HomeMy WebLinkAbout01-254 RESOLUTION NO. 01-o15q
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF ST. LUCIE COUNTY, FLORIDA
AUTHORIZING THE ISSUANCE OF ITS NOT TO EXCEED
$2,750,000 VARIABLE/FIXED RATE INDUSTRIAL
DEVELOPMENT REVENUE BONDS (A-1 ROOF TRUSSES
LTD., COMPANY PROJECT), SERIES 200lA AND ITS NOT TO
EXCEED $750,000 PRINCIPAL AMOUNT INDUSTRIAL
DEVELOPMENT REVENUE BOND (A-1 ROOF TRUSSES LTD.,
COMPANY PROJECT) SERIES 200lB FOR THE PURPOSES OF
FINANCING A PORTION OF THE COST OF ACQUIRING,
CONSTRUCTING AND EQUIPPING A MANUFACTURING
FACILITY TO BE OWNED AND OPERATED BY A-1 ROOF
TRUSSES LTD., COMPANY; APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION OF TWO LOAN
AGREEMENTS, A TRUST INDENTURE AND A PURCHASE
CONTRACT; AWARDING THE SALE OF THE BONDS BY A
NEGOTIATED SALE; APPROVING A TRUSTEE FOR THE
SERIES 2001A BONDS; AUTHORIZING CERTAIN OFFICIALS
AND EMPLOYEES OF THE COUNTY TO TAKE ALL ACTIONS
REQUIRED IN CONNECTION WITH THE ISSUANCE OF THE
BONDS; AND MAKING CERTAIN OTHER COVENANTS AND
AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF
THE BONDS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, St. Lucie County, Florida (the "Issuer") isa political subdivision of the State of
Flori¢ a and is empowered by the provisions of the Florida Constitution and Chapter 125 and Chapter
159, Part II, Florida Statutes (the "Act"), to issue obligations for the purpose of financing
manu f'acturing facilkies; and
WHEREAS, on October 9, 2001, the Board of County Commissioners (the "Governing
Body") of the Issuer granted preliminary approval and authorization for the issuance of not to exceed
$3,50 ),000,aggregate principal amount of industrial development revenue bonds to finance the cost
of acquisitlon, construction and equipping of a manufacturing facility lOcated within St. Lucie
Comity, Flqrida which facility is to be owned by A-1 Roof Tresses Ltd., Company (the "Borrower"),
conditioned upon the adoption of this resolution and certain other conditions; and
~WI-IEREAS, on october 9, 2001 the Issuer cOnducted a public heating as required by Section
147(f
aforei
Rever
of not
Bond
of the Internal Revenue Code of 1986, as amended, with respect to the issuance of the
~entioned bonds; and
WHEREAS, the Issuer has determined to issue its Variable/Fixed Rate Industrial Development
ue Bonds (A-1 Roof Tresses Ltd., Company Project), Series 200lA in the principal amount
exceeding $2,750,000 (the "Series 2001A Bonds") and its Industrial Development Revenue
(A-1 Roof Trusses Ltd., Company Project), Series 200lB in the principal amount of not
excee
"Bom
"Parc
the Sc
Agree
the B
will,
thep
OF S
Inder
heret,
adopl
deter
signi
empl
Flori
the S
inten
capal
ofth~
the ir
facili
fling $750,000 (the "Series 200lB Bonds," and together with the Series 200lA Bonds, the
[s")as further provided herein; and
WHEREAS, the Issuer and Borrower have received a proposed form of Purchase Contract (the
.aase Contract") from SouthTrust Securities Inc. (the "Underwriter") to purchase the Series
Bonds on the basis of the terms and provisions therein; and
~v'HEREAS, the Issuer and the Borrower have received a proposed form of Loan Agreement
2IT Loan Agreement") from The CIT Group/Equipment Financing, Inc. ("CIT") to purchase
~ries 200lB Bond on the basis of the terms and provisions therein; and
WHEREAS, the Issuer and the Borrower agree to such terms and provisions; and
WHEREAS, it is necessary and desirable to approve the form of a Trust Indenture, a Loan
.,ment, the CIT Loan Agreement and the Purchase Contract in connection with the issuance of
>nds; and
WHEREAS, the issuance of the Bonds and the purchase thereof by the Underwriter and CIT
n the judgment of the Issuer, serve the intended public purpose and in all respects conform to
'ovisions and requirements of the Act;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD COUNTY COMMISSIONERS
I'. LUCIE COUNTY, FLORIDA THAT:
Section 1. Definitions. Unless the context otherwise requires, terms used herein in capitalized
and not otherwise defined herein shall have the meanings specified therefor in the Trust
.ture attached hereto as Exhibit "A" (the "Indenture") and the CIT Loan Agreement attached
as Exhibit "C".
gection 2. Authori _ty for this Resolution. This resolution, herein called the "ResOlution," is
pursuant to the Act.
Section 3. Findings. For purposes of Section 159.29, Florida Statutes, it is hereby ascertained,
nined and declared as follows:
A. The Project is appropriate to the needs and circumstances of, and will make a
5cant contribution to the economic growth of the Issuer, will provide and preserve gainful
>yment, and will serve a public purpose, consistent with Article VII, Section 10(c) of the
ia Constitution, by advancing the economic prosperity and the general welfare of the Issuer,
tate, and the people thereof, and in particular, the issuance of the Bonds is in the common
:st of the people of St. Lucie County, Florida. The Borrower is financially responsible and fully
de of and willing to fulfill any obligations which it may incur in connection with the financing
, Project as contemplated by this Resolution. The Issuer will be able to cope satisfactorily with
apact of the Project and will be able to provide, or cause to be provided when needed, the public
ties, including utilities and public services, that will be necessary for the construction,
2
open
othe:
ade(
Bol~
bytl~
147.
puli
the t
princ
of th,
auth~
othe~
requ,
exce,
law
prin,
prerr
issua
CIT
such
such
in th,
payn
the
ma'
is he
the I:
Inde~
as aE
as if
Agr¢
alten
by th
direc
of th
ttion, repair and maintenance of the Project and on accOunt of any increases in population or
circumstances resulting therefrom.
B. The Issuer hereby finds that the Loan Agreement and the CIT Loan Agreement make
kate provision for the operation, repair and maintenance of the Project at the expense of the
)wer and for the payment of the principal and interest on the Bonds and all other costs incurred
e Issuer in connection with the Bonds and the Project.
Section 4. Authorization of Bonds. The Issuer approves the Bonds for purposes of Section
.) of the Code. Subject and pursuant to the provisions hereof and of the Indenture, for the
)se of financing the Project, the issuance of revenue bonds of the Issuer under the authority of
~ct in the aggregate principal amount of not to exceed $3,500,000 is hereby approved. The
ipal amount of the Series 200lA Bonds shall not exceed $2,750,000 and the principal amount
.~ Series 200lB Bonds shall not exceed $750,000. Subject to the foregoing, the Chair is hereby
~rized to award the sale of the Bonds in an aggregate principal amount sufficient, together with
available funds, to finance the Project and the costs associated with issuance of the Bonds, as
.~sted by the Borrower, provided that the aggregate principal amount of the Bonds shall not
.~d $3,500,000, the interest rate on the Bonds shall not exceed the maximum rate permitted by
)er annum and the purchase price shall not be less than ninety-eight percent (98%) of the
ipal amount of the Bonds (reduced by any original issue discount and increased by any
ium reflected in the initial offering price to the public), plus accrued interest to the date of
nee of the Bonds, all as approved by the Borrower and set forth in the Purchase Contract and
Loan Agreement.
Subject to the foregoing, the Bonds shall be dated, shall bear interest at such rates, mature on
dates, be subject to redemption on such dates and in such amounts and at such price and have
other details, terms and conditions, and shall be executed on behalf of the Issuer all as set forth
.~ Indenture and CIT Loan Agreement.
Section 5. Authorization of Execution and Delivery. of the Indenture. As security for the
tent of the principal of and interest on the Series 200lA Bonds, the Indenture, in substantially
)rm thereof attached hereto as Exhibit "A," with such changes, alterations and corrections as
be approved by the Chair, such approval to be presumed by the execution thereof by the Chair
:eby approved by the Issuer, and the Issuer hereby authorizes and directs the Chair to execute
~denmre and the Clerk to attest thereto under the official seal of the Issuer, and to deliver the
~mre to the Trustee all of the provisions of which, when executed and delivered by the Issuer
thorized herein, shall be deemed to be a part of this Resolution as fully and to the same extent
incorporated verbatim herein.
Section 6. Authorization of Execution and Delivery. of the Loan Agreement. The Loan
ement, in substantially the form thereof attached hereto as Exhibit "B," with such changes,
Ltions and corrections thereto as may be approved by the Chair, such approval to be presumed
execution thereof by the Chair, is hereby approved by the Issuer, and the Issuer authorizes and
ts the Chair to execute the Loan Agreement and the Clerk to attest thereto under the official seal
Issuer, and to deliver the Loan Agreement to the Borrower, all of the provisions of which,
when
Resol
Loan
chang
presu
autho
under
the p~
deem
hereh
Contl
altera
byth~
by th,
the C
to th~
autho
ifinc,
Issuel
limite
limite
and 1:
issum
by Se
appoi
conta
Cont~
stipul
or he~
or o~
accol2
menti
or im
executed and delivered by the Issuer as authorized herein shall be deemed to be a part of this
ation as fully and to the same extent as if incorporated verbatim herein.
Section 7. Authorization of Execution and Delivery. of the CIT Loan Agreement. The CIT
Agreement, in substantially the form thereof attached hereto as Exhibit "C," with such
es, alterations and corrections thereto as may be approved by the Chair, such approval to be
reed by the execution thereof by the Chair, is hereby approved by the Issuer, and the Issuer
.'izes and directs the Chair to execute the CIT Loan Agreement and the Clerk to attest thereto
the official seal of the Issuer, and to deliver the CIT Loan Agreement to the Borrower, all of
~ovisions of which, when executed and delivered by the Issuer as authorized herein shall be
;d to be a part of this Resolution as fully and to the same extent as if incorporated verbatim
t.
Section 8. Execution and Delivery_ of the Purchase Contract; Sale of Bonds. The Purchase
act, in substantially the form thereof attached hereto as Exhibit "D," with such changes,
:ions and corrections thereto as may be approved by the Chair, such approval to be presumed
execution thereof by the Chair, is hereby approved by the Issuer, and, upon execution thereof
: Borrower, the Issuer authorizes and directs the Chair to execute the Purchase Contract and
.erk to attest thereto under the official seal of the Issuer, and to deliver the Purchase Contract
Underwriter, all of the provisions of which, when executed and delivered by the Issuer as
~ed herein shall be deemed to be a part of this Resolution as fully and to the same extent as
)rporated verbatim herein.
The Issuer hereby determines that a negotiated sale of the Bonds is in the best interest of the
', the Borrower and the citizens and inhabitants of St. Lucie County, Florida by reason of the
d market for bonds such as the Bonds (due, among other reasons, to the fact that the Bonds are
d obligations of the Issuer payable only from the sources provided therefor in the Indenture)
ecause revenue bonds such as the Bonds are typically sold by negotiated sale. Prior to the
tce of the Bonds the Underwriter and CIT shall each file with the Issuer the disclosure required
etion 218.385, Florida Statutes, and competitive bidding for the Bonds is hereby waived.
Section 9. Appointment of Trustee. SouthTrust Bank, National Association is hereby
ated Trustee to act under the Indenture.
Section 10. No Personal Liabili .ty. No covenant, stipulation, obligation or agreement herein
ned or contained in the Loan Agreement, the CIT Loan Agreement, the Indenture, the Purchase
act, the Bonds, or any instrument contemplated thereby shall be deemed to be a covenant,
~tion, obligdtion or agreement of any officer, member, agent or employee of the Issuer in his
individual capacity, and no member of the Governing Body of the Issuer executing the Bonds
er documents herein mentioned shall be liable personally thereon or be subject to any personal
ntability by reason of the issuance or execution thereof.
Section 11. No Third Party Beneficiaries. Except as herein or in the documents herein
>ned otherwise expressly provided, nothing in this Resolution or in such documents, express
flied, is intended or shall be construed to confer upon any Person other than the Issuer, the
4
Borr
reme
or of
sole
of th
and'
peff(
Issm
Loaf
the ~
COVe
the
oft~
here'
notk
the I;
the I:
Res,
the
con
to th
any
and
here
Res(
prov
)wer, the Bondholders, the Underwriter, CIT, the Credit Obligor and the Trustee any fight,
ely or claim, legal Or equitable, under and by reason of this Resolution or any provision hereof
such documents; this Resolution and such documents being intended to be and being for the
md exclusive benefit of such parties.
Section 12. Prerequisites Performed. All acts, conditions and things relating to the passage
.s Resolution and required by the Constitution or laws of the State of Florida to happen, exist
)e performed precedent to and in the passage hereof have happened, exist and have been
,rmed as so required.
Section 13. General Authori .ty. The Clerk and the members of the Governing Body of the
:r are hereby authorized to do all acts and things required of them by this Resolution, the CIT
· Agreement, the Purchase Contract, the Bonds or the Indenture, or desirable or consistent with
=quirements hereof or thereof, for the full punctual and complete performance of all terms,
nants and agreements contained in the Bonds, the CIT Loan Agreement, the Purchase Contract,
~denmre and this Resolution.
Section 14. General Authorizations. The Chair, and any other member of the Governing Body
.= Issuer, the Clerk, the County Attorney, and any other appropriate employee of the Issuer, are
)y each authorized to execute, publish, file and record such other documents, instruments,
es, and records and to take such other actions as shall be necessary or desirable to accomplish
urposes of this Resolution, and to comply with and perform the obligations of the Issuer under
~denmre, the Bonds, the CIT Loan Agreement, the Loan Agreement and the Purchase Contract.
Section 15. Resolution Constitutes a Contract. The Issuer covenants and agrees that this
lution shall constitute a contract between the Issuer and the Bondholders from time to time of
~onds.
Section 16. Severability. If any one or more of the covenants, agreements, or provisions
tined herein or in the Bonds shall be held contrary to any express provisions of law or contrary
policy of express law, though not expressly prohibited, or against public policy, or shall for
:ason whatsoever be held invalid, then such covenants, agreements, or provisions shall be null
toid and shall be deemed separable from the remaining covenants, agreements, or provisions
)f and thereof and shall in no way affect the validity of any of the other provisions of this
,lution or of the Bonds.
Section 17. Repealer. All resolutions or parts thereof of'the Issuer in conflict with the
isions herein contained are, to the extent of any such conflict, hereby superseded and repealed.
Section 18. Effective Date. TNs Resolution shall take effect immediately upon its adoption.
5
duly
(SEt
After motion and second the vote on this resolution was as follows:
Chairman Frannie Hutchinson
Vice Chairman Doug Coward
Commissioner John D. Bruhn
Commissioner Cliff Barnes
Chairman Paula A. Lewis
~¥1~.
AYE
AYE
AYE
PASSED AND DULY ADOPTED this 6t.hday ofhLo_v~flae.r_, 2001, at a regular meeting
called and held.
J)
EST:
l'~l~-rrt/~fffTthe Circuit' Cou~eX-offic~
Clerk of the Board
-/
~ee~ovp ^s ~o FO~ ^~o~o=~ss:
G:\013:~8\l\bond reso(l).wpd 6
EXHIBIT "A"
TRUST INDENTURE
G:\013: {\l\bond reso(l).wlxt 7
TRUST INDENTURE
Dated November 1, 2001
Between
ST. LUCIE COUNTY, FLORIDA ·
and
SOUTHTRUST BANK
Regarding
$2,750,000
Variable/Fixed Rate Industrial Development Revenue Bonds
(A-1 Roof Trusses Ltd., Company Project) Series 200lA
ART
ART]
ART
TABLE OF CONTENTS
Page
2LE I DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01
SECTION 1.02
SECTION 1.03
SECTION 1.04
SECTION 1.05
SECTION 1.06
SECTION 1.07
SECTION 1.08
SECTION 1.09
SECTION 1.10
SECTION 1.11
SECTION 1.12
SECTION 1.13
SECTION 1.14
SECTION 1.15
Definitions ........................................... 3
Acts of Bondholders .................................. 12
Form and Contents of Documents Delivered to Trustee ....... 13
Compliance Certificates and Opinions .................... 14
Effect of Headings and Table of Contents .................. 14
Date of Indenture ..................................... 14
Enforceability ........................................ 15
Governing Law ...................................... 15
Counterparts ......................................... 15
Notices ............................................. 15
Notices to Bondholders; Waiver ......................... 16
Concerning the Credit Obligor and the Letter of Credit ....... 16
Notice to Rating Agencies .............................. 17
Successors and Assigns ................................ 17
Benefits of Indenture .................................. 17
:LE II GRANTING CLAUSES
2LE III
LIMITED LIABILITY
SECTION 3.01
SECTION 3.02
Source of Payment of Bonds and Other Obligations;
Disclaimer of General Liability .......................... 20
Officers, Directors, etc. Exempt from Individual Liability ..... 20
2LE IV THE BONDS
SECTION 4.01
SECTION 4.02
SECTION 4.03
SECTION 4.04
SECTION 4.05
SECTION 4.06
SECTION 4.07
SECTION 4.08
SECTION 4.09
General Terms ....................................... 21
Variable Rate ........................................ 23
Fixed Rate .......................................... 23
Optional Tender ...................................... 25
Mandatory Tender .................................... 26
Procedures for Purchase and Remarketing of Bonds;
Delivery of Purchased and Remarketed Bonds .............. 29
Execution, Authentication, Delivery and Dating ............. 32
Authentication and Delivery of Bonds to Original Purchasers .. 33
Temporary Bonds ..................................... 33
AR]'
AR:
ART
ART
ART
SECTION 4.10
SECTION 4.11
Letter of Credit ....................................... 33
Additional Credit Enhancement .......................... 35
ICLE V REGISTRATION, BOOK-ENTRY SYSTEM, AND
GENERAL PROVISIONS REGARDING THE BONDS
SECTION 5.01
SECTION 5.O2
SECTION 5.03
SECTION 5.04
SECTION 5.05
SECTION 5.06
SECTION 5.07
Registration of Bonds ................................. 36
Transfer, and Exchange of Bonds; Replacement of
Mutilated, Lost, Destroyed or Stolen Bonds ................ 36
Book-Entry System ................................... 37
Payment of Interest on Bonds; Interest Rights Preserved ...... 39
Paying Agent ........................................ 40
Payments Due on Non-Business Days ..................... 40
Cancellation ......................................... 40
[CLE VI REDEMPTION OF BONDS
SECTION 6.01
SECTION 6.02
SECTION 6.03
SECTION 6.04
SECTION 6.05
SECTION 6.06
SECTION 6.07
When Bonds Are Subject to Redemption .................. 41
Election to Redeem; Notice to Trustee .................... 41
Selection of Bonds to be Redeemed ...................... 41
Notice of Redemption ................................. 42
Deposit of Redemption Price ............................ 43
Bonds Payable on Redemption Date ...................... 43
Bonds Redeemed in Part ............................... 43
[CLE VII
APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01
SECTION 7.02
SECTION 7.03
Application of Proceeds of Bonds ........................ 44
Construction Fund; Disbursements ....................... 44
Completion of the Project .............................. 44
[CLE VIII
REVENUES
SECTION 8.01
SECTION 8.02
SECTION 8.03
Bond Fund and Letter of Credit Draws .................... 45
Bond Purchase Fund .................................. 46
Money for Bond Payments to be Held in Trust;
Repayment of Unclaimed Money ........................ 48
iCLE IX SECURITY FOR AND INVESTMENT OF SPECIAL FUNDS
SECTION 9.01
SECTION 9.02
SECTION 9.03
Security for Trust Estate Money ......................... 49
Investment of Special Funds ............................ 49
Arbitrage ........................................... 50
CLE X
REPRESENTATIONS AND COVENANTS
ii
ART
ART
ART
SECTION 10.01
SECTION 10.02
SECTION 10.03
SECTION 10.04
SECTION 10.05
SECTION 10.06
SECTION 10.07
SECTION 10.08
SECTION 10.09
SECTION 10.10
SECTION 10.11
General Representations ............................... 51
No Encumbrance on Trust Estate ......................... 52
General Covenants .................................... 52
The Loan Agreement .................................. 52
Inspection of Records ................................. 52
Advances by Trustee .................................. 52
Corporate Existence ................................... 53
Appointment of Successor Trustee ....................... 54
Tax-Exempt Status of Bonds ............................ 54
Performance by User .................................. 54
Further Assurances .................................... 54
iCLE XI THE PROJECT
iCLE XII
EVENTS OF DEFAULT AND REMEDIES
SECTION 12.01
SECTION 12.02
SECTION 12.03
SECTION 12.04
SECTION 12.05
SECTION 12.06
SECTION 12.07
SECTION 12.08
SECTION 12.09
SECTION 12.10
SECTION 12.11
SECTION 12.12
SECTION 12.13
SECTION 12.14
SECTION 12.15
SECTION 12.16
SECTION 12.17
SECTION 12.18
Events of Default ..................................... 56
Acceleration of Maturity; Rescission and Annulment;
Exercise of Remedies .................................. 57
Rights and Remedies of Trustee on Default under
Loan Agreement ...................................... 58
Rights and Remedies of Trustee in the Event of
Bankruptcy, and the Occurrence of Similar Events
Regarding, the User ................................... 59
Rights of User in Event of Default under Section 12.01 (8)
by Issuer under this Indenture ........................... 59
Subrogation Rights of Credit Obligor ..................... 59
Application of Money Collected ......................... 60
Trustee May Enforce Claims without Possession of Bonds .... 60
Limitation on Suits by Holders .......................... 61
Unconditional Right of Bondholders to Receive Principal,
Premium and Interest .................................. 61
Restoration of Positions ................................ 62
Rights and Remedies Cumulative ........................ 62
Delay or Omission Not Waiver .......................... 62
Control by Credit Obligor and Bondholders ................ 62
Waiver of Past Defaults ................................ 63
Waiver of Appraisement and Other Laws .................. 63
Suits to Protect the Trust Estate .......................... 64
Remedies Subject to Applicable Law ..................... 64
CLE XIII
THE TRUSTEE
SECTION 13.01 Certain Duties and Responsibilities ....................... 65
111
ART
AR~
ARl
ART]
SECTION 13.02
SECTION 13.03
SECTION 13.04
SECTION 13.05
SECTION 13.06
SECTION 13.07
SECTION 13.08
SECTION 13.09
SECTION 13.10
SECTION 13.11
Notice of Defaults .................................... 66
Certain Rights of Trustee ............................... 66
Not Responsible for Recitals ............................ 67
May Hold Bonds ..................................... 67
Money Held in Trust .................................. 67
Compensation and Reimbursement ....................... 67
Eligibility of Trustee; Appointment of Co-Trustee ........... 68
Resignation and Removal; Appointment of Successor ........ 69
Acceptance of Appointment by Successor .................. 70
Merger, Conversion, Consolidation or Succession to Business . 71
[CLE XIV
SUPPLEMENTAL INDENTURES, AMENDMENTS TO USER
AGREEMENT AND AMENDMENTS OF LETTER OF CREDIT
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
14.01
14.02
14.03
14.04
14.05
14.06
14.07
14.08
14.09
14.10
14.11
Supplemental Indentures Without Consent of Bondholders .... 72
Supplemental Indentures With Consent of Bondholders ....... 73
Amendments and Supplements to Loan Agreement
Without Consent of Bondholders ......................... 74
Amendments and Supplements to Loan Agreement With
Consent of Bondholders ................................ 75
Discretion of Trustee; Acts of Bondholders ................ 75
Consent of Credit Obligor .............................. 75
Execution of Supplemental Indentures .................... 75
Effect of Supplemental Indentures ........................ 76
Reference in Bonds to Supplemental Indentures ............. 76
Amendment of Letter of Credit .......................... 76
Opinion of Bond Counsel .............................. 76
iCLE XV
THE REMARKETING AGENT
AND THE TENDER AGENT
SECTION 15.01
SECTION 15.02
Remarketing Agent ................................... 77
Tender Agent ........................................ 78
CLE XVI
DEFEASANCE
SECTION 16.01
SECTION 16.02
Payment of Indebtedness; Satisfaction and
Discharge of Indenture ................................. 80
Trust for Payment of Debt Service ....................... 81
CLE XVII FEDERAL REBATE PAYMENTS
SECTION 17.01
SECTION 17.02
Computations and Payments of Rebate .................... 82
Accounting Records and Reports ......................... 82
iv
COt
SOU
Alab
provi
Inde~
Indu:
dated
a "pr,
Loan
Com'
Novi
to thc
time:
and
man
paya
deriv
irrev(
ofth~
the
(ii)
inter~
tende
and
colle,
alTlOr
guara
draw~
User
TRUST INDENTURE
THIS TRUST INDENTURE dated November 1, 2001 is entered into by ST. LUCIE
NTY, FLORIDA, a political subdivision of the State of Florida (the "Issuer"), and
THTRUST BANK, a state banking corporation with its principal office in Birmingham,
ana (the "Trustee").
Recitals
Pursuant to and for the purposes expressed in Chapter 159, Part II and other applicable
sions of law (the "Enabling Law") the Issuer has duly authorized, executed and delivered this
tture and has duly authorized the creation, execution and delivery of its Variable/Fixed Rate
'.trial Development Revenue Bonds (A-1 Roof Trusses Ltd., Company Project) Series 2001
the date of delivery and payment therefor (the "Bonds") pursuant to this Indenture to f'mance
>ject" within the meaning of the Enabling Law, as more particularly described herein and in the
Agreement hereinafter referenced (the "Project").
Simultaneously with the issuance of the Bonds the Issuer and A-1 Roof Trusses Ltd.,
>any, a Florida corporation not-for-profit (the "User") will enter into a Loan Agreement dated
mber 1, 2001, (the "Loan Agreement"), whereby the Issuer will loan the proceeds of the Bonds
User to finance the Project for the User and the User will make payments to the Issuer at such
and in such amounts as shall be sufficient to pay when due the principal of, premium (if any)
aterest on the Bonds and the purchase price of Bonds tendered for purchase pursuant to the
.atory or optional tender provisions of this Indenture.
The Bonds shall be limited obligations of the Issuer payable solely out of the amounts
>le by the User pursuant to the Loan Agreement and any other revenues, rentals or receipts
~d by the Issuer for the Bonds.
As additional security for the Bonds, the User will cause SouthTrust Bank to issue an
,cable letter of credit in favor of the Trustee in the amount of (i) the aggregate principal amount
, Bonds, to enable the Trustee to pay the principal amount of the Bonds when due and to pay
incipal portion of the purchase price of Bonds tendered (or deemed tendered) for purchase, plus
terest on the Bonds for a period of 56 days at the Maximum Rate, to enable the Trustee to pay
'.st on the Bonds when due and to pay the interest portion of the purchase price of Bonds
red (or deemed tendered) for purchase. The initial letter of credit to be delivered to the Trustee
ny substitute letter of credit delivered to the Trustee pursuant to this Indenture are herein
:tively referred to as the "Letter of Credit".
The Letter of Credit is initially issued pursuant to various credit and security agreements
g the Credit Obligor, the Issuer, the User, and persons related to the User, which evidence,
ntee or provide security for the obligations of the User to reimburse the Credit Obligor for
; under the Letter of Credit and the observance and performance of various agreements of the
related thereto (collectively the "Credit Documents").
Issu,
and
with
deli'~
to th
agre~
prov
All things have been done which are necessary to make the Bonds, when executed by the
:r and authenticated'and delivered by the Trustee hereunder, the valid obligations of the Issuer
o constitute this Indenture a valid trust indenture for the security of the Bonds, in accordance
the terms of the Bonds and this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is hereby covenanted and declared that all of the Bonds are to be authenticated and
ered and the property subject to this Indenture is to be held and applied by the Trustee, subject
covenants, conditions and trusts hereinafter set forth, and the Issuer does hereby covenant and
to and with the Trustee, for the equal and proportionate benefit (except as otherwise expressly
[ded herein) of all Holders (as hereinafter defined) of the Bonds, as follows:
[Remainder of Page Intentionally Left Blank]
2
expre
Singt
inclu~
them.
acco[
such
subd:
exect
to thi
COlliE
appli,
Secti
Trust
or COl
ofthi
the nc.
of vc
mean
Vada
and
each
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions. For all purposes of this Indenture, except as otherwise
ssly provided or unless the context otherwise requires:
(1) The terms defined in this Article shall have the meanings assigned in this ArtiCle.
ilar terms shall include the plural as well as the singular, and vice versa. Any pronoun shall
te both singular and plural and cover all genders.
(2) All accounting terms not otherwise defined herein have the meanings assigned to
and all computations herein provided for shall be made, in accordance with generally accepted
nting principles. All references herein to "generally accepted accounting principles" refer to
>rinciples as they exist at the date of application thereof.
(3) All references in this instrument to designated "Articles", "Sections" and other
visions are to the designated Articles, Sections and subdivisions of this instrument as originally
.ted.
(4) The terms "herein", "hereof.' and "hereunder" and other words of similar import refer
Indenture as a whole and not to any particular Article, Section or other subdivision.
Act, when used with respect to any Bondholder, has the meaning stated in Section 1.02.
Act of Bankruptcy shall mean the filing of a petition in bankruptcy (or the other
sncement ora bankruptcy or similar proceeding) by or against the User or the Issuer under any
:able bankruptcy, insolvency, reorganization, or similar law, now or hereafter in effect.
Administrative Expense Payments shall mean the amounts payable by the User pursuant to
>n 3.03 of the Loan Agreement, with respect to the fees and expenses of the Issuer and the
se.
Affiliate of any specified person shall mean any other person directly or indirectly controlling
~trolled by or under direct or indirect common control with such specified person. For purposes
definition, "control" when used with respect to any specified person means the power to direct
anagement and policies of such person, directly or indirectly, whether through the ownership
t~ng securities, by contract or otherwise; and the terms "controlling" and "controlled" have
ings correlative to the foregoing.
Authorized Denomination or Denominations means with respect to all Bonds (i) during any
ble Rate Period the amount of $100,000 and any integral multiple of $5,000 in excess thereof
ii) during any Fixed Rate Period the amount of $5,000 and any integral multiple thereof for
aaaturity.
Coun
Issue
Agre,
anya
ofthi
Bond
Secti
oblig
Issue
the
Bon
name
rede~
main
for ti
of be
the 1:
Prim
Authorized Issuer Representative shall mean the Chair or Vice-Chairman of the Board of
ty Commissioners of the Issuer or any other officer or agent of the Issuer authorized by the
: to act as "Authorized Issuer Representative" for purposes of this Indenture and the Loan
.~ment without further action by the Issuer.
Authorized User Representative shall mean any officer, director or employee of the User or
ent of the User authorized by the User to act as "Authorized User Representative" for purposes
Indenture and the Loan Agreement and identified as such in writing delivered to the Trustee.
Beneficial Owner shall have the meaning set forth in Section 5.03.
Bond shall mean any bond authenticated and delivered pursuant to this Indenture.
Bonds shall mean the $2,750,000 Variable/Fixed Rate Industrial Development Revenue
(A-1 Roof Trusses Ltd., Company Project) Series 2001 authorized to be issued pursuant to
)n 4.01.
Bond Counsel shall mean counsel with experience in matters relating to the issuance of
ations by or on behalf of states or local governmental units who shall be acceptable to the
r, the User and the Trustee.
Bond Fund shall mean the fund established pursuant to Section 8.01.
Bondholder when used with respect to any Bond shall mean (i) the Securities Depository or
ecurities Depository Nominee during the time either thereof is the registered owner of the
.s in accordance with the .Book Entry System and (ii) in all other cases, the person in whose
such Bond is registered in the Bond Register.
Bond Payment Date shall mean each date (including any date fixed for optional or mandatory
nption of Bonds) on which Debt Service is due and payable on the Bonds.
Bond Purchase Fund shall mean the fund established pursuant to Section 8.02.
Bond Register shall mean the register or registers for the registration and transfer of Bonds
rained by the Trustee pursuant to Section 5.01.
Bond Registrar shall mean the agent of the Issuer appointed as such pursuant to Section 5.01
~e purpose of registering Bonds and transfers of Bonds.
Book-Entry System means a book-entry only system of evidence of purchase and transfer
neficial ownership interests in the Bonds.
Business Day shall mean any day other than (1) a Saturday, a Sunday or (2) a day on which
ayment system of the Federal Reserve System is not operational, or (3) a day on which the
ipal Office of the Trustee, the principal office of the Remarketing Agent, or the office of the
4
Credi
close~
and fi
duly
Trea
1, 2t
instru
Perso
the L
enter~
have
agree
guara
of Cr,
Lette]
the is
Credi
reim}
to pa
Trust~
any C
respe.
or 0il
Gove
liquic
Credi
Obligor where drawings under the Letter of Credit are to be made is located are lawfully'
Clerk means the Clerk of the Circuit Court of the Nineteenth Judicial Circuit of Florida, in
~r St. Lucie County, Florida, ex-officio Clerk to the Board of County Commissioners, or any
Luthorized deputy thereof.
Code shall mean the Internal Revenue Code of 1986, as amended, and the applicable U.S.
ary Regulations thereunder.
Construction Fund shall mean the fund established pursuant to Section 7.02.
Conversion Date shall mean the first day of any Fixed Rate Period.
County shall mean St. Lucie County, Florida.
Credit Documents shall mean collectively that certain Credit Agreement dated November
31 between the Credit Obligor and the User and all agreements, documents, guaranties,
ments, notes, notices, and other writings executed and delivered by the User or any other
a which evidence, guarantee or provide security for the obligations of the User with respect to
stter of Credit, including any amendments or supplements to any thereof from time to time
rd into pursuant to the applicable provisions thereof, until a Substitute Letter of Credit shall
)een accepted by the Trustee, and thereafter "Credit Documents" shall mean collectively all
nents, documents, guaranties, instruments, notes, notices, and other writings which evidence,
atee or provide security for the obligations of the User with respect to such Substitute Letter
.~dit.
Credit Obligor shall mean SouthTrust Bank, and its successors and assigns, until a Substitute
of Credit shall have been accepted by the Trustee, and thereafter "Credit Obligor" shall mean
~uer of such Substitute Letter of Credit.
Credit Obligor Indebtedness shall mean all indebtedness or obligations of the User to the
Obligor under the Credit Documents including without limitation (i) the User's obligation to
~rse the Credit Obligor for draws made under the Letter of Credit and (ii) the User's obligation
fees and charges for the issuance and continuation of the Letter of Credit.
Credit Obligor Insolvency Date shall mean the date on which the Credit Obligor notifies the
:e in writing, or the date on which the Trustee is notified in writing by the Issuer, the User, or
-overnmental Authority, that (i) a receiver or conservator of the Credit Obligor or of any of the
:tive properties or assets thereof shall have been appointed by any Governmental Authority,
possession of the property and business of the Credit Obligor shall have been taken by any
nmental Authority, or (iii) the Credit Obligor shall have taken advantage of any reorganization,
.ation or dissolution law or statute, or (iv) if corporate action shall have been taken by the
t Obligor for the purpose of effecting any of the foregoing.
5
notic
Taxa
on th
OCCU]
perio
with
dilig~
com
pro~
"exis
Subs'
prep,
payrr
Ame]
the C
more
to the
bear
state~
that
Debt Service shall mean the principal of, premium (if any) and interest payable on the Bonds.
Defaulted Interest shall have the meaning stated in Section 5.04.
Determination ofTaxabili _ty shall mean, and shall occur when, (i) the Trustee receives written
e from the User, supported by an Opinion of Bond Counsel, that interest on the Bonds is
>le or (ii) the Internal Revenue Service shall issue a final determination in writing that interest
Bonds is Taxable; provided, that a Determination of Taxability shall not be deemed to have
'ed until and unless the User is afforded reasonable opportunity (at its sole expense and for a
:1 not to exceed 2 years) to pursue any judicial or administrative remedy available to the User
:espect to such determination and avails itself of such opportunity by appropriate proceedings
:ntly pursued.
Direct Participant or Direct Participants means securities brokers and dealers, banks, trust
,anies and clearing corporations which have access to the Book-Entry System.
Enabling Law shall mean Chapter 159, Part II, Florida Statutes and other applicable
sions of law.
Event of Default shall have the meaning stated in Article XII. An Event of Default shall
if an Event of Default shall have occurred and be continuing.
Existing Letter of Credit means the Letter of Credit held by the Trustee at the time a
:itute Letter of Credit is delivered to the Trustee.
Federal Securities shall mean any of the following so long as the same are not subject to
yment or redemption at the option of the issuer: direct obligations of, or obligations the timely
.ent of the principal of and interest on which is fully guaranteed by, the United States of
'ica.
Financing Documents shall mean collectively the Bonds, Indenture, the Loan Agreement,
redit Documents, the Remarketing Agreement and the Letter of Credit.
Fixed Rate shall mean the freed interest rate borne by the BOnds during a Fixed Rate Period,
)articularly described in Section 4.03.
Fixed Rate Interest Payment Date shall mean a date on which interest calculated according
Fixed Rate is payable on the Bonds, more particularly described in Section 4.01 (i).
Fixed Rate Period shall mean a period specified by the User during which the Bonds shall
nterest at a fixed rate per annum, more particularly described in Section 4.03.
Fully Paid (i) when used with respect to Indenture Indebtedness, shall have the meaning
in Section 16.01, and (ii) when used with respect to Credit Obligor Indebtedness, shall mean
11 indebtedness under the Credit Documents has been paid.
6
gover
court ~
Bond.
Indeb
be SUlC
heretc
Inden
charg~
under
indep,
in the
Affili
conn¢
attorn
functi
Secur
mean
transi
State
this h
the d;
mean
Governmental Authority shall mean any federal, state, county, municipal, or other
anent, domestic or foreign, and any agency, authority, department, commission, bureau, board,
)r other instrumentality thereof, having jurisdiction in the premises.
Holder when used with respect to any Bond shall mean the Bondholder with respect to such
Indebtedness shall mean collectively Indenture Indebtedness and Credit Obligor
:edness.
Indenture shall mean this instrument as originally executed or as it may from time to time
plemented, modified or amended by one or more indentures or other instruments supplemental
entered into pursuant to the applicable provisions hereof.
Indenture Indebtedness shall mean all indebtedness of the Issuer at the time secured by this
:ure, including without limitation (i) all Debt Service and (ii) all reasonable and proper fees,
;s, expenses, and disbursements of the Trustee for services performed and disbursements made
this Indenture.
Independent, when used with respect to any person, shall mean a person who (i) is in fact
rodent, (ii) does not have any direct financial interest or any material indirect financial interest
User, the Issuer, the Credit Obligor, or in any other obligor with respect to the Bonds or in any
ate of the User, the Issuer, the Credit Obligor, or of such other obligor, and (iii) is not
cted with the User, the Issuer, the Credit Obligor, or such other obligor as an officer, in-house
ey, employee, promoter, underwriter, trustee, partner, director or person performing similar
OhS.
Indirect Participant means a broker, dealer, bank or other financial institution for which the
ities Depository holds Bonds as securities depository through a Direct Participant.
Interest Payment Date, when used with respect to any installment of interest on a Bond,
the date specified in sUch Bond as the f~xed date on which such installment of interest is due
[yable.
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as amended, and the
ion roles of related legislation.
Issuer shall mean St. Lucie County, Florida, a political subdivision under the laws of the
)f Florida, until a successor shall have become such pursuant to the applicable provisions of
~denture and the Loan Agreement, and thereafter "Issuer" shall mean such successor.
Letter of Credit shall mean collectively the initial letters of credit delivered to the Trustee on
ite of delivery of the Bonds, and, unless the context or use indicates another or different
!ng of intent, any Substitute Letter of Credit accepted by the Trustee.
7
respe,
agree:
the Is
time
A Lc
contil
Expe:
parti¢
perio
speci
Lette
expr¢
opini
not b
to Se
/tn O'
all B
Letter of Representation shall mean and include (i) the blanket Letter of Representation with
:t to the Bonds by the Issuer to the Securities Depository and (ii) any other or subsequent
nent with respect to the Bonds among said parties by whatever name or identification.
Loan Agreement shall mean that certain Loan Agreement dated November 1,2001, between
;uer and the User including any amendments or supplements to such instnunent from time to
:ntered pursuant to the applicable provisions thereof.
Loan Agreement Default shall have the meaning stated in Article VI of the Loan Agreement.
m Agreement Default shall "exist" if a Loan Agreement Default shall have occurred and be
~uing.
Loan Agreement Payments shall mean the User Bond Payments and the Administrative
~se Payments.
Mandatory_ Tender shall mean a tender of Bonds required by Section 4.05.
Mandatory_ Tender Date shall mean a date on which any Mandatory Tender is required, more
ularly described in Section 4.05.
Maximum Rate shall mean the lesser of(i) the maximum rate permitted by law or (ii) for any
~ during which the Bonds are supported by a Letter of Credit, the maximum rate per annum,
fled therein, upon which there has been calculated the amount available to be drawn on such
: of Credit to pay interest on the Bonds.
Opinion of Counsel shall mean a written opinion of counsel who may (except as otherwise
:ssly provided in this Indenture) be counsel for the User or the Credit Obligor and which
>n shall not be unacceptable to the Trustee or the Issuer.
Opinion of Bond Counsel shall mean a written opinion of Bond Counsel, which opinion shall
unacceptable to the Trustee or the Issuer.
Optional Tender shall mean a tender of Bonds at the option of the Holder thereof pursuant
tion 4.04.
Optional Tender Date shall mean any date on which Bonds are to be purchased pursuant to
)tional Tender.
Outstanding when used with respect to Bonds shall mean, as of the date of determination,
)nds authenticated and delivered under this Indenture, except:
(1) Bonds canceled by the Trustee or delivered to the Trustee for cancellation,
(2) Bonds for the payment of which (either at maturity or upon prior redemption)
money in the necessary amount has been deposited with the Trustee in trust for the Holders
8
provi
Bond
waiw
Bond
deem
relyir
Bond
been
purpc
respe
respe
Debt
liabil:
anyg
Tend
Tend
pled~
Docu
any[
comr
this I~
year
its p~
of such Bonds, provided that, if such Bonds are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or'provision therefor satisfactory to the
Trustee has been made,
(3) Unsurrendered Bonds for the purchase of which money in the necessary
amount has been deposited in the Bond Purchase Fund and is held in trust for the Holders
of such Unsurrendered Bonds, and
(4) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered under this Indenture;
:led, however, that in determining whether the Holders of the requisite principal amount of
Outstanding have given any request, demand, authorization, direction, notice, consent or
hereunder, Bonds owned by the User, the Issuer or any other obligor with respect to the
or any Affiliate of the User, the Issuer or of such other obligor shall be disregarded and
d not to be Outstanding, except that, in determining whether the Trustee shall be protected in
.g upon any such request, demand, authorization, direction, notice, consent or waiver, only
which the Trustee knows to be so owned shall be disregarded. Bonds so owned which have
dedged in good faith (including Pledged Bonds) may be regarded as Outstanding for such
ses if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with
:t to such Bonds and that the pledgee is not the User, the Issuer or any other obligor with
:t to the Bonds or any Affiliate of the Issuer, the User or of such other obligor.
Paying Agent shall mean the Trustee and any other person authorized by the Issuer to pay
Service on any Bonds on behalf of the Issuer.
Person shall include any individual, corporation, general or limited partnership, limited
ty company or partnership, joint venture, association, trust, unincorporated organization and
ovemment or any agency or political subdivision thereof.
Pledged Bonds shall mean Bonds purchased pursuant to the Optional Tender or Mandatory
;r provisions of this Indenture with money drawn under the Letter of Credit and held by the
:r Agent or Trustee for the benefit of, or registered in the name of, the Credit Obligor, as
ee, pursuant to Section 4.06 of this Indenture and pursuant to any provision of the Credit
ments with respect thereto.
Post-Default Rate shall mean (i) when used with respect to any payment of Debt Service on
.ond, the rate specified in such Bond for overdue installments of Debt Service on such Bond,
uted as provided in such Bond, and (ii) when used with respect to all other payments due under
~denture or the Loan Agreement, the rate of 8% per annum (computed on the basis of a 360-day
~ith 12 months of 30 days each).
Principal Office of the Tender Agent shall mean the office where the Tender Agent maintains
.ncipal office.
9
corp~
Trus
Principal Office of the Trustee shall mean the office where the Trustee maintains its principal
)rate trust office in Birmingham, Alabama, or such other Office as shall be designated by the
:ee by written notice to the Issuer, the User, the Credit Obligor and the Holders of the Bonds.
Project Revenues shall have the meaning ascribed in Granting Clause I of Article II.
Qualified Investments shall mean:
(1) Federal Securities,
(2) an interest in any trust or fund that invests solely in obligations described in
(1) or (4) of this def'mition (including without limitation any fund or funds managed by the
Trustee or any affiliate thereof or person related thereto),
(3) a certificate of deposit or time deposit issued by (i) the Trustee, or (ii) any
other bank organized under the laws of the United States of America or any state thereof with
capital, surplus and undivided profits of not less than $50,000,000, provided in each case
such deposit is insured by the Federal Deposit Insurance Corporation, or such deposit is
collaterally secured by the issuing bank by pledging Federal Securities having a market value
(exclusive of accrued interest) not less than the face amount of such certificate less the
amount of such deposit insured by the Federal Deposit Insurance Corporation, and
(4) a repurchase agreement with respect to Federal Securities, provided that the
Federal Securities subject to such repurchase agreement are held by or under the control of
the Trustee free and clear of third-party liens, and
(5) tax-exempt money market funds which are qualified regulated investment
companies within the meaning of IRS Notice 87-22, dated May 25, 1987, and which meet
the other requirements of IRS Notice 87-22 and any subsequent regulations necessary to
exempt investments in such funds from the definition of investment property under Section
148 of the Internal Revenue Code whose assets are solely invested in obligations of the two
(2) highest rating categories by the Rating Agency or Agencies then maintaining a rating on
the Bonds or if the Bonds are not rated, by the Rating Agency or Agencies then maintaining
a rating on the Credit Obligor, and
(6) prime commercial paper or finance company paper which is rated not less
than prime one or the equivalent thereof by Moody's Investors Service, Inc., or Standard and
Poor's Corporation, or their successors, and
(7) any other investment permitted by law and consented to in writing by the
Credit Obligor.
Rating Agency shall mean any nationally recognized securities rating agency.
10
the &
Paym
Rate
Fixed
such l
Secti,
appli,
SUCCe
Nove
comF
and a
Secul
deliw
Book
and a
fked
expir
for al
4.10.
there
user,
user
fedei
becat
tax o~
Regular Record Date shall mean (i) with respect to any Variable Rate Interest Payment Date,
.y immediately prior to such Interest Payment Date, (ii) with respect to any Fixed Rate Interest
ent Date for a Fixed Rate Period of less than 6 months, the day immediately prior to such Fixed
[nterest Payment Date, and (iii) with respect to any Fixed Rate Interest Payment Date for a
Rate Period of 6 months or more, the 15th day (whether or not a Business Day) next preceding
?ixed Rate Interest Payment Date.
Remarketing Agent shall mean the person appointed as "Remarketing Agent" pursuant to
)n 15.01, until a successor Remarketing Agent shall have become such pursuant to the
:able provisions of this Indenture, and thereafter "Remarketing Agent" shall mean such
ssor.
Remarketing Agreement shall mean that certain Remarketing Agreement dated as of
mber 1, 2001 between the User and the Remarketing Agent.
Securities Depository_ means The Depository Trust Company, a limited purpose trust
any organized under the laws of the State of New York, and the successors and assigns thereof,
ny substitute securities depository therefor that maintains a Book-Entry System for the Bonds.
Securities Depository_ Nominee means the Securities Depository or the nominee of such
ities Depository in whose name there shall be registered on the Bond Register the Bonds to be
',red to such Securities Depository during a period in which the Bonds are held pursuant to the
-Entry System.
Special Funds shall mean the Bond Fund, the Bond Purchase Fund, the Construction Fund,
ay other fund or account established pursuant to this Indenture.
Special Record Date for the payment of any Defaulted Interest on the Bonds means a date
by the Trustee pursuant to Section 5.04.
Stated Expiration Date shall mean the date on which the Letter of Credit will, by its terms,
unless the Letter of Credit is terminated on an earlier date in accordance with its terms.
Substitute Letter of Credit shall mean a letter of credit delivered to the Tmstee in substitution
Existing Letter of Credit then held by the Trustee, as more particularly described in Section
Taxable shall mean that interest on the Bonds is includable in the gross income of any Holder
f, other than on any Bond during any period that it is held by a person who is a substantial
.fthe facilities f'manced with the proceeds of the Bonds, or a related person of such a substantial
'all within the meaning Section 147(a) of the Internal Revenue Code) in the computation of
~1 income tax liability for any reason. Interest on the Bonds shall not be deemed "Taxable"
.se interest is includable in any calculation of income for purposes of an alternative minimum
any other type of taxation other than the regular federal tax imposed on income.
11
until
Indet
may 1
the 0
Inder
a suc~
and tl
whicl
but ,a
the F.
purp(
ofth~
mean
of th
Tend
Perio
Vari~
Rate.
prov
evide
Tender Agent shall mean any person appointed as "Tender Agent" pursuant to Section 15.02,
successor Tender Agent shall have become such pursuant to the applicable provisions of this
ture, and thereafter "Tender Agent" shall mean such successor.
Tender Date shall mean an Optional Tender Date or a Mandatory Tender Date, as the case
Tendered Bonds shall mean Bonds tendered (or deemed tendered) for purchase pursuant to
)tional Tender or Mandatory Tender provisions of this Indenture.
Trust Estate shall have the meaning stated in the habendum to the granting clauses to this
.'ute.
Tmstee shall mean SouthTmst Bank, with its principal office in Birmingham, Alabama, until
:essor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
~ereafter "Trustee" shall mean such successor.
Unsurrendered Bond shall mean Bonds (or portions thereof in authorized denominations)
are deemed purchased pursuant to Optional Tender or Mandatory Tender provisions hereof,
hich have not been presented to the Trustee by the Holders thereof; provided, any Bond which
rider thereof elects to retain under Section 4.05(c) shall not be an Unsurrendered Bond for
;es of this Indenture.
User shall mean A-1 Roof Trusses Ltd., Company a corporation organized under the laws
State of Florida, and the respective successors and assigns thereof, and thereafter "User" shall
such persons.
User Bond Payments shall mean the amounts payable by the User pursuant to Section 3.02
Loan Agreement, with respect to Debt Service on the Bonds and the purchase prices of
~red Bonds.
Variable Rate shall mean the variable interest rate borne by the Bonds during a Variable Rate
d, more particularly described in Section 4.02.
Variable Rate Interest Payment Date shall mean a date on which interest calculated at the
.ble Rate is payable on the Bonds, more particularly.described in Section 4.01 (i).
Variable Rate Period shall mean a period during which the Bonds bear interest at the Variable
more particularly described in Section 4.02.
SECTION 1.02 Acts of Bondholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
ded by this Indenture to be given, made or taken by Bondholders may be embodied in and
nced by one or more substantially concurrent instruments of substantially similar tenor signed
12
by sr
other
instrt
the U
are lq
instn
or of
cone
the n
may
publi
indiv
such
comI
suffi~
by th
Bom
anytl
notal
of,
opin!
one
sucl:.
matt~
be bl
COU~
certi
opirr
matt,
or al
matt,
or in
with
ch Bondholders in person or by an agent duly appqinted in writing; and, except as herein
wise expressly provided, such action Shall become effective when such instrument or
ments are delivered to the Trustee, and, where it is hereby expressly required, to the Issuer or
ser. Such instrument or instruments (and the action embodied therein and evidenced thereby)
erein sometimes referred to as the "Act" of the Bondholders signing such instrument or
ments. Proof of execution of any such instrument or of a writing appointing any such agent,
the holding by any person of Bonds, shall be sufficient for any purpose of this Indenture and
usive in favor of the Issuer and (subject to Section 13.01) in favor of the Trustee, if made in
[anner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or writing
be proved by the affidavit of a witness of such execution or by the certificate of any notary
c or other officers authorized by law to take acknowledgments of deeds, certifying that the
idual signing such instrument or writing acknowledged to him the execution thereof. Whenever
execution is by an officer of a corporation or a member of a partnership, or limited liability
lany or partnership, on behalf of any thereof, such certificate or affidavit shall also constitute
:ient proof of the authority thereof.
(c) The ownership of Bonds shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action
e Holder of any Bond shall bind every future Holder of the same Bond and the Holder of every
issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of
ing done or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not
ion of such action is made upon such Bond.
SECTION 1.03 Form and Contents of Documents Delivered to Trustee.
(a) Whenever several matters are required to be certified by, or covered by an opinion
~y specified person, it is not necessary that all such matters be certified by, or covered by the
on of, only one such person, or that they be so certified or covered by only one document, but
uch person may certify or give an opinion with respect to some matters and one or more other
persons as to other matters, and any such person may certify or give an opinion as to such
:rs in one or several documents.
(b) Any certificate or opinion of an officer of the User or of an officer of the issuer may
~sed, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by,
sel, unless such person knows, or in the exercise of reasonable care should know, that the
5cate or opinion or representations with respect to the matters upon which his certificate or
on is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual
:rs, upon a certificate or opinion of, or representations by, an Authorized User Representative
t Authorized Issuer Representative stating that the information with respect to such factual
:rs is in the possession of the Issuer or the User, as the case may be, unless such counsel knows,
the exercise of reasonable care should know, that the certificate or opinion or representations
respect to such matters are erroneous.
13
reque:
may,
to the
the gr
hereo:
at the
in suc
such
unde~
Trust{
Repre
Inden
that ir
excel:
docm
applk
proviz
headil
constl
(e) Whenever any person is required to make, give or execute two or more applications,
;ts, consents, certificates, statements, opinions or other instruments under this' Indenture, they
>ut need not, be consolidated and form one instrument.
(d) Wherever in this Indenture, in connection with any application or certificate or report
Trustee, it is provided that the Issuer or the User shall deliver any document as a condition of
rating of such application, or as evidence of the Issuer's or User's compliance with any term
it is intended that the troth and accuracy, at the time of the granting of such application or
ffective date of such certificate or report (as the case may be), of the facts and opinions stated
document shall in such case be conditions precedent to the right of the Issuer or User to have
~pplication granted or to the sufficiency of such certificate or report.
SECTION 1.04 COmpliance Certificates and Opinions.
(a) Upon any application or request by the Issuer or User to the Trustee to take any action
any provision of this Indenture, the Issuer or the User, as the case may be, shall furnish to the
~e a certificate signed by an Authorized Issuer Representative or Authorized User
sentative, as the case may be, stating that all conditions precedent, if any, provided for in this
.ure relating to the proposed action have been complied with and an Opinion of Counsel stating
· the opinion of such counsel all such conditions precedent, if any, have been complied with,
that in the case of any such application or request as to which the furnishing of such
ents is specifically required by any provision of this Indenture relating to such particular
ation or request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a condition or covenant
led for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion has read
such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion
are based;
(3) a statement that, in the opinion of each such individual, he or she has made
such examination or investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.05 Effect of Headings and Table of Contents. The Article and Section
~gs herein and in the Table of Contents are for convenience only and shall not affect the
uction hereof.
14
a dat,
Inder
shall
provi
with
SECTION 1.06 Date of Indenture. The date of this Indenture is intended as and for
.~ for the convenient identification of this Indenture and is not intended to indicate that this
lure was executed and delivered on said date.
SECTION 1.07 Enforceability_. If any provision in this Indenture or in the Bonds
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
sions shall not in any way be affected or impaired thereby.
SECTION 1.08 Governin~ Law. This Indenture shall be construed in accordance
and governed by the laws of the State of Florida.
counl
toge/
Bond
furni
User,
as ott
an in,
at the
addre
to the
for tk
Issu~
Trus
Reml
SECTION 1.09 Counterparts. This instrument may be executed in any number of
erparts, each of which so executed shall be deemed an original, but all such counterparts shall
her constitute but one and the same instrument.
SECTION 1.10 Notices.
(a) Any request, demand, authorization, direction, notice, consent, waiver or Act of
holders or other document provided or permitted by this Indenture to be made upon, given or
;hed to, or filed with, the Issuer, the Trustee, the Tender Agent, the Remarketing Agent, the
or the Credit Obligor shall be sufficient for every purpose hereunder if in writing and (except
terwise provided in this Indenture) (i) delivered personally to the party or, if such party is not
iividual, to an officer or other legal representative of the party to whom the same is directed,
address specified below, (ii) mailed by first-class, registered or certified mail, postage prepaid,
ssed as specified below, or (iii) sent by telex or telecopy or other facsimile transmission system
number specified below. The hand delivery and mailing address and telex or telecopy number
e parties are as follows:
r:
~ee:
trketing Agent:
The Office of the County Attomey
St. Lucie County, Florida
2300 Virginia Avenue
3rd Floor Administration Annex
Fort Pierce, Florida 34982
Telephone: 561/462-1441
Telecopier: 561/462-1440
SouthTrust Bank
Corporate Trust Department
110 Office Park Drive, Second Floor (35223)
P.O. Box 2554 (35290)
Birmingham, Alabama
Telephone: 205/254-5472
Telecopier: 205/254-4180
SouthTrust Securities, Inc.
15
User
Crei
or ot]
the 1:
repre
mail,
prep~
such
mail¢
Bond
and r~
such
suffi(
notic~
notic,
Waiv
condi
112 North 20th Street; 7th Floor
Birmingham, Alabama 35203
Telephone: 205/254-5884
Telecopier: 205/254-4989
A- 1 Roof Trusses Ltd., Company
1415 South Federal Highway
Boynton Beach, Florida 33425
Telephone: 561-509-6000
Telecopier: 561-509-5999
it Obligor:
SouthTrust Bank
1700 Palm Beach Lakes Boulevard
Palm Beach, FL 33401
Telephone: 561/712-1010
Telecopier: 561/712-9633
(b) Any of such parties may change the address or number for receiving any such notice
xer document by giving notice of the change to the other parties named in this Section.
(c) Any notice or other document shall be deemed delivered when actually received by
arty to whom directed (or, if such party is not an individual, to an officer or other legal
5entative of the party) at the address or number specified pursuant to this Section, or, if sent by
3 days after such notice or document is deposited in the United States mail, first class postage
id, addressed as provided above.
SECTION 1.11 Notices to Bondholders; Waiver.
(a) Where this Indenture provides for publication of notice to Bondholders of any event,
aotice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and
d, first-class postage prepaid, or sent by facsimile transmission system, to each Holder of such
s, at the address of such Holder as it appears in the Bond Register, not later than the latest date,
ot earlier than the earliest date, prescribed for the first publication of such notice.
(b) In any case where notice to Bondholders is given by mail, neither the failure to mail
notice, nor any defect in any notice so mailed, to any particular Bondholder shall affect the
:iency of such notice with respect to other Bondholders. Where this Indenture provides for
in any manner, such notice may be waived in writing by the person entitled to receive such
either before or after the event, and such waiver shall be the equivalent of such notice.
ers of notice by Bondholders shall be filed with the Trustee, but such filing shall not be a
tion precedent to the validity of any action taken in reliance upon such waiver.
16
Obli
Cred
shall
cons
Sect:
matt
requ
each
the
Inde
term
corn
prin~
rede:
Issm
Inde
expr
here
any
SECTION 1.12 Concerning the Credit Obligor and the Letter of Credit.
