tion a nd del ivery of t he Supplemental I ndenture and the agreement
amending the Loan Agreement, o.nd t.he S•Jpplemental :--Jote;
(f) an opinio n of bond counsel t o the Issuer (which may
be included i n the opinion des cribed in (i) below), addressed to
the I ssuer 3nJ to the Trustee, to t he effect that a.11 o f the con-
dit ions precedent to the issua nce of s uch Additional Bonds as o.re
set forth in this I ndenture a nd the Supplemental Indenture, if
any, hav e be en sa tis fied and with re spect to such othe r matters
as the Trustee may reasonably request;
( <J) a written order b y the Cha irman of the Doard of
County Commissioner s of the Issuer or o ther ;\utho ri z e<l officer of
the lssuer, whicr1 may be containetl i n any clos itHJ certificate ,
requesting and au thori zin,J the Tr u s tee on behu.lf of. t he Issuer t o
authentica te a nd tle liver such Addit i o nal 3onds to the purchaser
o r purchas ers there in identifierl upon pay:nent to the 'l'rustee of
the sum s peci fieu therein as the n.mo unt of the proceeds of the
sal e o f such Additional Bonds:
(h) a n or iginal e xecutml counterpart of an opi nion of
counsel for the Borrowar, addres sed to the Issuer, the Trustee
and bond counse l referred to bolow, to the effect that the
issuance of suc h ~dctitional □onds and the other transactions,
instruments and doc wnents in connection t he r e with o.re pe rmi tted
hereby , and th.:it all conditions precedent have b1Jen satisf ieu or
ful filled, a nd v1ith respect to !c;u ch other ITI3tteC"s $tmil,H' to
those speci fied in pa ragraph (a) of Section 3.2 hereo f, ~s shall
b e appropria te under the circumst;1nces;
• ♦
{i} an opinion of bond counsel to the Issuer, addressed
t0 th~ issuer <1nu to the Trustee, to the effect that such Addi-
ti0nal 3onJs are legal and valid, that under existing statutes
,1.nd court ,lecisions, the interest thereon is exer.EJt from federal
inco:ae t:ixes, assuming compliance with certain conditions imposed
by che T.lx E~uity and Fiscal Responsibility Act of 1982 (if not
~at1~fi~d ac the Bond closing), except interest for any period
during which any such ~dditional Bond shall be held by a holder
'"'ho is ,l "substantial user" of the Project or who is a "reluted
,Jers,:in" co such user (within the meaning of Section 103(b}(9) of
t:,e C.1..lc), and that the issuance a · .d sale of such Additional
.,ands :tot result in interest on the Outstanding Bonds becoming
incluJuole in the gross income of the holders thereof for federal
income t3x purposes;
(j) such other instruments as the Trustee may reason-
.:ibl·/ requast..
The proceeds of such Additional Bonds shall be deposited
.,.,ith .rn,1 i1elll -.1nd disbursed by the Trustee as provided in the
3uppL~~antal Indenture providing for such Additional Bonds.
~ection J.4 Authentication and Delivery of Additional
dorn.ls for ;~efunding. The Issuer, if and to the extent authorized
by lJW, Ln addition to the Bonds authorized to be executed,
o1ut!1cntic3teJ. and delivered pursuant to the other provisions of
this ~rticle III, may execute and deliver to the Trustee, and the
TrJtitee shall thereupon authenticate and deliver to or upon the
wri~t,:rn iJrd~r of the Chairman of the Goard of County Co10missioners
of tne Issuer or other 3uthorized executive officer of the
[ssuer, AJditional Donds for the purpose of refunding all of the
BonJ$ then ~utstanding, and only upon the receipt by the Trustee,
in adJition to the items required under Section J,3 of this
InJenture, of:
(,l) a copy of a resolution describing the Bonds to be
refunded -.1nd ~uthorizing all necessary action in connection with
the refun,ling thereof pursuant to the provisions of this
Inuenturr~ .:i.nJ stating the estimate by the Issuer of A.dminis-
tr-.1tion ~xpenses in connection with the issuance of such
,\Jditi.on.il Bonds and the retlemption, if any, of the Bonds to be
r.:!t:.1r1L.ie,I, certified by such Clerk untler officiul seal to have
been July adopted by the Issuer anJ to be in full force and
•~ffect :Jn t.he <late of such certification;
(b) eviJence satisf.:ictory to the Trust.ee that notice of
r~·Je:npt ion oE the Bonds to be redecrn1eJ, if any, has been
puoli3heJ ~r Jivcn as proviJed in this [n<lenture, or that provi-
-35-
•
sions satisfactory to the Trustee have been made for the publica-
tion or giving of such notice, if any 13onds are to be redeemed;
and
(c) the proceeds (including accrued interest and any
premium) of such Additional Bonds, which, exclusive of accrued
interest, shall be not less than an amount sufficient, or which
s~all be used to purchase Investment Securities, principal of and
interest on which shall not be less than sufficient (together
with any othe-r money or securities available to the Trustee for
such purpose) to pay the principa ·_ of, interest on and the
redemption premium, if any, on the Bonds to be refunded, plus the
amount estimated by the Issuer as necessary for payment of
Administration Expenses in connection with the redemption of the
Bonds to be refunded and the issuance of such Additional Bonds.
The proceeds of such Additional Bonds shall be applied
for payment of accrued interest on the Additional Bonds,
Administration ~xpenses in connection with the redemption of the
Bonds to be refunded and the issuance of the Additional '3onds,
and held in trust for payment of the Bonds to be refunded, all as
provided in the Supplemental Indenture providing for such
Adclitional Uonds.
Simultaneously with the deliver:y of such Additional
Bonds, the Trustee shall withdraw from the Bond Fund any sums
then available for payment of interest on the Bonds to be
refunded and holcl such funds in trust for payment of the !Jonds to
be r:efunded, all as specified in the Supplemental Indenture pro-
viuin3 for such Additional Bonds.
.\RTICLE IV
,I\CQU IS IT ION AND CONSTRUCTION OF PROJEC'r;
DISOURSEMENT OF FUNDS
Section 4,1 Application of Oond Proceeds, The Issuer
,;hall ~i'.ly to the Trustee the proceeds from the sale of the Bonds
pt:J;:1;::,t t y .lpon receipt of the same from the purchaser or purcha-
sers ~f ~he ilonds, From such proceeds a nd promptly upon receipt
ther~Jf, ~he Trustee shall pay to those entitled to receive the
sa;.ie, 111 i!Xpenses of the issuance o~ the Bonds upon presentation
0i st~t~~ents therefor, which such expenses shall be approved by
u repr~~entative of the Borrower.
~ection 4.2 Project Fund. There is hereby created and
-?st~l}Lished with the Trustee a Pro ject Fund. After making the
p.,y:nent:.1 r-•~·-1uired by Section 4.1 hereof, the Trustee shall depo-
s i~ ~LL ~f the balance of the proceeds from the sa le of the Bonds
i~ the ~roJect Fund .
The money in the Proj ect Fund, until applied in !,)ayment
0f 1ny item of the Cost of the Project, shall be held in trust by
t~e ~ru~~ee and, pending such application, shall be subject to a
lien .1n.i charge in favor of the holders of the Bonds and for the
f~rther ~ecurity of such holders until paid out as herein
pr~vi.JuJ.
7he rssuer covenants that the acquisition, construction
-11\..l ,1quip,n ent Jf the Project will be completed according to the
r,rovi.Hons Jf the Loan Agreement, The Issuer's liability for
completion of the Project shall be limited to the performance
t:ier-:?of by the Borrower pursuant to the Agreement .
Section 4.3 Requisitions. The Trustee shall make pay-
~ent3 fro~ the Pro ject Fun<.l to pay the Cost of the Proj ect upon
recei.pt iJY the Trustee of requisitions (upon which both the
T~~st 2e ~n<l the Issuer shall rely and shal l be protecte~ in
rel1 i:1J) s i •Jne<l by an Authorized narrower Reprasentative, stating
with respect to each payment to be made: (1) the requisition
nu,:iber, {2) the name an,l address of the Person to whom payment is
Ju~ {,:>r, in thl:! case of payments to the Oond fund, i.n stru·ctions
tu ,nar.e :.uch payments to the 8onu fund), ( 3) the amount to be
pai<l, (4) ch-1t each obligation, item of cost or expense mentioned
th~rein ha.s been properly incurred, is in payment of a part of
the Co~t of the Project and is a proper charge against the
ProJect lund and has not been the basis of any previous with-
lr:iw,\l, ,:,r that each obligation, i.tem of cost O'C' expense men-
ti·J1111•l ther~in has been paiJ by the Dor rower, is a re imbursemen t
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of a part of the Cost of the Project and is a proper charge
against the Project Fund, has not been theretofore reimbursed to
the Borrower or otherwise been the basis of any previous
withdrawal, and the Borrower is entitled to reimburse111ent thereof;
(5} that the Person signing such requisition has no notice of
any mechanics', materialmen's, suppliers', vendors' or other
similar lien or right to lien, chattel mortgage or conditional
sale contract, or other. contract or obligation which should be
satisfied or discharged before payment of such obligation is
made; and (6) such payment, when added to all other payments
previously made from the Project Fund, ~ill not result in less
than substantially all (at least 90%) of the amounts expended
from the Project Fund being expended and used for the
acquisition, construction, reconstruction or improvement of land
0r property of a character subject to the allowance for depre-
ciation within the meaning of Section l03(b)(9) of the Code,
Section 4.4 Retention of Requisitions, For 6 years
from the date thereof, the Trustee shall retain in its possession
all requisitions received by it as in this Indenture required,
subject to the inspection of the Issuer, its agents and
representatives, the Borrower and the Bondholders and their
representatives at all reasonable times at the Corporate Trust
Office.
Section 4,5 Surplus Funds. Upon completion of the
Project in accordance with the provisions of the Loan Agreement,
the Trustee shall be furnisheJ with a certificate of an
Authorized Ilorrower Representative showing such co@pletion and
the date thereof and the payment of the Cost thereof or the pro-
visions necessary to be made for payment there of, If, after the
Trustee shall have !let aside sufficient money for the payment of
any re:naining part of the Cost of any of the foregoing, the
balance on deposit in the Project Fund shall be less than an
amount sufficient to purchase at a price not to exceeJ the par
value thereof and interest thereon to the date of purchase ot" to
redeem at the earliest possible date, any Bonds, such balance
shall be paid into the BonJ Fund and the Project Fund shall be
closed; but if such balance remaining in the Project Fund shall
equal or exceed such amount, the Trustee shall deposit all of
such balance remaining in the Project Fund into the Redemption
Account and the Project Fund shall be closed. A.11 of such money
so deposited to the credit of the Redemption /\ccount shall be
promptl.t applied by the Trustee to the purchase or rejemption at
rionds, to the extent possible, The Trustee shall (l) purchase
oonds then Outstanding and available for such purpose as
designated in writing by the IJorrow-er ,,..ithin 10 jays after the
Completion Date, at a price not exceeJin::i-the par value thereof
-38-
anJ interest accrued thereon to the date of purchase, or (2) if
no iJon.13 then Out.st.anding and available for such purpose have been
Jesi3nace~ in ~riting by the Borrower within 10 days after the
~a~pld~ion Date, select by lot and call for redemptiG~ Bonds at
the ~arliest possible date, the aggregate unpaid principal amount
of ~hicn together with the applicable redemption premium and
Lnt<?rest \>ayable thereon to the date of redemption will most
nu~rl1 ~xhaust the money in the Redemption Account, pursuant to
the r:n::-.::ivi.;ions of Section '2,3(b){ii.i) and Article VIII of this
lnJentur~. ~fter completion of such red~nption, the Trustee
sh.:i.Ll leposit any balance of money rew_,ining in the Redemption
~~~aunt ~o ~he credit of the Bond Fund. Money so held in the
~~Je8~tion Account shall be invested at a r.ate not to exceed the
yi~LJ )n ~he ~ands.
-39-
ART ICLE V
C.:OLLEC'rION AND APl?LICi\TION OF Pl\'r.-\ENTS
AND RC:VC:NUES OF 'rim PROJ!~CT;
OOND FUND; REDE:-IP'rION ACCOUNT;
INVESTMENT OF FUND S
Section 5.1 Bond Fund. There is hereby established
a special trust fu nd, desigr,ated the "Dond Fund," which sha ll be
held in trust by the Trustee. The money in the Bond Fund shall
be applied solely to the payment of tr! principal of redemption
pr~1niurn, if any, and int erest on the Bonds , and expenses i nciden t
to the payment or redemption of Bonds, and to pay Administ ration
Expenses. The Bond Fund shall be mai ntai ned until the principal
of, redemption premi um , if any, and interest o n the Bonds shall
have been paid in full. There shall be deposited in the Bond
Fund (l} al l Loan Paymen ts r-equir ed by subdivisions (i), (ii}
(iii) and (iv} of subsection (a) of Section 4.2 of the Loan
A~reement; (2) all money required to be deposited in the Bond
Fund. pursuant to any o ther provision of the Loan /\greement or of
th is Indenture .
A Red~nption Account is hereby established in the 0ond
Fund. The Trustee shall deposit i n the 0ond Fund and credit to
the Redeillption Account an y mon ey recalved from the Borrower and
desi;3na ted oy the Issu er for Jeposit therein «nd any othe r mo ney
required to be d eposited therein by the terms of th e Loan
A·,:1ree:nent or this Indenture. Money so deposited into the
ReJemption ,\ccount sha ll be appli erl as follows: (1) Eor the i:,ur-
pose of paying debt service on the Bond s, when Jue, whenever the
'I'r;Jstee determines that o ther money held int.he Dond Pund shall
be insufficient for such purpose: {2) upo n receipt of a di rective
from an Authorized Dorrower Rep resenta tive, the Trustee shall use
its best efforts to purchase i3onds a t the mos t advanta ']eous p rice
obtainabl e with reasonabl e diligenc e, such price not to exceed
the applicable Redempt ion Price (which wo uld be payable on the
next possible Redemption Date) plus acci:ueJ interest to the ,late
of d elivery of the 13onds to the 'l'rustee: and ( J) for redemption
uf Bonds as otherwi se required by this Indenture. ~,e Trustee
shall pay the int13r e st accrued on such Bonds to the:! ,la te of deli -
ve ry ther~of from the l:lonu Fund ~n<l the purchase or recJcinption
pz:•ice fruin ino11e y i.n the R~:Jempti on Account, hut no such pu rchc1se
or i:-e <.lt.!inpt ion sha ll bP. made by the 'l'rustc c with i n the pei:-iocl of
60 duys next preceding uny principal or inte r ~st payment da te on
such 13o nds.
In conn~c tion ·,1i th the purch<\!:ic of !:lands, the '!'rustee
ma y ne':]O t ia te or ar r.:inge for such pur.clli.ise in suc.:h 1n,1n:-wr ( throllCJh
-40 -
biJs 0r ~ther•,1ise and with or without rece iving tenders) as it in
it:. li:;cc•.?tion shall determine . Upon the retirement of ,:1.ny Bonds
by p ur~hase oc re<lemption pursuant to this section, the Trustee
:.t1,1ll prornptl/ notify the Issuer and the Oorrowel'.' of the unpaid
pri11Cl:;Jal 1mount and ma turity of such Bonds, the amount of the
purchase ~>rice or the Redemption Price of such Bonds, the amount
paLJ -1s i.nc.erest thereon and the amount remaining in the Redemp-
tion ,\ccount after such purchase or redemption. The ex:penses in
connection with the pul'.'chase or redemption of any Bonds pursuant
to this 5o:?ction shall be paid from money in the Redemption
Account.
,.,,henever the amount in the 13ond Fund from any source
•,1hat:.oever is sufficient t.o effect the redemption of all
Jut.st.,1nJin~ ilonds on the earliest date at which they may be
rcJcemeJ i.n accordance with the provisions of this Indenture, and
to pa'/ -111 interest ·.1hich may accrue thereon on or prior to such
<lat~, th~ ~rus tec shall take appropriate action to redeem all
such JonJs on such date and the money held in the Bond Fund
sn.1 l l oe ,,ppl ied to the redemption of such Bonds and to the
pay~ent Jf $UCh interest and, when such redemption shall have
·::,een >Jffe~tetl, no further payments into the Oond Fund need be
:nade.
Section 5,2 Release of Funds Upon P,:1.yment of Bonds.
Any a;naunt.s remaining in the Don.J Fund after payment in full of
t~e ilonJs, the Administration Expenses and all other amounts
re~uireJ to be paid hereunder shall be paid or applied as pro-
v1Jcd in the Loan Agreement if there is no default thereunder.
Section 5,3 Trustee as Paying Aqent and Registrar . The
Tru:;tl?!e i.l i1ereby designated and agrees to act as a Paying /\gent
aml .:is Jond Registrar for and in respect to the OonJs.
Section 5,4 Payments Due on Sundays and llolidays. In
any c.J.se ·,1her C! the date of maturity of interest on or principal
of the 3on~G or the Redemption Date shall be in the place of
pdy~ent, ~ Sunday or legal holiday or a day on which banking
institutions are authorized by law to close , then payment of
interest. or principal and premium, if any, need not be made on
such Jat~ in such city, but may be made on the next succeeding
busi~ess Joy not a Sunday or a legal holiday, or a tlay upon which
baniting institutions are authorized by law to close, with the
sa.ne force anJ effect as if made on the date of maturity or t.he
date fixe..l for redemption or pay;nent, and no interest shall
accrue for the period after the stated date for payment.
Stacti.on 5. 5 Security for Funds. The money ,'lt any time
on 1Ci)03it in the Project Fun<.l anc.l the 13onc.l ~•uml shall he anJ. at
-41-
all times remain funds impressed with a trust for the purpose for
which each of such funds was created.
Section 5.6 Investments of Project Fund. M3 promptly
as practicable following the issuance and sale of any Bonds and
from time to time thereafter, the Trustee will request the
~orrower to furnish to it a written certificate stating the
approximate dates that money will be required to be disbursed
from the Project l:'und and the amounts estimated to be disbursed
on such dates. Promptly after receipt of each such certificate,
the Trustee will, in accordance with t :,e written instructions of
the Borrower, cause the Project Fund money certifieu in the cer-
tificate to be invested in Investment Securities which mature, or
which are subject to redemption by the holder, no later than the
dates on which money will be required as shown in the certifi-
cate. All income on such investments shall be deposited in the
Project fund, The Trustee may from time to time cause any such
Investment Securities to be sold or otherwise converted into
cash, and shall cause such Investment Securities to be sold or
otherwise converted into cash whenever cash is needed for the
purpose for which the Project Funu was established.
Section 5.7 Investment of Money in Bond Fund. Any
money held as part of the Bond Fund (including the Redemption
Account therein) shall be invested or reinvested by the Trustee
in such Investment Securities as are uirected in writing by the
Borrower from ti,ne to time. '!'he Trustee may in making invest-
ments treat all money in such Fund as constituting a single
account in acquiring Investment Securities: provided, an accurate
record allocating invest.nents to the Oond Fund and Redemption
Account is maintained. Any such investments shall be held by or
under control of the Trustee and shall be deemed at all times a
part of the Fund or Account for which the investment is made.
All income and all profits realized on the investment of money in
such Fund or Account during the period prior to complet ion of the
ac4uisition, construction and equipment of the Project shall be
paid into the Project Fund, and all such income and profits
realized after completion of the acquisition, construction and
equipment of the Project shall be transferred by the Trustee to
the Bond Fund and credite<l to the next maturing Loan Payment due
under subsection (a) of Section 4.2 of the Loan A9reement and
applied to the next installment of principal or interest coming
due on the Bonds. 'l'hc ·rrus tee shall se 11 and reduce to cash a
sufficient portion of investments of such Fund or Account. when-
ever cash is needed for the purpose for which such Fun~ or
Account. ~as established.
Section 5.8 Trustee's Responsibility. The Trustee
shall have no liability or responsibility Ear any loss resulting
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fro.n invest:nents 1nade u nder the Indenture except for fai lure to
keer .,uch :n oney invested in accordance with the written instruc-
tions ,)t the 13orrower, 'l'he Borrower shall not cause the Trus tee
t.:, inv~st :mt money under Section 5. 6 or 5. 7 hereo f ac a yield
(as useJ i.n 3ection 103(c) of the Code} in excess of the y ield on
the BonJs, unl ess the written inst ruc tions of t he Borrower are
,1ccompani~·.I by an opinion of nationa lly recognized bond counse l
that ~uch inv es tment will not violate the provisions of Section
S. J hereof.
Section 5.9 Arbitrage Provis ion. The !ssuer and the
Jo rr.:,,,..~r sha.ll be obligated to comply with the requirements of
Secti::>n l03 (c) a nd the applicable regulations thereunder through
the -:.er.:1 of the Bonds. This prov ision shall constitute a cove-
nant <)'f ':.h e Issuer and by the Oorrower wi th the purcha ser or
purchasers of the Donds,
~ection 5.10. Investments Through Trustee's Bond
Deo.:irt::ie nt . The Truste e may make a ny and all inve stmen ts per -
::ii ':. ::.c!u :Jy ;;~ct ions 5, 6 and 5. 7 hereof through its own bond
Jep~r~~ent or the bond d e part~ent o f any bank or trust company
af!Li1aceJ with the Trustee.
-4]-
ART I CI,!~ V [
COVENANTS BY THE ISSU~R
The Issuer, for itself, its successors and assigns,
covenants ;i.n d agrees with the Trus~ .. ~-~ ,.nd the holders from time
to time of the Bonds as follows:
Section 6.1 To Pay Principal, Premium and Interest of
Bond s. Solely from the Revenues and ~ther funds pledged here-
under, the Issuer wil l duly and punc~ually pay, or cause to be
duly and punctua lly paid, the principal of and the interest and
redemption premium, if any, on each and every l3ond at the place,
on the dates and in the manner provided in this Indenture and in
the Bonds, according to the true intent and meaning of this
Indenture and of the Bonds.
Section 6.2 Acquisition of Project. The Issue r will
cause the Borrower to complete acguisition, construction and
equipment of the Pro j ect with due dilig ence. All money der ived
from the sale of the Bonds shall. be used so l ely for the purpose
!:or which the same are au t horized un<ler thi.s Indenture and not
otherwi se .
Section 6, 3 Cooperation 1o/ith 13orrower , 'rhe Is suer will
cooperate wi th the 0orrower to ~he end tha t the Pro ject 1nay be
placed in operation at the ear liest poss ible time, and thereaEter
be operated by the Borrower in the most successful and productive
man ner possible .
Section 6. 4 Covenants and Repr esentat ions. 'l'he Iss uer
covenants that it will faithfully perform at all times any and
all covenants, undertaking s , stipulations and provisions con-
tained in this Indenture, and in any □and execu ted, authenticated
and delivered hereunder. The Is s uer covenants that it is duly
authorized un<ler the laws of the State to issue the Bonus
authorized hereby and to execu te .-:m<l d eliver this I1vJenture an<l
the Loan Agreement and to assign the Loan /\greement (inel.uding
the Mort·,Jage and Security Interest creilt.eu thereby) and pledge
the Revenues anu other amounts h~reby pledged in the manner and
to the extent here in set forth; tha t . all act.ion on its part for
the issuance of the 13onds an<l Llelivery of the Loan Ag reement. h,:13
been duly and effectively taken; and that the 13onus in the h.inds
of the O1-mers ther eof are and will be va l id a nd enforceable spe-
cial obliga tions of the Issuer according to the import thereof.
Section 6 . 5 Riqht to l~in:i.nce Project; [ns tnuncnts rJf
Further Assurance; Reconlinq of Lnstru me nts. The Issuer ;::ave-
-44-
:i.:1nt;5 tt1..lt. it ,..ill defend its interest in the Trust Estate for
the h~nofit 0f the owners of the Bonds against the claims and
Jt?manJs af c.111 Person~ lot'homsoever. The Issuer covenc1nts that it
,..tll ~ake such further actions as the Trustee may reasonably
require :or the better assuring, pledging, assigning and con-
Eir~Ln1 ~o the Trustee, all and singular the rights assigned
hare-□ y ·:o the payment of the principal of, pc-emium, if any, and
intt?C"~st on the Bonus. The Issuer covenants and agrees that,
e xce!Jt. .1s hec-ein and in the Loan Agreement pC"oV ided, it will not
sell, convey, mortgage, encumber' or othenvise dispose of any pac-t
~i t~s lntec-est and rights in the Note, the Revenues, the Loan
~gc-~~ment, or-any other-portion of the Trust Estate,
7he Issuer ~ill cause this Indenture and any and all
~Jdi~ion~l instruments executed pursuant to the provisions hereof
at dll times to be recoc-ded and filed and kept recoc-detl and filed
in such ~ublic offices as may be necessary or required by law in
OC"Jt?r ~ully to preserve, continue and rrotect the security of the
!3onJs .:i:iJ the C"ight.s and remedies of the Trustee. The Issuer
·,Hll :ully comply with all the C"equirements of any and every
recorJLn1 law or-any other law affecting the due recording and
filing ,Jf this Indenture or of any such additional instruments.
::'ht! [ssller ·..Jill also cause the Loan Agreement {or-the Mortgage
J.nJ ,1n 'l['pe"opriate financing statement), and any supplements
ch~r~to to be filed and recorded in like manner.
Section o.6 Rights Under Loan Agreement. The Loan
A]C"~eraent sets foe-th the covenants and obligations of the
Issuer 1nJ the uorrolot'er, and reference is hereby made to the Loan
,\,3r,~ement tor a detailed statement of such covenants ancl
ool iy:itions. The Issuer-agrees that the Trustee in its name oe"
La thl.l name of the Issuer .nay enforce all rights of the Issuer
.llld ,lll rJbligations of the Oorro,.,.er under and pursuant to the
i,.::,a.n .\,Jree::ient, for and on behalf of the Bon<.lholders, whether or
not the rssuer is in DefJult hereunder.
Section 6.7 Insurilnce, Repuirs anu 'r.i.xes. The Issuer
sh.i.11 c~use the ilore"ower at its cost and expense to insue"e the
i:'r:JJ•~ct, t.o kee!? the Project in good oruer and repair anu to pay
all L~wiul taxes, assessments and chae"ges at any time levied or
.1GS1hi5ed upon or-agilinst the Project or any part. thee"eof which
:ni 1ht. i:apair or prejtH..lice the lien or pri0cit.y of this Indenture,
.11.1 ,1s ,)roviclt?d in the Loan Agreement. The Issuer shall also
cause the Ooc-c-ower to ~eposit lot'ith the Tc-ust.ee all policies of
Lnsur.1nce cequired to be maintainecl un<ler the Loan Agreement or a
cert.i(i~~~e or cec-tificat.es of the c-espective insuc-ers ~ttesting
the tact that ~uch insurance is in full Eorce and effect. Prior
to the expiration ilnd cancellation of any such policy, the Issuer
shall cause the Borrm.,,er to furnish to the Trustee sat is Eactory
evidence that such policy has been renewed or replaced by another
policy, in accordance with Section 5.4 of the Loan f\qreement.
Section 6.8 Performance of Covenants by Issuer and
Borrower. The Issuer will faithfully perform at all times any
and all covenants, undertakings, stipulations and provisions con-
tained in this Indenture, in any and every Bond executed, authen-
ticated and delivered hereunder and in all proceedings of its
Board of Trustees pertaining thereto.
The Issuer will require the Borrower faithfully to per-
form at all times any and all covenants, undertakings, stipu-
lations and provisions contained in the Loan Agreement. The
Issuer will promptly notify the Trustee in writing if, to the
knowledge of the Issuer, the Borrower fails to perform or observe
any of the agreements or covenants on its part contained in the
Loan Agreement or it fails to perform or observe any of the
agreem8nts or covenants on its part contained in this Indenture.
The Issuer will promptly cornply with the instructions or direc-
tions of the Trustee with respect to the giving of notice of
default to the Borrower and the exercise of rights and remedies
in the event of default under the L::.an Agreement. Unless so
instructed or directed, the Issuer 1•1ill not give the Borrower a
notice of default or exercise any right or remeJy under the Loan
Agreement.
Section 6,9 Inspection of Project Gooks. All books and
documents in the Issuer's possession relating to the Project and
the Revenues, including any financial statement or other report
by the Borrower, shall at all times be open to inspection by such
accountants or other agencies as the Trustee may from time to
time designate.
Section 6.10. No Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner proviued in
Section 10.0, a Trustee, so that there shall at all times be a
Trustee hereunder,
Section 6,11 Issuer Will Not Extend Time of Payment
of Bonds Without Consent of BondholJers. The Issuer will not
directly or indirectly extend or consent to the extension of the
time of payment of any of the □onus, unless consented to by the
holder of the Uond so affected.
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ARTICLE: V II
POSSC::SSION, USE, DES'l'RUC'rION Al\JD
CON DEMNT,>.TIOt.J Ol~ PROJECT
Section 7,1 Indenture Subject to Rights of the Oorrower.
::>O Lon:J H the uorrower is not in de fault under the provisions of
t:;u :..;:,.'In ,\qre ~men t, this Indenture and the rights and privileges
horeun,l~r .Jf t.he Trustee and the holders of the Bonds are speci-
Eic~ l ly ~ade $Ubj ect and subordinate tn the rights and p rivil eges
or t.:rn :3cJ rrower set forth in the Loan Agr eement, and the Borro wer
sn~ll oe ~ntitled to possession of the Project a nd all other
ri.-}hts unJe r t.he Loan Agreement.
~action 7.2 Condemnation or Destructi on of or Damage to
the i'ro1ect. In the event of con<lemnation or destruction of or
-lacn:q~ :.o ::.he Project, provision is :nade in the Loan Agreement
for t.\1e .1pplication of the Net Proc:eeds (as therein defined) of
in~ur~ncc ;:,r condemnation awards, All such proceeds shall be
:1e l,l rnJ 1pplied as provided in the Loan Agreement. Any such
proceeds nel...l by the Trustee for the purpose of repairing,
raouLlJing or restoring the Project shall be deposited in the
Pro J~Ct ~u nd and withdrawal s shall be made therefrom upon
c~:;ipli ,,nce •,1ith the provisions of this Indenture with reference
to Jisoursements from such Fund.
Section 7.J No Liens. Except for Permitted Encum-
:,r3nc~s ar ~s oKp ressly permitted hereunder or in the Loan
.\<J rc<?1aent, no lien, encumbrance or other right shall be permitted
·,nt;1 C'espect to any of the Project nor shall any lien, encumbrance,
.issLyn::ient -.,r other right be permitted with C'espec t to any
~ev~nuds ,1hich is prior to or on a parity with the lien of this
rnuenture, except for Permitted Encumbrances.
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ARTICLE: VII I
REDE~1PTION OF BONDS
Section 8.1 Exclusive Procedure. Any redemption of
Bonds which are subject to redemption , including any reuemption
through the operation of any fund hereunder, s hall be made in the
nianner provided in this Article VIII.
Section 8.2 Limitations, A redemption of Bonds issued
unuer the provisions of this Indenture and then Outstanding shall
be either (1) a redemption of the whole or any part of one or
more series from the proc eeds of ~dditional Bonds issued under
the provisions of Section 3.4 of this Ind enturei (2) a redemption
pursuant to the provisions of Sections 2,3, 4.5, or S.1 o f this
Indenture; or (3) a redemption pursuant to the provisions of a
Su ppl emental Indenture.
Unless otherwise provided in respect of a particular
series of Bonds, if less than all of the Bo n ds of a series of any
one m3turity shall be called for redemption, the particular Bonds
or portions of Bonds of such maturity to be retleemeJ shall be se-
lected by lot by the Trustee, or in such other manner as the
Trustee in its discretion may deem proper in order to assure to
e ach holder of Bonds a fair opportunity to have his Bond or Bonds
or portions thereof drawn: provided, however, the Trustee shall
treat each such Bond of a denomination of more than $1,000 as
representing tha t number of Bonds of $1,000 denomination obtained
by dividing the principal amount of such Oond b y $1,000.
Section 0,3 Notice. In the c ase of any redemption,
the Trustee shall give in its own name or in the name of the
Issuer not ice by mail, as hereinafter in this Section 0.3 pro-
vided, that Bonds of a particular series a nd maturity date ide n-
t ified by se rial numbers have been called for redemption and, in
the cas e of Bonds to be redeemed in part only, the portion of the
principal a mount thereof that has been called for. redemption (or
if all the Outstanding Bonds are to be redeemed , so stating, in
which event such serial numbers may be omitted ), that they will
be due and payable on the Redemption Date (specifying such Jate)
upon su rrender thereof at the Co r~o rate Trust Of fice , at the
applicable Redemption Price (specifying such price), and that ~11
interest on the Donds, or portions the reof , so to be rede emed
will cease to accrue on and after such date.
Notice shall be mailed lly first class mail, in -t sealed
e nvelope, postage prepa iJ, a t least 30 days but not more than 60
days ( except with r espect to r e ucmpt.ion ut the option of the
Bo ndholders) before the Reuernption Da te, to the registeretl owners
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of such □onJs, or portions thereof, so called, at their respec-
tive 1Jdresses as the same shall last appear on the i3ond Register:
but. the :nail in::; of such notice shall not be a cond:l tion precedent
to such reJemption, and failure so to mail such notice shall not
,:itf'?ct the validity of such call for redemption. Any notice in
this [nJant.ure i:-equired may be omitted if the holders of all the
:J sin,ls ~a.llad Ear redemption give to the Trustee a written waiver
o.:: :.:;uch notice.
ln case, by reason of the s•1spension of or irregulari-
ties Ln regular mail service, it shall be impractical to mai l
not.i~c to the registered owners of registered aonds, then any
:;iannei:-,.J.t <Jiving such not.ice as shall be satisfactory to the
Tr~st.ce :.:;hall be deemed sufficient giving of such notice.
