99-08 ORDINANCE NO. 99-08
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE NEGOTIATION OF A LOAN FROM THE FLORIDA
MUNICIPAL LOAN COUNCIL IN AN AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $21,000,000 TO FINANCE THE
PURCHASE OF REAL PROPERTY TO BE USED AS PARKS AND
RECREATION AND CITY ADMINISTRATIVE COMPLEX AND POLICE
STATION AND THE ACQUISITION, CONSTRUCTION, EQUIPPING
AND INSTALLATION OF IMPROVEMENTS TO THE REAL
PROPERTY AND THE REPAYMENT OF THE LINE OF CREDIT
DATED DECEMBER 20, 1996, WHICH LINE OF CREDIT WAS ISSUED
TO PROVIDE TEMPORARY FUNDING FOR SAID PROJECTS;
INCORPORATING THE PROVISIONS CONTAINED IN RESOLUTION
NO. 99-15 INTO THIS ORDINANCE; PROVIDING FOR SEVERABILITY
AND AN EFFECTIVE DATE.
Whereas, on March 2, 1999, the City Commission of the City of Aventura adopted
Resolution No. 99-15, which resolution authorized the City's participation in the Florida
Municipal Loan Council; and
Whereas, Resolution No. 99-15 established the maximum loan value not to
exceed $21,000,000 for acquisition, construction and erection of certain capital projects;
and
Whereas, Section 4.03 (6) of the Charter of the City of Aventura requires that the
borrowing of money be authorized by Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. This ordinance is adopted pursuant to Chapter 166, Florida Statutes
and the Charter of the City of Aventura.
Section 2, Pursuant to Section 4.06 of the Charter of the City of Aventura, the
negotiation of a loan with the Florida Municipal Loan Council in an aggregate amount not
to exceed $21,000,000 for the acquisition and erection of those improvements
enumerated in Section 4 below is hereby authorized.
Ordinance No. 99-08
Page 2
Section 3. The provisions of Resolution No. 99-15 are incorporated herein as if
set forth at length hereafter.
Section 4. The proceeds of the loan may only be used to pay costs of the project
which include:
A. Land Acquisition. The purchase of real property within the City of Aventura,
Florida (the "City") to be used for municipal purposes such as (1) parks and
recreation and (2) the location of other City facilities including, without limitation,
a City administrative complex and police station.
B. Buildings and other improvements. The acquisition, construction, equipping
and installation of improvements on or to the real property described above
including, without limitation, municipal parks and City government and police
facilities.
C. For the repayment of the Line of Credit pursuant to the Line of Credit (Revenue
Note) dated December 20, 1996, which line of credit was used to provide
temporary funding for the projects enumerated in A and B, above.
Section 5. Severability. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause, and phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity
of the remaining sections, sentences, clauses, and phrases of this Ordinance but they
shall remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part. This Ordinance shall take precedence over any
other ordinance or resolution of the City to the extent of any conflict or inconsistency
therewith.
Section 6. Effective Date. This Ordinance shall be effective upon adoption on
second reading.
The foregoing Ordinance was offered by Commissioner Beskin, who moved its
adoption on first reading, this motion was seconded by Commissioner Rogers-Libed, and
upon being put to a vote, the vote was as follows:
Ordinance No. 99-o._~8
Page 3
Commissioner Arthur Berger yes
Commissioner Jay R. Beskin yes
Commissioner Ken Cohen yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Harry Holzberg yes
Mayor Arthur I. Snyder yes
The foregoing Ordinance was offered by Commissioner Ro~e];s-LJ_bert ,
who moved its adoption on second reading. This motion was seconded by
Commissioner ]~eskin , and upon being put to a vote was as follows:
Commissioner Arthur Berger -/es
Commissioner Jay R. Beskin ,/es
Commissioner Ken Cohen ,/es
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Mayor Arthur I. Snyder ),es
PASSED AND ADOPTED on first reading this 22nd day of March, 1999.
PASSED AND ADOPTED on second readi~, da~ of April, 1999.