(a) No consent or direction or other exercise of discretion or control by the Credit
;or hereunder shall be required or permitted if the Letter of Credit is no longer in effect or if the
it Obligor has dishonored a draw under the Letter of Credit or a Credit Obligor Insolvency Date
have occurred.
(b) Nothing contained in this Indenture shall be construed to require or permit any
~nt or approval by the Credit Obligor for the performance by the Trustee of its obligations under
ons 8.01, 8.02 or 12.02, with respect to draws under the Letter of Credit and acceleration of the
.rity of the Bonds, except where such consent or approval of the Credit Obligor is expressly
[red or permitted in any of such Sections.
SECTION 1.13 Notice to Rating Agencies. The Trustee shall promptly furnish to
Rating Agency that maintains a rating with respect to the Bonds a notice of (i) any change of
?rustee, the Remarketing Agent or the Tender Agent, (ii) any change or amendment of the
ature, Loan Agreement, or the Letter of Credit, (iii) the expiration or renewal or extension or
ination of the term of the Letter of Credit, or substitution of the Letter of Credit, (iv) the
ersion of the interest rate on the Bonds to a Fixed Rate, (v) the acceleration of payment of
:ipal and interest on the Bonds pursuant to Section 12.02, (vi) the payment in full, or the
nption prior to maturity, of all Bonds Outstanding hereunder, or (vii) receipt of notice of the
:r's intent to establish a trust for the payment of the Bonds in accordance with Section 16.02.
SECTION 1.14 Successors and Assigns. All covenants and agreements in this
ature by the Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 1.15 Benefits of Indenture. Nothing in this Indenture or in the Bonds,
.~ss or implied, shall give to any person, other than the parties hereto and their successors
ruder, the Holders of the Outstanding Bonds, the User and the Credit Obligor, any benefit or
egal or equitable right, remedy or claim under this Indenture.
[Remainder of Page Intentionally Left Blank]
17
and tl
purch
hereb
pledg
conti~
and p
Bond
to in(
Issue:
benet
in thi
Agre~
Trust
Fund:
and o
by de
by th
provi
or ar
anya
prop¢
ARTICLE II
GRANTING CLAUSES
To secure the payment of Debt Service on the Bonds and all other Indenture Indebtedness
te performance of the covenants contained herein and in the Bonds, and to declare the terms
~nditions on which the Bonds are secured, and in consideration of the premises and of the
ase of the Bonds by the Holders thereof, the Issuer by these presents does, without recourse,
5' grant, bargain, sell, alien, remise, release, convey, assign, transfer, mortgage, hypothecate,
e, set over and confirm unto the Trustee, and grant to the Trustee security title to and a
~uing security interest in, all and singular, the following described property and all proceeds
roducts thereof:
All revenues derived by the Issuer from the Project, including without limitation all User
Payments derived from the Loan Agreement (collectively the "Project Revenues").
II.
All right, title and interest of the Issuer in and to the Loan Agreement (except for the right
[emnification, payment of certain Issuer fees and reimbursement of expenses granted to the
· pursuant to the Loan Agreement) together with all powers, privileges, options and other
its of the Issuer contained in the Loan Agreement; provided, however, that nothing contained
s clause shall impair, diminish or otherwise affect the Issuer's obligations under the Loan
;ment or, except as otherwise provided in this Indenture, impose any such obligations on the
III.
Money and investments from time to time on deposit in, or forming a part of, the Special
;, subject to the provisions of this Indenture permitting the application thereof for the purposes
n the terms and conditions set forth herein.
IV.
Any and all property of ev.ery kind or deScription which may, from time to time hereafter,
livery or by writing of any kind, be subjected to the lien of this Indenture as additional security
~ Issuer or anyone on its part or with it.s written consent, or which pursuant to any of the
;ions hereof or of the Loan Agreement may come intO the possession or control of the Trustee
~ceiver appointed pursuant to this Indenture; and the Trustee is hereby authorized to receive
~d all such property as and for additional security for the Bonds and to hold and apply all such
rty subject to the terms hereof;
18
descl
granl
hypo
be, t{
bein
of ti
such
Cred
of B~
here(
TO HAVE AND TO HOLD all said property, rights and privileges of every kind and
iption, real, personal or mixed, hereby and hereafter (by supplemental indenture or otherwise)
ed, bargained, sold, aliened, remised, released, conveyed, assigned, transferred, mortgaged,
~hecated, pledged, set over or confirmed as aforesaid, or intended, agreed or covenanted so to
~gether with all the appurtenances thereto appertaining (said property, rights and privileges
herein called the "Trust Estate") unto the Trustee and its successors and assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and security
Holders from time to time of the Bonds without any priority of any such Bond over any other
3ond;
PROVIDED, HOWEVER, that money collected by the Trustee pursuant to the Letter of
t shall be used solely for the purpose of paying Debt Service on the Bonds or the purchase price
~nds tendered for purchase pursuant to the Optional Tender or Mandatory Tender provisions
,f.
[Remainder of Page Intentionally Left Blank]
19
of Ge
shall
shall
Bond:
again:
agree~
or rev
this S~
and a
oblig;
as her
recou
claim
incm
eithe:
by the
Inden
liabili
of the
under
impli{
ARTICLE III
LIMITED LIABILITY
SECTION 3.01
aeral Liability_.
Source of Payment of Bonds and Other Obligations; Disclaimer
(a) The Debt Service on the Bonds and any other payments required by this Indenture
ie payable solely out of the Project Revenues and funds received from the Letter of Credit and
>e secured by the Trust Estate. The covenants and agreements contained herein and in the
: do not and shall never constitute or give rise to a personal or pecuniary liability or charge
'.t the general credit of the Issuer and in the event of a breach of any such covenant or
aent, no personal or pecuniary liability or charge payable directly or indirectly from the assets
:nues of the Issuer (other than the Trust Estate) shall arise therefrom. Nothing contained in
~'ction, however, shall relieve the Issuer from the observance and performance of the covenants
reements on its part contained herein or in the Bonds.
(b) The Bonds and any other payments required by this Indenture do not constitute an
:ion of the State of Florida or of any political subdivision thereof other than the Issuer (limited
:in provided).
SECTION 3.02 Officers, Directors, etc. Exempt from Individual Liability_. No
:se under or upon any covenant or agreement of this Indenture, or of any Bonds, or for any
based thereon or otherwise in respect thereof, shall be had against any past, present or future
,orator, officer, employee, attorney or member of the Issuer, or of any successor corporation,
directly or through the Issuer, whether by virtue of any constitution, statute or rule of law, or
enforcement of any assessment or penalty or otherwise; it being expressly understood that this
Iure and the Bonds issued hereunder are solely corporate obligations, and that no personal
.y whatever shall attach to, or is or shall be incurred by, any incorporator, officer or member
Issuer or any successor corporation, or any of them, because of the issuance of the Bonds, or
or by reason of the covenants or agreements contained in this Indenture or in any Bonds or
',d therefrom.
[Remainder of Page Intentionally Left Blank]
20
of B(
Indus
(hereJ
Deno:
omiss
requi~
admi~
in ac,
actor
intere
at the
in Sec
ofle:
elaps
comp
enforl
ARTICLE IV
THEBONDS
SECTION 4.01 General Terms.
(a) There is hereby authorized to be issued under and secured by this Indenture a series
~nds in aggregate principal amount of $2,750,000 and designated "Variable/Fixed Rate
Kal Development Revenue Bonds (A-1 Roof Trusses Ltd., Company Project), Series 200lA"
n the "Bonds"). No additional bonds may be issued hereunder.
(b) The Bonds shall be issued as registered bonds, without coupons, in Authorized
ninations in substantially the form of Exhibit A to this Indenture, with appropriate variations,
ions, insertions, notations, legends or endorsements required by law or usage or permitted or
'ed by this Indenture. The Bonds shall be numbered separately from 1 upward.
(c) (1) The Bonds shall be initially issued pursuant, to the Book Entry System
tistered by the Securities Depository.
(2) During any period in which a Book-Entry System is in effect for the Bonds
:ordance herewith, the provisions of this Indenture and the Bonds shall be construed in
lance with the Letter of Representation and to give full effect to such Book-Entry System.
(d) The Bonds shall mature on May 1, 2023 subject to the provisions of Section 6.01(b).
(e) The Bonds shall be dated as of the date of initial delivery thereof and shall bear
st from such date, or the most recent date to which interest has been paid or duly provided for,
applicable rate per annum set forth in this Article.
(f) The Bonds shall bear interest at the Variable Rate or at the Fixed Rate, as provided
:tions 4.02 and 4.03.
(g) Interest at the Variable Rate and interest at a Fixed Rate for each Fixed Rate Period
;than 6 months shall be computed on the basis of a 365 day year for the actual number of days
,d. Interest at the Fixed Rate for each Fixed Rate Period of 6 months or more shall be
~ted on the basis ora 360-day year with 12 months of 30 days each.
(h) Interest shall be payable on overdue principal on the Bonds and (to the extent legally
,'able) on any overdue installment of interest on the Bonds at the Post-Default Rate.
(i) Interest shall be payable in arrears on the following dates:
(1) with respect to interest payable at the Variable Rate, on (i) the first day of
each month (first interest payment on December 1, 2001) of each year during the Variable
Rate Period and (ii) the day immediately following any Variable Rate Period;
21
ofpri~
be pa/
as pro
any) ~
Bond.
Secur
for th
disbtn
Partic
paym
purch
shall 1
extenl
not be
any E
main'
Partk
paym,
maile~
therec
be dee
is not
ofpri~
paym~
Paym~
the of.
the w~
Truste
Holde
paym~
contai
upon
(2) with respect to interest payable at a Fixed Rate for any Fixed Rate Period of
less than 6 months, on the day immediately following such Fixed Rate Period; and
(3) with respect to interest payable at a Fixed Rate for any Fixed Rate Period of
6 months or more, (i) on the first day of the calendar month that is 6 months after the first
day of the calendar month in which such Fixed Rate Period began, (ii) semiannually
thereafter, and (iii) on the day immediately following such Fixed Rate Period.
(j) During a period in which the Book-Entry System is in effect for the Bonds, payments
~cipal, purchase price, interest, and redemption premium, if any, with respect to the Bonds will
d by the Trustee directly to the Securities Depository, or the Securities Depository Nominee,
vided in the Letter of Representation; provided, that payment of the principal of (premium, if
nd interest on such Bonds due at final maturity or upon redemption in whole of any of such
; shall be made only upon surrender thereof at the principal office of the Trustee. The
.ties Depository and the Direct Participants and the Indirect Participants shall be responsible
disbursement of such payments to the Beneficial Owners. The Securities Depository will
~e such payments to Direct Participants and such payments will in turn be remitted by Direct
ipants and, where appropriate, Indirect Participants, to the Beneficial Owners. All such
rots to the Securities Depository or the Securities Depository Nominee of principal of,
~se price of, premium (if any) and interest on the Bonds on behalf of the Issuer or the Trustee
~e valid and effectual to satisfy and discharge the liability of the Issuer and the Trustee to the
of the amounts so paid, and the Issuer, the User, the Remarketing Agent and the Trustee shall
responsible or liable for payment to any Beneficial Owner by the Securities Depository or by
irect Participant or by any Indirect Participant, or for sending transaction statements or for
aining, supervising or reviewing records maintained by the Securities Depository or Direct
ipants or Indirect Direct Participants.
(k) During a period in which the Book Entry System is not in effect for the Bonds,
,'nt of interest on the Bonds due on any Interest Payment Date shall be made by check or draft
l on the Interest Payment Date by the Trustee to the Bondholder or Bondholders at the address
fappearing in the Bond Register on the Regular Record Date. Such payments of interest shall
med timely made if so mailed on the Interest Payment Date (or, if such Interest Payment Date
a Business Day, on the Business Day next following such Interest Payment Date). Payment
tcipal of (and premium, if any, on) the Bonds upon maturity, redemption or acceleration and
:nt of accrued interest on the Bonds due upon redemption on any date other than an Interest
mt Date shall be made only upon surrender thereof at the Principal Office of the Trustee or at
5ce of any other Paying Agent therefor. The foregoing to the contrary notwithstanding, upon
itten request of the Holder of any Bond in a principal amount of not less than $100,000, the
e will make payment of the Debt Service on such Bond by wire transfer to an account of such
: maintained at a bank in the continental United States or by any other method providing for
:nt in same-day funds that is acceptable to the Trustee, provided that such written request
ns adequate instructions for the method of payment and final payment of principal is made
~uch surrender of the Bond or Bonds as provided hereinabove.
22
Fixed
becm
earlie
Rem~
of th~
Perio
The ~
is the
Perio
in eft
Peri~
any
the n~
Varia
the 1~
Varia
lowe:
ofth~
into a
howe
deter
deter
confi:
concl
the U
to thc
OpinJ
or esl
case
circm
a Fix~
SECTION 4.02 Variable Rate.
(a) The Bonds shall initially bear interest at a Variable Rate. Upon the expiration of any
Rate Period for the Bonds, such Bonds shall bear interest at the Variable Rate (unless the day
diately following such Fixed Rate Period is a Conversion Date), and once the Variable Rate
nes effective, it shall remain in effect until and including the day immediately prior to the
of (i) a Conversion Date or (ii) the final maturity of the Bonds.
(b) The Variable Rate shall be a fluctuating rate per annum determined by the
· keting Agent on the first day of each Variable Rate Period (beginning upon initial issuance
,~ Bonds and following a Fixed Rate Period) and on each Thursday during a Variable Rate
d (or, if such Thursday is not a Business Day, on the immediately preceding Business Day).
rariable Rate so determined shall become effective (i) on the date of determination, if such date
first day of the Variable Rate Period, or (ii) if such date is not the first day of a Variable Rate
/1, on the day immediately following the date of determination, and once effective shall remain
.~ct until and including the next determination date or, if sooner, the end of such Variable Rate
d; provided, however, that if the Remarketing Agent fails to determine the Variable Rate on
~ch determination date, the last Variable Rate in effect shall remain in effect until and including
,~xt determination date, and provided further, if the Remarketing Agent fails to determine the
ble Rate on two consecutive determination dates therefor, the Variable Rate shall be equal to
[aximum Rate until such determination date as the Remarketing Agent shall determine the
ble Rate in accordance with the terms hereof.
(c) The Variable Rate shall be determined by the Remarketing Agent and shall be the
,t interest rate that would, in the opinion of the Remarketing Agent, result in the market value
Bonds being 100% of the principal amount thereof on the date of such determination, taking
ccount relevant market conditions and credit rating factors as they exist on such date; provided,
ver, that the Variable Rate may never exceed the Maximum Rate. On each Variable Rate
nination date the Remarketing Agent shall deliver written notice of the Variable Rate so
nined to the Trustee and the User. Upon the request of any Bondholder, the Trustee shall
nn (by telephone and in writing, if so requested) the Variable Rate then in effect.
(d) The Variable Rate determined from time to time by the Remarketing Agent shall be
usive and binding on the Issuer, the User, the Trustee and the Bondholders.
SECTION 4.03 Fixed Rate.
(a) The Bonds shall bear interest at a Fixed Rate during each period of time specified by
ser as provided below in this Section; provided that for each Fixed Rate Period with respect
Bonds there has first been delivered to the Trustee, the User and the Remarketing Agent an
on of Bond Counsel to the effect that converting the interest rate on the Bonds to a Fixed Rate,
ablishing a new Fixed Rate Period immediately following another Fixed Rate Period, as the
may be, is lawful and will not, whether solely or in conjunction with any other fact or
nstance, cause the interest on such Bonds to be or to become Taxable. Upon the expiration of
.~d Rate Period, interest on the Bonds will automatically convert to a Variable Rate unless and
23
until
desi
entire
Agen'
the in
than z
last d~
a Fix~
follo~
prior
Fixei
beym
copy
the t~
a.m.
Cony
Rem~
lowe!
of the
into
assm
may
Fixec
if(i)
Rate
ae User elects to have the interest rate converted to another Fixed Rate for a Fixed Rate Period
rated by the User.
Co) The Fixed Rate shall be a fixed rate per annum which shall be applicable during the
Fixed Rate Period and for each Fixed Rate Period shall be determined by the Remarketing
as provided below in this Section.
(c) The User may elect that the Bonds bear interest at a Fixed Rate for any period after
rial Variable Rate Period by delivery of written notice of such election to the Trustee not less
5 days prior to the proposed Conversion Date. Such notice shall specify the first day and the
ty of the Fixed Rate Period elected; provided, however, that (i) if such election is made during
d Rate Period, the specified Conversion Date may not be sooner than the first day immediately
ting the Fixed Rate Period then in effect, (ii) the Conversion Date may not be less than 45 days
:o the Stated Expiration Date of the Letter of Credit (if any) then in effect, (iii) the designated
Rate Period may not be less than 15 days, and (iv) the Fixed Rate Period may not extend
Id the day immediately prior to the final maturity of the Bonds. The Trustee shall deliver a
)fsuch notice to the Remarketing Agent, the Tender Agent and the Credit Obligor on or before
ird following Business Day. Any such election by the User shall be irrevocable after 10:00
[Birmingham, Alabama time) on the last Business Day immediately prior to the proposed
ersion Date.
(d) Not less than 1 nor more than 10 days prior to the proposed Conversion Date the
.rketing Agent shall determine the interest rate for such Fixed Rate Period, which shall be the
',t interest rate that would, in the opinion of the Remarketing Agent, result in the market value
Bonds being 100% of the principal amount thereof on the date of such determination, taking
tccount relevant market conditions and credit rating factors as they exist on such date, and
~ing that the Fixed Rate Period begins on such date; provided, however, that the Fixed Rate
aot exceed the Maximum Rate. The Remarketing Agent shall deliver written notice of the
Rate or Rates to the Trustee on the date the same are determined.
(e) Notwithstanding the foregoing, a Fixed Rate or Fixed Rates shall not be established
he User delivers to the Trustee written notice of revocation of its election to establish the Fixed
before 10:00 a.m. (Birmingham, Alabama time) on the last Business Day immediately prior to
the l:roposed Conversion Date or (ii) prior to 10:00 a.m. (Birmingham, Alabama time) on the
Corn ersion Date the Trustee does not receive
(1) the Opinion of Bond Counsel referenced in Section 4.03(a) and meeting the
requirements thereof, and
(2) the Substitute Letter of Credit (if any) that is to be effective on such
Conversion Date.
(f) If all conditions to the establishment of a Fixed Rate or Fixed Rates are not satisfied,
the 13 onds shall continue (or, if a Fixed Rate Period ended on the preceding day, shall begin) to bear
inter~:st at the Variable Rate from the proposed Conversion Date.
24
and !
Ten~
any i
purcl
accn
Bom
Secti
duly
to be
and t
such
Auth
no sE
more
BusiJ
Optk
alTlO[
Bonc
Tend
and (
Tern
irre~
discr~
exerc
Secti,
any a
Princ
Alab~
duly
(g) The Fixed Rate or Rates determined by the Remarketing Agent shall be conclusive
iinding on the Issuer, the User, the Trustee and the Bondholders.
SECTION 4.04 Optional Tender.
(a) The Holder of any Bond shall have the fight to tender such Bond to the Trustee or
er Agent for purchase in whole or in part (if in part, only in an Authorized Denomination) on
3usiness Day during any Variable Rate Period, but not during any Fixed Rate Period, at a
rose price equal to 100% of the principal amount of Bonds (or portions thereof) tendered plus
ed interest to the specified purchase date. In order to exercise such option with respect to any
[, the Holder thereof must deliver notice thereof to the Trustee, as provided below in this
on, at its Principal Office at least 7 days prior to the proposed Optional Tender Date.
(b) The written notice of Optional Tender must be substantially in the form set forth on
)it C attached hereto, or in such other form as shall be acceptable to the Trustee, and must be
sxecuted by the Bondholder and must specify (i) the name of the registered Holder of the Bond
tendered for purchase, (ii) the Optional Tender Date, (iii) the certificate number (if applicable)
,rincipal amount of such Bond, and (iv) the principal amount of such Bond to be purchased (if
amount is less than the entire principal amount, the amount to be purchased must be in an
)rized Denomination). Such notice shall be given to the Trustee in writing or by telephone, but
ch telephonic notice shall be effective unless confirmed in writing delivered to the Trustee not
than 2 Business Days after such telephonic notice.
(c) If any notice of Optional Tender specifies an Optional Tender Date that is not a
less Day, then such notice shall be deemed to specify the next following Business Day as the
,nal Tender Date. Unless a notice of Optional Tender indicates that less than the entire principal
nt of the Bond is being tendered for purchase, the Holder will be deemed to have tendered the
in its entire principal amount for purchase.
(d) On the Business Day after receipt of any such telephonic or written notice of Optional
:r the Trustee shall deliver written notice to the Tender Agent, the Remarketing Agent, the User
ie Credit Obligor specifying (i) the principal amount of Bonds for which a notice of Optional
~r has been given and (ii) the proposed Optional Tender Date therefor.
(e) Upon delivery of a written notice of Optional Tender, the election to tender shall be
~cable and binding upon such Holder and may not be withdrawn. The Trustee shall, in its sole
:tion, determine whether, with respect to any Bond, the Holder thereof shall have properly
ised the option to have his Bond or any authorized part thereof purchased pursuant to this
)n.
(f) Ifa written notice of tender shall have been duly given with respect to any Bond or
uthorized part thereof, the Holder of such Bond shall deliver such Bond to the Trustee at its
.pal Office or to the Tender Agent at its Principal Office at or before 10:00 a.m. (Birmingham,
ma time) on the Optional Tender Date, together with an instrument of aSsignment or transfer
;xecuted in blank (which instrument of assignment or transfer shall be in the form provided on
25
such
a per
owne
Depo:
requiJ
theret
given
the Sc
on thc
all Bc
have
intere
parts
suffic
be tel
to hm
Date
Unsr~
a nev~
are n~
Ten&
paid,
Unstt
Bond
Fully
follm
Ten&
each
requh
days
3ond or in such other form as shall be acceptable to the Trustee or the Tender Agent). During
od in which the Book-Entry System is in effect for the Bonds, transfers of the beneficial
,ship interests in the Bonds on such date shall be effected on the records of the Securities
;itory by the Securities Depository in accordance with rules and procedures therefor and any
ement for physical delivery of Bonds on an Optional Tender Date shall be deemed satisfied
,y. Any Bond or any authorized part thereof for which a notice of Optional Tender has been
but which is not so delivered to the Trustee or Tender Agent or transferred on the records of
,cudties Depository shall nevertheless be deemed to have been tendered by the Holder thereof
Optional Tender Date.
(g) On each Optional Tender Date the Trustee shall purchase, or cause to be purchased,
ads or any authorized part thereof as to which written notices of Optional Tender for purchase
)een received at a purchase price equal to 100% of the principal amount thereof plus accrued
st to the Optional Tender Date. Funds for payment of the purchase price of such Bonds or such
~hall be drawn by the Trustee from the Bond Purchase Fund as provided in Section 8.02.
(h) If there has been irrevocably deposited in the Bond Purchase Fund an amount
ient to pay the purchase price of all Bonds or authorized parts thereof tendered or deemed to
tdered for purchase on an Optional Tender Date, any Unsurrendered Bonds shall be deemed
'e been tendered for purchase and purchased from the Holder thereof on such Optional Tender
md the Holder of any Unsurrendered Bond shall not be entitled to receive interest on such
rendered Bond for any period on and after the Optional Tender Date. The Trustee shall issue
Bond or Bonds in the same aggregate principal amount for any Unsurrendered Bonds which
)t tendered for purchase on any Optional Tender Date and, upon receipt by the Trustee or
~r Agent of any such Unsurrendered Bonds from the Holders thereof, shall pay, or cause to be
the purchase price of such Unsurrendered Bonds to the Holders thereof and cancel such
Tendered Bonds.
(i) Anything in this Indenture to the contrary notwithstanding, no Optional Tender of
shall be permitted for Pledged Bonds or for any Bond which is deemed Fully Paid.
SECTION 4.05 Mandatory_ Tender.
(a) The Holder of each Bond other than a Pledged Bond or a Bond that has been deemed
Paid shall be required to tender such Bond to the Trustee or Tender Agent for purchase on the
ring dates; provided, however, if any of such dates is not a Business Day, the Mandatory
:r Date shall be deemed to be the next succeeding Business Day; provided further, however,
;uch Holder may elect to retain the Bond or Bonds thereof by written notice meeting the
ements of subsection 4.05(c) delivered to the Principal Office of the Trustee not less than five
)riot to the Mandatory Tender Date:
(1) each proposed Conversion Date,
(2) the date immediately following the expiration of a Fixed Rate Period,
26
Tend
or ce:
RegL,
(3) the first day of the calendar month in which the Stated Expiration Date of the
Letter of Credit occurs, unless a Substitute Letter of Credit and Related Documentation all
meeting the requirements of this Indenture therefor is delivered to the Trustee in accordance
with the terms of Section 4.10 of this Indenture,
(4) a Credit Obligor Insolvency Date,
(5) that date which is 15 days prior to the effective date of any change in the
frequency with which or the formula by which the interest rate on the Bonds is established
during a Variable Rate Period,
(6) that date which is 15 days prior to the effective date of any change in the
optional tender terms of the Bonds during a Variable Rate Period, and
(7) that date which is 10 days after the Trustee receives a notice in writing from
the Credit Obligor, which notice (i) is delivered not later than the close of business on the
tenth day (if such tenth day is not a Business Day, on the then next succeeding Business Day)
after the date on which the Credit Obligor has honored a B Drawing under the Letter of
Credit and (ii) states that the Interest Portion (as defined in the Letter of Credit) will not be
reinstated or that an Event of Default has occurred and is continuing under the Credit
Documents and (iii) directs the Trustee to effect Mandatory Tender of the Bonds on such
date; provided, however, the Trustee shall not effect a Mandatory Tender of any Bond under
this Section 4.05(a)(7) unless the Trustee verifies, prior to delivery of notice pursuant to
Section 4.05(b)(1)(ii), that the amount of the Interest Portion (as defined in the Letter of
Credit) under the Letter of Credit shall then equal or exceed the amount necessary to pay
interest accrued on such Bond until and including the proposed Mandatory Tender Date, and
if the amount of said Interest Portion is then insufficient for such purpose, the Trustee shall
immediately notify the Credit Obligor thereof in writing, and shall declare an Event of
Default under Section 12.01 (5) or Section 12.01 (6) hereof effective as of the date of receipt
of the notice from the Credit Obligor pursuant to this Section 4.05(a)(7).
(b) (1) Notice of a Mandatory Tender shall be given by the Trustee in writing to the
.~r Agent, the Remarketing Agent, the User, and the Credit Obligor and in writing by registered
lified mail to the Bondholder or Bondholders at the address thereof appearing on the Bond
ter,
(i) not less than 30 days prior to the Mandatory Tender Date with respect
to a Mandatory Tender pursuant to any of Section 4.05(a)(1) through Section
4.05(a)(6), inclusive, and
(ii) not less than 7 days prior to the Mandatory Tender Date with respect
to a Mandatory Tender pursuant to Section 4.05(a)(7).
(2) Such notice of Mandatory Tender shall
27
4.5(a)
writte
Mand
4.05(c
subse.
upon
(i) specify the Mandatory Tender Date,
(ii) state the reason for the Mandatory Tender (being the applicable event
listed in subsection (a) of this Section), and whether the then Existing Letter of Credit
or a Substitute Letter of Credit will be in effect following the Mandatory Tender
Date,
(iii) state that all Bonds shall be tendered by the Holders thereof on such
Mandatory Tender Date by appropriate transfer on the records of the Securities
Depository or by delivery to the Trustee at its Principal Office or to the Tender Agent
at its Principal Office at or before 10:00 a.m. (Birmingham, Alabama time) together
with an instrument of assignment or transfer duly executed in blank (which
instrument of assignment or transfer shall be in the form provided in the Bonds or
such other form as shall be acceptable to the Trustee or Tender Agent),
(iv) state that all Bonds shall be purchased on the Mandatory Tender Date
at a purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Mandatory Tender Date, and any Bond that is not so transferred
on the records of the Securities Depository or so delivered to the Trustee or Tender
Agent shall be deemed to have been tendered for purchase by the Holder thereof on
the Mandatory Tender Date,
(v) state that any Holder may elect to retain the Bond or Bonds thereof
by written notice meeting the requirements of subsection 4.05(c) (a description of
which requirements shall be included in such notice) delivered to the Principal Office
of the Trustee not less than five days prior to the Mandatory Tender Date.
(c) (1) The Holder of any Bond subject to a Mandatory Tender pursuant to Section
(1) through Section 4.05(a)(7), inclusive, may elect to retain the Bond or Bonds thereof by
n notice delivered to the Principal Office of the Trustee not less than five days prior to the
~tory Tender Date, which notice shall be effective upon receipt and shall:
(i) state that the person delivering the same is a Holder and the principal
amount of the Bonds such Holder is electing to retain,
(ii) state that the Holder has received notice of the Mandatory Tender and
the reason therefor,
(iii) direct the Trustee not to purchase the specified principal amount of
the Bonds of the Holder.
(2) Any notice delivered to the Trustee by any Holder pursuant to this subsection
shall be irrevocable and binding upon the Holder delivering the same and upon all
uent Holders of the Bonds so retained (including any Bonds issued in exchange therefor or
iansfer thereof).
28
4.05
befo
Prim
assig
in th{
Age~
bene
Secu
and ~
satisl
purcl
all B
of th,
for F
Purcl
suffi
Man~
purc]
Unst
peric
Bom
forp
such
price
be si
elect
givin
Purl
Secti
(3) Any Bond which the Holder thereof elects to retain under this subsection
c) shall not be an "Unsurrendered Bond" for purposes of this Indenture.
(d) All Bonds to be tendered by the Holders thereof for purchase shall be delivered at or
e 10:00 a.m. (Birmingham, Alabama time) on the Mandatory Tender Date, to the Trustee at its
:ipal Office or to the Tender Agent at its Principal Office, together with an instrument of
nment or transfer duly executed in blank (which instrument of assignment or transfer shall be
: form provided in the Bonds or such other form as shall be acceptable to the Trustee or Tender
~t). During a period in which the Book-Entry System is in effect for the Bonds, transfers of the
[icial ownership interests in the Bonds on such date shall be effected on the records of the
dries Depository by the Securities Depository in accordance with roles and procedures therefor
ny requirement for physical delivery of Bonds on a Mandatory Tender Date shall be deemed
ied thereby. All Unsurrendered Bonds shall nevertheless be deemed to have been tendered for
~ase by the Holders thereof on the Mandatory Tender Date.
(e) On the Mandatory Tender Date, the Trustee shall purchase, or cause to be purchased,
>nds tendered or deemed tendered for purchase on such date at a purchase price equal to 100%
principal amount thereof plus accrued interest, if any, to the Mandatory Tender Date. Funds
ayment of the purchase price of such Bonds shall be drawn by the Trustee from the Bond
~ase Fund as provided in Section 8.02.
(f) If there has been irrevocably deposited in the Bond Purchase Fund an amount
:ient to pay the purchase price of all Bonds tendered or deemed tendered for purchase on the
tatory Tender Date, any Unsurrendered Bonds shall be deemed to be tendered for purchase and
~ased from the Holder thereof on such Mandatory Tender Date and the Holder of any
.rrendered Bond shall not be entitled to receive interest on such Unsurrendered Bond for any
d on and after the relevant Mandatory Tender Date. The Trustee shall issue a new Bond or
.s in the same aggregate principal amount for any Unsurrendered Bonds which are not tendered
~rchase on any Mandatory Tender Date and, upon receipt by the Trustee or Tender Agent of any
Unsurrendered Bonds from the Holders thereof, shall pay, or cause to be paid, the purchase
of such Unsurrendered Bonds to the Holders thereof and cancel such Unsurrendered Bonds.
(g) After notice of a Mandatory Tender has been given by the Trustee, the Bonds shall
[bject to Mandatory Tender (except with respect to Bonds which the Holders thereof have
:d to retain as provided in subsection 4.05(c)) notwithstanding the fact that the reasons for
g such notice cease to exist or are no longer applicable.
SECTION 4.06 Procedures for Purchase and Remarketing of Bonds; Delivery_ of
hased and Remarketed Bonds.
(a) Anything in this Indenture to the contrary notwithstanding, for purposes of this
~n 4.06 during a period in which the Book-Entry System is in effect for the Bonds:
29
deen'
herer
writt
rema
othm
telep
addr{
deno
Ager
Bom
purc]
proc{
Bone
in str
price
such
shall
to th{
respe
price
(1) the term "Bond" and "Bonds" When used in this Section 4.06 shall mean and
include the interests of the Beneficial Owners therein all or a portion of which are tendered
or deemed tendered for purchase pursuant to this Indenture, and
(2) the term "Holder" and "Holders" when used in this Section 4.06 shall mean
and include any Beneficial Owner or Beneficial Owners who shall have tendered the interests
(or a portion) thereof in the Bonds for purchase pursuant to this Indenture, and
(3) delivery, transfer, and registration of ownership and pledge of the beneficial
ownership interests in the Bonds shall be effected on the records of the Securities Depository
by the Securities Depository in accordance with rules and procedures therefor and any
requirement for physical delivery of Bonds in connection with such tender shall be deemed
satisfied thereby.
(b) The Remarketing Agent will use its best efforts to remarket all Bonds tendered or
~,d to be tendered for purchase pursuant to the Optional Tender or Mandatory Tender provisions
,f, subject to the provisions of subsection (h) of this Section. The User may at any time, upon
.-n direction to the Remarketing Agent, direct the Remarketing Agent to cease or resume the
rketing of some or all of the Bonds.
(c) At or prior to 10:00 a.m. (Birmingham, Alabama time) on any Tender Date (or at such
time to which the Trustee shall agree), the Remarketing Agent shall give telegraphic or
~onic notice, promptly confirmed in writing, to the Trustee specifying or confirming the names,
:sses, and taxpayer identification numbers of the purchasers of, and the principal amount and
~inations of, such Bonds, if any, remarketed by it pursuant to this Section. The Remarketing
t shall make appropriate settlement arrangements between the purchasers of such remarketed
Is and the Trustee, and shall direct such purchasers by appropriate instructions to pay the
~ase price of such Bonds to the Trustee on the Tender Date. The Trustee shall deposit the
:eds of any such remarketing in the Bond Purchase Fund.
(d) On each Tender Date the Trustee shall pay the purchase price to each Holder of a
. (or portion thereof) tendered for purchase from money on deposit in the Bond Purchase Fund
ict compliance with the provisions thereof; provided, that the Trustee shall not pay the purchase
of any Unsurrendered Bond, unless and until the Holder of such Unsurrendered Bond presents
Jnsurrendered Bond to the Trustee or Tender Agent. All Bonds so purchased by the Trustee
>e delivered by the Trustee or Tender Agent in accordance with this Section.
(e) The Trustee and the Tender Agent shall hold all Bonds delivered to them pursuant
Optional Tender or Mandatory Tender provisions hereof in trust solely for the benefit of the
ctive Holders who shall have so delivered such Bonds until money representing the purchase
of such Bonds shall have been delivered to or for the account of such Holder.
(f) Pledged Bonds shall be held subject to the following terms and conditions:
30
unde
the 1~
rema
be dc
Bom
accol
reder
of M
Ten,
acc¢
each
purct
purcl
the L
(1) If, on the Tender Date, the Trustee receives written notice (a "Reimbursement
Notice") from the Credit Obligor stating that it has been reimbursed for the drawing made
under the Letter of Credit to pay the purchase price of such Pledged Bonds and that the Letter
of Credit has been reinstated to the extent of the amount so drawn to pay the purchase price
of such Pledged Bonds (except as limited by the provisions of the Letter of Credit relating
to the "Maximum Interest Coverage", as defined therein), then such Bonds shall no longer
be considered "Pledged Bonds" and the Trustee shall register such Bonds as follows: (i) if
s~lch Bonds have been remarketed by the Remarketing Agent, as directed by the Remarketing
~:gent, or (ii) if such Bonds have not been remarketed, in the name of the User. Bonds
-~:egistered as directed by the Remarketing Agent shall be delivered by the Trustee or Tender
Agent to, or upon the direction of, the Remarketing Agent. Bonds registered in the name of
the User shall be held by the Trustee or Tender Agent for the account of the User or, upon
written request of the User, shall be delivered to the User.
(2) If the Trustee does not receive a Reimbursement Notice by the close of
business on the Tender Date, then the Trustee shall register such Pledged Bonds in the name
of the Credit Obligor, as pledgee. 'Any Pledged Bonds held by the Tender Agent shall be
transmitted to the Trustee. Such Pledged Bonds shall be held by the Trustee on behalf of the
Credit Obligor, as pledgee, until the Trustee receives a Reimbursement Notice with respect
to such Bonds or, upon written request of the Credit Obligor, shall be delivered to the Credit
Obligor. Upon receipt by the Trustee of a Reimbursement Notice with respect to any
Pledged Bonds, such Bonds shall no longer be considered "Pledged Bonds" and shall, subject
to the provisions of subsection (h) of this Section, be disposed of as provided in paragraph
(1) of this subsection (f). The Trustee shall give prompt notice to the Tender Agent of the
receipt of any Reimbursement Notice.
(g) Bonds purchased by the Trustee with money from any source other than money drawn
the Letter of Credit shall be registered as follows: (i) if such Bonds have been remarketed by
~marketing Agent, as directed by the Remarketing Agent, or (ii) if such Bonds have not been
rketed, in the name of the User. Bonds registered as directed by the Remarketing Agent shall
,livered by the Trustee or Tender Agent to, or upon the direction of, the Remarketing Agent.
!s registered in the name of the User shall be held by the Trustee or Tender Agent for the
mt of the User or, upon written request of the User, shall be delivered to the User.
(h) Any Bond remarketed by the Remarketing Agent that has been called for prior
~ption shall be delivered with a copy of the redemption notice, and any Bond as to which notice
andatory Tender has been given shall be delivered with a copy of the notice of Mandatory
er and any Bond remarketed by the Remarketing Agent that is subject to prepayment by
:ration under Article XII hereof shall be delivered with a notice thereof, and iri connection with
such delivery the Remarketing Agent shall obtain an acknowledgment in writing that each
taser of such Bonds understands the contents of such notice.
(i) Any provision of this Indenture to the contrary notwithstanding, if the Bonds are
rased pursuant to the Optional Tender or Mandatory Tender provisions of this Indenture and
:tter of Credit has expired or terminated (or will expire or terminate within 30 days), the Bonds
31
may r~ot be sold or remarketed unless (i) the Trustee receives an Opinion of Bond Counsel stating
in effect that the expiration or termination of the Letter of Credit, whether solely or in conjunction
with ~ny other fact or circumstance, will not cause interest on the Bonds to become Taxable, (ii) the
User demonstrates to the reasonable satisfaction of the Issuer that (A) disclosure materials proVided
to prospective Bondholders are adequate under securities laws and practices applicable to
remai keting under similar circumstances and (B) that the Bonds will continue to receive at least an
"inve:
the e~
or m(
event
an O
will
conll
purch
remm
of Ch
on the
date
Lette~
be, az
conju
Taxat
ofthi:
Outst
Boarc
by its
exten'
signa
deliw
for all
the Is:
and t~
Inden
;tment grade" rating by the Rating Agencies then maintaining a rating on the Bonds following
iration or termination of the Letter of Credit, or that the Bonds will be remarketed only to one
re financial institutions capable of assessing the risks of ownership of the Bonds, in which
any rating on the Bonds may be reduced or withdrawn and (iii) the Trustee and Issuer receive
inion of Counsel stating in effect that the remarketing of the Bonds under such circumstances
tot be in violation of any federal or state laws regarding registration of, or other filing in
ction with the issuance or sale of, securities.
(j) Any provision of this Indenture to the contrary notwithstanding, if the Bonds are
ased pursuant to a Mandatory Tender under Section 4.05(a)(7) hereof, the Bonds may not be
keted unless the Trustee receives, on or before the proposed date of such remarketing (i) the
n consent of the Credit Obligor to such remarketing and reinstatement of the Existing Letter
~dit by the Credit Obligor in the amount drawn to pay the purchase price of the Bonds, effective
proposed date of such remarketing, or a Substitute Letter of Credit effective on the proposed
f such remarketing and (ii) an Opinion of Bond Counsel to the effect that reinstatement of the'
of Credit by the Credit Obligor, or delivery of a Substitute Letter of Credit, as the case may
id the remarketing of the Bonds in connection therewith, will not, whether solely or in
nction with any other fact or circumstance, cause the interest on the Bonds to be or become
de.
(k) Bonds purchased pursuant to the Optional Tender or Mandatory Tender provisions
Indenture shall not, by virtue of such purchase, be deemed paid or canceled, but shall remain
~nding until Fully Paid.
SECTION 4.07
Execution, Authentication, Delivery and Dating.
(a) The Bonds shall be executed on behalf of the Issuer by its Chair or Vice-Chair of the
of County Commissioners under its corporate seal affixed or reproduced thereon and attested
Clerk. The signature of any or all of these officers on the Bonds may be manual or, to the
permitted by law, by facsimile. In case any officer whose signature or a facsimile of whose
:ure shall appear on the Bonds shall cease to be such officer before the authentication and
zy of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient
purposes, the same as if such officer had remained in office until authentication and delivery.
(b) At any time and from time to time after the execution and delivery of this Indenture,
;uer may deliver Bonds executed by the Issuer to the Trustee for authentication and registration
e Trustee or the Tender Agent shall authenticate and register and deliver such Bonds as in this
~ure provided and not otherwise.
32
Inden
of aut
Agen'
Bond
authe]
Upon
autho
authe
deliw
of th~
lithoa
of the
omiss
as evi
witho
be ex~
of the
temp(
excha
so ex{
Inden
Issuel
termh
to the
(c) No Bond shall be secured by, or be entitled to any lien, right or benefit under, this
:ure or be valid or obligatory for any purpose, unless there appears on such Bond a certificate
hentication substantially in the form provided for herein, executed by the Trustee or Tender
by the manual signature of a duly authorized officer thereof, and such certificate upon any
shall be conclusive evidence, and the only evidence, that such Bond has been duly
[ticated and delivered hereunder.
SECTION 4.08 Authentication and Delivery. of Bonds to Original Purchasers.
the execution and delivery of this Indenture, Bonds in the aggregate principal amount
:ized in this Article may be executed by the Issuer and delivered to the Trustee for
ntication and registration, and such Bonds shall thereupon be authenticated, registered and
red by the Trustee to the original purchaser or purchasers thereof.
SECTION 4.09 Temporary_ Bonds.
(a) Pending the preparation ofdef'mitive Bonds, the Issuer may execute, and upon request
: Issuer the Trustee shall authenticate and deliver, temporary Bonds which are printed,
raphed, typewritten, mimeographed or otherwise produced, in any denomination, substantially
tenor of the definitive Bonds in lieu of which they are issued, with such appropriate insertions,
ions, substitutions and other variations as the officers executing such Bonds may determine,
denced by their execution of such Bonds.
(b) If temporary Bonds are issued, the Issuer will cause definitive Bonds to be prepared
at unreasonable delay. After the preparation of definitive Bonds, the temporary Bonds shall
:hangeable for definitive Bonds upon surrender of the temporary Bonds at the Principal Office
Trustee, without charge to the Holder. Upon surrender for cancellation of any one or more
,rary Bonds the Issuer shall execute and the Trustee shall authenticate, register and deliver in
age therefor a like principal amount of definitive Bonds of authorized denominations. Until
:hanged, temporary Bonds shall in all respects be entitled to the security and benefits of this
SECTION 4.10 Letter of Credit.
(a) Simultaneously with the delivery of the Bonds to the original purchasers thereof, the
has caused the User to deliver to the Trustee the Letter of Credit. The Letter of Credit will
rate on the Stated Expiration Date, subject to extension (if applicable) by the Credit Obligor.
(b) The User may at any time and from time to time deliver a Substitute Letter of Credit
Trustee in substitution for the Existing Letter of Credit, provided that:
(1) Notice of any intended delivery of a Substitute Letter of Credit and the
proposed issuer and effective date thereof is given (i) by the User to the Trustee not less than
45 days prior to the proposed effective date of such Substitute Letter of Credit (unless a
shorter period shall be satisfactory to the Trustee and enable the Trustee to comply with this
Section), and (ii) by the Trustee to the Holders, or, if the Securities Depository or Securities
33
Trusl
Subs'
than l
be su
meet
Depository Nominee is the Holder, as provided in the Letter of Representation, not less than
30 days prior to the proposed effective date of such Substitute Letter of Credit; and
(2) such Substitute Letter of Credit complies with the applicable conditions set
forth in subsection (d) of this Section; and
(3) simultaneously with the delivery of such Substitute Letter of Credit the User
delivers to the Trustee any related documentation required by subsection (e) of this Section
(the "Related Documentation").
(c) The User may, but shall not be required to, deliver a Substitute Letter of Credit to the
ee prior to the expiration of the then Existing Letter of Credit; provided, however, that if a
itute Letter of Credit and the Related Documentation are not delivered to the Trustee not less
~0 days prior to the Stated Expiration Date of the then Existing Letter of Credit, the Bonds shall
bject to a Mandatory Tender.
(d) Each Substitute Letter of Credit delivered to the Trustee pursuant to this Section must
the following criteria:
(1) such Substitute Letter of Credit must have an effective date not less than 30
days prior to the stated Expiration Date of the then Existing Letter of Credit,
(2) such Substitute Letter of Credit must be substantially in the same form and
of the same tenor as the Letter of Credit, except that such Substitute Letter of Credit must
provide for the payment of interest on the Bonds (or the interest portion ofthe purchase price
of Bonds tendered, or deemed tendered, for purchase) at the Maximum Rate computed on
the interest rate basis then applicable as provided in Section 4.01 (g), for not less than 56
days,
(3) if such Substitute Letter of Credit is being delivered in connection with a
conversion of the interest rate on the Bonds to a Fixed Rate, the effective date shall be not
later than the Conversion Date,
(4) if such Substitute Letter of Credit will be effective during a Fixed Rate Period
when the Bonds are subject to optional redemption, such Substitute Letter of Credit must
provide for payment of the maximum redemption premium payable with respect to the
Bonds,
(5) such Substitute Letter of Credit must have a Stated Expiration Date that is
(i) the same calendar day in the same calendar month as the expiration date of the then
existing Letter of Credit being replaced and (ii) not sooner than the earlier of the Maturity
Date or one year after its effective date; provided, however, that any Substitute Letter of
Credit that is to be substituted for an Existing Letter of Credit that is effective during a Fixed
Rate Period must have a Stated Expiration Date not sooner than the Stated Expiration Date
of such Existing Letter of Credit, and
34
follov
Trust~
such
unde~
date o
the cl,
the T~
Credi'
evide:
of the
such
send
to rec
defim
User,
the B
Lette~
(6) such Credit Obligor issuing the Substitute Letter of Credit must have long-
term unsecured debt rated in one of the three highest rating categories by a Rating Agency
or the Bonds shall have an investment grade rating from a Rating Agency.
(e) Each Substitute Letter of Credit delivered to the Trustee must be accompanied by the
lng, to the extent applicable:
(1) if any Rating Agency maintains a rating with respect to the Bonds at the time
of delivery of such Substitute Letter of Credit to the Trustee, written evidence from each
such Rating Agency to the effect that the substitution of the proposed Substitute Letter of
Credit will not, by itself, result in a reduction or withdrawal of its rating then assigned to the
Bonds,
(2) an Opinion of Bond Counsel with respect to the Bonds which states in effect
that the delivery of such Substitute Letter of Credit, whether solely or in conjunction with
any other fact or circumstance, will not cause interest on the Bonds to become Taxable, and
(3) an Opinion of Counsel for the issuer of such Substitute Letter of Credit stating
in effect that such Substitute Letter of Credit (1) is a valid and binding obligation of the
issuer thereof and (2) is exempt from registration under the Securities Act of 1933, as
amended.
(f) At the close of business on the effective date of any Substitute Letter of Credit, the
;e shall return the Existing Letter of Credit to the issuer thereof, provided that any draws on
~xisting Letter of Credit made on or prior to such date have been honored. Any draws that,
the terms of the Indenture, are to be made on the Letter of Credit on or prior to the effective
fa Substitute Letter of Credit shall be made under the Existing Letter of Credit. Not later than
)se of business on the effective date of a Substitute Letter of Credit, the User shall deliver to
ustee written evidence that all obligations of the User to the issuer of the Existing Letter of
: for reimbursement of amounts drawn thereunder have been satisfied, and upon receipt of such
~ce any Pledged Bonds held by the Trustee or the Tender Agent for the benefit of the issuer
Existing Letter of Credit shall be delivered to, or upon the order of, the User.
(g) If the Trustee accepts a Substitute Letter of Credit as herein provided, then, unless
{ubstitute Letter of Credit was described in a notice of'Mandatory Tender, the Trustee shall
vritten notice of such substitution to the Bondholders.
(h) If Bonds are redeemed prior to maturity, the Trustee shall take any action necessary
ace the interest portion of the Letter of Credit to the Maximum Interest Coverage, as therein
:d.
SECTION 4.11 Additional Credit Enhancement. At the cost and expense of the
the User may deliver to the Trustee, and the Trustee shall accept, security for the payment of
)nds in addition to the Letter of Credit then in effect, in the form of a confirmation of such
of Credit, an additional standby letter of credit, insurance, surety bonds, or otherwise.
35
[Remainder of Page Intentionally Left Blank]
36
"Bom
provk
or rrm
of reg
Regis
in w~.
paym
Bond
agent
Lost,
Bond
Regk,
for m
Agen
the m
of an'
matu
ofth~
Tend,
the T
makil
Inder
ARTICLE V
REGISTRATION, BOOK-ENTRY SYSTEM, AND
GENERAL PROVISIONS REGARDING THE BONDS
SECTION 5.01 Registration of Bonds.
(a) The Trustee, as agent of the Issuer, shall keep at its Principal Office a register (the
Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall
[e for the registration of Bonds and registration of transfers of Bonds entitled to be registered
tsferred as herein provided. The Trustee is hereby appointed "Bond Registrar" for the purpose
istering Bonds and transfers of Bonds as herein provided.
(b)
ter.
Each of the Bonds shall be registered in the name of the owner thereof in the Bond
(c) The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the person
~se name any Bond is registered as the owner of such Bond for the purpose of receiving
nt of Debt Service on such Bond and for all other purposes whatsoever whether or not such
is overdue, and, to the extent permitted by law, neither the Issuer, the Trustee nor any such
;hall be affected by notice to the contrary.
SECTION 5.02 Transfer, and Exchange of Bonds; Replacement of Mutilated,
)estroyed or Stolen Bonds.
(1) Subject to the provisions regarding to Book-Entry System in Section 5.03 below, a
shall be transferred by the Holder in person or by authorized attorney only on the Bond
ter upon surrender of the Bond for transfer to the Trustee or Tender Agent. Upon surrender
msfer of any Bond at the Principal Office of the Trustee or the Principal Office of the Tender
L, the Issuer shall execute, and the Trustee or Tender Agent shall authenticate and deliver, in
xne of the designated transferee or transferees, one or more new Bonds of the same maturity,
Authorized Denominations and of a like aggregate principal amount.
(2) At the option of the Holder, Bonds may be exchanged for other Bonds of the same
ty, of any Authorized Denominations and of a like aggregate principal amount, upon surrender
Bonds to be exchanged at the Principal Office of the Trustee or at the Principal Office of the
:r Agent. Whenever any Bonds are so surrendered for exchange, the Issuer shall execute, and
rustee or the Tender Agent shall authenticate and deliver, the Bonds which the Bondholder
~g the exchange is entitled to receive.
(3) All Bonds surrendered upon any transfer or exchange of Bonds provided for in this
ture shall be promptly canceled by the Trustee or the Tender Agent.
37
oblig~
Bond~
the T~
assigr
Holde
begin
of Bc
exch~
durinl
endin
recei,
deliw
each
been
authe
Bond
conte
this S
may
lost
whel
anyo~
all ot
all o~
or st¢
Syste
persc
Depc
(4) All Bonds issued upon any transfer or exchange of Bonds shall be the valid
tions of the Issuer and entitled to the same security and benefits under this Indenture as the
surrendered upon such transfer or exchange.
(5) Every Bond presented or surrendered for transfer or exchange shall (if so required by
astee or the Tender Agent) be duly endorsed, or be accompanied by a written instrument of
ment or transfer in form satisfactory to the Trustee or the Tender Agent duly executed, by the
r thereof or his attorney duly authorized in writing.
(6) The Issuer shall not be required (i) to transfer or exchange any Bond during a period
ting at the opening of business 15 days before the day of the mailing of a notice of redemption
nds and ending at the close of business on the day of such mailing, or (ii) to transfer or
nge any Bond so selected for redemption in whole or in part, or (iii) to exchange any Bond
,~ a period beginning at the opening of business on any Regular Record Date for such Bond and
g at the close of business on the relevant Interest Payment Date therefor.
(7) If (i) any mutilated Bond is surrendered to the Trustee, or the Issuer and the Trustee
,e evidence to their Satisfaction of the destruction, loss or theft of any Bond, and (ii) there is
:red to the Issuer and the Trustee such security or indemnity as may be required by them to save
)fthem harmless, then, in the absence of notice to the Issuer or the Trustee that such Bond has
tcquired by a bona fide purchaser, the Issuer shall execute and upon its request the Trustee shall
aticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
, a new Bond of like tenor, principal amount, maturity, and bearing a number not
mporaneously outstanding.
(8) Upon the transfer or exchange of any Bond, or the issuance of any new Bond under
ection, the Holder shall pay a sum sufficient to cover any tax or other governmental charge that
)e imposed in relation thereto and any other expenses connected therewith.
(9) Every new Bond issued pursuant to this Section in lieu of any mutilated, destroyed,
~r stolen Bond shall constitute an original additional contractual obligation of the Issuer,
her or not the mutilated, destroyed, lost or stolen Bond shall be at any time enforceable by
re, and shall be entitled to all the security and benefits of this Indenture equally and ratably with
her Outstanding Bonds.
(10) The provisions of this Section are exclusive and shall preclude (to the extent lawful)
~er rights and remedies with respect to the replacement or payment °fmutilated, destroyed, lost
len Bonds.
SECTION 5.03 Book-Entry System.
(a) The Bonds may be issued in Authorized Denominations pursuant to a Book-Entry
m administered by the Securities Depository with no physical distribution of any Bond to any
n. One Bond for each maturity will be issued, registered in the name of the Securities
sitory Nominee, and immobilized in the custody of the Securities Depository. Beneficial
38
ownel
of the
Benel
intere
transf
the D:
Secur
the Is:
the S{
this h
on th{
not t{
Depo
Inden
Rem~
the B
conv(
by D!
to B,
Depc
statul
exch~
suffi(
sent
as pr,
purc]
Inde~
Parti~
Ager
in co
right
for ti
Bon~
disco
depo
auth~
the o
~hip interests in the Bonds may be purchased by or through Direct Participants. The holders
~e beneficial oWnership interests in the Bonds are referred to as the "Beneficial Owners". The
icial Owners will not receive certificated bonds representing their beneficial ownership
;ts. Ownership of the interests in Bonds in Authorized Denominations will be evidenced, and
:rs of interests in the Bonds will be effected, on the records of the Securities Depository and
rect Participants and Indirect Participants pursuant to rules and procedures established by the
[ties Depository. During a period in which the Book-Entry System is in effect for the Bonds
;uer, the Trustee, the User and the Remarketing Agent shall treat the Securities Depository or
:curities Depository Nominee as the only registered owner of the Bonds for all purposes under
tdenture including receipt of all principal of, purchase price of, premium (if any) and interest
Bonds, receipt of notices, voting, and requesting or directing the Trustee or Issuer to take or
take, or consenting to, certain actions under this Indenture. In the event the Securities
;itory or the Securities Depository Nominee assigns its rights to consent or vote under this
ture to any Direct Participant or Indirect Participant, the Issuer, the Trustee, the User, and the
rketing Agent shall treat such assignee or assignees as the only registered owner or oWners of
.nds for the purpose of exercising such rights so assigned.
(b) Transfers of oWnership interests in the Bonds by the Beneficial Owners thereof,
rance of notices and other communications by the Securities Depository to Direct Participants,
rect Participants to Indirect Participants, and by Direct Participants and Indirect Participants
:neficial Owners of the Bonds, will be governed by arrangements among the Securities
sitory, Direct Participants, Indirect Participants and the Beneficial Owners, subject to any
ory and regulatory requirements as may be in effect from time to time. For every transfer and
tnge of beneficial ownership in the Bonds, the Beneficial Owners may be charged a sum
ient to cover any tax, fee or other governmental charge that may be imposed in relation thereto.
(c) Redemption notices respecting the Bonds held by the Securities Depository shall be
the Securities Depository Nominee by the Trustee and redemption of Bonds shall be effected
vided in Article VI.
(d) A Beneficial Owner shall give notice of its election to have its interests in the Bonds
rased through its Direct Participant or Indirect Participant to the Trustee as provided in this
~ture and shall effect delivery of such interest by causing said Direct Participant or Indirect
:ipant to transfer the interest of such Beneficial OWner in the Bonds to the Trustee (or Tender
0 on the records of the Securities Depository. The requirement for physical delivery of Bonds
mection with an Optional Tender or a Mandatory Tender will be satisfied when the ownership
in the Bonds are transferred on the records of the Securities Depository.
(e) In the event that (1) the Securities Depository ceases to act as the securities depository
e Bonds or (2) the Issuer determines that the continuation of the Book-Entry System for the
.s would adversely affect the interests of the Beneficial Owners of the Bonds, the Issuer shall
,ntinue the Book-Entry System. If the Issuer fails to appoint another qualified securities
sitory to replace the then acting Securities Depository, the Issuer will cause the Trustee to
.,nticate and deliver fully registered certificated Bonds to each Beneficial Owner in evidence of
wnership interests thereof. If the Book-Entry System is discontinued, payments to and transfers
39
by the
theretr
bank
custo~
of the
in aB
Partic!
Agenl
any h
maint
paym
anlolI
any)
or an
is ret
any
Nomi
respe~
Trust~
such:
unles:
disco~
Depo
disco~
to the
on th
premJ
and tl
on an
Beneficial Owners shall be governed by the provisions set forth in this Indenture with respect
(f) The Issuer and the Remarketing Agent may enter into a custody agreement with any
~r trust company serving as custodian (which may be the Trustee serving in the capacity of
:ian) to provide for a Book-Entry System or similar method for the registration and transfer
Bonds.
(g) The Beneficial Owners of all the Bonds, by their acquisition of any beneficial interest
)nd or Bonds, and the Securities Depository, the Securities Depository Nominee, and all Direct
)ants and all Indirect Participants severally agree that the Issuer, the User, the Remarketing
and the Trustee shall not have any responsibility or obligation to any Direct Participant or
tirect Participant or any Beneficial Owner with respect to (1) the accuracy of any records
tined by the Securities Depository or any Direct Participant or any Indirect Participant; (2) the
mt by the Securities Depository or any Direct Participant or any Indirect Participant of any
~t due to any Beneficial Owner in respect of the principal of, purchase price of, premium (if
nd interest on the Bonds; (3) the delivery or timeliness of delivery by the Securities Depository
Direct Participant or any Indirect Participant of any notice due to any Beneficial Owner which
fired or permitted under the terms of this Indenture to be given to Beneficial Owners; or (4)
)nsent given or other action taken by the Securities Depository, or the Securities Depository
aee, as owner.