Section 8.4 Redemption. If notice of redemption has
been Jl~en d5 provided in Section 8.3 of this Indenture, the
JonJs Jr 9ortions thereof called for redemption shall be due and
pay.io lt! ,m the Redemption Date at the Redemption Price. Payment
~i the ~edemption Price shall be made by the Trustee upon
surr,~nder :d: such Bonds. The principal and premium, if any, on
3on,ls ~~ be redeemed shal 1 be paid out of the Re d emption Account.
The ~X?ense of giving notice and any other expenses of redemption
s:iall oe [luid by the Trustee and shall constitute an l\dminis-
tro.ti.•:>n ~xpense. Accrued interest shall be paid out of the Bond
~u~d .is ?rovided in Section 5.1 of this Indenture. If there
Sh-ll l :)e· ..;~l led for re<lemption less than the entire unpaid prin-
~ipal .,,:,aunt of a Bond, the Bondholder shall, on the Redemption
Uat.e, submit his Bond to the Trustee for notation thereon of the
portion of the unpaid principal amount redeemed.
From ,1nd after the Redemption Date designated in such
notice (deposit of redemption money having been made with the
Trustea ~nd notice having been given or waived as aforesaid),
not.wiLhsto.ndin3 that any Bonds so called for redemption in whole
or in n.:irt shall not have been surrendered for cancellation, no
furt.he~ interest shall accrue upon the unpaid principal of any of
tha ilond s or portions thereof so c a l led foi:-redemption; and such
Oonds or portions thereof so to be redeemed shall cease to be
~ntitled to ~ny lien, benefit or security under this Indenture,
~nd the holders Ll1ereof shall have no rights in respect of such
i3on,Js ,)r r>urtions thereof except to recei.ve payment oE the
itetleinption Price.
If and when any of the Bonds are to be reJeemed pursuant
t.o tha pi:-ovisions of the Indenture, the Borrower shall, prior to
the !l.~Jemption Dat~, deposit ~r cause to be deposited with the
Tr..istee ,-in .J.mount in immediately ,:1.vai lable funds suffici~nt to
-4-9-
provide the Trustee adequate funds to pay the full Redemption
Price and all Administration Expenses. If the amount so depo-
sited includes a premium paid by the Borrower pursu~nt to Section
10.2 of the Agreement, the Trustee shall disburse the amount of
such premium to the holders or prior holders of the Donds in pro-
portion to the length of time the Bonds were held by each such
holder or prior holder during the period which the interest on
the Bonds has been determined to have been taxable for federal
income tax purposes, Such lengths of time may be conclusively
established by the sworn affidavits rf the holders and prior
holders presented to the Trustee, which shall be authorized to
rely conclusively thereon in disbursing the amount of such
premium.
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I\RTICLC: IX
DEFAULT PROVISIONS AND REMEDIES OF
TRUST EE AND DONDIIOLDERS
3~ction 9 .1 Events of Default. If any of the following
<!Ven t~' .Jccurs, it is hereby defined as and declared to be and to
constitute -ln "Event of Default":
(a) Failure by the Issuer t, pay the principal of,
reue:n;:,::.ion premium, if any, or interest. on any □ond as and when
the :3a:ne i.:,ec omes due as therein and herein provided, whether such
3hal.l oeco:ne .Jue by maturity or otherwise.
(o) Failure by the Issuer to per.form any of the agree-
::ient.;; ,:in its part herein contained (other than its agreement to
pay ':.h~ princi2al of, rede mption premium, if any, a nd interest on
tne JonJs) 3fter 30 days' written notice of such fai lure (which
not.ice :nus t. st.:it.e that it is a "Notice of Default" hereunder)
.naJ<? ::iy ':.h~ Trustee to the Issue r or made to the Issuer and the
Tt".l~t•~e i}'f the holders of 10% in agg regate principa l amount of
the uonJa then Outstanding and sec ured hereby, unless during such
perioJ ~r lO'/ exte nsion thereof, the Issuer has taken steps
r~asonably calculated to remedy such defau lt.
(c) Appointment by a court having jurisdiction of a
receiver for the Issuer, or approval by a court of competent
J~riulict.ion of any petition for rearrangement or readjust~ent. of
t.!\e obli,Jatians of the Issuer un<ler any provisions of the
oa n~r~9tcy la~s of the united Sta tes , and the continuation of such
appo int~ent or approval unst.ayed and in effect for a period of
60 consecutive <lays.
(J) ,\n Ev ent of D~fault under the Loan Agreement or the
Gua r::inty.
{el Default by the Borrower with respect to any cove-
nant. or .1.qreement on its part cont,1ined in any Bond Purchase
,\gree:nl?nt.
::iec tion 9.2 Remedies on Default. Whene ver any Event of
Jef~ult sh.:i ll have happeneJ and be subsisting:
(.1) The •rrustee may, and upon written request of t he
holders of not less than 25".'s in <l<]gregate principal .Jmount of the
□onJs then Outstanding shall, by notice in writing delivered to
the Is:aul?r, decl.:ire t.he 11np.:iid principal of all of the Bonus then
Out~t..:inJing ~nd the interest accrued thereon immediately <lu e and
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payable, and such principal and interest shall thereupon become
and be immediately due and payable, anything in this Indenture or
the Bonds to the contrary notwithstanding: subjec~, however, to
the discretionary right of the Trustee and, upon written notice
to the Trustee by the holders of a majority in aggregate prin-
cipal amount of the Outstanding nonds, the duty of the 1'rustee to
annL1l such declaration and destroy its effect at any time before
tfie Project shall have been sold pursuant to any provisions of
this Indenture, if all covenants with respect to which default
shall have been made, shall be full ; performed, and all arrears
of interest upon all Bonds Outstanding hereunder and the reaso-
nable expenses and charges of the Trustee, its agents and
attorneys, and all other payments requ ired by this Indenture
(except the principal of any Bonds not then due by their terms)
shall be paid, or the amount thereof shall be paid to the Trustee
for the benefit of those entitled thereto.
(b) The Trustee may proceed to protect and enforce its
rights and the rights of the holders of the Donds hereunder and
un<ler the Oonds, by a suit or suits, whether for the specific
performance of any covenant or agreement herein contained or in
execution or 3id of any power granted herein or for the enforce-
ment of any other proper, legal or equitable remedy, as the
Trustee, being advised by counsel, shall deem most effectual to
protect and enforce its rights and the rights of the holders of
the Bonds.
(c) The Trustee shall be entitled upon or .'lt any time
after the commencement of any proceedings instituted in the Event
of Default, as a matter of strict right, as against the Borrower
and the Issuer, without notice or demand and without regard to
the adequacy of the security for the Bonds or the solvency of the
Borrower or the Issuer, upon the order of any court of competent
jurisdiction, to the appointment of a receiver of the Project and
of the rent, revenues and income from the Project, with power to
lease the Project. Any such receiver shall, except as herein
otherwise provided, have all the usual powers and duties of
receivers in similar cases, with full power upon the order of
such court to lease the Project, or any part thereof, upon any
terms approved by the court, but notwithstanding the appointment
of any receiv~r, the Trustee shall be entitle<l to retain
possession and control of, ancJ to collect and receive the income
from, cash, securities and other personal property hel<'l by, or
re4uired to be deposited or pledged with, tlw Trustee hereunder.
(cJ) The 'l'rustee may, in its discretion, with or without
declaring the □onds or the Note due anJ payable, entor upon anJ
take possQssion of the Projoct anJ lease, sublease or as~ign any
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l.?:\S.:! )t the same in the name and as the agent of the Issuer and
tl,l! drJrt\..>wcr 1.nd from time to time main tain and restore a nd
insur~ JnJ k~ep insured the same , in the manner a~d to the same
~xt2nt ,s is u s ua l with like proper ties a n d likewise , from time
to t.L~e. ~3ke all necessary repairs, renewals, replacements,
.l l t~r.1tLons, ,1dditions and improvements thereto and thereo n as
may ;~e,a judicious and l ease the s ame or any par t thereof, as
ef fl!ct u~l lt as the Issuer could do, and the Trustee shall be
~ntit leJ to collect a nd r eceive all rents, revenues and income of
the :'r.:>Jl!Ct a nd eve ry part thereof -"nd, after paying the expens e
of l.?a!lLri·-3 the s,1 me, including the expense s of maintenance,
r-~,>.:11r s .1n :l insurance or other charges thereon, as well as just
~nu r~dsonable compensation f or the services of the Trustee and
i.ts .,.;.:mt.s, attorneys, receivers, or counse l, the Trustee shall
appl/ ~he money arising as aforesaid as provided in Section 9.7
hercoi:.
{~) The Trustee, with or without entry, personally or
by .1:;.~.:,ra~•,, :nay in its discretion sell, or cause to be sold all
1nJ 3L:iJul~c the Project, and all the estate , right, title and
Lnter~st, ~laim a nd demand therein , or any part of the eroject,
incluJ1r13 ~ny item of Eguipment, such sale or sales t o be made at
puol .i.c r,u tcry at the main door of the Indian River County,
Florida, courthouse, at such time or times and upon such terms as
::ta y !",e ::-c ,,iui r ed by law or as the Trustee mily determine afte r
hav1:i~ firs t given notice of the time, place and terms of sale,
to~etner ~ith a description of the property to be sold, by publi-
c aci~n ?nee 4 ~eek for 3 consecutive weeks prior to such sale in
any ne~spap~r then published in such County, td the eKtent such
suit ?r proceeding may be required by law, with or without
f urthcc, other or inciden tal r e lief , such as the appoin tme nt of a
receiv er, the speci fic enfo rcement of covenants o r obligations or
an injunction to prevent violations or threatened vio l ations of
.:iny covenant, obligation or agreement provided by this Indenture.
(fl The Trus tee may take any act ion or e xerci se any
ri3i1t :ir r,,rivilege, with respect to the Project, as is or. may be
pen:1it.teJ \Jy secured creditors yenerally under the laws of the
St.:tte.
(J) The Trus tee may fore close the Mo rtgage by j udicia l
proce!!:iin1 s in the mann er proviueu by Lhe laws of the State for
the torccLosure of mortgages , and in such event may bid for or
beco~e th e purchaser of the Project at the foreclosure sale and
be ent itled to hav e th e purcha se price payable at f orec los ure
sa le p,liu by cre.Jit to t.he juc.lg111 e nt of foreclosure , and sha ll be
enti.tleJ t,) recover a deficiency judgment for the balance, if
an1, Jue ~nJ payable hereunder.
-53-
Section 9.3 Sale of Project. On any sale of the Pro-
ject or any part thereof by the Trustee pursuant to any of the
foregoing powers,
( a} the principal of all the Bonds not yet matured or
declared due shall forthwith become due, anything therein or
herein to the contrary notwithstanding:
(b) if the whole of the Project shall be offered for
sale, the Project shall be sold in one pcrcel and as an entirety,
unless the Trustee shall deem such sale as an entirety to be
illegal or impracticable or inadvisable by reason of some statute
or other cause;
(c} any fixtures, personal property or chattels consti-
tuting a part of the Project may be sold without having such prop-
erty at the place of sale, and the Issuer, for itself, its
successors and assigns and for all persons hereafter claiming
through or under it hereby expressly waives and releases all
right to have the Project or any part thereof at the place of
sale;
(d) the Trustee may adjourn, or cause to be adjourned,
from time to time, any sale, by announcement at the time and
place appointed for such sale or for such adjourned sale or
sales; and, except as otherwise provided by law, such sale may be
made, without further notice or publication, at the ti~e and
place to which the same shall be so adjourned;
(e) if on the sale of the whole of the Project, no cash
bid be received in an amount sufficient to pay all amounts then
owing to the •rrustee and the Bondholders, the Trustee may be the
purchaser at such sale, crediting on the Trustee's bid the aggre-
gate amount of all sums due the Bondholders and the Trustee under
this Indenture, and the Trustee may thereafter sell all such prop-
erty for an amount less than sufficient to pay all amounts then
owing to the Trustee and the 13ondholders or for a consideration
consisting of part cash and part purchase money mortgage, or
both; provided; (1) that such sale and the terms and amounts of
any purchase money mortgage are approved in writing by the
holders of a majority in aggregate principal amount of the then
Outstanding Oonds, and (2) that in the opinion of the ·rrustee,
the price obtained at such sale represents the fair market value
of the property sold, as dernonstrated by more than one qualifieu
bid or by appraisal by an independent appraiser acceptable to the
Trustee;
(f) any 13onuholder or 13ondholders or the Trustee, or
any of them, may bid for and pur-chase the Proj,~ct, or the portion
thereof to be sold, at such sale;
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{]) the purchaser may make payment, in whole or in
part, ~f ~h~ 3mount by which his bid exceeds the sum necessary to
Ji~c:,~r~u Jny prior liens and to pay costs, charges, fkes and
cxp1?ns1?s :,y receipting for the share of the proceeds of the sale
to "'hl~n JS a aondholder he will be entitled; and
(h) to the extent that such rights may lawfully be
w~ivell, :,either the Issuer nor the Borrower nor any one cla iming
by, ':.!1rouqh or •Jnder the Issuer. or the Borrower shall set up,
cl3i~ ?r ~e~k to take advantage of any a~pra isement, valuation,
st3y, ~xtension or redemption laws n ow or hereafter in effect, in
.:nJer -:;;) :ir~vent or h i nder the enforcement of the Loan Agreement
or this I:1Jenture or the foreclosure of such lien, but the Issuer
.-111..J ~!--.<! ,3orrower, for themselves and all who may claim by,
ti,r:Ju.:in ..>r ,mJer the I ssuer or the Borrower, hereby waive, to the
QXt~nt ~hat they may lawfully do so, the benefit of all such laws
1n:.J ·111 :men rights to which they may be entitled under the laws
0f -:~e Jt1te: provided, however, that any deficiency remaining
~ft~r j~l~ ?r foreclosure sha ll not constitute a general obliga~
ti.Jn <:>:: -:ne issuer but shall be payable by the rssuer. solely from
th~ sour;:as pledged therefor under this Inuenture.
Sec tion 9,4 Rights and Remedies of Trustee on Default
un.ler :..0;1n .-\greement. The ·rrus tee shall have the right in the
:1.1::1e )t ;;.he Issuer to declare any default and exercise any remedy
or r~~edi•s unJer the Loan Agreement, including the righ t to
J~cL1r~ c.he .'late Lnmediately due and payable and to take any
~v;1ilable proceedings against any party liable for the payment
tner~of, incluuing any guarantor of the Borrower's obligations.
In cne uvunt 0f a default by the Borrower, as described in
S!lc~ion 9,1 of the Loan Agreement, in the punctual pay:nent of the
~oce sufficient t o pay the principal and interest on all the
~onus Jutstanding as such principal and interest become due and
p~y;1Dle, the Trustee may and, upon the written request of the
holJers ot ~at less than 25% in aggregate principal amount of the
DonJs then Outstanding, the •rrustee shal l dec lac-e such Note in
def~ult ~nd, upon being indemnified to its reasonable
satisfaction, shall pursue such proper c-em e<li es as may be
uirect~d lJy the holders of such Oonds for the enforcement of the
pro·,i~ions of the Note, the Laun Agreement or any guaranty and
the ~xercise of .:i.ny remedies available to the Issuer or the
Tr·Jstee i:1 t.he even t of such uefault under the Note, the Loan
,\•3"r:~eme11t anu •lr1Y guari\nty subject ; howevei:, to the discretionary
ri .Jht ;:if the Trustee anJ, upon written notice to t he Trustee by
t!le hoL..Jers o f .:i .najority in i\ggregate principal. amount of the
OucBt~nJin1 nonds, the duty of the Trustee to annul. such declaro-
ti on :rnj lestrot its effect at. .1.ny time before the l'roj(l!ct sh.:i.ll
hav,J u~en sol.J pursuant to any provisions of thi s Indenture, if
-55-
all arrears of Loan Payments and the reasonable eKpenses and
charges of the Trustee, its agents And attorneys, and all othe r
payments required by the Loan .'\greement which are then due and
payable shall be paid to the Trustee. In the performance of any
of the acts or duties imposed upon the Trustee under the Loan
Agreement, the Trustee shall have the same rights, imm unities and
protections as are provided for the performance of acts or duties
imposed upon the Trustee under this Indenture.
Section 9.5 Rights and Remed4es of Trustee in the 8vent
of Bankruptcy, Etc. In case of the pendency of any receivership,
insolvency, liquiJation, bankruptcy, reorganization, arrangement,
composition or other judicial proceeding relative to the Issuer,
the Dorrower, any guarantor or other Person obligated to make
Loan Payments, or the Trustee (irrespective of whether there has
been a Default under this Indenture) shall be entitled and
empowered, by intervention in such proceedings or other·,Jise, to
file and prove a claim or claims for the whole amount owing and
unpaid and to file such other papers or documents as may be
necassary or advisable in order to have the claims of the Trustee
(including any claim for reasonahle compensation to the Trustee,
its agents, attorneys anu counsel, and for reimbursement of all
expenses and lia'oilities incurred, and all advances inade, by the
Trustee except as a result of its negligence or bad faith) and of
the Dondholders allowed in any such judicial proceedings, and to
collect and receive any money or other property payable or deli-
verable on any such claims, and any receiver, assi3nee or
trustee, liquidator, seq~estrator (or other similar official) in
any such judicial proceeding is hereby authorized by each oE the
Bondholders t.o mak e pay;ne.nts to the Trustee.
Section 9.6 Rights of Oorrower in event of Default by
Issuer under this Indenture. If the Borrower is not in default
hereunder, and an Event of Default should occur under this
Indenture, the Trustee shall noti fy the [3orrower in writing of
the occurrence of such default , and the Borrower shall have the
riyht to remedy such default hereunder within 30 days after such
written notice; provided, the Oorrower shall pay all expenses of
remedying such default. The exercise of the remedies set forth
in Section 9 , 2 are subject to the right oE the !3orrower un<ler
this Section to rerneuy u Jefault as in this Section provided and
li:niteu.
Section 9.7 Application of Money Collected. Any money
collecte~ by the Trustee pursuant to this Article shall be ap-
plied in the follo·,..ing or.Jer, at tht? uate or ,lates fixed by the
Trustee, and, in case of the cli.strihution of such money on ac-
count of principal, premium, if any, or interest, upon presenta-
tion of the Gonds, and upon ::iurremler thereof if fully paid:
-56-
First, to the pay:nent of all amounts for which the
Tr~st~c has~ lien under Section 10,7 and all expenses in
r,r.ast.?rvin~, :naintaining and insucing the Project.
3econd, to the payment of the amounts then due and
unpaiJ upon the Bonds for principal, pcemium, if any, and
i:1tt?rest., in cespect of which or for the benefit of which such
money has been collected, ratably, without pref~rence or priority
of ~ny ~ind, 3ccording to the amounts due and payable on such
Jonds, for principal, premium, if any, Jnd interest,
respect1·1ely,
·r-hir1, to the payment of the remainder, if any, to the
!$su~r, its successors or assigns or to whomsoever may be
t...iwc·.Jl.lJ 1.mc.itled to receive the same or as u court of competent
Jurisdiction may direct,
3~ction 9.8 Bondholders ~eed Not ~e Joined. ~11 rights
or .;.:tion ( including the right to file proof of claims) under
-c.:1L; ~nJ<Jnc.ure or under any of the Bonds may be prosecuted and
~n::occe,1 'oy the Trustee without the possession of any of the
ilo1uls Jr the production thereof in any trial or other proceedings
r~l~t.i.~~ thereto, and any such suit or proceeding instituted by
tnt? :'r:.i!>tee shall be brought in its name as trustee of an express
trust ~ichout the necessity of joining as plaintiffs or defen-
dants ~ny holders of the Bonds, ancl any recovery shall (after
provi::;i,Jn Ear t:.he payment of the reasonable compensation,
(!:<;Jl:!nscs, ,lisbursements and advances of the Trustee, its agents
."lnd counsel) be for the ratable benefit of the holders of the
0ut~t~nJin~ Bonds in respect of which such judgment has been
r~cor.:leu,
Section 9,9 Right of Bondholuers to Direct Proceeding~.
The holJers of a majority in aggregate principal amount of the
Out~t.'.l.n:li:q :lon:.ls sh;il l have the ri']ht to clirect the time, method
."lnd rl~ce of conducting any proceeding for any remedy available
to the rr:.istae or of exercising any trust or power conferred on
tht? ·:-rastee: providecl, that ( l) such direction shall not be in
conflict with any rule or law or this Indenture, (2) the Trustee
slnll le!tC!r:nine, upon advice of counsel, that the action so
..lir:?ct.ed ·,mulJ not be unjustly prejudicial to the holders not
t.:i.ki~'J p.:irt in such J.irection, and (3) the Trustee may take any
othi?r -1ction o.leemetl pr.oper by the Trustee which is not incon-
sistt?nt ~ith such direction.
3ection 9,10 Limitation on Suits by Bondholders. No
holJer 'JC .:iny Bond sh<1ll h."lV!:! .:iny right to instic.ute an'I
procecJin~, ju<.licial or otherwise, with respect to this
-57-
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (1) such holder has pre-
viously given written notice to the Trustee of a continuing Event
of Default; (2) the holders of not less than 101 in aggregate
principal amount of the Outstanding Donds shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder; (3)
such holder or holders have offered to the Trustee reasonable
indemnity against the costs, expenses ~nd liabilities to be
incurred in compliance with such requ 8 st; (4) the Trustee for 30
days after its receipt of notice, request and offer of indemnity
has failed to institute any such proceedings; and (5) no direc-
tion inconsistent with such written request has been given to the
'I'rustee during such 30 day period by the holders of a majority in
aggregate principal amount of the Outstanding Bonds: it being
understood and intended that no one or more holders of Bonds
shall have any right in any manner ,,..hat ever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other holders of Bonds, or to
obtain or to seek to obtain priority or preference over any other
holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit
of all the holders of Bonds,
Notwithstanding any other provision hereof, the right
of the holder of any Bond, whi~h is absolute and unconditional, to
receive payment of the principal of, premium, if any, and the
interest on such Bond on or after the due date thereof, as
therein and herein expressed, or to institute suit for the enfor-
cement of such payment on or after such t.lue r1ate, or the obli1a-
tion of the Issuer, which is also absolute and unconditional, to
pay the principal of, premium, if any, and the interest on the
Bonds to the respective holders thereof at the time and place in
the Bonds expressed, shall not be impaired or affected without
the consent of such holder; provi<Jed, however, that no Bondholder
shall be entitled to take any action or institute any such suit
to enforce the payment of his Bonds, whether for principal, pre-
mium or interest, if and to the extent that the taking of such
action or the institution or prosecution of any such suit or the
entry of judgment therein would under appli cable law result in a
surrender, impairment, waiver or loss of the lien thereof upon
the Project, or any part thereof, as security for the Bonus held
by any other Bondholder.
Section 9.11 Remedies cumulative. No remedy herein
contained upon or reserve~ to the Trustee or to the holders of
the Donds is intended to be exclusive of any other avail~ble
remedy or remedies, but ~ach am..l every such remeo..ly shc1. l 1 be cumu-
-58-
l~tiv~ ~n rt sh~ll be in addition to every other remedy g iven
h<:!r,~unrler vr no·,J or hereafter ex:isting at law or in equity or by St.~tUt~.
Sect.ion 9.12 Delay or Omi ssion No t a Waiver. No del a y
'Jr )mission of the 'I'rus tee or of a ny h older o f any of the Bonds
to ,ixercise ,'l.O'J right o r power accruing upon any defaul t
o~cu~rinq 3nd continuing as aforesaid sha ll impair any such ri ght
or po·,.,er .)r shall be construed to be a waive r of any such defa ult
or in acquiescence therein; and eve ry power and remedy given by
~~ia :nJ~nt.ure to the T rustee or t o the holders of the Donds may
b~ ux~rc1 seJ from time to time and as often as may be deemed
expeuient o y the ·rr us tee or by the holde rs of the Bonds .
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/\RTICLE X
THE TRUST E I::
Section 10,1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
De fault of \~hich the Trustee has actual written notice,
(l) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee: and
(2) in the absence of bau faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinio ns expressed therein, upon cer-
tificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture: but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be uncler a cluty to examine the same to deter:nine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred which is
known to the Trustee and is continuing, the Trustee shall P.Xer-
cise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in th~ir exarcise as a
pruJ.ent man would exercise or use unrler the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the ·rrustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that
(1) this Subsection shall not be construed to limit
the effect vf Subsection (a) of this Section;
(2) the Trustee sh~ll not be liable for any error or
ju<lgment made in good faith by a responsible officer or officers
of the 1'r;.1stae unless it shall be !?roved that the 1'rustee was
negligent in ascertaining the pertinent facts:
(3) the Trustee shall no t be liable with respec t ta
any action taken or omitted to be taken by it in goo,l fai t h in
accordance with the dir~ction of the holders of a majority in
aggreyate principal amount of the Outstanding Donds rel~tinq to
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t;\t! t i.:i.e, ,aethod and place of conducting any proceeding for any
r•~rnt!dy 1v,1il<1ble to the Trustee, or exercising any trust or power
conf~rr~J upon the Trustee, under this Indenture; and
(~) no provision of this Indenture shall require the
rrustee to expend or risk its own funds or otherwise incur any
financ1~l liability in the performa1ce of any of its duties
h.1r,wnder, or in the exercise of any of its rights or powers, if
it. ~hall have reasonable grounds for believing that repayment of
sui . .::h :::.rnds or adequate indemnity against such risk of liability
i~ not ~easonably assured to it.
(J) Whether or not therein expressly so provided, every
provi~ion of this Indenture relating to the conduct or affecting
t.:,e li..:ioibt.y of or affording protection to the Trustee shall be
~UOJ~ct to the provisions of this Section.
Section 10.2 Notice of Defaults. Within 90 days after
the ,,ccurrence of any Event of Default hereunder known to the
l'::-·-1st~~. t.he ·rrustee shall transmit by mail t.o the holders of
JonJ s, notice of such Event of Default known to the Trustee;
provldt!o.l, however, that except in the case of a de fault in the
p~y~ent ~f the Drincipal of, premium, if any, or interest on any
~onJs, the Trustee shall be protected in withholding such notice
1: 1n~ so long as a responsible officer of the Trustee in good
:ai~h lctermines that the withholding of such notice is in the
interests of the Bondholders.
The Trustee shall not be deemed to have knowledge of any
~v•.mt 0f Default hereunder (exce[Jt an !::vent of Default of the
~Jpe r~ferreu to in Section 9.l(a) hereof) until it has received
~ri~tcn notice of such !::vent of Default from the Issuer, the
dorro~er, or the holders of at least LOI of the aggregate prin-
Cl[)ilL .1:nount of the Bonds Outstanding.
Sect.ion 10.3 Certain Rights of Trustee.
otacc--.~i.ae provided in Section 10. l:
Except ;;is
(a) the Trustee may rely and shall be protected in
actin J ,Jr refra ining from acting upon any resolution, certifi-
cate, Jtatement, instrument, opinion, report, notice, request,
diracti0n, consent, order, bond, debenture or other paper or
Jocument believed by it to be genuine anJ to have been signed or
pc:esented by the proper party or parties;
( b) any request, direction, election, order oi:-deman,.l
0f the [:3::;u,H' shall be sufficiently evi<.lcnccd by an instrument
si•Jiwil i1l t.he name of the Issuer by the Ch.::iirman of i.ts Ooarcl of
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County Commissioners (unless otherwise in this Indenture specifi-
cally prescribed), and any resolution of the Issuer may be evi-
denced to the Trustee by a copy thereof certified by the Clerk of
the Board of County Co~nissioners of the Issuer;
(c) any request, direction, election, order or demand
of the Borrower shall be sufficiently evidenced by an instrument
s19ned in the name of the Borrower by its Pt"esident or Vice
President (unless otherwise in this Indenture specifically
prescribed), or its managing partner, whichever is applicable,
and any resolution of the Borrower may be evidenced to the
Trustee by a copy thereof certified by the Secretary or Assistant
Secretary of the Borrower;
(d) the Trustee may consult with counsel, including
counsel who rendered the approving opinion on the Bonds to the
initial purchasers thereof, and the written advice or opinion
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) whenever, in the administration of the trusts of
this Indenture, the Trustee shall deem it necessar:-y or desirable
that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, such matter (unless other evi-
dence in respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by a
certificate of the Issuer:-, and such certificate of the Issuer
shall, in the absence of negligence or bad faith on the part of
the Trustee, be full authority to the Trustee for any action
taken, suffered or omitted by it under the provisions of tllis
Indenture upon the faith theraof;
(f) the Trustee shall be under no obligation to exer-
cise any of the rights or powe rs vested in it by this Indenture
at the request or direction of any of the Bondholders pursuant
to this Indenture, unless such Bondholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might reasonably be incurred by it
in compliance with such request or direction;
(g} the Trustee shall not be bound to make any investi-
gation into the facts or matters stated in any resolution, cer-
tificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, d ebenture or other
paper or document, but the 1'r:-ustee, in its discretion, may make
such further inquiry or investigation into s uch facts or matters
as it may see fit;
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(h} the permissive right of the Trustee to do things
enume rated in this Indenture shall not be construed as a duty, and
the i'r:J:i1tee :ihall not be ans1¥erable for other than its own negli-
Jencd Jr ~illful misconduct;
(i) the Trustee may execute any of the trusts or powers
iler,iot: ln,l perform any of its dutie·. hereunder either directly or
b~ or through attorneys, agents or receivers but shall be
.:insweral>le for the conduct of the same in accordance with the
standari specified in (h) above, and may in all cases pay such
r~asonable compensation to all such attorneys, agents, receivers
anJ e:aployees as may reasonably be employed in connection with
the tr..1~t hereofr
(j) all money receiveu by the Trustee or any Paying
A~ent 3hall, until used or applied or invested as herein
9rov1.,fod, oe held in trust for the purposes for which they were
r~ce1.veJ but need not be segregated from other funus except to
tne ext~nt required herein or by law. Neither the Trustee nor
any ;>1yin~ Agent shall be under any liability for interest on any
~oney r~ceiveJ hereunder except such as may be agreed upon; and
(~) the Trustee shall not be required to give any bontl
or sur~ty in respect of the execution of its trust and powers
il<?reunJec-.
Section 10.4 Trustee not Responsible for Recitals and
•')t!'"l•..!r :,1att.ers. The recitals contained herein anu in the Oonds,
except the rrustge's certificate of authentication, shall be
tai{en as the representations of the Issuer, and the Trustee as-
:;u::ies no responsibility for their correctness. The 'I'rustee makes
no repr-~sentations as to the validity or sufficiency of this
InJent.:Jre or of the Bonds. 'l'he 'l'rustee is not responsible for
the rgcorctin,J of this Indenture, the Loan ,\greement or the
:-tort ·~a<Ju, or any financing statements rel.:ited thereto, or for the
payment of taxes, charges, assessments and liens upon the Trust
l::st..-1c.e , ,:ir for insuring the Trust r:st.ate r)r-the rn.:iinten.ince
thereof, ar for the sufficiency of the security for the Bonds
i :;sued hereunder or intended to be secured hereby, or for the
value or title of any of the Trust Est.ate, or otherwise as to the
maintenance of the security hersof: except that in the event the
Trusto~ unters into possession of 3 part or all of the Trust
~st~to pur~u.:int to any provision of this Indenture, it shall use
Juu lili~ence in preserving such property,
3ection 10.5 May i!olu 13oncls. 'rhe Tru1:1tee, in its indi-
viJual )r .1ny other capacity, may become the owner or pledgee of
i.1011J1:1 .1nJ :nay oth0rwise lleal with the [ssuer or the Borrower Qr
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the Guarantor with the same rights it would have if it were not
Trustee.
Section 10,6 Right of Trustee to Perform Certain Acts on
Failure of Issuer. In case the Issuer or the Borrower shall fail
seasonaoly to pay or to cause to be paid any taK, assessments, or
governmental or other charge upon ar .f part of the Project or the
p-remiums on insurance on the Project or the expenses of main-
taining or preserving the Project, the Trustee may pay such tax,
asseosinent, governmental charge, premiums or expenses without
prejudice, however, to any rights of the Trustee or the
Bondholders hereunder arising in consequence of such failure; and
any amount at any time so paid under this Section, shall be
repaid by the Issuer upon demand, and shall become so much addi-
tional indebtedness secured by this Indenture, and the same shall
be given a preference in payment over any of the Bonds and shall
he paid out of the proceeds of any sale of the Trust Estate if
not otherwis~ paid by the Issuer, but the Trustee shall be under
no obligation to make any such payment unless it shall have been
requested to do so by the holders of at least 25% of the aggre-
gate principal amount of Donds Outstanding hereunder, and shall
have been provided with adequate funds for the purpose of such
payment.