(h) The Securities Depository may determine to discontinue the Book-Entry System with
:t to the Bonds at any time upon notice to the Issuer, the Remarketing Agent, the User, and the
:e and upon discharge of its responsibilities with respect thereto under applicable law. Upon
mtice and compliance with law the Book-Entry SYstem for the Bonds will be discontinued
; a successor securities depository is appointed by the Issuer. In addition, the Issuer may
~tinue the Book-Entry System for the Bonds at any time by reasonable notice to the Securities
dtory and to the Beneficial Owners. In the event the Book-Entry System for the Bonds is
~tinued, Bonds in certificated form in Authorized Denominations will be physically distributed
Beneficial Owners thereof and the Bonds will be registered in the names of the owners thereof
Bond Register and the Trustee will make payments of principal of, purchase price of,
tm (if any) and interest on the Bonds to the registered owners thereof as provided in the Bonds
te Indenture.
SECTION 5.04 Payment of Interest on Bonds; Interest Rights Preserved.
(a) Interest on any Bond which is payable, and is punctually paid or duly provided for,
y Interest Payment Date shall be paid to the person in whose name that Bond is registered at
the
provi
to be
havir~
close of business on the Regular Record Date for such Interest Payment Date.
(b) Any interest on any Bond which is payable, but is not punctually paid or duly
/led for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
)ayable to the Holder on the relevant Regular Record Date solely by virtue of such Holder
been such Holder; and such Defaulted Interest shall be paid by the Issuer to the persons in
40
whos{
paym~
deterr
propo
hereo
aggre.
depos
subse,
a Spe~
nor le
receil:
propc
first-c
Bond
paym
afore~,
regist
Inden
to int~
Bond
transt
other
appoi
IssueJ
is due
whict
transt
authe:
expre
: names such Bonds are registered at the close of business on a Special Record Date for the
:nt of such Defaulted Interesi, which shall be fixed in the following manner. The Trustee shall
xine the amount of Defaulted Interest proposed to be paid on each Bond and the date of the
~ed payment (which date shall be such as will enable the Trustee to comply with the provisions
), and when there shall be on deposit with the Trustee an amount of money equal to the
ate amount proposed to be paid in respect of such Defaulted Interest such money when
:ed to be held in trust for the benefit of the persons entitled to such Defaulted Interest as in this
:tion provided and not to be deemed part of the Trust Estate. Thereupon the Trustee shall fix
rial Record Date for the payment of such Defaulted Interest which shall be not more than 15
ss than 10 days prior to the date of the proposed payment and not less than 10 days after the
t by the Trustee of the notice of the proposed payment. The Trustee shall cause notice of the
sed payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
lass postage prepaid, to the Bondholder or Bondholders at the address thereof appearing in the
Register not less than 10 days prior to such Special Record Date. Notice of the proposed
~nt of such Defaulted Interest and the Special Record Date therefor having been mailed as
;aid, such Defaulted Interest shall be paid to the persons in whose names the Bonds are
:red on such Special Record Date.
(c) Subject to the foregoing provisions of this Section, each Bond delivered under this
ture upon transfer of or in exchange for or in lieu of any other Bond shall carry all the rights
:rest accrued and unpaid, and to accrue, which were carried by such other Bond and each such
shall bear interest from such date that neither gain nor loss in interest shall result from such
er, exchange or substitution.
SECTION 5.05 Paying Agent. The Debt Service on the Bonds shall, except as
vise provided herein, be payable at the Principal Office of the Trustee. The Trustee is hereby
nted as Paying Agent for the purpose of paying Debt Service on the Bonds on behalf of the
SECTION 5.06 Payments Due on Non-Business Days. If any payment on the Bonds
>n a day which is not a Business Day, such payment may be made on the first succeeding day
· is a Business Day with the same effect as if made on the date on which such payment was due.
SECTION 5.07 Cancellation. All Bonds surrendered for payment, redemption,
br or exchange shall be promptly canceled or destroyed by the Trustee. No Bond shall be
~ticated in lieu of or in exchange for any Bond canceled as provided in this Section, except as
3sly provided by this Indenture.
[Remainder of Page Intentionally Left Blank]
41
provl~
of the
the o
Obli
exer
notio
days l
by th
consi
ofth~
Repn
notic
princ
the E
amm
small
Dep¢
ofth~
that
Bon~
the E
to be
Outs
small
fair
ARTICLE VI
REDEMPTION OF BONDS
SECTION 6.01 When Bonds Are Subject to Redemption.
(a) The Bonds shall be subject to extraordinary, optional and mandatory redemption, as
ted in the Bonds.
(b) Bonds shall be redeemed in accordance with the mandatory redemption provisions
Bonds without any direction from or consent by the Issuer or the User.
(c) If no Loan Agreement Default exists, Bonds shall be redeemed in accordance with
)tional redemption provisions of the Bonds only with the consent of the User and the Credit
or.
SECTION 6.02 Election to Redeem; Notice to Trustee. The election of the User to
ise any right of optional redemption upon the request of the User shall be given by written
to the Trustee from an Authorized User Representative not more than 60 and not less than 30
~rior to the proposed redemption date and, if required by this Indenture, shall be accompanied
~ written representation of the User that no Loan Agreement Default exists and the written
nt of the Credit Obligor. In case of any redemption at the option of the Issuer upon the request
.. User of less than all of the principal amount of the Outstanding Bonds, the Authorized User
;sentative shall, at least 60 days prior to the date fixed for redemption of Bonds (unless a shorter
: shall be satisfactory to the Trustee) notify the Trustee of such redemption date and of the
[pal amount of Bonds to be redeemed.
SECTION 6.03 Selection of Bonds to be Redeemed.
(a) If less than all of the Outstanding Bonds are to be redeemed during a period in which
.ook-Entry System is in effect for the Bonds, the Securities Depository shall determine the
nt of the interest of each Direct Participant in the Bonds to be redeemed, on the basis of the
est Authorized Denomination of the Bonds, by lot or by such other method as the Securities
sitory shall deem fair and appropriate. The Securities Depository shall so determine the amount
: interest of each Direct Participant in the Bonds to be redeemed in such manner so as to assure
tfter sUch redemption no Beneficial Owner shall retain a beneficial ownership interest in the
.s in an aggregate amount less than an Authorized Denomination.
(b) If less than all the Outstanding Bonds are to be redeemed during a period in which
ook-Entry System is not in effect for the Bonds, the Trustee shall select the particular Bonds
redeemed not less than 30 nor more than 60 days prior to the redemption date from the
:anding Bonds which have not previously been called for redemption, on the basis of the
est Authorized Denomination of the Bonds, by lot or by such method as the Trustee shall deem
md appropriate. The Trustee shall so select Bonds for redemption in such manner so as to
42
assur
reder
to be
relati
only
Bom
prop,
Secu
of R~
any
Bon,
notic
inter
by ti
regul
requi
Trus
that after such redemption no Bondholder shall retain Bonds in an aggregate amount less than
lthorized Denomination.
(c) The Trustee shall promptly notify the User in writing of the Bonds selected for
~ption and, in the case of any Bond selected for partial redemption, the principal amount thereof
redeemed.
(d) For ali purposes of this Indenture, unless the context otherwise requires, all provisions
ag to the redemption of Bonds shall relate, in the case of any Bond redeemed or to be redeemed
in part, to the portion of the principal of such Bond which has been or is to be redeemed.
SECTION 6.04 Notice of Redemption.
(a) Notice of any intended redemption shall be given by the Trustee to the Holder of each
., all or a portion of the principal of which is to be redeemed, not less than 30 days prior to the
)sed redemption date by United States first class mail or, if the Securities Depository or
5ties Depository Nominee is the Holder, at the times and in the manner as provided in the Letter
..presentation, at the address of such Holder appearing in the Bond Register; provided, however,
tolder may waive the requirement of notice aS to the redemption (in whole or in part) of the
or Bonds thereof. During a period in which the Book-Entry System is in effect for the Bonds,
: of any intended redemption may be given to each Beneficial Owner, all or any portion of the
:st of which in the Bonds is to be redeemed, by the Direct Participants and, where appropriate,
e Indirect Participants, pursuant to arrangements among said parties, subject to statutory and
atory requirements in effect from time to time; provided, any Beneficial Owner may waive the
rement of notice as to the redemption of the interest thereof in the Bonds; provided further, the
:ee and the Issuer are not required to give notice of redemption to any Beneficial Owner.
(b) All notices of redemption shall state:
(1) the redemption date,
(2) the redemption price,
(3) the principal amount of Bonds to be redeemed, and, if less than all
Outstanding Bonds are to be redeemed, the respective principal amounts of the Bonds to be
redeemed,
(4) that on the redemption date the redemption price ofeach of the Bonds to be
redeemed will become due and payable and that the interest thereon shall cease to accrue
from and after said date, and
(5) the place or places where the Bonds to be redeemed are to be surrendered for
payment of the redemption price.
43
Const
to be
time:
ofthi
of Ex]
appro
condi
respe,
staten
Hold(
shall,
Fund
disbu
paym
requh
any b~
appli{
possil
the b,
of thc
ARTICLE VII
APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01 Application of Proceeds of Bonds.
On the date of issuance of the Bonds the proceeds of the Bonds shall be deposited in the
ruction Fund pursuant to Section 7.02 and applied as provided therefor.
SECTION 7.02 Construction Fund; Disbursements.
(a) There is hereby established with the Trustee a trust fund for the account of the Issuer
tesignated the "Construction Fund".
(b) The moneys in the Construction Fund shall be paid out by the Trustee from time to
or the purpose of paying the Project Costs or complying with the provisions of Article XVII
Indenture but only upon receipt of a requisition or payment request substantially in the form
fibit B hereto appropriately completed and signed by any Authorized User Representative and
red by the Credit Obligor by endorsement thereon.
(c) In addition to the documents required by this Section, the Trustee may require as a
fion precedent to any payment or withdrawal further evidence with respect thereto or with
:t to the application of any moneys previously disbursed or as to the correctness of any
tent made in any requisition, payment request or endorsement. Upon the written request of the
:rs of at least ten percent of the Bonds, the Trustee shall require such evidence. The Trustee
however, be under no duty to require such evidence unless so requested.
(d) The Trustee shall not be liable for any misapplication of moneys in the Construction
disbursed pursuant to the provisions of this Section and without actual knowledge that such
:sement constitutes a misapplication of funds.
SECTION 7.03 Completion of the Project. The completion of the Project and the
:nt of all Project Costs shall be evidenced by the filing with the Trustee of the certificate
ed by the provisions of the Loan Agreement. Upon receipt of such certificate by the Trustee,
~lance remaining in the Construction Fund shall be held in escrow by the Trustee and shall be
,,d, subject to Article XVII of this Indenture to the redemption of as many of the Bonds as
,le on the earliest Business Day for which the required notice of redemption may be given, and
lance remaining, if any, after such redemption shall be applied to the payment o£the principal
Bonds.
45
be des
for thc
as the
under
witho
subm
to the
and (i
said
the
Credi
be co
mone
the B,
the T~
in the
shall,
Oblig
ARTICLE VIII
REVENUES
SECTION 8.01 Bond Fund and Letter of Credit Draws.
(a) There is hereby established a special trust fund in the name of the Issuer which shall
ignated the "Bond Fund". The Trustee shall be the depository, custodian and disbursing agent
: Bond Fund. The money in the Bond Fund shall be used (i) to pay Debt Service on the Bonds
same shall become due and payable or (ii) to reimburse the Credit Obligor for amounts drawn
the Letter of Credit, as provided in subsection (c) of this Section.
(b) There shall be deposited in the Bond Fund, as and when received:
(1) in the manner provided in subsection 8.01 (c), all money drawn by the Trustee
under the Letter of Credit for the purpose of paying the principal amount of the Bonds and
the premium (if any) on the Bonds, and the interest due thereon on any Bond Payment Date,
(2) All User Bond Payments under the Loan Agreement with respect to Debt
Service on the Bonds,
(3) All other money required to be deposited in the Bond Fund pursuant to the
Loan Agreement or this Indenture, and
(4) All other money received by the Trustee when accompanied by written
directions that such money is to be deposited in the Bond Fund.
(c) If the Letter of Credit is then in effect, on each Bond Payment Date, the Trustee shall,
at making any prior claim or demand upon the User for the payment of User Bond Payments,
a draft under the Letter of Credit in accordance with the terms thereof (i) in an amount equal
tmount of Debt Service due on such Bond Payment Date on Bonds other than Pledged Bonds
[) by such time (as stated in the Letter of Credit) in advance as shall enable the Trustee to pay
}ebt Service from the proceeds of such draft on said Bond Payment Date in accordance with
ovisions of this Indenture with respect thereto. Any such money drawn under the Letter of
: shall be deposited and held in a separate, segregated account in the Bond Fund, and shall not
mingled with other money in the Bond Fund and no investment thereof shall be made. If
from any source other than the Letter of Credit was, at the time of such draw, on deposit in
nd Fund and available for the payment of Debt Service on Bonds other than Pledged Bonds,
ustee shall nevertheless draw under the Letter of Credit to make such payment of Debt Service
amount of the Debt Service to be so paid, and the money available from such other source
to the extent of the amount paid by the Credit Obligor against such draw, be paid to the Credit
or. All money so drawn under the Letter of Credit shall be used to pay Debt Service on Bonds
46
other t
the B(
from t
at mat
Truste
from
be de
Fund,
in the
Date
provk
makin
ban Pledged Bonds; Debt Service on Pledged Bonds shall be paid with money deposited in
nd Fund from any source other than the Letter of Credit.
(d) The Issuer hereby authorizes and directs the Trustee to withdraw sufficient money
~e Bond Fund to pay Debt Service on the Bonds as the same become due and payable, whether
~rity, by call for redemption, acceleration, or otherwise, which authorization and direction the
hereby accepts. Funds for such payments of Debt Service on the Bonds shall be derived
~e following sources in the order of priority indicated:
(1) First.:
money drawn by the Trustee under the Letter of Credit, and
(2) Second:
all other money on deposit in the Bond Fund.
(e) Debt Service due on all Pledged Bonds shall be paid to the Credit Obligor.
SECTION 8.02 Bond Purchase Fund.
(a) There is hereby established a special trust fund in the name of the Issuer which shall
gnated the "Bond Purchase Fund". The Trustee shall be the custodian for the Bond Purchase
md money in such Fund may be disbursed by the Trustee as hereinafter provided. The money
3ond Purchase Fund shall be used (i) to pay the purchase price of Bonds due on any Tender
,r (ii) to reimburse the Credit Obligor for amounts drawn under the Letter of Credit, as
ed in subsection (c) of this Section.
(b) There shall be deposited in the Bond Purchase Fund, as and when received:
(1) in the manner provided in subsection 8.02(c), all money drawn by the Trustee
under the Letter of Credit for the purpose of paying the purchase price of Bonds due on any
Tender Date,
(2) all User Bond Payments under the Loan Agreement with respect to the
purchase price of Tendered Bonds,
(3) the proceeds of any remarketing of Bonds by the Remarketing Agent,
(4) all other money required to be deposited in the Bond Purchase Fund pursuant
to the Loan Agreement or this Indenture, an~d
(5) all other money received by the Trustee when accompanied by directions that
such money is to be deposited in the Bond Purchase Fund.
(c) If the Letter of Credit is then in effect, on each Tender Date, the Trustee shall, without
any prior claim or demand upon the User for User Bond Payments with respect to the
47
purct
not th
the Lc
of all
Credi
draft,
Any
segrel
the B
Secti,
draw.
the Ti
price
Purc[
o f reI
draw.
Bond
Obli
gon
other
S01~C
purct
User.
of B
antic
the L
the a
ase price of Tendered Bonds, and without taking into account any proceeds anticipated (but
:n received) from the remarketing of Bonds by the Remarketing Agent, submit a draft under
:tter of Credit in accordance with the terms thereof (i) in an amount equal to the purchase price
Bonds to be purchased on such Tender Date and (ii) by such time (as stated in the Letter of
:) in advance as shall enable the Trustee to pay said purchase price from the proceeds of such
)n said Tender Date in accordance with the provisions of this Indenture with respect thereto.
such money drawn under the Letter of Credit shall be deposited and held in a separate,
;ated account in the Bond Purchase Fund, and shall not be commingled with other money in
)nd Purchase Fund ~:.,md no investment thereof shall be made. Except as otherwise provided in
)n 8.02(0, if money from any source other than the Letter of Credit was, at the time of such
on deposit in the Bond Purchase Fund and available for the payment of such purchase price,
ustee shall nevertheless draw under the Letter of Credit to make the payment of such purchase
in the amount of such purchase price to be so paid, and any money available in the Bond
ase Fund on such Tender Date from such other so~rces (including without limitation, proceeds
~arketing of Bonds) shall, to the extent of the amount paid by the Credit Obligor against such
be paid to the Credit Obligor. If proceeds from the remarketing of Bonds are deposited in the
Purchase Fund after such Tender Date, the Trustee shall pay such proceeds to the Credit
Dr.
(d) The Trustee is hereby authorized and directed to withdraw sufficient money from the
Purchase Fund to pay the purchase price of Bonds due on any Tender Date. Except as
vise provided in Section 8.02(0, funds for such payments shall be derived from the following
es in the order of priority indicated:
(1) First:
money drawn by the Trustee under the Letter of Credit,
(2) Second:
money received by the Trustee from the remarketing of Bonds
by the Remarketing Agent to persons other than the Issuer,
the User or any Affiliate of any thereof, and
(3) Third:
all other money on deposit in the Bond Purchase Fund.
(e) Anything in this Indenture to the contrary notwithstanding, the Trustee shall not
rase any Bonds under Section 4.06 with proceeds received from remarketing of Bonds to the
the Issuer or any Affiliate of either thereof.
(f) Anything herein to the contrary notwithstanding, if proceeds from the remarketing
~nds by the Remarketing Agent are actually on deposit in the Bond Purchase Fund (and not
pated to be so on deposit) at or prior to the time of submission by the Trustee of a draft under
etter of Credit pursuant to Section 8.02(c), the Trustee may reduce the amount of such draft by
nount of such proceeds.
48
Uncla
Debt
Bond
Bond
segreg
Debt ~'
shall
fund
pay
fails t,
Tend{
for th,
payab
shall
fund
purct
unclai
the U:
therea
liabili
theret~
any s~
newst
notice
be les~
remai:
SECTION 8.03
med Money.
Money for Bond Payments to be Held in Trust; Repayment of
(a) If money is on deposit in the Bond Fund on any Bond Payment Date sufficient to pay
gervice on the Bonds due and payable on such Bond Payment Date, but the Holder of any
:hat matures on such Date or that is subject to redemption on such Date fails to surrender such
to the Trustee for payment of Debt Service due and payable on sUch Date, the Trustee shall
ate and hold in trust for the benefit of the person entitled thereto money sufficient to pay the
',ervice due and payable on such Bond on such Date. Money so segregated and held in trust
.ot be a part of the Trust Estate and shall not be invested, but shall constitute a separate trust
,r the benefit of the persons entitled to such Debt Service.
(b) If money is on deposit in the Bond Purchase Fund on any Tender Date sufficient to
e purchase price on the Bonds to be paid on such Tender Date, but the Holder of any Bond
deliver such Bond to the Trustee or Tender Agent for payment of such purchase price on such
Date, the Trustee shall segregate and hold in trust, without liability for investment thereof,
benefit of the person entitled thereto money sufficient to pay such purchase price due and
.~ on such Unsurrendered Bond on such Tender Date. Money so segregated and held in trust
~ot be a part of the Trust Estate and shall not be invested, but shall constitute a separate trust
ar the benefit of the persons entitled to such purchase price.
(c) Any money held in trust by the Trustee for the payment of Debt Service on or the
ise price of any Bond pursuant to subsections (a) and (b) of this Section and remaining
rned for three (3) years after such Debt Service has become due and payable shall be paid to
;er upon request of an Authorized User Representative; and the Holder of such Bond shall
fter, as an unsecured general creditor, look only to the User for payment thereof, and all
-y of the Trustee with respect to such trust money, and all liability of the Issuer with respect
), shall thereupon cease; provided, however, that the Trustee, before being required to make
ich payment to the User, may at the expense of the User cause to be published once, in a
,aper of general circulation in the city where the Principal Office of the Trustee is located,
that such money remains unclaimed and that, after a date specified therein, which shall not
than 30 days from the date of such publication, any unclaimed balance of such money then
~ing will be paid to the User.
[Remainder of Page Intentionally Left Blank]
49
Speci
the U
secuI
State
or re]
the 1_
cons]
provi
Secu:
such
the p'
be he
wher
be cr,
its o~
inves
Trus~
spec]
ARTICLE IX
SECURITY FOR AND INVESTMENT OF SPECIAL FUNDS
SECTION 9.01 Security_ for Trust Estate Money. Any money on deposit in the
al Funds or otherwise held by the Trustee as part of the Trust Estate shall be impressed with
ust established by this Indenture and shall, unless invested as provided in this Indenture or
ed by the Federal Deposit Insurance Corporation (or any successor agency of the United
0, be secured for the benefit of the Holders of the Bonds, either
(1) by holding on deposit, as collateral security, Federal Securities or other
marketable securities eligible as security for the deposit of trust funds under regulations of
the Comptroller of the Currency, United States Treasury, having a market value (exclusive
of accrued interest) not less than the amount of money being secured, or
(2) if the furnishing of security in the manner provided by the foregoing
paragraph (1) is not permitted by the then applicable law and regulations, then in such other
manner as may be required or permitted by the then applicable state and federal laws and
regulations respecting the security for, or granting a preference in the case of, the deposit of
trust funds.
SECTION 9.02 Investment of Special Funds.
(a) Except as provided herein, any money held as part of a Special Fund shall be invested
nvested in Qualified Investments by the Trustee in accordance with the written instructions of
rser if no Loan Agreement Default exists, to the extent that such investment is feasible and
stent with the purposes for which such Fund was created; provided, however, that, except as
ded below, money in the Bond Fund and Bond Purchase Fund shall be invested only in Federal
5ties (or a fund thereof) with a maturity not later than the earlier of(i) 30 days after the date of
investment, or (ii) the date such money will be needed for the payment of Debt Service on, or
~rchase price of, Bonds. Any investment made with money on deposit in a Special Fund shall
Id by or under control of the Trustee and shall be deemed at all times a part of the Special Fund
: such money was on deposit, and the interest and profits realized from such investment shall
~dited to such Fund and any loss resulting from such investment shall be charged to such Fund.
(b) The proceeds of a draw under the Letter of Credit shall not be invested.
(c) Any investment of money in the Special Funds may be made by the Trustee through
tn bond department, investment department or other commercial banking department providing
tment services. Any certificate of deposit issued by, or other interest-bearing deposit with, the
ee shall be deemed an investment rather than a deposit requiring security in the manner
fled in Section 9.01.
50
deposi
meani~
Defaul
9.02,
with
(ii) cz
Sectio:
XVII.
SECTION 9.03 Arbitrage.
(a) The Issuer will not cause or permit any investment to be made of any money on
in the Special Funds that would cause any Bond to be an "arbitrage bond" within the
g of Section 148 or successor provision of the Internal Revenue Code.
(b) The Trustee shall follow the written instructions of the User or, if a Loan Agreement
exists, the Issuer, with respect to investments of the Special Funds as provided in Section
[t the Trustee shall not be responsible for (i) determining that any such investment complies
he arbitrage limitations imposed by Section 148 of the Internal Revenue Code, or
culating the amount of, or making payment of, any rebate due to the United States under
148(f) or successor provision of the Internal Revenue Code except as provided in Article
[Remainder of Page Intentionally Left Blank]
51
repre~,
ARTICLE X
REPRESENTATIONS AND COVENANTS
SECTION 10.01 General Representations. The Issuer makes the following
:ntations and warranties as the basis for the undertakings on its part herein contained:
(1)
the State.
It is duly organized and existing as a political subdivision under the laws of
(2) Under the provisions of the Enabling Law, it has the power to consummate
the transactions contemplated by the Financing Documents to which it is a party.
(3) By proper action the Issuer has duly authorized the issuance, execution and
delivery of the Financing Documents to which it is a party and the consummation of the
transactions contemplated therein.
(4) It has obtained all consents, approvals, authorizations and orders of
govemmental authorities that are required to be obtained by it as a condition to the issuance
of the Bonds and the execution and delivery of the Financing Documents to which it is a
party.
(5) The execution and delivery by it of the Financing Documents to which it is
a party and the consummation by it of the transactions contemplated therein will not
(i) conflict with, be in violation of, or result in a default under any material agreement,
instrument, order or judgment to which it is a party or is subject or (ii) result in or require the
creation or imposition of any lien of any nature with respect to the Project or the Trust Estate,
except as contemplated by the Financing Documents.
(6) The Financing Documents to which it is a party constitute legal, valid and
binding obligations and are enforceable against it in accordance with the terms of such
instruments, except as enforcement thereof may be limited by (i) the exercise of judicial
discretion and (ii) bankruptcy, insolvency, or other similar laws affecting the enforcement
of creditors' rights, to the extent constitutionally applicable.
(7) The Issuer has not created or permitted the creation of any mortgage, pledge,
encumbrance, security interest, assignment or other charge of any kind with respect to the
Trust Estate, except as effected or contemplated by the Financing Documents.
(8) There is no action, suit, proceeding, inquiry or investigation pending before
any court or governmental authority, or known to be threatened against or affecting it or its
properties, that involves (i) the consummation of the transactions contemplated by, or the
52
permit
Estate
Finan(
or caul
duly a
be del;
and si:
Servic
or Bo~
obliga
With,
Trust.
agreer
unimp
Agree:
or laps
has kn
times,
repres~
the Is~
Trust¢
perfor
coven:
validity or enforceability of, the Financing Documents, (ii)its organization, (iii) the election
or qualification of its officers, or (iv) its powers.
SECTION 10.02 No Encumbrance on Trust Estate. The Issuer will not create or
the creation of any mortgage, pledge, lien, charge or encumbrance of any kind on the Trust
or any part thereof prior to or on a parity of lien with this Indenture, except pursuant to the
ing Documents or with the prior written consent of the Trustee, User and Credit Obligor.
SECTION 10.03 General Covenants.
(a) Subject to the provisions of Article III hereof, the Issuer will duly and punctually pay,
;e to be paid, the Debt Service on the Bonds as and when the same shall become due and will
~d punctually deposit, or cause to be deposited, in the Special Funds the amounts required to
osited therein, all in accordance with the terms of the Bonds and this Indenture as a limited
ecial obligation.
(b) The Issuer will not extend or consent to the extension of the time for payment of Debt
: on the Bonds, unless such extension is consented to by the Holder or Holders of the Bond
tds affected.
SECTION 10.04 The Loan Agreement.
(a) The Issuer will perform, observe and comply with all agreements, covenants and
:ions required to be performed, observed and complied with by it under the Loan Agreement.
ut relieving the Issuer from the responsibility for such performance and observance, the
:, on behalf of the Issuer, may (but shall have no obligation to) perform and observe any such
aent or covenant, all to the end that the Issuer's rights under the Loan Agreement may be
aired and free from default.
(b) The Issuer will promptly notify the Trustee in writing of the occurrence of any Loan
nent Default under the Loan Agreement or the occurrence of any event which,, upon notice
e of time (or both), would become such a Loan Agreement Default, provided that the Issuer
owledge of such event.
SECTION 10.05 Inspection of Records. The Issuer will at any and all reasonable
upon the written request of the Trustee, request that the User provide for the Trustee by its
intatives to inspect the Project and to inspect any books, records, reports and other papers of
uer relating to the Project, and to make copies therefrom, and the Issuer will furnish to the
e any and all information as the Trustee may reasonably request with respect to the
nance by the Issuer of its covenants in this Indenture.
SECTION 10.06 Advances by Trustee. If the Issuer shall fail to perform any of its
tnts in this Indenture, the Trustee may, but shall not be required, at any time and from time
53
to tin
Agre~
no m(
the T~
the pr
prior:
of Crl
cause
Trust
prope:
e, after written notice to the User if no Loan Agreement Default exists under the Loan
ment, make advances to effect performance of any such covenant on behalf of the Issuer, but~
~ney advanced by the Trustee shall be used to pay Debt Service. Any money so advanced by
ustee, together with interest at the Base Rate of the Trustee plus 2%, shall be paid (subject to
>visions of Article III) upon demand and such advances shall be secured under this Indenture
the Bonds, but no such reimbursement shall be made from moneys drawn under the Letter
~'dit.
SECTION 10.07 Corporate Existence.
(a) Except as otherwise provided in subsection (b) of this Section, the Issuer will do or
to be done all things necessary to preserve and keep in full force and effect its existence.
(b) The Issuer shall not consolidate with or merge into any other entity or transfer the
Estate substantially as an entirety to any person unless:
(1) such consolidation, merger, conveyance or transfer shall be on such terms as
shall fully preserve the lien and security hereof and the rights and powers of the Trustee and
the Holders of the Bonds;
(2) the entity formed by such consolidation or into which the Issuer is merged or
the person which acquires by conveyance or transfer the Issuer's said property substantially
as an entirety (the "Successor") shall be a governmental entity organized under the laws of
the State of Florida;
(3) such Successor shall execute and deliver to the Trustee an insmunent in form
recordable and acceptable to the Trustee containing an assumption by such Successor of the
due and punctual payment of the Debt Service and the performance and observance of every
covenant and condition of this Indenture and the Loan Agreement to be performed or
observed by the Issuer;
(4) immediately after giving effect to such transaction, no Event of Default or any
event which, upon notice or lapse of time (or both), would constitute such an Event of
Default shall have occurred and be continuing; and
(5) the Issuer shall have delivered to the Trustee a certificate executed by an
Authorized Issuer Representative and an Opinion of Counsel, each of which shall state that
such consolidation, merger, conveyance or transfer complies with this Section and that all
conditions precedent herein provided relating to such transactions have been satisfied.
(c) Upon any consolidation or merger or any conveyance or transfer of the Issuer's
substantially as an entirety in accordance with this Section, the Successor shall succeed to,
54
and ~:
with
or fi[
provi
take ~
provi,
are re
reden
of th
repre~
failur
Inder~
shall
User
and c.
exper
estab]
Deter
be en
respo
perfo~
agreel
ackne
recor(
in law
and c(
and pl
e substituted for, and may exercise every right and power of, the Issuer under this Indenture
he same effect as if such Successor had been named as the Issuer herein.
SECTION 10.08 Appointment of Successor Trustee. Whenever necessary to avoid
a vacancy in the office of the Trustee, the Issuer will appoint a successor Trustee in the manner
~ed in Article XIII.
SECTION 10.09 Tax-Exempt Status of Bonds.
(a) The Issuer covenants and agrees that it will not knowingly take any action, or fail to
ny action, if such action or failure to act would cause the interest on the Bonds to be Taxable;
ted, however, that if, in the event of the occurrence of a Determination of Taxability, the Bonds
:deemed in compliance with the provisions of the Indenture and the Bonds requiting such
~ption as a result of the occurrence of such Determination of Taxability, then (any provision
Indenture or of the Bonds to the contrary notwithstanding) the inaccuracy of any
~ntation or warranty contained in the Indenture, the Loan Agreement or in the Bonds or the
: by the Issuer or the User to observe or perform any covenant or agreement contained in the
ture, the Loan Agreement or in the Bonds that resulted in such Determination of Taxability
~ot be considered a default or an Event of Default by the Issuer under the Indenture or by the
ruder the Loan Agreement and such mandatory redemption by the Issuer shall constitute a full
>mplete satisfaction to the Holder of each Bond of all claims, and for all damages, costs and
.ses, arising out of or based on any such inaccuracy or failure.
(b) Any provision of this Indenture to the contrary notwithstanding, if a trust is
ished for the payment or redemption of Bonds pursuant to Section 16.02 prior to a
nination of Taxability, the Holders of Bonds to be paid or redeemed from such trust shall not
itled to early redemption as a result of any such Determination of Taxability.
(c) The Issuer elects to issue the Bonds pursuant to Section 144(a)(4) of the Code.
SECTION 10.10 Performance by User. Without relieving the Issuer from the
~sibility for performance and observance of the agreements and covenants required to be
reed and observed by it hereunder, the User, on behalf of the Issuer, may perform any such
nent or covenant.
SECTION 10.11 Further Assurances. The Issuer will at any time or times do, execute,
wledge, deliver and record or cause to be done, executed, acknowledged, delivered, and
.ed all such further acts, deeds, conveyances, assignments, pledges, transfers and assurances
as the Trustee shall reasonably require for the better assuring, assigning, transferring, pledging
,nfirming unto the Trustee, all and singular, the property and rights herein assigned, transferred
edged or intended so to be.
55
in
All s'
ARTICLE XI
THE PROJECT
In the event of condemnation or destruction of or damage to the Project, provision is made
: Credit Documents for the application of the proceeds of insurance or condemnation awards.
ich proceeds shall be held and applied as provided in the Credit Documents.
[Remainder of Page Intentionally Left Blank]
56
an
volun
order
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
SECTION 12.01 Events of Default. Any one or more of the following shall constitute
;nt of default under this Indenture (whatever the reason for such event and whether it shall be
iary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Bond when such interest
becomes due and payable; or
(2) default in the payment of the principal of (or premium, if any, on) any Bond
when such principal (or premium, if any) becomes due and payable, whether at its stated
maturity, by declaration of acceleration or call for redemption or otherwise; or
(3) failure to pay when due the purchase price of any Bond tendered for purchase
pursuant to the Optional Tender or Mandatory Tender provisions hereof; or
(4)
the Credit Obligor wrongfully dishonors a draw under the Letter of Credit;
or
(5) receipt of notice by the Trustee from the Credit Obligor that the Credit
Obligor has not reinstated the Credit Amount of the Letter of Credit (as defined therein) in
accordance with the terms thereof and directing the Trustee to declare the Bonds immediately
due and payable under Section 12.02 hereof; or
(6) receipt by the Trustee of written notice from the Credit Obligor that an event
of default, as therein defined, has occurred and is continuing under the Credit Documents and
directing the Trustee to declare the Bonds immediately due and payable under Section 12.02
hereof; or
(7) the occurrence of an event of default, as therein defined, under any other
Financing Document (other than the Credit Documents) and the expiration of the applicable
grace period, if any, specified therein; or
(8) default, in the performance, or breach, of any covenant, representation or
warranty of the Iss'~e~: in this Indenture (other than a covenant or warranty a default in the
performance or breach of which is elsewhere in this Section specifically described), and
continuance of such default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Issuer, the User and the Credit Obligor by the Trustee or
to the Issuer, the User, the Trustee and the Credit Obligor by the Holders of at least 10% in
principal amount of the Outstanding Bonds, a written notice specifying such default or
57
Rem{
the L~
intere
the C:
to the
cease
Credi
intere
Defau
draw'
(1) th,
may (
Oblig,
declm
imme,
any st
becon
effec
to pal
the da
subse,
Outst~
and th
has nc
and it.,
breach and requiring it to be remedied and stating that such notice is a "notice of default"
hereunder.
SECTION 12.02
dies.
Acceleration of Maturity_; Rescission and Annulment; Exercise of
(1)
Co) If an Event of Default exists under Section 12.01(7) or (8) or if any other Event of
It exists and the Letter of Credit is no longer in effect or the Credit Obligor has dishonored a
:hereon or there has occurred a Credit Obligor Insolvency Date, then and in every such case
,~ Trustee or the Holders of not less than 25% in principal amount of the Bonds Outstanding
)ut only with the consent of the Credit Obligor if the Letter of Credit is in effect and the Credit
)r has not dishonored a draw thereon and a Credit Obligor Insolvency Date has not occurred)
e the principal of all the Bonds and the interest accrued thereon to be due and payable
tiately, by a notice in writing to the Issuer (and to the Trustee, if given by Holders), and upon
.ch declaration such principal and the interest accrued thereon to the date of declaration shall
~e immediately due and payable and (2) the Trustee shall, if the Letter of Credit is then in
immediately draw under the Letter of Credit to the full extent permitted by the terms thereof
the principal of the Bonds and the interest accrued and to accrue thereon until and including
te of such declaration.
(c) At any time after such a declaration of acceleration has been made pursuant to
:tion (b) of this Section, the Holders of a majority in principal amount of the Bonds
nding may (but only with the consent of the Credit Obligor if the Letter of Credit is in effect
Credit Obligor has not dishonored a draw thereunder and a Credit Obligor Insolvency Date
occurred), by written notice to the Issuer and the Trustee, rescind and annul such declaration
consequences if:
the Issuer has deposited with the Trustee a sum sufficient to pay;
(A) all overdue installments of interest on all Bonds;
(B) the principal of (and premium, if any, on) any Bonds which have
become due otherwise than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Bonds;
58
(a) If an Event of Defauk exists under any of Section 12.01(1), (2), (3), (4), (5) or (6) and
:tter of Credit is in effect, the Trustee shall (1) declare the principal of ali the Bonds and the
,'t accrued thereon to be due and payable immediately, by a notice in writing to the Issuer and
· edit Obligor, and upon any such declaration such principal and the interest accrued thereon
date of declaration shall become immediately due and payable and interest on the Bonds shall
to accrue from and after the date of declaration and (2) immediately draw under the Letter of
to the full extent permitted by the terms thereof to pay the principal of the Bonds and the
:t accrued and to accrue thereon until and including the date of such declaration.
No si
there,
may,
reinsl
dish(
to th
Bond
actioJ
conta
or fo
docu~
Agre
exert
Bond
party
the e,
has n
Insol'
Insol'
princ!
upon
direcl
and g
event
discr~
in pri:
(C) to the extent that payment of such interest is lawful, interest upon
overdue installments of interest at the rate or rates prescribed therefor in the Bonds;
and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default, other than the nonpayment of the principal of Bonds
which have become due solely by such declaration of acceleration, have been cured or have
been waived as provided in Section 12.15.
tch rescission and annulment shall affect any subsequent default or impair any right consequent
)n.
(d) Upon the occurrence of any Event of Default specified in Section 12.01 the Trustee
only with the consent of the Credit Obligor if the Letter of Credit is in effect and has been
ated to the full amount required to be available thereunder and the Credit Obligor has not
nored a draft thereunder and there has not occurred a Credit Obligor Insolvency Date, subject
~ terms of this Indenture, proceed to protect and enforce its rights and the rights of the
holders by any suit, action or proceeding at law or in equity, including but not limited to an
~ for mandamus, or for specific performance of any agreement herein or in the Loan Agreement,
ined, or for enforcing payment and collection of any revenues due under the Loan Agreement,
: making a demand for payment from the User, or for taking action pursuant to any other
nent to which the Trustee is a party by signature, assignment, operation of law, or otherwise.
SECTION 12.03 Rights and Remedies of Trustee on Default under Loan
ement. The Trustee shall have the right in the name of the Issuer to declare any default and
[se any remedy or remedies under the Loan Agreement, including the right to declare all User
Payments immediately due and payable and to take any available proceedings against any
liable for the payment thereof, including any guarantor, if any, of the User's obligations. In
,em of a default by the User, as defined in the Loan Agreement, the Trustee may, and upon the
n request of the Credit Obligor if the Letter of Credit is then in effect and the Credit Obligor
)t dishonored any drafts under the Letter of Credit and there has not occurred a Credit Obligor
~ency Date, or if the Letter of Credit is not then in effect or such dishonor or Credit Obligor
~ency Date has occurred, upon the written request of the Holders of a majority in aggregate
>al amount of the Bonds then Outstanding shall, declare the Loan Agreement in default and,
,eing indemnifie~d to its reasonable satisfaction, shall pursue such proper remedies as may be
ed by the Holders of such Bonds for the enforcement of the provisions of the Loan Agreement
uaranty, if any, and the exercise of any remedies available to the Issuer or the Trustee in the
of such default under the Loan Agreement and such guaranty; subject, however, to the
fionary right of the Trustee, and upon written notice to the Trustee by the Holders of a majority
~cipal amount of the Outstanding Bonds, the duty of the Trustee, to annul such declaration and
59
destrc
instita
the (
receix
judici
Bond
entitk
prove
docm
any c
reim
as a
proce
claim
prote~
(or ol
Bond
undel
of De:
in va
here~
reme(
the ri
Trus!
posse
Oblig
of, pn
y its effect at any time before action at law or in equity to enforce such right shall have been
tted.
SECTION 12.04 Rights and Remedies of Trustee in the Event of Bankruptcy, and
}ccurrence of Similar Events Regarding, the User. In case of the pendency of any
ership, insolvency, liquidation, bankruptcy, reorganization, arrangement, composition or other
al proceeding relative to any user, guarantor or other person obligated for payment of the
~, the Trustee (irrespective of whether there has been a default under this Indenture) shall be
,d and empowered to intervene in such proceedings on behalf of the Bondholders, to file and
a claim or claims for the whole amount owing and unpaid and to file such other papers or
aents as may be necessary or advisable in order to have the claims of the Trustee (including
[aim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for
ursement of all expenses and liabilities incurred, and all advances made, by the Trustee except
:sult of its gross negligence or bad faith) and of the Bondholders allowed in any such judicial
~dings, to collect and receive any moneys or other property payable or deliverable on any such
s, and to take such other action therein as the Trustee may deem necessary or appropriate to
:t the interests of the Bondholders, and any receiver, assignee or trustee, liquidator, sequestrator
her similar official) in any such judicial proceeding is hereby authorized by each of the
holders to make payments to the Trustee.
SECTION 12.05 Rights of USer in Event of Default under Section 12.01(.8) bY Issuer
this Indenture. If there has been no event of default under the Loan Agreement and an Event
.-'auk under Section 12.01 (8) should occur under this Indenture, the Trustee shall notify the User
ting of the occurrence of such default and the User shall have the right to remedy such default
nder within thirty days after such written notice, provided the User shall pay all expenses of
.ying such default, The exercise of the remedies set forth in Section 12.02 hereof is subject to
ht of the User under this Section to remedy a default as in this Section provided and limited.
SECTION 12.06 Subrogation Rights of Credit Obligor. If money is collected by the
e pursuant to the Letter of Credit, the Credit Obligor shall be subrogated to the rights
;sed under this Indenture by the Trustee and the Holders; provided, however, that the Credit
)r shall be precluded from exercising or enforcing such subrogation rights until the principal
.,mium, if any, and interest on all Bonds shall have been paid in full as provided in Article XVI
hereo(. For purposes of the subrogation rights of the Credit Obligor hereunder, (i) any reference
herei.~ to the registered owners or Holders of the Bonds shall mean the Credit Obligor, (ii) any
principal of, mandatory redemption premium, optional redemption premium and interest on the
Bond? paid with moneys collected pursuant to the Letter of Credit shall be deemed to be unpaid
hereuader, and (iii) the Credit obligor may exercise any rights it would have hereunder as the Holder
of the
to be
subro
heretu
Bonds. The subrogation rights granted to the Credit Obligor in this Indenture are not intended
exclusive of any other remedy or remedies available to the Credit Obligor, and such
,~ation rights shall be cumulative and shall be in addition to every other remedy given
~der or under the Financing Documents, or any other instrument or agreement with respect to
60
the r~
other
were
unde~
Unstr
to be
held]
aboV~
of th{
prese:
surrel
rights
Trust,
imbursement of moneys paid by the Credit Obligor pursuant to the Letter of Credit, and every
remedy now or hereafter existing at law or in equity or by statute.
SECTION 12.07 Application of Money Collected.
(a) The Trustee shall apPly the following funds solely for the purposes for which they
collected and held under this Indenture and not otherwise: (1) funds collected from a draw
the Letter of Credit, (2) money held in trust under Section 8.03 for the benefit of
tendered Bonds, and (3) funds and investments held in trust under Section 16.02 for the Bonds
)aid therefrom.
(b) Any money collected by the Trustee pursuant to this Article and any other sums then
,y the Trustee as part of the Trust Estate (other than the funds referred to in subsection (a)
shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
distribution of such money on account of principal (or premium, if any) or interest, upon
atation of the Bonds and the notation thereon of the payment if only partially paid and upon
tder thereof if fully paid:
(1) First: To the payment of all undeducted amounts due the Trustee under
Section 13.07;
(2) Second: To the payment of the whole amount then due and unpaid upon the
Outstanding Bonds for principal (and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected, with interest (to the extent that such
interest has been collected by the Trustee or a sum sufficient therefor has been so collected
and payment thereof is legally enforceable at the respective rate or rates prescribed therefor
in the Bonds) on overdue principal (and premium, if any) and (to the extent legally
enforceable) on overdue installments of interest; and in case such proceeds shall be
insufficient to pay in full the whole amount so due and unpaid upon such Bonds, then to the
payment of such principal (and premium, if any) and interest, without any preference or
priority, ratably according to the aggregate amount so due; provided, however, that payments
with respect to Pledged Bonds shall be made only after alt other Bonds have been Fully Paid;
(3) Third: To the payment of all amounts then due to the Credit Obligor pursuant
to the Credit Documents; and
(4) Fourth: To the payment of the remainder, if any, to the Issuer or to
whosoever may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
SECTION 12.08 Trustee May Enforce Claims without Possession of Bonds. All
of action and claims under this Indenture or the Bonds may be prosecuted and enforced by the
e without the possession of any of the Bonds or the production thereof in any proceeding
61
relati
as tm
reaso:
couns
been:
anyri
or fo~
it beix
mann
prejm
to obt
excep
Prem
to re~
respe~
g thereto, and any such proceeding instituted by the Trustee shall be brought in its own name
;tee of an express trust. Any recovery of judgment shall, after provision for the payment of the
~able compensation, expenses, disbursements and advances of the Trustee, its agents and
el, be for the ratable benefit of the Holders of the Bonds in respect of which such judgment has
:ecovered.
SECTION 12.09 Limitation on Suits by Holders. No Holder of any Bond shall have
ght to institute any proceeding, judicial or otherwise, under or with respect to this Indenture,
the appointment of a receiver or trustee or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Bonds 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 shall have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such proceeding;
(5) no direction inconsistent with such written request shall have been given to
the Trustee during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Bonds; and
(6) if the Letter of Credit is in effect and an Event of Default does not exist under
Section 12.01 (4), (5), or (6), the Credit Obligor shall have given its written consent to such
direction or request;
tg understood and intended that no one or more Holders of Bonds shall have any right in any
:r whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or
[ice the lien of this Indenture or the rights of any other Holders of Bonds, or to obtain or to seek
aha priority or preference over any other Holders or to enforce any right under this Indenture,
in the manner herein provided and for the equal and ratable benefit of all Outstanding Bonds.
SECTION 12.10 Unconditional Right of Bondholders to Receive Principal,
um and Interest. Notwithstanding any other provision in this Indenture other than those set
n Article III, the Holder of any Bond shall have the right, which is absolute and unconditional,
eive payment of the principal of (and premium, if any) and interest on such Bond on the
,tive stated maturities expressed in such Bond (or, in the case of redemption, on the redemption
62
date)
impai
instiU
shall
to th~
Bom
posi!
conti~
confe
other
cumu
existi
hereu
appro
or of
shall
acqui
the B~
the Ti
majol
Oblig
there[
the cc
and to institute suit for the enforcement of any such payment, and such rights shall not be
red without the consent of such Holder.
SECTION 12.11 Restoration of Positions. If the Trustee or any Bondholder shall have
tted any proceeding to enforce any right or remedy under this Indenture and such proceeding
have been discontinued or abandoned for any reason or shall have been determined adversely
Trustee or to such Bondholder, then and in every suCh case the Issuer, the Trustee and the
holders shall, subject to any determination in such proceeding, be restored to their former
>ns hereunder, and thereafter all rights and remedies of the Trustee and the Bondholders shall
me as though no such proceeding had been instituted.
SECTION 12.12 Rights and Remedies Cumulative. No right or remedy herein
:red upon or reserved to the Trustee or to the Bondholders is intended to be exclusive of any
right or remedy, and every such right and remedy shall, to the extent permitted by law, be
[ative and in addition to every other right and remedy given hereunder or now or hereafter
ag at law or in equity or otherwise. The assertion or employment of any right or remedy
nder, or otherwise, shall not prevent the concurrent assertion or employment of any other
priate right or remedy.
SECTION 12.13 Delay or Omission Not Waiver. No delay or omission of the Trustee
any Holder of any Bond to exercise any right or remedy accruing upon an Event of Default
impair any such right or remedy or constitute a waiver of any such Event of Default or an
.~scence therein. Every right and remedy given by this Article or by law to the Trustee or to
)ndholders may be exercised from time to time, and as often as may be deemed expedient, by
ustee or by the Bondholders, as the case may be.
SECTION 12.14 Control by Credit Obligor and Bondholders. The Holders of a
ity in principal amount of the Outstanding Bonds (but only with the consent of the Credit
or, if the Letter of Credit is in effect and the Credit Obligor has not dishonored any draws
nder and there has not occurred a Credit Obligor Insolvency Date) shall have the right, during
ntinuance of an Event of Default,
(1) to require the Trustee to proceed to enforce this Indenture, either by judicial
proceedings for the enforcement of the payment of the Bonds or otherwise, and
(2) to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
hereunder, provided that
(A) the provisions of Section 12.02 requiring a declaration of acceleration
and a draw under the Letter of Credit may not be modified or waived without the
consent of all Bondholders,
63
may,
Oblig
Insol,
Trust
hereu
Lette~
and fl
notic{
arisin
Loan
right
upon,
(B)
Indenture,
such direction shall not be in conflict with any rule of law or this
(C) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction,
(D) if such direction is given by the Holders of a majority in principal
amount of Bonds Outstanding, the Trustee shall have not determined that the action
so directed would be unjustly prejudicial to the Holders not taking part in such
direction.
SECTION 12.15 Waiver of Past Defaults.
(a) The Holders of not less than a majority in principal amount of the OUtstanding Bonds
but only with the consent of the Credit Obligor if the Letter of Credit is in effect and the Credit
or has not dishonored any draws thereunder and there has not occurred a Credit Obligor
,ency Date and subject to subsection (b) below), by Act of such Bondholders delivered to the
:e, the Issuer and the User, on behalf of the Holders of all the Bonds, waive any past default
nder, or under the Loan Agreement, and its consequences, except a default:
(1)
Bond,
in the payment of the principal of (or premium, if any) or interest on any
(2) in the payment of a User Bond Payment, or
(3) in respect of a covenant or provision hereof which under Article XIV cannot
be modified or amended without the consent of the Holder of each Outstanding Bond
affected.
(b) Anything herein to the contrary notwithstanding no default may be waived unless the
' of Credit shall have been reinstated to the full amount then required to be available thereunder
te Credit Obligor shall have rescinded any notice of default under the Credit Documents or any
of nonreinstatement of the Credit Amount of the Letter of Credit.
(c) Upon any such waiver, such default shall cease to exist, and any Event of Default
therefrom shall be deemed to have been cured, for every purpose of this Indenture and the
Agreement; but no such waiver shall extend to any subsequent or other default or impair any
:onsequent thereon.
SECTION 12.16 Waiver of Appraisement and Other Laws.
(a) To the full extent that it may lawfully so agree, the Issuer will not at any time insist
plead, claim or take the benefit or advantage of, any appraisement, valuation, stay, extension
64
or red
Inden~
hereaf
all wE
propel
succe!
cease
herein
institu
the Tr
its int~
revere
to resl
may
enact
Bondl
power
not viz
intend
premi~
unenfi
applic
.~mption law now or hereafter in force, in order to prevent or hinder the enforcement of this
ure; and the Issuer, for itself and all who may claim under it, so far as it or they now or
ter may lawfully do so, hereby waives the benefit of all such laws. The Issuer, for itself and
o may claim under it, waives, to the extent that it may lawfully do so, all right to have the
ty in the Trust Estate marshalled upon any enforcement hereof.
(b) If any law in this Section referred to and now in force, of which the Issuer or its
',sor or successors might take advantage despite this Section, shall hereafter be repealed or
to be in force, such law shall not thereafter be deemed to constitute any part of the contract
contained or to preclude the application of this Section.
SECTION 12.17 Suits to Protect the Trust Estate. The Trustee shall have power to
te and to maintain such proceedings as it may deem expedient to prevent any impairment of
sst Estate by any acts which may be unlawful or in violation of this Indenture and to protect
:rests and the interests of the Bondholders in the Trust Estate and in the rents, issues, profits,
res and other income arising therefrom, including power to institute and maintain proceedings
rain the enforcement of or compliance with any governmental enactment, rule or order that
,e unconstitutional or otherwise invalid, if the enfomement of or compliance with such
~ent, nde or order would impair the security hereunder or be prejudicial to the interests of the
Lolders or the Trustee.
SECTION 12.18 Remedies Subject to Applicable Law. All rights, remedies and
s provided by this Article may be exercised only to the extent that the exercise thereof does
flate any applicable provision of law in the premises, and all the provisions of this Article are
:d to be subject to all applicable mandatory provisions of law which may be controlling in the
',es and to be limited to the extent necessary so that they will not render this Indenture invalid,
~rceable or not entitled to be recorded, registered or filed under the provisions of any
~ble law.
[Remainder of Page Intentionally Left Blank]
65
veste~
man ~
for its
that:
ARTICLE XIII
THE TRUSTEE
SECTION 13.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) 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 bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed therein, upon
certificates 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 under a duty to
examine the same to determine whether or not they conform to the requirements of this
Indenture.
(b) If an Event of Default exists, the Trustee shall exercise such of the rights and powers
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
rould exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
own negligent action, its own negligent failure to act, or its own willful misconduct, except
(1) this subsection shall not be construed to limit the effect of subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith,
unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Bonds relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its duties
66
relatil
subj e~
hereu
in the
shall
paym
and s
intere
specil
the oc
is, or
13,01
any r{
order.
been '
by ar
that a
Trust,
its pa
or
respe,
there~
in it b
unles:
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture
tg to the conduct or affecting the liability of or affording protection to the Trustee shall be
:t to the provisions of this Section.
SECTION 13.02 Notice of Defaults. Within 90 days after the occurrence of any default
~der, the Trustee shall transmit by mail to all Bondholders as their names and addresses appear
Bond Register, notice of such default hereunder known to the Trustee, unless such default
have been cured or waived; provided, however, that, except in the case of a default in the
mt of Debt Service on any Bond, the Trustee shall be protected in withholding such notice if
~ long as the Trustee in good faith determines that the withholding of such notice is in the
sts of the Bondholders; and provided, further, that in the case of any default of the character
ied in Section 12.01(8) no such notice to Bondholders shall be given until at least 30 days after
currence thereof. For the purpose of this Section, the term "default" means any event which
after notice or lapse of time or both would become, an Event of Default.
SECTION 13.03 Certain Rights of Trustee. Except as otherwise provided in Section
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon
solution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
bond, debenture, coupon or other paper or document believed by it to be genuine and to have
signed or presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced
:ertificate or order executed by an Authorized Issuer Representative;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable
matter be proved or established prior to taking, suffering or omitting any action hereunder, the
.~e (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on
:t, rely upon a certificate executed by an Authorized Issuer Representative;
(4) the Trustee may consult with counsel and the written advice of Independent Counsel
Opinion of Independent Counsel shall be full and complete authorization and protection in
:t ofany action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance
~n;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested
/ this Indenture at the request or direction of any of the Bondholders pursuant to this Indenture,
such Bondholders shall have offered to the Trustee reasonable security or indemnity against
67
the cc
direct
perfo~
stated
conse
may
Trus
the bc
hereu
for a~
hereu
the B
the st
Trust~
or as
validi
may
with
need
The
other
from
sts, expenses and liabilities which might be incurred by it in compliance with such request or
ion, provided, that the Trustee cannot require such security or indemnity as a condition to the
mance by the Trustee of its obligations under Sections 8.01, 8.02 and 12.02;
(6) the Trustee shall not be bound to make any investigation into the facts or matters
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
at, order, bond, debenture, coupon or other paper or document but the Trustee, in its discretion,
~ake such further inquiry or investigation into such facts or matters as it may see fit, and, if the
~'e shall determine to make such further inquiry or investigation, it shall be entitled to examine
,oks and records of the Issuer, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
~der either directly or by or through agents or attorneys and the Trustee shall not be responsible
y misconduct or negligence on the part of any agent or attorney appointed with due care by it
ader.
SECTION 13.04 Not Responsible for Recitals. The recitals contained herein and in
)nds, except the certificate of authentication and registration on the Bonds, shall be taken as
~tements of the Issuer, and the Trustee assumes no responsibility for their correctness. The
makes no representations as to the value or condition of the Trust Estate or any part thereof,
to the title of the Issuer thereto or as to the security afforded thereby or hereby, or as to the
ty or sufficiency of this Indenture or of the Bonds.
SECTION 13.05 May Hold Bonds. The Trustee in its individual or any other capacity,
~ecome the owner or pledgee of Bonds and may otherwise deal with the Issuer and the User
he same rights it would have if it were not Trustee.
SECTION 13.06 Money Held in Trust. Money held by the Trustee in trust hereunder
hot be segregated from other funds except to the extent required by this Indenture or by law.
mstee shall be under no liability for interest on any money received by it hereunder except as
vise provided in Article IX.
SECTION 13.07 Compensation and Reimbursement.
(a) The Issuer agrees (subject to the provisions of Article III) to cause to be paid, solely
2rods made available to the Issuer for such purpose:
(1) to the Trustee fi-om time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust); and
(2) except as otherwise expressly provided herein, upon request, reimbursement
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
68
Trust~
such c
and a~
the Tr
all fm
payint
under
be suk
which
the U~
havinf
by Fee
jurisd:
busim
Docm
or in ti
not ex
prope',
conne
institu
separe
immu~
or' ves'
separe
exerci
exerci
Trust¢
were
accordance with any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and Independent counsel), except any such
expense, disbursement or advance as may be determined by a court of competent jurisdiction
to be attributable to the Trustee's negligence, or bad faith, or wilful misconduct.
(b) As security for the performance of the obligations of the Issuer under this Section the
e shall be secured under this Indenture by a lien prior to the Bonds, and for the payment of
ompensation, expenses, reimbursements and indemnity the Trustee shall have the right to use
ply any money held by it as a part of the Trust Estate; provided, however, that funds held by
~stee under Section 8.03 and Section 16.02 shall be used solely for the purposes thereof and
:ds received by the Trustee from the Letter of Credit shall be used solely for the purpose of
; Debt Service on, or the purchase price of, Bonds as herein provided, and such funds held
Section 8.03 and Section 16.02 and such funds received from the Letter of Credit shall never
ect to any lien imposed by this Section in favor of the Trustee.
SECTION 13.08 Eligibility_ of Trustee; Appointment of Co-Trustee.
(a) Except as provided in subsection (b), there shall at all times be a Trustee hereunder
shall be a commercial bank or trust company organized and doing business under the laws of
fited States or of any State, authorized under such laws to exercise corporate trust powers,
a combined capital and surplus of at least $50,000,000, subject to supervision or examination
eral or State authority.
(b) It is the purpose of this Indenture that there shall be no violation of the law of any
.ction denying or restricting the right of banking corporations or associations to transact
:ss as trustee in such jurisdiction. It is recognized that in case of litigation under Financing
.~ents, and in partic.ular in case of the enforcement thereof on any default or Event of Default,
~e case the Trustee deems that by reason of any present or future law of any jurisdiction it may
:rcise any of the powers, rights, or remedies herein granted to the Trustee or hold title to the
~ies, in trust, as herein granted, or take any action which may be desirable or necessary in
:tion therewith, it may be necessary that the Trustee appoint an additional individual or
tion as a separate or co-trustee pursuant to this section.
(c) In the event that the Trustee appoints an additional individual or institution as a
te or co-trustee, each and every remedy, power, right, claim, demand, cause of action,
fity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by
:ed in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such
te or co-trustee but only to the extent necessary to enable such separate or co-trustee to
se such powers, rights and remedies, and every covenant and obligation necessary to the
;e thereof by such separate or co-trustee shall run to and be enforceable by either of them. The
e shall be jointly liable for the actions taken by such separate or co-trustee, if such actions
aken at the direction of the Trustee.
69
trust¢
it su(
writi~
sepat
rem{
co-t~
appo!
purse:
Trust
an ir
withi
court
Credi
other
any ti
to the
then,
who
simil~
appoi
(d) Should any instrument in writing from the Issuer be required by the separate or co-
e so appointed by the Trustee for more fully and certainly vesting in and confirming to him or
h properties, rights, powers, trusts, duties and obligations, any and all such instruments in
~g shall, on request, be executed, acknowledged and delivered by the Issuer. In case any
ate or co-trustee or a successor to either shall die, become incapable of acting, resign or be
red, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or
~stee, so far as permitted by law, shall vest in and be exercised by the Trustee until the
ntment of a new trustee or successor to such separate or co-trustee.
SECTION 13.09 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment ora successor Trustee
ant to this Article shall become effective until the acceptance of appointment by the successor
ee under Section 13.10.
(b) The Trustee may resign at any time by giving written notice thereof to the Issuer. If
stmment of acceptance by a successor Trustee shall not have been delivered to the Trustee
~ 30 days after the giving of such notice of resignation, the resigning Trustee may petition any
of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may (but only with the consent of the Credit Obligor if the Letter of
is in effect and the Credit Obligor has not dishonored any draws thereunder and there has not
~ise been instituted insolvency proceedings with respect to the Credit Obligor) be removed at
me by Act of the Holders ora majority in principal amount of the Outstanding Bonds delivered
Trustee, the Issuer and the User.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 13.08 and shall fail to
resign after written request therefor by the Issuer or by any Bondholder who has been a
Holder of a Bond for at least 6 months, or
(2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt
or insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
in any such case, (i) ~he Issuer by a resolution may remove the Trustee, or (ii) any Bondholder
~as been a Holder of a Bond for at least 6 months may, on behalf of himself and all others
a'ly situated, petition any court of competent jurisdiction for the removal of the Trustee and the
ntment of a successor Trustee.
70
shall
of the
draw:
SUCC¢
recei,
cons(
dish(~
with
Trust
or in(
Credi
majo
retiri:
appoi
Issue
Issue
Bond
all ot
SUCC¢
each.
posta
Each
mainl
to the
the re
with~
fight
Trust~
conw
prop~
to su,
nevel
Trust~
confi~
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
>ccur in the office of Trustee for any cause, the Issuer, by a resolution, shall (with the consent
Credit Obligor if the Letter of Credit is in effect and the Credit Obligor has not dishonored any
thereunder and there has not occurred a Credit Obligor Insolvency Date) promptly appoint a
~sor Trustee. In case all or substantially all of the Trust Estate shall be in the possession of a
,er or trustee lawfully appointed, such receiver or trustee, by written insmtment, may (with the
:nt of the Credit Obligor if the Letter of Credit is in effect and the Credit Obligor has not
nored any draws thereunder and there has not otherwise been instituted insolvency proceedings
respect to the Credit Obligor) similarly appoint a successor to fill such vacancy until a new
se shall be so appointed by the Bondholders. If, within 1 year after such resignation, removal
apability or the occurrence of such vacancy, a successor Trustee shall (with the consent of the
t Obligor under the conditions herein prescribed) be appointed by Act of the Holders of a
:ity in principal amount of the Outstanding Bonds delivered to the Issuer, the User and the
~g Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
ntment, become the successor Trustee and supersede the successor Trustee appointed by the
or by such receiver or trustee. If no successor Trustee shall have been so appointed by the
or the Bondholders and accepted appointment in the manner hereinafter provided, any
tolder who has been a Holder ora Bond for at least 6 months may, on behalf of himself and
hers similarly situated, petition any court of competent jurisdiction for the appointment of a
ssor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee and
ippointment of a successor Trustee by mailing written notice of such event by first-class mail,
ge prepaid, to the Holders of Bonds as their names and addresses appear in the Bond Register.
notice shall include the name of the successor Trustee and the address of its Principal Office.
(g) Any successor Trustee shall be acceptable to any Rating Agency which shall then
ain a rating with respect to the Bonds.
SECTION 13.10 Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver
Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon
~ignation or removal of the retiring Trustee shall become effective and such successor Trustee,
ut any further act, deed or conveyance, shall become vested with all the estates, properties,
, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the successor
,~e, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
ying and transferring to such successor Trustee upon the trusts herein expressed all the estates,
rties, fights, powers and trusts of the retiring Trustee; and shall duly assign, transfer and deliver
h successor Trustee all property and money held by such retiring Trustee hereunder, subject
:heless to its lien, if any, provided for in Section 13.07. Upon request of any such successor
:e, the Issuer shall execute any and all instruments for more fully and certainly vesting in and'
ming to such successor Trustee all such estates, properties, rights, powers and trusts.
71
(b) No successor Trustee shall accept its appointment unless at the time of such
accel~tance such successor Trustee shall be qualified and eligible under this Article, to the extent
operative.
SECTION 13.11 Merger, Conversion, Consolidation or Succession to Business.
Any ~orporation or association into which the Trustee may be merged or conVerted or with which
it ma ~, be consolidated, or any corporation or association resulting from any merger, conversion or
cons( didation to which the Trustee shall be a party, or any corporation or association succeeding to
all ol
Trust
unde2
act o~
deliv
such
with
substantially all of the corporate trust business of the Trustee, shall be the successor of the
e.e hereunder, provided such corporation or association shall be otherwise qualified and eligible
· this Article, to the extent operative, without the execution or filing of any paper or any further
~ the part of any of the parties hereto. In case any Bonds shall have been authenticated, but not
.-red, by the Trustee then in office, any successor by merger, conversion or consolidation to
~uthenticating Trustee may adopt such authentication and deliver the Bonds so authenticated
the same effect as if such successor Trustee had itself authenticated such Bonds.
[Remainder of Page Intentionally Left Blank]
72
With(
the Ti
one o
Trust~
ARTICLE XIV
SUPPLEMENTAL INDENTURES, AMENDMENTS TO USER
AGREEMENT AND AMENDMENTS OF LETTER OF CREDIT
SECTION 14.01 Supplemental Indentures Without Consent of Bondholders.
,ut the consent of the Holders of any Bonds, the Issuer, when authorized by a resolution, and
ustee may, subject to the provisions of Sections 14.06 and 14.07, from time to time enter into
more indentures supplemental hereto or in amendment hereof, in form satisfactory to the
:, for any of the following purposes:
(1) to correct or amplify the description of any property at any time subject to the
lien of this Indenture, or better to assure, convey and confirm unto the Trustee any property
subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property; or
(2) to add to the conditions, limitations and restrictions on the authorized amount,
terms or purposes of issue of the Bonds; or
(3) to evidence the succession of another corporation to the Issuer and the
assumption by any such successor of the covenants of the Issuer herein and in the Bonds
contained; or
(4) to add to the covenants of the Issuer or the User for the benefit of the Holders
of Bonds and to make the occurrence, or the occurrence and continuance, of a default in any
of such additional covenants an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture; provided, however, that with respect to any
such covenant, such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default; or
(5)
to surrender any right or power herein conferred upon the Issuer or the User;
or
(6) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein or to make any other provisions, with
respect to matters or questions arising under this Indenture, which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not adversely affect the
interests of the Holders of the Bonds; or
(7) to permit fully registered Bonds to be exchanged for coupon Bonds (which
may be registrable as to principal only), provided that the Trustee receives an Opinion of
73
cons~
affec
Issue
the pi
or in
etimi
Hold~
or al~
there'
Bond Counsel with respect to the Bonds to the effect that such exchange is permitted by
applicable law and will not cause interest on the Bonds referenced in said Opinion to become
Taxable; or
(8) to make further provisions with respect to the administration and operation
of the Book-Entry System and the transfer, payment, selection for redemption and
redemption of Bonds in accordance therewith; or
(9) to secure or maintain ratings from a Rating Agency, provided that (i) the
changes necessary to obtain or secure such ratings do not adversely affect the interests of the
Holders of the Bonds and (ii) the Trustee receives an Opinion of Bond Counsel to the effect
that such changes are permitted by applicable law will not cause interest on the Bonds
referenced in said Opinion to become Taxable; or
(10) to modify, amend or supplement this Indenture in such manner as to permit
the qualification hereof under the Trust Indenture Act of, 1939 or any similar federal statute
hereafter in effect or to permit the qualification of the Bonds for sale under the securities
laws of any of the states of the United States, and, if they so determine, to add to this
Indenture such other terms, conditions and provisions as may be permitted by said Trust
Indenture Act of 1939 or similar federal statute.
SECTION 14.02 Supplemental Indentures With Consent of Bondholders. With the
at of the Holders of not less than a majority in principal amount of the Bonds then Outstanding
:ed by such supplemental or amendatory indenture, by Act of such Holders delivered to the
and the Trustee, the Issuer, when authorized by a resolution, and the Trustee may, subject to
)visions of Sections 14.06 and 14.07, enter into an indenture or indentures supplemental hereto
amendment hereof for the purpose of adding any provisions to or changing in any manner or
aating any of the provisions of this Indenture or of modifying in any manner the fights of the
.~rs of the Bonds under this Indenture; provided, however, that no such supplemental indenture
y amendment shall, without the consent of the Holder of each Outstanding Bond affected
)y,
(1) change the stated maturity of the principal of, or any installment of interest
on, any Bond, or reduce the principal amount thereof or the interest thereon or any premium
payable upon the redemption thereof, or change any place of payment where, or the coin or
currency in which, any Bond, or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the stated maturity thereof (or, in
the case of redemption, on or after the redemption date); or
(2) reduce the percentage in principal amount of the Outstanding Bonds the
consent of whose Holders is required for any such supplemental indenture or any amendment
to the Loan Agreement, or the consent of whose Holders is required for any waiver provided
74
Cons
subje~
deliw
Agree
for in this Indenture of compliance with certain provisions of this Indenture or certain
defaults hereunder or under the Loan Agreement and their consequences; or
(3) modify or alter the provisions of the proviso to the definition of the term
"Outstanding"; or
(4) modify any of the provisions of this Section or Section 12.15, except to
increase any percentage provided thereby or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Bond
affected thereby; or
(5) permit the creation of any lien ranking prior to or on a parity with the lien of
this Indenture with respect to the Trust Estate or any part thereof or terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder of any Bond of
the security afforded by the lien of this Indenture; or
(6) release any rights under the Letter of Credit; provided, however, no consent
of the Bondholders will be required for any extension of the term of the Letter of Credit by
the Credit Obligor, or for the acceptance by the Trustee of a Substitute Letter of Credit and
the concomitant release of the then Existing Letter of Credit as provided in Section 4.10, or
any amendment to the Letter of Credit which is provided for, and contemplated by, this
Indenture.
SECTION 14.03 Amendments and Supplements to Loan Agreement Without
:nt of Bondholders. Without the consent of the Holders of any Bonds, the Trustee may,
:t to the provisions of Sections 14.06 and 14.07, from time to time consent to the execution and
,ry by the Issuer and the User of one or more amendments or supplements to the Loan
ment, in form satisfactory to the Trustee, for any one of the following purposes:
(1) to correct or amplify the description of any property at any time described in
the Loan Agreement, or to subject to the Loan Agreement additional property;
(2) to evidence the succession of a successor to the User and the assumption by
any such successor of the agreements and covenants of the User contained in the Loan
Agreement;
(3) to add to the covenants of the User for the benefit of the Is. suer, the Trustee,
or the Holders of Bonds, and to make the occurrence, or the occurrence and continuance, of
a default in any of such additional covenants a Loan Agreement Default permitting the
enforcement of all or any of the several remedies provided in the Loan Agreement; provided,
however, that with respect to any such additional covenant such amendment to the Loan
Agreement may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may provide for an
75
of Bc
of thc
subje~
Issue:
satisf
elimi~
of the
that x,
the U
Servi~
due a
affec
deten
auth~
mad~
the pa
but it
or cha
of the
the a(
immediate enforcement upon such default or may limit the remedies available to the Trustee
or the Issuer, as the case may be, upon such default;
(4)
User; or
to surrender any right or power conferred by the Loan Agreement upon the
SECTION 14.04 Amendments and Supplements to Loan Agreement With Consent
ndholders. With the consent of the Holders of not less than a majority in principal amount
: Bonds then outstanding, by Act of such Holders delivered to the Trustee, the Trustee may,
:t to the provisions of Sections 14.06 and 14.07, consent to the execution and delivery by the
and the User of one or more amendments or supplements to the Loan Agreement, in form
ctory to the Trustee, for the purpose of adding any provisions or changing in any manner or
rating any of the provisions of the Loan Agreement or of modifying in any manner the rights
Issuer, the Trustee or the Holders of the Bonds under the Loan Agreement; provided, however,
5thout the consent of the Holders of all Outstanding Bonds, no such amendment shall relieve
~er from the obligation to make Basic Payments at times and in amounts sufficient to pay Debt
:e on the Bonds when due and payable or to pay the purchase price of Tendered Bonds when
ad payable.
SECTION 14.05 Discretion of Trustee; Acts of Bondholders.
(a) The Trustee may in its discretion determine whether or not any Bonds would be
ed by any supplemental indenture or amendment to the Loan Agreement and any such
.~ination shall be conclusive upon the Holders of all Bonds, whether theretofore or thereafter
~ticated and delivered hereunder. The Trustee shall not be liable for any such determination
in good faith.
(b) It shall not be necessary for any Act of Bondholders under this Section to approve
rticular form of any proposed supplemental indenture or amendment to the Loan Agreement,
shall be sufficient if such Act shall approve the substance thereof.
SECTION 14.06 Consent of Credit Obligor. Subject to Section 1.12, no amendment
nge to this Indenture or the Loan Agreement shall be made without the prior written consent
Credit Obligor.
SECTION 14.07 Execution of Supplemental Indentures. In executing, or accepting
[ditional trusts created by, any supplemental indenture permitted by this Article or the
76
(5) to cure any ambiguity, to correct or supplement any provision therein which
may be inconsistent with any other provision therein or to make any provisions, with respect
to matters or questions arising under the Loan Agreement, which shall not be inconsistent
with the provisions of the Loan Agreement, provided such action shall not adversely affect
the interests of the Holders of the Bonds.
modi
Loan
prote
supp
may,
alTleI
Loan
supp]
and ~,
Hold
there
auth~
may;
matte
modi
inde~
in ex
cons~
curin
Ratin
does:
anO
by al
Taxa'
telTll,
the L
Inden
to the
orin~
Opini
fication thereby of the trusts created by this Indenture, or consenting to the amendment of the
Agreement, the Trustee shall be entitled to receive, and, subject to Section 13.01, shall be fully
cted in relying upon, an Opinion of Bond Counsel stating that the execution of such
.emental indenture or amendment is authorized or permitted by this Indenture. The Trustee
but shall not be obligated to, enter into any such supplemental indenture or consent to any such
.dment which affects the Trustee's own rights, duties or immunities under this Indenture, the
Agreement or otherwise.
SECTION 14.08 Effect of Supplemental Indentures. Upon the execution of any
emental indenture under this Article, this Indenture shall be modified in accordance therewith
~uch supplemental indenture shall form a part of this Indenture for all purposes; and every
:r of Bonds theretofore or thereafter authenticated and delivered hereunder shall be bound
9y.
SECTION14.09 Reference in Bonds to Supplemental Indentures Bonds
nticated and delivered after the execution of any supplemental indenture pursuant to this Article
and if required by the Trustee shall, bear a notation in form approved by the Trustee as to any
r provided for in such supplemental indenture. If the Issuer shall so determine, new Bonds so
fled as to conform, in the opinion of the Trustee and the Issuer, to any such supplemental
ture may be prepared and executed by the Issuer and authenticated and delivered by the Trustee
:hange for Outstanding Bonds.
SECTION 14.10 Amendment of Letter of Credit.
(a) The Trustee may, without the consent of or notice to the Holders of the Bonds,
:nt to any amendment, modification or other change of the Letter of Credit for the purpose of
g any ambiguity or formal defect or omission or obtaining a rating on the Bonds from any
g Agency, provided that (i) the Trustee, in its sole judgment, shall determine that such change
hot adversely affect the interests of the Holders of the Bonds and (ii) the Trustee shall receive
finion of Bond Counsel with respect to the Bonds to the effect that such change is permitted
plicable law and will not cause interest on the Bonds referenced in said Opinion to become
)le.
(b) Except as provided in subsection (a) of this Section, and except for extensions of the
ffthe Letter of Credit by the Credit Obligor, no amendment, modification or other change of
:tter of Credit shall be made.without the consent of the Holders of all Bonds Outstanding.
SECTION 14.11 Opinion of Bond Counsel. No amendment or change to this
ture, the Loan Agreement, the Letter of Credit shall be effective until there has been delivered
Trustee an Opinion of Bond Counsel that such amendment or change will not, whether solely
:onjunction with other facts or circumstances, cause the interest on the Bonds referenced in said
on to be or become Taxable.
77
for th
impo~
Trust
upon
notic~
resigr
accep
Rema
then,
there{
or if a
prior ~
Agent
ARTICLE xV
THE REMARKETING AGENT
AND THE TENDER AGENT
SECTION 15.01 Remarketing Agent.
(a) SouthTrust Securities, Inc. is hereby appointed as the initial "Remarketing Agent"
Bonds, subject to the conditions set forth in this Section.
(b) The Remarketing Agent shall signify its acceptance of the duties and obligations
.~d upon it by this Indenture by execution and delivery of an agreement satisfactory to the
,~e.
(c) The Remarketing Agent shall be authorized by law to perform all the duties imposed
it by this Indenture.
(d) The Remarketing Agent may resign at any time by giving 30 days' prior written
thereof to the Trustee, 'the User and the Credit Obligor; provided, however, that no such
~tion shall become effective until a successor Remarketing Agent has been appointed and has
Ied its duties and obligations hereunder.
(e) The User may, with the prior written consent of the Credit Obligor, remove the
rketing Agent at any time upon 30 days' prior written notice thereof to the Remarketing Agent
.e Trustee.
(f) If at any time:
(1) the Remarketing Agent shall cease to be eligible under this Section and shall
fail to resign after written request therefor by the User, or
(2) the Remarketing Agent shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Remarketing Agent or of its property shall be
appointed or any public officer shall take charge or control of the Remarketing Agent or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation,
.n any such case, the User may remove the Remarketing Agent upon 7 days' written notice
fto the Remarketing Agent, the Credit Obligor and the User.
(g) If the Remarketing Agent shall resign, be removed or become incapable of acting,
vacancy shall occur in the office of Remarketing Agent for any cause, the User shall, with the
vritten consent of the User and the Credit Obligor, promptly appoint a successor Remarketing
78
be ac,
with:
Rem~
notic~
addre
Rem~
oftht
Tend
Bond
Inden
provi~
authe]
the tn,
delive
appoi:
princi
busim
at leg
to su'
Agent
report
the pu
to be i
conve:
merge
or assr
of the
under
or the
th) Any successor Remarketing Agent shall be appropriately registered and licensed, and
:eptable to the User, the Trustee and to any Rating Agency which shall then maintain a rating
,espect to the Bonds.
ti) The Trustee shall give notice of each resignation and each removal of the
.rketing Agent and each appointment of a successor Remarketing Agent by mailing written
', of such event by first-class mail, postage prepaid, to the Holders of Bonds as their names and-
sses appear in the Bond Register. Each notice shall include the name of the successor
rketing Agent and the address of its principal office.
SECTION 15.02 Tender Agent.
(a) At the written request of the Trustee, the User shall appoint an agent to act on behalf
Trustee in the acceptance of delivery of Bonds tendered for purchase pursuant to the Optional
:r or Mandatory Tender provisions of this Indenture and in the authentication and delivery of
~ pursuant to the transfer and exchange provisions of this Indenture. For all purposes of this
ture, ti) Bonds to be purchased pursuant to the Optional Tender or Mandatory Tender
;ions of this Indenture may be delivered to the Tender Agent, as well as the Trustee, and (ii) the
~tication and delivery of Bonds by a duly authorized officer of the Tender Agent pursuant to
nsfer and exchange provisions of this Indenture shall be deemed to be the authentication and
ry of Bonds "by the Trustee".
(b) Any Tender Agent appointed hereunder shall signify its acceptance of such
~tment by execution and delivery of an agreement satisfactory to the Trustee.
(c) Any such Tender Agent shall at all times be a bank or trust company having its
· ~al office in New York, New York and shall at all times be a corporation organized and doing
',ss under the laws of the United States or of any state with a combined capital and surplus of
$5,000,000 and authorized under such laws to exercise corporate trust powers and subject
~rvision and examination by federal or state authority and shall be acceptable to any Rating
:y which shall then maintain a rating with respect to the Bonds. If such corporation publishes
~ of condition at least annually pursuant to law or the requirements of such authority, then for
rposes of this Section, the combined capital and surplus of such corporation shall be deemed
ts combined capital and surplus as set forth in its most recent report of condition so published.
(d) Any corporation or association into which any Tender Agent may be merged or
xed or with which it may be consolidated, or any corporation or association resulting from any
r, consolidation or conversion to which any Tender Agent shall be a party, or any corporation
~ciation succeeding to the corporate trust business of any Tender Agent, shall be the successor
Tender Agent hereunder, if such successor corporation or association is otherwise eligible
!his Section, without the execution or filing of any further act on the part of the parties hereto
Tender Agent or such successor corporation or association.
79
the T
by gi,~
notice
to be
give
appm~
Regis~
for its
13.05
(e) Any Tender Agent may at any time resign by giving written notice of resignation to
astee and the User. The Trustee may at any time terminate the agency of any Tender Agent
ing written notice of termination to such Tender Agent and the User. Upon receiving such a
of resignation or upon such a termination, or in case at any time any Tender Agent shall cease
:ligible under this Section, the Trustee shall promptly appoint a successor Tender Agent, shall
rritten notice of such appointment to the Issuer and the User, and shall mail notice of such
ttment to all Holders of Bonds as the names and addresses of such Holders appear on the Bond
~er.
(f) The User shall to pay to the Tender Agent from time to time reasonable compensation
services, as provided in the Loan Agreement. The provisions of Sections 5.05, 13.04 and
shall be applicable to any Tender Agent.
[Remainder of Page Intentionally Left Blank]
80
ARTICLE XVI
DEFEASANCE
Payment of Indebtedness; Satisfaction and Discharge of
SECTION 16.01
Inden lure.
an Au1
shall c
exchm
terrain
pay, a~,
then h,
(a) Whenever all Indenture Indebtedness has been Fully Paid, then, upon the request of
horized Issuer Representative, this Indenture and the lien, rights and interests created hereby
ease, determine and become null and void (except as to any surviving rights of transfer or
tge of Bonds herein or therein provided for) and the Trustee shall execute and deliver a
ation statement and such instruments of satisfaction and discharge as may be necessary and
sign, transfer and deliver to the Issuer or upon the order of the Issuer, all cash and securities
,qd by it hereunder as a part of the Trust Estate.
(b) A Bond shall be deemed "Fully Paid" if:
(1) such Bond has been canceled by the Trustee or delivered to the Trustee for
cancellation, or
(2) such Bond shall have matured or been called for redemption and, on such
maturity date or redemption date, money for the payment of Debt Service on such Bond is
held by the Trustee in trust for the benefit of the person entitled thereto, or
(3) such Bond is alleged to have been mutilated, destroyed, lost or stolen and has
been replaced as provided in Section 5.03, or
(4) a trust for the payment of such Bond has been established in accordance with
Section 16.02 and the Trustee shall have received (i) an Opinion of Counsel experienced in
bankruptcy matters stating in effect that upon the occurrence of an Act of Bankruptcy, money
and investments in such trust will not be subject to any preference claim under the Federal
Bankruptcy Code, which opinion shall be satisfactory to any Rating Agency then rating the
Bonds and (ii) an Opinion of Bond Counsel with respect to the Bonds which states in effect
that the establishment of such trust in accordance with the terms thereof will not cause
interest on the Bonds referenced in said Opinion to become Taxable and (iii) a certificate of
an Independent certified public accountant or firm thereof to the effect that the funds on
deposit in such trust and the income therefrom without reinvestment will be sufficient to pay
when due the principal of, premium if any and interest on such Bonds. The Trustee shall
give each Rating Agency that maintains a rating with respect to the Bonds 10 days' notice
of its intent to establish such a trust for the payment of Bonds, but failure to give any such
notice shall not result in a Bond not being deemed Fully Paid.
81
Paid"
all su
for su
the dt
funds
the m
not be
of the
payak
Servi~
invesl
(c) . Indenture Indebtedness other than Debt Service on the Bonds shall be deemed "Fully
whenever the Issuer has paid, or made provisions satisfactory to the Trustee for payment of,
:h Indenture Indebtedness other than Debt Service on the Bonds.
SECTION 16.02 Trust for Payment of Debt Service.
(a) The Issuer may provide for the payment of any of the Bonds by establishing a trust
ch purpose with the Trustee and depositing therein cash or Federal Securities which (assuming
.e and punctual payment of the principal of and interest on such Federal Securities) will provide
sufficient to pay the Debt Service on such Bonds as the same becomes due and payable until
aturity or redemption of such Bonds; provided, however, that:
(1) such Federal Securities must not be subject to redemption prior to their
respective maturities at the option of the issuer of such Securities,
(2) if any of such Bonds are to be redeemed prior to their respective maturities,
either (i) the Trustee shall receive evidence that notice of such redemption has been given
in accordance with the provisions of this Indenture and such Bonds or (ii) the Issuer shall
confer on the Trustee irrevocable authority for the giving of such notice on behalf of the
Issuer,
(3) such trust must be established only during a Fixed Rate Period and, if
established during a Fixed Rate Period, all Bonds to be retired with funds from such trust
must either mature or be called for redemption on or before the date immediately following
such Fixed Rate Period, and
(4) the Trustee has received the opinions referred to in Section 16.01(b)(4).
(b) Cash and Federal Securities deposited with the Trustee pursuant to this Section shall
a part of the Trust Estate but shall constitute a separate, irrevocable trust fund for the benefit
Holders of the Bonds to be paid fi'om such fund. Such cash and the principal and interest
le on such Federal Securities shall be applied by the Trustee solely to the payment of Debt
:e on such Bonds. Any funds deposited with the Trustee pursuant to this Section shall be
ed only in Federal Securities meeting the requirements of this Section.
[Remainder of Page Intentionally Left Blank]
82
deterr
other
proviz,
Amer
in the
impos
paym,
by the
books
relatiz
Bond:
invest
ofeac
and ir
amou
inspe(
ARTICLE XVlI
FEDERAL REBATE PAYMENTS
SECTION 17.01 Computations and Payments of Rebate.
(a) The User, acting on behalf of the Issuer, shall, in a timely manner, make all
finations and calculations, file all reports, forms, and returns, remit all moneys and take all
action necessary for compliance with the provisions of Section 148(f) or any successor
ion of the Internal Revenue Code with respect to rebate payments to the United States of
.ca. The Trustee shall not be responsible for (i) determining that any investment of moneys
Construction Fund or the Bond Fund or the Bond Purchase Fund complies with the limitations
ed by Section 148 of the Internal Revenue Code, or (ii) calculating the amount of, or making
mt of, any rebate due to the United States of America.
(b) All costs and expenses of compliance with the provisions of this Article shall be paid
User.
SECTION 17.02 Accounting Records and Reports. The Trustee shall keep proper
of record and account in which complete and correct entries shall be made of all transactions
tg to the receipt, investment, disbursement, allocation and application of the proceeds of the
and the revenues of the Project. Such records shall specify the account or fund to which each
ment (or portiOn thereof) held by the Trustee is to be allocated and shall set forth, in the case
h investment security, (a) its purchase price, (b) identifying information, including par amount,
terest rate, (c) the amount received at maturity or its sale price, as the case may be, and (d) the
~ts and dates of any payments made with respect thereto. Such records shall be open to
:tion by the Issuer at any reasonable time during regular business hours on reasonable notice.
[Remainder of Page Intentionally Left Blank]
83
execl
offic~
[SEA
Atte
By:
(SE~
Attes
By:
Nam~
Title:
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this instrument to be duly
.ted, and their respective corporate seals to be hereunto affixed and the same attested, by
rs thereof duly authorized thereunto.
ST. LUCIE COUNTY, FLORIDA
L]
By:
Chair, Board of County Commissioners
St. Lucie County, Florida
L)
Clerk of the Circuit Court,
ex-officio Clerk to the Board of
County Commissioners
SOUTHTRUST BANK
By:
Name: Woodie E. Alston
Title: Vice President and Trust Officer
84
The I
irrew
const
letter
herei
or of
not
inve
Depo
agent
the n:
Inde~
reqm
made
as is
TRA
TO
Depo
No.
Date,
"Issu~
for va
or reg
EXHIBIT A
,rincipal of and interest on the Bonds are payable from payments to be made under the
>cable, direct-pay letter of credit issued by SouthTrust Bank, referenced herein, which
[tutes a binding and enforceable obligation thereof, or under any irrevocable, direct-pay
of credit issued in substitution therefor in accordance with the Indenture referenced
~. The Bonds are not deposits or obligations of SouthTrust Bank, or any aff'fliate thereof,
any issuer of any substitute letter of credit. The Bonds and the said letters of credit are
asured by the Federal Deposit Insurance Corporation. The Bonds are subject to
tment risks, including loss of principal amount invested.
Notice By Securities Depository_
Unless the within Bond is presented by an authorized representative of the Securities
dtory (as defined in the Indenture referenced in the within Bond), to the Issuer or its
for registration of transfer, exchange, or payment, and any Bond issued is registered in
~me of the Securities Depository or the Securities Depository Nominee (as defined in the
tture referenced in the within Bond), as the case may be, or in such other name as is
.sted by an authorized representative of the Securities Depository (and any payment is
to the Securities Depository or the Securities Depository Nominee or to such other entity
requested by an authorized representative of the Securities Depository), ANY
~SFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
NY PERSON IS WRONGFUL inasmuch as the registered owner hereof, the Securities
dtory or Securities Depository Nominee, as the case may be, has an interest herein.
R-1
UNITED STATES OF AMERICA
STATE OF FLORIDA
ST. LUCIE COUNTY, FLORIDA
VARIABLE/FIXED RATE
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(A-1 ROOF TRUSSES LTD., COMPANY PROJECT), SERIES 2001
Date: November __, 2001 Maturity Date: November 1, 2021 CUSIP:
ST. LUCIE COUNTY, FLORIDA, a political subdivision of the State of Florida (the
i", which term includes any successor corporation under the Indenture hereinafter referenced),
.ue received, hereby promises to pay solely from the source hereinafter described to:
CEDE & CO.,
stered assigns, the principal amount of:
Exhibit A - 1
TWO MILLION SEVEN HUNDRED FIFTH THOUSAND DOLLARS
($2,750,000)
on th{', Maturity Date specified above and to pay solely from the source hereinafter described interest
on sa~ d principal mount from the date hereof or the most recent date to which interest has been paid
or dr/y provided for, until the principal amount hereof shall become due and payable, at the Variable
Rate )r the Fixed Rate, as hereinafter provided.
Auth~ )rity for Issuance
This bond is one of a duly authorized issue of bonds of the Issuer, aggregating $2,750,000
in pr.' ncipal amount and of the above designation (the "Bonds"), issued pursuant to and for the
purpcses expressed in Chapter 159, Part II, Florida Statutes (the "Enabling Law") under and pursuant
to a 'Imst Indenture dated November 1, 2001 (the "Indenture")between the Issuer and SouthTrust
Bank, a national banking association with its principal office in Birmingham, Alabama (the
"Trm tee", which term includes any successor trustee under the Indenture) to finance a "project"
withi: ~ the meaning of the Enabling Law (the "Project") and loan the proceeds to A-1 Roof Trusses
Ltd., Company, (the "User"), pursuant to a Loan Agreement dated November 1, 2001 (the "Loan
Agre, ~.ment").
Capitalized terms used herein without definition shall have the meanings assigned in the
Inder .ture.
Secm ity
The Bonds are limited obligations of the Issuer payable solely from amounts payable by the
User )ursuant to the Loan Agreement with respect to Debt Service on the Bonds and any other
rever res, rentals or receipts derived by the Issuer from the Project (the "Project Revenues"). The
Bond~ are not an indebtedness of the State of Florida or any political subdivision thereof other than
St. LUcie County, Florida and are only a limited obligation of the Issuer as aforesaid.
Pursuant to the Loan Agreement, the User has agreed to make payments at times and in
amo~{,nts sufficient to pay Debt Service when due on the Bonds and to pay the purchase price of
Bond s tendered for purchase pursuant to the Mandatory Tender and Optional Tender provisions of
the Ir denture. Pursuant to the Indenture the Issuer has assigned the Loan Agreement (except certain
rights thereunder of the Issuer) and Project Revenues to the Trustee to secure payment of the Bonds.
(in its
amou
pay tl
for p~
the T
price
AS additional security for the payment of the Bonds, the User will cause SouthTrust Bank
capacity as issuer of the initial Letter of Credit referred to below, the "Credit Obligor") to issue
evocable letter of credit in favor of the Trustee in the amount of (i) the aggregate principal
nt of the Bonds, to enable the Trustee to pay the principal amount of Bonds when due and to
te principal portion of the purchase price of Bonds tendered (or deemed tendered) to the Trustee
~chase, plus (ii) interest on the Bonds at the Maximum Rate for a period of 56 days, to enable
rustee to pay interest on the Bonds when due and to pay the interest portion of the purchase
of Bonds tendered (or deemed tendered) to the Trustee for purchase. The said letter of credit
Exhibit A - 2
will e
cond
subse
with
of cr,
Cred
alnoi
guar~
draw
User
Doc[
doct~
and s
inter~
of be
admi
ofsai
asset
Payn
6 mc
Intm
basis
sourc
on an
when
herei~
on (il
imm~
Rate
Peri(
date
payal
calen.
Peril
Rate
Date
:xpire, unless earlier terminated or extended, on November 15, 2006. Subject to the terms and
~tions of the Indenture, the User may, at its option, replace such letter of credit and any
quent letter of credit with a substitute letter of credit meeting the requirements of the Indenture
respect thereto. The initial letter of credit so delivered to the Trustee and any substitute letter
.~dit delivered to the Trustee pursuant to the Indenture are herein referred to as the "Letter of
.t". The initial Letter of Credit is issued pursuant to various credit and security agreements
~g the Credit Obligor, the Issuer, the User, and persons related to the User, which evidence,
ntee, or provide security for the obligations to the User to reimburse the Credit Obligor for
~ under the Letter of Credit and the observance and performance of various agreements of the
related thereto (collectively the "Credit Documents").
Copies of the Indenture, the Loan Agreement, the initial Letter of Credit and the Credit
ments are on file at the Principal Office of the Trustee and reference is hereby made to such
nents for the provisions, among others, with respect to the respective rights, duties, obligations
ecurity of the Issuer, the User, the Trustee, the Credit Obligor and the owners of beneficial
,sts in the Bonds and the terms and conditions upon which the purchase, transfer and exchange
neficial ownership interests in the Bonds are to be made by means of a Book-Entry System
~istered by the Securities Depository, to and by all of which terms, conditions and provisions
d documents the owner of any beneficial interest in this bond, by the acquisition hereof, hereby
ts and agrees to be bound.
:ent of Debt Service
Interest at the Variable Rate and interest at the Fixed Rate for a Fixed Rate Period of less than
~ths shall be computed on the basis ora 365 day year for the actual number of days elapsed.
:st at the Fixed Rate for each Fixed Rate Period of 6 months or more shall be computed on the
of a 360-day year with 12 months of 30 days each. Interest shall be payable, solely from the
hereinafter described, on overdue principal of this bond and (to the extent legally enforceable)
overdue installment of interest on tl~is bond at the rate of interest last applicable to this bond
such overdue principal or interest became delinquent.
Interest on this bond shall be payable in arrears on the following dates (each such date being
~ called an "Interest Payment Date"): (1) with respect to interest payable at the Variable Rate,
the first day of each month in each year during the Variable Rate Period and (ii) on the day
,diately following any Variable Rate Period (each such date being herein called a "Variable
interest Payment Date"); (2)with respect to interest payable at a Fixed Rate for any Fixed Rate
of less than 6 months, on the day immediately following such Fixed Rate Period (each such
eing herein called a "Fixed Rate Interest Payment Date"); and (3) with respect to interest
~le at a Fixed Rate for any Fixed Rate Period of 6 months or more, (i) on the first day of the
tar month that is 6 months after the first day of the calendar month in which such Fixed Rate
:l began, (ii) semiannually thereafter, and (iii) on the day immediately following such Fixed
)eriod (each such date being herein called a "Fixed Rate Interest Payment Date").
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Mll, as provided in the Indenture hereinafter referenced, be paid to the person in whose name
Exhibit A - 3
this I:
shall
Payrr
or no'
Rate l
forth'
paid
Date
Rec(
Date
or dn
Bond
on th
Busit
prem!
on an
the P~
any E
on su
conth
accel:
coin~
paym
Intere
varyii
notati
heret,
Rate
follox
rate tc
becon
earliei
Varial
ond is registered at the close of business on the Regular Record Date for such interest, which
be the day next preceding any Variable Rate Interest Payment Date or any Fixed Rate Interest
ent Date with respect to a Fixed Rate Period of less than 6 months, or the 15th day (whether
: a Business Day) next preceding any Fixed'Rate Interest Payment Date with respect to a Fixed
>eriod of 6 months or more. Any such interest not so punctually paid or duly provided for shall
vith cease to be payable to the registered Holder on such Regular Record Date, and shall be
o the person in whose name this bond is registered at the close of business on a Special Record
for the payment of such defaulted interest to be fixed by the Trustee; notice of such Special
· d Date to be given to Holders of the Bonds not less than 10 days prior to such Special Record
Payment of interest on this bond due on any Interest Payment Date shall be made by check
ft mailed by the Trustee to the person entitled thereto at the address thereof appearing in the
Register maintained by the Tmstee. Such payments shall be deemed timely made if so mailed
Interest Payment Date (or, if such Interest Payment Date is not a Business Day, on the
~ss Day next following such Interest Payment Date). Payment of the principal of (and
um, if any, on) this bond and payment of accrued interest on this bond due upon redemption
~, date other than an Interest Payment Date shall be made only upon surrender of this bond at
incipal Office of the Trustee. Upon the terms and conditions of the Indenture the Holder of
ond in a principal amount of not less than $10~},000 may request that payment of Debt Service
:h Bond be made by wire transfer to an account of such Holder maintained at a bank in the
rental United States or by any other method providing for payment in same-day funds that is
table to the Trustee.
All payments of principal of, premium, if any, and interest on this bond shall be made in such
~r currency of the United States of America as at the time of payment is legal tender for the
~nt of public and private debts.
st Rate
This Bond may bear interest at either a variable rate or a fixed rate, and if at a fixed rate, for
~g periods of time, with such consequences as are specified in the Indenture, without any
>n being made hereon. Each owner of this Bond takes it subject to the terms then applicable
and may obtain from the Trustee verification of the then applicable provisions hereof.
Variable Rate
The Bonds shall initially bear interest at a Variable Rate. Upon the expiration of any Fixed
eriod, the Bonds shall again bear interest at the Variable Rate, unless the day immediately
ring such Fixed Rate Period is the effective date of a continuation or conversion of the interest
. a Fixed Rate (such date being herein called a "Conversion Date"). Once the Variable Rate
les effective, it shall remain in effect until and including the day immediately prior to the
of(i) a Conversion Date or (ii) the £mal maturity of the Bonds. Each period during which the
>le Rate is in effect is herein called a "Variable Rate Period".
Exhibit A - 4
Agen
and fi
so de
the V
imme
incluc
howe~
deterr
deterr
Rate
Maxi
Rate
inter~
Bond:
accou
howe~
lesser
suppo
has be
Bond:
if so r
has be
User,
Succe~
as pre
effect
shall
deterrr
Varia[
days pi
of the 1
Rate P
follow/
prior tc
Fixed
The Variable Rate shall be a fluctuating rate per annum determined by the Remarketing
~ on the first day of each Variable Rate Period (beginning upon initial issuance of the Bonds
fllowing a Fixed Rate Period) and on each Thursday during a Variable Rate Period (or, if such
day is not a Business Day, on the immediately preceding Business Day). The Variable Rate
ermined shall become effective (i) on the date of determination, if such date is the first day of
~riable Rate Period, or (ii) if such date is not the first day of a Variable Rate Period, on the day
:liately following the date of determination, and once effective shall remain in effect until and
ling the next determination date or, if sooner, the end of such Variable Rate Period; provided,
/er, that if the Remarketing Agent falls to determine the Variable Rate on any such
~ination date, the last Variable Rate in effect shall remain in effect until and including the next
~ination date, and provided further, if the Remarketing Agent fails to determine the Variable
>n two consecutive determination dates therefor, the Variable Rate shall be equal to the
aum Rate until such determination date as the Remarketing Agent shall determine the Variable
a accordance with the Indenture.
The Variable Rate shall be determined by the Remarketing Agent and shall be the lowest
;t rate that would, in the opinion of the Remarketing Agent, result in the market value of the
;being 100% of the principal amount thereof on the date of such determination, taking into
at relevant market conditions and credit rating factors as they exist on such date; provided,
'er, that the Variable Rate may never exceed the Maximum Rate. The Maximum Rate is the
of (i) the maximum rate permitted by law or (ii) for any period during which the Bonds are
'ted by a Letter of Credit, the maximum rate per annum, specified therein, upon which there
en calculated the amount available to be drawn on such Letter of Credit to pay interest on the
· Upon the request of any Bondholder, the Trustee shall confirm (by telephone and in writing,
,quested) the Variable Rate then in effect. SouthTrust Securities, Inc., Birmingham, Alabama,
~,n appointed as "Remarketing Agent" pursuant to the Indenture. The Indenture permits the
with the consent of the Credit Obligor, to remove such Remarketing Agent and appoint a
sor, subject to certain terms and conditions specified in the Indenture therefor.
Fixed Rate
The Bonds shall bear interest at a Fixed Rate during each period of time specified by the User
~ided in the Indenture and described herein. Each period during which a Fixed Rate is in
s herein called a "Fixed Rate Period". The Fixed Rate shall be a fixed rate per annum which
e applicable during the entire Fixed Rate Period and for each Fixed Rate Period shall be
ined by the Remarketing Agent as provided in the Indenture and described herein.
The User may elect that the Bonds bear interest at a Fixed Rate for any period after the initial
le Rate Period by delivery of written notice of such election to the Trustee not less than 45
ior to the proposed Conversion Date· Such notice shall specify the first day and the last day
5xed Rate Period elected; provided, however, that (i) if such election is made during a Fixed
eriod, the specified Conversion Date may not be sooner than the first day immediately
ng the Fixed Rate Period then in effect, (ii) the Conversion Date may not be less than 45 days
the Stated Expiration Date of the Letter of Credit (if any) then in effect, (iii) the designated
~,ate Period may not be less than 15 days, and (iv) the Fixed Rate Period may not extend
Exhibit A - 5
beyo~
shall
Rem~
whicl
in the
deten
on s~
the Fi
to
a.m.
Corn
the T~
a Fixe
or cir
Credi
ofaF
prece~
Optio
of an~
appoi:
Denm
Perio{
tende~
to exe
the Tr
Ten&
specif
Optim
and (i'
princi1
may 1:
effecti
such
upon
Busi~:
td the day immediately prior to the f'mal maturiVy of the Bonds. Any such election by the User
be irrevocable after 10:00 a.m. (Birmingham, Alabama time) on the last Business Day
diately prior to the proposed Conversion Date.
Not less than 1 nor more than 10 days prior to the proposed Conversion Date, the
rketing Agent shall determine the interest rate for such Fixed Rate Period (the "Fixed Rate"),
shall be the lowest interest rate that would, in the opinion of the Remarketing Agent, result
market value of the Bonds being 100% of the principal amount thereof on the date of such
fination, taking into account relevant market conditions and credit rating factors as they exist
:h date, and assuming that the Fixed Rate Period began on such date; provided, however, that
xed Rate may not exceed the Maximum Rate.
Notwithstanding the foregoing, a Fixed Rate shall not be established if (i) the User delivers
Trustee written notice of revocation of its election to establish the Fixed Rate before 10:00
iBirmingham, Alabama time) on the last Business Day immediately prior to the proposed
:rsion Date or (ii) prior to 10:00 a.m. (Birmingham, Alabama time) on the Conversion Date
ustee does not receive an Opinion of Bond Counsel stating in effect that such conversion to
d Rate is lawfifl under applicable law and, whether solely or in conjunction with any other fact
:umstance, will not cause interest on the Bonds to be Taxable and the Substitute Letter of
(if any) that is to be effective on such Conversion Date. If all conditions to the establishment
xed Rate are not satisfied, the Bonds shall continue (or, if a Fixed Rate Period ended on the
ling day, shall begin) to bear interest at the Variable Rate from the proposed Conversion Date.
2al Tender
Upon the terms and conditions provided in the Indenture and described herein, the Holder
~ Bond shall have the right to tender such Bond to the Trustee or to any Tender Agent
~ted pursuant to the Indenture for purchase in whole or in part (if in part, only in an Authorized
aination) on any Business Day during any Variable Rate Period, but not during any Fixed Rate
1, at a purchase price equal to 100% of the principal amount of Bonds (or portions thereof)
ed plus accrued interest to the specified purchase date (an "Optional Tender Date"). In order
:cise such option with respect to any Bond, the Holder thereof must deliver notice thereof to
.tstee, as provided below, at its Principal Office at least 7 days prior to the proposed Optional
Date.
Any such notice of Optional Tender must be duly executed by the Bondholder and must
(i) the name of the registered Holder of the Bond to be tendered for purchase, (ii) the
il Tender Date, (iii) the certificate number (if applicable) and principal amount of such Bond,
7) the principal amount of such Bond to be purchased (if such amount is less than the entire
~al amount, the amount to be purchased must be in an Authorized Denomination). Such notice
e given to the Trustee in writing or by telephone, but no such telephonic notice shall be
~,e unless confirmed in writing delivered to the Trustee not more than 2 Business Days after
,qephonic notice. A form of the Optional Tender Notice may be obtained from the Trustee
'equest. If any notice of Optional Tender specifies an Optional Tender Date that is not a
:ss Day, then such notice shall be deemed to specify the next following Business Day as the
Exhibit A - 6
Opti~
amol
Bom
Tend
with~
or a3
Prin
Alab
duly
trans
recol
proc~
shall
Opti~
trans:
be de
been
of all
Optic
and
Uns~
perio
of B~
Man,
Paid)
Inden
on th
propc
(iii) tl
occur
of thc
the I~
elf ecl
on th{
the et
Perio
Credi
such
)nal Tender Date. Unless a notice of Optional Tender indicates that less than the entire principal
tnt of the Bond is being tendered for purchase, the Holder will be deemed to have tendered the
in its entire principal amount for purchase. Upon delivery of a written notice of Optional
~r, the election to tender shall be irrevocable and binding upon such Holder and may not be
trawn.
Ifa written notice of Optional Tender shall have been duly given with respect to any Bond
y authorized part thereof, the Holder of such Bond shall deliver such Bond to the Trustee at its
ipal Office or to the Tender Agent at its Principal Office at or before 10:00 a.m. (Birmingham,
ama time) on the Optional Tender Date, together with an instrument of assignment or transfer
~xecuted in blank. During a period in which the Book-Entry System is in effect for the Bonds,
~'ers of the beneficial ownership interests in the Bonds on such date shall be effected on the
ds of the Securities DepositOry by the Securities Depository in accordance with rules and
:dures therefor and any requirement for physical delivery of Bonds on an Optional Tender Date
be deemed satisfied thereby. Any Bond or any authorized part thereof for which a notice of
~nal Tender has been given but which is not so delivered to the Trustee or Tender Agent or
.-'erred on the records of the Securities Depository (an "Unsurrendered Bond") shall nevertheless
emed to have been tendered by the Holder thereof on the Optional Tender Date. If there has
irrevocably deposited in the Bond Purchase Fund an amount sufficient to pay the purchase price
Bonds or any authorized part thereof tendered or deemed to be tendered for purchase on an
,nal Tender Date, any Unsurrendered Bond shall be deemed to have been tendered for purchase
)urchased from the Holder thereof on such Optional Tender Date and the Holder of any
rrendered Bond shall not be entitled to receive interest on such Unsurrendered Bond for any
:l on and after the Optional Tender Date.
Anything in this Bond or the Indenture to the contrary notwithstanding, no Optional Tender
nds shall be permitted for Pledged Bonds or for any Bond which is deemed Fully Paid.
[atory Tender
The Holder of each Bond (other than a Pledged Bond or a Bond that has been deemed Fully
who has not elected to retain the Bond or Bonds thereof in the manner provided in the
ture therefor shall be required to tender such Bond to the Trustee or Tender Agent for purchase
following dates (each such date being herein called a "Mandatory. Tender Date"): (i) each
:ed Conversion Date, (ii) the date immediately following the expiration ora Fixed Rate Period,
le first day of the calendar month in which the Stated Expiration Date of the Letter of Credit
~, unless a Substitute Letter of Credit and Related Documentation all meeting the requirements
Indenture therefor is delivered to the Trustee in accordance with the terms of Section '4.10 of
:denture, (iv) a Credit Obligor Insolvency Date, (v) that date which is 15 days prior to the
ive date of any change in the frequency with which or the formula by which the interest rate
,' Bonds is established during a Variable Rate Period, (vi) that date which is 15 days prior to
fective date of any change in the optional tender terms of the Bonds during a Variable Rate
and (vii) that date which is 10 days after the Trustee receives a notice in writing from the
Obligor, which notice (1) is delivered not later than the close of business on the tenth day (if
enth day is not a Business Day, on the then next succeeding Business Day) after the date on
Exhibit A - 7
whic~
Intere
has o
Mand
Mand
ofnol
of Cr{
accru~
ofsai,
Credi
Secti{
Oblig
Tend{
to the
than
any c
than
claus~
other
retain
a Mar
Princ:
notice
be irr,
of the
10:00
the Credit Obligor has honored a B Drawing under the Letter of Credit and (2) states that the
st Portion (as defined in the Letter of Credit) will not be reinstated or that an Event of Default
:curred and is continuing under the Credit Documents and (3) directs the Trustee to effect
atory Tender of the Bonds on such date; provided, however, the Trustee shall not effect a
atory Tender of any Bond under subparagraph (vii) unless the Trustee verifies, prior to delivery
ice of such Mandatory Tender, that the amount of the Interest Portion (as defined in the Letter
;dit) under the Letter of Credit shall then equal or exceed the amount necessary to pay interest
.~d on such Bond until and including the proposed Mandatory Tender Date, and if the amount
Interest Portion is then insufficient for such purpose, the Trustee shall immediately notify the
Obligor thereof in writing, and shall declare an Event of Default under Section 12.01 (5) or
~n 12.01(6) of the Indenture effective as of the date of receipt of the notice from the Credit
>r pursuant to subparagraph (vii). If any of such dates is not a Business Day, the Mandatory
..r Date shall be deemed to be the next succeeding Business Day.
Notice of a Mandatory Tender shall be given by the Trustee by registered or certified mail
Bondholder or Bondholders at the address thereof appearing on the Bond Register (a) not less
;0 days prior to the Mandatory Tender Date with respect to a Mandatory Tender pursuant to
.-'clauses (i), (ii), (iii), (iv), (v) or (vi) of the immediately preceding paragraph and (b) not less
days prior to the Mandatory Tender Date with respect to a Mandatory Tender pursuant to
(vii) of the immediately preceding paragraph. Such notice of Mandatory Tender shall, among
~hings, specify the Mandatory Tender Date and the procedure by which a Holder may elect to
the Bond or Bonds thereof.
Upon the terms and conditions provided in the Indenture, the Holder of any Bond subject to
.datory Tender may elect to retain the Bond or Bonds thereof by written notice dblivered to the
pal Office of the Trustee not less than five days prior to the Mandatory Tender Date, which
shall be effective upon receipt, shall meet the requirements of the Indenture therefor, and shall
,~vocable and binding upon the Holder delivering the same and upon all subsequent Holders
Bonds so retained (including any Bonds issued in exchange therefor or upon transfer thereof).
All Bonds to be tendered by the Holders thereof for purchase shall be delivered at or before
a.m. (Birmingham, Alabama time) on the Mandatory Tender Date to the Trustee at its
Principal Office or to the Tender Agent at its Principal Office, together with an instrument of
assignment or transfer duly executed in blank. During a period in which the Book,Entry System is
in effqct for the Bonds, transfers of the beneficial Ownership interests in the Bonds on such date shall
be eff~c,ted on the records of the Securities Depository by the Securities Depository in accordance
with :a~les and procedures therefor and any requirement for physical delivery of Bonds on a
Mandatory Tender Date shall be deemed satisfied thereby. All Bonds so to be purchased that are
not se delivered to the Trustee or Tender Agent on the Mandatory Tender Date or so transferred on
the re,
have ~
been i
of all
Unsm
therec
:ords of the Securities Depository ("Unsurrendered Bonds") shall nevertheless be deemed to
~een tendered for purchase by the Holders thereof on the Mandatory Tender Date. If there has
:revocably deposited in the Bond Purchase Fund an amount sufficient to pay the purchase price
Bonds tendered or deemed tendered for purchase on the Mandatory Tender Date, any
rendered Bond shall be deemed to be tendered for purchase and purchased from the Holder
f on such Mandatory Tender Date and the Holder of any Unsurrendered Bond shall not be
Exhibit A - 8
entitl
Man(
to M:
as pn
to ex:
Rede
reder~
the B
notict
there{
Trust
of the
Trust
casua
whol~
alllOU
Dem
User
sd to receive interest on such Unsurrendered Bond for any period on and after the relevant
[atory Tender Date.
After notice of a Mandatory Tender has been given by the Trustee, the Bonds shall be subject
mdatory Tender (except with respect to Bonds which the Holders thereof have elected to retain
~vided in the Indenture) notwithstanding the fact that the reasons for giving such notice cease
st or are no longer applicable.
~aption
In the manner and with the effect provided in the Indenture, the Bonds will be subject to
lption prior to maturity as follows:
(1) Extraordinary_ Redemption
The Bonds are subject to redemption, at the direction of the User as to principal amounts of
onds to be redeemed, prior to maturity on the earliest Business Day for which the required
: may be given, in whole or in part, at a redemption price equal to 100% of the principal amount
if, plus accrued interest to the date of redemption, without premium or penalty, in the event the
~e shall receive, or there shall be made available to the Tmstee, for such purpose: (a) proceeds
Bonds remaining in the Construction Fund after completion of the Project is evidenced to the
se as provided in the Loan Agreement, or (b) proceeds of (i) insurance (whether from title,
[ty, or other, insurance) or condemnation awards with respect to the Project or (ii) the sale (in
,~ or in part) of the Project. In case of partial redemption, Bonds in an aggregate principal
at equal to such remaining or available amounts, rounded :Upwards to the nearest Authorized
ruination, shall be redeemed.
(2) Optional Redemption
The Bonds are subject to optional redemption by the Issuer (exercised upon direction of the
aSth consent of the Credit Obligor and if no Loan Agreement Default exists) as follows:
(A) during any Variable Rate Period, in whole or in part, in authorized multiples
of an Authorized Denomination on any Business Day at a redemption price equal to 100%
of the principal amount thereof plus accrued interest to the date of redemption, without
premium or penalty; and
(B) during any Fixed Rate Period, in whole or in part in authorized multiples of
an Authorized Denomination on any Business Day during the applicable redemption period
set forth in the table below at the applicable redemption price (expressed as a percentage of
principal amount) set forth in the table below plus accrued interest to the date of redemption:
Redemption Period
Redemption
Price
Exhibit A - 9
Fixed Rate Period of 4 years or less:
Not subject to redemption N/A
Fixed Rate Period of more than 4 years:
Not subject to redemption prior
to 4th anniversary of Conversion Date N/A
4th anniversary of Conversion
Date through any day prior to
5th anniversary of Conversion Date 102%
5th anniversary of Conversion Date
through any day prior to
6th anniversary of Conversion Date 101%
6th anniversary of Conversion
Date and any day thereafter 100%
provi ted that there shall be no optional redemption which requires the payment of a redemption
premium unless there is then in effect a Letter of Credit which may and shall be drawn on to pay
such t Iremium. If less than all Bonds Outstanding are called for redemption, the Bonds or interests
of the Beneficial Owners thereon to be redeemed shall be selected as provided in the Indenture and
descri bed herein.
(3) Mandatory. Redemption
(a) If a Determination of Taxability is made, the Bonds are subject to mandatory
redemption as a whole on any date selected by the Trustee within 90 days after such Determination
of Tm :ability at a redemption price for each Bond redeemed equal to 100% of the principal mount
there{ f plus accrued interest to the redemption date. If, in the event of the occurrence of a
Deter nination of Taxability, the Issuer redeems the Bonds in compliance with the provisions of the
Inden:ure and the Bonds requiring such redemption as a result of the occurrence of such
Detennination of Taxability, then (any provision of the Indenture or of the Bonds to the contrary
notwi :hstanding) the inaccuracy of any representation or warranty contained in the Indenture, the
Loan~ [greement, or in the Bongs or the failure by the Issuer or the User to observe or perform any
coven, mt or agreement contained in the Indenture, the Loan Agreement, or in the Bonds that resulted
in suc9 Determination of Taxability shall not be considered a default or an Event of Default by the
Issuer under the Indenture or a default by the User under the Loan Agreement and such mandatory
rede,rn~,tion by the Issuer shall constitute a full and complete satisfaction to the holder of each Bond
of all (:laims, and for all damages, costs and expenses, arising out of or based on any such inaccuracy
or fail are.
(4) Notice; Selection For Redemption
Exhibit A - 10
condi
durin
shall
on th
as the
deten
mare
own¢
less tl
Syste:
Any redemption shall be made in the manner, upon the notice, and on the terms and
:~ons provided in the Indenture. If less than all of the Outstanding Bonds are to be redeemed
,~ a period in which the Book-Entry System is in effect for the Bonds, the Securities Depository
tetermine the amount of the interest of each Direct Participant in the Bonds to be redeemed,
basis of the smallest Authorized Denomination of the Bonds, by lot or by such other method
Securities Depository shall deem fair and appropriate. The Securities Depository shall so
line the amount of the interest of each Direct Participant in the Bonds to be redeemed in such
,r so as to assure that after such redemption no Beneficial Owner shall retain a beneficial
~hip interest in the Bonds in an aggregate amount less than an Authorized Denomination. If
~an all the Outstanding Bonds are to be redeemed during a period in which the Book-Entry
aa is not in effect for the Bonds, the Trustee shall select the particular Bonds to be redeemed
not less than 30 nor more than 60 days prior to the redemption date from the Outstanding Bonds
whict3 have not previously been called for redemption, on the basis of the smallest Authorized
Denomination__ of the Bonds, by lot or by such method as the Trustee shall deem fair and appropriate.