Section 10,7 Compensation of Trustee: Lien, The Trustee
shall have a lien on the Project and the Revenues anJ receipts
pledged hereunder and all funds hel<l or collected by the Trustee
as such (eKcept funds held in trust for the benefit of the
holders of particular Bonds} with right of payment prior to
payment on account of interest, principal or premium, if any, of
any Dond issued hereunder, for all Administration Expenses,
including reasonable compensation for all services renderert by it
hereunder and for all reasonable expenses, advances, disbur-
sements and counsel fees incurred or made in and about the execu-
tion of the trusts hereby created and exercise and performance of
the powers and duties of the Trustee hereunder and the cost and
expense incurred in defending against any liability in the premi-
ses of any character whatsoever (unless such liability is adjudi-
cated to to have resulted from the negligence or willful default
of the 'l'rui:;tee).
Section 10,0 Resignation .:tnd Removal: hppo i ntment of
Successor,
(a) 'rhe Trustee may resign at any ti1ne by giving at
least JO days prior written notice thereof to the Issuer 3ntl to
the 13orrrJwer, which resignation shall be effective on the ,lo.t~
specifi~d in the notice. If an instrument of acceptance by a
3uccessor ~rustee shull not have been de livered to the Trustee
.-1ithi.n JO ,l.iys 3fter the giving of such notice of resignation,
th~ r.?:3 i Jning ·rrustee may petition any court of competent juris-
J ic~i0n for the appointment of a successor Trustee,
(':.>) The Trustee may be removed at any time by being
~1.vP.n .,t Least 30 days prior written .,otice by the holders of a
ma Jority in aggregate principal amount of the Outstanding nonds
by an 1.nstrument or instruments in wr.iting delivered to the
Trust•Je, co the Issuer :;snd the narrower, which removal shall be
~ffect1ve 0n the date specified in the notice.
{c) If at any time the Trustee shall become incapable
of 1ctin1 or shall be adjudged a bankrupt or in solvent, or a
r~c~i~er of the Trustee or of its property sha ll be appointed, or
any ~uulic officer shall take charge or control of the Trustee or
0f L:~ pr~rerty or affairs fo r the purpose of rehabilitation,
cons~r~dtion or liquidation, then upon at least 30 days prior
•,1ri':.ten notice (i) the Issuer may remove the Trustee, or {ii)
1ny_ :lon•lholJcr who has been a bona fide holder of a Bond for at
least 1.) ::\Onths may, on behalf of himself antl all others similarly
s i ':.~.lt<?:l, ::>etition any court of competent jurisdiction for the
re;;1ovc1l of the Trustee and the appointment. of a successor
Trustee.
(,l) lf the Trustee shall resign, be removP-d or become
ia.::.:>.[.Jabl..? ,;if :icting, or if a vacancy shall occur in the office
of the rrustee for any cause, the Issuer shall promptly appoint
,:i successor Trustee, If the Issuer shall fail to appoint a suc-
cessor ~ru~tee within JO days following the resignation, removal
or inc~p.:>.bilicy of the Trustee, the Trustee who has submitted a
resi<.Jnation or •,1hich is to be removed or which has become inca-
pable of acting may appoint a successor Trustee upon giving 30
uays' ,1ritten notice in the manner provideu below to the Issuer
~nJ the Borrower. Such appointme nt shall take effect at any time
JO fays thereafter .as may be specif ied in such notice, unless
prior to such time the Issuer sha ll notify the Trustee and the
proposed successor Trustee of its objection to such appoint1nent.
If, •,1ic.i1in one year after such resignation, removal or
incapability, or the occurrence of such vacancy, no successor
Trustue ~hall hav~ taken office, a successor Trustee shall be
appoi.nte•l by ,i :najority in aggregoJte principal a.mount of
Oui:.st.an,ling ilonds by an instrument or instruments in writing
,.lel i.v,~rt?d to the Issuer, the retiring Trustee anu the Dor rower,
and t.he successor Trustee so appointed s hall, forthwith upon its
.:iccl!ptance r)f such appointment, become the successor ·rrustee. [f
no :;u..:~es!lor Trustee shd l l have been so .~ppointcd by the Issuer,
the rrust•:lt! -:>r the Bonuholder;; and acc l3pted .~ppoint1nent Ln the
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manner hereinafter provided, any Dondholder who has been a bona
fide holder of a Bond at least 6 months may, on behalf of himself
and all others similarly situated , petition any court of com-
peten t jurisdiction for the appointmen t o f a succes sor Trustee .
Every such successor Trustee appointed pursu ant to the pr vis ions
of this Section shall be a trust company or bank having trust
powers, in good standing, within or '.to the exte nt permitted by
law) outside the State, having a reported capita l an<l surplus of
not less then $3.5 million, if there be such an institution
willing, qualified and able to accept this trust upon reasonable
and customary terms.
{e) The Issuer shall give notice of each resignation
and each removal of the Trustee and each appointment of a suc-
cessor Trustee by mailing written notice of such event to the
Borrower and to the registered holders of Gonds at their
addresses as shown in the Bond Register. Each notice shall
include the name and address of the principal corporate trust
office of the successor Trustee.
Section 10.9 Acceptance of Appointment by Successor ,
Every successor Trustee appointeu hereund er shall execute,
acknowledge and deliver to the Issuer and to the cetiring
Trustee an instrument accepting such nppointment, and thereupon
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the estate anu interest
of the retiring Trustee to the Trust Estate and all the rights,
p owe rs , trusts, and duties of the retiring Trustee; but, on
re~1uest of the Issuer or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and ~eliver
an instrumont transferring to such successor Trustee all the
estate and tit le of the retiring Trustee to the Trust Estate and
all t.he rights, powers and trusts of the retiring Trustee, and
shall duly a s sign, transfer anu ueliver to suc h successor Trustee
all property and money held by such retiring Trustee hereunder,
s ubj ect neverthel ess to its lien, if any, proviueu for in Section
10.7 hereof. Upon request of any such success or Trustee, the
Issuer shall execute any and alt instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such estate, title, rights, powers and trusts. All such instru-
ments so executecl shall l:>e filed by the 1ssuer for record in the
manner proviued by l~w for the recording of documents affecting
title to real property in Inclian River County, Florida.
Section 10.10 Merger or Consolidation. Any corporation
into which the Trustee may be met"getl o r ,1ith which lt may be con-
soli•.1atetl, or any corpoc.:itir:>n resulting from .:i.ny meC'qer or con-
soliJation to ~hich the Trustee yha ll be a party, or any
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corpor,Jt.ion succeeding to all or substantially all of the cor-
por1t~ ~rust business of the Trustee, shall be the successor of
the 'i'ru:;t<?e hereunder, without the eKecution or filing of any
:M:Y ·r .>r 1ny further act on the part of any of the parties
l1ereto. [n case any Oonds shall have been authenticated, but not
Jeliv~red, by the Trustee then in office, any successor by merger
or consoliJation to such authentic2ting Trustee may adopt such
~uthentication and deliver the Bonds so authenticated with the
same Qffect as if such successor Trustee had itself authenticated
SUCil :3onJs.
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.~RTICLE XI
AMENDMENTS AND SUPPLEMENTS
Tu INDENTURE AND LOAN AGREE:-1ENT
Section 11.l Supplemental Indentures Without Consent of
Bondholders. Without the consent rf the holders of any Bonds
or any notice to any Bondholder (other than 10 days prior written
notice to the original purchaser or purchasers of the 13onds), the
Issuer and the Trustee, at any time and from time to time, may
enter Lnto one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
( l) to add to the covenants of the Issuer for the
benefit of the holders of the Bonds, or to surrender any right or
power herein conferred upon the Issuer; or
(2) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provi-
sion herein, or to make any other provisions with respect to mat-
ters or questions arising unde r this Indenture which shall not be
inconsistent with the provisions of this Indenturer provided,
such action shall not adversely affect the interests of the
holders of the Bonds; or
(3) to subject to this Indenture auditianal revenues,
properties or collateral; or
(4) to more fully describe the Trust 8state; or
(5) to modify, amenu or 5Upplement this Indenture or
ant indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939 or any similar federal statute hereafter in effect, or to
permit ~ualification of the Bonds for sale under the securities
laW!'I of any of the states of the Uniter! States, antl, if they so
determine, to a d d to this Indenture or a ny ind e nture supplemental
hereto such other terms, conditions a nd provisions us may be per-
mitteu by such Trust Indenture Act of 1939 or similar federal
statutes; or
(6) to proviue for the issuance of Additional !lands,
but only to the extent expressly perrnitte(1 elsewhere in this
Indenture; and the Issuer hereby covenants that it will perform
all the requirements of any such Suppl e mental InJenture which may
be in effect f.rom time to time; out no restriction or obligation
imposeu by this Indenture upon the Issue1c in respect of any of
the Bonus Outstand ing under this Indenture may, except as other.-
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·,1is~ ;>rovi,le..l in .Section 11.J of this Indenture, be waived or
mo-ti:i~d \)y such Supplemental Indenture, or otherwise.
·iot.hing contained in this Article XI shall affect or
li.:iit. tho.? ri·,1ht or obligation of the Issuer to execute and
Jeliver t.o t.he Trustee any instrument of further assurance or
at.her instrument ,1hich is required :lsewhere in this Indenture to
b~ -l<!li·rnr.?J to the Trustee.
Section 11,2 Trustee Au t horized and Protected. The
1'r".Jst~e is !1ereby .iuthori~ed to enter into any Supplemental In-
..l<!nt.~n~ ,1uthori2.eJ or-permitt.ed by the terms of t.his Indenture,
an-1 to ,;ia,-:e the further agreements and stipulations which may be
cont~inl!J therein; and the Trustee, in entering into any
S uppl~~~nt.ill Indent.ure, shall be fully protected in relying on an
opLn~on of counsel, in form and substance satisfactory to the
Tr~~t.~l!, to the effect that such Supplement.al Indenture is
oJUt11or1..:.t?J -~r permitted by the provisions of this Indenture,
3~ction 11.J Supplement.al Indentures by Oon~holders'
,:v:1.sent. ,\n'J modification or amend,nent of this Indentllre or of
t:1e n. Jnt.s .-:inJ obl.igations of the Issuer or of the holc.lers of the
3on.Js in lny ~art.icular may be made by Sup~lemental Indenture
wit.!1 tho consent of the Dorro,~er and (a) the holders of not Le s s
tnan 51 A in a.ggreyate principal amount of the Bonds then
Out.5L10,Hn:1, and (b) in case less than all of the Bands then Out-
:.;t,1n.li.13 -1r-3 ,:1.ffecte<l by the· moJification or amendment, the
:,olders rJ f not les s than 5 l %: in aggroga te pr inc ipa l amount o E t.he
aonJs ,;o ,ffecte,1 then Ot1tstanding; provided, however, that if
:;u=h :nodific:;ition or amendment ·,1ill, by its terms, not take
,3f!:ect :::.o lon':) .:i.s .:iny specified Bonds remain Outst;in<ling, the
consent 0f the holde rs of s1Jch llonus shall not be required and
Sllch 3onds s hall not be deemeJ to be Outstanding for the purpose
of ,1n ·1 c;\ lcul.:it.ion of Outstanding Bonds under this Section 11. J.
t>rovi.Jecl !:llrth~r, however, no st1ch inodification or amen,iment
shall:-,~ 1,i,-ide which will rei.luce the perccntaqo ,:,f aggreg.:ite 9rin-
c i?al -1:,iourn. o f Bonus, the consent of the l10lders of which is
re·1uir1!d for ;:iny :.uch mod i fication or amen<lment, or per-:nit t'.he
cr~~tion ~y the Issuer of any lien prior to or on a pRrity ~ith,
the lil.?n . .,f this Indenture upon the Project or-the Revenues, or
,..lncn ,..ill -1ffect thE! p rior-ity, times, amount and curr~ncy of
pay.a~nt .Jt the principal 1Jf, premium, if a ny, oc-interest on the
ilonJB, ~ithout the consent of the holder-s of 1001 of the Oonds
th<?n vut:.;t.,:rnJin,:, which shall be affected by ~uch modific«tion or
amendment.
For t.he purpos..?s :Jf t.hi:., [nJenture, □ondi; sh.:ill be
Jcc:~eLI to be affecte d by ,1, 1no:lific-:1tion or :1111enJment. of this
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Indenture if the same adversely affects or diminishes the r ights
of the holders of such Bonds, 'I11e Trustee may i n its discretion
determine whether or not in accordance with the foregoing prov i-
sions, any particular Bonds would be affected by any modification
or amendment of this Indenture, and any such determination shall
be binding and conclusive on the Issuer and all holders of aonds,
For the purposes of this Article XI, the Trustee shall
be entitled to rely upon an opinion of counsel with respect to
the extent, if any, as to which any action nffects the rights
under this Indenture of any holuers of Bonds then Outstanding.
Section 11.4 Amendments, etc., to Loan Agreement. So
long as any of the Bonds are Outstanding, the Issuer will require
the Borrower to pay, or cause to be paid, all the payments and
other costs and charges payable by the Borrower under the Loan
Agreement. The Loan Agreement may not be amended, changed,
modified, altered or terminated so as to adversely affect the
interest of the Trustee without the prior written consent of the
Trustee, or the interest of the holders of Outstanding Bonds
without the prior written consent of (a) the holders of at least
s1i in aggregate principal amount of the Oonds then Outstanding,
and (b) in case less than all of the ilonds then outstanding are
affected by the modifications or amendments, the holders of not
less than 51% in aggregate principal amount of the Oonds so af-
fected then outstanding: provided, however, that if such modifi-
cation or amendment will, by its terms, not take effect so long
as any specified Bonds remain Outstanding, the consent of the
holders of such Bonds shall not be required and such Bonds shall
not be deemed to be Outstanding for the purpose of any cal-
culation of Outstanding Donds under this Section 11.4: provi~ed,
further, that no such amendment, change, modification, alteration
or termination will reduce Lile percentage of the aggregate prin-
cipal amount of Outstanding Oonus, the consent of the holders of
which is a requirement for uny such amendment, change, modifica-
tion, alteration or termination, or decrease the amount of any
Payment. required to be made under the Loan ll.greement or extenu
the time of payment thereof, No amendment of the Loan Agreement
shall be m.:,.de without the prior written consent of the Borrower.
The Loan Agreement may be amended, changeu, mortified, altered or
tenninated without the consent of the holders of Outstanding
Bonus to provide necessary changes in connection with the
issuance of Additional Bonds or to provide other changes which
will not adversely affect the interest of su,;h holders or of the
Trustee.
The Issuer will require the Borrower to observB faith-
fully all of its covenants .:ind aqreements under the Loan
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.\gr•?~:a~nt.; :lnd, in case the Borrower shall fail 'l'..O make such
ray~~nt.s or :>bserve such covenants and agreement.s, the Issuer
11ill institut.e and prosecute all such legal proceedings as may be
.:iprropri.it.c for the protection of the holders of the nonds.
Section 11.5 Amendatory Agreement. (a) Prior to the
issu.:il\c~ of .:1ny Additional Bonds under the provisions of Section
J:J oft.his tndenture, the Issuer will, if necessary, enter into
an appropriate agreement amendin3 the Loan Agreement., Such amen-
datorJ l<Jreement shall increase, if necessary, the Payments to be
:n.iJe Jnder the Loan Agreement to an amount which, including any
~rovia1on incluJed therein for payment o f Administration
~X?ensds, shall be sufficient to provide for payment of the prin-
~1ral ~f ~nu interest and redemption premium, if any, on such
Au,li.t.ion.:il aonus as the same shall become due and payable in
accorJance ~ith their terms. In addition, such amendatory
.l-Jr•?~::i\3n t .;h.:i 11 make such other revisions in the Loan Agreement
.:is .·1r :? :1.Jcessitated by the issuance of such Additional 13ondsi
pr:ov1J.:?d, however, that such other revisions ohall not adversely
dff~cc :he ri~hts of the hol<lers of Outstanding Bonds, as granted
t~em ~nJe r the terms of this lndenture,
(bl 'rhe Issuer shall not iss ue any Additional Oonds
under t:.he rrovisions of Section 3.4 of this Indenture for the
pur9ose of r~funding all or any part of the Bonds of any one or
more s<?ries unless the payments under the Loan Agreement, after
Jeuuc:in1 ther~from any provisions included therein foe the
pay~ent of Administration 8xpenses, shall be sufficient to pro-
'J 1-.l'.? Eor pay:nent. of the principal of and interest and redemption
!)ru1n1um, if .:iny, on all 13onus which will be Out.s tanding u pon the
issual\ce of such Additional Oonds as the same become due and
i,).:iyai:>113.
Section 11.6 Discretion of the Trustee . In the case of
an·/ -im e nJrmmts or supplements authorized under the provisions of
this ,\rt.icle, the 'l'rustee shall be entit.led to exercise its
Jis~r~cion in determining whether or not any proposed amendment
or ~upplement, or any term or provision therein containert, is
proper ~r Jesirable, having in view the purposes of such in~tru-
ment, th4.? nee<ls of the Issuer, the n or rower and the Project an<l
the ri Jnts anu interests of tho Bondholders, and the ·rrustee
3halL not be under .:iny responsibility or liability to the I3suer,
th~ ilorr0wer or to any Bondholder oc to anyolle whomsoever for any
~ct 0r chinJ which it may in good faith do or Jeclinc to do under
th~ provisions of Section 11.l through 11.4 hereof, The Trustee
shall be ~~t.it leu to receive, anJ shall be fully protecteu in
rclyin1 upon, an opinion of inde pendent counsel acceptable to it
,1:1 conclu::;ive ~viuence that any such i'imenJment or supplement
-71-
complies with the provisions hereof and that the Trustee is
authorized hereunder to join in the execution of or consent to
such amendment or supplement. The Trustee may, but shall not be
obli~ated to, enter into any supplemental indenture or consent to
any amendment of the Loan Agreement which affects the Trustee's
own rights, duties or immunities under this Indenture.
Section 11.7 Effect of Supplement and Amendment. Upon
the execution of any supplemental indenture or the consent of the
Trustee to any supplement of or an amendment to the Loan Agree-
ment under this Article, this Indenture shall be modified in
accordance therewith, and such supplement or amendment shall form
a part of this Indenture for all purposes; and every holder of
Bonds theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
-72-
AR'ricu; XI I
,~112:~ ;Ju~DS OEE:MED PAID~ BONDS NOT PRESENTED FOR PAYMENT
~action 12.1 Bonds Deemed No Longe r Outstanding. Any
'.lonJ dh,'l l l no longer be deemed to be Outstanding hereunder when
p3ymenc ,>f the principal of and the applicable redemption, if any,
oi, suci1 3ond plus interest on such pri.,.::ipal to the due date
thereat (whether such due date be by reason of maturity or upon
reJerapt1on or by declaration as provided in Section 9.2(a)
herl?ot, ·)t' other-..J ise), either {a) shall have been made or caused
to :>c .:1<1,le in .iccordance with the terms thereof, or (bl shall
hav~ been provided by irrevocably depositing with the Trustee and
i:.-r,?voc,'lbly .:ippropriated and se t aside e>eclusively for such
pay:n.~nt ( l) mon e y sufficient to make such payment or (2)
Invesc..nent Securities maturing as to principal and interest in
suc:1 1.~ciunt 1nd at such times as will insure the availability of
suf.::ic1cnc ::1oney to make such payment; and all necessary and
prO~dr fdes, compensation and expenses of the Trustee and Paying
i\:Jll:1t. :>~rt;i1ning to the Bond 1'1ith r-espect to which such deposit
is ::i..tJ~ shall have been paid o r the payment thereof provided for
to the 1.it.isfaction of the Trustee and Paying Agent. At such
::.i:n,~ ,1s .1 i3ond :1hall be deemed to be no longer' Outstanding
hdraunJcr, as aforesaid, such Bond shall cease to draw interest
from the ,tue <late thereof (whether such due date be by reason of
~ac~rity, or upon redemption or by declaration as aforesaid, or
~ther~L3C) 3nd, e>e c ept for the purposes of any such payment from
such ::1oney r>r Investment S ecurities, shall no longer be secure,1
by or d ~titl ed to the benefits of th is Indenture.
Any ~uch money .so deposited with the Trust ee as pro-
., i.Je<l i.n this Section may at the direction of the l ssuer also
be invested ~nd reinvested in Investment Securities maturing in
the .,.noun ts anJ times as hereinbefore se t forth.
~otwithstanding any provision of any other Section of
thi5 InrJentllre which may be contrary to the provisions of th is
Section, ,1.Ll ;noney or Inv estment Securities se t aside ,:md held
in tr~st pursuant to the provisions of this Section for the pay-
.nent. -:if tlonJs (including interest and premium thereon, if any)
sh,1 t L :)e ,.ippl ie<I to a nd use<l solely for-the payment of the par-
ticul~r uonJ (including interest a nd pr-emium the reon, if any)
·,1ith r espect to which such money a nd Cnvestment Securities hav'.?
bcun 30 det dsiJe in trugt,
Anything in t\rticle XI hereof tu the contraC"y not-
,..i th~t.1n<l i.nJ, if mone y or Investment Sec:urities h;ive been Lle-
po sit:::u <Jr se t aside with the 'l'rusted p ursu.int to this s~ction
-73-
for the payment of C3onds, and such □onds shall be deemed to have
been paid and to be no longer Outstanding hereunder as provided
in this Section, but such Donds shall not have in fact actually
been paid in full, no amendment to the provisions of this Article
shall be made without the cons~nt of the holder of each Bond
affected thereby.
The Issuer may at any time su rrender to the Trustee
for cancellation by it any Bonds previously executed and deli-
vered, which the Issuer may have acquired in ~ny manner whatever,
and such Bonds upon such surrender for cancellation shall be
deemed to be paid and no longer Outstanding hereunder .
Section 12.2 Bonds Not Pre sented for Payment When Due:
Money Held fo r the Oonds after Due Date . Subject to the provi-
sions of the next sentence of this paragr aph, if any Dond shall
not be presented for payment when the principal thereof shall
become due, whether at ma t urity or at the date fixed for the
r edemption or upon declaration as provided in section 9.2(a)
hereof, or otherwise, and if money or Investment Securities shall
at such due <late be held by the Trustee and Paying Agent
therefor, in trust for that purpose sufficient and available to
pay the principal and the premium, if any, of such Bond, together
with all interest due on such principal to the due date thereof
or to the date fixed for redemption, as the case may be, all
liability of the I ssuer for such payment shall forthwith cease,
determine and be completely discharged, and thereupon, it shall
be the duty of the •rrustee and Payin'] A-Jent. to hold such money or
Investment Securities without liability to the holder of such
Bond for interest thereon, in trust for the benefit of the holder
of such Oond, who thereafter shall be restricted exclusively to
such money or Investment Securities fo r any claim of whatever
nature on his part on or with respect to such Bond, inc luding any
claim for the payment thereof. Any such money or Investment
Securities held by the Trustee and Paying Agent rema ining
unclaimed by the holders of such Bonds and coupons for 6 ye~rs
after the principal of the respective Bonds with respect to which
such money or [nvestment Securities have been so set aside has
become due and payable (whether at maturity or upon redemption or
by declaration as provided in Section 9.2(a) hereof or otherwise)
shall upon the written re4uest of the Issuer be paid to the
Issuer, against its written recei pt therefor, an,l the holders of
such Bonds shall thereafter be en titled to look only to the
Issuer l:or payment thereof. Be fore being required to make .-rny
such payment to the Issuer, the 'l'custee and Paying Ag ent may, at
the expense of the Issuer, mail or publish !:luch notice as mny be
deeme<.1 appropriate by such •rrustee a,1d Paying A.gent, listing the
Ilonds so payable and not presented .-inu stating that such money
-74-
c-e.nains 1incL1imed and that after a date set forth t11erein, any
b3l~nco thereof then remaining will be returned to the Issuer.
-75-
ARTICLE XIII
MISCELLANEOUS
Section 13,1 Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered
o? certified mail, postage prepaid, or sent by telegram,
addressed as follows: if to the Trustee, at the Corporate Trust
Officer and if to the Issuer or the Borrower, as provided in the
Loan Agreement. A duplicate copy of each notice required to be
given hereunder by either the Issuer or the Trustee shall also be
given to the Borrower, and a duplicate copy of each notice
required to be given hereunder by the Trustee to either the
Issuer or the Borrower shall also be given to the other, The
Issuer, the Borrower and the Trustee may, by notice, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 13.2 Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the s~me instrument.
Section 13,3 Severability Clause. The invalidity of
any one or more phrases, sentences, clauses, sections or para-
graphs hereof shall not affect the remaining portions of this
Indenture or any part thereof, all of which are inserted con-
ditionally on being held valid in law; and in the event that one
or more of the phrases, sentences, clauses, sections or para-
graphs contained herein should be invalid, this Indenture shall
be construed as if such invalid phrase or phrases, sentence or
sentences, clause or clauses, section or sections, paragraph or
paragraphs had not been inserted,
EXECUTION:
Indian River County, Florida, has caused this tndenture
to be exocuted by the Chair:nan and Clerk of its 13oar.:l of Co11nty
Crnrunissioners and its official seal to be hereunto affixed and
attesteJ by such Clerk, and Barnett Banks Trust Company, N.A.,
has caused this Indenture to be extlcuted by a Corporate Tcust
Officec and its corpocate seal to be hereunto ,':l.ffixed ,'Ind
attested by a Corporate Trust Officer, all as of the day and year
first above written.
-76-
( SE,\L )
Attest~J ~nd Countersigned:
Cl.Jr,:, Jo,ir j r:>f County
Co::\la i:.s ioners
( 31::,\L)
Attest:
Corpor3te r rust Officer
INDIAN RIVER COUNTY, r~ORIDA
Chairman, Board of County
Commiss .. oners
BAR~ETT BANKS TRUST COMPANY, N.A.
By_-=--------:-~-=---,--:::-=....-------Corporate T rust Officer
-77-
STATS OF FLORIDA
COUNTY OP INUIAN RIVER
On this day of ---=-,---' 198J, before me, the
undersigned notary public, personally appeared Richard N. Bird
and Preda Wright, who acknowledged them.selves to be the Chairman
and Clerk of the i3oard of County CommirJioners, respectively, of
Indian River County, Florida, and that as such officers being
authorized to do so, executed the foregoing Trust Indenture on
behalf of the County for the purposes therein contained.
seal.
(S1::A.L)
IN WITNESS WHEREOF, I hereunto set my hand and official
Notary Public, State of Florida
i\t Large
My commission expires: ______ _
STATE OF FLORIDA
COUNTY OF DUVAL
On this day of ---:-.,---' 1983, before me, the
undersigned notary public, personally appeared
and ______________ , Corporate Trust
Officers of Barnett Bank Trust Company, ~.A., a national banking
association organi~ed and exist i ng under the laws of the United
States, and acknowled ged that they as such officers being
authorized to do so, exe cuted the foregoing Trust Indenture for
the purposes therein contained.
seal.
(SE/\L)
IN WITNESS WHEREOF, I hereunto s~t my hand and official
Notary Public, State 0f fluriaa
Al Large
My co~nission expires: -------
-78-
EXHIBIT "A"
DESCRIPTION OF EQUIPMENT
-79-
EXHIOIT "13"
PROMISSORY NOTE
Dated: _____ ,1983
For value received, Florida Health Facilities Corp, (of
Indian River County}, the "Borrower," promises to pay to the
order of. Indian River County, a political subdivision of the
State of Florida (the "County"), the principal sum of $2,400,000,
together with interest and other amounts from the date hereof as
specified in the Loan Agreement, Mortgage and Security Agreement
dated the date hereof, between the County and the Borro~er (the
"Loan Agreement"), to which this Note is annexed as Exhibit "B,"
and as specified in the Trust Indenture {the "Indenture") dated
the date hereof, between the City and Barnett Banks Trust
Company, N.A,, Jacksonville, Florida, as ·rrustee under the
Indenture.
This Note is secured by the Loan Agreement and the
Indenture, as proviJed for and set forth in the Loan Agreement
and the Indenture. It is expressly agreed that all covenants,
conditions and agreements contained in the Loan /\greement and the
Indenture executed in connection herewith, are hereby incor-
porated by reference in this instrument as though fully set forth
at length he.rein. In the event of conflict bet.ween this Note ,J.nd
the Loan Agreement or Indenture, the terms and conditions of the
Loan Agreement shall control. This Note shall be deemed to be in
default, upon the occurrence of any event of default which under
the terr.is of the Loan Agreement or Ind enture securing this Note
constitutes an event of default. Upon the occurrence of an event
of default, the holder of this Note may, at its option, declare
a 11 unpaid indebtedness evidenced by this ;1ot.e and any modi fica-
tions thereof, immediately due anrt payable without notice
regardless of the date of maturity. i:;"ailure at any time to exer-
cise this option shall not constitute a waiver of the right to
exercise the same at any other time.
This Note is assignable to the Trustee as aforesai~.
This Note shall be governeJ by the laws of the State of
Florida, which laws shall be applicable in the interpretation,
construction and enforc~aent hereof.
-80-
( SE,\L )
,\tt.ost:
FLORIDA HEALTH FA~ILITIES CORP. (OF
INDIAN RIVER COUNTY)
By
!?resident
ASSIGNMENT TO TRUSTEE
For value received the undersigned hereby sells, assigns
~nJ tr1nsfers to Oarnett Danks Trust Company, ~.A., Jacksonville,
.i:-"lori..la, :.r-ustee, as of _________ , l98J, this Note and
-:ill ci,1hc.s thereunder.
(SEAL)
i\c.t,~stcd .1n,l Countersigned:
Cl<?r,:, □o.:i.r<l of County
Cor:uniss ion~rs
INDIAN RIVER COUNTY, FLORIDA
Chairman, Board of County
Commissioners
-Bl-
EXHIBIT "C"
LEGAL DESCRIPTION OF PROJECT SITE
-82-
EXHIBIT "D"
MORTGAGE
This mortgage, dated --,---.,.-,~~--=-r' 1983, is from
FloC'iJil .!ealth. Facilities Corp. (of Indian River County), the
":.iort 1 .i•ior," to Indian River County, Florida {the "Mortgagee"),
BACKGROUND FAc·rs:
1. The Mortgagor is justly indebted to the Mortgagee in
the :;u~ of $2,400,000, as evidence<l by a Promissory Note dated
-~--~---• 1983 ( the "Note"), in the amount. of such
111...il]t)t.,J-.Jne~s. The ,~ate is subject to the terms, conditions,
.:::ovcn.:rnt:,, .:ind limitations as set forth in that certain Loan
Agreement, ~ort3age and Security Agreement dated---~~~--'
l.·)83 (t:rn ''i...oan Agreement"), between the Mortgagor <1nd Mortgagee,
and provLJes the security for and terms of repayment of such
i. :i.lebt~.Jn<]S:3, and the rights i\nd remedies of the Mortgagee, ,:1.nd
,ldJitionillly secures the Industcial Development Revenue Bonds,
5eri~s l'JBJ (?lorida '1ealth Facilities Project), dated
, 1983 (the "I!onds"), issued by the Mortgagee pursuant
-::.-0-u--.,.-::-·-_1-!;...,.t-Indenture elated -::~-----::-----' 1983, between the
:tort.Jaqee ind Barnett Danks Trust Company, N,A., Jacksonville,
r-'lori·.l.:i ( the "Trust Indenture").
2. The terms and conditions in the Loan Agreetnent
pcov 1.Je ::or the indebtedness to be secureu by ,:i mortgar1e lien
upc.1 ':.he c~al. µroperty hereinafter describeil.
GRANTING CLAUSS:
The :1ortgagor, for and in consideration of the premises,
has ~C'anta,l, bargained, sold, moctgaged and conveyeJ, and by
these pr~sents does gr<1nt, bargain, sell, mortg<1ge and convey to
the ~ort~<lyee, its succe9sors and assigns, ~ll the following
•l<'!scrin,~d c~al property located in Indi.:ln River County, florio..la,
toqethcr .-.PiU, ,:ill rents, revenues, issue, profits or income
,11.'.!ci•,eJ ,Jr to i)e derive,J therefrom, an,1 a.l 1 tcnamunts, heredit:.:i-
;;ients ,111J dppurtenances to the same belonging or in any way
~~pertaining thereto:
( DESCR I p·rroN" OF PROJECT lrnAL PROPERTY}
l1 rovided,. however, ;_,n<l these presents ,lrc upon this eiq_:,re:;s
conJition, that if the Mort1agor shall well and truly pay, or
c.i us<'! to nc pn. id the sums of u1oncy cove nante<l ta be ra i.-J by the
-83~
l'lote according to the legal tenor. and effect thereof, and shall
fully keep and perform all of the covenants, conditions and sti-
pulations in the Loan A.greement and in the Note contained, then
this obligation shall be null and void, otherwise to remain in
full force and effect,
COVENANTS /\ND AGREEMENTS:
The Mortgagor further :::ove11ants and agrees with the
Mortgagee as follows:
1. The Mortgagor shall pay the sums of money evidenced
by the Note, the aonds and the Loan l\greement according to the
legal tenor and effect thereof, or any renewals of the indebted-
ness evidenced thereby as may be made by the Mortgagee to the
Mortgagor.
2, In the event of a default under the Note, the Loan
Agreement and/or the Indenture, the Mortgagee or its assigns
shall be entitled to exercise all rights «nd remeuies set forth
in the Loan Agreement and the Indenture, including but not
limited to the foreclosure of this mortgage and the appointment
of a receiver for the mortgaged property.
3, The Mortgagor fully 1-1arran ts the tit le to the
mort~aged property and will defend the same against the lawful
claims of all persons whomsoever.
EXECU'l'ION:
The Mortgagor has signed anu seale..I this mortgage on the
date indicated above,
( SEJ\L)
Attest:
Secretary
FLORIDA IIEAJ~T!I PACIL.l'PIES CORP, (m•
I NDIA~ RIVER COUNTY)
!3y
President
-84-
ST,\T!:: J~' l"LORIDA
(; :)IJ~,Y Jr'
rhe for egoing mortgage was acknowledged before me this J~y of _______ , 1983, by
~n~ -:--:-:--"'.7-:-:-:-~--:--:--;---:~-• President and Secretary, respectively,
o! rloriJ.:i ilealth Pacilities Corp. {of Indian River County), on
behalf ~f Che corporation.
Notary Public, State of Florida
at Large
My Co mmission Expires:
-8 5-
,._., 1""I
LOAN AGREEMENT, MORTGAGE AND SECURITY AGREEMENT
between
INDIAN RIVER COUNTY, FLORIDA
and
FLORIDA ilEAL'r!-1 FACILITH:S CORP. (OF INDIAN RIVER COUNTY)
Dated /d-l,'l-L2 , 1983
A,-0,,~.) _y .J-/t) ~
-EXHIBI'l' "l:I"
TAJLE OP CON'rENTS
Par ti es ,"lnd !3ackg·round Pacts • • • • , •• , . • • • • • , • l
Sec ti on 1.1.
Section 1.2.
Section 1.3.
Section 1.4.
Section LS.
ARTICLE I
11::FINITIONS AND REPRESENT/\'rIONS
Detini.tions . . . •
. ~ep:resentations of the Issuer. .
Representations and Warranties of
Rorrower . . . . . . . . .
Use of Words and Phrases . . . .
. .
the
. .
References to Bonds Ineffective after p.:,.id . . . . . .
ARTICLE II
'rHE LOAN
. . . . . '
Sect;.jon 2, l, Principal Amount of the Loan •
Section 2.2. Total Loan Payment , • ,
Section 2.J. Issuance of Supplemental Notes
ARTICLE III
[SSUANCE OP BONDS; /\CQUISI'rrON OF THE
PROJEC'r; DISDURSEMF,N"r OP f'UNDS
. . .
' .
Bonds . . . '
)
10
10
14
. 14
15
15
, 15
Sec.:tJon J,L Agreement to Issue Bonds; Additional Bonds;
Applicatjon of Bond Proceeds • , lS
Sectlon J,2. Acquisition of Project •• , , , , , ,
Section 3. 3. Di sbui:·semen ts from the Project Fund , ,
• 16
, , l 7
Section J,4, Warranty of Suitability by Oorrowei·;
Oorrowet: Required to Complete Project i.n
Certain Events •••••.••••••••• , 17
(i)
Section 3. 5. aorrower to Pursue Remedies ~ainst
Contractors and Subcontractors and Their
Suretjes • • • • • • • • • • 17
Section 3,6. Completion of the Project ••
Section
Section
section
section
Sectjon
ARTICLE: IV
TERM OP A.GREEMENT; PROVISIONS FOR REPAYME NT;
SECURITY INl'ERJ::S'r; MORTGAGE
4. 1.
4-2 ■
4.3.
4,4.
4. 5,
ourat:i.on of Term •
Repayment of Loan ••
Payment to Trustee.
Securjty Interest Grantert
Mortgage . . . . .
ARTICLE: V
MANAGEMENT, OPERATION, MAINTENANCE
TAXES AND INSURANCE
• • 19
. . , , 19
• , , , 19
, 21
• , 2 2
• , , 2 4
Section 5, l. Operation, Maintenance and Repair of
Project ..• , , ••• , • • ••• 25
Section 5,2. Taxes, Other Governmental Charges and
Utility Cha1:gea. • • , 25
Sectjon 5,3, Insurance on Project
Section 5,4. Insurance Policjeg
Section 5. 5. Advances by Is suet· ot· Trustee
Section 5.6. Indemni ty of I9suer and Trustee
ARTIC!JI~ VI
PROV IS IONS RESP l::C •r ING Di\MAGE,
DESTRUCTION /\ND CONDEMNi\TION
Section 6. l. Damage and Destruction •
secti.on 6,2, Condemnatjon •• , , •
(ii)
• , 2 6
. . . , 27
• , 27
, 27
• • 29
30
Section 6.J. Condemnation of Borrower-Owned Property 31
Section 6.4. Property Substltuteci in Project. . . . . . 32
Sect;.i..,n r,. 5. Temporary Disruption of Project Operations
by E.rninent Domain. . . . . . . .
ARTICLE V.rI
CERTAIN PROVISIONS RELATING TO ASSIGNMEN'I",
~10RTGAGING, PROJECT EXPANSION AND THE 130NDS
. . . ]2
Section 7.1.. Sale or Encumbrance .••••••.•••• , , 33
Section 7,2, Pledge of Agreement Under Indenturer Trustee's
Rights in Event of Default: Borrower's
Right to Remedy Default Under Indenture:
Amendment of Agreement and Indenture ••••• 33
Section 7,3. Borrower to Keep Project rree of Liens •
Section 7.4. Project Expansion
ARTICLE VI I I
PARTICULAR COVENANTS OF THE BORROWER
Section 8.1. General Covenants
Section 8.2, Authorized Borrower Representative
Section 8, 3. Examination of Project and nooks and
Records of the 13ot·rower
Section !L4, Sped al Covenants.
Sect ion 8.5. Investments
Secdon 13. 6 Certain Definitions
ARTICLE IX
EVEN'rS or DEFAULT AND REMEDIES
Sect i.on 9,1. Events of Default. Defined.
Sect.Jon 9. 2. Remedies on Default
( Hi)
34
34
35
, , , 3 5
. .
, 3 5
35
37
• • :3 7
40
Section 9 ,3. No Remedy Exclusive . . . . . . . . . 44
Section 9,4. Agreement t o Pay Attorney's Fees and
Expenses . . . . . . . . . . . . . . . . . 44
Section 9,5 . No Additional Nai.ver Implied by One Waiver . . 44
ARTI CLE •:
INTERNAL REVENUE CODE, SECTION 103
Section 10, L Covenant with Respect to secti.on 103(c) of
the Code . . . . . • . . . . • • .. . . 4 5
Section 10. 2. Requirements of Tax Exempti.on • 4 5
Section 11, 1,
Soction 11. 2.
Section 11. 3,
Section 11.4,
Section 11. 5 .
Section 11.6.
Section 11, 7,
C:X!IIBI'l' A
EXH IBI'r 8
EX!UBI'l' C
EXIUIHT I}
Execution
1\RT ICLE XI
MISCELLANEOUS
Count erpa rt s .
Oinding Effect .
severabili ty . .
Arti cle and sectio n Caption.
Obligation of the Parties to Cooperate
in Furnishing Documents to Trustee .
Governjng Law.
Notices
Descri ptjon of Equi.!?ment
.E'orm of Promissory Note . . . . .
Description of Project Site
Mor tgage . . . . . . . . . .
(iv)
.
.
. .
, 49
49
, 49
• 49
. 49
. 49
. 49
. 52
. 53
55
. 56
LO;\,~ AGREEMENT, MORTGAGE AND SECURITY AGREEMENT
r ~IIS LOAN AGREEMENT, MORTGAGE AND SECURITY AGREEMENT
lated -,----.,...,..---T-' 1983, is between INDIAN RIVER COUNTY,
FLORIJA, ~ pol1t1cal subdivision of the State of Florida (the
"Issuer"), and FLORIDA HEALTH FACILITIES CORP. (OF INDIAN RIVER
COUNTY), -.l corporation organized and existing under the laws of
tile 3Llt.e of Florie.la ( the "Borrower"·.
BACKGROUND FACTS:
1. The Issuer is authorized under Chapter 159, Part II,
f loricla -5t::itutes, and other applicable provisionn of law, to make
and ~xecute financing agreements, contracts, deeds and other
instrum~nts necessary or convenient for the purpose of facili-
tati.n3 ~he financing of certain projects, including machinery,
equi?mBnt, land, rights in land and other appurtenances and faci-
lities related thereto, to the end that the Issuer may be able to
promot-.? the ,~conomic development of the State of Florida,
increase opportunities for gainful employment and otherwise aid
in improvi~3 the prosperity and welfare of the State and its
inhabita nts; and to provide such financing through the issuance
of industrial development revenue bonds.
2. The Issuer has duly authorized the financing of the
acquisition, construction and equipment of industrial facilities
consisting of a 120-bed nursing home, including any necessary
utilities, all within the jurisdictional territorial limits of
the Issuer (the "Project" as hereinafter defined), to be
ac~uire<l, constructed and equipped by and at the expense of the
Uorrowar on the terms and conditions hereinafter set forth: and
the Issuer has further authorizeJ the issuance and sale of not
exceeuing ~2,400,000 aggregate principal amount of its Industrial
Development Revenue Bond s, Series 1983 (Plorida Health li'acilit.ies
Project), the "Bonds" as h e reinafter defined, the proceeds of the
salo::! o f .,..hich will be loaned to the Borrower to pay the costs of
acquiring, constructing anJ equipping the Project.
J. The Bonds are issued under and securetl by a Tru5t
Indenture, Jated as of the date hereof (the "Indenture'' as here-
inafter defined), by am1 between the Issuer and Barnett Banks
Trust Campany, ~.A., Jacksonville, Plorida, as Trustee {the
"Trustee" as hereinafter defined), whereby the Issuer and the
Trustee have agreed that the Trustee shall receive the proceeds
f ram the sale of the Bonds anu disburse the same for the cost of
the ac~uisition, construction and equipment of the Project.
-1-
4, Under and pursuant to the Indenture, the Issuer has
assigned to the Trustee, as security for the payme~t of the prin-
cipal of, premium, if any, and interest on the Bonds and the
fees, expenses, and advances of the Trustee, (a) and any other
sums payable by the Borrower pursuant to this Agreement, (b) all
of tl,e Issuer's right, title and interest in and to this A.gree-
ment, including the mortgage lien and security interest granted
herein to the Issuer and the Borrower's promissory note ( the
"Note" as hereinafter defined) issuei pursuant hereto, (cl all
payments to be made by the Borrower to the Issuer under this
Agreement and under the Note, (d) all amounts derived by the
Issuer in any manner from or in connection with the sale or other
disposition of the Project, and (e) until applied as provided in
the Indenture, the proceeds received by the Issuer from the sale
of the Bonds and the income earned by the investment of funds.
AGR!!:EMENT:
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AR'rICLE I
DEFINITIONS AND REPRESENTATIONS
Section 1.1 Definitions. The following words, terms or
phrase~, ·t,1hen used in this Agreement, have the following
:aeanings, unless the context clearly indicates a different
meaning:
"Act" shall mean Chapter 159, Part II, Florida Statutes,
¼nu other applicable provisions of law, and all future acts supple-
menc3L thereto or amendatory thereof.
"Additional Bonds" shall mean any Bonds issued pursuant
to Sec'::.ions 2.4 and 3.3 of the Indenture.
"Administration Expenses" shall mean the reasonable and
necessary expenses incurred by the Issuer and the Trustee pursuant
to this Agreement and the Indenture, and the compensation and
ex?ens~s paid to or incurred by the Trustee or the Paying Agent
unJer the Indenture, including but not limited to all expenses and
t3xen, if any, applicable to or arising from any transfer of
title ~r any creation or transfer of any lien or security
inter~st provided for in or contemplated by this Agreement or the
Indenture ~nd any interest and penalties for nonpayment or delay
in the payment of any such taxes, which sha.J.l not have been paid
out of !:.he ()roceeds from the sale of the Bonds or by the Borrower.
"Affiliates of the Borrower" shall mean Persons
controlling, controlled by or under common control with the
i3ori:ower.
"Agreement" shall mean this Loan l\greement, Mortgage and
Security ,\yreement.
"Authorized Oorrower Representative" shall mean any per-
son at the time designated to act on behalf of the Sorrower by a
written certificate, signed on behalf of the Borrower by its
President or one of its Vice Presidents or its Treasurer, and by
its Secretary or one of its Assistant Secretaries, or by its
rnanaqinij partner, whichever is applicable, and furnished to Lhe
Issuer ,:i.nu the Trustee, containing tht:! specimen signature of ea.ch
such person.
"Donus" shall mean the Industrial Development Revenue
!3onc1:i, Series 1983 (FlorirJa llealth Pacilities Project}, of the
Issuer Lssueu pursuant to the Indenture, including any Additional
□onus.
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"Dond Fund" shall mean the fund established as a trust
fund under the Indenture for the payment of the principal of and
interest on the Bonds.
"Bond Year" shall mean the period beginning with each
and extending through the next succeeding
"Code" shall mean the Internal Revenue Code of 1954, as
amended, and the rules and regulatir1s promulgated thereunder.
"Construction Loan Agreement" shall ~tean the agreement
regarding construction of the Project, dated-~~----• 1983,
between the Borrower and Barnett Bank of Central Florida, N.A.,
Orlando, Florida.
Trustee,
business
the date
Florida
"Corporate Trust Office" shall mean the office of the
at which at any particular time its corporate trust
shall be principally administered, which office as of
hereof is located at 801 Riverside A.venue, ,Jacksonville,
32204.
"Cost," when used in connection with the Project, shall
be deemed to include, whether incurred prior to or after the date
of this Agreement, (a} expenditures or obligations of the Issuer
or the Borrower incurred for the acquisition, construction
and/or equipment of the Project, and all other expenses inciden-
tal thereto, including, but not limited to, the costs of issuance
of the Jonds; (b) interest on the Oonds prior to and during
construction; (c} the cost of contract bonds and of insurance of
all kinds that may be required or necessary during the course of
construction which is not paid by the contractor or contractors
or otherwise provided for; (d} the expenses of test borings,
surveys, test and pilot operations, estimates, Plans and
Specifications and preliminary investigations therefor, and for
supervising construction, as well as for the performance of all
other duties required by or consequent upon the proper erection,
construction or installation of the Project; (e} compensation and
expenses of the Trustee, legal, accounting, financial and
printing expenses, fees and a 11 other expenses incurr.ed in con-
nection with the issuance of the UonJs or Ll1e transactions
financed thereby; ( f) all other costs which the Issuer or the
Oorrower shall be required to pay under the terms of any
contract or contracts for the acquisition, construction and
equipment of the Project; (g) payment of the taxes, documentary
stamp taxes and intangible tr.::es, if any, to the extent such
taxes may be lawfully clue, ,'H,.,;~ssrnents ,J.l\d other r;hargcs, if any,
that may become payable with respect to the Project, or reimbur-
-4-
sement ::.hereof if paid by the Issuer; (h) payment of expenses
i:1currs?.J i.n enforcing any remedy against any contractor or sub-
contractor in respect of any default under a contract relating to
th~ i'r'.Jjcct; and (i) any sums required to reimburse the Issuer or
the Dorrower for advances made by any of them for any of the
.:l. bov~ i ::.~ms, or for any other costs incurred and for work clone by
any of them, which are properly chargeable to the Project.
"Determination of Taxability" shall mean a Determination
of ·;axability as specified in Section 10, 2 of this Agreement.
"t::quipment" shall mean all personal property consti-
tuti:vJ ,:my portion of the Project, including the furnishings,
maci1iner1, e~uipment and other tangible personal property, as
:aor,.? :Jarticularly described in Exhibit "A" hereto.
"2vent of Default" shall mean any Event of Default spe-
cified in St?ction 9.1 of this Agreement.
"Guarantor" shall rnean, jointly and severally, Clark
~evclopmcnt, Inc., Jack A. Clark, Christopher A, Clark and Martin
.J. Clark.
"Guaranty" shall mean the Guaranty Agreement between the
Guar~ntor, the Issuer and the Trustee, of even date herewith,
pur5u~nt to which the Guarantor has guaranteed full and prompt
payment of the principal of, premium, if any, and interest on the
nont.ls.
"Intlenture" shall mean the Trust Indenture (including any
indenture supplemental thereto) between the Issuer "ind the
TrtJstee, of even date herewith, as amended from time to time,
"Independent Architect" shall mean an architect or
architectural firm registered and qualifiecl to practice the pro-
fession of ~rchitecture under U1e laws of the State and not in
the Eull-time employment of elther the Issuer or the 13orrower.
"Independent l~ngineer" shal L mean an engineer or engi-
neering firm registered anll qualified to !)ractice the profession
of ,rngineering under the laws of the State and not in the full-
ti;;ie ~1ap1'.>yrnent of either the Issuer or the narrower.
"Inwist;nent Securities" shall mean any of the following
securities, if and to the extent the same are at the time legal
for investment of. the funds of the Issuer:
(a) any bonds or other obligations which ~s to prin-
cipal und interest constitute direct obligations of, or are
-5-
unconJitionally guaranteed by, the United States of America,
incl~Ji~J obligations of any of the federal agencies set forth in
clause (o) oelow to the extent unconditionally g~aranteed by the
uni~2J 5t~tes of America;
(b) obligations of the Federal National Mortgage
Associution, Government National Mortgage Association, Federal
Financi.ag uank, Federal Intermediate Credit Corporation, Federal
3an:-;s for Cooperatives, Federal T.,and Banks, Federal !iome Loan
:Jank!!, ~·.:ir:ners Home Administration and Federal Home Loan Mortgage
.:\ssociution~
(c) direct and general obligations of any state of
the Jnite<l States of America, to the payment of the principal of
.i11ci 1.ntero?st on which the full faith and credit of such state is
pl~<lgeJ; provided, that at the time of their purchase, such obliga-
~ions ~r~ rateJ in the highest rating category by a nationally
r~co~nized bond rating agency:
(J) time deposits (which may be represented by cer-
tificates of deposit) in any bank or trust company (including the
rrustae or any Paying Agent); provided, that ~uch time deposits
(1) aC"e continuously and fully insured by the Federal Deposit
Insurance Corporation, or (2) do not exceed at any one time in
the u<J-;1re•Jate 10% of the total of the capital and surplus of such
ban~ v r trust company, and such bank or trust company has a com-
bineJ ~apital and surplus of at least $15,000,000 (or, in the
cast.? '.lf ,1 bank or trust company not organized under the laws of
the Unitatl States or any state thereof, a combined capital and
surplus of at least Sl,000,000,000), or (3) are continuously and
fully s~cureJ by such securities as aC"e described above in
clauses (a), (b) or (cl hereof, which shall have a market value
(exclusive of accrued interest) at all times at least equal to
the principal amount of such time deposits and shall be Lodged
with the Trustee, as custodian, by the bank or trust company
issuing !lUCh time deposits, and such bank or trust company shall
fuC"nish the Trustee an undertaking satisfactory to it that ~e
aggregate market value of all such obligations securing such time
deposits will at all times be an amount equal to the principal
;:imount ".lf !:>uch time deposits, and the 'rr-ustee shall be cmtitled
to C"ely on each such undeC"taking;
( e) r,:u:isne commercial paper rated A-2, P-2 or their
ey:ui•;alent or higher by a nationally recognized rating agency;
(f) prime finance company papeC";
(g) banker's acceptances drawn on and accepted by
comml!!rr.iul banks and certificates of <Jeposit issued by federal
-6-
reserve system commercial banks; provided, that, except as
authorized in clause (h) below, no such money shall be invested
in bankers' acceptances or in certificates of deposit of federal
reserve system commercial banks with capital and surplus of less
than ~20,000,000;
(h) bankers' acceptances drawn on and accepted by the
Trustee and certificates of deposit issued by the Trustee; or
(i) repurchase agreements fully secured by obligations
issued or guaranteed as to principal and interest by the United
States of America.
"Issuer" shall mean Indian River County, li'lorida, a
political subdivision of the State.
"Loan" shall mean the loan from the Issuer to the
Borrower pursuant to this Agreement.
"Mortgage" shall mean the mortgage granted to the Issuer
by the Borrower pursuant to Section 4.5 hereof,
"Net Proceeds," when used with respect to any insurance
or condemnation award, shall mean the gross proceeds from the
insurance or condemnation award with respect to which that term
is used remaining after payment of all reasonable expenses
(including reasonable attorneys' fees 3nd any extraordinary fee
of the Trustee) incurred in the collection of such gross pro-
ceeds.
"Note" shall mean that Promissory Note in the form
attached hereto as Exhibit "B" given to the Issuer by the
Dorrower and any Supplemental Note.
"Outstanding," when used with reference to Oonds, shall
mean, except as otherwise provided in Article XII of the
Indenture, at any date as of which the amount of out9tanding
Bonds is to be determined, the aggregate of all Bonds authorized,
issued, authenticated and delivered under the Indenture, except:
(a) Bonds cancelled or surrendereu to the Trustee for
cancellation pursuant to Section 2.11 of the Indenture on or
prior to such date;
(b) Bonds for the r,ayment of which cash shall have been
theretofore deposited with the Trustee in an amount equal to the
principal amount thereof and interest thereon to maturity:
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( c) Bonds for the redemption of which cash shall have
oeen ::heretofore cleposited with the Trustee in an amount equal to
the ,.111paid principal thereof and the premium, if an',·, and
interi?st ther":!on to the date of such redemption; provided, that
notice of such redemption shall have been given as required in
the l;1denture or provision satisfactory to the Trustee shall have
been ~ade therefor:
(~) Oonds otherwise deemed to be paid as provided in
Sec ti.on l 2. l of the. Indenture: and
(e) Bonds in lieu of or in substitution for which other
aonJs sh3ll have been authenticated and delivered pursuant to
Article [I of the Indenture,
;~here the holders of a certain percentage of Bonds is
re,p1ired to take or to consent to any action taken hereunder,
Bonds ~hich are owned by the Borrower, ~ffiliates of the Borrower
or the Issuer shall be disregarded and deemed not to be
outstanding for the purpose of any such determination.
"Paying Agent" shall mean any paying agent for the Bonds
(~nJ ~ay include the Trustee) and its successor or successors
appointed pursuant to the provisions of the Indenture.
"Payment," "Loan Payment" or "payments (or prepayments)
!.!pan the Loan (or the Note)" shall mean those installments
[Jayable '.:o the Issuer pursuant to Section 4.2 of this l\greement.
"Per,nitted Encumbrances" shall mean as of any particular
time, (a) liens for ad valorern ta~es permitted to exist as pro-
vided Ln this Agreement or not then delinquent; (b) the Indenture
and chis ~greement1 (c) utility, access or other easements and
riJhts-of-way, party walls, ,;1.greements with respect to conunon use
of utilities, and restrictions and exceptions that may be granted
or ;ire permitted under this Agreementi (d} any mechanics',
laborera', materialmen's, suppliers' or vendors' lien or right or
purchase :noney security interest if payment is not yet due and
payabl~ under the contract in question: (e) such subordinate,
junior ~nd secondary encumbrances as are expressly permitted by
the lnJcnture; and (f) such minor defects, irregularities,
enc111nbrances, easements, rights-of-way a nd clouds on tit le as
nor~ally exist with property similar in character to the Project
real property as .Jo not materially impair the use of the Project
for the purpose for whlch it was acquired.
"Person" shall mean ,'In indiviuual, a coq_)oration, a
partnership, an association, a joint stock company, a trust, ,,my
-8-
unincorporated organization or a government or political sub-
division thereof .
"Plans and Specifications" shall mean the plans and
specifications prepared for the Pro ject, certi fied by an Autho-
rized Borrower Re presentative and filed with the Trustee at the
date of issuance of the Bonds, as the same may be revised from
time to time prior to the Completion Date in accordance with
Section 3.2 of this Agreement.
"Project" shall mean, collectively, the nursing home
improvements to be loca ted at the Project Site, to be acquired,
constructed and equipped pursuant to this Agreement and the
Indenture, including any Project Additions.
"Project Addi tions" shall mean any additions, expans ions
and modifications to the Project financed with the proceeds of
the sale of Additional Bonds.
"Project Fund" shall mean the fund established as a
trust fund under the Indenture, from which funds are t o be
withdrawn to acquire, construct and equip the Project pursuant to
the Plans and Specifications .
"Project Site" shall mean the real property described in
Exhibit "C" to this l\greement,
"Redemption l\ccount" shall mean the account established
u nder the Indenture as part of the Bond Fund to provide for the
redemption or payment of the Bonds .
"Redemption Date" shall mean the date fixed for redemp-
tion of Donds subject to redemption in any notice of such redemp-
tion disseminated in accordance with the Indenture.
"Redemrtion !:>rice" shall mean the price at which the
3on<ls may be called for. redemption and includes the unpaid prin-
cipal amount of the Bond or Bonds to be redeemed, accrued
interest thereon to the Redemption Date, plus the premium, if
any, requireu to be paid to effect such reuemption by the terms
of the Indenture .
"Security Interest" shall mean the security interest in
the Project and any aduitions or substitutions thereto, granted to
the Issuer in Sec tion 4.4 of this l\gr•ement.
"State" shall mean the St.i te of Flor idu.
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"Supplemental Note" shall mean a promissory note given
to the [3suer by the Borrower evidencing the Borrower's obligation
to re!Jay any loan derived from the issuance of Add.;.tional Bonds.
"Trustee" shall rnean the trustee at the time serving as
such un~er the Indenture.
Section 1.2 Representations of the Issuer. The
Issuer .nakes the following representations as the basis for the
unJertakings on the part of the Bor_ower herein contained:
(a) The Issuer is a political subdivision of the State,
duly ?r~anize<l and validly existing under and pursuant to the
Constitution and laws of the State.
{b) The Issuer has full power and authority under the
,\ct t,o c!ngage in the transactions contemplated by this t'.greement
and the [ntlenture and to carry out its obligations hereunder and
ther~uniler.
(c) The Issuer is not in default under any provision of
feder-11 ,Jr State law which would impair its ability to perform
under this Agreement.
(d) 'l'he Issuer by proper official action, has duly
authorized the execution, delivery and performance of this
,\gr,~ement :inu the Indenture; and has approve<l the Bonds in accor-
da.ncr:? ·..ii.th the provisions of the Code.
(e) The financing of the acquisition, construction and
c4ui:rnent of the Project by the aorrower, ;;i.s provided by this
Agreement., will further the purposes of the /\ct by promoting the
economic development of the State, increasing opportunities for
,3ainful e:nr>loyment, and improving generally the prosperity and
welfare of the State and its inhabitants.
(f) In order to enable the Borrower to <lefray the Cost
of the ProJect, concurrently with the delivery hereof, the Issuer
has issued $2,400,000 principal amount of the Bonds, the proceeds
of ,;hi ch wi l L be loaned to the IJorrower pursuant to this l\gree-
:11ent.
Section 1.3 Representations and Warranties of the
[l,orrower. The Borrower represents and warrants, as the basis for
the untl~rt.ai<ings on the part of the Issuer herein contained and as
<ln inducement for the purchase of DonJs, as follows:
(u) 'l'he Sorrower is u. corporation duly incorporated,
v~llJly existing and in good st.andi~g under the La.ws of the State
-10-
and is qualified to do business in the State, and has all
requisite power and authority to enter into and fully perform
this Agreement. All necessary action on the part of ~he Borrower
relating to the authorization of its execution and delivery of
this Agreement, the Note and the Mortgage, and its performance of
its duties and obligations contained herein have been duly taken,
and this Agreement, the Note and the Mortgage, when executed nnd
delivered, will be valid and enforceable in accordance with their
respective terms, except to the extent the enforcement thereof
may be limi ted by any applicable bankru)tc y, insolvency, mora-
torium or similar laws generally affecting the enforcement of
creditors' rights, and subject to the avail ability of equitable
remedies, generally.
(b) The Borrower has furn ished to the Issuer and to the
Trustee a balance sheet of the Borrower as of its most recent
fi sca l year and a r elated statement of income for the fiscal year
then ended, certified by a financial officer of th e Borrower,
which balance sheet and related statement accurately reflect the
financial condition and operati ons of the Borrower as of their
respective dates.
(c} Since the date of the balance sheet as o f the latest
date referred to above, there have been no cha nges in the assets
or liabilities or financial condition of the Borrower, other than
chilnges in the ordinary cours e of business, which in the aggregate
are materially aJverse with respect to the Oorrower's ability to
perfor1n its obligations under this Agreement. There were no
material liabilities, contingent or otherwise, of the Borrower
which were not reflected in such balance sheet and relateo st~te-
ment of income as of the respective dates thereof, ;ind the
Borrower has not entered into any commitments or contracts since
the date of the balance sheet as of the latest date referred to
above which are not reflected in such balance sheet, other than
in the ordinary and nor.mal course of its business, which might,
in light of any fa c t or condition presently known to the
Borrower, have a materially adverse e ffect upon the financi al
condition, operations or business of the Dorrower or its ability
to per form its obligations here under.
( d) Since the date of the balance sheet ,:ls of the Latest
date referreJ to above, the Borrower has not sustained any
material loss or interference with its business from fire, explo-
sion, flood, or other calamity , whether or not covered by
insurance, or from any labor Jispute or court or gov e rnmental
action, order or Jecree, wh ich has had a materially adverse ef fect
on the value of its assets, the results of its operations or its
income.
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(el There are no actions, suits or proceedings pending
or, t:l ':.:\'.? ~;now ledge of the ilorrower, threatened "1gainst or
aff~ctin~ che Borrower, at law or in equity or befo~e or by any
feJerjl, 3tate, municipal or other governmental department,
co;nmission, board, bureau, agency or instrumentality which, if
Jeter:·1ineu a,lversely to the Borrower, would have a materially
a,Jverse -~!'feet on the value of its assets, the results of its
operations or its income.
{t) Toe Borrower is not in default in the performance,
observ~nce 0r fulfillment of any of the obligations, covenants or
conJitions contained in any evidence of indebtedness or in any
contrjct ~. lease to which it is a party, which would, indivi-
Juall1 0r in the aggregate, have a materially adverse effect on
t!le ·,alue of its assets, the results of its operations or its
inco:-:,e, 'leither the execution and delivery of this Agreement, nor
the ,:on:;u:n:-:,ation of the transactions herein contemplated, nor
co:npliance · .. ith the terms and provisions of this Agreement will
violate the ?revisions of any applicable law or of any applicable
orJer :lr re~ulation of any governmental authority having jurisdic-
tion o~ ~he 3orrower, and will not conflict with or result in a
6reach of a ny of the terms, conditions or provisions of any
restrictio:i ,::ir of any ilgreement or instrllment to which the
narrower is now a party, or constitute a default thereunder, or
result in the creation or imposition of any lien, charge or
encarnornnce of any nature whatsoever upon any of the properties
or assets of the Borrower.
{ 'J} There are no outstandin1 obligations issued by any
state, territory or possession of the United States, or any ~oli-
tic~L ~ubdivision of the foregoing, or of the District of
Columbia, the proceeds of which have been or are to be used pri-
marily with respect to facilities located within the jurisdic-
tional territoria L limits of the Issuer, and of ·,1hich the Borrower
or any Per:.on related to the 3orrower wit11in the meaning of
::iection 103(b){6)(C) of the Code is a "princi:,:,al user," as that
term is used in Section 103(b)(6) of the Code.
(h) ~o portion of the proceeds of the sale of the Oonds
,..,11 l be ,.med by the Borrower to re finance uny inclebte<:lness of the
Oorrower or any Person related to the Borrower within the me a ninq
of Section 103(b)(6){C) of the Co~e, with respect to the Project
or the r~roject Site, which was outstanding prior to March 16, 1983.
(i) ~o capital expenditures as describe~ in Section
10J(b)(6)(D) of the Code {"C.:i.pital Gxpenditures") have been paid
or incurre~ in the 3 years preceding the date of the issuance of
the Bonds or will be paid or incurre<l in the 3 yeurs after the
date of the issuance of the Bonds wilh respect to the Project or
any facilities which are located within the jurisdictional terri-
torial limits of the Issuer, and of which the Borrower nr any
-12-
Person related to the Borrower within the meaning of Section
lOJ{b) {6) (C) of the Code will be a "principal user," as that term
is used in Section 103(b)(6) of the Code, the amounts of which,
when added to the aggregate principal amount of the Bonds, exceed
$10,000,000 or such higher amounts as may be authorized by the
Code as applicable to the Bonds; provided, however, that to the
extent and for the purposes allowed by Section 103(b)(6)(F) of the
Code, certain Capital Expenditures shall not be taken into account
in determining if such $10,000,000 amount, as computed in accor-
dance with this subsection (g), has Leen exceeded.
(j) The Borrower has not incurred any material accumu-
lated funding deficiency within the meaning of the Employee
Retirement Income Securities Act of 1974 nor incurred any material
liability to the Pension Oenefit Guaranty Corporation established
under such Act (or any successor thereto under such Act} in con-
nection with any employee benefit plan established or maintained
by the Borrower, which deficiency or liability, together with all
other such deficiencies and liabilities, would have a materially
auverse effect on the value of the Oorrower' s assets, the results
of its operations, or its income.
(k) The Borrower is not .;n~are of any action impend in') or
threatened by any person, firm, corporation or other legal entity
which if taken, would materially adversely affect the Borrower's
financial condition, the success of its business or its ability t.o
perform its obligations hereunder.
(1) The acquisition by the Borrower of the E:quipment
and any real property associated with the Project will enable the
Borrower to operate the Project.
(m) The Project constitutes a "project" within the
meaning of the Act. The Borrower intends to operate the
Project or to cause it to be operated ;:is such a project until the
expiration or earlier termination of this Agreement.
(n) The Project complies with all presently applicable
building and zoning ordinances.
(o) ~,e average reasonably expected economic life of
the Project, determined as of the later of (i) the date of
issuance of the Bonds or (ii) the date on which the Project is
placed in service (or expected to be placed in service), is
years. 'l'herefore, the average maturity of the Oonds is
les~ than 128% of the average rea~onably expected economic life
of the Project.