The
~[rustee shall so select Bonds for redemption in such manner so as to assure that after such
reder~ption no Bondholder shall retain Bonds in an aggregate amount less than an Authorized
Deno~nination. Bonds (or portions thereof) for the redemption and payment of which provision has
been ~ nade and notice thereof given all in accordance with the Indenture shall thereupon cease to be
entitk,d to the benefits of the Indenture and shall cease to bear interest from and after the date fixed
De£at
then
proviz
and o:
User
princi
contai
at the
or the
unde:
thisk
and o
come]
effect
a Crec
be ma
Inden
of Crc
temption unless default be made in payment of the redemption price.
It, Remedies, Rights of HOlders, Amendments
If an "Event of Default", as defined in the Indenture, shall occur, the principal of all Bonds
)utstanding may become or be declared due and payable in the manner and with the effect
led in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof
'the Loan Agreement and the modification of the rights and obligations of the Issuer and the
md the rights of the Holders of the Bonds at any time with the consent of a majority in
· >al amount of the Bonds at the time Outstanding affected by such modification. The Indenture
ns provisions permitting the Holders of specified percentages in principal amount of Bonds
Iime Outstanding, on behalf of the Holders of all the Bonds, to waive compliance by the Issuer
User with certain provisions of the Indenture or the Loan Agreement and certain past defaults
such documents and the consequences thereof. Any such consent or waiver by the Holder of
~nd shall be conclusive and binding upon such Holder and upon all future Holders of this bond
any bond issued in exchange therefor or in lieu hereof, whether or not notation of such
t or waiver is made upon this bond. The Indenture provides that if the Letter of Credit is in
and the Credit Obligor has not dishonored any draws thereunder and there has not occurred
5t Obligor Insolvency Date, then (i) no amendment to the Indenture or Loan Agreement may
de without the consent of the Credit Obligor and (ii) that any remedies available under the
:ure (other than mandatory acceleration of the Bonds and mandatory draws under the Letter
dit) may be exercised only with the consent of the Credit Obligor.
Exhibit A - 11
instit
there
exce
Reg!
Syst¢
the S
the 1~
Denc
regisl
there~
intere
and
excl~
transt
ofthi
by, o~
Agen
writi~
Dent
or tr~
Bond
of ali
charg
shall
there~
whos~
herei~
Issuel
Genel
coven
the Is:
to andy
The Holder of this bond shall have no fight to enforce the provisions of the Indenture, or to
~te any action to enforce the covenants therein, or to take any action with respect to any default
ander, or to institute, appear in or defend any suit or other proceeding with respect thereto,
~t as provided in the Indenture.
'.tration, Transfer and Exchange
The Bonds are initially issued in Authorized Denominations pursuant to a Book-Entry
m to be administered by the Securities Depository and registered in the name of and held by
,~curities Depository Nominee all as more particularly provided in the Indenture. In the event
ook-Entry System for the Bonds is discontinued, Bonds in certificated form in Authorized
minations will be physically distributed to the Beneficial Owners thereof, the Bonds will be
ered in the names of the owners thereof on the registration books of the Trustee pertaining
:o, the Trustee shall make payments of principal of, purchase price of, premium (if any) and
st on the Bonds to the registered owners thereof as provided in the Bonds and the Indenture,
he provisions of this bond and of the Indenture with respect to registration, transfer and
nge of Bonds by the registered owners thereof shall apply.
As provided in the Indenture and subject to certain limitations therein set forth, this bond is
~rable on the Bond Register maintained at the Principal Office of the Trustee, upon surrender
bond for transfer at such office or at the Principal Office of the Tender Agent, duly endorsed
accompanied by a written instrument of transfer in form satisfactory to the Trustee or Tender
t duly executed by, the registered Holder hereof or the attorney thereof, duly authorized in
tg, and thereupon one or more new Bonds of the same maturity, of any Authorized
ninations and for a like aggregate principal amount, will be issued to the designated transferee
~sferees. As provided in the Indenture and subject to certain limitations therein set forth, the
are exchangeable for other Bonds of the same maturity of any Authorized Denominations and
ce aggregate principal amount, as requested by the Holder surrendering the same. No service
shall be made for any transfer or exchange hereinbefore referenced, but the Holder hereof
,ay a sum sufficient to cover any tax or other governmental charge payable in connection
v/th.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the person in
.' name this bond is registered as the owner hereof for the purpose of receiving payment as
t provided and for all other purposes, whether or not this bond is overdue, and neither the
the Trustee nor any agent thereof shall be affected by notice to the contrary.
No covenant or agreement contained in this bond or the Indenture shall be deemed to be a
mt or agreement of any officer, agent or employee of the Issuer, and neither any member of
:uer nor any officer executing this bond shall be liable personally on this bond or be subject
personal liability or accountability by reason of the issuance of this bond.
Exhibit A - 12
hap
issua
mam
Trus1
bom
put
It is hereby certified, recited and declared that all acts, conditions and things required to exist,
,n and be performed precedent to and in the execution and delivery of the Indenture and
nce of this bond do exist, have happened and have been performed in due time, form and
ter as required by law.
Unless the certificate of authentication and registration hereon has been executed by the
ee or by the Tender Agent by the manual signature of a duly authorized officer thereof, this
shall not be entitled to any benefit under the Indenture or be valid or obligatory for any
~se.
Exhibit A - 13
mane
abow
[SEA
Attes
By:
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in its name by the
al or facsimile signature of the Chair of the Board of County Commissioners of St. Lucie
~y, Florida and attested with the manual or facsimile signature of its Clerk all as of the date first
written.
ST. LUCIE COUNTY, FLORIDA
By:
Chair, Board of County
Commissioners of St. Lucie
County, Florida
__ Clerk of the Circuit Court,
ex-officio Clerk to the Board of
County Commissioners
Exhibit A - 14
Date
regist{
name
Certificate of AuthentiCation and Registration
tf Authentication and Registration: November __, 2001
This is one of the Bonds referred to in the within mentioned Trust Indenture and has been
:red by St. Lucie County, Florida on the registration books maintained with the Trustee in the
>fthe above-named registered owner on the Authentication and Registration Date noted above.
SOUTHTRUST BANK, as Trustee
By:
Its:
Authorized Officer
Exhibit A - 15
of the
Signa
(Ban~
By:
Meda
* Sigl
recog
(STA:
Signa
Assignment
For value received, hereby sell(s), assign(s) and transfer(s) unto __
this bond and hereby irrevocably constitute(s) and appoint(s)
attorney to transfer this bond on the books of the within named Issuer at the office
within named Trustee, with full power of substitution in the premises.
Dated:
ure Guaranteed:*
or Trust Company)
(Authorized OffiCer)
ilion Number:
NOTE: The name signed to this assignment must
correspond with the name of the payee written on the
face of the within bond in all respects, without
alteration, enlargement or change whatsoever.
Exhibit A - 16
~ature(s) must be guaranteed by an eligible guarantor institution which is a member of the
~ized signature guarantee program, i.e., Securities Transfer Agents Medallion Program
viP), Stock Exchanges Medallion Program (SEMP), or New York Stock Exchange Medallion
:ure Program (MSP).
TO:
FROlX
SUB J:
for pa
of the
recorc
due a[
The n
consti
Agree
and n(
its obi
EXHIBIT B
FORM OF REQUISITION CERTIFICATE
~CT:
SOUTHTRUST BANK, AS TRUSTEE
A-1 ROOF TRUSSES LTD., COMPANY
(THE "COMPANY")
TRUST INDENTURE DATED'AS OF THE FIRST DAY OF NOVEMBER,
2001 (Capitalized terms used herein as defined in the Trust Indenture)
This represents Requisition Certificate No. __ in the total amount of $
rment of those Costs of the Project detailed in the schedule attached.
The undersigned does certify that:
1. All of the expenditures for which monies are requested hereby represent proper Costs
?roject, have not been included in a previous Requisition Certificate and have been properly
ed on the Company's books.
2. The monies requested thereby are not greater than those necessary to meet obligations
.d payable or to reimburse the Company for funds actually advanced for Costs of the Project.
~onies requested do not include retention or other monies not yet due or earned under
uction contracts. The requisition is in compliance with the requirements of the Loan
ment and Indenture.
3. The Company is not in default under the Loan Agreement or the Credit Documents
,thing has occurred to the knowledge of the Company that would prevent the performance of
igations under the Loan Agreement or the Credit Documents.
Executed this day of
A-1 ROOF TRUSSES LTD., COMPANY
By:
Its:
an Authorized User Representative
Exhibit B - 1
Exhibit B - 2
Appr
as Cr,
By:
Title:
Date:
)ved by SouthTrust Bank,
.~dit Obligor, as Lender.
Exhibit B - 3
Sour]
Birm
as ~I
abov
The
prim
purcl
is del
ANE
Prinl
EXHIBIT C
Optional Tender Notice
iTrust Bank
ingham, Alabama
'rustee
Re:
Variable/Fixed Rate Industrial Development Revenue Bonds (A-1 Roof Trusses Ltd.,
Company, Project), issued by St. Lucie County, Florida pursuant to Trust Indenture
dated November 1, 2001
The undersigned is the registered owner of the following Bond, which is part of the
.~-referenced issue of Bonds:
Certificate Number (if applicable):
Principal Amount:
mdersigned hereby elects to have (check one as appropriate, and be certain to designate the
ipal amount tendered, if less than the entire amount):
the entire principal amount
$ (must be an authorized multiple of the smallest Authorized
Denomination) of the principal amount of such Bond
· tsed on the following date (specify a Business Day that is at least 7 days after notice of tender
ivered to the Trustee):
[Optional Tender Date]
THE UNDERSIGNED ACKNOWLEDGES THAT THIS ELECTION IS IRREVOCABLE
BINDING ON THE UNDERSIGNED AND CANNOT BE WITHDRAWN.
Dated: 20
or Type
Name of Bondholder
Address
Telephone Number
Exhibit C - 1
Exhibit C - 2
Sign~
Me&
* Sig
reco~
(sT^
Sign~
ture
(The name and signature must correspond exactly to
the name appearing on the registration books
maintained by the Trustee)
llion Number:
nature(s) must be guaranteed by an eligible guarantor institution which is a member of the
nized signature guarantee program, i.e., Securities Transfer Agents Medallion Program
MP), Stock Exchanges Medallion Program (SEMP), or New York Stock Exchange Medallion
lure Program (MSP).
G:\01338\l\TFusl; indenture {1) .wpd Exhibit C - 3
EXHIBIT "B"
LOAN AGREEMENT
G:\01338' ~bond reso(1).wpd
LOAN AGREEMENT
Dated November 1, 2001
By and between
ST. LUCIE COUNTY, FLORIDA
and
A-1 ROOF TRUSSES LTD., COMPANY
ARTI
ARTI
ARTB
ARTI¢
ARTI(
ART]
TABLE OF CONTENTS
Page
2LE I DEFINITIONS AND REPRESENTATIONS
SECTION 1.01
SECTION 1.02
SECTION 1.03
Definitions ........................................... 2
Representations by the Issuer ............................. 3
Representations by the User .............................. 4
2LE II ACQUISITION OF THE PROJECT
SECTION 2.01
SECTION 2.02
SECTION 2.03
Advance of Bond Proceeds; Agreement to Acquire Project ..... 4
No Warranty by Issuer .................................. 5
Certificate of Completion of the Project .................... 5'
2LE III TERM AND PAYMENT PROVISIONS
SECTION 3.01
SECTION 3.02
SECTION 3.03
SECTION 3.04
SECTION 3.05
SECTION 3.06
SECTION 3.07
Term of Loan Agreement ................................ 6
Loan Payments; Draws Under Letter of Credit ............... 6
Administrative Expense Payments ........................ 7
Overdue Loan Agreement Payments ....................... 8
Advances by Issuer or Trustee ............................ 8
Indemnity of Issuer and Trustee ........................... 8
Obligations of User Unconditional ....................... 10
2LE IV ASSIGNMENT OF LOAN AGREEMENT
SECTION 4.01
SECTION 4.02
Assignment by User ................................... 11
Assignment by Issuer .................................. 11
2LE V COVENANTS AND REPRESENTATIONS OF THE USER
2LE VI EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01
SECTION 6.02
SECTION 6.03
SECTION 6.04
Events of Default ..................................... 14
Remedies on Default .................................. 15
Availability of Remedies ............................... 15
Agreement to Pay Attorneys' Fees and Expenses ............ 15
VII
INTERNAL REVENUE CODE
SECTION 7.01
SECTION 7.02
General Compliance with Tax Requirements ................ 16
User's Obligation Upon Determination of Taxability ......... 17
ARTI
SECTION 7.03
Additional Tax Covenants of the User ..................... 17
CLE VIII
SPECIAL COVENANTS OF ISSUER AND
PROVISIONS OF GENERAL APPLICATION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
8.09
8.10
8.11
Corporate Existence of Issuer ........................... 24
Redemption of Bonds by Issuer .......................... 24
Investment of Funds ................................... 24
Issuer's Liabilities Limited .............................. 24
Prior Agreements ..................................... 25
Execution Counterparts ................................ 25
Binding Effect; Governing Law .......................... 25
Severability ......................................... 25
Article and Section Captions ............................ 25
Notices ............................................. 25
Amendment of Indenture and this Loan Agreement .......... 26
LUC
"IssU~
unde~
amen4
this
Vari;
Proje,
Issue,
the m
agreel
as fo
LOAN AGREEMENT
This LOAN AGREEMENT is dated November 1,2001 and is made and entered into by ST.
[E COUNTY, FLORIDA, a political subdivision under the laws of the State of Florida (the
:r"), and A-1 ROOF TRUSSES LTD., COMPANY, a not-for-profit corporation organized
the laws of Florida (the "User").
Recitals
Pursuant to and for the purposes expressed in Chapter 159, Part II, Florida Statutes, as
ted (the "Enabling Law"), the Issuer and the User have duly authorized, executed and delivered
,oan Agreement simultaneously with the issuance and sale by the Issuer of $2,750,000
>le/Fixed Rate Industrial Development Revenue Bonds (A-1 Roof Trusses Ltd., Company
:t), Series 200lA under and pursuant to Trust Indenture dated November 1, 2001 from the
to SouthTrust Bank, National Association, as trustee, in order to finance a "Project" within
:aning of the aforesaid law and more particularly described herein.
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and
nents herein contained, the Issuer and the User hereby covenant, agree and bind themselves
OWS:
[Remainder of Page Intentionally Left Blank]
the c(
Singt
inclm
subdi
execu
to thi~
ventu
politi,
set fo:
from ~
placeJ
Bond:
the p~
Agree
a rem
Bond,
constl
other:
funds
ARTICLE I
DEFINITIONS AND REPRESENTATIONS
SECTION 1.01 Definitions.
For all purposes'of this Loan Agreement, except as otherwise expressly provided or unless
,ntext otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them in this Article.
.lar terms shall include the plural as well as the singular, and vice versa. Any pronoun shall
[e both singular and plural and cover all genders.
(2) All references in this instrument to designated "Articles", "Sections" and other
Asions are to the designated Articles, Sections and subdivisions of this instrument as originally
ted.
(3) The terms "herein", "hereof" and "hereunder" and other words of similar import refer
Loan Agreement as a whole and not to any particular Article, Section or other subdivision.
(4) The term "person" shall include any individual, corporation, partnership, joint
'e, association, trust, unincorporated organization and any government or any agency or
:al subdivision thereof.
(5) Capitalized terms used herein without definition shall have the respective meanings
:th therefor in the Indenture or the Enabling Law.
Bond Proceeds shall mean the entire amount actually or constructively received by the Issuer
he sale of the Bonds less (i) any amounts therefrom retained by or paid to any underwriter or
nent agent as discount or compensation in connection with the initial Purchase and sale of the
and (ii) any accrued interest received upon the Bonds.
Equipment shall all other machinery, equipment, personal property and fixtures acquired with
oceeds of the Bonds or with funds advanced or paid by the User pursuant to this Loan
ment, together with all personal property and fixtures acquired in substitution therefor or as
wal or replacement thereof.
Holder when'used with respect to any Bond shall mean the Bondholder with respect to such
Improvements shall mean all buildings, structures and other improvements now or hereafter
~cted or situated on the Project Site, including without limitation all buildings, structures and
mprovements acquired or constructed on the Project Site with proceeds of the Bonds or with
advanced or paid by the User pursuant to this Loan Agreement.
and
to th~
this
Deft
Equil
impr~
acqui
labor
instal
acquJ
archi
consI
reme,
accru
the U
fees,
throu
95%
expe~
2% o
the k
there~
repre:
has ~
Indenture shall mean that certain Trust Indenture dated November 1,2001 between the Issuer
he Trustee as originally executed or as it may from time to time be supplemented, modified or
ded by one or more indentures or other instruments supplemental thereto entered into pursuant
applicable provisions thereof.
Loan Agreement shall mean this instrument including any amendments or supplements to
tstmment from time to time entered into pursuant to the applicable provisions hereof.
Loan Default shall have the meaning stated in Article VI of this Loan Agreement. A Loan
~lt shall "exist" ifa Loan Default shall have occurred and be continuing.
Loan Payments shall mean the payments to be made pursuant to Section 3.02.
Project shall mean collectivelythe interests of the User in the Project Site, Improvements and
~ment, as the same may at any time exist. The Project is further described on Exhibit B.
Project Costs shall mean all costs of acquiring, rehabilitating, constructing, equipping and
~ving the Project, including without limitation: (1) the purchase price and related costs for the
sition of real property and the existing building thereon or any interest therein, (2) the cost of
, materials and supplies furnished or used in the acquisition, rehabilitating, construction and
lation of the Improvements and the costs of acquiring and installing the Equipment, (3)
sition, transportation and installation costs for personal property and fixtures, (4) fees for
:ectural, engineering and supervisory services to such architects, engineers, developers and
ruction supervisors as the User shall approve, (5) expenses incurred in the enforcement of any
ty against any contractor, subcontractor, materialmen, vendor, supplier or surety, (6) interest
lng on the Bonds until the Project is placed in service, (7) expenses incurred by the Issuer and
ser in connection with the financing of the Project including legal, consulting and accounting
18) reimbursementto the User for any of the foregoing costs, fees and expenses set forth in (1)
gh (7) above, paid by it with its own funds on or after August 10, 2001, provided that at least
of the proceeds of the Bonds, including investment earnings thereon, shall constitute capital
tditures, as defined in Treasury Regulation Section 1.150-1, and provided further no more that
.-'the Bonds may be used to pay costs of issuance of the Bonds, as defined in Section 147(g) of
ternal Revenue Code.
Project Site shall mean the land described on Exhibit A and all improvements located
)n.
"State" shall mean the State of Florida.
SECTION 1.02
;entations:
Representations by the Issuer. The Issuer makes the following
(a) The Issuer is duly organized and existing as a political subdivision of the State and
e power to enter into the transactions contemplated by this Loan Agreement and to carry out
its obi
ofthi:
econo
shall
State
Loan
147((
Pro jet
o£the
repres
is dul'
incort
by pre
Proje¢
meani
agree~,
things
are re(
or aBa
unde~
relate~
Bond l
Bond
igations hereunder. By proper action the Issuer has duly authorized the execution and delivery
Loan Agreement, the Indenture and the Bonds.
(b) The Issuer has determined that the Project will make a significant contributionto the
hie growth to St. Lucie County, Florida, shall provide and preserve gainful employment and
;erve a public purpose by advancing the economic prosperity and the general welfare of the
md its people.
(c) The Bonds will be issued and delivered contemporaneouslywith the delivery of this
~.greement.
(d) On October 9, 2001, a public hearing in compliance with the provisions of Section
, of the Code, as amended, was held by the Issuer in regard to the nature and location of the
:t. The Board of County Commissionersofthe Issuer, on October 9, 2001, approved the sale
Bonds to the extent required by Section 147(1) of the Internal Revenue Code.
SECTION 1.03
entations:
Representations by the User. The User makes the following
(a) The User is a corporation duly organized under the laws of the State of Florida and
qualified to do business in the State, is not in violation of any provisions of its articles of
)ration, its bylaws or the laws of the State, has power to enter into this Loan Agreement, and
per corporate action has duly authorized the execution and delivery of this Loan Agreement.
(b) The Project Site is located wholly within St. Lucie County and constitutes, and the
will be used and operated by the User as a "project" and a "manufacturing plant" within the
tg of the Enabling Law.
(c) In the event the interest rate on the Bonds is converted to a Fixed Rate, the User
to cooperate with the Issuer, the Trustee and the Remarketing Agent, and to do any and all
necessary, in the event that the Issuer, the Trustee or the RemarketingAgent, or any of them,
uired to comply with Rule 15c2-12, as amended, of the Securities and Exchange Commission
comparable rule (the "Rule"), including, without limitation, the making of the requisite
flcings called for by paragraph (b)(5) of the Rule and to pay any reasonable costs and expenses
thereto.
ARTICLE II
ACQUISITION OF THE PROJECT
SECTION 2.01 Advance of Bond Proceeds; Agreement to Acquire Project.
(a) Simultaneously with the delivery of this Loan Agreement the Issuer shall cause the
'roceeds to be deposited in the Construction Fund. The Issuer directs the Trustee to cause the
Proceeds to be advanced to the User by withdrawals from the Construction Fund, in
4
accol
and
the
the E
pract
'dance with the requirements of the Indenture, for the payment of Project Costs at such times
~ such amounts as shall be directed by the User. The Bond Proceeds shall be used solely for
~yment of Project Costs as provided in the Indenture.
(b) The User shall acquire, construct, equip, and install the Project in accordance with
aabling Law with due diligence and shall cause the Project to be placed in service as soon as
icable.
(c) In the event the Bond Proceeds are insufficientto pay in full all Project Costs and to
comElete the Project, the User shall be obligated to complete the acquisition and construction of the
ProjeCt at its own expense and the User shall pay any such deficiency and shall save the Issuer whole
and tarmless from any obligation to pay such deficiency. The User shall not by reason of the
payr em of such deficiency from its own funds be entitled to any abatement of or diminutionin Loan
Agre,,~ment Payments.
SECTION 2.02 No Warranty_ by Issuer. The User recognizes that the Issuer makes
no w~trranty nor offers any assurances that the project will be suitable for the User's purposes or
nee& or that the bond proceeds will be sufficient to pay in full all project costs.
SECTION 2.03 Certificate of Completion of the Project
(a) The completion of the Project shall be evidencedto the Trustee by a certificate signed
Authorized User Representative on behalf of the User stating that (1) acquisition, rehabilitation
onstmction of the Improvements has been completed in accordance with the plans and
5cations approved by the User, (2) the Equipment has been acquired and installed in
lance with the User's instructions, (3) all Project Costs have been paid, and (4) all facilities and
.vements necessary in connection with the Project have been acquired and installed and all
md expenses incurred in connection therewith have been paid. Notwithstanding the foregoing,
certificate shall state that it is given without prejudice to any rights against any vendor,
rotor, subcontractor or other person not a party to this Loan Agreement which exist at the date
h certificate or which may subsequently come into being.
(b) After the delivery of the aforesaid certificate to the Trustee, any moneys then
aing in the Construction Fund shall be transferred to the Bond Fund and applied as provided
Indenture.
[Remainder of Page Intentionally Left Blank]
5
by an
speci:
accor~
impr(
costs
such
conta
ofsu
remai
in the
upon
exce
surv
tim{
dem
Bon,
on s,
again
with
Payrr
on th,
takin
Age~
ARTICLE III
TERM AND PAYMENT PROVISIONS
SECTION 3.01 Term of Loan Agreement. This Loan Agreement shall be effective
delivery and shall remain in full force and effect until the Indenture Indebtedness is paid in full
)t as otherwise provided herein with respect to any specific covenant which by its terms
yes the termination of this Loan Agreement.
SECTION 3.02 Loan Payments; Draws Under Letter of Credit.
(a) The User shall make Loan Payments to the Trustee, for the account of the Issuer, at
and in amounts as follows:
(1) On or before 10:00 a.m. (Birmingham, Alabama time), on each Bond
Payment Date, the User shall pay to the Trustee, for the account of the Issuer, an amount
equal to the Debt Service on the Bonds due on such Bond Payment Date; provided, however,
that (i) any amount already on deposit in the Bond Fund on the due date of such Loan
Payment and available for the payment of Debt Service on such Bond Payment Date shall
be credited against the amount of such Loan Payment, and (ii) any amount drawn by the
Trustee'pursuant to the Letter of Credit for the payment of such Debt Service shall be
credited against such Loan Payment; and
(2) On or before 10:00 a.m. (Birmingham, Alabama time), on each Tender Date,
the User shall pay to the Trustee, for the account of the Issuer, an amount equal to the
purchase price of Bonds tendered (or deemed tendered) for purchase on such Tender Date;
provided, however, that (i) any amount already on deposit in the Bond Purchase Fund on
such Tender Date that is available for the payment of the purchase price of such Tendered
Bonds shall be credited against the amount of such Loan Payment, and (ii) any amount
drawn by the Trustee pursuant to the Letter of Credit for the payment of the purchase price
of such Tendered Bonds shall be credited against such Loan Payment.
(b) On each Bond Payment Date the Trustee shall, without making any prior claim or
nd on the User for the payment of Loan Payments with respect to Bonds other than Pledged
s, make a draw on the Letter of Credit in an amount equal to the amount of Debt Service due
:h Bond Payment Date on Bonds other than Pledged Bonds. The User shall receive a credit
st Loan Payments for the amQunt so drawn. No draw shall be made under the Letter of Credit
:espect to Debt Service off Pledged Bonds and the User shall receive no credit against Loan
ents with respect to Pledged Bonds for any amounts drawn under the Letter of Credit.
(c) On each Tender Date the Trustee shall, without making any prior claim or demand
User for Loan Payments with respect to the purchase price of Tendered BondS, and without
into account any proceeds anticipated from the remarketing of Bonds by the Remarketing
make a draw under the Letter of Credit in an amount equal to the purchase price of all Bonds
6
to be
alTIOU
of Ch
neces~
and w
its Pri
be ma
day s~
as the
)urchased on such Tender Date. The User shall receive a credit against Loan Payments for the
~t so drawn.
(d) The User hereby authorizes and directs the Trustee to draw moneys under the Letter
:dit in accordance with the provisions of the Indenture and this Loan Agreement to the extent
;ary to pay the Debt Service on the Bonds or to pay the purchase price of Tendered Bonds if
hen due pursuant to the Indenture and the Letter of Credit.
(e) All Loan Payments shall be made in funds immediately available to the Trustee at
acipal Office on the related Bond Payment Date or Tender Date, as the case may be.
(f) If any Loan Payment is due on a day which is not'a Business Day, such payment may
de on the first succeeding day which is a Business Day with the same effect as if made on the
tch payment was due.
(g) The User acknowledges, covenants, and agrees that:
(1) the amounts of the Loan Payments shall be determined on the basis of the
amounts due to the Bondholders as Debt Service on the Bonds and not on the amount of
Bond Proceeds deposited in the Construction Fund; and
(2) until the Indenture Indebtedness is paid in full the User shall make Loan
Payments in such amounts and at such times as shall be necessary to enable the Trustee to
pay in full in accordance with the Indenture (i) all Debt Service on the Bonds when and as
the same becomes due and payable, whether at stated maturity and due dates, by call for
acceleration pursuant to Section 6.02 hereof, by optional or mandatory redemption, or
otherwise, and (ii) the purchase prices of all Tendered Bonds when and as the same become
due and payable.
SECTION 3.03 Administrative Expense Payments.
(a) The User shall make AdministrativeExpense Payments to the Issuer or to the Trustee,
case may be, as follows:
(1) the acceptance fee of the Trustee and the annual (or other regular) fees,
-charges and expenses of the Trustee, Tender Agent and Remarketing Agent;
(2) any amount to which the Trustee may be entitled under Section 13.07 of the
Indenture; and
(3) the reasonable expenses of the Issuer incurred at the request of the User, or
in the performance of its duties under any of the Financing Documents, or in connection with
any litigation which may at any time be instituted involving the Project, the Financing
Documents, or in the pursuit of any remedies under the Financing Documents.
7
receilc
shall
overd
date d
the In
of its,
any ti
advan
by thc
shall 1
harml
attom
Issuer
their
perfo:
death
conne
dama
affec~
affecl
the cc
ordin,
there.
conta
create
up or
regula
of the
the Tr~
(b) All AdministrativeExpense Payments shall be due and payable within 10 days after
by the User of an invoice therefor.
SECTION 3.04 Overdue Loan Agreement Payments. Any overdue Loan Payment
,ear interest from the related Bond Payment Date until paid at the Post-Default Rate for
ae Loan Payments. Any overdue Administrative Expense Payment shall bear interest from the
ue until paid at the Post-Default Rate for such Administrative Expense Payments specified in
flenmre.
SECTION 3.05 Advances by Issuer or Trustee. If the User shall fail to perform any
:ovenants in this Loan Agreement, the Issuer or the Trustee may but shall not be required, at
me and from time to time, after written notice to the User if no Loan Default exists, make
:es to effect performance of any such covenant on behalf of the User. Any money so advanced
issuer or the Trustee, together with interest at the base or prime rate of the Trustee plus 2%,
se paid upon demand.
SECTION 3.06 Indemni _ty of Issuer and Trustee.
(a) The User agrees to pay, and to indemnify and hold the Issuer and the Trustee
~ss against, any and all liabilities, losses, damages, claims or actions (including all reasonable
~ys' fees and expenses of the Issuer and Trustee), of any nature whatsoever incurred by the
and the Trustee without willful misconduct on their part arising from or in connection with
)erformance or observance of any covenant or condition on their part to be observed or
med under the Financing Documents, including without limitation, (1) any injury to, or the
~f, any person or any damage to property at the Project, or in any manner growing out of or
:ted with the use, nonuse, condition or occupation of the Project or any part thereof, (2) any
~e, injury, loss or destruction of the Project, (3) any other act or event occurring upon, or
ng, any part of the Project, (4) violation by the User of any contract, agreement or restriction
ng the Project or the use thereof of which the User has notice and which shall have existed at
mmencement of the term hereof or shall have been approved by the User, or of any law,
nce or regulation affecting the Project or any part thereof or the ownership, occupancy or use
f, (5) the presence, as a result of the action or inaction of the User, of any pollutants,
.~inants, toxic or hazardous wastes, and/or other substances regulated by law or which might
a hazard to health and safety, hereafter on, under or included in the Project Site, and any clean
other remedial action with respect to any thereof, and User's violation of any law, rule,
:ion, order, ruling, notice or decree of any Governmental Authority relating to pollution or the
protec :ion of human health or the environment, and (6) liabilities, losses, damages, claims or actions
arisingout of or relating to (i) any errors or omissions of any nature whatsoever contained in any
legal proceedings or official representation pertaining to the Bonds and (ii) any fraud
or
misrel~resentations or omissions contained in the proceedings of the Issuer relating to the issuance
of the Bonds which, if known to the purchasers of the Bonds, might be considered a material factor
in thei ~ decision to purchase the Bonds, unless the same resulted from a representation or warranty
Issuer or the Trustee in the Financing Documents or any certificate delivered by the Issuer or
~stee pursuant thereto being false or misleading in a material respect and such representation
8
or wa:
Issuer
the Us
main~:
Finan
witho~
pay ar
User s
liabili
liabili'
obliga
and th
indem
misco
indem
in an'
indern
liabili
profes
of the
indent.
prom[
or acti
party
defem
indem
the U~
courts,
partie~
and tl~
couns
affilia
profes
such i~
expen
of suc
action
'ranty was not based upon a similar representation or warranty of the User furnished to the
or the Trustee in connection therewith.
(b) The User hereby agrees that the Issuer and the Trustee shall not incur any liability to
er, and shall be indemnified against all liabilities, in exercising or refraining from asserting,
lining or exercising any right, privilege or power of the Issuer or the Trustee under the
ting Documents if the Issuer or the Trustee as the case may be is acting in good faith and
~t willful misconduct or in reliance upon a written request by the User.
(c) If any indemnifiable party (whether the Issuer or the Trustee) shall be obligated to
claim, liability or loss, and if in accordance with all applicable provisions of this Section the
~all be obligatedto indemnify and hold such indemnifiable party harmless against such claim,
or loss, then, in such case, the User shall have a primary obligation to pay such claim,
or loss on behalf of such indemnifiable party and may not defer discharge of its indemnity
tion hereunder until such indemnifiableparty shall have first paid such claim, liability or loss
ereby incurred actual loss.
(d) Nothing in this Loan Agreement shall be deemed to provide indemnification to any
nifiable party with respect to liabilities arising from the fraud, negligence, reckless or willful
aduct of any of the indemnifiable party, to provide indemnification to any attorneys of any
nifiable party with respect to liabilities arising from any negligence, mistake, error or omission
legal opinion provided by such party in its professional capacity, nor to provide
dficationto any accountants or f'mancial advisors of any indemnifiable party with respect to
!ies arising from any opinion, audit, report or other document provided by such party in its
sional capacity.
(e) In case any claim shall be made or any action shall be brought against one or more
indemnifiableparty, in respect of which indemnity is sought under this Section 3.06, then each
nifiable party against whom a claim has been made or an action has been brought shall
,tly notify the User in writing, and the User shall promptly assume the defense of such claim
on, including the employment of counsel and the payment of all expenses. Any indemnifiable
shall have the right to employ separate counsel in any such action and to participate in the
',e or such action, but the fees and expenses of such counse1 shall be at the expense or such
nifiableparty unless (a)the employment of such counsel has been specifically authorized by
',er in writing, or (b) the User has failed to assume the defense of such action and employ
.q within 20 Business Days after receiving the notice referred to herein, 0r (c) the named
',to any such action (including any impleaded parties) include both such indemnifiable party
e User or an affiliate of the User, and such indemnifiable party shall have been advised by
.q chosen by the User that representation of such indemnifiable party and the User or an
:e of the User by the same counsel would be inappropriate under applicable standards of
sional conduct due to actual or potential differing interests between them (in which case, if
~demnifiableparty notifies the User in writing that it elects to employ separate counsel at the
;e of the User, the User shall not have the fight to assume the defense of such action on behalf
~ indemnifiable party). It is understood that the User shall, in connection with any one such
or separate but substantially similar or related actions in the same jurisdiction arising out of
the sa me general allegations or circumstances, be liable for the reasonable fees and expenses of only
one separate firm of attorneys at any time for all' such indemnifiable party not having actual or
potential differing interests among themselves, which firm shall be designated in writing by the User.
The ~ser shall be liable for any settlement of any such action effected without its written consent,
but i~ settled with its written consent or if there be a final judgment for the plaintiff in any such
actioq, the User agrees to indenmify and hold harmless any indemnifiableparty from and against any
loss, liability, damage or .expense by reason of such settlement or judgment.
/
~f) Any provision of this Loan Agreement or any other Financing Document to the
contrary notwithstanding,the Issuer retains the right to (i) enforce any applicable federal or State law
or re
of thi
termi:
of an
mak~
obse
uncol
have
perfo
Loan
foreg.
of cra
or an'
the El
there{
the P~
to rei
rulin
taxin
agre~
or in
cost ~
or pr
neces
ulation or resolution of the Issuer and (ii) enforce any rights accorded Issuer by federal or state
r regulation or resolution of the Issuer, and nothing in this Loan Agreement shall be construed
express or implied waiver thereof.
(g) The covenants of indemnity contained in this Section shall survive the termination
s Loan Agreement with respect to events or occurrences happening prior to or upon the
~ation of this Loan Agreement and shall remain in full force and effect until the commencement
action with respect to any such event or occurrence shall be prohibited by law.
SECTION 3.07 Obligations of User Unconditional. The obligation of the User to
all Loan Agreement Payments and all other payments provided for herein and to perform and
ye the other agreements and covenants on its part herein contained shall be absolute and
tditionaI, irrespective of any rights of set-off, recoupment or counterclaim it might otherwise
against the Issuer. The User will not suspend or discontinue any such payment or fail to
rn and observe any of its other agreements and covenants contained herein or terminate this
Agreement for any cause whatsoever, including, without limiting the generality of the
)ing, any acts or circumstances that may constitute an eviction or constructive eviction, failure
tsiderationor commercial frustration of purpose, the invalidity or unenforceabilityofthe Bonds
, of the Financing Documents or any provision thereof, the invalidity or unconstitutionality of
~abling Law or any provision thereof, any damage to or destruction of the Project or any part
~f, the taking by eminent domain of title to or the right to temporary use of all or any part of
~oject, any failure of the Credit Obligor to make a payment pursuant to the Letter of Credit or
astate the appropriate amount thereof, any change in the tax or other laws or administrative
:s, actions or regulations of the United States of America or of the State or any political or
; subdivision of either thereof, or any failure of the Issuer to perform and observe any
~aent or covenant, whether express or implied, any duty, liability or obligation arising out of
:onnectionwith this Loan Agreement. NotWithstandingthe foregoing, the User may, at its own
nd expense and in its own name or in the name of the Issuer, prosecute or defend any action
~ceeding, or take any other action involving third persons which the User deems reasonably
gary in order to secure or protect its rights hereunder.
[Remainder of Page Intentionally Left Blank]
10
its ol
condi
delive
this
reimi
to s[
instru
pursu
accor,
chang
party
Neith,
requir
and re
or obl
Agree
ARTICLE IV,
ASSIGNMENT OF LOAN AGREEMENT
SECTION 4.01 Assignment by User. The User may assign this Loan Agreement and
ligations hereunder without the consent of Issuer or the Trustee, subject to the following
tions:
(1) The User will not assign this Loan Agreement to any person unless the
operations of such person are consistent with, and in furtherance of, the purpose of the
Enabling Law. The User shall, prior to any such assignment demonstrate to the reasonable
satisfaction of the Trustee that the operations of such assignee will preserve the character of
the Project as a "Project" under the Enabling Law and deliver to the Trustee an Opinion of
Bond Counsel acceptable to the Trustee to the effect that such assignment will not cause the
interest on the Bonds to be Taxable.
(2) The User shall, within 30 days after the delivery thereof, furnish to the
Trustee a true and complete copy of each such assignment.
SECTION 4.02 Assignment by Issuer. The Issuer has, simultaneously with the
:ry of this Loan Agreement, assigned its interest in and pledged any money receivable under
,oan Agreement (other than certain rights to indemnification, payment of its fees and
ursement) to the Trustee as security for payment of the Bonds, and the User hereby consents
:h assigmnent and pledge. The Issuer has in the Indenture obligated itself to follow the
ctions of the Trustee or the Bondholders or a certain percentage thereOf in the election or
it of any remedies herein vested in it. The Trustee shall have all rights and remedies herein
ted to the Issuer and any reference herein to the Issuer shall be deemed, with the necessary
es in detail, to include the Trustee, and the Trustee and the Bondholders are deemed to be third
beneficiaries of the covenants, agreements and representations of the User herein contained.
:r the Issuer nor the User will unreasonably withhold any consent herein or in the Indenture
:d of either of them. The User shall not be deemed to be a party to the Indenture or the Bonds
ference in this Loan Agreement to the Indenture and the Bonds shall not impose any liability
igation upon the User other than its specific obligations and liabilities undertaken in this Loan
ment.
[Remainder of Page Intentionally Left Blank]
11
entri~
on ti:.
Trust
stater
accep
charg
incon
taxes
there,
as a
disch~
with
the P~
a sing
other
condi'
isan¢
and k,
busin~
such r
the Tr
conne
a lette
certi.~
SI.lrVI'~
as the
with a
letter,
certit~
have
had
subse(
ARTICLE V
COVENANTS AND REPRESENTATIONS OF THE USER
Until the Indenture Indebtedness is paid in full:
(a) The User will maintain proper books of record and account, in which full and correct
s will be made, in accordance with generally accepted accounting principles (as the same exist
.~ date of application thereof), of all its business and affairs. The User shall furnish to the
.~e upon written request therefrom, with reasonable promptness, reviewed annual financial
aents of the User prepared by certified public accountants in accordance with generally
ted accounting principles (as the same exist on the date of application thereof).
(b) The User will duly pay and discharge all taxes, assessments and other governmental
:s and liens lawfully imposed on the User, the Project and the properties of the User, and the
te of the Issuer from the Project; provided, however, the User will not be required to pay any
assessments or other governmental charges so long as in good faith it shall contest the validity
,f by appropriate legal proceedings.
(c) Except as permitted by this Section the User will maintain and preserve its existence
~rporation under the laws of the State of Florida and will not voluntarily dissolve without first
trging its obligations under this Loan Agreement (except as permitted herein) and will comply
.11 valid laws, ordinances, regulations and requirements applicable to it or to its property and
oject.
(d) The User will not transfer or dispose of all or substantially all of its assets (either in
le transaction or in a series of related transactions), and will not merge or consolidate with any
:ntity nor permit one or more entities to consolidate with or merge into it unless the following
:ions and provisions are complied with: (1) that such surviving, successor or transferee entity
ntity organized and existing under the laws of one of the states of the United States of America
duly qualified to do business in the United States of America and is duly qualified to do
.'ss in the State of Florida, (2) that the assignee entity or the entity resulting from or surviving
aerger or consolidation shall expressly assume and agree in writing delivered to the Issuer and
ustee to pay and perform all of the User's obligations under this Loan Agreement, and (3) in
:tion with any such consolidationor merger, there shall be filed with the Issuer and the Trustee
r or certificate by a firm of Independent certified public accountants acceptable to the Trustee
'ing that upon the consummation of such consolidation or merger the entity resulting from or
ing such consolidationor merger will have an excess of assets over liabilities at least as gmat
User would have had if such consolidation or merger had not occurred; Or (4) in connection
ny transfer or other disposition of assets there shall be filed with the Issuer and the Trustee a
)r certificate by a firm of Independent certified public accountants acceptable to the Trustee
ing that upon the consummation of such transfer the entity to which such transfer is made will
n excess of assets over liabilities at least as great as the User would have had if such transfer
~t been made. If consolidation, merger or sale or other transfer is made as provided in this
:tion (d), the provisions of this subsection (d) shall continue in full force and effect and no
12
furthe
provi~
prope:
provL,
certifi
that u
over
OCCUl
mortg
accon~
any~
financ
at all'
to pre
Estate
r consolidation, merger or sale or other transfer shall be made except in compliance with the
ions of this subsection (d).
(e) The User will not in any manner transfer or convey any substantial portion of its
:ty, assets and licenses; provided, however, the User may without violating the foregoing
ion make such a transfer or conveyance if prior thereto it files with the Trustee a letter or
gate by a firm of Independent certified public accountants acceptable to the Trustee certifying
~on the consummation of such transfer or conveyance the User will have an excess of assets
.abilities at least as great as the User would have had if such transfer or conveyance had not
'ed.
(f) The User will do, execute, acknowledge and deliver such further acts, conveyances,
ages, financing statements and assurances as the Issuer or the Trustee shall require for
.plishing the purposes of the Financing Documents. The User will cause this Loan Agreement,
nendments to this Loan Agreement and other instruments of further assurance, including
ing statements and continuation statements, to be promptly recorded, registered and filed, and
imes to be kept recorded, registered and filed in such places as may be required by law fully
;erve and protect the rights of the Issuer and the Trustee to all property comprising the Trust
[Remainder of Page Intentionally Left Blank]
13
an e~
evenl
to an'
or go
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01 Events of Default. Any one or more of the following shall constitute
ent of default (a "Loan Default") under this Loan Agreement (whatever the reason for such
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant
t judgment, decree or order of any court or any order, rule or regulation of any administrative
?ernmental body):
(1) default in the payment of any Loan Payment when such Loan Payment
becomes due and payable; or
(2) defauk in the performance, or breach, of any covenant or warranty of the User
in this Loan Agreement (other than a covenant or warranty, a default in the performance or
breach of which is elsewhere in this Section specifically described), and the continuance of
such default or breach for a period of 30 days after there has been given, by registered or
certified mail, to the User and the Credit Obligor by the Issuer or by the Trustee a written
notice specifying such default or breach and requiring it to be remedied and stating that such
notice is a "notice of default" hereunder; or
(3) The dissolution or liquidation of the User or the filing by the User of a
voluntary petition in bankruptcy, or failure by the User promptly to lift any execution,
garnishment or attachment of such consequence as will impair its ability to carry on its
operations at the Project, or the User's seeking of or consenting to or acquiescing in the
appointment of a receiver of all or substantially all its property or of the Project, or the
adjudication of the User as a bankrupt, or any assignment by the User for the benefit of its
creditors, or the entry by the User into an agreement of composition with its creditors, or if
a petition or answer is filed by the User proposing the adjudication of the User as a bankrupt
or its reorganization, arrangement or debt readjustment under any present or future federal
bankruptcy code or any similar federal or state law in any court, or if any such petition or
answer is filed by any other person and such petition or answer shall not be stayed or
dismissed within sixty days. The term "dissolutionor liquidationofthe User", as used in this
subsection shall not be construed to include the cessation of.the corporate existence of the
User resulting either from a merger or consolidation of the User into or with another
corporation or a dissolution or liquidation of the User following a transfer of all or
substantially all of its asset~ as an entirety, under the conditions permitting such actions as
herein provided;
(4) The occurrence of an event of default under the Indenture; or
(5) Receipt by the Trustee of written notice from the Credit Obligor that an event
of default has occurred and is continuing under the Credit Documents or any other related
documents.
14
happe
take a
to be {
cumu]
or her
powe~
waive
be dec
either
breacl
extent
the pr,
which
not re:
User
(in it:
expen
obliga
pay tc
other
SECTION 6.02 Remedies on Default. Whenever any such Loan Default shall have
aed and be continuing,the Issuer or the Trustee m~ty, with the consent of the Credit Obligor,
ay of the following remedial steps:
(1) Declare a Loan Payment to be immediately due and payable in the amount
required to pay in full ail Indenture Indebtedness, whereupon said Loan Payment in said
amount shall become immediately due and payable;
(2) Take whatever proceedings may appear necessary or desirable at law or in
equity to collect the Loan Payments then due, whether by declaration or otherwise, or to
enforce any obligation or covenant or agreement of the User under this Loan Agreement or
by law.
SECTION 6.03 Availability_ of Remedies.
(a) No remedy herein conferred upon or reserved to the Issuer or the Trustee is intended
:xclusive of any other available remedy or remedies, but each and every such remedy shall be
ative and shall be in addition to every other remedy given under this Loan Agreement or now
~after existing at law or in equity or by statute. No delay or omission to exercise any fight or
accruing upon any default shall impair any such fight or power or shall be construed to be a
r thereof but any such right or power may be exercised from time to time and as often as may
reed expedient.
(b) In the event any agreement contained in this Loan Agreement should be breached by
party and thereafter waived by the other party, such waiver shall be limited to the particular
so waived and shall not be deemed to waive any other breach hereunder.
(c) All rights, remedies and powers provided by this Article may be exercised only to the
the exercise thereof does not violate any applicable provision of law in the premises, and all
)visions of this Article are intended to be subj eot to all applicable mandatory provisions of law
may be controlling in the premises and to be limited to the extent necessary so that they will
~der this Loan Agreement invalid or unenforceable.
SECTION 6.04 Agreement to Pay Attorneys' Fees and Expenses. In the event the
hould default under any of the provisions of this Loan Agreement and the Issuer or the Trustee
own name or in the name and on behalf of the Issuer) should employ attorneys or incur other
ses for the collection of rent or the enforcement of performance or observance of any
tion or agreement on the part of the User herein contained, the User will on demand therefor
the Issuer or the Trustee (as the case may be) the reasonable fee of such attorneys and such
· easonable expenses so incurred.
15
to tin
Secfi~
the e
Speci
covei
of the
148(f
the at
equal
caush
of the
Bond
other
to be(
Arbit~
the is:
comp
so lor
desig]
exper~
Sectk
times
and e,~
ARTICLE VII
INTERNAL REVENUE CODE
SECTION 7.01
General Compliance with Tax Requirements.
The User hereby covenants and agrees, for the benefit of the Issuer and Holders from time
te of the Bonds, to Comply with the requirements applicable to it and the Bonds contained in
m 103 and Part IV of SubchapterB of Chapter 1 of the Code to the extent necessary to preserve
rclusion of interest on the Bonds from gross income for federal income tax purposes.
fically, without intending to limit in any way the generality of the foregoing, the User
~ants and agrees:
(1) to pay to the United States of America at the times required pursuant to Section 148(0
Code, the excess of the amount earned on all non-purpose investments (as defined in Section
~(6) of the Code) (other than investments attributed to an excess described in this sentence)over
.~ount which would have been earned if such non-purpose investments were invested at a rate
to the yield on the Bonds, plus any income attributable to such excess (the "Rebate Amount");
(2) to maintain and retain all records pertaining to and to be responsible for making or
tg to be made all determinations and calculations of the Rebate Amount and required payments
Rebate Amount as shall be necessary to comply with the Code;
(3) to refrain from using proceeds from the Bonds in a manner that would cause the
~ or any of them, to be classified as private activity bonds under Section 141(a) of the Code
than "qualified small issue bonds" under Section 144(a) of the Code;
(4) to take or refrain from taking any action that would cause the Bonds, or any of them,
ome arbitrage bonds under Section 103(b) and Section 148 of the Code; and
(5) to comply with all representations and restrictions contained in the ',Certificate as to
'age and Other Tax Matters" and "Tax Compliance Agreement" delivered in connection with
;uance of the Bonds.
The User understands that the foregoing covenants impose continuing obligations on it to
~ with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code
as such requirements are applicable.
To the extent required by the Certificate as to Arbitrage and Other Tax Matters, the User shall
late a certified public accountant, bond counsel, or other consultant having the skill and
ise necessary (the "Rebate Analyst")to make any and all calculations requiredpursuant to this
n regarding the Rebate Amount. Such calculations shall be made in the manner and at such
as specified in the Code. The User shall engage and shall be responsible for paying the fees
:penses of the Rebate Analyst.
16
whicl
7.01
execl
oblig
User
with'
such
repre
shall
alrlo~
such
or uF
mann
the B
all a~
rem~
to Au
Incor
const~
comn
the Pi
unde~
inves:
shall
purp(
The User and the Issuer each agree to take no action which would, or omit to take any action
would, cause the Bonds to become "arbitrage bonds" or otherwise in violation of this Section
or the provisions and covenants of the Certificate as to Arbitrage and Other Tax Matters
tted by them in connection with the issuance of the Bonds, provided, however, that the sole
~tion of the Issuer in this respect shall be to adhere to directions received from the User.
SECTION 7.02 User's Obligation Upon Determination of Taxability.
(a) Upon the occurrence of a Determination of Taxability, the Trustee shall notify the
in writing that all Outstanding Bonds shall be subject to mandatory redemption in accordance
he terms thereof on the date specified by the Trustee, which date shall be within 90 days after
Determination of Taxability irrespective of whether the User has violated any covenant or
~entationin this Loan Agreement. Within seven days after the receipt of such notice the User
pay to the Trustee the amount required to pay in full all Indenture Indebtedness.
(b) There shall be credited against such payment otherwise required by this Section all
nts which shall have been paid to the Trustee pursuant to the Letter of Credit with respect to
~ayment of Debt Service on the Outstanding Bonds.
(c) Upon payment by the User of the amount specified in subsection (c) of this Section
)n a draw by the Trustee on the Letter of Credit which shall be made by the Trustee in a timely
er so as to effect the redemption within the number of days specified in Section 7.02(a) hereof,
,nds shall be redeemed as provided therein and the Issuer and the Trustee shall take any and
fion required to effect such redemption.
SECTION 7.03 Additional Tax Covenants of the User. For so long as any Bonds
n outstanding, the User hereby covenants as follows:
(a) No proceeds of any Bonds will be used to reimburse the User for amounts paid prior
:ust 10, 2001, other than for "preliminary expenditures" as defined in Section 1.150-2(f) of the
e Tax Regulations.
(b) The User has entered into various contracts providing for the acquisition,
uction, improvement and equipping of the Project that collectively create a substantial binding
titment on the User's part to expend at least five percent (5%) of the Proceeds of the Bonds on
'oject.
(c) The Project consists of land and/or property subject to the allowance for depreciation
the Code, and at least 95% of the net proceeds of the Bonds, including earnings from the
:ment thereof, will be used to pay Project Costs.
(d) No changes shall be made in the Project and no actions will be taken by the User that
n any way cause interest on the Bonds to be included in gross income for federal income tax
ses.
17
(120°~
proce¢
measu
expect
financ
reason
the Bo
guaraE
(ii) les
payme
the Un
in re&
payme
or in p
(u) inv
such is
fund tlc
reserv{
(y) heh
to pro'~
in othe
the Co,
(e) Based on current facts, estimates and circumstances, the User currently expects:
(1) that the acquisition, construction and equipping of the Project
and the expenditure of all of the proceeds of the Bonds will be completed by
November 1, 2004;
(2) to proceed with due diligence toward completion of the
Project (the work on which has already commenced) and the expenditure of
the net proceeds of the Bonds in connection with the Project;
(3) the net proceeds of the Bonds are needed for the purpose of
paying all or a part of the Project Costs; and
(4) the Project will not be sold or disposed of in a manner
producing sale proceeds which, together with accumulated proceeds of the
Bonds or earnings thereon, would be sufficient to enable the User to retire
substantially all of the Bonds prior to the maturity of the Bonds.
(f) The average maturity of the Bonds does not exceed one hundred twenty percent
) of the average reasonably expected economic life of the assets being financed with the
ds of the Bonds, with the average reasonably expected economic life of each asset being
red from the later of the date of issuance of the Bonds or the date such asset is reasonably
sd to be placed in service and by taking into account the respective cost of each asset being
.~d. The information furnished by the User and used by the Issuer to verify the average
~bly expected economic life of each asset of the Project to be financed with the proceeds of
nds is true, accurate and complete.
(g) (i) The payment of principal or interest with respect to the Bonds will not be
teed (in whole or in part) by the United States (or any agency or instrumentality thereof);
s than five percent (5%) of the proceeds of the Bonds will be (A) used in making loans the
nt of principal and interest with respect to which are to be guaranteed (in whole or in part) by
ited States (or any agency or insmmaentality thereof), or (B) invested (directly or indirectly)
~rally insured deposits or accounts as defined in Section 149(b) of the Code; and (iii) the
at of principal or interest on the Bonds will not otherwise be indirectly guaranteed (in whole
~rt) by the United States (or any agency or instrumentality thereof).
The foregoing provisions of this subsection shall not apply to proceeds of the Bonds being
~sted for an initial temporary period until such proceeds are needed for the purpose for which
sue was issued; (v) held in a bona fide debt service fund; (w) held in a debt service reserve
at meets the requirements of Section 148(d) of the Code with respect to reasonably required
: or replacement funds; (x) invested in obligations issued by the United States Treasury; or
t in a refi:tnding escrow (i.e., a fund containing proceeds of a refunding bond issue established
ide for the payment of principal or interest on one or more prior bond issues); or (z) invested
r investments permitted under regulations promulgated pursuant to Section 149(b)(3)(B) of
te.
18
relie¢
Proje,
is tru~
is tax
Code
the ne
of off
144(a
Proje,
plaza
finam
(h) Any information has been or will be supplied by the User that has been or will be
upon by the Issuer, the Trustee and by Bond Counsel with respect to the eligibility Of the
:t and the eXclusion from gross income for federal income tax purposes of interest on the Bonds
and correct.
(i) Except for the Issuer's Industrial Development Revenue Bond (A-1 Roof Trusses
~,ompany Project) Series 2001 B, there is no other bond or issue of bonds, the interest on which
exempt pursuant to Section 144(a) of the Code or Section 103(b)(6) of the Internal Revenue
of 1954, as amended, part or all of the net proceeds of which are to be used with part or all of
proceeds of the Bonds with respect to a single building, an enclosed shopping mall, or a strip
ces, stores or warehouses using substantial common facilities, as contemplated by Section
)(9) of the Code. There are no common heating, cooling or other facilities shared by the
:t and by any other facility financed with tax-exempt bonds. There are no common entrances,
;, malls, lobbies, parking, elevators or stairways shared by the Project and any other facility
:ed with tax-exempt bonds for use by employees or patrons of the Project and such facility.
(j) Neither the User nor persons related (as such term is used in the Code) to the User
are o,~rners or principal users (as such term is used in the Code) of any facility (other than the
Proje,:t) in unincorporated St. Lucie County, Florida, or outside of, but contiguous with,
uninc
perioc
facilit
does ~
any i:
benef
of all
exem]
devel,
effect
141(a
outsta
is to b
so th~
144(ai
benefi
facilit
the pc
otherv
of the
finm
>rporated St. Lucie County, Florida.
(k) The Project is not integrated with any other facility.
(1) (i) The aggregate authorized face amount of the Bonds allocated to any test-
beneficiary (as such term is used in the Code), when increased by the outstanding tax-exempt
t-related bonds (within the meaning of Section 144(a)(10) of the Code) of such beneficiary,
ot exceed $40,000,000. (ii) For purposes of applying subparagraph (i) above, with respect to
:sue, the outstanding tax-exempt facility-related bonds of any person who is a test-period
ciary, as such term is used in the Code, with respect to such issue is the aggregate face amount
tax-exempt bonds which, within the meaning of Section 144(a)(10)(B)(ii) of the Code, are
>t facility bonds, qualified small issue bonds and qualified redevelopment bonds or industrial
)pment bonds (as defined in Section 103(b)(2) of the Internal Revenue Code of 1954, as in
on the date before the date of enactment of the Tax Reform Act of 1986) to which Section
of the Code does not apply: (A) which are allocated to such beneficiary, and (B) which are
lding on the date of issuance of the Bonds (not including as outstanding any obligation which
redeemed from the proceeds of the Bonds). (iii) The amount of any issue shall be allocated
(y) except as may otherwise be provided-in regulations promulgated under Section
(10)(C) of the Code, the portion of the face amount of any issue allocated to any test-period
ciary of the facility financed by the proceeds of such issue (other than an owner of such
~') is an amount which bears the same relationship to the entire face amount of such issue as
rtion of such facility used by such beneficiary bears to the entire facility; and (z) except as
rise provided in regulations promulgated under Section 144(a)(10)(C) of the Code, the portion
face amount of an issue allocated to any test period beneficiary who is an owner of a facility
ed by the proceeds of such issue is an amount which bears the same relationship to the entire
19
face ~
entire
conte~
will
open
Proje~
(eithe
used
andb
or an'
priva
(inclu
or rac
luxur,
busin~
intere
indire
the ac
prope~
respe¢
term
fiftee
financ
respec
bonds
includ
alnOUl
test-p~
the Pr~
mount of such issue as the portion of such facility owned by such beneficiary bears to the
facility.
(m) The Project constitutes a "manufacturing facility" within the meaning and
nplation of Section 144(a)(12)of the Code, and any office space included as part of the Project
~e (i) located at or within the Project, (ii) directly related to the day-to-day manufacturing
:ions at the Project, and (iii) de minimis in size and cost in relation to the size and cost of the
:t.