-13-
(p) The Project is located entirely within the unincor-
i?0r.J.t.~,i .:1rea of the Issuer.
(4) No portion of the proceeds of the sale of the Bonds
will be used to finance facilities for retail food and beverage
ser~i=e~, ~utomobile sales or service, recreation or entertain-
ment: ~r Eor a private or co~nercial golf course, country club,
mass~ge parlor, tennis club, skating facility, racquet sports
f~cility, hot tub facility, suntan f~cility or racetrack.
3ection 1.4 Use of Words and Phrases. "Herein,"
"her\! by, " "hereunder, " "hereof, " "here inbe fore," "hereinafter, "
<1n,l 0ther ~quivalent \oi1orus refer to this Agreement as a whole and
not :-;olely to the particular portion thereof in which any such
word i;:; ,Jsed. "Person" includes natural persons, firms, asso-
ci.J.tions, cor~orations and public bodies. The definitions set
fort~ in 5ection 1,1 hereof include both singular and plural.
i~henev•~r •ised herein, any pronolln shall be deemed to include both
sin1ul.J.r ~nd plural and to cover all genders. Any percentage of
3orh.la, 3?ecified herein for any purpose, is to be figured on the
unraLJ rrincipal a~ount thereof then Outstanding. The words
":;iajority in aggregate principal amount of the Outstanding Donds,"
or 'Jt.her •~4uivalent wocds, shall mean at least 51% of the aggre-
9ate principal amount of the Outstanding Bonds.
Section 1,5 References to Bonds Ineffective after Oonds
Pai<..!. U[>on full. payment of the Gone.ls, all -references in this
,\g rde1:ien::. c.o the 13onds, the Indenture and the Trustee shall be
indffe ctive, and neither the Trustee nor the holders of any of the
Oon<.l:;; :;h<1J.l thereafter have any rights hereunder, saving and
except.in] those that shall have theretofore veste1. Por purposes
of this ,\greement, the Oonds shall be deemed fully paid when they
ar~ JeemeJ no longer Outstanding under the provisions of Section
12,L 0£ the Indenture.
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ARTICLE II
Section 2,1 Principal Amount of the Loan. The Issuer
agrees to make and the aorrower agrees to accept and repay a loan
in th~ principal amount of ~2,400,000. The loan shall be evi-
denced by a Note in the principal amount of $2,400,000 in the
form attached hereto as Exhibit "B," The Borrower shall mal<e
payments in satisfaction of the Note as hereafter set forth in
Section 4,2 and as provided in the Indenture.
Section 2.2 Total Loan Payment. The aggregate amount
of the Loan Payment to be made by the Borrower in each □and Year
shall be the aggregate of the payment for principal (including
such Amortization Payments as may be provided in the Indenture},
redemption or other premiums, if any, due on the Outstanding
BonJs, plus the interest at the same rate or rates per annum as
that paid on the Bonds accruing or becoming due for such Bond Year
as provided by t~e Indenture, plus any additional sums which
become payable to the Issuer or Trustee under the terms of this
Agreement or the Inuenture.
Section 2. J Issuance of Supplemental Notes. 'I'he
Borrower shall issue Supplement3l ~otes in such principal amounts
as shall be necessary to evidence further borrowings from the ?ro-
ceeds of any Additional Bonds issued in accord ance with this
Agreement. and the Indenture ,
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ARTICLE III
ISSUANC8 OF BONDS; ACQUISITON OF THE
PROJECT; DISBURSEMENT OF FUNDS
5dction 3.1 Agreement to Issue Bonds; Addi tional Bonds;
Ano l ::ation of ilond Proceeds . In order to provide fu n ds to make
th~ Loan t:.;J t.he aorrower for the purpose of reimbursing to the
Issuer ~11 its reimbursable costs of issuing the Bonds and for
payiag the Project Costs, the Issuer agrees that it will, as
:>ro:n_;Jt l/ as possible, sell and cause to be delivered to the
purc~asars thereof $2,400,000 aggregate principal amount of
aonJs, to be designated Series 1983. The proceeds from such sale
shall ~e r~ceived by the Trustee for deposit to the various funds
.1:; .r~4uire...l by the Indenture. The Issuer shall be reimbursed for
:1...lvances heretofore made for Costs as provided in Section 3,3
her .:lof.
The Issuer may hereafter agree to authorize and issue
pari ~assu ~dditional Bonds in one or more series in accordance
wi.::.h ..ipplicable rrovisions of the Indenture upon adoption of a
::';:!:;.Jlut.ion of the Issuer containing a finding that the issuance
of c.he ~Jditional Bonds is in the public interest, and further
co11t3i:1in-1 findings with respect to the financial ability of the
iJorr::>,,,H" :ind other matters as require<l by the Act. The Issuer
shall ~hereafter issue such Additional Bonds in one or more
serl.~s, in accordance with the apr.ilicable provisions of the
Indentur'?; provided, however , that the inability or unwillingness
of c.he rss,rnr to issue Additional Bonds shall not r-elease the
iJorr::,• . ..ter from any of the provisions of this l\.greement, regardless
of ~ha reason therefor. Nothing herein shall be deemed to require
or ~bli~at~ the Issuer to issue Additional Bonds.
Section 3.2 Acquisition of Project. The Borrower will
colilplete the r1cr1uisition, construction and equipment of the
Project dS pro~ptly as practicable, and will continue such
ac4uisition, construcion, and equip~ent with all reasonable
o.Iispatcil not..,ithstanding any insufficiency of the Note proceeds
for that. ~,urpose. The ,late of such completion shall hereafter be
rererri:!J to as the "Completion Date."
The iJorrower :nay revise tho Plans and Specifications
.:it ,1ny time ,1nd from time to time prior to the Completion Date,
in .:in/ munner not inconsistent with the provisions of the
Construction Loan Agreement; proviued, however, that no material
ch.:i.nge in the Plans an<l Specifications shall be ma<le in the
courc;L? of the construction of the Project unless ;incl until a. copy
of uach such revision, duly certified by an AuLhorlze<l 0orrower
-lG-
Representative, shall be filed with the Trustee and unless such
revision and the expenditure of money from the Project Pund to
pay the Cost of the Project in accordance with such revision will
not impair the exemption of interest on Outstanding Oonds from
federal income taxation and would not result in a material change
in the nature or quality of construction of the Project.
The Borrower shal l cause construct.ion anj equipment
•~f the Project to be performed under a construction contract or
contracts with reputable contractors licenseJ to do business in
the State. Any anJ all amounts rece~veJ by the Oorrower from
any of the construction contractors or other suppliers of
mat erials and equipment, by way of damages for breach of
contract, refunds or adjust~ents, shall become part of and be
Jepositetl in the Project Fund ,
Section 3.3 Disbursements from the Project Fund. From
the proceeds derived from the sale of the Bonds and herein loaned
to the Borrower, and other funds available therefor, the Oorrower
...,ill pay the Cost of the Project in accordance with this Agree-
ment. The Issuer has, in the Indenture, authorized ann directed
the Trustee to use the money in the Project Funci for the payment
of the Cost of the Project. Each such payment shall be made only
in accordance with Section 4.3 of the Indenture and the
Construction Loan Agreement.
Section 3.4 Warranty of Suitability by Borrower;
Borrower Required to Complete Pro ject in Certain Events. The
13orrower recognizes that since the Plans and Specifications
for constructing and equipping the Project are furnished by it,
and since the items of personal property are selected by it and
are to be installed in accordance with i.ts directions, the
13orrower warrants the Project will be suitable for the purposes
intendeu, and that the proceeds derived fro1n the sal':! of the 13onL1s
will be applied in full to pay Project Costs. 1n the event the
proceeds derived from the sale of the Bonds including proceeus, if
any, from Additional Bonds, are insufficient to pay in full all
Project Costs, the Borrower shall be obligated to complete t-.he
Project at its own eKpense and the □orrower shall pay any such
deficiency anJ shall save the Issuer dhole and harmldss from any
obli 3 ation to pay such deficiency. 'rhe l3orrowor shall not by
r~ason of the payment of such defici,~ncy from its own fumls be
entitlell to any ,liminution or postponement or abatement of the
Loan Payments hereunrler, nor shall the Borrower be entitled to any
reimbursement from the Trustee or the holders or owners of ;my of
the i3onds for c1ny such payment.
Section J.5 Dorro~er to Pursue Remedies Aq~inst Con-
tract.ors and Subcontractors and Their Sureties. In the event
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~f .!efault ~f any contractor or subcontractor under any contract
::ia,:..! •JY i-:. for acquisition, construction or equipment of any
?art Ji the ~roject, the Dorrower will promptly oroceed (subject
t~ ~ha :ru~tde's advice to the contrary), either separately or in
conJunction with others, to exhaust the remedies of the Borrower
•l':Jul:-ist the contractor or subcontractor so in default a nd against
hi~ ~urc~y. if any, for the performance of such contract. The
3on:-owcl'." ,.,ill advise t~1e Trustee of the steps it intends to take
i.n .::onnection with any such default. Any amounts recovered by way
of J,1::1,'l•Jc?s, refunds, adjustments O"." otherwise in connection with
~he e~reyojng shall be paid into the Project Fund.
Section 3. 6 Comol.etion of the Pi::-oject, Promptly upon
-::,,m,1!,?tion of the Project, the Authorized Borrower Representative
~hall ~xccutc and deliver to the Trustee a certificate stating
tJ,at (,1) ,1.cquisition, oonstruction and equipment of the Project
hils !)~~n ...:~;-;ipleted in accordance with the Plans and Specifications,
(b) ~ll Labor, services, materials, equipment, machinery and
supplies in connection with such construction, acquisition and
insc1LL1tion i1ave been paid, (c) all facilities necessary in con-
necti.)n with the Project have been constructed, acquired and
Lnsc~Llcd and all costs and expenses incurre d in connection
t:-iet'•~with ilolve been paid, and (d) the Equipment has been acquired
an.J 1:-ist ~lled to the satisfaction of the Borrower, and all costs
anJ aX?enses incurred in the acquisition and installation of the
~~uir~enc lnd such other machinery, equip~ent or other personal
pr.:i9,~rty ivwe been paid. Notwithstanding the foregoing, such cer-
tif lc ~ta shall state that it is given without prejudice to any
ri~hts 3Jainst any contractor or other person not a party to this
,\qr•Je::ienc ...-hich exist at the date of such certificate or which may
suosc•-1uently come into being. The Issuer aml the Borrower '-"ill
cooperolte one with the other in causing such certificate to be
fur:iisheJ to the Trustee,
Upon the delivery of the certificate to the Trustee, the
'I'cu1atee .sha.11 transfer all money remaining in the Proj e ct E'uncl to
t.he ilcuc~ption 1\ccount in the Donel Funtl, to b e used to purchase or
ceJecm 8on1s at their earliest possible date in accordance with
Section 4.5 of the Indenture. Until used, such fund s shall not be
i.nve~c~l ilt a yield exceeding the yield on the Oonds.
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ARTICL2 IV
TER~i OP AGREEM8N'l'; PROVISIONS FOR R8PAYMENT:
SECURITY INTEREST; MORTGAGE
Section 4.1 Duration of Term. The term of this Agree-
ment and of the loan herein made shall begin on the date of the
delivery of this Agreement and, sur ject to the provisions of this
Agreement, shall continue until the Bonds shall be deemed to be no
longer Outstanding; provided, the Borrower has fully performed its
obligations under this Agreement.
Section 4.2 Repayment of Loan. (a) The Borrower
agrees to repay the Loan by paying to the Issuer, in the amounts
and on the dates (each of which is herein called an ''Installment
Payment Date") as follows. Payment will be made on each date
upon which an interest payment, or any other payment may be
required to be made with respect to the Bonds or under the
Indenture, in federal or other funds immediately available on
such date, in an amount which, together with any money on deposit
in the Bond Fund available for such purpose, will equal the sum of
tile following:
(i) The interest to be paid on the nonds on such uate
in accordance with the ter~s theraof; and
(ii) The principal amount. of all Bonds which shall
mature or become due on such date; and
(iii) Any redemptj on pre,nium or other premium or
penalty which shall become due on such uate: and
(iv) The amount. of l\tlministration Expenses not thereto-
fore provi<.led for. a:1.d which shall have then accrued and become
due and payable; and
(v) Any other <'.11t1ounts which will become due and payable
to the Issuer or t.he 'rrustee on such <.late unuer this Agi:eernent or
the rn,lenture,
{b) 'l'he Note is subject to mandatory anu optional pre-
payment as follows:
(i) 1'he Mote shall be prepaill in full upon the
occurrence of any of the following events:
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(l) All or substantially all of the Project or the
~roject Site shall have been damaged or destroyed and the
3orra~er shall determine that it is not practicable or desirable
~hut ~he ProJect be rebuilt, repaired or restored; or
(2) All or substantially all of the Project or the
~rojcct 3ite shall have been condemned or such use or control
thereof shall have been taken under eminent domain proceedings so
us to render the Project unsatisfactory to the !3orrower for
conti~ued operation; or
(3) The Borrower reasonably determines that burdens or
liabilities shall have been imposed upon the Borrower with respect
to tha Project or the operation thereof, for the purposes
~x2resseu in this Agreement, which shall be outside the control of
the ~orrower and which shall render such operation uneconomic or
unprocit~ble; or
(4) 1.'he Borrower reasonably determines that tech-
nolo~ical or other changes shall have occurred which shall render
t:'le oper.:ition of the Project, for the purposes exr:iressed in this
A~reement, uneconomic or unprofitable.
The narrower :nust prepay within 180 days after such
an •?Vent occurs or such a determination is made and communicated
in ·11ritin',} to the Issuer and the •rrustee by the iJorrower,
~hi~never occurs later.
(ii) The Note shall be prepaid to the extant of the
principal ~mount of any Bon~, interest accrued and to accrue
t.her~on to the da~e of redemption thereof, plus any applicable
pre~iums or other payments required, as provided in Section 10.2
hereof if there shall have occurred a Determination of Taxability.
(iii) Under circumsta.nces other than those set forth in
(i) 3n,i (ii) above, at the option of the Borrower, the Note may
be prepaill as a whole at any time, or in part on any Installment
P;iyment Date, by payment of the portion of the principal amount
of the :Jot.e to be prepaid, plus accrued interest to the date
fi:<ed Eor prepayment, without premium.
(iv) •rhe Note shall be prer,aid as a whole or in part,
whichever is ~pplicable, on or prior to the next succeeding
September 1, ur:ion exercise by any holders of the 13onds of their
option to have their Bonds redeemecl in accordance with the provi-
sions of the Indenture, by payment oE the ar:iplicable portion of
t.he principal amount of the Note to be prepaid, plus accrue1l
interest to the date fixed for prepayment, without premium.
{v) The Note shall be prepaid, by transfer of money
in the Project Fund to the Rede1nption Account of the Bond Fund as
provi:Jed in Section 3.6 hereof, to the extent that the r:irocee·ls
of the Oonds shall exceeu the Cost of the Project.
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(c) No prepayment upon t.he Note shall be made by the
Borrower unless written notice of intention to make such pre-
payment and the purpose of such prepayment shall have been given
by the Borrower to the Trustee at least JO days prio~ to the
date of such prepayment, and thereafter failure by the Borrower
to pay to the Trustee the funds required for such prepayment on
the date specified in such notice shall constitute an Event of
Default under Section 9 .1 of this l\.greement. The 'rrustee, upon
receiving such notice, shall be obligated to take all necessary
action to have the payment made by the Borrower for the purpose
of redeeming Bonds applied to the red .mption of as many Bonds as
such payment will permit under the Bond redemption provisions of
the Oonds and the Indenture. 'I'he amount necessary to redeem Bonds
shall be deemed to include, in addition to the Redemption Price of
the Bonds, all expenses necessary to e-ffect the redemption, and,
if all Bonds are redeemed, all other obligations under the
Indenture that shall become due and payable on or prior to the
redemption date, including the Administration Expenses.
(d) Note payments have been calculated on the basis of
providing funds sufficient to pay the principal of and interest
on the Bonds as the same mat.ure and come due and to redeem the
Oonds according to provisions for redemption set forth in the
Indenture and in this Agreement and to provide funds for the
payment of Administration Expenses and other amounts which may
become payable to the lssuer or the T rustee or with respect to
the Bonds pursuant to the Indenture and this Agreement. The
Oorrower recognizes, understands and acknowledges that it is
the intention of the parties that the proceeds from the ~ot.e
repayments be available exclusively for such purposes. This
Agreement shall be construed to effectuate this intent. If for
any reason the above payments are not sufficient for .:ill such
purposes, the a,~ount of such <leficiency shall, immediately upon
notification by the Trustee that such a deficiency exists, be
paid by the Borrower to the 'rrustee ,:md/or the Issuer as an addi-
tional Payment hereunder.
Section 4.3 Payment to Trustee. The lssuer hereby
directs the Borrower, ani.l it is understood and agreed b y the
Borrower, that all payments by the Borrower under this Agreeme nt
are to be pai<l to the Trustee at the Co rpor at e Trust Office. The
13orrower further agr~es that its obliqations to make mandat o ry
payments shall be absolute and unconditional .:ind shall not be sub-
ject to any defense (other than payment) or any right of setoff,
counterclaim or recoupment arising in any manner or for any reason
including, but not limited to any breach by the Issuer of any
obligations to the l3orrower, whether hereunder-or otherwise, or-
out of any indebtedness or liability at any ti.me owing to the
Borrower by the Issuer, or other•,1ise. All payments 1nade hereuncler
by the l3orrowcr to the Trustee shall be deemed to be payments to
the Issuer.
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3ection 4,4 Security Interest Granted. To secure the
pr:.)::i()t y,·1.11ent of the Uote .].nd the peC"formance by the Borrower
..:,f lts .Jther ->'oLigations heC"eun<ler, the Borrower, t:' the full
,~xt ~nt y?c;atte,l by law, hereby pledges to the Issuer and hereby
gr3nts to the Issuer a purchase money Security Interest in and
'1·.Jr•1es 1:1sl ,1c.•-.1ov.,ledges that the Issuer shall have and shall con-
ti~u8 ~~ have a Security Interest in (1) the Equipment, (2) all
~~C"s.;)n.:il ~C"operty or fixtures incorporated into the Project or
.:i..::,1uirell ::rom the proceeds of the i3onds, (3) all rental payments
or :Jt:1~r :Jay:nents or receipts of any :in<l pursuant to or i.n con-
n~c~i ~n wit~ any lease of the Project, (4) all other property, to
the .:i..:i;(i;;tu::i exi:.ent to which a security interest is permitted by
l.:iJ, ~s~J in the conduct of all or any part of its business or
busi~esses c8nducted on the Project (provided, that such other
[lr"::>i>8Ct'( .:iay b,:i subject to a purchase money security intecest in
f.:ivor of the Person providing the purchase money therefor, if,
but JnlJ if, such other property does not constitute (a) property
ac~uir2~ fr~m the proceeds of the aonds, (b) property necessary
for':.~~ co~pletion of the Project, (c) C"eplacements or substitu-
::.~s ::.::>r -,ny ~,roperty upon 1-:hich a security interest in favor of
::.he !.;:.;uer !1as ,:1ttached pursuant to any provision heC"eof), ancl
(3) in; ~fter ~cguired property or .:i.ny replacements, substitutes
or 1dJL~ions to any of the foregoing property as well as any pro-
Cctc'd.-; ::r·.);n the disposition thereof; provide,], that at any time
whun t!H? ;1oi:-rowar is not in def.:i.ul t in the [_)er formance of any
ter~, ~onJir.ion or covenant hereof, if the Borrower in its
,JL;cr·:?ti·~n .Jecer:nines that any items of Project :nachincry or
~qui;:i:ri!!nr. ha•,e \)ecome inaclequat::i, obsolete, worn out, unsuitable,
un-lesir:ible or unnecessary, the 13orrower may remove ancl dispose
·.::>f suc:1 itl!:ns of :nachinery or equipment from the Project and
sell, ':.rode in, exchange or otherwise dispose of them (as a whole
o~ in ?act) without any responsibility or accountability to the
ls!iucr :,r thi:! Trustee therefor, ancl feet;! of t1,e security interest
•Jr:rnt,!'1 i1erein, subject, however, to Section 7. 1 of this
,\<Jr•:?em,~nt, dnd provi,1ed that the fJorrower sha 11 repair ;i.ny da;na-
Jes to the i'r0ject occasioneu 'oy such cemoval, if the □orrower:
(u) substitutes a.ncl installs anywhere in t:.he Project
other ~achinery or equipment having equal or greater utility (but
not 1wo.:ess,,ri ly having the sa,ne functi,:in or-value) in the 0pera-
tion •Jf ::.ile ,1 roject as a fc1cility for its intendecl pllrpose
(;Jr:,·Ji led :Jllt:h removal ,,nd substitution shall not impair operatinq
unity), ~11 ~f ~hich substitute~ 1~chinery or equirment shall be
free af Jll liens ancl encumbrances an~ shall become a part of the
Project J.nd ::.hall be subject to the S•~curity interest <Jco.nte•l to
the Issu•~r herein; or
( i..>) [)J.y<, over to the Trust (!C for ,Iepos it by the Tr u:; tee
t,:::i the :tedemption ,\ccount, (i) i.n the •~.:ise of the s.il~ of c1ny
-22-
such machinery or equipment t o anyone other than the Dorrower or
any hffiliates o f the Bo rrower, or in the case of the s crappin~
thereof , the proceeds from such sale o r the proceeds, if any,
from such scrapping, as the case ~ay be, (ii) in the case of the
trade-in of such machinery or equipment for other mach inery or
equipment not installed in the Pro ject , t he am ount of the creui t
received by it in such trade-in a nd (iii) in the case of any
disposition other than as provided in clauses (b){i) o r (b)(ii)
an amount equal to the original cos t thereof less depreciation at
rates ca l culated in accordance with generally accepted accounting
practices consistently fo llowed b~ the Bo rrower; or
(c) In the event that the Borrower has acquired and
installed, prior to such removal and disposal of an item of
illachinery or equipment from the Project other than under pre-
ceding subsection (a} of thi s Section, an additional item or
items of machinery or equipment or made additions, modif ications ,
o r improvements to the Project with its own funds, fr ee of all
liens and encumbrances, which have become 9art of the Project,
and are subject to the Security Interest or Mortgage granted
herein, the Oorrower may ta'ke credit to the extent of the
amount so spen t against the requirement that it ei the r substitute
and install other machinery or equipment having equal or greater
utility o r that it make payment to the Trustee for deposit into
the aedemption Account.
Prior to the removal, disposal or other disposition of
any portion of the Project, the ,\uthorized Borrower Representative
shall deliver to the Trustee a c ertificate that such removal,
disposal or disposition will not affect the utility or value of
t he Project for the purposes set forth herein. The certificate
shall specify which portions of the Project are to be removecJ or
disposed of, and identify any aduitions o r substitutions wh i ch
will be made part of the P roject pursuant to the provisions of
this section . The iJorrower .,...ill also exec ute, record and deliver
to the Trustee any clocurn e nts deemed necessary by the Trustee to
perfect and to rnaint.:iin the lien on, pledge of, rnortga.ge upon or
Security Interest i n such auditions .:ind substitution s.
The removal f rom the l?ro ject of any portion of the ma.-
chinery o r equipment and the subst itu tion, paym~nt or creuit
therefor pursuant to the p r ovisions of this section sh~\11 not
entitle the nar rower to any delay , abatement or diminution ol:
the Loan Payments payable under Section 4 .2 hereof .
The Borrower sha ll file with the 'rru.stee annu,:il ly on
or b~fore Ja nuary 15 in each year ,lu ring the term of this
Agreement, be9inning January 15, 1904 , an opinion of counsel (who
-23-
~ay 1lso he counsel for the Dorrower) stating that all action
~3s oean t3~en with respect to the filing, recording, re-filing
ilnd ~~-rccorJing of financing statements or continuation state-
~an~s Jr Jcher notices as are necessary to perfect and to main-
tain the li~n on, pledge of, mortgage of and security interest in
tht.: ,'r:,ject. ;)r any additions or substitutions which may be
,:i.ll.)we,j .:is ::,rovided herein, and to preserve the priority of the
lien ~n the Project represented by the Indenture, the Security
Interest and the Mortgage.
Section 4.5 Mortg age. To £urther secure the prom~t
pay~enc ~f the Note and the performance of its other obligations
heraunJer, the Borrower hereby grants a mortgage upon the Project
real ~ro~erty to the Issuer which shall be further evidenced by a
;aor":..jil'-:JC instrument in the form attached hereto as Exhibit "O."
-24-
ARTICLC V
MANAGEMENT, OPERA'rION, MAINTENANCE
TAXES AND INSURJ\~lC!~
Section 5.1 Operation, Maintenance and Repair of
Proj <=-~ct. (a) The □orrov1er covenants and agrees to maintain and
operate the Project as an industrial facility within the meaning
of the Act.
(b) 'rhe Borrower shall ke...:p and maintain the Project
in good repair and operating condition and in as reasonably safe
condition as the operation of the Project permits, reasonable
wear and depreciation excepted, at its own expense in each
instance. The Borrower shall from time to time make all needful
and proper repairs, renewals and replacements to the Project.
The Borrower shall have the right, at its own expense, to make
any alterations or improvements in the Project: provided, that
neither the value of the Project nor its utility for the purpose
intended is thereby impaired, and provicled further that such
alterations or improvements (i) shall be deemed a part of the
Projact, (ii) shall be covered i>y the Indenture, the S ecurity
Interest and the Mortgage, and (iii) shall be subject to no liens
or encumbrances prior to such lien, except Permitted
Encumbrances.
Section 5.2 Taxes, Other Governmental Charges and
Utility Charges. The Borrower will pay , or ca use to be paid,
as the same respectively become due, (a ) all ad valorem taxation
by the State or by any political subdivision thereof or special
district the rein and all other taxes, assess:nents and governmen-
tal charges of any kind whatsoever that may Qt any time be
lawfully assessed or levied against or with res9ect to the
Project or any personal property installed or brought by ~1e
Borrower on the Project Site {inclurlin9, without limiting the
generality of the foregoing, any taxes levied on or with respect
to the income or profits of the n0rrower from the Project and any
other taxes levied upon or with respect to the Project which, if
not paiJ., will beco:r1e a lien on the Project prior to or on a
parity with the lien of the [n~enture or the Security Interest or
the Mort~age); (b) all utility and other char3es incurred in the
oper:ition, mainten.:rnce, use, occupancy .J.nd upkeer of the Proj~ct;
and (c) all 0.sse~21ttents and char,;;es lawfully made by any govern-
mental body for public improvements that may be secured by a lien
on the Project; l,)rovi<led, that ·.-1ith respect to special assess-
ments or other governmenta l char<Je2 that may lawfully be paid in
install~ents over a periou of year.5, the □orrower shall be obli-
gated to pay only such installments ~s are required to be oaid
du~ing the term of this Agreement.
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rhe Uorrower may, at its own expense and in its own name,
in 100J f1ith contest any such taxes, assessments and other
.:harJt?s ,l1hl, in the event of any such contest, may permit the
c...1x<J,i, 1ssess,nents or other charges so contested to remain unp:iid
Juri~g ~he period of s uch contest and any appeal therefrom, so
long 1s :he Trustee is furnished with an opinion of counsel
satisf.:ictory 1:.0 the Trustee that by such action the Project shall
not ;Je ::1.J.tarially adversely endangered and no part thereof is in
-ianqer .)t °Jecoming subject to loss or forfeiture, and that neither
-:.:"e l1~n:.. nor secu rity interests created hereunder as to the Pro-
Jec t >r 1ny part thereof, nor the Loa~ Payments or other revenues
;inj ilr:i...:<?eJs to be derived from the Project will not be materially
~<lv~rsalr endangered. The Issuer will cooperate fully with the
~.)rr:i~er :o protect the Bo rrower's right so to contest.
Section 5,3 Insurance on Project. Commencing with the
.:it.lrt. Jf ,;onstruction, the Borrower .;;hall take out :ind contin-
uou.-;l/ -:iaintain in effect while any o.E the Bonds shall be out-
st3nJin~ anj unpaid, insurance on the rroject against such risks
~ .. 1r'? 1;us tomari ly insured against by businesses of like size and
t 1 !)e, 1nJ us other11ise requiretl by the Construction Loan Agreement,
3nj ~ay ls the same shall beco~e due and payable all premiums
~L~h ra~pect thereto, In lie u of separate insurance policies,
such insurance may be in the forra of a blanket insurance policy
or policies of the Dorrower, which policy or policies may contain
JeJuc~ibl~ amounts and exceptions and exclusions comparab le to
t:1-.>s,.: .;::mt.ii:rnu in policies customarily obtained by businesses of
li~e 3i~~ and type a3 that of the O:irrower.
Without limiting the ~enerality of the foregoing, the
i3o rrvwer shall at all times cai:-ry comprehe nsiv e ge nerill public
liJbilicy insurance in conn~ct ion with its operation of the
ProJect protecting the Dorrower, the Trustee antl the Issuer as
t:1eir intt:!rests ;nay appe.:ir, agail\st liability for injuries to
p~rsons and/~r property, occurring on , in or about the Project,
in 1:h12 ::ii :iirnu:n amount of $1,000,000 liability to any one person
for uoJily injury, $1,000,000 liability to all persons for any
one occurrence and $1,000,000 liability for property damage in
tlny rJne occurrence.
·r he Llo rrm,,er may with the consent of the Trustee,
•,:hich con~ent. sha ll not. unreasonubly be vtit-.hhelJ, volunt.:trily
~et tle or consent to the settlement. of any prospective or pen-iing
cl~im unJer any insurance policy referred to in this Agreement
without t.he consent of the rssuer, but notice of any such settle-
~cnt :;hull be given to the Issuer; provided, however, in no
~ve nt Alll the Issuer or the Trustee volunt3rily settle or c0n-
se:1t t.o the :;ett lement of ,:rny such clai:n without the written con-
s~nt. of the Borrower.
-26-
Section 5.4 Insurance Policies. The proceeds of the
insurance carried pursuant to the provisions of Section 5.3
hereof shall be applied as provided in Section 6.1 hereof. 1\11
such insurance shall be taken out and maintained :i.n responsible
insurance companies selected by the Borrower and approved by the
initial purchaser or purchasers of the Bonds, and such insurance
shall be noncancellable by the insurer except upon 30 days' notice
to the Trustee. All policies evidencing such insurance shall pro-
vide that loss shall be payable to the Issuer, the Trustee and the
Borrower as their respective interests may appear, and the cer-
tificates thereof shall be deposit~~ with the Trustee. Evidence
of renewal of all such policies shall be furnished to the Trustee
no latar than the policies' respective expiration dates. If a
policy shall provide that the insurance benefits thereunder shall
be payable through any period of grace beyond the stated expira-
tion date, for the purposes of this l\greeinent such policy's
expiration date shall be deemed to be the last day of such grace
period.
Section 5.5 Advances by Issuer or Trustee, In the
event ~1at the Borrower fails to pay the premiums on policies to
provide the full insurance coverage required by this Agreement,
fails to pay the taxes and other charg es required to be paid by
the aorrower at or prior to the time they are required to be paid,
or fails to keep the Project in good order and repair and in as
reasonably safe condition as its operations permit, the Issuer or
the Trustee, after first notifying the Borrower of any such
failure on its part, may (but shall not be oblig~ted to) pay the
premiums on such insurance, pay such taxes or other charges, or
make such repairs, renewals an~ replacements as may be necessary
to maintain the Project in as reasonably safe condition as the
Borrower's operations permit and the Project in good order and
repair, respectively: and all amounts so advanced therefor by the
Issuer or the Trustee shall beco:ne an additional obligation of the
narrower to the Issuer or to the Trustee, as the case :nay be,
which amounts will be paid by the Borrower, Any remedy herein
vested in tlH? Issuer or the Trustee for the collection of the Loan
Payments shall also be available to the [ssuer ana the Trustee for
the collection of all such amounts so advanced.
Section 5,6 Indemnity of lssuer and Trustee. The Issuer
shall not l)e liable for, and tile Borrower shall <lefenu, inde,nnify
and holu the Issuer harmless again::Jt, any claim for loss or damage
to property or for any injury to or Jeath of any person that ~ay
be occasioned on account of any Jefect in the Project, including
any expenses incur:-re,J by the Issuer in connection \-lit~ the ,lefense
of any claim ag,eiinst it arisin1 out ,.:,f any such loss, rlamaqe,
injury or. ueath, The Borrower will provi~e Eor:-and insure in the
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!lllblic liability policies r-equired in Section 5,3 hereof, not. only
its ,.>..rn l l,:lbi lity in respect of the matters there mentioned but
also ~hd Liability herein assumed. The Issuer will not, without
:he ~ri.:ir ~r-itten consent of the Borrower, settle or consent to
t.he ~,et.tldment of any prospective or pending litigation for which
t.~,e ;J.:irr:iwt?r is obligated under the provisions of this Section to
inj~1nify t.he Issuer.
rhe Borrower shall defend, indemnify, and hold the Issuer
anJ ~~e rrustee harmless against any claim or claims for loss,
Ja~ages, or equitable relief of any kind, which may exist or arise
1.~ .:HI/ :~<1.nner . ...,hat.soever because of, in connect.ion with, or in any
·,iay ralat.in9 to, the participation of the Issuer or the Trustee in
th•;! fi:1anci:1g contemplated herein.
~he aorrower agrees to undertake and perform to the
d:<t~nt l,qally permissible on beh.:ilf of Issuer, all obligations
and .Jutias of Issuer under the Indenture, as may be from time to
t i..;ie .le le J~ted to the Borrower by the Issuer,
-28-
ARTICU: VI
P[WVISIONS RESPECTING DAMA.GE,
DESTRUCTION AND CONDEMNATION
Section 6,1 Damage and Destruction. If the Project is
damaged by fire or other casualty to such extent that the claim
for loss resulting frrnn such destruction or damage is not greater
than $100,000, the Borrower will continue to pay the sums
re~uired to be paid hereunder and will promptly give written
notice of such damage or destruction .:o the Trustee. The Trustee
shall release to the Borrower the Net Proceeds of insurance
resul~ing from claims for such losses, and the Borrower (a) will
promptly repair, rebuild or restore the property da1naged or
destroyed to substantially the same condition as it existed prior
to the event causing such damage or destruction, with such
changes, alterations and modifications (including the substitu-
tion and addition of other property) as may be desired by the
Borrower and as will not impair either the value of the Project
or its utility for the purpose for which it is held by the
Borrower; and (b) wil 1 apply for such purpose so much as may be
necessary of any Net Proceeds of insurance resulting from claims
for such losses, as well as any additional money of the Dorrower
necessary therefor. If the cost of such repairs, rebuilding and
restoration are less than the amount of Net Proceeds of the
insurance referable thereto, the excess of such :-let Proceeds
shall be paid to the Trustee and deposited in the Bond Fund and
shall to the extent of such amount so deposited abate the sums
payable into the Bond f.'und, or if the Bonds are .fully paid, shall
be paid to the Borrower.
If the Project is destroyed (in whole or in part) or is
damaged by fire or other casualty to such extent that the claim
for loss resulting from such destruction or damage is in excess
of $100,000, the Borrower will continue to pay the sums required
to be paid hereunder and will promptly give written notice of
such damage and destruction to the •rrustee and the Issuer. l\.11
Net Proceeds of insurance resulting from claims for such losses
shall be paid to the Trustee and deposited in the Project Fun~,
whereupon (a) the Oorrower will proceeu promptly to repair,
rebuild or restore the property damaged or destroyed to substan-
tially the same <.::onllition as it existed prior to the event
causing such rlamage or destn1c tion, with such changes, al tera-
t ions and modifications (including the substitution and audition
of 0Li1er property) as may be desired by the Dorrower and as will
not impair either the value of the Project or its utility Eor the
purpose for which it is held by the Borrower an,l (b) the Trustee
will cause '.-lithcJr.awals to be made fro1n the Project C"und i.n th,i!
-29-
;;ianner t>rovitleJ in the Indenture to pay t.he costs of such repair,
rebuil-1in:i or restoration, either on completion thereof, or as
the •.~0rk progresses. The balance, if any, of the Net l?roceeds in
the ?r~ject Fund remaining after the payment of all uf the costs
of such rcoair, rebuilding or restoration shall be paid into the
JonJ ?u,1,l ;incl shall to the extent of such amount so deposited
a.bate t.he sums payable into the Bond Fund hereunder, or if the
Jonds Jre fully paid, shall be paid to the Borrower.
In the event the Net Proceeds of insurance are not suf-
ficient ta pay in full the costs of r e pairing, rebuilding and
r-est.::iri:1g the Project as provided in this Section, the Borrower
.. ill nonetheless complete the work thereof and will pay that por-
ti~n uf the costs thereof in excess of the amount of such
procee1s, The aorrower shall not, by reason of the payment of
sud1 ~xcess costs (whet.her by direct. payment thereof or payment
to t:.he :'r-..1stee therefor), be entitled t.o any reimbursement from
the [ssuer or any postponement, abatement or diminution of the
su~s ~ue Jnd payable hereunder.
Alternatively, the t1et Proceeds of insurance may be
<19[)1.ie,l to the prepayment of t.he Not.e ,'I.ml application of such
su::is to t.he reuemption of Donds; proviJ.ed, that no part of any
sucri ·:ct ?rocee.Js m3y be applied to the redemption of 13onds
u:1l,3ss .J.11. of t.he Outstanding Bonds ilre. to be redeemed; provided
furt~er, ~owever, t.hat if t.he Borrower has furnisheu to the
TrJ~t~c -1 ~ertificate of an Independent ~ngineer or of an
InJep,~ndant i\rchitect stating (a) that. all portions of the
[)C'.)Juct. not t:'epL1ced fol.lo;.,ing t.he destruction t.hereo-f are not
essential to the Borrower's use or occupancy of the Project, or
(bl c~at the Project. has been restored to a condition substan-
ti.:11. ly ·~quiv;ilent to its condition prior to such <.lest.ruction, any
remc1i:1in3 :let Proceeds may be deposited in the Redemption Account
of :.he ;JonJ r'und and be used to purchase or re<lce;n tloncls at the
earlidst ~o~sible <lat.e.
Any balance of such tfot Proceeds remaining after the
applic~tion thereof as provided in this Section shall be paid
into the Jond Fund or if the Bonds are fully paid, tot.he
30L·ro;1,1r.
Section 6.2 Condemnation. In the event that title to,
or tlle t~1nporary us,:! of, the Project., or any ()art. thereof shall
be tilk~n unuer the exercise of t.h<:! power of eminent domain, the
ilorrower shall be obligated t.o continue to 1nake the Payments
re-1uir,-~d to i'Je paid unc..ler this Agreement., and the entire Net
Pr:.ict.?et\!; l1ereinabove referred t.o sh.:i.11 be a.2pLied in one or •nore
of the fullowing ways as shall be directe~ in writing by the
iJOrl."Q,l'dr:
-JO-
(a) To the restoration of LI1e remaining Project to
substantially the same con~ition as it existed prior to the exer-
cise of the power of eminent domain.
(b) To the acquisition, by construction or otherwise,
by the Borrower of other lands or improvements suitable for the
Borrower's operations at the Project, which land or. improvements
shall be deemed a part of the Project and available for use and
occupancy by the Oorrower without the payment of any Loan Payment
other than herein provided to the same extent as if such land or
other improvements were specifically deJcribed herein and subject
hereto and \,Jhich land or improvements shall be acquired by the
Borrower subject to no liens or encumbrances prior to the lien of
the Indenture or the Mortgage, except Per1nitted Encumbrances.
(c) To the prepayment of the Note and application of
such sums to the redemption of i3onds; provided, that no part of
any such Net Proceeds (other than the Net Proceeds awarded to the
Borrower for the taking of all or any part of the Project) may be
applied to the redemption of Bonds unless all of the Bonds are to
be redee;ne,J; provided further, however, that if the Borrower has
furnished to the Trustee a certificate of an Independent Engineer
or of <1.n Independent Architect stating (i) that the part of the
Project. that wa~ taken by such condemnation proceedings is not.
essential to the Oorrower' s use or occupancy of the Project, or
(ii) that the Project has been restored to a condition substan-
tially equivalent to its condition prior to the taking by such
condemnation proceedings, or (iii) that land or other improve-
ments have been acquired which are suitable for the Borrower's
operations at the Project as contemplated by the foregoing sub-
section (b) of this Section, any r~naining Net Proceeds may be
deposited in the Redemption Account of the Bond Pund and be use<l
to purchase or redeem Bonds at the earliest possible date.
Any balance of such Net Proceeds remaining after the
application thereof as provided in subsections (a), (b) and (c)
of this Section shall be paid into the Bond E'und ar if the Oonds
are fully paiu, to the Borrower.
Section 6.J Condemnation of Borrower-Owned Property.
The Borrower shall be ent itled to the Net Proceeds of a ny award
or portion thereof malle foe dama<;J8 to or. takings uf its own pro-
perty not included in the Project; provided, that any Net
Proceeds resulting from the taking of all or any part of the
Project, or severance damages attributable thereto shall be paid
and applied in the manner. proviJed in the fol·egoing S~ction of
this r\9ree111ent.
-31-
Section 6.4 Property S u bstituted in Project. All
[)rop,~rt./ cequired by the provisi-1ns of this Article VI to be sub-
3 tituccJ 3nd/or added to t h e Project for the purpose of restoring
the s~~e to a condition substantially equivalent l0 its condition
prior to any Jamage, destruction or taking u n der the exercise of
th~ 9ower ~f ~minent domain, or to a condition fully adequate for
the ~orrowcr's operation at the Project, shall become a part of
the ~roj~ct. All such property •hall be subject to the terms and
c.::m.:.iitions of this f\greement, including the creation of a
security intere:;t therein or a mortgage thereon. The Borrower
:;h.:ill -~xecute all documents reasona· ... 1y requested by the Trustee
for ':.he purpose of continuing the security contemplated hereby.
Section 6.5 Temporary Disruption of Project Operations
~v ~rnincnt Domain, In the event the temporary use of the Project
or the PrOJdCt Site or any part thereof shall be taken under the
~xer~ise of the power of eminent d omain, the proceeds derived
fr3m ,.W'f conJemation award shall promptly be deposited to t~e
creJit ~f the □ond Fund and applied , to the elCtent available in
1 ieu ,.)i; t.he i3orro..,,er' s payments, upon the next succeeding
i.n::.tall::i.ents of the Loan Payments in the same manner as payments
~~ereof by the Borrower are applied pursuant to the provisions of
Se<.:tian ..J, 2 of this Agreement. To the extent that any such con-
1~~nation awari shall be insufficient to pay any such installment
or i:1st1l l::ients upon the Loan Payments while the Borrower shall
be experiencing any loss· of use of the Project or the Project
3ic~ ·)r Jny Qart thereof, such deficiency shall be fully paid by
the Jorrower to the Trustee, with no resulting abatement, diminu-
tion or -1eL::i.y i.n subsequent payments of the installments upon the
l...-:>an Payments in the manner t'equire<J. by Section 4,2 of this
,\gr<?':!<nent. The expression "temporary use" shall be deemed to
m•~-J.n for the ::,urposc of this Section 6. 5, use for a period of
less than 12 months, in the tletermination of the Borrower at the
t i.ne of the taking.
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A.RTICLE VII
CERTAIN PROVISIONS RELA.TING TO ASSIGNMEtn,
MOH.'rGAGING, PROJEC'r EXPANSION 1\ND T!-IE 130NDS
Section 7,1 Sale or Encumbrance. The Borrower may not
convey, sell, mortgage , pledge , encumber, transfer or assign all
or any portion of the Project or this Agreement, without the
prior written consent of the Trustee, so long as any of the Bonds
are Outstanding. Any such sale, encumbrance, transfer or assign-
ment of the Project or any part tht" :eof, unless such writ.ten con-
sent be first obtained, shall be null and void, at the option of
the Trustee, but no transfer or assignment, whether or not con-
sented to, shall operate to release the Borrower from any liabi-
lity for sums due or fro,n any other of the conditions,
obliJations, agreements and covenants of this Agreement so long
a.s any of the Bonds are Outstandin'J.
Section 7.2 Pledge of Agreement Under Indenture;
Trustee's Rights in Event of Default; Borrower's Right to
Remedy Default Un de r Indenture; Amendment of Agreement and
Indenture, The Issuer shall pledge and assign this Agreement
(except for its right to indemnification pursuant to Section 5.6
hereof}, the Security Interest, the Mortgage and t.he Note to the
Trustee as security for the Bonds under and pursuant to the
Indenture and, in the event of a Default, the Trustee shall have
all rights and remedies herein accorded to the Issuer as well as
those accorded to the Trustee. The Trustee shall have the right
to make any election which the Issuer has the right to make upon
an Event of Default under this Agreement and to exercise any
remedy herein provitled for the Issuer in the name and on behalf
of the Issuer, and the decision or action of the Trustee in
respect of any such election upon an Event of Default shall
supersede a.nd control that of the Issuer so long as the Bonds are
Outstancling. ·,fuenever the Bonds shall have been paid in full,
all rights and remedies in the event of Default shall be exclusi-
vely tlwse of the Issuer. The Borrower shall have the [)rivilegr~
of remeclying any default by the Issuer under the Indenture within
30 days after notification of the occurrence thereof and upon the
payment of all costs and expenses incurre<l in the exercise of
remedies under the lnclenture [)rior to the time such t.lefault was
so re,nedi..:d. Prioc to the raymcnt in Eull of the [3onds, the
Issuer ,".Ind the i3orrower shall have no power to modify, alter,
a.mend or terminate this Agreement without the prior written con-
sent of the Trustee and then only as provi<.letl in the Indenture.
The Issuer . ..,ill not amend the Indenture or i.\ny indenture supple-
ment.:il thereto without the prior written consent of the Borrower.
Neither the Issuer nor the □orrower will unreasonably withholJ
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3ny ~ans~nt ~erain or in the Indenture required of either of
t!l.t!m.
Section 7.3 Borrower to Keeo Project Frne of Liens.
8xcept for the Security Interest, the Mortgage and the encumbran-
ces c1~r:ait.ted in accordance with Section 7,1 hereof, the Borrower
shall not permit or suffer any lien or encumbr;ince to attach to
the ProJect (other than Permitted Encumbrances) at any time
during the term of this Agreement.
Section 7.4 Project Cxpan ·ion. Subject to the provi-
sions of ~rticle X hereof, the Borrower shall be entitled to
sel~ct any portion of the Project Site adjacent to the then
axL,tinq i :nprovements of the Project for the purpose of enlarging
.3 :JuiLiin; or constructing an annex to a building of the Project
at its o,..n expense, with or without outside financing or (subject
to ::he provL;ions of Section 3.1 hereof) from the proceeds of
A~uitional Janus, and may attach the new construction to the
,.u:LHiny walls and foundations of the existing structures of the
rroJ~ct 3nd maKe openings in the walls of the existing structures
0f the ?roject between such structures and the additions or
~11lar3eJ ~ortions, all in accordance with approved architectural
in~ ~nJineering practice.
-34-
ARTICLE VI II
PARTICULAR COVE3ANTS OF THE BORROWER
Section 8.1 General Covenants. The Borrower will not
do or per,nit anything to be done on or about the Project that.
will affect, impair or contravene any policies of insurance that
may be ~arried on the Project or any part thereof against loss or
damage by fire, casualty or otherwise. The Borrower will, in the
use of the Project and thz public ways abutting the same comply
with all lawful requirements of all go· ernmental bodies; pro-
vided, however, the Dorrower may, at its own expense in good
faith contest the validity or applicability of any such
re--i.uirement,
Section 8.2 Authorized Borrower Representative, The
Oorrower shall, prior to the delivery of the nonds, designate the
Authorized Borro~er Representative and shall also designate an
alternata Authorized narrower Representative for the purpose of
ta~ing all actions and making all certificates required to be
taken an<l made by the Authorizeu Ilorrower Representative.
Section 8,3 Examination of Project and nooks and
Records of the Borrower. The Trustee or the Issuer, or their
agents or attorneys, shall have the right at all reasonable times
to enter upon, examine, inspect and photograph the Project; and
in the event of default as hereinafter provitled, the Trustee, the
Issuer, or the holders of 51 or more of the aggregate principal
amount of the Bonds Qutstanuing and their respective agents,
attorneys and accountants shall have access to and the right to
inspect, eirnmine and inake copies of the books and recor.:ls,
accounts, data, and all or any other records or information of
the Borrower.
Section 8.4 Special 'Covenants.
Ilonds are Outstanding:
So long as any of the
(a) '!'he 13orrower shall install and maintain proper
books of record and account in which full und correct entries
shall be made in accordance with standard accounting practice, of
all. its busine:,s and affairs. 'rhe Dorrower shall furnish to the
Issuer ,:rnd th~ Trustee the following financial statements, finan-
cial data and ccrtifiaates:
(i) As soon as practicable antl in any event within 120
days after the end of each fiscal year, audited financial
statements, cov~ring the operations Qf the Borrower for such
fiscal year, including consoliuat~d statements of income, con-
-]5-
soli ,!:it.eJ billance sheets and statements of changes in financial
posi.ti.on, ,J;ich accompanied by statements in comparative form Ear
th<.! prac~Jin3 fiscal year and an opinion issued in accordance
wita Jencr~llr accepted accounting practices as approved by the
,\;-;i<.!ric.ln Institute of Certified Public Accountants and signed by
.:1n [n:.lepenJent Certified Public Accountant,
b:1L1nce
.:iuarter,
nabl:t ':)e
(ii) Quarterly unaudited operating statements and
sheets within 90 days after the last of each operating
together ·with such other financial data as may reaso-
r,quired.
(iii) Monthly cash flow reports.
(iv) Together with each delivery of reports and finan-
CLal 5tatements required by paragraph (i) above, a certificate of
-'!.n Authorized IJorrower Representative setting forth that there
exists no default or defaults with respect to any loans, notes,
Jeb~ntur~s, bonds, Leases or other obligations of the Borrower
~;urn )1ltst.:in.Jing, or, if any default or defaults exist, spe-
CL!:i'l.:l<J the nature thereof, the period of existence thereof and
·1rn:.it 1c<;:.i<Jn the □orrower prop0se!3 to take with respect thereto.
( ·o) The Borrower will a t all times keep an office or
a•,1e:1cy ·...ihere notices, requests and demands in respect of this
i,gr,:?e:n~nt .nay be served, and it ·...,ill in writing notify the Issuer
-:in..l tiie -:'rustee of the location of each such office or agency.
In ,let.:iult. :::,f any such office or agency or such notification
t.her~oi;, ::.he i1orrower hereby agrees and consents that the Trustee
shall ~e the ilgent of the Borrower for the purpose of accepting
service of t~e same upon the Borrower, and all such notices,
re'-!u~~t.s ._in:l ,.le,nands may be served upon the ·rrustee, as such
<1gent, •\t the Coq)Orate Trust OEfice.
{c} The Borrower covenants that it will maintain its
corporat.e existence, will not, directly or indirectly, dissolve
or sel.1, lease ::ir otherwise dispose of all or substantially all
of its ._issets ~nd will not consolidate with or ~erge into another
coq:ior.:i tion or permit one or more other corporations (other than
a suosiJiary} to consolidate with or merge into it; provided,
however, that the narrower may, with the written approval of
i)ar-:1.t.:!tt n;ink of Central Flor-i,Ja, N.A., Orlando, Florid a, Lf such
ban~ is then a holder of any of the Bonds, consolid ate with or
merge into another corporation, or permit one or more other cor-
2orations to consolidate or merge into it, or sell or otherwise
transfer to another-corpor~tion all or substantially all of its
.:iss~t.s .1s ,ln ..:!ntirety and thereafter .Jissol.ve i E ( l) the suc-
cessor or purchaser corporation (i) has a net worth at least
e4u.:il to that 0f the fJorrower prior to such merger or gale, (ii)
-36-
assumes in writing all of the obligations of the Borrower under
this Agreement and (iii) is duly qualified to do business in the
State, and if (2) immediately after giving effect to such
transaction, no condition or event shall ex:ist which constitutes
an Event of Default or which, after notice or lapse of time or
both, would constitute an Event of Default,
The Borrower shall promptly furnish or cause to be fur-
nished to the Issuer and the Trustee written notice of any such
disso l ution, merger or consolidation, or sale, lease or other
disposition of all or substantially all of its assets, which
notice shall include a true and comf,1.ete copy of any pertinent
agreement controlling such merger, consolidation or dissolution
or sale, lease or other disposition of assets.
If a consolidation, merger or sale or other transfer is
made as permitted by this Section 8.4, the provisions of this
Section 8.4 shall continue in force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with tl1e provisions of this Section.
(dl The Borrower will maintain, (1) a ratio of Current
Assets to current Liabilities of at least 1 to 1, (2) a ratio of
Tangible Net Worth to Indebtedness of at least ,5 to 1, and (3) a
ratio of Net Cash Flow to current maturities of Funued Indebted-
ness of at least l to 1.
(e) The Borrower will make no substantial changes in
executive or mi~dle management positions (as determined by the
Trustee) without the prior approval of the holders of all the
Bonds then Outstanding.
Section 8.5 Investments. The Borrower covenants that
it will not direct the Trustee to make any investments of funJs
held under the Indenture which will be contrary to any of the
provisions of the Indenture or to any of the requirements of
Section 103(c) of the Code.
Section 8.6. Certain Definitions. For LI1e purposes of
this Ar.ticle VIII, the following worus, terms or phrases, shall
have the meanings provided below:
(a} 'l'he term "Current Assets," to the extent permittod
by and in all cases as determined in accordance with ')Ood
accounting practice, shall include {1) cash on hand or in transit
or on --leposit i.n any bank or trust company which has not
suspendeu business: ( 2) Permitted Investment Securities valuell ,,t
not more thun cost or current market vulue, whichever is lower;
-37-
(J) 3ccaunt.s receivable; (4) inventories of raw materials and
suonli~s, ~r work or materials Ln process and of finished
pr~Jucts, ~11 valued at not in excess of cost or current market
v~lus, ~hi~hever is lower: and (5) such other as~ets as, in
c1ccor.:l-1nc~ .,..i th good accounting rractice, would be included in
"Current. .\ssets"; all after deduction of adequate reserves in
each case where a reserve is proper under good accounting
pract.i..::e; ,Jrovided, however, that in computing Current Assets
t.her~ sh;i_ll be excluded (i) all investments other than those per-
,nitt•;;!J t :~ be included in this definition by clause (2) above, (ii)
~11 :r~nchises, licenses, permits ~atents, patent applications,
copyri1hts, trademarks, trade names, good will, experimental or
o rg;rni:t..Jti0nal expense, prepaid expenses, and other like
int.;inc.JU)l~s, and (iii) any assets which are pledged or encumbered
,15 Sdcurlty for or for the purpose of paying any obligation
( other than the Bonds) which is not includer1 in Current
Liolbilit.i~s.
(b) The term "Current Liabilities" shall mean all
ln,l,~tJt.~Jnl!SS other than runded Indebtedness and, without
lLr1it.,1t.ion, shall include (1) all Indebtedness maturing on demand
or ,n:.!1in :Jne year after the data as of which such determination
is .:lol,le, ( 2} final maturities and prepayments of Indebtedness and
sin~inJ fund paJments re~uired to be made in respect of any
[nJcbt.e~nes5 within one year after said uate, and (J) all other
items (i.nctuuin'] tax:es accrued as estimated) which in accordance
wit.11 JooJ ~ccounting practice should be included as Current
Liclbi.lLti.e~.
(c) The term "Funded Indebtedness" shall mean all
Indenteuness which by its tr?rms matures more than one year from
t:1e ,late .1s of which any calculation of Funded Indebtedness is
~aJe, iln<l ilny Indebtedness maturing within one year from such
J.:ite ,,mich is renewable at the sole option of the obliger to a
dolte beyond one year from such date, including any Indebtedness
r'~ne,.,.:ibl~ or ~~xtendable (whether or not theretofore renewed or
extc.m.Jed) uncler, or payable from the proceeds of other
InJebtedness which may be incurreJ pursuant to the provisions of,
any revolving credit agreement or other similar agreement.
( t.l) The term "good accounting practice" or "standar,l
account.iny rr::i.ctice"' shall mean such dccount.in9 practice as, in
the orlnion of Li1e independent account.ants regularly retained by
t!H~ ilorrower and acceptable to the Trustee, conforms at the time
to 1enur3Lly accepted accounting principles, consistently
ap!)Li~d. ,"\ny accoLrnting ten:is not defined in this Agreement
sh,1ll ha·,e the resrective meanin,:Js given to them under 100d
.1.ccounti:13 prdcl:.i.ca,
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(e) 'l'he ter;n "Indebtedness" shall mean -and include (l}
all items which in accordance with good accounting practice
should be included on the liability side of a balance sheet on
the date as of which Indebtedness is to be determined, (2)
guaranties, endorsements and other contingent obligations in
respect of , or any obligations to purchase or otherwise acquire,
indehtadness of others, and (3) i ndebtedness secured by any
mort~age, pledge or lien existing on property owned sub ject to
such mortgage, p l edge or lien whether or not the indebtedness
secured thereby i;hal.l have been assumed; provided, however, tha t
such term shall not mean and includ~ any indebtedness in respect
of which money sufficient to pay and discha rge the same in full
(either on the expressed date of maturity thereof or on such
earlier date as such indebtedness may be duly called for redemp-
tion and payment) shall have been deposited with a depository,
agency or trustee in trust for the payment thereof.
( f) The term "Net Cash Flow" shall mean the amount of
net earnings of the Borrower as shown on -any statement of income
of the Dorrower plus the amount of any non-cash items charged to
expense in arriving at such net earnings, all as determined in
accordance with good accounting practice.
(g) The ter;n "Permitted Invest:nent Securities" shall
mean (l) readily marketable securities issued or fully guaranteeu
by the United States of Americai (2) commercial paper having a
maturity of not more than one 'jear from the date of issuance
thereof and rated "Prime l" by Moody's Investors Service, Inc.;
(3) Eurodollars issued by banks acceptable to the Trustee having
a maturity of not more than one ':(ear from the date of issuance
thereof,
(h} 'I'he term "Tangible Net Worth" shall mean the amount
by which the sum of ( l) the par value (or value stated on the
books of the narrower) of the c~pital stock of all classes of the
Borrower and (2) the amount of surpl us, capital or earned, of the
Oorrower axceeds the sum of (a) the amount of any write-up in the
book value of any assets contained in any balance sheet of the
i3orrower resulting from revaluation thereof or any write-up in
e~cess of the cost of such assets acquireu, and (b) the aggregate
of all amounts r\ppearing on the <.1sset sic.le of nny suc..:h balance
sheet of franchises, licenses, permits, patents, patent
applications, copyrights, traucmarl<s, trauenames, good wil l,
treasury stock, experimental or organization expenses, prepai-1
expanses, r\nd other like intan<Jibles, all ueterrninerl in acco r-
dance with good accounting practice.
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ARTICL,L': IX
EVENTS OF DEFAULT AND REMEDIES
S~ction 9.1 Events of Default Defined. The following
-,hall :)e -~veats of default under this Agreement and the terms
"Sv~nt ~r Default" or "Default'' shall mean, whenever they are
used i.n t.hi,s Agreement, any one or more of the following events:
(.:i.) Failure by the Borrower to make any payment with
r=so-?ct to the Note that has become Jue and payable by the terms
of ~his ~greement.
( b) l:ailure by the Borrower to observe and perform any
c~venan~, condition or agreement an its part to be observed or
perfor~eJ, other than as referred to in subsection (a) of this
Secti.::>n, r:::ir a period of 30 days after written notice, specifying
such ::iiL.ire and requesting that it be remedied, given to the
3orr~wer by the Issuer or the Trustee, unless the Issuer and the
-:"c--• .1sto:ie :;h::,.11 agree in wri ting to an e)Ctension of such time prior
to its ~xpiration; provided, however, if the failure stated in
t:rn :1otice cannot. be corrected within the applicable period, the
Issuer -lnJ the Trustee will not unreasonably withhold their con-
3cnt t~ 1n ~xtension of such time if corrective action is insti-
tuc~l by the aorrower promptly upon receipt of the written notice
olnJ is liligently pursued until the default is corrected.
(~) The uissolution or liquiuation of the Borrower or
the filing by the Oorrower of a voluntary petition in bankruptcy,
.:,r :.-:nlure by the Borrower promptly to lift any execution, gar-
nianracnt ~r attachment of such consequence as will impair its
ability to c arry on its operations at the Project, the Borrower's
see~ing of or consenting to or acquiescing in the appointment of
~ receiv~r of all or substantially all its property or of the
Project, or a<ljudication of the Borrower a s a bankrupt or
insolvent, or any ussignment by the Borrower for the benefit of
its cru<litors, or the entry by the Oorrower into an agreement of
composition with its creuitors, or the approval by a court of
competent jurisdiction as huving been fileu in good faith of a
petition applicable to the Borrower in any proceeding for its
rcor.:_i uni:~ution instituted under the [>rovisions of the general
t)c1n,;ruptC"/ act, as amendeu, or under any sirnilar act. which may
hereafter be enacted, and such proceeding for reorganization is
not '.3tw.yeu or dismissed within 60 days from the filing thereof.
( d) 'l'he occurrence of an event which constitutes an
i:.:v•~nt -:iE :),~fault unuer (l) the Indenture which has the effect of
a.ccelcr:i.r.ing [Jayment of the llonds, or (2) th~ Guar.,nty.
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( e) The default by the Borrower for failure to make any
payment of the principal of, premium, if any, or interest on any
other obligation for money borrowed or received as an advance {or
any obligation under conditional sale or other titl& retention
agreement, any obligation under any lien or security interest
encumbering the Project or any part thereof, whether or not per-
mitted hereby, any oblig=ltion issued or assumed as full or par-
tial payment for property whether or not secured by purchase
money mort-:1aqe, or any obligation under notes payable or drafts
accepted representing extensions of credit) or in the performance
of any other condition contained in a ·_y agreement under which any
such obligation is created or by which it is evidenced, beyond
any period of grace provided with respect theretor provided, that
such default, in the opinion of the Trustee, will materially and
adversely affect the ability of the Borrower to perform its obli-
gations hereunder.
( f) Any representation or ·.-1arranty made by the Borrower
her~in or in any writing furnished in connection with or pursuant
to this Agreement shall be false in any material respect on the
date as of which made.
( g) 'l'he foregoing provisions of this Section 9. l are
subject to the following limitations: If by reason of acts of
God; strikes, lockouts or other industrial disturbances; acts of
public enemies; orders of <lny kind of the government of the
Unite<l States or of Lite State or any depart~ent, agency, politi-
cal subdivision or official of either of them, or any civil or
1nilitary authority; insurrections; riots; epidemics; landslides;
lig htning; earthquakes; fires; hurricanes; storms; floods;
washouts; droughts; arrests; restraint of government and peo~le;
civil disturbances; explosions: breakage or accident to
machinery; partial or entire failure of utilities; or any cause
or event not reasonably within the contrrJl of the Borrower, the
norrower is unable in whole or in part to carry out its
agreements herein contained, other than the obligations on the
part of the Borrower contained in S e ctions 4.2 and 8.4 hereof,
the Borrower shall not be de~ne<l in <lefault Juring the con-
tinuance of such inability. The 13orrower agrees, however, to use
its best efforts to remedy with all reasonable dispatch the c.:iuse
or cause~ preventing it from carrying out its agreements:
proviJetl, that the settlement of strikes, lockouts and other
industi:-ial disturbances shall be entirely witllin the discretion
of the Borrower, and the Borrower shall not be required to make
settlement of strikes, lockouts and other industrial disturbances
by accedinrJ to the demands of the opposing par.-ty O'C p,'lrties 1-1hen
such course is in the judgment ,Jf the Oorrower unfavorable to the
i3ori:-ower. :~ot1-1ithstnlllling the foregoing, any failure of the
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Dorro~•r to ~erform its obligations under Sections 4.2 and 8.4
h~r;!ot .;hall constitute an Event of Default regai.-::lless of the
r3aiH.m !:ar ;;uch failure to perform.
Section 9.2 Remedies on Default. Whenever any Event of
~efaul~ shall have happened and be subsisting:
[d} The Trustee may declare the Note in default and may
J~clare the same immediately due and payable, and take any action
or :=o::tr.ience or prosecute any available rroceeriin9s against any
?.irc.·1 11..:u,le therefor, including the 1 ·uara.nt.or. Additionally,
t.~~ ~r~st~e ~ay, and upon written request of the holders of not
lcls5 ~han 251 in aggregate principal amount of the Bonds then
~utst~nJinJ shall, by notice in writing delivered to the Issuer,
Jecl;ir~ ~he unpaid principal of all of the Bonds then Outstanding
.ind c.hc i:iterest accrued thereon immediately due and payable, and
s.l<:ll ::,ri:ici!_)al and interest shall thereupon become and be imme-
:.lia::.~l-✓ Jue and payable, anything in the Indenture or the Bonds
to ~he contrary notwithstandinJ, The foregoing rights and duties
~n:i.l L, :w1,1ever, be subject to the uiscretionary right of the
Tr-:1~t.t:lt:l -lnd upon written notice to the 1'rustee by the holders of
~ ~ajarity in dggregate principal amount of the Outstanding Gonds,
che Juty ~f the Trustee to annul such declaration and destroy its
~ff~c~ if 111 covenants with respect to which default shall have
been .:ia,le, :;hall be fully r,,erformed, antl all arrears of interest
upon ,_\l l ;3()11us Ou ts tanding hereunder 'ind the reasonable expenses
c1nJ ,~lur JC!S :)f the Trustee, its agents and attorneys, and all
ot:1er ,Jc11:nents re-1uired by the Indenture (except the principal of
any JonJ:,; not. then t.lue by their t.-:irins) shall be paid, or the
.:11:iount t;1et"•?of shall be paid to the 'l'ru~tee for the benefit of
tho&e ~ntitled thereto.
( lJ) The Trustee may proce2d to protect and enforce its
r i:J11t.3 ,.rnd the ri1;:1hts of c.he holJers of the Oon<ls hereunuer ,lnd
um.lcr Lhe ;)onus, by c1 suit or suits, whether f:or the specific
9,~rf Jr,;iuncc~ of c1ny covenant or agreement herein contained or in
execution or aiJ of any power ·;;rante,l h~rein or for the enforce-
ment ,Jf .-ln'/ ather proper, legal or e_ruitable remedy, ,.1s the
-rr·Jsc.,~e, being adviseJ by counsel, shall ,Jeem most effectual to
prot.occ. .ind t!nforce its ri~hts ,1nd the r.i,_ihl:5 of the hol,Jers of
ti1e ;1ond'.~.