(n) less than twenty-five percent (25%) of the net proceeds of the Bonds shall be used
: directly or indirectly) to acquire land or an interest therein;
(o) no more than twenty-five percent (25%) of the net proceeds of the Bonds shall be
either directly or indirectly) to provide a facility the primary purpose of which is retail food
,'verage services, automobile sales or service, or the provision of recreation or entertainment
combination thereof;
(p) none of the proceeds from the issuance of the Bonds shall be used to provide, any
or commercial golf course, country club, massage parlor, tennis club, skating facility
:ting roller skating, skateboard and ice skating), racquet sports facility (including any handball
quetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private
box, health club facility, any facility primarily used for gambling, or any store the principal
ss of which is the sale of alcoholic beverages for consumption offpremises, or land (or any
;t therein) to be used for farming purposes;
(q) less than five percent (5%) of the net proceeds of the Bonds shall be used directly or
:tly to proVide residential real property for family units; ,
(r) the User shall not allow any portion of the net proceeds of the Bonds to be used for
quisition of any property or an interest therein (other than land) unless the first use of such
Vd is pursuant to such acquisition; and provided further, that this covenant shall not apply with
to any building (and the equipment therefor), if (i) the rehabilitation expenditures, as such
used in section 147(d)(2) of the Code, with respect to such building equal or exceed (ii)
percent (15%) of the portion of the cost of the acquiring such building (and equipment)
~,d with the proceeds of the Bonds;
(s) no "test-period beneficiary" (as defined in Section 144(a)(10) of the Code) with
t to the Bonds has been allocated portions of the face amounts of "tax-exempt facility-related
(as defined in Section 144(a)(10) of the Code) outstanding on the date hereof (but not
ng any obligations which are to be redeemed from the proceeds of the Bonds), the aggregate
tt of which, when increased by the portion of the face amount of the Bonds allocable to that
:riod beneficiary, would exceed $40,000,000;
(t) at no time within three years after the later of the date the Bonds are issued or the date
)ject is placed in service shall the User become an owner or a principal user, or permit or suffer
20
a rell
princi
theret
bonds
User
theret~
facili
of th
arnoud
to the
theret
therer
the Pr
144¢
relate,
or pri:
facilit
of the
or oth
amoLr
to the
face a
Code
"facili
Counl
Counl
but ar
aggrel
of the
with r,
descri
becon
of the
larger
on the
perioc
:ed person (within the meaning of Section 144(a)(3) of the Code) to become an owner or a
>al user, or permit or suffer an owner or a principal user of the Project or a related person
~, to become an owner or principal user of a facility financed with tax-exempt facility-related
outstanding on the date of issuance of the Bonds if the sum of (i) the portion allocated to the
a related person thereto, or other owner or principal user of the Project (or related person
>) of the outstanding aggregate amount of the tax-exempt facility-relatedbonds financing such
y, (ii) the portion allocated to the User, related Person thereto, or other owner or principal user
Project (or related person thereto) on the date of issuance of the Bonds of the aggregate
it of other then-outstanding tax-exempt facility-related bonds, and (iii) the portion allocated
User, related person thereto, or other owner or principal user of the Project (or related person
~) of the outstanding aggregate authorized face amount of the Bonds, exceeds $40,000,000,
thin the meaning of Section 144(a)(10) of the Code and any Regulations promulgated
nder;
(u) at no time within three years after the later of the date the Bonds are issued or the date
>j ect is placed in service shall the User become a related person (within the meaning of Section
~(3) of the Code) to an owner or a principal user of a facility financed with tax-exempt facility-
t bonds outstanding on the date of issuance of the Bonds or permit or suffer any other owner
~cipal user of the Project to become a related person to an owner or principal user of such a
r if the sum of(i) the principal allocated to such person of the outstanding aggregate amount
lax-exempt facility-relatedbonds financing such facility, (ii) the portion allocated to the User
~r owner or principal user of the Project on the date of issuance of the Bonds of the aggregate
it of other then-outstanding tax-exempt facility-related bonds, and (iii) the portion allocated
User or other owner or principal user of the Project of the outstanding aggregate authorized
nount of the Bonds, exceeds $40,000,000, all within the meaning of Section 144(a)(10) of the
and any Regulations promulgated thereunder;
(v) the User represents that there have never been issued any bonds with respect to
ties" described in Section 144(a)(2) of the Code which are located in unincorporated St. Lucie
V, Florida or facilities that are located outside of, but contiguous to, unincorporated St. Lucie
V, Florida, or facilities that are located outside of unincorporated St. Lucie County, Florida,
integrated with the Project, which bonds would be taken into account in determining the
ate face amount of the Bonds as provided in Section 144(a)(2) of the Code;
(w) the User further covenants and represents that, for the purposes of Section 144(a)(4)
2ode, the (i) aggregate principal amount of the Bonds being issued, plus capital expenditures
.~spect to the Project by any person, plus capital expendituresheretofore made (other than those
bed in Section 144(a)(4)(C) of the Code) by the User, and any other person who is, or may
re, a principal user of the Project, with respect to "facilities" described in Section 144(a)(4)(B)
Code (of which the Project is one), have not and will not exceed $10,000,000 (or any such
amount as may hereafter be permitted by the Code without affecting the status of the interest
Bonds as excluded from gross income for federal income tax purposes) during the six-year
beginning three years before the date of issuance and delivery of the Bonds;
21
date ~
capit~
to "fa
Bond
the B
a prir
Code'
Projel
Sectk
ofiss
finan~
"facil
of thc
taken
the B
owne
perso
princi
issue
finan~
"facil
of thc
taken
the B
perso
"facil
princi
"facil
ofan,~
(ii) th
(x) the User further covenants and agrees that during the three-year period following the
if issuance and delivery of the Bonds, it shall not make or cause or permit to be made any
expenditures (other than those mentioned in Section 144(a)(4)(C) of the Code) with respect
:ilities" described in Section 144(a)(4)(B) of the Code which would cause the interest on the
to become included in gross income for federal income tax purposes;
(y) the User further covenants that, at no time within three years after the later of the date
nds are issued or the date the Project is placed in service, shall the User become an owner or
cipal user, or permit or suffer a related person (within the meaning of Section 144(a)(3) of the
~ to become an owner or a principal user, or permit or suffer an owner or a principal user of the
:t or a related person thereto, to become an owner or principal user of "facilities" described in
~n 144(a)(4)(B) of the Code, if the sum of (i) the aggregate face amount outstanding on the date
~e of the Bonds of any tax-exempt bonds described in Section 144(a)(2) of the Code issued to
:e such facilities, (ii) the capital expenditures that had been made with respect to such
[ties" during the six-year period beginning three years before the date of issuance and delivery
Bonds, (iii) the aggregate principal amount of the Bonds, and (iv) other capital expenditures
into account under Section 144(a)(4) of the Code, would exceed $10,000,000.
(z) the User further covenants that, at no time within three years after the later of the date
>nds are issued or the date the Project is placed in service, shall the User permit or suffer an
: or a principal user of "facilities" described in Section 144(a)(4)(B) of the Code or a related
a thereto (within the meaning of Section 144(a)(3) of the Code) to become an owner or a
pal user of the Project if the sum of (i) the aggregate face amount outstanding on the date of
of the Bonds of any tax-exempt bonds described in Section 144(a)(2) of the Code issued to
:e such facilities, (ii) the capital expenditures that had been made with respect to such
[ties" during the Six-year period beginning three years before the date of issuance and delivery
Bonds, (iii) the aggregate principal amount of the Bonds, and (iv) other capital expenditures
into account under Section 144(a)(4) of the Code, would exceed $10,000,000;
(aa) the User further covenants that, at no time within three years after the later of the date
~nds are issued or the date the Project is placed in service, shall the User become a related
a (within the meaning of Section 144(a)(3) of the Code) to an owner or a principal user of
ities" described in Section 144(a)(4)(B) of the Code or permit or suffer any other owner or
pal user of the Project to become a related person to an owner or principal user of such
~ties" if the sum of (i) the aggregate face amount outstanding on the date of issue of the Bonds
'tax-exempt bonds described in Section 144(a)(2) of the Code issued to finance such facilities,
capital expenditures that had been made with respect to such "facilities" during the six-year
perior beginning three years before the date of issuance and delivery of the Bonds, (iii) the aggregate
principal amount of the Bonds, and (iv) other capital expenditures taken into account under Section
144(ai(4) of the Code, would exceed $10,000,000;
(bb) the User further agrees that should the capital expenditures limitation set forth in
Sectk,n 144(a)(4) be exceeded during the six-year period referred to therein, and there shall occur
a "De ~ermination of Taxability" as defined in the Indenture, the User shall notify the Trustee;
22
expe~
Secti
actio:
subje
in Se
herea
Agre
Depa
Secti,
gross
(cc) the User represents and warrants that the User and Betkor Properties LLC are
:ted to be the only principal users of the Project, as the term "principal user" is utilized in
)n 144(a) of the Code;
(dd) the User further covenants that it shall take, or require to be taken, such further
~s as are required of a principal user of property financed by an issue of obligations which are
ct to the $10,000,000 limitation of Section 144(a)(4) of the Code, which actions are set forth
:tion 144(a) of the Code and the regulations thereunder, whether said regulations are now or
fter adopted, proposed or temporary, including Section 1.103-10(b) of said regulations; and
(ee) the User further agrees and covenant to comply fully, during the term of this
.~ment, with all effective rules, rulings, regulations and decisions promulgated by the
rtment of the Treasury or the Internal Revenue Service, with respect to bonds issued under
)n 144(a)(4) of the Code so as to maintain the status of interest on the Bonds as excluded from
income for federal income tax purposes.
23
or m~
in th~
with t]
OCC~
accorc
with
Indenl
of the
reinve
the Us
the Tr
shall 1~
Sectio
bond"
consti~
Issuer.
liabilii
arise
obser
be hai
succe:
of la~
unden
whate
ARTICLE VIII
SPECIAL COVENANTS OF ISSUER AND
PROVISIONS OF GENERAL APPLICATION
SECTION 8.01 Corporate Existence of Issuer. The Issuer shall not consolidate with
'ge into any other entity or transfer its property substantially as an entirety except as provided
Indenture.
SECTION 8.02 Redemption of Bonds by Issuer.
(a) The Issuer will cause the Trustee to redeem any or all of the Bonds in accordance
~e scheduled mandatory redemption provisions of the Bonds and the Indenture and upon the
ence of any event or contingency requiring the mandatory redemption of Bonds, all in
lance with the applicable provisions of the Bonds and the Indenture.
(b) If no Loan Default exists, the Issuer will exercise any right of optional redemption
espect to the Bonds only upon the written request of the User and in accordance with the
ure.
SECTION 8.03 Investment of Funds. The Issuer shall cause any money held as a part
Special Funds which may by the terms of the Indenture be invested to be so invested or
~ted by the Trustee in Qualified Investments solely at the request of, and solely as directed by,
er. Any interest bearing deposits, includingcertificatesofdeposit, issuedby or deposited with
ustee, shall be deemed to be investments and not trust deposits. The Issuer and the Trustee
ave no liability or responsibility for any loss resulting from investments made pursuant to this
a. No investment shall be made which may result in any Bond being considered an "arbitrage
within the meaning of Section 148 of the Code.
SECTION 8.04 Issuer's Liabilities Limited.
(a) The covenants and agreements contained in this Loan Agreement shall never
rite or give rise to a personal or pecuniary liability or charge against the general credit of the
and in the event of a breach of any such covenant or agreement, no personal or pecuniary
y or charge payable directly or indirectly from the general assets or revenues of the Issuer shall
herefrom. Nothing contained in this Section, however, shall relieve the Issuer from the
ance and performance of the covenants and agreements on its part contained herein.
(b) No recourse under or upon any covenant or agreement of this Loan Agreement shall
against any past, present or future incorporator, officer or member of the Issuer, or of any
sor, either directly or through the Issuer, whether by virtue of any constitution, statute or rule
· , or by the enforcement of any assessment or penalty or otherwise; it being expressly
rood that this Loan Agreement is solely a corporate obligation, and that no personal liability
fer shall attach to, or is or shall be incurred by, any officer or member of the Issuer or any
24
Succe~'
this
the re1
credit
of the
and pi
supers
issuan
hereaf
look s.
liabili~
in sew
and th
to the
assign
be hel
invalk
captio]
or aff¢
provid
the Iss
if in
perso]
of the
Truste
hours)
or cert
such p
notice
sor thereto, or any of them, under or by reason of the covenants or agreements contained in
)an Agreement.
(c) The Issuer is not obligated to pay the Bonds except from the proceeds derived from
~ayment of the loan to the User, or from the other security pledged and neither the faith and
of the Issuer or the State of Florida or any political subdivision thereof, nor the taxing power
State of Florida or any political subdivisionthereofis pledged to the payment of the principal
wchase price of, premium, if any, or the interest on the Bonds.
SECTION 8.05 Prior Agreements. This Loan Agreement shall completely and fully
ede all prior agreements, both written and oral, between the Issuer and the User relating to the
ce of the Bonds and the acquisition of the Project. Neither the Issuer nor the User shall
:er have any rights under such prior agreements, except as otherwise herein provided, but shall
)lely to this Loan Agreement for definition and determination of all of their respective rights,
ies and responsibilities relating to the Project.
SECTION 8.06 Execution Counterparts. T1/fis Loan Agreement may be executed
,~ral counterparts, each of which shall be an original and all of which shall constitute but one
same instrument.
SECTION 8.07 Binding Effect; Governing Law. This Loan Agreement shall inure
>enefit of, and shall be binding upon, the Issuer, the User and their respective successors and
s. This Loan Agreement shall be governed exclusively by the applicable laws of the State.
SECTION 8.08 Severability. In the event any provisionofthis Loan Agreement shall
cl invalid or unenforceable by any court of competent jurisdiction, such holding shall not
late or render unenforceable any other provision hereof.
SECTION 8.09 Article and Section Captions. The Article and Section headings and
is contained herein are included for convenience only and shall not be considered a part hereof
ct in any manner the construction or interpretation hereof.
SECTION 8.10 Notices.
(a) Any request, demand, authorization, direction, notice, consent, or other document
:d or permitted by this Loan Agreement to be made upon, given or furnished to, or filed with,
aer, the User, the Trustee or'the Credit Obligor shall be sufficient for every Purpose hereunder
writing and (except as otherwise provided in this Loan Agreement) either (i) delivered
ally to the party or, if such party is not an individual, to an officer, or other legal representative
>arty to whom the same is directed (provided that any document delivered personally to the
: must be delivered to a corporate trust officer at its Principal Office during normal business
at the address specified in Section 1.10 of the Indenture or (ii) mailed by first-class, registered
fled mail, postage prepaid, addressed as specified in Section 1.10 of the Indenture. Any of
arties may change the address for receiving any such notice or other document by giving
of the change to the other parties as provided in this Section.
25
by the
repres
days
addn
of an3
Prior 1
modif
Credit
shall
writte
the Im
the Tr
not, w
Bonds
(b) Any such notice or other document shall be deemed delivered when actually received
party to whom directed (or, if such party is not an individual, to an officer, or other legal
:ntative of the party) at the address specified pursuant to this Section, or, if sent by mail, three
fter such notice or document is deposited in the United States mail, proper postage prepaid,
sed as provided above.
SECTION 8.11 Amendment of Indenture and this Loan Agreement.
(a) The Issuer will not cause or permit the amendment of the Indenture or the execution
amendment or supplement to the Indenture without the prior written consent of the User.
o the termination of the Credit Documents the Issuer and the User shall have no power to
~,, alter, amend or terminate this Loan Agreement without the prior written consent of the
Obligor. Prior to the payment in full of the Indenture Indebtedness, the Issuer and the User
rave no power to modify, alter, amend or terminate this Loan Agreement without the prior
consent of the Trustee and then only as provided in the Indenture. The Issuer will not amend
enture or any indenture supplemental thereto without the prior written consent of the User.
(b) This Loan Agreement may not be amended unless there has first been delivered to
~stee, the User and the Remarketing Agent an Opinion of Bond Counsel that such action will
.~ether solely or in conjunction with any other fact or circumstance, cause the interest on the
to be or to become Taxable.
[Remainder of Page Intentionally Left Blank]
26
execu
[SEA/
Attesl
By:
C]
C~
IN WITNESS WHEREOF, the Issuer and the User have caused this Agreement to be
:ed in their respective names all as of the date first above written.
ST. LUCIE COUNTY, FLORIDA
By:
Chair, Board of County Commissioners of
St. Lucie, County, Florida
erk of the Circuit Court,
-officio Clerk to the Board of
~unty Commissioners
A-1 ROOF TRUSSES LTD., COMPANY
By:
President
27
EXHIBIT A
PROJECT SITE
LEGAL DESCRIPTION
A-1
EXHIBIT B
PROJECT DESCRIPTION
G:\013 3 8\ I'xLoan agreement( 1 ).wpd A-2
EXHIBIT "C"
CIT LOAN AGREEMENT
G:\01338 d\bond reso(1).wpd
LOAN AGREEMENT
Among
THE CIT GROUP/EQUIPMENT FINANCING, INC.
as Lender,
and
ST. LUCIE COUNTY, FLORIDA
as Issuer,
and
A-1 ROOF TRUSSES LTD., COMPANY
as Borrower
Dated as of November 1, 2001
This instrument constitutes a security agreement
under the Florida Uniform Commercial Code.
ART
ART
ART.'
ARTI
ARTI
TABLE OF CONTENTS
Page
CLE I
DEFINITIONS AND EXHIBITS
SECTION 1.01. DEFINITIONS ........................................ 3
SECTION !.02. EXHIBITS ........... '. ............................... 7
SECTION 1.03. RULES OF CONSTRUCTION ........................... 8
CLE II
FINANCING OF EQUIPMENT AND TERMS OF LOAN
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05
SECTION 2.06
SECTION 2.07
SECTION 2.08
SECTION 2.09
ACQUISITION OF EQUIPMENT ........................ 9
ISSUANCE OF BOND; LOAN .......................... 9
PRINCIPAL AND INTEREST ........................... 9
PAYMENTS ........................................ 10
PAYMENT ON NON-BUSINESS DAYS ................. 10
LOAN PAYMENTS TO BE UNCONDITIONAL ........... 10
PREPAYMENTS ..................................... 11
ELECTION UNDER SECTION 144(A)(4) CODE ........... 1 t
SECURITY ......................................... 11
2LE III
CONDITIONS PRECEDENT
SECTION 3.01 CONDITIONS PRECEDENT TO CLOSING .............. 12
SECTION 3.02 CONDITIONS PRECEDENT TO DISBURSEMENT OF LOAN
PROCEEDS ..................................................... 13
2LE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
2LE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
SECTION 5.01 GENERAL .......................................... 16
SECTION 5.02 GENERAL COMPLIANCE WITH TAX REQUIREMENTS.
SECTION 5.03 ADDITIONAL TAX COVENANTS OF THE BORROWER .. 20
ART] 2LE VI
ARTI(
ARTI(
TITLE TO EQUIPMENT; SECURITY INTEREST
SECTION 6.01 TITLE TO EQUIPMENT .............................. 25
SECTION 6.02 SECURITY INTEREST IN PROJECT .................... 25
SECTION6.03 CHANGE IN NAME OR CORPORATE STRUCTURE OF
BORROWER; CHANGE IN LOCATION OF BORROWER'S PRINCIPAL PLACE
OF BUSINESS .................................................. 25
SECTION 6.04 LIENS AND ENCUMBRANCES TO TITLE .............. 25
SECTION 6.05 PERSONAL PROPERTY .............................. 26
SECTION 6.06 ASSIGNMENT OF INSURANCE ....................... 26
SECTION 6.07 AGREEMENT AS FINANCING STATEMENT ............ 26
]LE VII
AFFIRMATIVE COVENANTS OF BORROWER
SECTION 7.01 REPORTING REQUIREMENTS ........................ 27
SECTION 7.02 BOOKS AND RECORDS; INSPECTION AND EXAMINATION
28
SECTION 7.03 COMPLIANCE WITH LAWS .......................... 28
SECTION 7.04 ENVIRONMENTAL COMPLIANCE .................... 28
SECTION 7.05 PAYMENT OF TAXES AND OTHER CLAIMS ........... 29
SECTION 7.06 PRESERVATION AND MAINTENANCE OF EQUIPMENT
SECTION 7.07 INSURANCE ........................................ 30
SECTION 7.08
SECTION 7.09
SECTION 7.10
SECTION 7.11
SECTION 7.12
SECTION 7.13
SECTION 7.14
PRESERVATION OF CORPORATE EXISTENCE ......... 31
PERFORMANCE BY LENDER ......................... 31
LIMITATIONS OF LIABILITY ......................... 31
BORROWER'S OBLIGATIONS UNCONDITIONAL ....... 31
INDEMNITY BY BORROWER ......................... 32
ATTORNEYS' FEES AND EXPENSES .................. 33
SATISFACTION OF CONDITIONS PRECEDENT ......... 33
;LE VIII
NEGATIVE COVENANTS OF BORROWER
SECTION 8.01 LIEN .............................................. 34
SECTION 8.02
SECTION 8.03
SECTION 8.04
SECTION 8.05
SECTION 8.06
SECTION 8.07
SECTION 8.08
SECTION 8.09
SALE OF ASSETS ................................... 34
CONSOLIDATION AND MERGER ..................... 34
ACCOUNTING ...................................... 34
TRANSFERS ........................................ 35
OTHER DEFAULTS .................................. 35
PLACE OF BUSINESS ................................ 35
MODIFICATIONS AND SUBSTITUTIONS .............. 35
USE OF THE EQUIPMENT ............................ 35
AR'] [CLE IX
ART
ART
Exhil
Exhil
Exhil
Exhit
Exhil
Exhil
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 9.01 DAMAGE, DESTRUCTION AND CONDEMNATION ...... 36
!CLE X
ASSIGNMENT, SUBLEASING AND SELLING
SECTION 10.01 ASSIGNMENT BY LENDER .......................... 37
SECTION 10.02 NO SALE OR ASSIGNMENT BY BORROWER ........... 37
~CLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.01
SECTION 11.02
SECTION 11.03
SECTION 11.04
SECTION 11.05
EVENTS OF DEFAULT ............................... 38
REMEDIES ON DEFAULT ............................ 39
RETURN OF EQUIPMENT ............................ 40
NO REMEDY EXCLUSIVE ............................ 40
LATE CHARGE ..................................... 41
iCLE XII
MISCELLANEOUS
SECTION 12.01
SECTION 12.02
SECTION 12,03
SECTION 12.04
SECTION 12.05
SECTION 12.06
SECTION 12.07
SECTION 12.08
SECTION 12.09
SECTION 12.10
SECTION 12.11
SECTION 12.12
SECTION 12.13
COSTS AND EXPENSES OF LENDER .................. 42
DISCLAIMER OF WARRANTIES ...................... 42
NOTICES ........................................... 42
FURTHER ASSURANCE AND CORRECTIVE INSTRUMENTS
43
BINDING EFFECT; TIME OF THE ESSENCE ............ 43
SEVERABILITY ..................................... 43
AMENDMENTS ..................................... 43
EXECUTION IN COUNTERPARTS ..................... 43
APPLICABLE LAW .................................. 43
CAPTIONS ......................................... 43
ENTIRE AGREEMENT .............................. '. 43
USURY ............................................ 44
WAIVER OF JURY TRIAL ............................ 44
it
it
it
it
it
it
A
B
C
D
E
F
Form of Certificate of Delivery and Acceptance
Form of Opinion of Counsel to Borrower and Guarantor
Form of Opinion of Counsel to Issuer
Form of Opinion of Bond Counsel
Form of Bond
Schedule of Equipment and Acquisition Costs of Equipment
111
Exhibi
Exhibi
Exhibi
G
H
I
Permitted Exceptions
Escrow Agreement
Form of Guaranty Agreement
iv
Len&
IssueI
amon
succe
Flork
corpo]
Consti
II of £
indust
instrm
the fi~:
ofthe
to this
Exeml
2001E
condit
rooftr
LOAN AGREEMENT
The CIT Group/Equipment Financing, Inc.
900 Ashwood Parkway, Suite 300
Atlanta, Georgia 30338
Telephone: 770-551-7846
Facsimile: 770-351-4879
St. Lucie County, Florida
2300 Virginia Avenue
3rd Floor Administration Annex
Fort Pierce, Florida 34982
Attn: County Attorney
Telephone: 561-462-1441
Telecopier: 561-462-1440
ver:
A-1 Roof Trusses Ltd., Company
1415 South Federal Highway
Boynton Beach, Florida 33425
Telephone: 561-509-6000
Facsimile: 561-509-5999
THIS LOAN AGREEMENT is dated as of November 1, 2001 (this "Agreement") and is
The CIT Group/Equipment Financing, Inc., a Delaware corporation, as lender (with its
.sors and asSigns, "Lender"), St. Lucie County, Florida a political subdivision of the State of
a (the "State"), as issuer ("Issuer"), and A-1 Roof Trusses Ltd., Company, a Florida
'ation, as borrower ("Borrower").
WHEREAS, Issuer is authorized and empowered under the laws of the State, including the
tution of the State of Florida and the Florida Industrial Development Financing Act, being Part
hapter 159, Florida Statutes, as amended and supplemented (the "Act"), to issue tax-exempt
rial development revenue bonds and to enter into loan agreements, contracts and other
nents and documents necessary or convenient to obtain loans for the purpose of facilitating
ancing of certain projects as described in the Act; and
WHEREAS, in furtherance of the purposes of the Act, Issuer proposes to finance a portion
acquisition and installation of the Equipment (as hereinafter defined) by Borrower pursuant
Agreement by issuing $750,000 aggl-egate principal amount of its St. Lucie County Tax-
~t Industrial Development Revenue Bond (A-1 Roof Trusses Ltd., Company Project) Series
(the "Bond") and lending the proceeds thereof to Borrower; and
WHEREAS, Borrower proposes to borrow the proceeds of the Bond upon the terms and
ions set forth herein to finance the acquisition of the Equipment to be used in the Borrower's
ass manufacturing facility to be located in St. Lucie County, Florida; and
as as~
liabil~
pledg
subdi
Paym
acknc
Born
WHEREAS, Borrower shall make Loan Payments (as hereinafter defined) directly to Lender
ignee of Issuer and holder of the Bond pursuant to the terms set forth in this Agreement; and
WHEREAS, this Agreement and the Bond shall not be deemed to constitute a debt or
ty of the State, St. Lucie County, Florida or any political subdivision or agency thereof, or a
e of the faith and credit or taxing power of the State, St. Lucie County, Florida or any political
vision or agency thereof, but shall be a special obligation payable solely from the Loan
ents payable hereunder by Borrower to Lender as assignee of Issuer and holder of the Bond;
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
wledged, and in considerationofthe premises contained in this Agreement, Lender, Issuer and
wer agree as follows:
[Remainder of Page Intentionally Left Blank]
2
mean
"accr
that
amel
in Se~
a br0
amen
Secm
(e)
Mass
acqui
net w
$1,00
two n
those
year;
acqui
§230.
reimk
whict
be su
(A-1
as a
open
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1.01. DEFINITIONS. The following terms used herein will have the
[ngs indicated below unless the context clearly requires otherwise:
"Accredited Investor" shall mean prospective purchasers of the Bond who qualify as
:dited investors" under any of the following categories at the time of the sale of the Bond to
,erson or entity: (a) a bank, as defined in Section 3(a)(2) of the Securities Act of 1933, as
fled (the "Securities Act"), or any savings and loan association or other institution as defined
:tion 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity; (b)
cer or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as
fled (the "Exchange Act"); (c) an insurance company, as defined in Section 2(13) of the
ities Act; (d) an investment company registered under the Investment Company Act of 1940;
organization described in Section 501(c)(3) of the Internal Revenue Code, corporation,
Lchusetts or similar business trust, or partnership not formed for the specific purpose of
lng the Bonds, with total assets in excess of $5,000,000; (f) a natural person whose individual
orth, or joint net worth with that person's spouse at the time of his or her purchase exceeds
0,000; (g) a natural person who had an individual income in excess of $200,000 in each of the
lost recent years or joint income with that person's spouse in excess of $300,000 in each of
years and who has a reasonable expectation of reaching the same income level in the current
md (h) a trust with total assetS in excess of $5,000,000, not formed for the speCific propose of
5ng the Bonds, whose purchase is directed by a sophisticatedperson as described in 17 C.F.R.
506(b)(2)(ii) promulgated under the Securities Act.
"Act" means the Constitution of the State and Chapter 159, Part II, Florida Statutes, as
/led from time to time, and other applicable provisions of law.
"Acquisition Costs" means the contract price paid or to be paid to the Vendors or
ursed to Borrower for any portion of the Equipment upon Borrower's acceptance thereof,
Acquisition Costs are set forth in Exhibit F hereto, as amended from time to time.
"Agreement" means this Agreement, including all exhibits hereto, as any of the same may
flemented or amended from time to time in accordance with the terms hereof.
"Bond" means Issuer's $750,000 principal amount Industrial Development Revenue Bond
roof Trusses Ltd., Company Project), Series 200lB in the form attached hereto as Exhibit E
ngle bond certificate.
"Borrower" means A-1 Roof Trusses Ltd., Company, a Florida corporation.
"Business Day" means a day, other than a Saturday or Sunday, on which banks are generally
7or business in New York, New York.
in sub
accepl
confir
Conlrl
States
consti~
Comn
compe
an Ew
hflve~
hereo:
and thc
"Certificate of Delivery and Acceptance" means a CertificateofDelivery and Acceptance,
~tantiallythe form set forth as Exhibit A hereto, whereby Borrower acknowledges receipt and
ance in good condition of all or particular portions of the Equipment as identified therein and
ns the date of delivery thereof and certain other matters.
"Chair" means the chair or vice-chairman of the Issuer's Board of County Commissioners.
"Clerk" means the Clerk of Circuit Court and Ex-Officio Clerk of Board of County
tissioners of St. Lucie County, Florida or any deputy clerk.
"Closing Date" means November 14, 2001.
"Code" means the Internal Revenue Code of 1986, as amended, and the applicable United
Treasury regulations promulgated thereunder.
"Debt" shall have the meaning ascribed to it in Section 7.14 hereof.
"Default" means an event that, with giving of notice or passage of time or both, would
ute an Event of Default as provided in Article XI hereof.
"Determination of Taxability" means any determination, decision or decree by the
tissioner of Internal Revenue, or any District Director of Internal Revenue or any court of
tent jurisdiction, or an opinion obtained by Lender of counsel qualified in such matters, that
nt of Taxability shall have occurred. A Determination of Taxability also shall be deemed to
ccurred on the first to occur of the following:
(a) the date when Borrower files any statement, supplemental statement, or other
tax schedule, return or document, which discloses that an Event of Taxability shall have
occurred; or
(b) the effective date of any federal legislation enacted after the date of this
Agreement or promulgation of any income tax regulation or ruling by the Internal Revenue
Service that causes an Event of Taxability after the date of this Agreement; or
(c) if upon sale, lease or other deliberate action taken with respect to the
Equipment within the meaning of Treas. Reg. § 1.141-2(d), the failure to receive an
unqualified opinion of bond counsel to the effect that such deliberate action will not cause
interest payable by Borrower hereunder to become includable in the gross income of the
recipient.
"Environmental Laws" has the meaning ascribed thereto in paragraph (h) of Article V
"Equipment" means the tangible personal property financed with the proceeds of the Bond
Loan, including (without limitation) the tangible personal property identified in Exhibit F,
as ~
man
jeop.
adva
BOlT
of th
repre
or aE
date
Rew
gros
time.
Dete:
the 1:
Rate
year,
to th(
prior
suffi(
by 'th
the h
exect
heret,
nended from time to time, hereto to be used in connection with Borrower's operations of
~facmring roof tresses (including, to the extent permitted pursuant to the Code without
~rdizing the tax-exempt status of the Interest, certain items originally financed through internal
nces of Borrower in anticipation of. obtaining permanent financing through Issuer).
"Escrow Agent" means SouthTrust Bank, as escrow agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated of even date herewith, among
>wer, Lender and Escrow Agent, in the form attached hereto as Exhibit H.
"Event of Default" has the meaning assigned to such term in Section 11.01 hereof..
"Event of Taxability" means if as the result of any act, failure to act or use of the proceeds
Loan, a change in use of'the Equipment or any misrepresentation or inaccuracy in any of the
entations, warranties or covenants contained in this Agreement, the Tax Exemption Agreement
y related document by Issuer or Borrower or the enactment of any federal legislation after the
of this Agreement or the promulgation of any income tax regulation or ruling by the Internal
nue Service after the date of.this Agreement, the Interest is or becomes includable in Lender's
income.
"Equipment" means the property described in Exhibit F hereto, as amended from time to
"Fixed Rate" means the interest rate per annum determined on the day (the "Rate
minationDate") three Business Days bef,ore the date of, conversion from the Floating Rate to
ixed Rate and equal 65% of the sum of the Treasury Yield plus 4%.
"Floating Rate" means the rate of interest per annum equal to 65% of the sum of the Libor
~lus 2.94%. The Floating Rate established on the Closing Date shall remain in ef,f.ect f,or one
and the interest rate shall be reset on each anniversary of.the Closing Date thereafter, subject
Borrower's election to convert to the Fixed Rate pursuant to Section 2.03 hereof..
"Gross-Up Rate" means, with respect to any Interest payment (including payments made
to the Event of Taxability), the rate necessary to calculate a total payment in an amount
:ient such that the sum of.the Interest payment plus an additional payment would, after reduced
federal tax (including interest and penalties) actually payable thereon, equal the amount of
~terest payment.
"Guarantor" shall mean John R. Herring.
"Guaranty Agreement" means the Guaranty Agreement dated as of November 1,2001 and
.ted by the Guarantor on behalf, of Borrower in favor of, the Lender and in the form attached
as Exhibit I.
"Interest" means the portion of any Loan Payment comprising interest.
succe
actin~
CIT
assi~
appe~
BankJ
on Te
Telen
five I
from
(inclu
ofthi~
by Bc
the ti~
hereo:
the di:
of da,
denon
Equil
"Issuer" means St. Lucie County, Florida, a political subdivision of the State and its
gsors.
"Lender" means (i) The CIT Group/Equipment Financing, Inc., a Delaware corporation,
raS lender under this Agreement, (ii) any surviving, resulting or transferee corporation of The
oup/Equipment Financing, Inc. and (iii) except where the context requires otherwise, any
tee(s) of Lender.
"Libor Rate" means the rate for deposits in U.S. dollars for a period of 180 days which
rs on the Telerate Page 3750 as of 11:00 a.m. London time on the date that is 3 London
ng Days preceding the Closing Date and each anniversary thereof. If such rate does not appear
lerate Page 3750, then the Libor Rate shall be deemed to be the last such rate that appeared on
rte Page 3750, provided that if such rate did not appear on Telerate Page 3750 for a period of
ondon Banking Days prior to the determinationdate, then the Libor Rate shall be determined
tach source as Lender shall determine and as shall be reasonably comparable to such rate.
"London Banking Day" means any day on which commercial banks are open for business
ding dealings in foreign exchange and foreign currency deposits) in London, England.
"Loan" means the loan from Issuer to Borrower pursuant to this Agreement.
"Loan Payments" means the loan payments payable by Borrower pursuant to the provisions
'. Agreement and the Bond. As provided in Article II hereof, Loan Payments shall be payable
rrower directly to Lender, as assignee of Issuer and holder of the Bond, in the amounts and at
acs set forth herein and in the Bond.
"Loan Proceeds" means the total amount of money to be paid pursuant to Section 2.02
bY Lender to Borrower.
"Permitted Exceptions" has the meaning prescribed to such term in Exhibit G hereto.
"Prepayment Penalty" means an amount equal to the principal amount being prepaid times
~'erence of 3% minus the product of 3% times a fraction, the numerator of which is the number
~s from November 14, 2006 to the date on which the prepayment is being made and the
finator of which is 1095·
"Principal" means the portion of any Loan Payment comprising principal.
"Purchase Agreements" means Borrower's purchase agreements with Vendors of the
ment.
"State" means the State of Florida.
6
as to
as thc
(or si
may
the h
not a
matin
listed
secuE
secur
Equit
or is
pan I
Issuel
Equil:
ident
"Tax Exemption Agreement" means the Tax Certificate of the Borrower and the certificate
Arbitrage and Other Tax Matters of even date herewith executed by Borrower and/or Issuer,
case may be.
"Telerate Page" means the display page so designated on the Dow Jones Telerate SerVice
ch other page as may replace that page on that serVice) or such other comparable serVice as
selected by the Lender in the event such page is no longer available.
"Treasury Yield" shall mean the ask yield, as published in The Wall Street Journal under
:ading "Treasury Bonds, Notes and Bills" on the Rate Determination Date (or if such is day is
day on which The Walt Street Journal is published, then on the preceding publication date),
ing in the same month and year as the loan. In the event that more than one such security is
, then the Treasury Yield shall equal the highest of such yields. In the event that no such
.ty is listed for such month, then the Treasury Yield shall equal the highest of the yields of such
ities maturing in the month or months closest to such month.
"UCC" means the Uniform Commercial Code as adopted and in effect in the State.
"Vendor" means the contractor, manufacturer, vendor or seller of any portion of the
~ment, as well as the agents or dealers of a manufacturer, from whom Borrower has purchased
)urchasing any Portion of the Equipment.
SECTION 1.02.
ereof:
EXHIBITS. The following exhibits are attached hereto and made a
Exhibit A: Form of Certificate of Delivery and Acceptance.
Exhibit B: Form of opinion of counsel to Borrower and Guarantor.
Exhibit C: Form of opinion of counsel to Issuer.
Exhibit D: Form of opinion of bond counsel.
Exhibit E: Form of Bond.
Exhibit F: Schedule of Equipment and Acquisition Costs describing the Equipment.
authorizes Borrower and Lender to modify Exhibit F from time to time to describe the
nent and Borrower and Issuer hereby authorize Lender to insert in Exhibit F the serial or other
lying numbers relating to the Equipment when available.
Exhibit G: Permitted Exceptions.
Exhibit H: Form of Escrow Agreement.
Exhibit I: Form of Guaranty Agreement.
used
versa
ofthi
as ori
to thi
conv(
here,
SECTION L03. RULES OF CONSTRUCTION. (a) The singular form of any word
herein, including the terms defined in Section 1.01 hereof, shall include the plural, and vice
The use herein of a word of any gender shall include correlative words of all genders.
(b) Unless otherwise specified, references to Articles, Sections and other subdivisions
',Agreement are to the designated Articles, Sections and other subdivision of this Agreement
ginally executed. The words "hereof," "herein," "hereunder" and words of similar import refer
; Agreement as a whole.
(c) The headings or titles of the several articles and sections shall be solely for
:nience of reference and shall not affect the meaning, construction or effect of the provisions
f.
[Remainder of Page Intentionally Left Blank]
Equil
shall
with
relati~
shall
paid ,,
that t]
acqui
the te
with 1
condi
Borrc
set fo
proce
Vend
Lendl
distil
busin
repre:
comn
and ti
actua
any ti
notic{
conv¢
Fixed
couns
be im
accru!
payal:
Febru
2002,
Bond
Borr~
at th{
payrr
ARTICLE II
FINANCING OF EQUIPMENT AND TERMS OF LOAN
SECTION 2.01. ACQUISITION OF EQUIPMENT. Borrower shall acquire the
~ment pursuant to one or more Purchase Agreements from one or more Vendors. Borrower
remain liable to the Vendor or Vendors in respect of its duties and obligations in accordance
sach Purchase Agreement and shall bear the risk of loss with respect to any loss or claim
~g to any of the Equipment covered by any Purchase Agreement, and neither Lender nor Issuer
~ssume any such liability or risk of loss. Borrower covenants and agrees to pay or cause to be
.uch amounts as may be necessary to complete the acquisition of the Equipment and to ensure
~e Equipment is operational to the extent that the Loan Proceeds are insufficient to cause such
sition.
SECTION 2.02. ISSUANCE OF BOND; LOAN. Lender hereby agrees, subject to
rms and conditions of this Agreement, to purchase the Bond, as a private placement and not
he intent for re-sale, in the amount of $750,000; Issuer hereby agrees, subject to the terms and
tions of this Agreement, to issue the Bond and to lend the proceeds thereof to Borrower; and
wer hereby agrees to borrow such proceeds from Issuer. Upon fulfillment of the conditions
rth in Article III hereof, the Bond shall be issued by the Issuer and Lender shall disburse the
eds to the Escrow Agent to be held and disbursed under the Escrow Agreement to the
>r(s) of the Equipment to pay the purchase price thereof. The purchase of the Bond by the
~'r is understood (i) to be for the Lender's own account, (ii) not to be undertaken with a view for
>ution to the public, and (iii) to be based upon an investigation into matters relating to the
~ss affairs or conditions of the Borrower (and not the Issuer) by the Lender. The Lender
;ents that it is an Accredited Investor. The Borrower's obligation to repay the Loan, shall
tence, and interest shall begin to accrue, on the Closing Date.
SECTION 2.03. PRINCIPAL AND INTEREST. The principal amount of the Bond
Le Loan hereunder outstanding from time to time shall bear interest (computed on the basis of
days elapsed in a 365/366 day year, as the case may be) at the Floating Rate, except that at
me on or after the date one year after the Closing Date, upon five Business Days prior written
,, to the Lender, the Borrower may elect that the interest rate on the Bond and the Loan shall
rt to the Fixed Rate on a date designated by the Borrower in such notice. No conversionto the
Rate shall be permitted unless the Borrower shall deliver to the Lender an opinion of bond
et to the effect that such conversion will not, in and of itself, cause the interest on the Bond to
:ludable in the gross income of the holder thereof for federal income tax purposes. Interest
ng on the principal balance of the Bond and the Loan outstanding from time to time shall be
le in arrears, on the 14th day of each February, May, August and November, commencing
ary 14, 2002 through and including November 14, 2002, and, commencing December 14,
shall be paid monthly on the 14th day of each month until the entire principal balance of the
and Loan shall have been paid in full. Upon the occurrence of a Determination of Taxability,
wer shall, with respect to future interest payments, begin making Loan Payments calculated
Gross-Up Rate. In addition, Borrower shall make immediately upon demand of Lender a
:nt to Lender sufficient to supplement prior Loan Payments to the Gross-Up Rate.
9
$8,92
therea
all ac(
2009.
Bond,
Issuer
Issuer
Additi
equal
paid v
with
recei'
inder~
Equip
or age
the na
and ua
to exe
suits {
Paym~
holde~
obliga
rise to
or apl
in this
Paym~
hereua
funds.
Bond
allegiI
dishor
to be ~:
Day, s
shall i~
be.
of Bor
hereur~
absolu
The principal amount of the Bond and Loan shall be paid in 84 monthly payments of
L57, due and payable on December 14, 2002, and on the 14th day of each and every month
fter, provided that the entire unpaid principal balance of the Bond and the Loan, together with
rued and unpaid interest thereon, shall be unconditionally due and payable on November 14,
SECTION 2.04. PAYMENTS. The principal of, premium, if any and interest on the
shall be payable solely out of the amounts paid by Borrower pursuant to this Agreement. The
shall not be obligated to make such payments. Borrower shall pay to Lender, as assignee of
Loan Payments, in the same amounts and on the same dates as payments are due on the Bond.
onally, Borrower shall pay to Lender, as assignee of Issuer and holder of the Bond, an amount
:o the product of(i) 12% per annum and (ii) the delinquent amount of any Loan Payment not
7hen due. As security for its obligationto pay the principal of, premium, if any in accordance
ection 2.07 hereof, and interest on the Bond, Issuer assigns to Lender all of Issuer's right to
e Loan Payments from Borrower hereunder, all of Issuer's rights hereunder (except as to
nification rights and notice rights) and all of Issuer's right, title and interest in and to the
ment, and Issuer irrevocably constitutes and appoints Lender and any present or future officer
at of Lender as its lawful attorney, with full power of substitution and resubstitution, and in
ne of Issuer or otherwise, to collect the Loan Payments and any other payments due hereunder
tder the Bond to Lender and to sue in any court for such Loan Payments or other payments,
:cise all rights hereunder with respect to the Equipment, and to withdraw or settle any claims,
ir proceedings pertaining to or arising out of this Agreement upon any terms. Such Loan
.,nts and other payments shall be made by Borrower directly to Lender, as Issuer's assignee and
of the Bond. No provision, covenant or agreement contained in this Agreement or any
:~on imposed on Issuer herein or under the Bond, or the breach thereof, shall constitute or give
or impose upon Issuer a pecuniary liability, a charge upon its general credit or taxing powers
edge of its general revenues. In making the agreements, provisions and covenants set forth
Agreement, Issuer has not obligated itself except with respect to the application of the Loan
~nts to be paid by Borrower hereunder. All amounts required to be paid by Borrower
.der shall be paid in lawful money of the United States of America in immediately available
No recourse shall be had by Lender or Borrower for any claim based on this Agreement, the
)r the Tax Exemption Agreement against any director, officer, employee or agent of Issuer
tg personal liability on the part of such person, unless such claim is based on the willful
esty of or intentional violation of law by such person.
SECTION 2.05 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment
~ade hereunder or under the Bond shall be stated to be due on a day which is not a Business
ach payment may be made on the next succeeding Business Day, and such extension of time
such case be included in the computation of interest or the fees hereunder, as the case may
SECTION 2.06 LOAN PAYMENTS TO BE UNCONDITIONAL. The obligations
:ower to make the Loan Payments required under this Article II and to make other payments
der and to perform and observe the covenants and agreements contained herein shall be
:e and unconditionalin all events, without abatement, diminution, deduction, setoffor defense
10
insu
cone
Borr
Pay~
disp~
such
Coai
Clos
plus
Artk
Leto
Lenl
supp
to In
orde~
here!
smal
Payn
obse~
first
my reason, including (without limitation) any failure of the Equipment to be delivered or
lled, any defects, malfunctions, breakdowns or infirmities in the Equipment or any accident,
emnation, destruction or unforeseen circumstances. Notwithstanding any dispute between
ower and any of Issuer, Lender, any Vendor or any other person, Borrower shall make all Loan
.~ents when due and shall not withhold any Loan Payments pending final resolution of such
~te, nor shall Borrower assert any right of set-offor counterclaim against its obligation to make
payments required under this Agreement.
SECTION 2.07 PREPAYMENTS. (a) Borrower may, in its discretion, prepay the
t and the Bond in whole (but not in part) at any time on and after the date five years after the
lng Date by paying all accrued and unpaid Interest and the unpaid principal amount of the Loan,
the applicable Prepayment Penalty.
(b) Borrower shall prepay the Loan and the Bond in whole at any time pursuant to
le IX hereof.
(c) Borrower shall prepay the Loan and the Bond in full immediately upon demand of
er after the occurrence of an Event of Default.
(d) Borrower shall prepay the Loan and the Bond in full immediately upon demand of
er after the occurrence of a Determination of Taxability, plus an amount necessary to
[ement the prior Loan Payments to the Gross-Up Rate.
Upon any prepayment in part of the Loan and the Bond, the prepayment shall be applied first
terest accrued thereon and next to the Principal portion of the Loan Payments in the inverse
of maturity.
SECTION 2.08 ELECTION UNDER SECTION 144(A)(4) CODE. The Issuer does
y elect to have the provisions of Section 144(a)(4) of the Code, as amended, increasing the
issue limitation from $1,000,000 to $10,000,000 apply to the Bond.
SECTION 2.09 SECURITY. The obligations of Borrower to make the Loan
ents required by this Article II and to make other payments hereunder and to perform or
we the covenants and agreements contained herein shall be secured, among other things, by a
)riority security interest in the Equipment.
11
to pt
Agre~
follm
and e
execr
(i) th~
the e:
Exert
signa'
the E:
certif
of Fk
claus~
State.,
auth{
the p
repre~
in the
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 CONDITIONS PRECEDENTTO CLOSING. Lender's agreement
· chase the Bond and to pay the Loan Proceeds to the Escrow Agent pursuant to the Escrow
:ment shall be subject to the condition precedent that Lender shall have received all of the
~ing, each in form and substance satisfactory to Lender:
(a) This Agreement and the Escrow Agreement, properly executed by all parties thereto
ich of the Exhibits hereto properly completed.
(b) The Bond, properly executed on behalf of Issuer.
(c) A Tax Exemption Agreement, together with any other tax certificates properly
ted on behalf of Issuer and Borrower, as the case may be.
(d) A certificate of the Secretary or an Assistant Secretary of Borrower, certifying as to
resolutions of the board of directors and, if required, the shareholders of Borrower, authorizing
:ecution, delivery and performance of this Agreement, the Escrow Agreement and the Tax
ption Agreement and any related documents, (ii) the bylaws of Borrower, and (iii) the
ures of the officers or agents of Borrower authorized to execute and deliver this Agreement,
;crow Agreement and the Tax Exemption Agreement and other instruments, agreements and
cates on behalf of Borrower.
(e) Currently certified copies of the Articles of Incorporation of Borrower.
(f) A Certificate of Good Standing issued as to Borrower by the Secretary of the State
,rida not more than 10 days prior to the date hereof.
(g) Certificates of the insurance required hereunder, containing a lender's loss payable
or endorsement in favor of Lender.
(h) A completed and executed Form 8038 and evidence of filing thereof with the United
Secretary of Treasury.
(i) A resolution or evidence of other official action taken by or on behalf of Issuer to
ize the transactions contemplated hereby including evidence that the issuance of the Bond for
rpose of financing of the Equipment has been approved by the Issuer as the "applicable elected
'.entative" after a public hearing held upon reasonable notice.
(j) The duly executed Guaranty Agreement.
(k) An opinion of counsel to Borrower and Guarantor, addressed to Lender and Issuer,
form attached hereto as Exhibit B.
12
attach
Exhil
herec
Borro
transa
PRO~
provk,
liens t
filed~
staten
and m
or ma
certifi
Agree
oflss~
execu
Vend{
paid
inten~
on an{
extenl
or bus
pursm
Event
(1) An opinion of counsel to Issuer, addressed to Lender and Borrower, in the form
ed hereto as Exhibit C.
(m)
it D.
An opinion of bond counsel, addressed to Lender, in the form attached hereto as
(n) Payment of Lender's fees, commissions and expenses required by Section 12.01
(o) Payment of Issuer's fees, bond counsel's fee, Issuer's financial advisor's fees,
ier's counsel fees and expenses incurred in connection with this Agreement and the
ctions contemplated hereby.
(p) Any other documents or items required by Lender or Issuer.
SECTION 3.02 CONDITIONS PRECEDENT TO DISBURSEMENT OF LOAN
~EEDS. Lender's agreement to any disbursement of Loan Proceeds shall be subject to the
ions of the Escrow Agreement and the following conditions precedent that on the date thereof:
(a) Current searches of appropriate filing offices showing that (i) no state or federal tax
rave been filed and remain in effect against Borrower, (ii) no financing statements have been
md remain in effect against Borrower relating to the Equipment except those financing
.ents filed by Lender, (iii) as applicable, financing statements executed by Borrower, as debtor,
xning Issuer, as secured party, and Lender, as assignee, and/or the original certificate of title
nufacturer's certificate of origin and title application if any of the Equipment is subject to
:ate of title laws, duly filed necessary to perfect the security interest created pursuant to this
ment and (iv) Lender has duly filed all financing statements necessary to perfect the transfer
ter's interest in this Agreement and the Loan Payments.
(b) Lender shall have received in form and substance satisfactory to Lender a duly
:ed Certificate of Delivery and Acceptance, in the form attached hereto as Exhibit A and
~r invoice(s) and/or bill(s) of sale relating to the Equipment and, if such invoices have been
y Issuer or Borrower, evidence of payment thereof and, if applicable, evidence of official
to reimburse such payment as required by the Code;
(c) the representations and warranties contained in Articles IV and V hereof are correct
as of the date of such disbursement as though made on and as of sUch date, except to the
that such representations and warranties relate solely to an earlier date; and
(d) there shall not have occurred any material adverse change in the financial condition
.ness operations of the Borrower and no event has occurred and is continuing, or would result,
nt to the issuance of the Bond or the financing of the Loan, which constitutes a Default, an
of Default or a Determination of Taxability.
13
and ti
ofthi
apprc
have
this
provk,
requir
has b{
relate{
other ~
enforc
reorg~
credi'
inder
Secti.
by B~
hereto
the co~
the ter
conflk
or any
a defa~
charge
the ter
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Issuer represents, warrants and covenants for the benefit of Lender and Borrower, as follows:
(a) Issuer is a political subdivision of the State.
(b) Issuer is authorized under the Act to issue the Bond and to enter into this Agreement
e transactions contemplated hereby and to perform all of its obligations hereunder.
(c) Issuer has duly authorized the issuance of the Bond and the execution and delivery
Agreement under the terms and provisions of the resolution of its governing body or by other
3riate official approval, and further represents, covenants and warrants that all requirements
.een met and procedures have occurred in order to ensure the enforceability of the Bond and,
.greement against Issuer. Issuer has taken all necessary action and has complied with all
ions of the Act, including but not limited to the making of the findings required by the Act,
:d to make the Bond and this Agreement the valid and binding obligation of Issuer.
(d) The officer of Issuer executing the Bond, this Agreement and any related documents
:en duly authorized to issue the Bond and to execute and deliver this Agreement and such
1 documents under the terms and provisions of a resolution of Issuer's governing body, or by
~ppropriate official action.
(e) The Bond and this Agreement are legal, valid and binding obligations of Issuer,
eable in accordance with their respective terms, except to the extent limited by bankruptcy,
nization or other laws of general application relating to or affecting the enforcement of
Irs' rights.
(f) Issuer has assigned to Lender all of Issuer's rights in this Agreement (except any
nification payable to Issuer pursuant to Section 7.12 hereof and notice to Issuer pursuant to
n 12.03 hereof) including the assignment of all rights in the security interest granted to Issuer
.'rower.
(g) Issuer will not pledge, mortgage or assign this Agreement or its duties and obligations
tder to any person, firm or corporation, except as provided under the terms hereof.
(h) None of the issuance of the Bond or the execution and delivery of this Agreement,
~summation of the transactions contemplated hereby or the fulfillment of or compliance with
ms and conditions of the Bond or this Agreement violates any law, rule, regulation or order,
',ts with or results in a breach of any of the terms, conditions or provisions of any restriction
agreement or instrument to which Issuer is now a party or by which it is bound or constitutes
fit under any of the foregoing or results in the creation or imposition of any prohibited lien,
or encumbrance of any nature whatsoever upon any of the property or assets of Issuer under
ms of any instrument or agreement.
14
equit
Issue~
Bond
wouh
Issue:
purpr
conte
~ (i) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in
~, before or by any court, regulatory agency, public board or body pending or, to the best of
· 's knowledge, threatened against or affecting Issuer, challenging Issuer's authority to issue the
or to enter into this Agreement or any other action wherein an unfavorable ruling or finding
adversely affect the enforceability of the Bond, this Agreement or any other transaction of
which is similar hereto, or the exclusion of the Interest from gross income for federal tax
.ses under the Code, or would materially and adversely affect any of the transactions
.uplated by this Agreement.
15
for th.
the la
actior
the T~
transe
leasco
Agree
its bo~
warra
enfon
Agree
execu
Tax
deliv
docur
valid
their ~
gener
Exem
fulfill
or or(
incorl
instru
of the
natun
agree~
Escro
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
SECTION 5.01 GENERAL. Borrower represents, warrants and covenants
benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under
;s of the State of Florida, has power to enter into this Agreement and by proper corporate
has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and
tx Exemption Agreement. Borrower is in good standing and is duly licensed or qualified to
ct business in the State and in all jurisdictions where the character of the property owned or
or the nature of the business transacted by it makes such licensing or qualification necessary.
(b) Borrower has been fully authorizedto execute and deliver this Agreement, the Escrow
ment and the Tax Exemption Agreement under the terms and provisions of the resolution of
trd of directors, or by other appropriate official approval, and further represents, covenants and
ats that all requirements have been met, and procedures have occurred in order to ensure the
:eability of this Agreement, the Escrow Agreement and the Tax Exemption Agreement and this
ment, the Escrow Agreement and the Tax Exemption Agreement have been duly authorized,
ted and delivered.
(c) The officer(s) of Borrower executing this Agreement, the Escrow Agreement and the
Xemption Agreement and any related documents has been duly authorized to execute and
r this Agreement, the Escrow Agreement and the Tax Exemption Agreement and such related
aents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement,the EscrowAgreement and the Tax ExemptionAgreement constitute
md legally binding obligations of Borrower, enforceable against Borrower in accordance with
'espective terms, except to the extent limited by bankruptcy, reorganization or other laws of
application relating to or affecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the ~Tax
ption Agreement, the consummation of the transactions contemplated hereby and the
ment of the terms and conditions hereof do not and will not violate any law, rule, regulation
[er, conflict with or result in a breach of any of the terms or conditions of the articles of
~oration or bylaws of Borrower or of any corporate restriction or of any agreement or
ment to which Borrower is now a party and do not and will not constitute a default under any
foregoing or result in the creation or imposition of any liens, charges or encumbrances of any
upon any of the property or assets of Borrower contrary to the terms of any instrument or
~ent.
(f) The authorization, execution, delivery and performance of this Agreement and the
Agreement by Borrower do not require submission to, approval of, or other action by any
16
gover
Agree
equit3
Borro
to ent,
actior
Agre~
Borro
purpo
contel
the cu
land '
Borro
procel
cause
ofth~
in gr(
take
its po,
recipe,
calcul
staten
of its
financ
condit
state a
return:
taxing
such t~
nmental authority or agency, which action with respect to this Agreement and the Escrow
ment has not been taken and which is final and nonappealable.
(g) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in
', before or by any court, regulatory agency, public board or body pending or, to the best of
~ver's knowledge, threatened against or affecting Borrower, challenging Borrower's authority
.~r into this Agreement, the Escrow Agreement or the Tax Exemption Agreement or any other
wherein an unfavorable ruling or finding would adversely affect the enforceability of this
ment, the Escrow Agreement or the Tax Exemption Agreement or any other transaction of
~ver which is similar hereto, or the exclusion of the Interest from gross income for federal tax
ses under the Code, or would materially and adversely affect any of the transactions
nplated by this Agreement.
(h) The property at which any portion of the Equipment is located are properly zoned for
trent and anticipated use and the use of the Equipment will not violate any applicable zoning,
ase, environmental or similar law or restriction (collectively, "Environmental Laws").
arer has all licenses and permits to use the Equipment.
(i) The Equipment is of the type authorized and permitted to be financed with the
:ds of the Bond pursuant to the Act.
(j) Borrower owns or will own the Equipment and intends to operate the Equipment, or
the Equipment to be operated, as a "project" and a "manufacturing plant" within the meaning
Act, until the date on which all of the Loan Payments have been fully paid.
(k) Borrower will not take any action that would cause the Interest to become includable
~s income of the recipient for federal income tax purposes under the Code, and Borrower will
~d will cause its officers, employees and agents to take all affirmative actions legally within
Yer necessary to ensure that the Interest does not become includable in gross income of the
mt for federal income tax purposes under the Code (including, without limitation, the
~tion and payment of any rebate required to preserve such exclusion).
(1) Borrower has heretofore furnished to Lender its financial statements and those
ents fairly presented the financial condition of Borrower on the dates thereof and the results
operations and cash flows for the periods then ended. Since the date of the most recent
ial statements, there has been no material adverse change in the business, properties or
ion (financial or otherwise) of Borrower.
(m) Borrower has paid or caused to be paid to the proper authorities when due all federal,
id local taxes required to be withheld by it. Borrower has filed all federal, state and local tax
which are required to be filed, and Borrower has paid or caused to be paid to the respective
authorities all taxes as shown on said returns or on any assessment received by it to the extent
roes have become due.