(c) The 'l'rusl:ee Ghall be entitled upon or at any tim•~
~1.ft.er the co1111nencement of c1ny procee,lin1s institutc,.l in th'c! E:vent.
of :)~f,1ult., r1s .3 matter of strict ri9ht, upon the order ::if ,.iny
c<.rnr::. .JI: c:o;n~etent jurisdiction, to the ,1.ppointrnent of ~\ receivet·
of t.lle l'roj•~ct .incl of thC:J r.r~nt, rev,Jnues, c1nd income tram tlv~
~r~jcct, ~il:h po~er to lease the Project, Any ~uch receiver
-42-
shall, except as herein o therwise provided, have all t he usua l
powers and duties of rec eivers in similar cases , with full power
upon the orde r of such court to Lease the Project, or any part
thereof, upon any terms approvetl by th e court,
(d) The Trustee may, in its discretion, with or without
declaring the Note or Oonds due and payable, e nter upon and take
posse::ision of the Project a nd leas e the same in the name and as
the agent of the I ssuer and the Do rrower and from time to time
maintain and restore and insure and keep insured the same, in the
manner and to the same exte nt as is ~ual with like properties
and likewise, from time t o time, make all necessary repairs,
renewals, replaceme nts, alterations , addit ions , and improvements
thereto and the reon as may s eem judici ous and lease the same or
any part thereof, as effectually as the Issuer or ·the Borrower
could do, and the Trustee shall be entitled to collect and
receive all rents, r e v enues and income of the Proj e ct and every
part thereof and, after paying the expense of leasing the same,
including th e expense s of maintenance, repairs and ins urance or
other charges ther eon, as well as just and reasonable compen-
sation for the ser vices o f the Trustee and its agent s, attorneys,
receivers, or counsel, the Trustee shall apply the money arising
as afore said as pro v i ded i n Sec tion 9.7 o f the Indenture.
(e) The Trustee, with or without entry, personally or
by a ttorney, may in its discret ion , a nd to the e~t ent permitted
by law, sell, or c aus e to be sold all and singu lar the Proj ec t,
and all the estate, right, titl e and interest, claim and demand
therein, or any part of the Project, including any item of
Equipment , such sale or sales to be made at public outc ry at the
main doo r of the Indian River County, Florida, courtho use, at
such time or times and upon such terms as may b e required by law
or a s the Trustee may determine after having firs t given n otice
of the t ime , place and terms of sale , tog ether with a d escript ion
of the prope r t y to be sold, by pub lica tio n once a we~k for 3 con-
secutive weeks prior to such sale in any newspape r then published
in such County, with or without further, other or incidental
relief , such as the appointment of a receiver, the specific
e nforcement of covenan ts or obliga tions o r a n i njunc tion to pre-
vent violations or th rea tened violations of an y covena nt, obliga-
tion or agreement provided by the Indenture ,
( f) The ·rrus tec may foreclose the Mortgage by juuicial
proceedin~s i n the manner p rovided by the laws of the State for
the forec l osure of mo rtgages , and in such event may bid for or
b ecome the purchaser of the Project at the foreclosure sale ~nd
be en tit led to hav e t he purchase p rice pa yabl e a t f orec losu re
sa l,a! paid by c redi t to the jud9ment of fo reclosu re, ,md shall be
-43 -
en tit l..?,l t,) recover a deficiency judgment for t.he balance, if
~n1, lu~ .1n..l r,ayc1.ble hereunder.
( J) The Trustee may take any action or ~xercise any
ri,Jht :)[' ~)rivilege, with respect to the Project, as is or may be
per::iittt1tl by .secured creditors generally under the laws of the
St.at~.
Section 9,3 No Remedy Exclusive. No remedy herein
conferre..l upon or reserved to the Issuer or the Trustee is
intenJe~ to be exclusive of any ot~ir available remedy or
re~eJi~s, but each and every such remedy shall be cumulative and
:;hall i)e in addition to every other remedy given under this
:qr2e1:ient or nm.-or hereafter existing at law or in equity or by
:H . .:it:1te. :io Jelay or omission to exercise any right or power
accruin1 upon any default shall impair any such right or power or
::ihctll :J~ -::onstrued to be a waiver thereof but any such right or
po.;er .aay be exercised from time to ti,ne and as often as may be
lee,rtl!J eX:Jedient.
5ection 9,4 Agreement to Pay Attorney's Fees and
:::x::}enses. In ti1e event the Borrower should default under any of
tile ,JL}VLiions of this Agreement and the Issuer or the Trustee
(in i~s own name or in the name on behalf of the Issuer) should
e1:19l,Jy ,-it.torneys or incur other expenses for the collection of
the ::oc.~ or the enforceme.nt of perfor-mance or observance of any
".JbliJ~ti.:in or :i.greement on the part of the Borrower herein
c;ont:i.1:1~u, tile Borro,ver will on d2mand therefor pay to the Issuer
or r.he ~•::-us::.~e, ,-is tile case may be, the reasonable fee of such
dttorne1s ~nd such other expenses so incurred,
3ectian 9,5 No Additiona l Waiver Implied by One Waiver.
In the •iv<2nt a.n, agreement contained in this Agreement should be
~r,?,lC;tc,1 ;)y •lither party and thereafter waived by the other
r,art'/, sucil ,.,,aiver shall be limiteu to the particular breach so
waive~ Jnj shall not be ~eemed to waive any othe r breach
hercun,i~r.
-4'1-
ARTICLE X
INTE RNAL RE VE NUE CODE, SECTION 103
Section 10.l Covenant with Respect to Section 103(c) of
the Code. 'I'he parties hereto recognize that the Bonds are being
sold on the basis that the interest payable on the Bonds is
excludable from gross income of the holder thereof under Section
103 of the Code. The Issuer and the Borrower do each hereby
covenant and agree for the benefit of the Trustee and the holders
of the Bonds that the proceeds of t 1e Oonds or the Revenues, as
defined in the Indenture, shall not be used or applied in such
manner. as to constitute any Bond an "arbitrage bond" as that term
is defined in Section 103(c) of t he Code,
Section 10.2 Requirements of Tax Exemption, The Bonds
~,11 l be an exempt smal 1 issue as described in the Code. The
Oorrower covenants and agrees that, unless no Oonds shall remain
Outstanding under the terms of the Indenture, the Borrower will
not make or permit any capital expenditures t o be made or, along
with the Issuer, will not per.nit any action to be taken by the
Oorrower or another Per son which ~ill cause th~ interest on the
Oonds t o be inc luded in the gross income of the holders of the
Bonds (other than a h older who is a "substantial user:-" or
"related person" as such terms are used in Section lOJ(b)(9) of
the Code ).
The Borrower agr~es tha t it will prepare and file, with
cop ies to the Trustee, any sta teme nts required from time to time
bf tha Code to be filed by it in o rder to maintain the tax exempt
status of the interest o n the OoncJs, including, if applicable,
the supplemental stateme nts required to be fil eu by Treasury
Reyulations Section l.103-10(b)(2)(vi)(c), until such requirement
is withdrawn or modified,
l\n ev e nt. of taxahility ("Event") sl1<1.ll mean (a) if
applicable, the incurring of capital expencJitures in excess of
those permitted in Sec tion 103('o)(6}(D) of the Code, or (bl the
taking of any other action, or the omission of any ac tion, by the
Issuer, the i3or:-rower or any other Person which has the ef fect of
causin,i th e interest paya ble on thP-Uonds to become includable in
the gro~s income of the holder s ~f the nonds (o ther than a hold er
..,ho is a "substantial u~er" or a "relnterl perso n" as such term::.
are uscJ in Section 10J(b){9) of the Code).
,'\ "De t.<!rminatio n of Tax.ability" shall me,111 (a) the
receipt by the nor rower o f notice of the issuance by the Interna l
Revc,1Ue Service of d technical adv i.c::e memorandum or a st 'ltutory
-45-
n~c.i.,.;e ,.Jf .lefi.ciency (which notice shall include a copy of such
,;t.:1t.ut.:H:y notice of deficiency) which holds in effect that the
int,H'e,;t p.:iy.:lble on any of the Bonds is includable in the gross
t:1co.n~ ,Jt th~ taxpayer named therein (other than a hol.::l.er who is
a "sub3t.Jntial user" of the Project or a "related person," as
such ::.~r~s .11:e defined in the Code) or (b l the issuance of a
public o r private ruling of the Internal Revenue Service to the
~ffect ::.hat the interest payable on the Bonds is includable in
th~ -Jr::>,;s income for federal income tax purposes of the holders
t.her,2of (other than the holder who is a "substantial user" or a
"r•~l.J.t.~,1 [Jerson" within the meaning of 'Jection 103(b) (9) of the
C.:>:.lcJ, !)Caviueu, that such ruling or technical advice memorandum
:.h.'.1.l l. i\ava be(m re-Iuested by a holder of the Bonds and the
Jorr~~dr 3hall have been afforded an opportunity to participate
in ~ne r2~uest for ruling or technical advice or (c) if
dpplic.Jble, the delivery to the Trustee of a written statement
fro.n .1,1 .\uthorized Borrm~er Rep.resentative to the effect that the
!Jor:-T~t?r has excaeded the maximum amount of capital expenditures
per~~~teJ under Section 103(b)(6)(0} of the CoJe or (d) recei~t
uy t.:1e ,r·.1stee of an opinion of nationally recognized bond
.;ouns1:1l, to th<a! effect that, for any reason whatsoever, the
in~~re,;c Jn the aonus is or has become includable in the gross
inC<>'.~e ::·Jr the purposes of federal income taxation of a holder
t:1er~or -:,c.her than a "substantial user" or a "related person," as
such t.~r;;is .:,re defined in the Code. For purposes of a
Jeccr.nin3tion of Taxability under part (a), {b) or (c) of this
p.:ir:i:1i:-~~h, :rnch a Determination of Taxability shall be deemed [or
all ~ur~JY~s af this Agreement to have occurred on the date borne
by the 5tH.utory not.ice of cleficiency, the date borne by the
puolic •)r private ruling or t~chnical arlvice memorandum or the
Jac.c ·,)ot::\e i>y such statement, as the case may be.
'l'he amount payable by the Borrower as ;i i,:irepayment of
t:1e :lot~ ilnc.i as a premium with respect to the i3onds upon the
occurr~nce of a Determination of Taxability shall be the sum of
the f:~llo,.oing:
(a) 'I'he unpaid principal amount of all Bonds then
Out3tanJin~, plus accrued interest t.o the date of redemption,
plus ,7. r,rc,nium equal to the differ.ence in interest cl ue as stater.l
an,l the .~;l\ount of intei:-est which would have been d ue during such
p~r1.:,,t n;iu the [3onds been payable at d rate equal to 11 above the
i?ri,ne ,l..1t~ (as defined in the Indenture).
(b) ,\n amount. equal to the premium (as calculated
above) E.:ir:-each of the 13on,ls not then Outstanuing \Jut. which was
QUtJt:1n,lin] ,'It the time when such Bond fir-st \.Jas or:-became
t;:ixab le b.l,;eu upon the time e l.1psed be t'..,,een the ,lu.t•J ,,1hen such
-46-
Bond first was or became taxable anJ the date that such □ond was
paid or redee~ej. Such amount shall be held and disbursed by the
Trustee as provided in Section 8.4 of the Indenture and shall
constitute total compensation due the holders of 3uch 13onds as a
result of the occurrence of an Event and in satisfaction of the
Borrower's obligations hereunder.
The obligation of the Borro~er to pay the amounts
required to be paid in this Section 10.2 shall survive the ter-
mination of this Agreement.
The Borrower shall give prompt written notice to the
Issuer and the Trustee of (a) the filing by the Borrower of any
supplemental statement and (b) any Event or Determination of
•raxability.
The Trustee shall, promptly upon learning of a Deter-
mination of Taxability (whether or not the same is being
contested) cause notice thereof to be given to the Bondholders in
the sa,ne manner as is provided in the Indenture for notices of
redemption, which notice shall state a redemption date ( the '"rax
Redemption Date"") which shall be within 180 days from the
occurrence of the Determination of Taxability. The Trustee may,
in such notice to Bondholders, make provi~ion for obtaining
advice from Bondholders, in such form as shall be deemed appro-
priate, respecting relevant assessments ma~e on such Bondholders
by the Internal ~evenue Service, so as to be able, if appropri-
ate, to verify the existence, present or future, of a Determina-
tion of Taxability,
On or before the Tax Redemption Date, the Borrower shall
pay, in immediately available funds, t.o the Trustee as the
balance of the Loan the sums provided for pursuant to this
Section, together with any sum due pursuant to any other Section
of this Agrcemr.rnt or under the Indenture to be paid prior to the
Tax Redemption Date. After the i3orrower's pay:nent of the balance
of the Loan and the required notice of redemption having been
given under the Indenture, the Trustee shall apply such funds to
the redemption of Bonds '1nd to payment to the holdet·s of Bonds on
the Tax Redemption Date, all in accordance with the requirements
set forth in this Section.
-47-
Upon the Tax Redemption Date, and provided there has
b~t!n l•.?[J<.l:,;ited with the Trustee the total amount as required,
such 1:l\ount shall constitute the total sum due as a result of an
Jccur~~nce of a Determination of Taxability or of an Event, and
t:)e J,'Jrn.>wer shall not be deemed to be in default under this
,\(Jr<?t!,,1ent .>y reason of the occurrence of such Determination of
raxaoility or 2vent.
-48-
ARTICLE XI
MISCELLANEOUS
Section 11.l Execution Counterparts. This Agreement
may be simultaneously executed in several counterparts, each of
which shall be an original and all of which s hall constitute but
one anJ the same instrument.
Section 11,2 Oinding Effect, This Agreement shall
inure to the benefit of, and shall be binding upon , the Issuer,
the Oorr-ower ancl their respecti·1e successors and assigns.
Section 11,3 Severability, In the event any provision
of this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invali-
date or render unenforceable any other provision hereof.
Section 11.4 Article and Section Caption. 'rhe Article
and Section headings and captions contained herein are included
for convenience only and shall not be consilered a part hereof or
affact in any manner the construction or interpretation hereof.
Section 11,5 Obliga tion o f the Par-ties to Cooperate in
Furnishing Documents to T rus tee. 'l'he Issuer agrees to cooperate
with the Borrower in furnishing to the Trustee all documents
re~uire<l by this Agr eement or th e Indenture.
Section 11.6 Governing Law, This Agreement is made and
entered into under , and s hall be construed in a ccordance with,
the la~s of the State,
Section 11.7 Notices. All notices, certificates or
other communications here und e r shall be s ufficiently given and
shall be deemed given when delivered or mailed by registe red or
certifiad mail, postage prepaid, a ddres sed as follows: if to the
Issuer, c/o County f\ttorney, 1840 25th Street, Vero Oe ach,
rloriua 32960; if to the narrower,
___________ , Attenti o n:
if to the Trustee, at the Corporation Trust Offic e. A duplicate
copy of e ach notice, certificate or oth er communication given
hereunder by either the Issuer. or th~ !3orrower to the other s hall
a lso be ,3iven to the Trustee . The Issuer, the Do-rrower :ind the
Trustee may, by notice given her~under, desi1nate any further or
different addresses to which subsequent no tices , certificates or
other communications s1,all bo sent.
-4()-
C:X ECU TIO N:
7ht! Issuer and the Borrower have caused this A.greement
to ~a Juli ~xecuted as of the <la y and year fir st 2 bove wri tten.
(3 1::,\L )
,\tt~st.~d ,:rnd Countersigned:
Clor~, JoarJ of ~aunty
Co:~1:11 ~sioners
:\tt3St:
INDI AN RIVER COUNTY, FLORIDA
Chair 1an, Board of County
Commissioners
FLORI::>l\. 118AL'l'll FA.CILI1'I8S CORP.
(OF INDIAN RIVER COUNTY}
President
-so -
STATE OF FLORIDA
COUNTY OF INDIA~ RIVER
On this ___ day of----,---' 1983, befvre me, the
undersigned notary public, personally appeared Richard N. Bird
and Freda Wright., who acknowledged themselves to be the Chair:Tian
and Clerk of the 13oard of County Commissioners, respectively, of
Indian River County, Florida, and that as such officers being
authorized to do so, executed the foregoing Loan Agreement on
behalf of the County for the purposes therein contained.
seal.
(SEAL)
IN WITNESS \'iHEREOF, I hereunto set my hand and official
Notary Public, State of Florida
At Large
My commission expires: -------
STATE OF FLORIDA.
COUNTY OF
On this ___ day of _____ , 198], before ine, the
undersigned notary public, personally appeared
-=-----,---,--...,....--' who acknowledged themselves to be the
Pre~ident and Secretary, respectively, of Flori<la Health
Facilities Corp. (of Indian River County), the corporation
described in the foregoing Loan hgreement.
seal.
IN Wl'l'lH.:SS WHl.::R!::OE', I hereunto set my hand an-J official
(SEAL)
Not~ry Public, State of ~Lorida
At Large
My commission expires: -------
-51-
EXHIBIT "A"
DESCRIPTION OF EQUIPMENT
-52-
EXHIBIT "13"
PROMISSORY NOTE
Dated: ______ ,1983
For value received, Florida Health Facilities Corp. (of
Indian River county), the "Borrower,'' promises to pay to the
order of Indian River County, a political subdivision of the
State of Florida (the "County''), th~ principal sum of $2,400,000,
together ~ith interest and other amounts from the date hereof as
specified in the Loan Agreement, Mortgage and Security Agreement
dated the elate hereof, between the County and the Borrower (the
"Loan Agreement"), to which this Note is annexed as Exhibit "B,"
and as specified in the Trust Indenture (the "Indenture'') dated
the date hereof, between the City and 13arnett Banks Trust
Company, N.A., Jacksonville, ~lorida, as Trustee under the
Indenture.
This ~ate is secured by the Loan A.greement and the
Indenture, as 2rovided for and set forth in the Loan /\greement
and the Indenture. It is expressly agreed that all covenants,
conditions anj agreements contained in the Loan A.greement and the
Indenture executed in connection herewith, are hereby incor-
porated by reference in this instrument as though fully set forth
at length herein, In the event of conflict between this Note an~
the Loan Agreement or Indent.ure, the terms and conditions of the
Lo':in Agreement shall control. This Note shall be deemed to be in
default, upon the occurrence of any event of default which under
the terms of the Loan Agreement or Indenture securing this Note
constitutes an event of default. Upon the occurrence of an event
of default, the holder of this Note may, at its option, declare
all unpaid indebtedness evidenced by this Note and any modifica-
tions thereof, immediately due and payable without notice
regardless of the date of maturity. Failure at any time to exer-
cise this option shall not constitute a waiver of the right to
exercise the same at any other time.
This Note is assignable to the 'l'rustee as aforesaiu.
This Note shall be governed by the laws ".lf the State of
Florida, which law's shall be applicable in the inteq:iret.:1tion,
construction ;:ind enforcement hereof.
-5]-
( 3S,\L)
::iecr~t.iry
FLORIDA HBALTH FACILITIES CORP. (OF
INDIAN RIVER COUNTY)
13y
President
ASS IGNMEN'r TO TRUS'rrrn
f0r value receive~ the undersigned hereby sells, assigns
~nl :r~ns~ars to Bar~ett Banks Trust Company, N,A., Jacksonville,
Fl~riJ.i, ~rust~e, as of __________ , 1983, this Note and
~11 riJhts thereunder.
( St'.i\L)
Att~scd~ inJ Countersigned:
Cler~, JoarJ of County
Com:ni ss ioners
INDIA~ RIVER COUNTY, FLORIDA
Chairman, Board of County
Comraiss ione cs
-54-
EXUIOIT "C"
LEGAL DESCRIPTION OF PROJECT SITE
-55-
EXHIBIT II D"
MORTGAGE
rhis ~ortgage, dated--------~~• 1983, is from
FlorL.l .• ,!ealth Facilities Corp. (of Indian River County), the
'''.•lort·-J.i<.Jor," to Indian River County, Florida (the "Mortgagee").
BACKGROUND FACTS:
l, '!'he Mortgagor is justly indebted to the Mortgagee in
the :,u;n •)f S2, 400,000, as evidenced by a Promissory Note dated
, 1983 (the "Note"), in the amount of such
-,--,-----,----i :i :i e o t ~ sl n es s. The Note is subject to the terms, conditions,
covenan~s, and limitations as set forth in that certain Loan
,\qree1:1ent, ~1ortgage and Security Agreement dated --------'
l';)BJ (t.ie "Loan Agreement"), bet...,een the ~1ortgagor and Mortgagee,
an,l proviues the security for and terms of repayment of such
inJ2htd~ness, and the rights and remedies of the Mortgagee, and
.:i·1Ji~ioncllly secures the Industrial Development Revenue Bonds,
Seri..:!s t').':33 (Florida Health Facilities Project), dated
, 1983 (the "Bonds"), issued by the Mortgagee pursuant -------to~ ~rast Indenture dated _________ , 1983, between the
~orty~~ee and Darnett aanks Trust Company, N,A,, Jacksonville,
fl..:>riJ.:1 (~he "Trust Indenture").
2. The terms and conditions in the Loan Agreement
proviJ<? for the indebtedness to be secureJ by a mortgage lien
U?0n the real ~roperty hereinafter described.
GRANTI~~G CLAUSE:
The Mortgagor, for and in consideration of the premises,
has Jr3nta<l, bar3ained, sold, mortgaged and conveyed, and by
these presents does grant, bargain, sell, mortgage and convey to
the ~ort1agee, its successors and assi3ns, all the following
Jescribed real property locateJ in Indian River County, FloriJa,
together ·,1it.h all rents, revenues, issue, profits or income
ueri·,eLI 0r t:.o be derived therefrom, and all tenament.s, heredit;;i-
mentz -1nd .:ippurtenances to the same belonging or in any way
appertaining thereto:
( D8SCI1.IPTIOi.'I OP PROJCC'l' Rl::AL PROPER'l'Y)
ProviJeu, however, and these presents ~re upon this express
conJition, that if the Mortgagor shall well anJ truly pay, or
caus~ to oa paid the sums of money covenantP.J to be paid by the
-56-
Note according to the legal tenor and effect ther~of, and shall
fully keep and perform all of the covenants, conditions and sti-
pulations in the Loan Agreement and in the Note contained, then
this obligation shall be null and void, other~ise to remain in
full force and effect.
COVENANTS AND AGREEME!~T5:
The Mortgagor further covenants and agrees with the
Mortgagee as follows:
1. The Mortgagor shall pay the sums of money evidenced
by the Note, the Bonds and the Loan Agreement according to the
legal tenor and effect thereof, or any renewals of the indebted-
ness evidenced thereby as may be made by the Mortgagee to the
Mortgagor.
2. In the event of a default under the Note, the Loan
Agreement and/or the Indenture, the Mortgagee or its assigns
shall be entitled to exercise all rights and remedies set forth
in the Loan Agreement and the Indenture, including but not
limited to the foreclosure of this mortgage and the appointment
of a receiver for the mortgaged property.
3. The Mortgagor fully warrants the title to the
mortgaged property and will defend the same against ~le lawEul
claims of all persons whomsoever.
EXECUTION:
The Mort·:iagor has signeu and seale<.l this mortgage on the
date indicated abov~.
( 3 811.L)
Attest:
Secretary
FLORIDA HEALT!l FACILITil~S CORP. ( OF
l~DIAN RIVER COUNTY)
oy
President
-57-
ST,\T!:: vF fLvRIDA
C0U;·rn JF
The foregoing mortgage was acknowledged before me this
__ day of ________ , 1983, by~---.--::..--~-------.-,-:-:--
~n □ -.--,,,---,---,--:..---,..~-,-,-• Presiuent and Secretary, respectively,
of Flocl-i.l ilealth Facilities Corp, (of Indian River County), on
oehalf oi the corporation.
Notary Public, State of Florida
at Large
My Commission Expires:
-sa-
GUARANTY AGREEMENT
CLARK DEVELOPMENT, INC,, JACK A, CLARK , CIIRISTOPllE:R A, CLARK
and MARTIN B. CLARK
to
INDIAN RIVER COUNTY, FLORIDA
and
BARNETT DANKS •rRUST COMPANY, N. /\.
as Trustee
Securing $2,400,000 Industrial
Development Revenue Oonus
Series 1903
(Florida llealth Facilities Project)
Dated . /tJ-/'l-/.,l , 1983
~~~~ ,?._;1-/0~
-EXHIBIT "C"
TABLE OF CONTENTS
aac~qrounJ Facts ,
ARTICLE I
JC:F'I.HTI0,'{5 AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions
Section 1.02 Notices to Trustee, Guarantor and
Issuer •
1
3
3
Sect.ion l.OJ Waivers of Notice 4
Section 1.04 No Third Party Beneficiaries • 4
Section 1.05 Amendments to Agreement 5
Section 1.06 Parties to Accept the Loan Agreement, the
Indenture and the Series 1983 Bonds • , • , 6
Section 1.07 Guaranty of Additional Bonds , 6
Section 1.08 Payments •••• , 6
Secti.on 1.09 Return of Payments • 6
Section 1. 10 Counterparts 7
Section 1.11 Severability Clause 7
Section 1.12 Consent to Jurisdiction and Waiver; Waiver
of Immunities 7
Section 1.13 Governing Law 7
8
8
8
8
Section 1. 14 !leadings Not Part Hereof •
Section 1. 15 •rermi.na tion
Section 1.16 Liabilities Indiviuual
Section 1,17 Succession of a Guarantor
AR·rICLI:~ II
llt:PRt::SENTA'rIONS, 1-/ARRAN'l'IES AND covtrnAN'l'S OF
'1'118 GUARAN'roR
Section 2,01 Representations and Harranti.es as to
Consideration .•••
{ i}
9
Table of Contents (Continued)
Section 2,02 Other Representations and Warranties
Section 2.03 Affirmative Covenan ts . . .. . . .. .
A.RTICLE III
SCOPE OF GUAR".NTY
Section 3.01 Guaranty of Payment of Principal of, Premium
9
10
and Interest on the Bonds • • • 12
Section 3,02 Indemnification of Trustee and Issuer 12
Section 3,03 Character of Obligations Heniunder
Section 3,04 i.~o Impairment of the Guarantor's
Section 3,05
Section 3.06
Section 3.07
Obligations
No Setoff . .
Guaranty, Suretyshi1~ or
Special Grace Period .
ARTICLE IV
REMEDIES
Section 4 ,01 Events of Default
Section 4,02 Remedies
.
Section 4,03 Remedies Not Exclusive.
Section 4.04 Waivers of Default
Signatures and Seals •
Acknowledgments
(ii)
Indemnity
. . . . .
. .
.
. . . .
. . . . .
. . .
. .
. . . . .
13
13
16
16
16
lO
18
19
19
19
22
GUARANTY AGREEMENT
T !II :.5 ,jU1\AANTY AGREEMENT, dated ________ , 1983, is from
_:;_ .. ,\RK l)i,;VSLOPM l::;:-i-r' INC.' JACK A. CLA.flK, CHRISTOPHER A. CLA!lK and
MARTI~~. CLARK, jointly and severally (collectively, the
":;uat,lnt.oi:-"}, to DARNETT BANKS TRUST COMPANY, N,A., a national
~~n~in~ ~ssoci~tion organized under the laws of the United
States, ~s Trustee under the Indenture, hereinafter defined,
with Lts principal office and place 1f business in Jacksonville,
~' lun.,Ja ( t.he "Trustee"), and INDIAN RIVER COUNTY, a political
sutJJ1.•1i.sion of the State of Florida {the "Issuer"),
BACKGROUND FACTS:
l. The Issuer is authorized and empowered by Chapter 159,
P~rt II, ~lorida Statutes, and other applicable provisions of law
(coll~cti·1~ly, the "Act"), to finance capital projects for
inJustri~l or manufacturing plants, and to issue and sell its
inJu~tri~l ~evelopment revenue bonds in order to provide funds
for such financing.
2. ~he Issuer has agreed under the Loan ~greement (herein-
after J~fined) to finance the cost of acquiring, constructing and
•~'--luir?in-3 ,, capital project {the "Project," as defined in the
Loan r\greement), for use by Florida Health Facilities Corp. (of
Indi:1n Ji•1er County), the "Borrower," and to issue and sell a
series <)f its i:-evenue bonds to be designated "Industrial
:)evP.10,?ment Revenue Oonds, Series 1983 (Florida Health F'acilities
i'r:::iject)," in the aggregate principal amount of S2,400,000 (the
"3eries 19B3 Bonds"), to be issued under a Trust Indenture, dated
as of t.hl! <lute hereof, between the Issuer and the Trustee (the
"Indenture''), for the purpose of providing funds to finance the
cost of ~he Project.
3. Contemporaneously herewith the Issuer ~nd the Borrower
<1n.! enterinJ into a Loan Agreement, Mortgage ;ind S,~curity
,\grr.?ement, dated as of the date hereof (the "Loan T\.greement"),
under which the Issuer is lending and the narrower is borrowing
t.he proceeds from the sale of the Series 1983 ilon,1s, and under
which the 'dorrower is agreeing to complete the Project, to pay
uny ,:in,l all costs thereof in excess of the amounts payable out of
the pi:-ocee~s of the Series 1983 Donds, to repay such loan in
inst.3llments at the times and in amounts sufficient. to pay the
principal of, premium, Lf any, and interest on the Series 1983
i3onds, to [)ay certain other amounts described in the Loan
r\::JrP.er~ent. '-"hen and as the same become due, t'.) oper;:ite, re[Jair,
maintain ~nd insure the Project at its own expense and to pay all
costs incurred by the Issuer in connection with the Project, if
any, which are not paid out of the proceeds of the Series 1983
llonds.
4, Contemporaneously herewith, all right, title and interest
of the Issuer in, to and under the Loan Agreement {subject to
certa~n reserved rights), including the Mortgage and Security
I.f'Lterest as described therein, and in and to the loan repayments
and other revenues and proceeds derived by the Issuer from and
with respect to the Project, are bein1 transferred and assigned
by the Issuer to the Trustee in trust as provided in the
Indenture as security for the payment of the principal of,
pre,nium, if any, and interest on the Series 1983 Bonds and any
Additional Bonds (as defined in the Loan Agreement) which may
hereafter be issued pursuant to the Indenture (the Series 1983
Bonds and any such Additional Bonds being hereinafter co .llec-
tively called "Bonds"), and for the pay:nent of other amounts
payable thereunder, all for the benefit and protection of those
Persons (as defined in the Loan Agreement) who from time to time
shall be the holders of the Bonds, until all of the Borrower's
obligations under the Loan ~greement shall have been fully
performed, and the Bonds and all fees, charges, expenses and any
advances of the Tru~tee shall have been paid in full (or provi-
sion for full payment thereof shall have been made as provided in
the Indenture).
S. 'l'he Guarantor acknowledges that the Series 1983 13onds ar.e
be:i.ng issued by the Issuer at the request of the llorrower and the
Guarantor for their economic benefit.
6. The Guarantor acknowledges that it has a substantial
direct economic interest in the Borrower anu expects to benefit
economically from the Borrower's particiration in the aforesaid
transaction, and has executetl this flgreement in order to induce
the consummation of such transaction.
7, It is a condition precedent to the purchase of ~1e Series
1983 Oonds by the initial purchaser or purchasers thereof that
the Guarantor shall have executed ~1nd delivereu this Agreement.
8, 'rhe execution of this Agreement is necessary in order (a)
to induce the Issuer to issue and sell the Series 1983 Oonds and
to loan the proceeds of the 3eries 1983 Bonds to the narrower,
(b) to induce the rurchase of the Series 1983 Bonds by the ini-
tial purchaser or purchasers thereof and by all other Persons who
fro111 time to time shall become holders of the Series 1983 13on,ls,
(c) to enhance the marketability of the Series 19BJ l3onds, and
(d) to obtain a lower interest rate on the Series 1983 l3onds anu.
a lower interest rate on the Borrower's loan frrnn the Issuer.
-2-
AGREEMENT;
ARTICI,E I
0EF I::ITIONS AND OT .HER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions
For purposes of this Agreement, except as otherwise
,:ix;Jrcssly provided or unless tL~ context otherwise requires:
(1) the terms defined in this Agreement have the
meanings assigned to them herein, and include the plural
as well as the singular;
(2) all accounting terms not otherwise defined
herein, in the Loan Agreement or in the Indenture have
the meanings assigned to them in accordance with
•Jenerally accepted accounting principles;
( 3) the words "herein," "hereof" and "hereunder"
anrJ other words of similar import, refer to this
,\greecnent as a whole and not to :;i.ny particular article,
section or subdivision;
(4) the words "its separate proper-ty," and
otner •,;ords of similar import, when referring to
property of the Guarantor, shall mean the property
owned individually by each Person comprising the
Guarantor; and
(5) all capitalized terms used herein which are
not defined herein shall have the meanings assigned to
them in the Loan Agreement or in the Indenture.
Section 1.02, Notices to Trustee, Guarantor and Issuer.
l\11 notices, requests or other communications to be
given to the Guarantor, the Trustee or the Issuer hereunder
sh~ll be sufficiently given and shall be deemed given, when
~iven by hand delivery to such person at the street address
of such person set forth below, or when mailed by registered
or certified mail, postage prepaid, addressed as follows :
(1) If to the Trustee, to Barnett Banks Trust
Company, N.A., 001 Riverside Avenue, Jacksonville,
Florida 32204, Attention: Corporate Trust
IJepartment.