17
there¢
securi
in con
mater.
faith ¢
to Per:
are fil~
a vali
assign
None
of Bm
of the
Certifi
the In!
the tir
gorro
respec
in the'
Proce~
expem
basis.
be use,
person
any po
allowa
busine:
cease (
owners
(n) Borrower has or will have good and absolute title to the Equipment and all proceeds
f, free and clear 'Of all mortgages/security interests, liens and encumbrances except for the
Iy interest created pursuant to this Agreement and the Permitted Exceptions.
(o) All financial and other informationprovided to Lender by or on behalf of Borrower
nection with Borrower's request for the Loan contemplated hereby is true and correct in all
al respects and, as to projections, valuations or pro forma financial statements, present a good
finion as to such projections, valuations and pro forma condition and results.
(p) Borrower has provided to Lender signed financing statements sufficient when filed
~ct the security interest created pursuant to this Agreement. When such financing statements
,~d in the offices noted therein, Lender, as assignee of Issuer and holder of the Bond, will have
and perfected security interest in the Equipment, subject to no other security interest,
aent, lien or encumbrance. None of the Equipment is or will become a fixture on real estate.
)f the Equipment constitutes a replacement of, substitution for or accessory to any property
rower subject to a lien of any kind.
(q) Upon acquisition, improvement, construction, installationor equipping of any portion
Equipment, Borrower will provide to Issuer and Lender a completed and executed copy of the ~
cate of Delivery and Acceptance attached hereto as Exhibit A.
(r) Borrower will aid and assist Issuer in connection with preparing and submitting to
~rnal Revenue Service a Form 8038 (or other applicable information reporting statement) at
te and in the form required by the Code.
(s) Borrower will comply fully at all times with the Tax Exemption Agreement, and
Yer will not take any action, or omit to take any action, which, if taken or omitted,
:ively, would violate the Tax Exemption Agreement, and the representations and warranties
Fax Exemption Agreement are true and correct.
(t) Any costs incurred with respect to that part of the Equipment paid from the Loan
ds shall be treated or capable of being treated on the books of Borrower as capital
[itures in conformity with generally accepted accounting principles applied on a consistent
(u) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will
for working capital or to finance any other cost not constituting an Acquisition Cost. No
)ther than Borrower is in occupancy or possession of any portion of the real property where
fdon of the Equipment is located. The Equipment is property of the character subject to the
~ce for depreciation under Section 167 of the Code.
(v) Borrower shall not, without the prior written consent of Lender, (i) engage in any
;s activities substantially different than those in which Borrower is presently engaged, (ii)
,perations, liquidate, merge, transfer, acquire or consolidate with any other entity, change
hip, change its name, dissolve or transfer or sell the Equipment out of the ordinary course of
18
busin
capit~
coml:
Subcl
on th,
limit
ofth~
148(f
the at
equal
causil
of the
to be
small
arbitr
Arbit
the is
it to ~
Code
shall,
exper
Secti(
time~
fees
so lor
sss, or (iii) purchase or retire any of Borrower's outstanding shares or alter or amend Borrower's
tl structure.
SECTION 5.02
GENERAL COMPLIANCE WITH TAX REQUIREMENTS.
The Borrower hereby covenants and agrees, for the benefit of the Issuer and Lender, to
ly with the requirements applicable to it and the Bond contained in Section 103 and Part IV of
~apter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest
Bond from gross income for federal income tax purposes. Specifically, without intending to
in any way the generality of the foregoing, the Borrower covenants and agrees:
(1) to pay to the United States of America at the times required pursuant to Section 148(f)
Code, the excess of the amount earned on all non-purpose investments (as defined in Section
)(6) of the Code) (other than investments attributed to an excess described in this sentence) over
aount which would have been earned if such non-purpose investments were invested at a rate
to the yield on the Bond, plus any income attributable to such excess (the "Rebate Amount");
(2) to maintain and retain all records pertaining to and to be responsible for making or
~g to be made all determinations and calculations of the Rebate Amount and required payments
Rebate Amount as shall be necessary to comply with the Code;
(3) to refrain from using proceeds from the Bond in a manner that would cause the Bond,
classified as a private activity bond under Section 141 (a) of the Code other than a "qualified
issue bond" under Section 144(a) of the Code;
(4) to take or refrain from taking any action that would cause the Bond to become an
age bond under Section 103(b) and Section 148 of the Code; and
(5) to comply with all representations and restrictions contained in the "Certificate as to
,age and Other Tax Matters" and "Tax Certificate of Borrower" delivered in connection with
;uance of the Bond.
The Borrower understands that the foregoing covenants impose continuing obligations on
omply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the
so long as such requirements are applicable.
To the extent required by the Certificate as to Arbitrage and Other Tax Matters, the Borrower
tesignate a certified public accountant, bond counsel, or other consultant having the skill and
:ise necessary (the "Rebate Analyst")to make any and all calculations required pursuant to this
,n regarding the Rebate Amount. Such calculations shall be made in the manner and at such
as specified in the Code. The Borrower shall engage and shall be responsible for paying the
ad expenses of the Rebate Analyst.
SECTION 5.03 ADDITIONAL TAX COVENANTS OF THE BORROWER. For
g the Bond remains outstanding, the Borrower hereby covenants as follows:
19
prior
of the
acqm:
Borro
the Ct
of the
the Bt
the Iai
in se~
inforr
expec
true,
(in ,a
five F
princi
States
insure
princi
the U]
invesl
such
fund
reser
(y) he
to pro
in oth
the C{
be reli
Equip
Bond
(a) no proceeds of the Bond will be used to reimburse the Borrower for amounts paid
o August 10, 2001, other than for "preliminary expenditures" as defined in Section 1.150-2(f)
Income Tax Regulations;
(b) the Borrower has or will within 6 months entered into one or more contracts for the
;ition of the Equipment that collectively create a substantial binding commitment on the
wer's part to expend at least five percent (5%) of the proceeds of the Bond on the Equipment;
(c)
)de;
the Equipment consists of property subject to the allowance for depreciation under
(d) the average maturity of the Bond does not exceed one hundred twenty percent (120%)
average reasonably expected economic life of the assets being financed with the proceeds of
~nd, with the average reasonably expected economic life of each asset being measured from
er of the date of issuance of the Bond or the date such asset is reasonably expected to be placed
vice and by taking into account the respective cost of each asset being financed. The
~ation furnished by the Borrower and used by the Issuer to verify the average reasonably
ted economic life of each piece of Equipment to be financed with the proceeds of the Bond is
.ccurate and complete;
(e) (i) the payment of principal or interest with respect to the Bond will not be guaranteed
tole or in part) by the United States (or any agency or instrumentality thereof); (ii) less than
ercent (5%) of the proceeds of the Bond will be (A) used in making loans the payment of
pal and interest with respect to which are to be guaranteed (in whole or in part) by the United
(or any agency or instmmentalitythereof), or (B) invested (directly or indirectly) in federally
,d deposits or accounts as defined in Section 149(b) of the Code; and (iii) the payment of
)al or interest on the Bond will not otherwise be indirectly guaranteed (in whole or in part) by
Lited States (or any agency or instrumentality thereof);
the foregoing provisions of this subsection shall not apply to proceeds of the Bond being (u)
ed for an initial temporary period until such proceeds are needed for the purpose for which
ssue was issued; (v) held in a bona fide debt service fund; (w) held in a debt service reserve
hat meets the requirements of Section 148(d)of the Code with respect to reasonably required
e or replacement funds; (x) invested in obligations issued by the United States Treasury; or
id in a refunding escrow (i.e., a fund containing proceeds of a refunding bond issue established
vide for the payment of principal or interest on one or more prior bond issues); or (z) invested
,~r investments permitted under regulations promulgated pursuant to Section 149(b)(3)(B) of
~de;
(f) any information has been or will be supplied by the Borrower that has been or will
ed upon by the Issuer, the Trustee and by Bond Counsel with respect to the eligibility of the
ment and the exclusion from gross income for federal income tax purposes of interest on the
is true and correct;
20
is tax
Code
the ne
of off
144(a
Borro
the fa,
outsid
benef
facilit
does r
any l~,
benefi
of all
exem1
devel~
effect
141(a
outsta
is to b
so th~
144(a
benefi
facilit
the pc
other~
of the
financ
face
entin
contel
any pi
(g) except for the Issuer's Industrial Development Revenue Bonds (A-1 Roof Trusses
;ompany Project) Series 2001A, there is no other bond or issue of bonds, the interest on which
~xempt pursuant to Section 144(a) of the Code or Section 103(b)(6) of the Internal Revenue
>f 1954, as amended, part or all of the net proceeds of which are to be used with part or all of
proceeds of the Bond with respect to a single building, an enclosed shopping mall, or a strip
ices, stores or warehouses using substantial common facilities, as contemplated by Section
1(9) of the Code;
(h) neither the Borrower nor persons related (as such term is used in the Code) to the
~ver are owners or principal users (as such term is used in the Code) of any facility (other than
:ility in which the Equipment will be located) in unincorporated St. Lucie County, Florida, or
e of, but contiguous with, unincorporated St. Lucie County, Florida;
(i) (i) the aggregate authorized face amount of the Bond allocated to any test-period
ciary (as such term is used in the Code), when increased by the outstanding tax-exempt
,-related bonds (within the meaning of Section 144(a)(10) of the Code) of such beneficiary,
ot exceed $40,000,000. (ii) For purposes of applying subparagraph (i) above, with respect to
sue, the outstanding tax-exempt facility-related bonds of any person who is a test-period
ciary, as such term is used in the Code, with respect to such issue is the aggregate face amount
tax-exempt bonds which, within the meaning of Section 144(a)(10)(B)(ii) of the Code, are
~t facility bonds, qualified small issue bonds and qualified redevelopment bonds or industrial
~pment bonds (as defined in Section 103(b)(2) of the Internal Revenue Code of 1954, as in
on the date before the date of enactment of the Tax Reform Act of 1986) to which Section
of the Code does not apply: (A) which are allocated to such beneficiary, and (B) which are
~ding on the date of issuance of the Bond (not including as outstanding any obligation which
e redeemed from the proceeds of the Bond). (iii) The amount of any issue shall be allocated
it: (y) except as may otherwise be provided in regulations promulgated under Section
I(10)(C) of the Code, the portion of the face amount of any issue allocated to any test-period
ciary of the facility financed by the proceeds of such issue (other than an owner of such
V) is an amount which bears the same relationship to the entire face amount of such issue as
.rtion of such facility used by such beneficiary bears to the entire facility; and (z) except as
~ise provided in regulations promulgated under Section 144(a)(10)(C) of the Code, the portion
face amount of an issue allocated to any test period beneficiary who is an owner Of a facility
ed by the proceeds of such issue is an amount which bears the same relationship to the entire
mount of such issue as the portion of such facility owned by such beneficiary bears to the
facility;
(j) the Equipment constitutes part of a "manufacturing facility" within the meaning and
nplation of Section 144(a)(12) of the Code;
(k) none of the net proceeds of the Bond shall be used (either directly or indirectly) for
trpose other than to acquire the Equipment;
21
for thc
prope:
respec
bonds
inclui
amou:
test-p~
Equip
or suf.'
orap
persm
relate~
to the
relate~
financ
ownel
Bond
the po
Equip
Bond.
Regui
the Ec
of Sci
exem
other
user G
aggret
alloca
of the
(iii) th
outsta
meani
"facili
Count
Count
(1) the Borrower shall not allow any portion of the net proceeds of the Bond to be used
acquisition of any property or an intereSt therein (other than land) unless the first use of such
~ty is pursuant to such acquisition;
(m) no "test-period beneficiary" (as defined in Section 144(a)(10) of the Code) with
to the Bond has been allocated portions of the face amounts of"tax-exempt facility-related
(aS defined in Section 144(a)(10) of the Code) outstanding on the date hereof (but not
ng any obligations which are to be redeemed from the proceeds of the Bond), the aggregate
~t of which, when increased by the portion of the face amount of the Bond allocable to that
;riod beneficiary, would exceed $40,000,000;
(n) at no time within three years after the later of the date the Bond is issued or the
ment is placed in service shall the Borrower become an owner or a principal user, or permit
!er a related person (within the meaning of Section 144(a)(3) of the Code) to become an owner
:incipal user, or permit or suffer an owner or a principal user of the Equipment or a related
thereto, to become an owner or principal user of a facility financed with tax-exempt facility-
bonds outstanding on the date of issuance of the Bond if the sum of (i) the portion allocated
Borrower, a related person thereto, or other owner or principal user of the Equipment (or
I person thereto) of the outstanding aggregate amount of the tax-exempt facility-related bonds
ing such facility, (ii) the portion allocated to the Borrower, related person thereto, or other
or principal user of the Equipment (or related person thereto) on the date of issuance of the
)fthe aggregate amount of other then-outstandingtax-exempt facility-related bonds, and (iii)
rtion allocated to the Borrower, related person thereto, or other owner or principal user of the
ment (or related person thereto) of the outstanding aggregate authorized face amount of the
exceeds $40,000,000, all within the meaning of Section 144(a)(10) of the Code and any
ations promulgated thereunder;
(u) at no time within three years after the later of the date the Bond is issued or the date
uipment is placed in service shall the Borrower become a related person (within the meaning
tion 144(a)(3) of the Code) to an owner or a principal user of a facility financed with tax-
,t facility-relatedbonds outstanding on the date of issuance of the Bond or permit or suffer any
~wner or principal user of the Equipment to become a related person to an owner or principal
f such a facility if the sum of (i) the principal allocated to such person of the outstanding
ate amount of the tax-exempt facility-related bonds financing such facility, (ii) the portion
sd to the Borrower or other owner or principal user of the Equipment on the date of issuance
Bond of the aggregate amount ofother, then-Outstandingtax-exempt facility-relatedbonds, and
portion allocated to the Borrower or other owner or principal user of the Equipment of the
ding aggregate authorized face amount of the Bond, exceeds $40,000,000, all within the
ng of Section 144(a)(10) of the Code and any Regulations promulgated thereunder;
(v) the Borrower represents that there have never been issued any bonds with respect to
:ies" described in Section 144(a)(2) of the Code which are located in unincorporated St. Lucie
Florida or facilities that are located outside of, but contiguous to, unincorporated St. Lucie
Florida, or facilities that are located outside of unincorporated St. Lucie County, Florida,
22
but aa e integrated with the Equipment, which bonds would be taken into account in determining the
aggre gate face amount of the Bond as provided ih Section 144(a)(2) of the Code;
(w) the Borrower further covenants and represents that, for the purposes of Section
144(,)(4) of the Code, the (i) aggregate principal amount of the Bond being issued, plus capital
exper ditures with respect to the Equipment by any person, plus capital expendituresheretofore made
(othe: than those described in Section 144(a)(4)(C) of the Code) by the Borrower, and any other
perso who is, or may become, a principal user of the Equipment, with respect to "facilities"
descr:.bed in Section 144(a)(4)(B) of the Code (of which the Equipment is one), have not and will
not e:tceed $10,000,000 (or any such larger amount as may hereafter be permitted by the Code
withc ut affecting the status of the interest on the Bond as excluded from gross income for federal
incon te tax purposes) during the six-year period beginning three years before the date of issuance
and d slivery of the Bond;
(x) the Borrower further covenants and agrees that during the three-yearperiod following
the d~tte of issuance and delivery of the Bond, it shall not make or cause or permit to be made any
capit~l expenditures (other than those mentioned in Section 144(a)(4)(C) of the Code) with respect
to "facilities" described in Section 144(a)(4)(B) of the Code which would cause the interest on the
Bond to become included in gross income for federal income tax purposes;
(y) the Borrower further covenants that, at no time within three years after the later of
the d~.te the Bond is issued or the date the Equipment is placed in service, shall the Borrower become
an o~ ruer or a principal user, or permit or suffer a related person (within the meaning of Section
144(~)(3) of the Code) to become an owner or a principal user, or permit or suffer an owner or a
principal user of the Equipment or a related person thereto, to become an owner or principal user of
"facillties" described in Section 144(a)(4)(B)of the Code, if the sum of (i) the aggregate face amount
outst~ding on the date of issue of the Bonds of any tax-exempt bond described in Section 144(a)(2)
of thC: Code issued to finance such facilities, (ii) the capital expenditures that had been made with
respect to such "facilities" during the six-year period beginning three years before the date of
issua: ~ce and delivery of the Bond, (iii) the aggregate principal amount of the Bond, and (iv) other
capit~tl expenditures taken into account under Section 144(a)(4) of the Code, would exceed
$10,C 00,000;
(z) the Borrower further covenants that, at no time within three years after the later of
the d~tte the Bond is issued or the date the Equipment is placed in service, shall the Borrower permit
or su::fer an owner or a principal user of "facilities" described in Section 144(a)(4)(B) of the Code
or a 'elated person thereto (within the meaning of Section 144(a)(3) of the Code) to become an
owm or a principal user of the Equipment if the sum of (i) the aggregate face amount outstanding
on th, date of issue of the Bond of any tax-exemptbonds described in Section 144(a)(2) of the Code
issue~ 1 to finance such facilities, (ii) the capital expenditures that had been made with respect to such
"facilities" during the six-year period beginning three years before the date of issuance and delivery
of th~ Bond, (iii) the aggregate principal amount of the Bond, and (iv) other capital expenditures
taken into account under Section 144(a)(4) of the Code, would exceed $10,000,000;
23
the d
a rel~
user o
or pri~
"facil!
of an5
(ii) th,
perioc
princi
144(a
princi
Code:
actio~
suDj el
in Sec
herea:
Agree
Depa~
Sectk
gross
(aa) the Borrower further covenants that, at no time within three years after the later of
te the Bond is issued or the date the Equipment is placed in service,-shall the Borrower become
:ed person (within the meaning of Section 144(a)(3) of the Code) to an owner or a principal
f"facilities" described in Section 144(a)(4)(B) of the Code or permit or suffer any other owner
~cipal user of the Equipment to become a related person to an owner or principal user of such
ties" if the sum of (i) the aggregate face amount outstanding on the date of issue of the Bond
tax-exempt bonds described in Section 144(a)(2) of the Code issued to finance such facilities,
.~ capital expenditures that had been made with respect to such "facilities" during the six-year
~ beginning three years before the date of issuance and delivery of the Bond, (iii) the aggregate
pal amount of the Bond, and (iv) other capital expenditures taken into account under Section
1(4) of the Code, would exceed $10,000,000;
(bb) the Borrower represents and warrants that the Borrower is expected to be the only
~al user of the Equipment, as the term "principal user" is utilized in Section 144(a) of the
(cc) the Borrower further covenants that it shall take, or require to be taken, such further
; as are required ora principal user of property financed by an issue of obligations which are
:t to the $10,000,000 limitation of Section 144(a)(4) of the Code, which actions are set forth
:tion 144(a) of the Code and the regulations thereunder, whether said regulations are now or
~ter adopted, proposed or temporary, including Section 1.103-10(b) of said regulations; and
(dd) the Borrower further agrees and covenant to comply fully, during the term of this
:ment, with all effective rules, rulings, regulations and decisions promulgated by the
'rment of the Treasury or the Internal Revenue Service, with respect to bonds issued under
,n 144(a)(4) of the Code so as to maintain the status of interest on the Bond as excluded from
income for federal income tax purposes.
[Remainder of Page Intentionally Left Blank]
24
all re
the Bt
from~
Equip
intend
Borro'
payab
existit
a secu
propeJ
now o
all wa:
the fo:
propel
procee
docun
in for
approl
Borro'
attom~
may b
shall c
and m
BORI
BUSI]
Borro~
hereb3
its nat
chang~
date tl~
done k
hereof
directl'
charge
ARTICLE VI
TITLE TO EQUIPMENT; SECURITY INTEREST
SECTION 6.01 TITLE TO EQUIPMENT. Legal title to the Equipment and any and
airs, replacements, substitutions and modifications to such Equipment shall be in the name of
,rrower. Borrower will at all times protect and defend, at its own cost and expense, its title
md against all claims, liens and legal processes of creditors of Borrower, and keep all
nent free and clear of all such claims, liens and processes.
SECTION 6.02 SECURITY INTEREST IN PROJECT. This Agreement is
ed to constitute a security agreement within the meaning of the UCC. As security for
arer's payment to Lender, as assignee of Issuer, of Loan Payments and all other amounts
.e to Lender hereunder, or any other obligation (whether direct or indirect and whether now
:g or hereafter arising), Borrower hereby grants to Issuer, and Issuer hereby assigns to Lender,
rity interest constituting a first lien on (i) the Equipment, (ii) all general intangibles and other
ty relating to the Equipment; (iii) all accessories, attachments, parts, equipment and repairs
: hereafter attached or affixed or used in connection with any of the foregoing property, (iv)
· ehouse receipts, bills of lading and other documents of title now or hereafter covering any of
:egoing property, (v) all accessions thereto, (vi) all substitutions for any of the foregoing
~ty, and (vii) products and proceeds of any of the foregoing property, including insurance
..ds (collectively, the "Collateral"). Issuer and Borrower agree to execute such additional
tents, including financing statements, assignments, affidavits, notices and similar instruments,
n satisfactory to Lender, and take such other actions that Lender deems necessary or
~riate to establish and maintain the security interest created by this Section, and Issuer and
~er hereby designate and appoint Lender as their agent, and grant to Lender a power of
~y (which is coupled with an interest), to execute on behalf of Issuer and Borrower, as the case
:, such additional documents and to take such other actions. If requested by Lender, Borrower
anspicuously mark certain items of the Equipment with appropriate lettering, labels or tags,
fintain such markings, so as clearly to disclose Lender's security interest in the Equipment.
SECTION 6.03 CHANGE IN NAME OR CORPORATE STRUCTURE OF
tOWER; CHANGE IN LOCATION OF BORROWER'S PRINCIPAL PLACE OF
qESS. Borrower's chief executive office is located at the address set forth above, and all of
ver's records relating to its business and the Equipment are kept at such location. Borrower
· agrees to provide written notice to Lender and Issuer of any change or proposed change in
ae, corporate structure, place of business or chief executive office or change or proposed
~' in the location of the Equipment. Such notice shall be provided 30 days in advance of the
at such change or proposed change is planned to take effect. Borrower does business, and has
usiness, only under its own name and the trade names, if any, set forth on the execution page
SECTION 6.04 LIENS AND ENCUMBRANCES TO TITLE. Borrower shall not,
or indirectly, create, incur, assume or suffer to exist any mortgage, deed of trust, pledge, lien,
encumbrance or claim on or with respect to the Equipment (together, "Liens") other than the
25
respe~
shall
such
remo
Equi
when
that i~
shall ~
prese]
paym
as ass
refun~
respe,
any e
herel
herel
respe
after
Born
other
any cl
permi
any fi
perfe~
:tive rights of Lender and Issuer as herein provided and the Permitted Exceptions. Borrower
>romptly, at its own expense, take such action as may be necessary to discharge or remove any
~,ien. Borrower shall reimburse Lender for any expenses incurred by Lender to discharge or
~e any Lien.
SECTION 6.05 PERSONAL PROPERTY. The parties hereby agree that the
~ment is, and during the period this Agreement is in force will remain, personal property and,
subjected to use by Borrower hereunder, will not be or become fixtures; provided, however,
· contrary to the parties' intent the Equipment is or may be deemed to be a fixture, Borrower
:ause filings to be made with the applicable government officials or filing offices to create and
-ye for Lender as assignee of Issuer a perfected first priority security interest in the Equipment.
SECTION 6.06 ASSIGNMENT OF INSURANCE. As additional security for the
:nt and performance of Borrower's obligations hereunder, Borrower hereby assigns to Lender,
ignee of Issuer, any and all moneys (including, without limitation, proceeds of insurance and
ts of unearned premiums) due or to become due under, and all other rights of Borrower with
:t to, any and all policies of insurance now or at any time hereafter covering the Equipment or
?idence thereof or any business records or valuable papers pertaining thereto, and Borrower
directs the issuer of any such policy to pay all such moneys directly to Lender. Borrower
assigns to Lender, as assignee of Issuer, any and all moneys due or to become due with
:t to any condemnation proceeding affecting the Equipment. At any time, whether before or
he occurrence of any Event of Default, Lender may (but need not), in Lender's name or in
wer's name, execute and deliverproofofclaim, receive all such moneys, endorse checks and
instruments representing payment of such moneys, and adjust, litigate, compromise or release
aim against the issuer of any such policy or party in any condemnation proceeding.
SECTION 6.07 AGREEMENT AS FINANCING STATEMENT. To the extent
tted by applicable law, a carbon, photographic or other reproduction of this Agreement or of
nancing statements signed by Borrower is sufficient as a financing statement in any state to
',t the security interests granted in this Agreement.
26
follo~
to be
Lend,
of Bo
balan
retair
toge~
stater
of thc
the fa
and 5
certif
recei~
respe
from
of al1
descr
in ex(
an of]
a rest
Defat
theE(
staten
ARTICLE VII
AFFIRMATIVE COVENANTS OF BORROWER
So long as the Loan and the Bond shall remain unpaid, Borrower will comply with the
ring requirements:
SECTION 7.01 REPORTING REQUIREMENTS. Borrowerwill deliver, or cause
delivered, to Lender each of the following, which shall be in form and detail acceptable to
;r:
(a) as soon as available, and in any event within 120 days after the end of each fiscal year
rrower, financial statements of Borrower, which annual financial statements shall include the
ce sheet of Borrower as at the end of such fiscal year and the related statements of income,
ed earnings and cash flows of Borrower for the fiscal year then ended, all in reasonable detail,
her with a certificate of the chief financial officer of Borrower stating that such financial
aents are fairly presented on a consistentbasis and whether or not such officer has knowledge
occurrence of any Default or Event of Default hereunder and, if so, stating in reasonable detail
ets with respect thereto; the financial statements for the fiscal years ending December 31,2001
002 may be CPA reviewed, but thereafter such financial statements shall be audited by a
led public accountant reasonably acceptable to Lender;
(b) such additional information and statements, lists of assets and liabilities, agings of
'ables and payables, inventory schedules, budgets, forecasts, tax returns, and other reports with
:t to Borrower's financial condition and business operations as Lender may reasonably request
time to time;
(c) immediately after the commencement thereof, notice in writing of all litigation and
proceedings before any governmental or regulatory agency affecting Borrower of the type
bed in Article V, subsection (g), hereof or which seek a monetary recovery against Borrower
:ess of $100,000;
(d) as promptly as practicable (but in any event not later than five BusineSs Days) after
icer of Borrower obtains knowledge of the occurrence of any event that constitutes a Default
Event of Default hereunder, notice of such occurrence, together with a detailed statement by
,onsible officer of Borrower of the steps being taken by Borrower to cure the effect of such
It or Event of Default;
(e) promptly upon knowledge thereof, notice of any loss or destruction of or damage to
luipment or of any material adverse change in the Equipment;
(f) promptly upon their distribution, copies of all financial statements, reports and proxy
lents that Borrower shall have sent to its stockholders;
27
certifi
mater
finan(
BoFfo
pertai
time
acce
office
any a
ordim
empk
agent~
any ti
requi~
and a~
will n
anyfe
if any
respe~
item~
comp
body
under
comp
gover
dispo:
Equip
the B~
imme.
sole ¢
satisfi
inspe¢
(g) promptly after the amending thereof, copies of any and all amendments to its
cate of incorporation, articles of incorporation or bylaws;
(h) promptly upon knowledge thereof, notice of the violation by Borrower of any
ial law, rule or regulation; and
(i) promptly upon knowledge thereof, notice of any material adverse change in the
:iai or operating condition of Borrower.
SECTION 7.02 BOOKS AND RECORDS; INSPECTION AND EXAMINATION.
wer will keep accurate books of record and account for itself pertaining to the Equipment and
~ing to Borrower's business and financial condition and such other matters as Lender may from
> time request in which tree and complete entries will be made in accordance with generally
ted accounting principles consistently applied and, upon request of Lender, will permit any
r, employee, attorney or accountant for Lender to audit, review, make extracts from, or copy
~d all corporate and financial books, records and properties of Borrower at all times during
try business hours, and to discuss the affairs of Borrower with any of its directors, officers,
,yees or agents. Borrower will permit Lender, or its employees, accountants, attorneys or
;, to examine and copy any or all of its records and to examine and inspect the Equipment at
me during Borrower's business hours.
SECTION 7.03 COMPLIANCE WITH LAWS. Borrower will (a) comply with the
ements of applicable laws and regulations, the noncompliance with which would materially
lversely affect its business or its financial condition and (b) use and keep the Equipment, and
~quire that others use and keep the Equipment, only for lawful purposes, without violation of.
deral, state or local law, statute or ordinance. Borrower shall secure all permits and licenses,
. necessary for the installation and operation of the Equipment. Borrower shall comply in all
:ts (including, without limitation, with respect to the use, maintenance and operation of each
)f the Equipment) with all laws of the jurisdictions in which its operations involving any
)nent of Equipment may extend and of any legislative, executive, administrative or judicial
.~xercising any power or jurisdiction over the items of the Equipment or its interest or rights
this Agreement.
SECTION 7.04 ENVIRONMENTAL COMPLIANCE. Borrower shall promptly
y with all statutes, regulations and ordinances, and with all orders, decrees or judgments of
.xmental authorities or courts having jurisdiction, relating to the use, collection, treatment,
;al, storage, control, removal or cleanup of hazardous waste or materials in, on or under the
ment, at BOrrower's expense. In the event that Lender at any time has a reasonable belief that
irrower has violated any applicable Environmental Laws with respect to the Equipment, then
tiately, upon request by Lender, Borrower shall obtain and furnish to Lender, at Borrower's
ost and expense, an environmental audit and inspection of the Equipment from an expert
tctory to Lender. In the event that Borrower fails to immediately obtain such audit or
.ion, Lender or its agents may perform or obtain such audit or inspection at Borrower's sole
28
cost
actio
its in
haza:
Borr
incm
acce
this ]
posi
right
inter,
decis
pay (
upon
limit
inten
all fe
mate
orB(
or cl.
proc~
chart
resp~
and
Equi
(a)
nece!
ordil~
for c{
all m
impa
resto:
to thc
in thc
to co'
fixtm
fixtm
in ge
and expense. Lender may, but is not obligated to, enter upon the Equipment and take such
ns and incur such costs and expenses to effect such compliance as it deems advisable to protect
Ierest in the Equipment; and whether or not Borrower has actual knowledge of the existence of
· dous waste or materials on the Equipment or any adjacent property as of the date hereof,
)wer shall reimburse Lender as provided herein for the full amount of all costs and expenses
red by Lender prior to Lender acquiring title to the Equipment through foreclosure or
)tance of a deed in lieu of foreclosure, in connection with such compliance activities. Neither
,rovision nor any provision herein or in the related documents shall operate to put Lender in the
ion of an owner of the Equipment prior to any acquisition of the Equipment by Lender. The
granted to Lender herein are granted solely for the protection of Lender's lien and security
it covering the Equipment and do not grant to Lender the right to control Borrower's actions,
ions or policies regarding hazardous waste or materials.
SECTION 7.05 PAYMENT OF TAXES AND OTHER CLAIMS. Borrower will
,r discharge, when due, (a) all taxes, assessments and governmental charges levied or imposed
it or upon its income or profits, upon any properties belonging to it (including, without
~tion, the Equipment) or upon or against the creation, perfection or continuance of the security
;st created pursuant to this Agreement, prior to the date on which penalties attach thereto, (b)
deral, state and local taxes required to be withheld by it, and (c) all lawful claims for labor,
:ials and supplies which, if unpaid, might by law become a lien or charge upon any properties
,rrower; provided, that Borrower shall not be required to pay any such tax, assessment, charge
tim whose amount, applicability or validity is being contested in good faith by appropriate
;edings. Borrower will pay, as the same respectively come due, all taxes and governmental
;es of any kind whatsoever that may at any time be lawfully assessed or levied against or with
ct to the Equipment, as well as all gas, water, steam, electricity, heat, power, telephone, utility
)ther charges incurred in the operation, maintenance, use, occupancy and upkeep of the
)ment. Borrower shall pay any mortgage recording tax that is ever due or assessed, if any.
SECTION 7.06 PRESERVATION AND MAINTENANCE OF EQUIPMENT.
,orrower shall, at its own expense, maintain, preserve and keep the Equipment in good repair,
lng order and condition, and shall from time to time make all repairs and replacements
:sary to keep the Equipment in such condition, and in compliance with state and federal laws,
ary wear and tear excepted. Borrower (i) shall maintain the Equipment in a condition suitable
:rtification by the manufacturer thereof (if certification is available) and in conformance with
anufacturer's recommended maintenance requirements, (ii) shall not commit waste or permit
irment or deterioration of the Equipment, (iii) shall not abandon the Equipment, (iv) shall
· e or repair promptly and in a good and workmanlike manner all or any part of the Equipment
equivalent of its original condition, or such other condition as Lender may approve in writing,
event of any damage, injury or loss thereto whether or not insurance proceeds are available
~er in whole or in part the costs of such restoration or repair, (v) shall keep all improvements,
es, equipment, machinery and appliances on the Equipment, in good repair and shall replace
es, equipment, machinery and appliances on the Equipment when necessary to keep such items
od repair, (vi) shall comply with all laws, ordinances, regulations and requirements of any
29
gover
and, 1~
purpo
hereu~
becon
Borro
or acc
with
such
replac
consti
Agree
the m
(othm
encun
types
of the
maxir
438B]
of sul:
insuri:
insure
of the
accorc
by co~
A:X o
insura
paym~
Agree
certifi
amental body applicable to the Equipment, and (vii) shall give notice in writing to Lender of
nless otherwise directed in writing by Lender, appear in and defend any action or proceeding
rting to affect the Equipment, the security of this Agreement or the rights or powers of Lender
~der. In the event that any parts or accessories forming part of any item or items of Equipment
~e worn out, lost, destroyed, damaged beyond repair or otherwise rendered unfit for use,
wer, at its own expense and expeditiously, will replace or cause the replacement of such parts
essories by replacement parts or accessories free and clear of all liens and encumbrances and
value and utility at least equal to that of the parts or accessories being replaced (assuming that
'eplaced parts and accessories were otherwise in good working order and repair). All such
ement parts and accessories shall be deemed to be incorporated immediately into and to
tute an integral portion of the Equipment and, as such, shall be subject to the terms of this
ment. Neither Lender nor Issuer shall have any responsibility in any of these matters, or for
~king of improvements or additions to the Equipment.
(b) Borrower will defend the Equipment against all claims or demands of all persons
than Lender) claiming the Equipment or any interest therein.
(c) Borrower will keep the Equipment free and clear of all security interests, liens and
~brances except the security interest created pursuant to this Agreement.
SECTION 7.07 INSURANCE. Borrower shall obtain and maintain the following
of insurance upon and relating to the Equipment:
(a) "All Risk" property insurance in an amount not less than the full replacement value
Equipment (with a deductible not to exceed $50,000 and with co-insurance limited to a
hum of 10% of the amount of the policy), naming Lender a loss payee endorsement (form
:U or equivalent) and including agreed amount, inflation guard, replacement cost and waiver
rogation endorsements;
(b) Comprehensive general liability insurance in an amount not less than $1,000,000
~g against personal injury, death and property damage and naming Lender as additional
d; and
Upon each reasonable request of Lender, Borrower shall increase the coverages under any
insurance policies required to be maintained hereunder or otherwise modify such policies in
lance with Lender's request. All of the insurance policies required hereunder shall be issued
>orate insurers licensed to do business in the state in which the Equipment is located and rated
' better by A.M. Best Company, and shall be in form acceptable to Lender. Certificates of all
ace required to be maintained hereunder shall be delivered to Lender, along with evidence of
:nt in full of all premiums required thereunder, on or before Borrower's execution of this
ment and prior to the expiration or replacement of insurance required hereunder. All such
:ates shall be in form acceptable to Lender and shall require the insurance company to give
30
to L~
mate]
will
nece.
ordm
perfo
relate
gives
and 7
.Lend~
stead
other
(inch
encul
procu
finan.
Lend,
nder at least 30 days' prior written notice before canceling the policy for any reason or
/ally amending it.
SECTION 7.08 PRESERVATION OF CORPORATE EXISTENCE. Borrower
>reserve and maintain its corporate existence and all of its rights, privileges and franchises
sary or desirable in the normal conduct of its business; and shall conduct its business in an
[y, efficient and regular manner.
SECTION 7.09 PERFORMANCE BY LENDER. If Borrower at any time fails to
rm or observe any of the covenants or agreements contained in this Agreement or any other
d document, and if such failure shall continue for a period of 30 calendar days after Lender
Borrower written notice thereof (or in the case of the agreements contained in Sections 7.06
.07 hereof, immediately upon the occurrence of such failure, without notice or lapse of time),
:r may, but need not, perform or observe such covenant on behalf and in the name, place and
of Borrower (or, at Lender's option, in Lender's name) and may, but need not, take any and all
actions which Lender may reasonably deem necessary to cure or correct such failure
~ding, without limitation, the payment of taxes, the satisfaction of security interests, liens or
nbrances, the performance of obligations owed to account debtors or other obligors, the
rement and maintenance of insurance, the execution of assignments, security agreements and
ting statements, and the endorsement of instmrnents); and Borrower shall thereupon pay to
:r on demand the amount of all moneys expended and all costs and expenses (including
reaso: ~able attorneys' fees and legal expenses) incurred by Lender in connection with or as a result
of the:~ performance or observance of such agreements or the taking of such action by Lender,
toge~er with interest thereon from the date expended or incurred at the lesser of 12% per annum or
the highest rate permitted by law. To facilitate the performance or observance by Lender of such
covenants of Borrower, Borrower hereby irrevocably appoints Lender, or the delegate of Lender,
actin~
to cre
any ~
appli~
deliw
ofbre
shall
puniti
asSOC:
mater
facilit
paym~
off, c
; alone, as the attorney in fact of Borrower with the right (but not the duty) from time to time
~te, prepare, complete, execute, deliver, endorse or file in the name and on behalf of Borrower
nd all instruments, documents, assignments, security agreements, financing statements,
:ations for insurance and other agreements and writings required to be obtained, executed,
:red or endorsed by Borrower under this Agreement.
SECTION 7.10 LIMITATIONS OF LIABILITY. In no event, whether as a result
ach of contract, warranty, tort (including negligence or strict liability), indemnity or otherwise,
Lender, its assignees, if any, or Issuer be liable for any special, consequential, incidental,
ve or penal damages, including, but not limited to, loss of profit or revenue, loss of use of
ated equipment, service materials or software, damage to associated equipment, service
[als or software, cost of capital, cost of substitute property, service materials or software,
les, services or replacement power or downtime costs.
SECTION7.11 BORROWER'S OBLIGATIONS UNCONDITIONAL. All
,mrs required of Borrower hereunder shall be paid without notice or demand and without set
)unterclaim, or defense for any reason and without abatement or deduction or defense.
31
Borro
its otb
termi~
may c
busim
lawful
such ~
authm
enter
bankr
action
thereo
duty, 1
whetl~
notwi~
hereto
permi
and a~
harml.
and e
judgrr
or an]
condil
includ
impro
limita'
custor
benefi
Lend~
have
Borro
or a p~
~er will not suspend or discontinue any such payments, and will perform and observe all of
e.r agreements in this Agreement, and, except as expressly permitted in Section 2.07, will not
~ate this Agreement for any cause, including but not limited to any acts or circumstances that
onstitute failure of consideration, destruction or damage to the Equipment or Borrower's
:ss, the taking of the Equipment or Borrower's business by condemnation or otherwise, the
prohibition of Borrower's use of the Equipment, or Borrower's business, the interference with
tse by any private person or corporation, the invalidity or unenforceability or lack of due
ization or other infirmity of this Agreement, or lack of right, power or authority of Issuer to
into this Agreement, eviction by paramount title, commercial frustration of purpose,
~ptcy or insolvency of Issuer, change in the tax or other laws or administrative rulings or
s of the United States of America or of the State of Florida or any municipal corporation
f, or failure of Issuer to perform and observe any agreement, whether express or implied or any
iability or obligation arising out of or connected with this Agreement, or for any other cause
er similar or dissimilar to the foregoing, any present or furore law to the contrary
hstanding, it being the intention of the parties hereto that the amounts payable by Borrower
tder shall be paid in full when due without any delay or diminution whatever.
SECTION 7.12 INDEMNITY BY BORROWER. Borrower will, to the fullest extent
.ted by law, protect, indemnify and save Lender, Issuer and their officers, agents, employees
ty person who controls Lender or Issuer within the meaning of the Securities Act of 1933,
.~ss from and against all liabilities, losses, damages, costs, expenses (including attorneys' fees
~penses of Lender, Borrower and Issuer), causes of action, suits, claims, demands and
ents of any nature arising from:
(a) any injury to or death of any person or damage to property in or upon the Premises
other location of the Equipment or growing out of or connected with the use, non-use,
.on or occupancy of the premises or any other location of the Equipment or any part thereof
ing any and all acts or operations relating to the construction or installation of property or
vements. The foregoing indemnification obligations shall not be limited in any way by any
:ion on the amount or type of damages, compensation or benefits payable by or for Borrower,
~ers, suppliers or affiliated organizations under any workers' compensation acts, disability
acts or other employee benefit acts;
(b) violation of any agreement, provision or condition of this Agreement, except by
or Issuer;
(c) violation of any contract, agreement or restriction applicable to Borrower which shall
xisted at the commencement of the term of this Agreement or shall have been approved by
~,er;
(d) violation of any law, ordinance, court order or regulation affecting the Equipment,
thereof or the ownership, occupancy or use thereof; and
32
conta
whicl
the ct
unde~
subje
(inch
or sm
relate
and
sepa
expel
deter
Issue:
effecl
dama
gross
shall
expe~
oblig
Issue
Borr(
Coun
herek
therel
(e) any statement or information relating to the expenditure of the proceeds of the Bond
ined in the Tax Exemption Agreement or similar document furnished by Borrower to Issuer
t, at the time made, is misleading, untrue or incorrect in any material respect.
Promptly after receipt by Lender or Issuer or any such other indemnified person of notice of
)mmencement of any action in respect of which indemnity may be sought against Borrower
this Section, such person will notify Borrower in writing of the commencement thereof, and,
:t to the provisions hereinafter stated, Borrower shall assume the defense of such action
.ding the employment of counsel who shall be satisfactory to Lender and Issuer, as applicable,
:h other person as the case may be, and the payment of expenses). Insofar as such action shall
to any alleged liability in respect of which indemnity may be sought against Borrower, Lender
ssuer, as applicable, or any such other indemnified person shall have the right to employ
ate counsel in any such action and to participate in the defense thereof, but the fees and
tses of such counsel shall not be at the expense of Borrower unless Issuer, reasonably
nines that the employment of such separate counsel is necessary to protect the interests of
:. Borrower shall not be liable to indemnify any person for any settlement of any such action
ed without its consent. Borrower shall not be required to indemnify Lender or Issuer for any
ges, losses, causes of actions, lawsuits, or claims which are caused directly and solely by the
negligence, willful misconduct, or fraudulent acts of Lender or Issuer.
The provisions of this Section 7.12 shall survive the payment and discharge of the Bond.
SECTION 7.13 ATTORNEYS' FEES AND EXPENSES. If an Event of Default
exist under this Agreement and Lender or Issuer should employ attorneys or incur other
tses for the collection of any amounts due hereunder, or the enforcement of performance of any
~tion or agreement on the part of Borrower, Borrower will upon demand pay to Lender or
r, as applicable, the reasonable fees of such attorneys and such other expenses so incurred.
.wer shall also be responsible while the Bond is outstanding to pay fees and expenses of Bond
sel retained by the Issuer regarding the outstanding Bond issue.
SECTION 7.14 SATISFACTION OF CONDITIONS PRECEDENT. Borrower
y agrees to satisfy each of the conditions contained in Article III hereof as and when required
)y.
33
create
any of
create
Borro'
assets
oftrar
with {
transa
assets
only i:
substa
constr
hereto
this A
as to tl
conve'
would
materi
princil
ARTICLE VIII
NEGATIVE COVENANTS OF BORROWER
So long as the Loan and the Bond shall remain unpaid, Borrower agrees that:
SECTION 8.01 LIEN. Borrower will not, and will not permit any other person to,
. incur or suffer to exist any pledge, lien, security interest, assignment or transfer upon or of
the Equipment except for the security interest created pursuant to this Agreement and the liens
pursuant to the Permitted Exceptions.
SECTION 8.02 SALE OF ASSETS. Except as provided in Section 8.03 hereof,
~ver will not, sell, lease, assign, transfer or otherwise dispose of all or a substantial part of its
or of any of the Equipment or any interest therein (whether in one transaction or in a series
.sactions).
SECTION 8.03 CONSOLIDATION AND MERGER. Borrower will not consolidate
Dr merge into any person, or permit any other person to merge into it, or acquire (in a
:tion analogous in purpose or effect to a consolidation or merger) all or substantially all of the
of any other person;provided, however, such transactions shall be permitted by the Borrower
(a) Borrower will be the surviving corporation;
(b) Lender and Issuer shall have received an opinion of bond counsel, in form and
nce satisfactory to Lender and Issuer, to the effect that under then existing laws the
nmation of such merger, consolidation, sale or conveyance would not cause the interest
Lder to become includable in gross income under the Code or adversely affect the validity of
reement;
(c) Lender and Issuer shall have received an opinion of counsel to the surviving entity
~e enforceability of this Agreement against such entity; and
(d) After giving effect to the proposed merger, consolidation, sale, acquisition or
~ance, no Default or Event of Default shall have occurred and be continuing hereunder or
result from such transaction.
SECTION 8.04 ACCOUNTING. Borrower will not adopt, permit or consent to any
al change in accounting principles other than as required by generally accepted accounting
ties.
34
will n
consi~
or eve
deed,
decre~
EquiF
in the
be, b
Agree
Borro
alteral
damal
EqUil:
remo~
the E~
modit
Equil~
subsfi
provL,
such C
intere:
unless
all or:
shall r
the E~
applic
condi!
SECTION 8.05 TRANSFERS. Except as provided in Section 8.03 hereof, Borrower
ot, in any manner transfer any property witho.ut prior or present receipt of full and adequate
leration.
SECTION 8.06 OTHER DEFAULTS. Borrower will not permit any breach, default
nt of default to occur under any note, loan agreement, indenture, lease, mortgage, contract for
security agreement or other contractual obligation binding upon Borrower or any judgment,
;, order or determination applicable to Borrower.
SECTION 8.07 PLACE OF BUSINESS. Borrower will not permit any of the
ment or any records pertaining to the Equipment to be located in any state or area in which,
event of such location, a financing statement covering such Equipment would be required to
has not in fact been, filed in order to perfect the security interest created pursuant to this
nent.
SECTION 8.08 MODIFICATIONS AND SUBSTITUTIONS. (a) After the date that
wet has completed acquisition of the Equipment, Borrower will not make any material
ions, modifications or additions to the Equipment which cannot be removed without materially
;ing the functional capabilities or economic value of the Equipment. Upon return of the
merit to Lender and at the request of Lender, Borrower, at its sole cost and expense, will
'e all alterations, modifications and additions and repair the Equipment as necessary to return
luipment to the condition in which it was furnished, ordinary wear and tear and permitted
ications excepted.
(b) Notwithstanding the provisions of subparagraph (a) of this section, Borrower may,
he prior written consent of Lender, substitute for parts, elements, portions or all of the
ment, other parts, elements, portions, equipment or facilities; provided, however, that any
tutions made pursuant to Borrower's obligations to make repairs referenced under any
.ion of this Agreement shall not require such prior written consent. Borrower shall provide
ocuments or assurances as Lender may reasonably request to maintain or confirm the security
;t assigned to Lender in the Equipment as so modified or substituted. '
SECTION 8.09 USE OF THE EQUIPMENT. Unless required by applicable law or
Lender has otherwise agreed in writing, Borrower shall not allow changes in the use for which
my part of the Equipment was intended at the time this Agreement was executed. Borrower
.ot, without Lender's prior written consent, (a) initiate or acquiesce in a change applicable to
tuipment, (b) permit the use of the Equipment to become a non-conforming use under
able zoning ordinances, or (c) amend, modify or consent to any easement or covenants,
ions and restrictions pertaining to the Equipment.
35
shall
destn
Equi~
or tak
even~
subsl
imm¢
Lend{
the ot
full.
after'
notif)
the D
in full
and 1:
Dam,
For p
gross
(inclu
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 9.01 DAMAGE, DESTRUCTION AND CONDEMNATION. Borrower
provide a complete written report to Lender immediately upon any loss, theft, damage,
lotion or taking by eminent domain of any Equipment and of any accident involving any
,ment. If all or any part of the Equipment is lost, stolen, destroyed or damaged beyond repair
en by eminent domain ("Damaged Property"), Borrower shall as soon as practicable after such
either: (a) replace the same at Borrower's sole cost and expense with equipment having
mtially similar specifications and of equal or greater value to the Damaged Property
diately prior to the time of the loss occurrence, such replacement property to be subject to
:r's approval, whereupon such replacement property shall be substituted in this Agreement and
her related documents by appropriate endorsement or amendment; or (b) pre-pay the Loan in
Borrower shall notify Lender of which course of action it will take within 15 calendar days
:he loss occurrence. If, within 45 calendar days of the loss occurrence, (a) Borrower fails to
Lender; (b) Borrower and Lender fail to execute an amendment to this Agreement to delete
arnaged Property and add the replacement property or (c) Borrower fails to prepay the Loan
, then Lender may, at its sole discretion, declare the Loan to be immediately due and payable,
;orrower is required to pay the same. The Net Proceeds of insurance with respect to the
ged Property shall be made available by Lender to be applied to discharge Borrower's Loan.
arposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the
proceeds of any insurance claim or condemnation award after deducting all expenses
ding reasonable attorneys' fees) incurred in the collection of such claim or award.
[Remainder of Page Intentionally Left Blank]
36
of Bor
or mo]
Lende
Issuer
unless
disclo~,
or sub
owner,
is mad
Agree]
a bool
partita
to Issu
the as!
assign
counte
and B(
to exe
statem
the Ec
and th
by Bo:
ARTICLE X
ASSIGNMENT, SUBLEASING AND SELLING
SECTION 10.01 ASSIGNMENT BY LENDER. This Agreement, and the obligations
:ower to make payments hereunder, may be assigned and reassignedin whole or in part to one
e assignees or subassignees (who shall be purchaser of the Bond or an interest therein) by
: at any time subsequent to its execution, without the necessity of obtaining the consent of
~r Borrower;provided, however, that no such assignment or reassignment shall be effective
and until (a) Issuer and Borrower shall have received notice of the assignment or reassignment
ing the name and address of the assignee or subassignee and a representationthat the assignee
assignee is an Accredited Investor, which notice Issuer shall maintain as evidence of the
;hip and registration of the Bond, and (b) in the event that such assignment or reassignment
e to a bank or trust company as trustee for holders of certificates representing interests in this
nent and the Bond, such bank or trust company agrees to maintain, or cause to be maintained,
:-entry system by which a record of the names and addresses of such holders as of any
Jar time is kept and agrees, upon request of Issuer or Borrower, to furnish such information
er or Borrower. Upon receipt of notice of assignment, Borrower will reflect in a book-entry
:ignee designated in such notice of assignment, and shall agree to make all payments to the
:e designated in the notice of assignment, notwithstanding any claim, defense, setoff or
rclaim whatsoever (whether arising from a breach of this Agreement or otherwise) that Issuer
,rrower may from time to time have against Lender or the assignee. Issuer and Borrower agree
:ute all documents, including notices of assignment and chattel mortgages or financing
ents, which may be reasonably requested by Lender or its assignee to protect their interest in
uipment and in this Agreement.
SECTION 10.02 NO SALE OR ASSIGNMENT BY BORROWER. This Agreement
~ interest of Borrower in the Equipment may not be sold, assumed, assigned or encumbered
Tower, except for Permitted Exceptions.
[Remainder of Page Intentionally Left Blank]
37
Defm
Payrr
failure
Sectio
or agr~
other
perfor
be, sp~
stated
withh~
Issuer.
correc
insolv
debts
or COl
substa
the apl
applic;
readju
any ju
agains
be isst
Issuer
execul
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.01 EVENTS OF DEFAULT. The following constitute "Events of
Lt" under this Agreement:
(a) failure by Borrower to pay to Lender, as assignee of Issuer, when due any Loan
mt or to pay any other payment required to be paid hereunder and the continuation of such
for a period of 10 days;
(b) failure by Borrower to maintain insurance on the Equipment in accordance with
ri 7.07 hereof;
(c) failure by Borrower or Issuer to observe and perform any other covenant, condition
:ement contained herein, in the Escrow Agreement or the Tax Exemption Agreement or in any
document or agreement executed in connection herewith on its part to be observed or
ned for a period of 30 days after written notice is given to Borrower or Issuer, as the case may
~cifying such failure and directing that it be remedied; provided, however, that, if the failure
in such notice cannot be corrected within such 30-day period, Lender will not unreasonably
)id its consent to an extension of such time if corrective action is instituted by Borrower or
as the case may be, within the applicable period and diligently pursued until the default is
ted;
(d) initiation by Issuer of a proceeding under any federal or state bankruptcy or
~ncy law seeking relief under such laws concerning the indebtedness of Issuer;
(e) Borrower shall be or become insolvent, or admit in writing its inability to pay its
~s they mature, or make an assignment for the benefit of creditors; or Borrower shall apply for
sent to the appointment of any receiver, trustee or similar officer for it or for all or any
atial part of its property; or such receiver, trustee or similar officer shall be appointed without
)lication or consent of Borrower, as the case may be; or Borrower shall institute (by petition,
ttion, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement,
~tment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of
:isdiction; or any such proceeding shall be instituted (by petition, application or otherwise)
Borrower; or any judgment, writ, warrant of attachment or execution or similar process shall
ed or levied against a substantial part of the property of Borrower;
(f) determination by Lender that any representation or warranty made by Borrower or
herein, in the Escrow Agreement or the Tax Exemption Agreement or in any other document
ed in connection herewith was untrue in any material respect when made;
(g) an Event of Taxability shall occur;
38
or ot]
oblig~
betw~
the E~
2001.
Revel
have
witho
steps
applk
Loan
and al
of dis
Borro
withc
lease.
reaso:
for th
Equil:
costs
recov
witho
sell th
law.
pursm
(h) the occurrence of a default or an event of default under any instrument, agreement
ler document evidencing or relating to or securing any indebtedness or other monetary
ttion of Borrower in excess of $100,000;
(i) the occurrence of a default or an event of default under any other material agreement
en or among Lender or any of its affiliates and Borrower;
(j) the failure by Borrower to deliver a Certificate of Delivery and Acceptance for all of
tuipment by the date one year after the Closing Date; and
(k) the occurrence of an event of default under the Trust Indenture, dated November 1,
between the Issuer and SouthTrust Bank, relating to the Issuer's Industrial Development
~ue Bonds (A-1 Roof Trusses Ltd., Company) Series 200lA.
SECTION 11.02 REMEDIES ON DEFAULT. Whenever any Event of Default shall
~ccurred and be continuing, Lender, as assignee of Issuer, shall have the right, at its sole option
ut any further demand or notice, to take any one or any combination of the following remedial
and such other steps which are otherwise accorded to Lender, as assignee of Issuer, by
:able law:
(a) by notice to Issuer and Borrower, declare the entire unpaid principal amount of the
md the Bond then outstanding, all interest accrued and unpaid thereon and all amounts payable
this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest
1 such amounts shall become and be forthwith due and payable, without presentment, notice
honor, protest or further notice of any kind, all of which are hereby expressly waived by
wer;
(b) to the extent permitted by law, take possession of the Equipment wherever situated,
at any court order or other process of law and without liability for entering the premises, and
sublease or make other disposition of the Equipment for use over a term in a commercially
table manner, all for the account of Lender, provided that Borrower shall remain directly liable
~ deficiency, if any, between the rent or other amounts paid by a lessee or sublessee of the
ment pursuant to such lease or sublease during the same period of time, after deducting all
md expenses, including reasonable attorneys' fees and expenses, incurred with respect to the
:ry, repair and storage of the Equipment during such period of time;
(c) to the extent permitted byqaw; take poSsession of the Equipment wherever situated,
~t any court order or other process of law and without liability for entering the premises, and
Equipment in a commercially reasonable manner and in compliance with applicable State
dl proceeds from such sale shall be applied in the following manner unless otherwise required
mt to State law:
39
Borro
in¢lud
or Iss~
fees;
enfot
costs
pay t(
shall ~
testin
deins
disass
as is s
and ir
desig~
posse:
expre~
reser~
and sl
existi~
Event
but at
FIRST, to pay all proper and reasonable costs and expenses associated with the
recovery, repair, storage and sale of the Equipment, including reasonable attorneys' fees and
expenses;
SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other
obligations (whether directly or indirectly owed by Borrower to Lender), if any, which are
then due and owing, together with interest and late charges thereon, and (ii) any other
amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any
advances and other amounts payable to Lender or Issuer hereunder; and
THIRD, to pay the remainder of the sale proceeds, purchase moneys or other amounts
paid by a buyer of the Equipment to Borrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or
~er of the applicable covenants of this Agreement or to recover for the breach thereof,
lng the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender
ter all costs of such action or court action, including, without limitation, reasonable attorneys'
nd
(e) take whatever action at law or in equity that may appear necessary or desirable to
e its rights with respect to the Equipment. Borrower shall pay or repay to Lender or Issuer all
)f such action or court action, including, without limitation, reasonable attorneys' fees.
Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to
Lender any unpaid portion of the Prepayment Amount.
SECTION 11.03 RETURN OF EQUIPMENT. Upon an Event of Default, Borrower
vithin 10 calendar days after notice from Lender, at its own cost and expense: (a) perform any
~ and repairs required to place the Equipment in the condition required by Article VII; Co) if
allation, disassembly or crating is required, cause the Equipment to be deinstalled,
~mbled and crated by an authorized manufacturer's representative or such other service person
atisfactoryto Lender; and (c) deliver the Equipment to a location specified by Lender, freight
.surance prepaid by Borrower. If Borrower refuses to deliver the Equipment in the manner
rated, Lender may enter upon Borrower's premises where the Equipment is kept and take
;sion of the Equipment and charge to Borrower the costs of such taking. Borrower hereby
;sly waives any damages occasioned by such taking.
SECTION 11.04 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
ed to Lender or Issuer is intended to be exclusive and every such remedy shall be cumulative
~all be in addition to every other remedy given under this Agreement or now or hereafter
~g at law or in equity. No delay or omission to exercise any right or power accruing upon any
of Default shall impair any such right or power or shall be construed to be a waiver thereof,
~y such right or power may be exercised from time to time and as often as may be deemed
40
exped
it shal
All re:
this A
due d~
cents
oblig~
ient. In order to entitle Lender or Issuer to exercise any remedy reserved to it in this Article,
not be necessary to give any notice other than such notice as may be required by this Article.
nedies herein conferred upon or reserved to Lender or Issuer shall survive the termination of
greement.
SECTION 11.05 LATE CHARGE. Any Loan Payment not paid by Borrower on the
rte thereof shall, to the extent permissible by law, bear a late charge equal to the lesser of five
($.05) per dollar of the delinquent amount or the lawful maximum, and Borrower shall be
led to pay the same immediately upon receipt of Lender's written invoice therefor.
[Remainder of Page Intentionally Left Blank]
41
Lendt
as sh~
in cor
paym
exper
attom
of Le~
rights
time
for ol
items.
bill b:
MAK
THE
PAR3
WAR
In no
ofthi
item
corer
and si
couri¢
whom
party
nmnb
as to
corem
(b) tw
ovemi
any ir
partic,
specif
actior
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 COSTS AND EXPENSES OF LENDER. Borrower shall pay to
r, in addition to the Loan Payments payable by Borrower hereunder, such amounts in each year
11 be required by Lender in payment of any reasonable costs and expenses incurred by Lender
nection with the performance or enforcement of this Agreement, including but not limited to
~nt of all reasonable fees, costs and expenses of Lender in connection with the Equipment,
ses (including, without limitation, attorneys' fees and disbursements), fees of auditors or
:ys, insurance premiums not otherwise paid hereunder and all other direct and necessary costs
tder or charges required to be paid by it in order to comply with the terms of, or to enforce its
under, this Agreement. Such costs and expenses shall be billed to Borrower by Lender from
time, together with a statement certifying that the amount so billed has been paid by Lender
or more of the items above described, or that such amount is then payable by Lender for such
Amounts so billed shall be due and payable by Borrower within 30 days after receipt of the
Borrower.
SECTION 12.02 DISCLAIMER OF WARRANTIES. LENDER AND ISSUER
NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO
VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A
'ICULAR PURPOSE OR FITNESS FOR USE OF THE PROJECT, OR ANY OTHER
RANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
:vent shall Lender or Issuer be liable for any loss or damage in connection with or arising out
Agreement, the Equipment or the existence, furnishing, functioning or Borrower's use of any
r products or services provided for in this Agreement.
SECTION 12.03 NOTICES. All notices, certificates, requests, demands and other
unications provided for hereunder or under the Tax Exemption Agreement shall be in writing
.all be (a) personally delivered, (b) sent by first class United States mail, (c) sent by overnight
of national reputation, or (d) transmitted by telecopy, in each case addressed to the party to
notice is being given at its address as set forth above and, if telecopied, transmitted to that
tt its telecopier number set forth above or, as to each party, at such other address or telecopier
~'r as may hereafter be designated by such party in a written notice to the other party complying
delivery with the terms of this Section. All such notices, requests, demands and other
unications shall be deemed to have been given on (a) the date received if personally delivered,
~ Business Days after deposited in the mail if delivered by mail, (c) the date sent if sent by
ght courier, or (d) the date of transmission if delivered by telecopy. If notice to Borrower of
tended disposition of the Equipment or any other intended action is required by law in a
~lar instance, such notice shall be deemed commercially reasonable if given (in the manner
.ed in this Section) at least 10 calendar days prior to the date of intended disposition or other
42
INS'I
ackm
instn
advis
Tax I
shall
SUCC~
be he
inval
Agre
what..
modi
giver
ident
Such
cons(
execl
one a
anys
there,
const
conv,
sectk
and
or in
SECTION 12.04 FURTHER ASSURANCE AND CORRECTIVE
'RUMENTS. Issuer and Borrower hereby agree that they will, from time to time, execute,
~wledge and deliver, or cause to be executed, acknowledged and delivered, such further acts,
anents, conveyances, transfers and assurances, as Lender reasonably deems necessary or
able for the implementation, correction, confirmation or perfection of this Agreement or the
;.xemption Agreement and any rights of Lender hereunder or thereunder.
SECTION 12.05 BINDING EFFECT; TIME OF THE ESSENCE. This Agreement
inure to the benefit of and shall be binding upon Lender, Issuer, Borrower and their respective
ssors and assigns. Time is of the essence.
SECTION 12.06 SEVERABILITY. In the event any provision of this Agreement shall
:ld invalid or unenforceable by any court of competent jurisdiction, such holding shall not
idate or render unenforceable any other provision hereof.
SECTION 12.07 AMENDMENTS. To the extent permitted by law, the terms of this
:ment shall not be waived, altered, modified, supplemented or amended in any manner
:oever except by written instrument signed by the parties hereto, and then such waiver, consent,
fication or change shall be effective only in the specific instance and for the specific purpose
Borrower and Lender agree to amend Exhibit F to this Agreement to more specifically
~y the Equipment being financed hereunder at such time as such identification is possible.
amendment shall be effected by written instrument signed by Borrower and Lender. Issuer's
,nt to the amendment referred to in this paragraph shall not be required.
SECTION 12.08 EXECUTION IN COUNTERPARTS. This Agreement may be
tted in several counterparts, each of which shall be an original and all of which shall constitute
ad the same instrument, and any of the parties hereto may execute this Agreement by signing
~ch counterpart, provided that only the original marked "Original: 1 of 6" on the executionpage
)f shall constitute chattel paper under the UCC.
SECTION 12.09 APPLICABLE LAW. This Agreement shall be governed by and
reed in accordance with the laws of the State.
SECTION 12.10 CAPTIONS. The captions or headings in this Agreement are for
:nience only and in no way define, limit or describe the scope or intent of any provisions or
~ns of this Agreement.
SECTION 12.11 ENTIRE AGREEMENT. This Agreement and the exhibits hereto
hereto constitute the entire agreement among Lender, Issuer and Borrower. There are no
standings, agreements, representations or warranties, express or implied, not specified herein
;uch documents regarding this Agreement or the Equipment financed hereby.
43
applic
in this
intere~
applic
NOT
CLA]
INDII
DEAI
THE
TRAI'
LENE
ALL
COUt
BRE,t
CLAI
MOD
ANY
TO Tt
OR A
AGPd
BET¥
SECTION 12.12 USURY. It is the intention of the parties hereto to comply with any
able usury laws; accordingly, it is agreed that, notwithstanding any provisions to the contrary
Agreement, in no event shall this Agreement require the payment or permit the collection of
;t or any amount in the nature of interest or fees in excess of the maximum permitted by
able law.
SECTION 12.13 WAIVER OF JURY TRIAL. LENDER AND BORROWER BUT
iSSUER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
M OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
[ECTLY, THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY
,INGS AMONG LENDER OR BORROWER RELATING TO THE SUBJECT MATTER OF
I'RANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED
[SACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG
~ER, ISSUER AND BORROWER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
tT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
,CH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
MS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
iFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO
SUBSEQUENTAMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
tiS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS
GREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
~EMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION,
/EEN BORROWER AND LENDER, THIS AGREEMENT MAY BE FILED AS A
TEN CONSENT TO A TRIAL BY THE COURT.
[Remainder of Page Intentionally Left Blank]
44
respe~
(Seall
Atte:
By:
Nam
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in their
:tive'corporate names by their duly authorized officers, all as of the date first written above.
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By:
Name: Michael P. Gallo
Title: Vice President
ST. LUCIE COUNTY, FLOR/DA
By:
Name: Frannie Hutchinson
Title: Chairman, Board of County
Commissioners of St.
Florida
Lucie County,
Clerk of Circuit Court and Ex-Officio
Clerk of Board of County Commissioners
of St. Lucie County, Florida
A-1 ROOF TRUSSES LTD., COMPANY
By:
Name: John R. Herring
Title: President
45
Roofq
Noven
Financ
descril
install,
to be
bill(sl
true ai
EXHIBIT A
FORM OF CERTIFICATE OF DELIVERY AND ACCEPTANCE
The undersigned, hereby certifies that I am the duly qualified and acting President orA-1
'russes Ltd., Company (the "Borrower") and, with respect to the Loan Agreement dated as of
~ber 1, 2001 (the "Agreement") by and among Borrower, The CIT Group/Equipment
ing, Inc. (the "Lender") and St. Lucie County, Florida (the "Issuer"), that:
1. As of the date of this Certificate, Borrower has accepted delivery of the property
>ed on Schedule 1 hereto (the "Equipment") and such Equipment has been acquired and
;d in accordance with Borrower's specifications and has been accepted by Borrower;
2. Borrower has obtained for the Equipment insurance with respect to all risks required
overed thereby pursuant to Section 7.07 of the Agreement;
3. Attached to this Certificate of Delivery and Acceptance are Vendor invoice(s) and/or
of sale relating to the Equipment.
4. All of the representationsand warranties of Borrower contained in the Agreement are
~d correct as of the date hereof and no Default or Event of Default has occurred thereunder.
Dated: ,2001.
A-1 ROOF TRUSSES LTD., COMPANY
By:
Name: John R. Herring
Title: President
Exhibit A- 1
A-Il;
Boyn
goarc
St.
Ft. Pi
The £
Atlan
Ladi,
rom
of N,
Finar
of Cli
ascrib
Stand
Septe:
Sectic
other-
of the
know]
our fi:
approl
EXHIBIT B TO LOAN AGREEMENT
FORM OF OPINION OF COUNSEL TO BORROWER AND GUARANTOR
November 14, 2001
.oof Trusses Ltd., Company
:on Beach, Florida
of County Commissioners of
Lucie County, Florida
:rce, Florida
'.IT Group/Equipment Financing, Inc.
~a, Georgia
Re.'
$750,000 St. Lucie County, Florida, Industrial Development Revenue Bond
(A-1 Roof Trusses Ltd., Company Project) Series 200lB
and Gentlemen:
We have acted as counsel to John R. Herring ("Individual") and A-1 Roof Trusses Ltd.,
[ny ("Company," and with Individual, collectively, "Client") in connection with the referenced
ction (the "Transaction"). This opinion is furnished pursuant to the Loan Agreement dated as
,vember 1, 2001 (the "Loan Agreement"), among Company, The CIT Group/Equipment
ting, Inc. ("Lender"), and St. Lucie County, Florida ("County"), and is given with the consent
;nt. Unless otherwise defined in this opinion, capitalizedterms used herein have the meanings
ed to them in the Loan Agreement.
This opinion has been prepared and is to be construed in accordance with the Reports on
~rds for Opinions of Florida Legal Counsel for Business and Real Estate Transactions, dated
nber 1998, issued by The Business Law Section and the Real Property, Probate & Trust Law
n of The Florida Bar (the "Report"). In rendering this opinion, we have made no assumptions
:han those set forth in the Report. The Report is incorporated by reference into this opinion.
As specified in the Report, the term "to our knowledge" means the actual current knowledge
attorneys within our firm who have participated in the Transaction. The term "to our
edge after limited investigation" means the current actual knowledge of the attorneys within
xn who have worked with Client, and that reasonable inquiry has been made of Client's
)riate representatives. The term "to our knowledge after investigation" means the actual
Exhibit B - 1
kno~
reaso
entiti
2.
3.
4.
5.
auth~
docu
6.
"Go¥
7.
rende
with'
(The
"Trat
~at a
no in
inclu~
and tl
(or pr
ledge of all attorneys within our finn and all information contained in our firm's files, and that
aable inquiry has been made of the appropriate representatives of Client and other persons or
As counsel to Client, we have examined and relied upon the following:
Loan Agreement;
Guaranty Agreement dated as of November 1, 2001, by Individual to Lender;
The Escrow Agreement (as defined in the Loan Agreement).
Certificates of active status for Company issued by the Florida Secretary of State;
Certified copies of the corporate proceedings of the Board of Directors of Company
rizing or approving, among other things, the execution and delivery of the foregoing
nents;
Articles of Incorporation and Bylaws of Company and all amendments thereto (the
ernance Doctuments"); and
Such other documents, proofs, and related matters of law as we have deemed necessary to
this opinion including, without limitation, the certificates of Client executed in connection
~e Transaction.
documents referred to in items 1, 2 and 3 inclusive, are collectively referred to as the
.saction Documents.")
In rendering the following opinions, we have relied, with your approval, as to factual matters
ffect our opinions, solely on our examination of the documents listed above, and have made
:lependent verification of the facts asserted to be true and correct and in those documents,
ting the factual representations and warranties contained in the Loan Agreement.
We do not express any opinion concerning any law other than the law of the State of Florida
te Federal law of the United States.
Based on the foregoing, and subject to the qualifications, assumptions, and limitations stated
letter we are of the opinion that:
Entity_ Status. Company has been incorporatedunder the Florida Business Corporation Act
or law, as applicable) and its status is active.
Exhibit B - 2
o
Docm
transa
o
Trans~
thereu
by CI/
o
peffor
therelc
breacl
Clienl
encun
our kr
judgrr
law, r
other:
or loc;
with 1/
loan
pursr
alrea,
o
exect
oblig~
Feder:
enforc
law ol
consti
in the:
their
Organization. Company was organized under the Florida Business Corporation Act (or prior
applicable).
Power. Client has all requisite power and authority to execute and deliver the Transaction
nents to which they are a party, perform their obligations thereunder, and consummate the
:tions contemplated thereby.
Authorization. Client has duly and validly authorized the execution and delivery of the
iction Documents to which they are a party, and the performance of their obligations
nder, by all necessary action.
Execution and Delivery.. The TransactionDocuments have been duly executed and delivered
ent.
No Breach or Default. The execution and delivery of the Transaction Documents, the
mance by Client of their obligations thereunder, and the exercise by Client of the rights created
~, do not (i) violate the Governance Documents of Client, (ii) to our knowledge, constitute a
of or a default under any agreement or instrument to which Client is a party or by which
or its assets are bound or result in the creation of a mortgage, security interest, or other
tbrance upon the assets of Client (except as set forth in the Transaction Documents), (iii) to
owledge, violate a judgment, decree, or order of any court or administrative tribunal, which
.ent, decree, or order is binding on Client or their assets, or (iv) violate any Federal or Florida
~le, or regulation.
No Required Consents. Except for the consent or approval of County, no notice, report or
51ing or registration with, and no consent, approval or authorization of, any federal, Florida
Florida governmental authority is required to be submitted, made or obtained in connection
~e execution and delivery of the Transaction Documents, the borrowing of the proceeds of the
Client, and the repayment of the indebtedness evidenced by the Transaction Documents
mt to their terms, except for the filing of the Financing Statements and such approvals as have
been obtained.
Enforceabili _ty. Subject to the limitations contained in the next paragraph, and assuming due
ion and delivery by the other parties thereto, the TransactionDocuments are valid and binding
.tions of Client, enforceable against Client under the laws of the State of Florida and the
d law of the United States. No opinion is expressed regarding the validity, binding effect, or
eability of any governing law provision in the Transaction Documents which states that a state
her than the law of the State of Florida will apply.
Our opinions expressed in the foregoing paragraph mean that (i) the Transaction Documents
Iute effective contracts under applicable law, (ii) the Transaction Documents are not invalid
r entirety because of a specific statutory prohibition or public policy and are not subject in
ntirety to a contractual defense, and (iii) subject to the last sentence of this paragraph, some
Exhibit B - 3
remed
any pl
Docm
validi
other~
conve
credil
avail~
equita
to gra
unenf,
self-h,
have
or vic
powe~
is available if Client is in material default thereunder. This opinion does not mean that (i)
rticularremedy is availableupon a material default or (ii) every provision of the Transaction
nents will be upheld or enforced in any or each circumstance by a court. Furthermore, the
:y, binding effect, and enforceability of the Transaction Documents may be limited or
vise affected by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
~ance, or other similar statutes, rules, regulations, or other laws affecting the enforcement of
~rs' rights and remedies generally, and (ii) the unavailability of, or the limitations on the
bility of, a particular fight or remedy (whether in a proceeding in equity or law) because of an
ble principle or a requirement as to commercial reasonableness, conscionability, or good faith.
Without limiting the foregoing, any provisions of the Transaction Documents which purport
at a private right of sale in lieu of judicial foreclosure or waive the right of redemption are
)rceable. Additionally, provisions such as those concerning (i) appointment of a receiver, (ii)
,qp remedies, or (iii) accelerationupon a default that is not a material default might be held to
imited enforceability or to be unenforceable if a Florida court deems them to be inequitable
[ative ora fundamental state policy. Finally, we express no opinion regarding (i) the scope of
s of attorney, (ii) waiver of service of process or stipulation of venue, (iii) waiver of defenses
or the benefit of statutory provisions, including waiver of any statute of limitations, agreement to
tollin; of the statute of limitations, and waiver of valuation of property held as security, (iv)
provisions that purport to establish evidentiary standards for suits or proceedings, (v) provisions to
the effect that rights or remedies are not exclusive, that every fight or remedy is cumulative and may
be ex~rcised in addition to or together with any other right or remedy, or that election of a particular
remet~,y or remedies does not preclude recourse to one or more other remedies, (vi) limitations on
the rig :ht to impose penalties for late payments or defaults if it is determined that such penalties are
not re: tsonable in relation to the damage suffered as a result of late payments or defaults, or (vii) case
or sta~
follov
opini(
Florid
the Fl
intere
below
fixtur,
a secu
in the
Agree
relate~
mory law which limits or precludes deficiency judgments.
Opinions under Chapter 679, Florida Statutes ("Article 9 of the Florida UCC"). The
ing security interest opinions are limited to Article 9 of the Florida UCC. Our security interest
,ns do not address (i) laws of jurisdictions other than Florida and the laws of the State of
a except for Article 9 of the Florida UCC, (ii) collateral of a type not subject to Article 9 of
orida UCC, and (iii) under F.S. § 679.103, which law governs perfection of the security
;ts granted in the collateral covered by this opinion. For purposes of the opinions set forth
, we have assumed that Article 9 of the Florida UCC is applicable. We note that perfection for
;s requires filing in the local office for recording interests in real estate.
Creation or AttaChment of Security_ Interest. The Loan Agreement creates in favor of Lender
rity interest in the Collateral. In rendering this opinion, we have assumed that Client has rights
Collateral and that Lender has given value to Client. We have also verified that the Loan
ment (i) specifically states a grant of a security interest by Client in favor of Lender, and (ii)
to a properly described obligation of Client to Lender.
Exhibit B - 4
bo
closin~
Collat',
§ 679
unpefl
procee
name,
moveC
anothe
securil
Co
the pr
staterr
Searct
descff
in fay
Comp
Staten
have a
filed,
10.
the C,
opinic
11.
threat~
is ren~
requir
Perfection. Upon the filing of the Financing Statements with the Filing Office and the
of the Transaction, Lender will have a perfected security interest in the Collateral. The
,ral may be perfected by filing and the form of the Financing Statement is proper under F.S.
402. We note that certain events may subsequently cause the security interest to be
bcted, including (i) failure to file continuation statements, (ii) failure to file with respect to
ds under F.S. § 679.306, (iii) filings required within four months after a debtor changes its
identity, or corporate structure, (iv) filings required under F.S. § 679.103 if the collateral is
. to another jurisdiction, and (v) filings required under F.S. § 679.103 if a debtor relocates to
:r jurisdiction. In addition, actions take by a secured party (i.e., releasing or assigning the
~ interest, etc.) may affect the security interest.
UCC Filing Priority. The FloridaUCC Search Report sets forth the proper filing office and
)per debtor to identify those persons who under the Florida UCC have on file financing
ents against Company covering the Collateral on or about November 14, 2001. The UCC
t Report identifies no person who has filed in the. Filing Office a financing statement
)ing the Collateral. We express no opinion with respect to the priority of the security interest
)r of Lender in the Collateral against any party that filed a financing statement against
any after the applicable date of the Search Report, but before the filing of the Financing
lents, or whose financing statement otherwise was not reflected on the Search Report. We
ssumed that all relevant financing statements in which Company is named have been properly
ndexed, and recorded in the Filing Office and identified in the Search Report.
Title and Status of Collateral. No opinion is expressed with respect to the status of title to
llateral. We have assumed that Company has good title to the Collateral. Additionally, no
n is expressed with respect to the status of the Collateral as personal property or a fixture.
Litigation. To our knowledge after limited investigation, there are no pending or overtly
',ned actions, claims, investigations or other proceedings against Client or the Collateral.
This opinion is being furnished to you as counsel for Client, is solely for your benefit, and
lered in connection with the transaction to which this opinion relates. Except as may be
,~d by applicable law, this opinion may not be relied upon by any person other than you.
Respectfully submitted,
Exhibit B - 5
A-1 Ii
Boyn'
Boarc
St.
Ft. Pi
The £
Atlan
Ladie
subdi
capri(
the Is
Com'
"Act
2001.
acqui
issum
and
rele~
EXHIBIT C TO LOAN AGREEMENT
FORM OF OPINION OF COUNSEL TO ISSUER
November 14, 2001
.oof Trusses Ltd., Company
:on Beach, Florida
· of County Commissioners of
Lucie County, Florida
~rce, Florida
:IT Group/Equipment Financing, Inc.
Ia, Georgia
Re:
$750,000 St. Lucie County, Florida Industrial Development Revenue Bond (A-1
Roof Trusses Ltd., Company Project) Series 200 lB
and Gentlemen:
As Counsel to St. Lucie County, Florida, a duly created and validly existing political
vision of the State of Florida (the "Issuer"), we have considered the validity of the above-
.ned bond (the "Bond"), and in this connection we have examined:
(a) the Loan Agreement, dated as of November 1,2001 (the "Loan Agreement"), among
suer, The CIT Group/Equipment Financing, Inc. (the "Lender") and A-1 Roof Trusses Ltd.,
~any, a Florida corporation (the "Borrower"), as borrower;
(b)
); and
Chapter 125, Part I, Florida Statues and Chapter 159, Part II, Florida Statutes (the
(c) Resolution No. 01-._ of the Issuer (the "Bond Resolution") adopted November 6,
whereby the Issuer took affirmative official action providing for the financing of the
sition and installation of the "Equipment" (defined in the Loan Agreement) through the
tce of the Bond.
uch other documents and instruments and proceedings of the Issuer as we have deemed
mt.
Exhibit C-1
Board
St.
Ft. Pi~
Novel
Page
Cons
sell a~
to fin
(the
Issuel
bindi~
enfor,
exert
(b) bt
right~,
bindi
the B
ofth~
discr~
insol'
or thc
secur
Bond
of County Commissioners of
Lucie County, Florida
,'rce, Florida
nber __, 2001
Based on the foregoing, we are of the opinion that as of this date:
(1) The Issuer is a political subdivision duly organized and validly existing under the
tutionand laws of the State of Florida and has all requisite power and authority (a) to issue,
id deliver the Bond, (b) to lend the proceeds thereof to the Borrower to enable the Borrower
nce the acquisition and installation of the Equipment, (c) to enter into the Loan Agreement
;suer Document"), and (d) to carry out the transactions contemplatedby the Issuer Documents.
(2) The Issuer Document has been authorized by all necessary action on the part of the
has been executed and delivered by the Issuer, and, assuming that it is the legal, valid,
g and enforceable obligation of the other party thereto, constitutes a legal, valid, binding and
:eable obligationofthe Issuer, except that the enforceability thereof may be subject to (a) the
[se of judicial discretion in accordance with general principles of equity or public policy, and
nkruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors'
heretofore or hereafter enacted.
(3) The Bond (a) has been authorized and executed by the Issuer, (b) is a legal, valid,
ag and enforceable special and limited obligation of the Issuer of the character referred to in
)nd Resolution and the Loan Agreement according to the terms thereof, except that the rights
holders of the Bond and enforceability thereof may be subject to (i) the exercise of judicial
tion in accordance with general principles of equity or public policy, and (ii) bankruptcy,
7ency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore
:reaRer enacted to the extent constitutionally applicable, and (c) is entitled to the benefits and
ity of the Loan Agreement.
(4) To the best of my knowledge, the issuance and sale of the Bond, the adoption of the
Resolution and the execution and delivery by the Issuer of the Issuer Document and the
coml~liance by the Issuer with the terms thereof and of the Bond will not conflict with, or result in
any breach of any of the provisions of, or constitute a default under, any charter instrument or bylaw
of th~ Issuer or any constitutional provision, statute, agreement, indenture, or other instrument to
which the Issuer is a party or by whichit is bound, or any license, judgment, decree, order, law,
sta.tut~, ordinance or governmental rule or regulation applicable to the Issuer, or result in the creation
or im position of any lien, charge, encumbrance or security on the property of the Issuer (other than
as co atemplated by the Loan Agreement).
requi
execl
consl
(5) All consents, approvals or authorizations, if any, of any governmental authority
red on the part of the Issuer in connection with the adoption of the Bond Resolution, the
ttion and delivery of the Issuer Document, the offer, issue, sale or delivery of the Bond and the
anmation of the transactions contemplated thereby have been obtained.
Exhibit C-1
goar~
St.
Ft. Pi
Nove
Page
the Is
coulr
whicl
Docu
cont¢
t of County Commissioners of
Lucie County, Florida
erce, Florida
mber __, 2001
3
(6) To the best of my knowledge, there are not proceedings pending or threatened against
suer in any court or before any governmental authority or arbitration board or tribunal, which
· materially and adversely affect the transactions contemplated by the Issuer Document or
~, in any way, would adversely affect the validity and enforceability of the Bond, the Issuer
ments or any agreement or instrument to which the Issuer is a party and which is used or
mplated by the foregoing.
Respectfully submitted,
Exhibit C-1
Board
St.
Ft. Pi~
Conll
issuar
Truss.
proce~
partic
Issue~
Agree
Grout
"BO1T~
matte:
under
Born
provk
and w
Agree
provic
with t]
Bond:
EXHIBIT D TO LOAN AGREEMENT
FORM OF OPINION OF BOND COUNSEL
November 14, 2001
of County Commissioners of
Lucie County, Florida
;rce, Florida
Re:
$750,000 St. Lucie County, Florida Industrial Development Revenue Bond (A-1
Roof Trusses Ltd., Company Project), Series 200lB (the "200lB Bond")
fissioners:
In the capacity of Bond Counsel we have examined a record of proceedings relating to the
ce of $750,000 St. Lucie County, Florida Industrial Development Revenue Bond (A-1 Roof
,~s Ltd., Company Project), Series 200lB. We have examined the law and such certified
.~dings and other papers as we deem necessary to render this opinion.
The Bond is issued under and pursuant to the Laws of the State of Florida including,
alarly, Part II, of Chapter 159, Florida Statutes (the "Act"), pursuant to a resolution of the
adopted on November 6, 2001 (the "Resolution"), and pursuant to that certain Loan
ment, dated as of November 1, 2001 (the "Loan Agreement"), among the Issuer, The CIT
,/Equipment Financing, Inc. (the "Lender") and A-1 Roof Trusses Ltd., Company (the
)wer").
Reference is made to the opinion of even date of Borrower's counsel, with respect to various
· s, including the corporate power of the Borrower to enter into and perform its obligations
the Loan Agreement, the authorization, execution and delivery of the Loan Agreement by the
~ver and certain related matters.
The Bond is dated and shall bear interest from November 14, 2001 except as otherwise
led in&e Loan Agreement. The Bond will mature on the dates and in the principal amoUnts,
[11 bear interest at the respective rates per annum, as provided in the form of Bond and Loan
ment. Interest and principal on the Bond shall be payable in the amounts and on the dates
ed in the Loan Agreement. The Bond is subject to prepayment prior to maturity in accordance
le terms of the Loan Agreement. The Bond is in the form of one fully registered Series 2001
in the denomination of $750,000.
Exhibit D-1
Boar
St.
Ft. P:
Now
Page
acqu
porti.
Issue
of th
proc{
the o
Corn
exec1
the I~
of County Commissioners of
Lucie County, Florida
.erce, Florida
tuber __, 2001
2
The Bond is issued for the principal purpose of providing moneys to (i) finance the cost of
isition and installation of the Equipment (as defined in the Loan Agreement) and (ii) pay a
)n of the costs of issuing the Bond.
As to questions of fact material to our opinion we have relied upon representations of the
and the Borrower and the certified proceedings and other certifications of appropriate officials
Issuer and the Borrower furnished to us (including certifications as to the use of the Bond
:eds), without undertaking to verify the same by independent investigation.
Based upon the foregoing and in reliance upon the matters hereinafter referred to, we are of
)inion that:
1. The Issuer is a political subdivision duly organized and existing under the
Iitution and the laws of the State of Florida and has full power and authority to enter into,
~te and deliver the Loan Agreement and to issue, sell and deliver the Bond.
2. The Loan Agreement has been duly authorized by all necessary action on the part of
:suer, has been duly executed and delivered by authorized officers of the Issuer and, assuming
ue authorization, execution and delivery of such instrument by the other parties thereto,
the C
conslitutes the legal, valid and binding obligation of the Issuer, enforceable in accordance with its
termI.
/ 3. The Bond has been duly authorized by all necessary action on the part of the Issuer,
have~een duly executed and issued by the Issuer, and constitute the legal, valid and binding limited
and ~-peclal obligations of the Issuer enforceable in accordance w~th their terms, and are entitled to
the b ~nefit and security of the Loan Agreement.
ofF1,
incm
gon~
the B
withi
"Cod
the fe
4. The Bond and interest thereon are exempt from taxation under the laws of the State
)rida, except as to estate taxes and taxes imposed by Chapter 220, Florida Statutes, on interest,
ae or profits on debt obligations owned by corporations, as defined in said Chapter 220.
5. Under existing statutes, regulations, rulings and court decisions, the interest on the
is excluded from gross income for federal income tax purposes, except during any period while
ond is held by a ',substantial user" of the facilities financed by the Bond or a "related person"
n the meaning of Section 147(a) of the Internal Revenue Code of 1986, as amended (the
e"). It should be noted, however, that such interest is an item of tax preference for purposes of
deral alternative minimum tax imposed on individuals and corporations. The opinion set forth
Exhibit D-2
Board
St.
Ft. Pi{
Nover
Page l
in the
compl
Bond
incom
on the
Issuer
Bond:
regard
with a
opinic
enfor¢
bankr
genen
and pi
of County Commissioners of
~ucie County, Florida
rce, Florida
~ber __, 2001
first sentence of this paragraph is subject to the condition that the Issuer and the Borrower
y with all requirements of the Code that must be satisfied subsequent to the issuance of the
in order that interest thereon be (or continues to be) excluded from gross income for federal
e, tax purposes. Failure to comply with certain of such requirements could cause the interest
Bond to be so included in gross income retroactive to the date of issuance of the Bond. The
md the Borrower have covenanted to comply with all such requirements. Ownership of the
nay result in collateral federal tax consequences to certain taxpayers. We express no opinion
ing such federal tax consequences arising with respect to the Bond.
It should be noted that we have not been engaged or undertaken to review the compliance
ny federal or state law with regard to the sale or distribution of the Bond and we express no
n relating thereto.
The opiniOns expressed in paragraphs 2 and 3 hereof are qualified to the extent that the
eability of the Bond and the Loan Agreement, respectively, may be limited by any applicable
lptcy, insolvency, moratorium, reorganization, or other similar laws affecting creditors' rights
dly, or by the exercise of judicial discretion in accordance with general principles of equity.
We have examined the form of the Bond and, in our opinion, the form of the Bond is regular
'oper.
Respectfully submitted,
Exhibit D-3
No. R
laws
to pa3
Paym
in an)
legal
Paym
shall 1
at the
Agree
Grou
used
there
Paym
financ
Accre
the fa
agenc
EXHIBIT E TO LOAN AGREEMENT
FORM OF BOND
-1 UNITED STATES OF AMERICA $750,000
ST. LUCIE COUNTY, FLORIDA
INDUSTRIAL DEVELOPMENT REVENUE BOND,
(A-1 ROOF TRUSSES, LTD., COMPANY PROJECT), SERIES 200lB
Dated Date
November 14, 2001
Interest Rate
Variable
Maturity_ Date
November 14, 2009
St. Lucie County, Florida a political subdivision duly created and validly existing under the
.fthe State of Florida (hereafter referred to as the "Issuer"), for value received, hereby promises
The CIT Group/EquipmentFinancing, Inc., or to registered assigns, but solely from the Loan
rots hereinafter described, the principal sum of
SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
coin or currency of the United States of America which on the date of payment thereof is the
tender for the payment of public and private debts, and to pay, solely from such Loan
~nts, in like coin and currency, interest on the principal sum from the date hereof. Such interest
se payable at the rates, and all such payments of the principal of, or interest on shall be payable
time and place, in the amounts and in accordance with the terms set forth in that certain Loan
merit dated as of November 1, 2001 (the "Loan Agreement") among Issuer, The CIT
,/Equipment Financing, Inc. and A-1 Roof Trusses Ltd., Company (the "Borrower"). All terms
,erein in capitalized form and not otherwise defined herein shall have the meanings ascribed
in the Loan Agreement.
This Bond is payable as to principal and prepayment premium, if any, solely from Loan
uts to be made by Borrower and is secured by, among other things, a lien on the Equipment
ed pursuant to the Loan Agreement. Transfer of this Bond is limited to transfers only to
tired Investors' as defined in the Loan Agreement.
This Bond shall not represent or constitute a debt, liability or obligation or pledge of
ith and credit of Issuer, the State of Florida (the "State") or any political subdivision or
y thereof and this Bond is payable solely from the revenues pledged therefor pursuant
Exhibit E- 1
to the
agenc
Paym
Agree
to hal:
and h~
of the
all Co
the sa
2001.
[SEA2
Attest
By:
Loan Agreement, and no moneys of the Issuer, the State, or any political subdivision or
y thereof raised by taxation shall be obligated or pledged for the payment of Loan
ents or any other amounts due under this Bond.
This Bond is subject to prepayment upon the terms and conditions set forth in the Loan
ment.
It is hereby certified, recited and declared that all acts, conditions and things required to exist
pen and to be performed precedent to and in the issuance of this Bond exist, have happened
.ye been performed in regular and due form and time as required by the Constitution and laws
State of Florida applicable thereto and that the issuance of this Bond is in full compliance with
astitutional and statutory limitations, provisions and restrictions.
IN WITNESS WHEREOF, St. Lucie County, Florida has issued this Bond and has caused
ne to be signed by the signature of its authorized representative this 14th day of November,
ST. LUCIE COUNTY, FLORIDA
By:
Chairman, Board of County
Commissioners of St. Lucie County,
Florida
Clerk of Circuit Court and Ex-Officio Clerk
of Board of County Commissioners of
St. Lucie County, Florida
Exhibit E-2
hereb
the u
oftra~
Date:
Signa
NOTI
of a r~
(STA:
Signa
NOTI
Trans:
the fa
whate
suppli
ASSIGNMENT
F OR VALUE RECEIVED, the undersigned
sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF TRANSFEREE
.(the "Transferor")
(the "Transferee")
.-ure Guaranteed:
CE: Signature(s) must be guaranteed by an eligible guarantor institution which is a member
;cognized signature guarantee program, i.e.. Securities Transfer Agents Medallion Program
viP), Stock Exchanges Medallion Program (SEMP) or New York Stock Exchange Medallion
:ure Program.
CE: No transfer will be registered and no new Bond will be issued in the name of the
.-'eree, unless the signature(s) to this assignment correspond(s) with the name as it appears on
:e of the within Bond in every particular, without alteration or enlargement or any change
ver and the Social Security or Federal Employer Identification Number of the Transferee is
ed.
Exhibit E-3
thin Bond and all fights thereunder, and hereby irrevocably constitutes and appoints
as attorney to register the transfer of the within Bond on the books kept for registration
~sfer thereof, with full power of substitution in the premises.
2001
(the "l
The E
of the
to Ler
EXHIBIT F TO LOAN AGREEMENT
SCHEDULE OF EQUIPMENT AND
ACQUISITION COSTS OF PROJECT
Description of Equipment
The following Equipment is the subject of the Loan Agreement dated as of November 1,
mong The CIT Group/Equipment Financing, Inc. (the "Lender"), St. Lucie County, Florida
ssuer") and A-1 Roof Trusses Ltd., Company (the "Borrower"):
tuipment is or will be located at Prior to the relocation
Equipment or any portion thereof, Borrower will provide thirty (30) days' prior written notice
der.
Acquisition Costs of Equipment
Exhibit F- 1
EXHIBIT G TO LOAN AGREEMENT
PERMITTED EXCEPTIONS
None
G:\01338 I\C1T loan agreement (2).wpd Exhibit G-1
EXHIBIT "D"
PURCHASE CONTRACT
G:\0133~ \l\bond reso(l).wpd
A-1 ~
St. L~
Ladie
"Purc
refer¢
of th~
heret{
assigJ
repre:
to pa
Unde
terms
the B
whicl
issuet
Chap
dated
(the
manu
to be
Loan
the p~
princ:
purc~.
Inder
all th,
$2,750,000
'ARIABLE/FIXED RATE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(A-1 ROOF TRUSSES LTD., COMPANY. PROJECT), SERIES 200lA
ISSUED BY
ST. LUCIE COUNTY
PURCHASE CONTRACT
',oof Trusses Ltd., Company
~cie County, Florida
and Gentlemen:
November 1, 2001
Capitalized terms used herein without definition shall have the respective meanings
led thereto in the Indenture hereinafter referenced.
1. Purchase and Sale. Upon the terms and conditions and upon the basis of the
;entations, warranties and agreements hereinafter set forth, the Underwriter hereby agrees
:chase from the Issuer for offering to the public, and the Issuer hereby agrees to sell to the
rwriter for such purpose, all (but not less than all) of the Bonds in the amounts and on the
specified in the Indenture (as herein defined) therefor. The aggregate purchase price for
onds shall be the principal amount thereof less $ as discount to the Underwriter
shall be retained by the Underwriter upon purchase of the Bonds on the date of Closing.
2. The Official Statement and Authorizing Instruments. The Bonds shall be
· and secured under the Constitution and laws of the S,t, ate of Florida, including particularly
er 159, Part II, Florida Statutes, (the "Enabling Law ), and pursuant to a Trust Indenture
as of November 1, 2001 (the "Indenture") from the Issuer to SouthTrust Bank, as trustee
"Trustee"), to finance the cost of acquisition, construction and equipping of a truss
facturing facility located within the Fort Pierce, St. Lucie County, Florida, which facility is
owned by A-1 Roof Trusses Ltd., Company (the "Project"), for use by the User under a
Agreement dated as of November 1,2001 (the "Loan Agreement") which shall provide for
~yment by the User to the Trustee on behalf of the Issuer of amounts sufficient to pay the
pal of, premium (if any), and interest on the Bonds when due or when tendered for
ase pursuant to the Indenture. The Bonds shall be issued on the terms provided in the
ture and as described in the final Official Statement of the Issuer for the Bonds.
3. Public Offering. The Underwriter agrees to make a bona fide public offering of
Bonds at the price of par.
The undersigned (the "Underwriter") offers to enter into this purchase contract (the
rase Contract") with Palm Beach County, Florida as issuer (the "Issuer") of the above-
nced bonds (the "Bonds") and with A-1 Roof Trusses Ltd., Company (the "User") as user
proceeds of the Bonds, which upon acceptance hereof will be binding upon the parties,
Unde~
relatir
Stater
Cornr
proml
of the
witho
offeri~
4. Delivery of Documents. On the date hereof, the User shall deliver"to the
writer (a) originals or certified copies of the Financing Documents and all proceedings
[g to the issuance and sale of the Bonds, and (b) such number of copies of the final Official
~ent as shall reasonably be requested by the Underwriter.
If necessary for the Underwriter to comply with Rule 15c2-12 of the Securities Exchange
fission or Rule G-32 of the Municipal Securities Rulemaking Board, the User shall,
~tly upon request by the Underwriter, deliver to the Underwriter additional printed copies
Official Statement as specified in such request.
The Issuer and the User agree to make no material amendment to the Official Statement
~t the prior written consent of the Underwriter.
The Issuer acknowledges the use of the Official Statement in connection with the public
~g and sale of the Bonds.
5. Representations and Warranties.
(a) The Issuer represents and warrants to the Underwriter that:
(1) The Issuer is a political subdivision of the State of Florida, and is
empowered by the provisions of the Constitution and laws of the State of Florida,
including particularly Chapter 159, Part II, Florida Statutes, to execute, deliver and
perform its obligations under the Financing Documents.
(2) The Issuer has, and at the date of the Closing will have, full legal right,
power and authority to enter into the Financing Documents; the Issuer has duly
authorized and approved the execution and delivery of, and the performance of its
obligations contained in the Financing Documents and all other transactions
contemplated by the Official Statement; and, all other transactions contemplated hereby
and by the Official Statement are, and will be at the date of the Closing, in compliance
with the provisions of the Indenture and the Constitution and applicable laws of the State
of Florida.
(3) To the best of the actual knowledge of the Issuer, the Section of the
Official Statement entitled "THE ISSUER" is, and at all times subsequent hereto, up to
and including the date of Closing will be, tree and correct in all material respects,
contains and will contain no misstatement of any material fact, and did not and will not
omit any statement or information that is necessary to make the statements and
information contained therein not misleading in any material respect.
(4) The Issuer will not effect any amendment or supplement to the Official
Statement without the written consent of the Underwriter. The Issuer will advise the
Underwriter promptly of the institution of any proceedings known thereto by any
governmental agency prohibiting or otherwise affecting the use of the Official Statement
in connection with the initial offering, sale or distribution of the Bonds.
2
(b) The User represents and warrants to the Underwriter and the Issuer as follows:
(1) If at any time prior to the date of Closing when, in the opinion of the
Underwriter, an Official Statement should be delivered in connection with the offer or
sale of the Bonds, any event occurs as a result of which the Official Statement as then
amended or supplemented would include an untrue statement of a material fact, or omit
to state any material fact necessary in order to make statements therein, in the light of the
circumstances under which they were made, not misleading, the User promptly will
prepare an amendment or supplement which will correct such statement or omission.
(2) Both at the time of acceptance hereof and at the date of the Closing,
except as otherwise disclosed in the Official Statement, there shall not have been any
material adverse change in the results of operation or financial condition of the User,
other than changes in the ordinary course of business, or in the normal operation of the
User, or as otherwise disclosed in the Official Statement.
(3) As of the date of acceptance hereof and as of the date of the Closing,
except as otherwise disclosed in the Official Statement, the User is not and will not be in
breach of or in default under any applicable law or administrative regulation of the State
of Florida or the United States of America relating to the User and material to the Bonds,
or any applicable judgment or decree, or any trust agreement, loan agreement, bond, note,
resolution, ordinance, agreement or other instrument to which the User is a party or is
otherwise subject, the consequence of which or the correction of which materially and
adversely affects the operations of the User as of such dates; and as of such times, except
as disclosed in the Official Statement, the execution and delivery of the Financing
Documents, this Purchase Contract and the Bonds and compliance with the provisions of
each of such agreements or instruments do not and will not constitute a material breach of
or default under any applicable law or administrative regulation of the State of Florida or
the United States of America or any applicable judgment or decree, or any trust
agreement, loan agreement, bond, note, resolution, ordinance, agreement or other
instrument to which the User is a party or is otherwise subject.
(4) As of the date of acceptance hereof and as of the date of the Closing,
except as otherwise disclosed in the Official Statement, no litigation is or will be pending
or, to the knowledge of the User, is threatened in any court (i) in any way questioning or
affecting the validity or due enactment of the Enabling Law or challenging the titles of
the officers of the Issuer or any of the members of the Issuer to their respective offices or
the respective power of such offices, or (ii) seeking to restrain or enjoin the issuance or
delivery of any of the Bonds, or the performance of the covenants made in the Financing
Documents, or the performance of such covenants or any of such documents or
contesting the powers of the Issuer or any authority for the issuance of the Bonds or the
tax-exempt status of the Bonds, or (iii) in which a final adverse decision would materially
adversely affect the financial condition or operations of the User, or (iv) contesting in any
way the completeness, accuracy or fairness of the Official Statement.
(5) The User will furnish or cause to be furnished such information, execute
such instruments and take such other action in cooperation with the Underwriter as it may
reasonably request in order to qualify the Bonds for offer and sale under the Blue Sky or
3
later
Unde
duly,
York.
and'
Flani
or St
Unde
deliw
chec~
deliw
"Clos
prior
Unde
reliar
hereu
oblig.
COITe~
date
effecl
conte
perfo
perfo
paym
SUCCC
follo~
agree
other securities laws and regulations of such states and other jurisdictions of the United
States of America as the Underwriter may designate; provided, that in connection
therewith the Issuer shall not be required to file or execute a general or special .consent to
service of process or qualify to do business in any jurisdiction.
6. The Closing. On ,2001, or at such other time or on such earlier or
business day as shall have been mutually agreed upon by the Issuer, the User and the
.wvriter, the Issuer will deliver to the Underwriter the Bonds, in definitive book-entry form,
,~xecuted and authenticated, through The Depository Trust Company, at its offices in New
New York, or at such other place as shall be mutually agreed upon by the Issuer, the User
he Underwriter. The Issuer will deliver to the Underwriter at the offices of Moyle,
gan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, on ,2001,
ch other time, date or place as shall be mutually agreed upon by the Issuer and the
rwriter, the closing documents hereinafter mentioned. The Underwriter will accept such
;ry and pay the purchase price of the Bonds as set forth in Section 1 hereof by check or
s, or by wire, payable in federal funds, to the order of the Issuer. This payment and
:ry, together with the delivery of the aforementioned documents, is herein called the
ing". The Bonds will be made available to the Underwriter for checking at least 48 hours
to the Closing at such place as shall be mutually agreed upon by the Issuer and the
rwriter.
7. Closing Conditions. The Underwriter has entered into this Purchase Contract in
ce upon the representations and warranties herein and the performance of the obligations
nder, both as of the date hereof and as of the date of the Closing. The Underwriter's
~tions under this Purchase Contract are and shall be subject to the following conditions:
(a) The representations and warranties contained herein shall be true, complete and
:t in all material respects at the date hereof and on the date of the Closing, as if made on the
,fthe Closing.
(b) At the time of the Closing (i) the Financing Documents shall be in full force and
, and shall not have been amended, modified or supplemented, except as disclosed or
mplated by the Official Statement, and (ii) the Issuer and the User shall perform or have
:rned all of their obligations required under or specified in the Financing Documents to be
:med at or prior to the Closing.
(c) The User is not and at the date of the Closing shall not be in default in the
ent of principal of or interest on any indebtedness on which.it is obligated.
(d) In recognition of the desire of the Issuer, the User and the Underwriter to effect a
ssful public offering of the Bonds, and in view of the potential adverse impact of any of the
,ring events on such a public offering, the Underwriter shall have the right to terminate this
ment by notification to the Issuer and the User if at any time at or prior to the Closing:
(1) legislation shall be enacted or, whether or not yet introduced in the
Congress, shall be actively considered for enactment by the Congress or recommended to
the Congress forpassage by the President of the United States, or favorably reported for
passage to either House of the Congress by any committee of such House to which such
4
legislation has been referred for consideration, a decision by a federal court of the United
States or the Unites States Tax Court shall be rendered, or a ruling, regulation or official
statement by or on behalf of the Treasury Department of the United States or the Internal
Revenue Service shall be made or proposed to be made with respect to federal taxation
upon revenues or other income to be derived by the Issuer or upon interest on the Bonds,
or other action or events shall have transpired which have the purpose or effect, directly
or indirectly, of materially adversely affecting the federal income tax consequences of
any of the transactions contemplated in connection herewith, including the tax-exempt
status of the Bonds and, in the reasonable opinion of the Underwriter, materially
adversely affects the market for the Bonds or the sale, at the contemplated offering price,
by the Underwriter of the Bonds; or
(2) legislation shall hereafter be enacted or actively considered for enactment
or introduced, with an effective date prior to the date of the delivery of the Bonds, or a
decision by a court of the United States shall hereafter be rendered or a ruling or
regulation by the Securities and Exchange Commission or other governmental agency
having jurisdiction of the subject matter shall hereafter be made, the effect of which is
that the Bonds are not exempt from the registration, qualification or other requirements of
the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act
of 1934, as amended and as then in effect, or of the Trust Indenture Act of 1939, as
amended and as then in effect; or
(3) a stop order, ruling or regulation by the Securities and Exchange
Commission shall hereafter be issued or made the effect of which is that the issuance,
offering or sale of the Bonds, as contemplated hereby or by the Official Statement, is in
violation of any provision of the Securities Act of 1933, as amended and as then in effect,
of the Securities Exchange Act of 1934, as amended and as then in effect, or of the Trust
Indenture Act of 1939, as amended and as then in effect; or
(4)
either:
there shall exist any event which in the judgment of the Underwriter
(i) makes untrue or incorrect in any material respect any statement or
information contained in the Official Statement; or
(ii) is not reflected in the Official Statement but should be reflected
therein in order to make the statements and information contained therein not
misleading in any material respect, and in either such event, the Issuer refuses to
permit the Official Statement to be supplemented to correct or supply such
statement or information, or the statement or information as supplemented is such
as, in the judgment of the Underwriter, would materially adversely affect the
market for the Bonds or the sale, at the contemplated offering prices, by the
Underwriter of the Bonds; or
(5) there shall have occurred any outbreak of hostilities or any national or
international calamity or crisis, including a financial crisis, the effect of which on the
financial markets of the Unites States is such as, in the judgment of the Underwriter,
5
would materially adversely affect the market for the Bonds or the sale, at the
contemplated offering prices, by the Underwriter of the Bonds; or
(6) there shall be in force a general suspension of trading on the New York
Stock Exchange, the effect of which on the financial markets of the United States is such
as, in the judgment of the Underwriter, would materially adversely affect the market for
the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the
Bonds.
(e) At or prior to the Closing, the Underwriter shall receive the following documents:
(1) An approving opinion of Moyle, Flanigan, Katz, Raymond & Sheehan,
P.A., 625 N. Flagler Drive, West Palm Beach, Florida, Bond Counsel to the Issuer, as to
the Bonds, dated the date of Closing and substantially in the form included in the Official
Statement.
(2) An opinion of counsel to the Issuer, dated the date of the Closing and in
form and substance acceptable to the Underwriter and Bond Counsel.
(3) An opinion of counsel to the User, dated the date of the Closing and in
form and substance acceptable to the Underwriter and Bond Counsel.
(4) An opinion of Buckingham, Doolittle & Burroughs, LLP, 2500 N.
Military Trail, Boca Raton, Florida, counsel to the Underwriter, dated the date of the
Closing and addressed to the Underwriter, to the effect that the Bonds are not subject to
the registration requirements of the Securities Act of 1933, as amended, and that the
Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as
amended. In addition, if required by the Underwriter, such counsel shall state in their
letter containing the foregoing information, or in a separate letter, dated the date of the
Closing, substantially that, in the course of their professional engagement as counsel to
the Underwriter, and without having undertaken to determine independently the accuracy
or completeness of the statements contained in the Official Statement, nothing has come
to the attention of such counsel which would lead them to believe that, as of the date of
the Closing, the Official Statement (excluding therefrom the reports, financial and
statistical data and forecasts included therein, as to which no opinion need be expressed)
contains any untrue statement of a material fact or omits to state a material fact required
therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(5) An opinion of Buckingham, Doolittle & Burroughs, LLP, 2500 N.
Military Trail, Suite 480, Boca Raton, Florida 33431, counsel to the Credit Obligor, dated
the date of the Closing and addressed to the Underwriter, that the Letter of Credit is
enforceable against the Credit Obligor.
(6) A certificate of the Issuer, dated the date of the Closing, signed by the
designated officer of the Issuer, to the effect that (i) the representations and warranties of
the Issuer contained herein are true and correct in all material respects on and as of the
date of the Closing as if made on the date of the Closing; and (ii) to the best of its
6
or ot~
hereu
and th~
of the
conten
Bonds
retain
Purct
Atton
Pierc~
Purch
Coml:
CO1TIi2
knowledge, no event affecting the Issuer has occurred since the date of the Official
Statement which has not been disclosed therein or by supplement or amendment and
which should be disclosed in the Official Statement for the purpose for which it is to be
used or which it is necessary to disclose therein in order to make statements and
information therein not misleading in any material respect.
(7) Executed copies of the Financing Documents.
(8) Such additional certificates, instruments and other documents as the
Underwriter or its counsel may reasonably deem necessary to evidence the troth and
accuracy as of the time of the Closing of the representations of the Issuer and the User,
and the due performance or satisfaction by the Issuer and the User at or prior to such time
of all agreements then to be performed and all conditions then to be satisfied by the Issuer
and the User.
If the Issuer or the User shall be unable to satisfy the conditions contained in this
Purchase Contract, or if the obligations of the Underwriter shall be terminated for any
reason permitted by this Purchase Contract, this Purchase Contract shall terminate and
neither the Underwriter nor the Issuer shall be under further obligation hereunder, except
as set forth in Section 8 hereof.
8. Expenses. The User shall pay or cause to be paid from the proceeds of the Bonds
~er funds available to it the expenses incident to the performance of its obligations
~der and the issuance and marketing of the Bonds, including, but not limited to:
(a) the cost of printing or engraving and mailing or delivering the definitive Bonds
~ Official Statements in reasonable quantities through and including the date of the mailing
Official Statement and all other documents prepared in connection with the transactions
tplated hereby;
(b) the fees and disbursements of the Trustee in connection with the issuance of the
(c) the fees and disbursement of Bond Counsel, and any other experts or consultants
~d by the User in connection with the transactions contemplated hereby;
(d) the cost of obtaining a letter of credit to secure the Bonds; and
(e) all advertising expenses in connection with the public offering of the Bonds.
9. Notice. Any notice or other communication to be given to the Issuer under this
ase Contract may be given by delivering the same in writing to The Office of the County
~eySt. Lucie County, Florida, 2300 Virginia Avenue, 3rd Floor Administrative Annex, Fort
:, Florida 34982; any notice or other communication to be given to the User under this
ase Contract may be given by delivering the same in writing to A-1 Roof Trusses Ltd.,
~any, 1415 South Federal Highway, Boynton Beach, Florida 33425; and, any notice or other
Lunication to be given to the Underwriter under this Purchase Contract may be given by
~s m, de solely for the benefit of the Issuer, the User and the Underwriter Onclud~ng th
succe ~sors or assigns of each thereof). No other person shall acquire or have any right hereunder
by vi~ rue hereof. All of the representations, warranties and agreements in this Purchase Contract
shall 'emain operative in full force and effect regardless of:
This
their
direc~
Secm
"Ind~
(a) any investigation made by or on behalf of any of the Underwriter; or
(b) delivery of any payment for the Bonds hereunder; or
(c) any termination of this Purchase Contract.
)urchase Contract may be executed in counterparts.
11. Indemnification. The User and the Underwriter hereby agree as follows:
(a) The User agrees to indemnify and hold harmless the Underwriter and the Issuer,
respective directors, officers, employees and agents, and each person, if any, and their
ors, officers, employees and agents who control the Underwriter within the meaning of the
ities Act or the Exchange Act (collectively the "Indemnified Persons") and individually, an
__ mniffed Person") against any and all losses, claims, damages, liabilities and costs:
(1) arising out of any statement or information contained in the Official
Statement that is untrue or incorrect, or alleged to be untrue or incorrect, in any material
respect or the omission or alleged omission therefrom of any statement or information
that is necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading in any material respect,
(2) to the extent of the aggregate amount paid in settlement of any litigation
commenced or threatened arising from a claim based upon any such untrue statement or
omission if such settlement is effected without the written consent of the Indemnified
Persons, and
(3) to which the Indemnified Persons may become subject under the Securities
Act, the Exchange Act, or other federal 6r state statutory laws or regulations insofar as
such losses, claims, damages, liabilities and costs (and any legal or other expenses
incurred by the Indemnified Persons in investigating or defending the same or in giving
testimony or furnishing documents in response to a request of any government agency or
subpoena) that in any way relate to or in any way arise out of the activities of the
Indemnified Persons contemplated by this letter agreement;
provided, however, that the User shall not be liable in any such case:
8
which
willfu
the g~
additi,
the U~'
Persol
Persol
action
the an
notice
accou
If the
the de
Persol
groun
those
desigt
fees a
(1) to the Underwriter, any director, officer, or employee of the Underwriter,
or any person controlling the Underwriter, to the extent that any such loss, claim,
damage, liability or cost arises out of, or is based upon, any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information about the Underwriter, the Credit Obligor (as
defined in the Indenture), the rating assigned to the Bonds, or the manner in which the
Bonds are to be place or sold furnished by persons other than the User for use in
preparation of the Official Statement, or
(2) to the Issuer, its members, officers and employees or any person
controlling the Issuer (the "Issuer Parties'), to the extent that any such loss, claim,
damage, liability or cost arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Official Statement under the captions
"The Issuer" or "Litigation" (to the extent related to the Issuer), or arising out of or based
upon any failure to state under either of such captions (to the extent related to the Issuer)
any material fact necessary to make the statements under such captions in light of the
circumstances under which they were made, not misleading, or
(3) to the Underwriter to the extent the person asserting any such loss, claim,
damage, liability purchased Bonds through the Underwriter, and delivery to such person
of the Official Statement in the form available at Closing for the Bonds would have been
a valid defense to the action from which such loss, claim, damage or liability arose but
the Official Statement was not delivered to such person by or on behalf of the
Underwriter.
Such indemnity agreement shall also not cover any loss, claim, damage, liability or cost
is held in a final judgment of a court to have arisen out of the negligence or bad faith or
misconduct of the Indemnified Persons (other than the Issuer Parties) contained herein, or
)ss negligence or bad faith of the Issuer Parties. This indemnity agreement will be in
)n to any liability which the User may otherwise have, but shall not be construed to cause
;er to pay any Indemnified Person twice for the same loss, claim, damage, liability or cost.
(b) If any claims shall be made or actions brought against any of the Indemnified
Is for which indemnity may be sought against the User, such Indemnified Persons or
shall promptly notify the User in writing, setting forth the particulars of such claim or
Failure to so notify the User will reduce the liability of the User under this Agreement by
aunt of damages directly attributable to the failure of the Indemnified Person to give such
, but shall not relieve the User from any liability that they may have otherwise than on
~t of this Section. The User may participate at its own expense in defense of such action.
User so elects within a reasonable time after receipt of such notice, the User may assume
lense of such action with counsel chosen by it and reasonably approved by the Indemnified
is in such action, unless such Indemnified Persons reasonably object in writing on the
~ that there may be legal defenses available to them that are different from or in addition to
available to the User, in which case the Indemnified Persons shall have the right to
rate and retain separate counsel in such action, reasonably approved by the User and the
~d expenses of such counsel so designated and retained shall be paid by the User.
9
the in
with
other
dama
inves
subje
the U
ofth~
this
(c) In order to provide for just and equitable contribution in circumstances in which
demnification provided for in paragraphs (a) and (b) of this Section 11 is due in accordance
its terms but is for any reason held by a court to be unavailable on grounds of policy or
~ise, the User and the Indemnified Persons shall contribute to the aggregate losses, claims,
ges and liabilities (including legal or other expenses reasonably incurred in connection with
:igating or defending the same) to which the User and the Indemnified Persons may be
:t in such proportion as is appropriate to reflect not only the relative benefits received by
ser on the one hand and the Indemnified Person on the other hand, but also the relative fault
User and the Indemnified Persons, as well as any relevant equitable considerations.
12. State of Florida Law Governs. The validity, interpretation and performance of
urchase Contract shall be governed by the laws of the State of Florida.
10
UNDERWRITER:
SouthTrust Securities, Inc.
Accepled as of the date first stated above:
/
USER:
A-1 ROof Trusses Ltd., Company
By:
Michael Miller, Vice-President
By:
Accel;
ISSU]
Accel;
St. Lt
By:
Chai~
St. L~
Attesl
By:
Clerk
ex-off
Coun~
Appr(
Dank
{~BOCAf,
John R. Herring, President
ted as of the date first stated above:
gR:
ted as of the date first stated above:
tcie County, Florida
nan, Board of County Commissioners
cie County, Florida
JoAnne Holman, Clerk
~f the Circuit Court
[cio Clerk of the Board of
y Commissioners
~ved as to form and legal sufficiency.
S. Mclntyre, County Attorney
424_1
11