-3-
(2) If to the Guarantor, to
Attention:
(3) If to the Issuer, to Indian River County,
Florida, c/o County Attorney, 1840 25th Street,
Vero 13each, Florida 32960.
The Guarantor, the Trustee and the Issuer may, by notice given
under this Section 1.02, designate 1ny further or different
addresses to which subsequent notices, requests or other com-
munications shall be sent.
Section 1.03. Waivers of Notice.
Where this Agreement provides for notice in any manner, such
notice may be 1o1aived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice shall
be given in the manner provided for; the giving of notice,
Section 1.04, No Third Party Oeneficiaries.
( a) This Agreement shall inure to the hl!nefit of the ( i)
Trustee, (ii) the holders from time to time of the Bonds { the
"Oomlholders") and {iii) the Issuer. This Agreement is for the
exclusive benefit of the foregoing Persons, and shall not be
deemetl to be made for the benefit of any other Persons not so
specified. The Guarantor hereby expressly waives notice from the
Trustee, the 13ondholders and the Issuer of their reliance U[)On or
acceptance of this Agreement.
(b) The Gu;irantor subjects its separate property to this
Agreement and expressly u.grees that recourse may be had against
its separate property for all of its obligations heceunder, and
it further agrees ~,at any and all of its properties shall be
subject to execution for any judgment rendeced aqainst it on this
fl<Jree1nent by a court of competent jucis<liction: provhle<l,
however, that. this provision shall. not be construe,] to create c1
security interest in or lien upon stlch property unless a. judgment
lien is perfected under applicable law. The Gu;irantor will not
exercise any rights which it ;nay acquire by wa.y of subrogation on
account af any rayrnent made hereun,ier or otherwise, unt.i l all of
the i.3onds shall have been paid in full (or provision for the
pay~ent thereof shall have been rna<le as provided in the
Indentuce) <'.ln<l all amounts p;iyable to the Trustee unJer the
Indentur-e anu hereun<ler shall have been pai,l,
-4-
3dcti~n 1.05. A~endments to Agreement.
( ., J .\r.1endments Not Requiring Consent of 13ond:.olders. The
'.'r:.isc.·:?t! 1:i,I the Guarantor may with the prior written consent of
~~d :Jsu~r (~hich consent shall not unreasonably be withheld),
but, ~i.c.:,out the consent of or notice to the Bondholders, execute
~ny 1~~nJ:1ent, change or modification of this ~greement for any
one •)t" .:1ore of the following purposes:
(l} to evidence the succrJsion of another Person to the
0~Li1ations of ant party hereunder, and the assumption by any
3uch ~uccessor of the covenants of such party contained
herl!in: or
{2) to add to the covenants of the Guarantor for the
b,rn~ :it of the 'rr:-us tee and the 13ondholders or to surrender
any ~i~ht or power herein conferred upon the Guarantor, the
3urc-injer of which, in the opinion of the Trustee, shall not
~3c.~rially adversely affect the interests of the Trustee or
t.:1\! :.1o nJholders; or
( .3) to cure any ambiguity or formal defect or omission
in this Agreement, or to correct or supplement any provision
her~in which may be inconsistent with any other provision
itere?in, or to make any other provisions with respect to mat-
ters :Jr ,1uestions arising under this ~gr13ement which shall
11ot h~ inconsistent "'ith the provisions of this Agreement:
proviJed, such other provisions shall, in the opinion of the
:'ru!:it~c, not matarially adversely affect the interests of
the Trustee or the Bondholders; or
(4) to grant to or confar upon the Trustee or the
JonJholders any additional rights, remedies, powers, benefits
or ,:iuthority that may lawfully be granted to or conferred
uron the Tr:-ust.ee or the Bonuholders.
(b) ~nendments Requiring Consent of Dondholders. Except as
providad in subsection (a} of this Section 1.05, this Agreement
may not be amended, changed, modified, altered or terminated so
as to ~ffect the interest of the holJcrs of □ond s outstnnding (as
rl-:!fineu in the indenture), 1.-lithout the prior written cons ent of
the l:..suer (-..1hich consent shall not unreasonably be withhel,l) and
of the hoLJers of Outstanding Bonds of not less than that percent
in aqgrcgate principal amount of the Outstanding □ands materially
au.vl!rsely affected thereby 1v'hich would be necessary to make an
ai.11a!ndrn~nt to the Indentur.e of the type requiring consent of the
001~holJers: ~rovide<l, however, th~t no such amerulment shall
moJify or reduce the oblig~tions of the parties under Article III
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hereof without the prior written consent of the holders of all
Outstanding Bonds.
(c) Execution, No amendment hereto shall be effective unless
executed in writing by the Trustee.
Section 1.06, Parties Accept the Loan Agreement, the
Indenture and the Series 1983 Bonds.
The parties hereto accept the t9rms and provisions of the
Loan Agreement, the Indenture and the Series 1903 Bonds.
Section 1.01. Guaranty of Additional Bonds.
If one or more series of Additional Bonds shall hereafter be
issued as provided in the Loan Agreement and in the Indenture,
the consent thereto of any party shall constitute an acceptance
by such party of such series of Additional Bonds, and any amend-
ments and supplements to the Loan Agreement and/or the Indenture
executed in connection therewith, and shall extend the scope of
such ?arty's liability hereunder (i) ta such series of Addi-
tional Bond s and (ii) to the Loan ,;greement and the Indenture as
so <'\mended and supplemented.
Section 1.08. Payments.
i\11 payments requireu hereby shall be paid in lawful money of
the Uniteu State s of America. Each and every default in p a yment
of the principal of, premium, if any, or interest on any Bond
shall give rise to a separate cause of action hereund er, and
separate suits may be brought hereunder. by the Trustee, and to
the extent permitted by the Indenture, by the Bondholders as a
class, or by any Bondholder individually, as each cause of action
arises.
~11 pa~nents hereunder shall be made free and clear of, and
without deduc tion for, ~ny and all present and future taxes,
levies, imposts, deduct.ions, charges, withholdings, and all
liabilities with respect thereto.
See tion 1. 09. Return of Payments.
'Phis Agreement shall continue to be effective or be
reinstated, as the case rnay be, if at any time any payment made
hereunder is rescinded or ;nust otherwise be returned by the
Trustee or any Bondholder upon the insolvency, bankruptcy or
reorganization of the Issuer, the rlorrower, the Gunr.,"l.ntor or
otherwise all as though such payment had not been made.
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Sec ~ivn 1..10. Counterparts.
~hi~ \~r~ement may be executeJ in any number c, counterpar ts,
•:i;ic:'\ >f ,1\\ich, 1-,h en so executed and delivered, shall be an
Jr131:1al, buc ~uch counterparts shall together constitute but one
:1:1J -.he :n::ie instrument.
~ecti~n 1.11. Severability Clause.
I~ ,ni clause, provision or sec ' ion of this Agreement shall
he h~LI to he illegal or invalid by any court, the invalidity of
::i:...t r.:h ;L.rnse, !.')ro vi:;ion or section sha ll not affect any of the
C-:?.a~i:1in J clauses, prov isions or sections hereof, and this
~Jr:!e~dnt &hall be construe d and enforced as if such illegal o r
i~~nlil cl~u ~e, p rovision or section had not been conta ine d
n~r.? 1.:1.
~e~tivn 1.12. Consent to Jurisdiction and Waiver: Waiver of
I~':\U:li t Lt:!S.
(.:1) :::ach party herato hereby irrevocably submits to the
juriaJi~ti~n of any State or fe~er~L court in any action or pro-
caed i,n -.1risin:'J out of or relating to this Agreement, and her~by
irr~v0r.:~hly 3qrees that all claims in respect of such action or
9ro~1?•~ :i.11 ::i.:iy be heard and deter;iiined in 9UCh court. Each party
f:..ir:::1t~r "\•Jr-ees that venue of any action to enforce this l\greement
shall lie i.n the county in which any security for the Oonds is
lo::ac~cl ·:,r ln any other county where venue is proper. Each party
~~rees ~h~t ~ f inal judgment in any such action or procee~ing
s,1alL ·.,e c onclusive and may be enforced in other jurisdictions by
suit. ·)n t,1e judgment or in any other manner provided by law.
{ b) :lothin;J in this Section shall affect the right of the
Tr~stee 0r any holder of the Bonds to serve legal process in any
other 11anncr pecmitted by law or affect the right of the Trustee
or <lny sut.:h holuer to bring any action or proceeding against any
parcy 0c Lts property in the courts of any other ju ri sdiction or
•;enuc.
(c} To the extent thil t any party has or her.eaft:.er :nay acquire
an·/ i:nmuni ty from jurisdiction of any court or fro m any legal
proce:;s (·,1hether through servh:e or notice, ::i.ttachment prior to
JUJ•·J:n~nt, lttachment in ai:j of ex:ecution, execution or otherwise)
with respect to itself or its property, such party hereby irrevo-
cably wd1ves such immunity in respect of its obligations under
this i\•J r'3eiaen t.
Section l ,lJ. Governing Law.
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This Agreement shall be construed in accordance with and
governed by the laws of the State,
Section 1,14. Headings Not Part Hereof,
The headings preceding the several articles and sections
hereof (and any table of contents hereto) are solely for con-
venience of reference, do not constitute a part of this Agreement
and shall not affect its meaning, construction or effect.
Section 1.15, Termination.
This Agreement shall remain in full force and effect so long
as any of the Bonds and any amounts payable to the Trustee under
the Indenture or hereunder shall remain unpaid and, subject to
the provisions of Section 1.09 hereof, shall terminate at such
time as none of the Bonds and no amounts payable to the Trustee
under the Indenture or hereunder shall remain unpaid.
Section 1.16. Liabilities Individual.
No obligation imposed on any one party to this Agreement
shall be construed as a liability of the other, unless the
context or language specifically implies or states that such
obligation is joint and several; provided, however, that each
Person comprising the Guarantor shall be jointly and severally
liable to the extent specified in Article III hereof.
Section 1.17. Succession of a Guarantor. Subject to prior
written approval by the aondholders and the Issuer, the Persons
comprising the Guarantor mar be changed from time to time, Any
successors to those Persons comprising the Guarantor shall exe-
cute documents evidencing their acknowledgment and assumption of
their obligations under this Agreement. Original executed copies
of such documents shall be furnished to the Issuer and the
Trustee within 5 days after their execution.
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l\.R'l'ICLJ!: [I
i~t:l'aSS E:n'A'l'IONS, WA.RRANTii,:s A.t-W COVENMITS OF THE
GUARANTOR
3~cci.::,n 2.01. Representations and Warranties as to
C-::>n~i .Jcr.:it1-:>n.
Th d Juarantor represents and w~crants that it has received
Joo.i, ·1"1lu.ll>it.i and sufficient consideration for entering into
tnl.J ·qr~e1at!nt.
3~cci-::>n 2.02. Other Representations and Warranties.
":'he ..:;uar.'lntor hereby represents and warrants as f o llows:
(a) ~he Guarantor is composed of a corporation duly
'Jr:;ani;:.cu, ·1alidly existing and in 100d standing under the laws
~f ~ha ~t.J.td of Florida, anu natural persons; and
(j) the execution, delivery and performance by the Guar~ntor
0f ~nLd ~qr~ement (i) does not contravene any law or any
cont~~ctu<ll restriction binding on or affecting such party and
Jo~s n~c result in or require the creation of any lien, secur ity
interesc or other charge o r encumb rance (other than pursuant
heraco) upon or with respect to such party's individually or
jointly 0wned properties, and (ii) the Guarantor has duly
~uthorize<l the execution and ~elivery hereof by all necessary
~ction anJ the same does not contravene its organizational
-locu;no:nt.s, if any; .:i.n<l
(c} no autho rization or: approval or other action l:>y, and no
not.i..;c to :)r filing with, any governmental authori ty or regula-
tory i.loJy is cequire,l for the due execution, delivery a nd ()erfor-
mance oy the Guarantor of this Agreement: and
(d) this Agreement is il le<Jal, valid ant3 binding obl iga tion
of tho Gu arantor an~ is legillly enforceable aga i nst the Gu.:i.r~ntor
in .Jccor,lance with its terms, except as enforceability thereof
,nay :)(~ li:nit ed by oanl<ruptcy, reorg.:i.nL•.at.ion or other si111i lr1c
lJws of Jen~r.:i.i application relating to or affecting the enfur-
cement. ,?t r.:reuitors' rights, and subject to the availability of
equit.J.ble remeJies , gener.:i.lly; and
(.:} the Guarantor will Eurnish the Trust ee a.nd the initi.::il
iJUrc!,..ise r of the f3onJs (i) a baL1ncc s heet of the Guar:rntor ,1.s of
its ::iost re cent. fiscal year and ,"1 rdl.:i.ted statement of income for
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the fiscal year then ended, which balance sheet and r elated s t a -
tement accurately reflect the financial condition and operations
of the Guarantor as of their respective dates , and (ii) upon
request, quarterly unaudited financial statements reflecting the
same information as the balance sheet and related statement of
income: and
(f) there have been no material adverse changes in the
financial condition of the Borrowe~ or the Guarantor subsequent
to ____________ : and
(g) there is no pending or threatened action or proceeding
affecting any Persons comprising the Guaranto r before any court,
governmental agency or arbitrator wh ich may materially adversely
affect the financial condition of any Persons comp rising the
Guarantor.
Secti on 2.03, Affirmative Cove nants.
The Guarantor covenants and agrees that , unless the Trustee
shall otherwi s e consent in writing:
(a) the Guarantor will comp ly in all ~ate riaL respects wi th
all applicable laws, r11l es, regulations .:ind order=., such
compliance to include, wi t hout limitation, paying before the same
become de linquent all taxes, assessments and governmental charges
imposed upon it or upon its proper ty e xcept to the extent con-
tested in goou faith; and
(b) any corpo r.:1tions that are part of the Guarantor will
maintain their corpor.J.te existence, will not dissol ve or o ther-
wise dispose of all or substantially c1ll of their assets and will
not consolida te with or mer.ge into a nother co rporatio n or ~ermit
one or more other corporations to consolidate with it : provided,
that any corpor.J.tions who are pa~t of the Gu.:i ranto r may, with the
written approval of Barnett Bank of Cent ral Flori~a, N,A,,
Orl ando, Florida, if such bank is ~1en a holder of any o f the
Bonds, consoliJa te with or ~erge in to another corporation or
corporations, or permit one or lllore other corporations to con-
soli<late with it, or sell or otherwis e transfer to ~no~1er co r-
poration or corporat ions all or subst~ntially all of their assets
as an entirety and there.J.fter. dissolve, [)roviuod the surviving,
resulting or transferee corporation or cor porations, as the case
may b e, is a corporation or corporiltions organi ~e~ and existing
under the laws of one of the sta tes of the United Sta tes, hav e a
net worth not less than 1 00\ of the net wo rth of any corporations
that are part of the Guar:1ntor on the date [Jrio r-to the ~ffective
Jate of the consolidation or ~erger ~nJ assume in writin~ all of
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th<? ooli;.itions of any corporations that are part of the G11 ar;1ntor
:t~CC!i:i .
(~) ~one of the Persons comprising the Guaran t or will sel l
.iny Gtoc~ of ~ny corporations that are a part of the Guarantor,
or 1ny 3t ~ck o f the Borrower, without the written approval of
9Jr~ett 1.in~ of Central Florida, ~.A., Orlando, Florida, if such
ban~ is t hen a son<lholder.
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/'.\R'l'ICLE III
SCOPE OF GUARANTY
Section 3,01. Guaranty of Payment of Principal of, Premium
and Interest on the Bonds . The Guarantor hereby irrevocably and
unconditionally 1uarantees to the Trustee, for the benefit of the
Issuer, the 'l'rus tee and the Bondholders ( i) the Eull and prompt
payment of the principal of and pret .. .Lum, if any, on each of the
Bonds, including any renewals, modifications or extensions
thereof, when and as the same shall become due, whether at the
stated maturity thereof , by acceleration, oy call for redemption
or otherwise, and (ii) the full and prompt payment of any
interest on each of the !3onds when and as the same shall become
due (including scheduled installments of interest and interest on
any principal, premium, if any, and/or interest which is in
default). In each and every case, the Guarantor hereby covenants
and agrees, in the event of the failure of the Issuer to make
such payments of principal, premium, if any, or interest on any
Bond, it shal 1, upon demand of the holder of any !3on<l, irnme-
dia tely make such payments to ti.e holder of such Bond: provided,
however, that if such demand is made by the Trustee on behalf of
one or more Bondholders and such <lemand so provides, such ray:nent
shall be made by depositing with the Trustee an amount sufficient
to pay all delinquent payments of principal, premium, if any, and
interest and interest on any principal, premium and interest so
in default. This guaranty is a guaranty of payment and not of
collectibili ty or performance ,rnd is in no way conditioned or
contingent upon any attempt to collect from the Issuer or to
realize upon any property subject to the lien of the Indenture or
to realize upon any property pledged as security thereunder or
hereunder. The Guarantor hereby waives diligence, presentment,
demand, notice or protest of any kind,
Section 3.02. Indemnification of ·rrustee and Issuer.
(a) To the extent not. pai.J by the Borr-ower, the Guarantor
agrees to iy1y to the Trustee an.:1 to the Issuer on damanj all fees
payable to them respectively (and to the Bond Regigtr~r an<.l any
Paying Agent) under this f\.greement. and under-the documents and
instru,nents herein referred to and all advances (and interest
thereon as prov i<.led in the Loan Agreement or the In~lentllre) made
by the 'l'rustee under the Loan Agreement and/or the Indenture, all
costs anJ expenses in connection with the preparation, execution,
delivery, filing, recordin3, and c1.dministratlon of the [nd enture,
the Loan /\(Jreement, and all documents, agreements cl.nu instrumoants
to be ,Jelivered under ~ny of the f:oregolng, including without
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li:nit.:ition, the reasonable fees and out-of-pocket expenses of
c0unscL :Jr the Issuer or for the Trustee with respect thereto
an~ ~1c.n respect to advising the Issuer or the Trustee as to its
riJht3 ~nJ responsibilities under any of the foregoing documents,
.1yr~~::1e:1t.s ,ind instruments, and all cost!'! and expenses, if any,
in c •.mn~ct.ion with the enforcement of any of the foregoing
.Jocu;;1~nt.s, .lgreements and instruments, In addition, the
:.:i...lar,nc..:>i::-:;hall pay any and all stamp and other taxes and fees
ray.:ibL'-'l )r .letermined to be payable in connection with the
ex<?cuti.;m, delivery, filing and recording of the foregoing
Jocu1n~nt.s, agreements and instruments, and hereby agrees to save
t~e [~suer Jnd the Trustee harmless from and against any and all
li.:i.bilic.ies with respect. to or resulting from any delay in paying
or ~mitting to pay such taxes and fees.
( !J) .:::1 adtli tion to amounts payable under Section 3. 01 and
pan.,1nph (a) of this 3.02, the Guarantor agrees to pay and to
in.ic:n:11 :/ ::ind save the Issuer, the Trustee and the holder!'! of the
ilon~s har~less from and against any damage, loss, cost or expense
( inc l.1 Ji:19 reasonable attorneys' fees) which the Issuer, the
~rJst~e ~nJ/or any such holder may incur or be subject to as a
::onsequcncc, direct or indirect, of (i) any breach by the Borrower
ar the Issuer of dny warranty, covenant, term or condition in, or
t:1e ,)r::c . .1rrence of any default hereunder or under the Loan
,\gr·:?t!::1cnt, the Indenture or the Bonds, together with all reaso-
nable ~xpdnses resulting from the compromise or defense of any
claims Jr liabilities arising as a result of any such breach or
,Je::.:iul-::., 1.nJ (ii) defense against any legal action commenced to
ch.:i.l L\!n<J•~ ::.he vali::iity of any of the above instruments.
Section J.03. Character of Obligations Hereunder,
The Qbl.i-,;ations of the Guarantor under Sections 3.01 an,l J.02
hereof ,1re primary, absoltJte, independent., irrevocable .:ind
uncondit.ional. No act or omission of the Trustee or of any
holJ.er )f \ny 13ond shall in any way affect or impair the rights
of ,my •Jt.i1ar holdei::-of any Bond. to enforce any right, power or
benefit uncter this Agreement.
Section 3.04. No Impairment. of the Guarantor's Obligations.
The ,Jbli.Jations of the parties hereto shall be absolute and
uncondi:ional, and, except as othcrwi2e provided, shall remain in
full force ~1nd eff~ct until this f\greeinent shall terminate as
provi.,Jc.J i.n Section 1.15 hereof. The obligations hereunder shall
not i)e .,ffected, modified, impairetl, reduced or abatej upon the
happeninq from time to time of .;;ny event, includiny without limi-
tati,)n ._iny of the following;
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(1) the compromise, settlement, release or termination,
either with or without consideration, of any or all of the
obligations, covenants or agreements of the Issuer, the
Tr~stee, the aorrower or the Guarantor under the Bonds, the
Indenture, or the .Loan Agreement (or unuer this l\greement
exr.ept to the extent that such compromise, settlement,
release or termination expressly so provides, and then only
to the extent so provided); or
(2) the failure to give or ~elay in giving any notice
to any party of the occurrence of any Event of Default under
the terms and provisions of the indenture or the Loan
Agreement or of any default on the Bonds or under this
Agreement or any delay in making any d~mand on any party
hereunder (except as provided in 3ection 3.07 hereof); or
(3) the assignment or mortgaging or the purported
assignment or mortgaging of the Project, or the failure of
all or any part of the right, title or interest of the
Issuer, the Trustee and/or the Dorrower or the Guarantor,
or any of them, in and to the Project; or
(4) the 3urrender or substitution, either with or
without consideration, of any property, collateral or other
security of any kind or nature whatsoever helu. by the
Trustee, or held by any other Person on behalf of or for the
account of the Trustee or LI1e Bondholders, securing any obli-
gation covered by or under this Agreement; or
(5) the waiver of the payment, performance or obser-
vance by the Issuer, the Trustee, the Borrower or the
Guarantor, or any of them, of any of the obligations, cove-
nants or agreements of any of them contained in any of the
Bonds, the Indenture or the Loan .'\greement; or
(6) the extension of the time for payment of any
payment or of the time for performance of any other
obligations, covenants or 3greements under or arising out of
any of the Bonds, the Indenture or the Loan l\<Jr e ement or any
extension or renewal of any thereof; or
(7) the modification ot' amendment (whether material or
otherwise} of any obligation, covenant or agreement set forth
in any of the 13onds, the Indenture or the Lo.:i.n Agreement; or
(3) the taking or the omission of any of the net.ions
referreu to in this ,\greement 0r any of the Donu.s, the
Indenture or the Loan Agreement; or
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(9) any failure, omission, delay or lack on the p~rt of
the [3suer, the 'l'rustee or the Bondholders to enforce,
Jssert or exercise any right, power or remedy conferred on
t~c [ssuer, the Trustee, or the Bondholders in this Agreement
)r i:1 <lny of the 13onds, the Indenture or the Loan Agreement;
Jr
(10) the voluntary or involuntary liquidation,
1i~solution, sale or other disposition of all or substan-
tially all the assets, marshall:..,1g of assets and liabilities,
r~ceLvarship, insolvency, bankruptcy, assignment, composition
with creditors or readjust~ent of, or other similar
?rocaedings, affecting any party or any of the assets of any
of them, or any allegation or contest of the validity of this
,\..J r<?eraent or any of the Bonds, the Indenture or the Loan
.\•3rt?l'!ment; or
(11) to the extent permitted by law, the release or
uischar3e of any party or of the Issuer or of the Trustee,
frora the performance or observance of any obligation, cove-
n.:in::. :>r agreement contained in this l\.greement, the nonds, the
:;1Jent11re or the Loan Agreement hy operation of law or
,:>t.:1,H",.,,ise; or
(12) any default or failure of any party fully to pec-
for;~ ,my of its obligations set forth in this Agreement, the
[nJent.ur-e or the Loan Agreement; or
(lJ) the invalidity or unenforceability of any of the
,>r::ivi'.3ions of the l3onds, the In1lenture, the Loan A.greement or
~hi3 ~~r~ement; or
(14) the lack of capacity or authority on the part of
the [ssuer, the Trustee or a ny party to perform one or more
of its obligations under this Agreement, the Bonds, the
Inuenture or the L,oan t\greement;
provi<.led, that the specific enumeration of the above-mentioned
2vent.s, :natter::s or conuitions shall not be deemed to exclude any
other ~vents, matters or conditions, though not specifically men-
tioned -:ibove, it being the purr,ose and intent of this /\greement
that the ob liqations of each party shall be irrevocable and
aos(>lut~ <1nd unconditional, ancl shall not be affe cte,1, modified,
imp~ired, reduced or abated except by the payment in full of
.:ill principal of, premium, if any, and interest on the Bonds in
.:iccocddnce ~ith the terms of U1e Bonds and the Indenture, an1
then onl1 to the extent of such payments or performance.
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Section 3.05. No Setoff.
No setoff, subrogation, contribution, counterc~aim, reduction
or diminution of any obli~ation, or any defense of any kind or
nature which the Borrower or at\y shareholder thereof has or may
have , or may come ta have, against the Issuer, the Trustee or the
holder of any of the Bonds or against their respective properties
or assets, shall be available hereunder to or for the benefit of
the Guarantor against the Issuer, the Trustee or any holder of
any Bond.
Section 3.06. Guaranty, Suret~ship or Indemnity.
At the option of the Trustee or any of the Bondholders,
whichever shall be seeking enforcement hereof, this Agreement may
be treated as a guaranty or a suretyship or an indemnification,
In the event of a default in the payment of any principal of,
premium, if any, or interest on any of the Bonds, the Trustee or
any of the Bondholders, as the case may be, shall have the right
to proceed first diractly against any one or more parties to this
Agreement without proceeding against or exhausting any other
remedies which it or they may have against the Issuer or any
other person and without resorting to any security held by the
Trustee or any other person. Before the Trustee takes any action
under this Agreement, the Trustee may require that indemnity,
satisfactory to the Trustee, be furnished by the Bondholders as
provided in the Indenture for the reimbursement of all expenses
(including reasonable attorneys' fees} and to protect it against
all liability, except liability which is adjudicated to have
resulted from the Trustee's own negligence or ~illful default hy
reason of any action so taken.
Section 3.07. Special Grace Period,
Notwithstanding the provisions of Section 1.02 and Section
3.04(2} hereof, the following provisions of this Section shall
a~ply in the event of any failure to give or delay in giving any
notice to any party of the occurrence of any Event of Default for
whi.ch notice is required under the terms and provisions of the
Indenture or the Loan Agreement or of any default an the Bonds
prior to the dote demand upon such particular party for payment
hereunder is made. ln the event of i:iuch fai Lure, the party
receiving such dem.:ind shall be allowed a grace period of JO days
from the date of such uemand within which to mu.ke such tJayment
hereunder. In the event of a delay in giving any notice to any
party of the occurrence of any such Event of Default pr.ior to the
m.:1l~ing of demand upon ::;uch party foe-payment hercun~ler, such
party shall be allowed a 1:irace period from the date of such
-l6-
,lcm::rnJ for f.H!rfot'rnance of its payment obligations hereunde r which
,;,n l l :>t? :1ot. longer than the lesser of ( i) 30 days or (ii} a
p•~l"l. . ..).i <J,1u.:i.l to th~ number of days giving of such notice was
lel.1·1•.d. .\ failure to give or a delay in giving notice to any
p.J.1 .. ::.1 .,!1.ill not affect any other party who has received notice.
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ARTICLE IV
RE11EDIES
Section 4,01. Events of Default,
The following shall be "Events of Default" under this
A.greement:
( 1) U1e failure of the Guarantor to abide by or per form
any of its covenants contai~ed herein and the continuance of
such failure for 30 days after notice thereof by the Trustee
or any oondholder;
(2) the filing by any Person who is part of the
Guarantor of a petition in bankruptcy or for reorganization
or for an arrangement pursuant to any present or future
bankruptcy act or under any similar federal or state law: or
the adjudication of any such party as a bankrupt or as an
insolvent: or the making by any such party of an assignment
for the benefit of its creditors; or the making by any such
party of an admission in writing of its inability to pay its
debts ~enerally as they become due; or the filing of a peti-
tion or answer proposing the adjudication of any such party
as a bankrupt or as an insolvent corporation or its reorgani-
zation under any present or future federal bankruptcy act or
any similar federal or state law in any court (which petition
or answer shall not be discharged or denied within 180 days
after the filing thereof); or the appointment of a receiver,
trustee or liquidator of any such party in any proceedings
brought against such party ~,ich shall not be dischargeu
within 90 days after such appointment {or if s uch party shall
consent to or acquiesce in such appointment},
Section 4.02, Remedies.
'rhe Trustee and any of the Bondholders shall be entitled to
enforce this Agreement and exercise rerneuies hereunder upon the
occurrence of an Event of DeEilult; provided, however, that no
!3ondholder shall be entitled to enfo"rce this A.greement dirl'3ctly
unless (l) the 8vent of Default hereunder arises out of a
failure by the Guarantor to perform the covenilnts and oblig~tions
under Article Ill hereof or (2) the non<lholders are then entitled
to enforce the Indenture as provided in the Indenture.
If an Event of Default hereunder shall occur, the person or.
persons \-Jho are then entitled to enforce this Agreement shall be
entitled to exercise all remeuies available against each of the
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p.:irti,"?s :1t Law or at equity, including, but not limited to, the
!'.'~(;ov,2ry .Jf damages for the breach hereof or the r-pecific enfor-
,,:~1;1..!nt. Jf c:1is i\greernent, or both, including reasonable
.:itt.:H:n~ys' fees and actual costs, whether or not the exercise of
sL11.:h c<,!ale,lids involved litigation.
3ect.i.Jn ,L03. Remedies not Exclusive.
'.·lo remeJy available hereunder i· intended to be exclusive of
any other 1vailable remedy or remedies, but each and every such
ra~~Jy Jhall be cumulative and shall be in addition to every
ot;1er ,emedy '.3'.iven under this Agreement or now or hereafter
~xi~ti~g at Law or in equity. No delay or omission to exercise
a ny ri-Jht, powet" or remedy accruing upon any default or Event of
~ei3u l t shall impair any such right, power or remedy or shall be
,:::om;tr~-i..i to be a waiver thereof, but any such right, power or
remeJy .:i.:i.y ::ie exercised from time to time and as often as may be
.Jec::ic<l •=Xf.lellient,
3ec-:. ion -L 04. Waivers of Default.
i\n"{ !~vent of Default hereunder may be waived by any
JonJholJer but such waiver shall be effective only with respect
to sue:\ Jon•Jholder. Such waiver shall be limited to the par-
ticular breach so waived and shall not be Jeemed to waive any
otner :)reach hereunder.
EX8CU'I'ION:
The p,1.rties hereto have caused this Agreement to be duly exe-
cut,"?d J.3 ;)f the day and year first above written.
CL/\ilK DEVELOPME:.J'I', IHC,
,\t test; By=,----=--...,.--.,----------Its: President
I ts: Secr~t..:ir:y
-19-
Jack A, Clark
Christopher A, Clark
Martin 13. Clark
-20-
(:'iE:i\L)
t\ T'I'SS'i':
lts1
Accepted:
BARNETT BANKS TRUST COMPANY, N.A.
as Trustee
By _________________ _
Its:
INDIAN RI VER COUNTY, FLORIDA
:\ 1'1'1::S':'S I) i\:m ~OUNTERS IGNED: BY.,,,.,..__,, ____ -:::-~~r--::-;;--:.-::-:-:-::-7:-:------
Cha ir~an, Ooard of County
Commis s ioner s
Cl~r~, 3oarj of County
Comr:1iss i one rs
-21-
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was a.ckno1.t1ledged before me this
day of---.~------,.--,........,=----' 1983, by
the President and Secretary, respectively, of Clark Development,
Ice., a corporation, on behalf of the corporation.
( NO'l'A1H SEAL)
STATE OF FLORIDA
COUN'rY OF
Notary Public, State of Florida at
Large.
My Commission Expires:
The foregoing instrument was acknowledged before me this
day of-,-,-----,---=--=--' 1983, by Jack A. Clark, Christopher
A. Clark and Martino. Clark.
(NOTARY SEAL)
STATE OF FL~RIDA
COUNTY OF INDIAN RIVER
Notary Public, State of Florida at
Large.
~y Commission Expires:
The .foregoing instrument wu.s «cknowledged befor-e rne this
day of ----,--,,.......-• l 98J, by Richard N. Di r:l and Preda
'wright, Chairman and Clerk of th~ □oard of County Com.missioners,
resp~ctively, of Indian River County, Florida, on behu.lf of the
Issuer.
(~OTARY SE:I\L}
Notary Public, Stat~ of Florida
at L,,u-ge.
My Comrnission Cx.pires:
-22-
'f
3T~TS 0F fLORIDA
~OUifl'Y 01.-' L>UV;..L
The foregoing instrument ,.,as ack.nowledgecl befor e ine this
Jny of ________ , 1983, by
and ---------------
respac~1vely, of aarnett aanks Trust Company , ~.A., on behalf of
til~ T::ust~a.
( '.JOT,\i1Y 38,\L)
Notary Public, State of Plorida at
Large.
My Commission Expires:
-23-