ART.UR IS.YD.R, MAYOR
ATTEST:
TERESA M. SMITH, CMC, CITY CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
CITY AT~--~'
EXHIBIT A
INTERLOCAL AGREEMENT
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Exhibit A
INTERLOCAL AGREEMENT
THIS INTERLOCAL AGREEMENT, dated as of ,1998 (the
"Agreement"), entered into among a limited number of governmental units, each one
located in the State of Flodda, (the "Council Members"), which shall initially be the City of
Stuart, City of Deland and City of Rockledge with their participation evidenced by the
signatures of their authorized representatives;
WlTNESSETH:
WHEREAS, each of the Council Members have the power to borrow funds, contract
loans and issue obligations pursuant to applicable law; and
WHEREAS, Part I of Chapter 163, Flodda Statutes, (the "lntedocal Act"), permits
the Council Members to enter into intedocal agreements with each other to join'ay exercise
any power, privilege or authority which such Council Members share in common and which
each might exercise separately, permitting the Council Members to make the most efficient
use of their power by enabling them to cooperate on a basis of mutual advantage and
thereby provide services and facilities in a manner and pursuant to forms of governmental
organization that are in the best interests of such Council Members; and
WHEREAS, 163.01(7)(d), Flodda Statutes, authodzas the Council Members,
pursuant to an interlocal agreement, to create a separate legal entity to exercise the
common power of the Council Members to issue obligations for the purposes of financing
or refinancing capital projects pursuant to the Intedocal Act; and
WHEREAS, the City of Stuart, City of Deland and City of Rockledge have
determined that there is a substantial need to create such a legal entity to issue obligations
to provide funding to governmental entities located in the State of Flodda, including the
Council Members, in order to finance or refinance capital projects within said governmental
entities;
NOW, THEREFORE, in consideration of the mutual covenants herein, it is mutually
agreed and understood among the Council Members that now or may hereafter execute
this Agreement, that the "Florida Municipal Loan Council," a legal entity and public body
corporate and politic and a unit of local government for all of the privileges, benefits, power
and terms of the Intedocal ACt (the "Council"), is hereby created and charged with the
structuring, administration and execution of the hereinafter described Program as follows:
ARTICLE I
DEFINITIONS
The following definitions shall govern the interpretation of this Agreement:
"Act" shall mean the Interlocal Act, Part II of Chapter 166, in the case of
municipalities, or Chapter 125, in the case of counties, Ftodda Statutes, and other
applicable provisions of law.
"Administrator" shall mean such program administrator selected by the Council to
administer the making, originating and servicing of the Loans or any portion thereof and
to act as the Council's agent as set forth in a Program Administration Agreement between
the Council and the Administrator. The initial Administrator shall be the Flodda League of
Cities, Inc., a Flodda corporation.
"Agreement" shall mean this Intedocal Agreement, including any amendments or
supplements hereto, executed and delivered in accordance with the terms hereof.
"Board" or "Board of Directors" shall mean the Board of Directors of the Council,
such Board consisting of local elected municipal and/or county officials chosen in the
manner set forth in ^rticle III hereof. Each member of the Board of Directors shall be a
"Director."
"Bonds" shall mean the bonds, notes or other obligations issued by the Council
pursuant to an Indenture or Indentures as described in Article IV of this Agreement.
"Council" shall mean the Florida Municipal Loan Council, a legal entity created
pursuant to the provisions of this Agreement and the Act.
"Council Member" or "Council Members" shall mean the member or members of the
Council, as shall be provided in this Agreement. The Council Members shall initially be the
City of Stuart, City of Deland and City of Rockledge.
"Indenture" or "Indentures" shall mean an Indenture of Trust or Indentures of Trust
to be entered into between the Council and a qualified trustee bank or banks, including any
amendments or supplements thereto executed and delivered in accordance with the terms
thereof. The Indenture or Indentures shall be in such forms and contain such provisions,
covenants, representations and restrictions asshall hereafter be approved by the Council.
"lntedocal Act" shall mean Part I of Chapter 163, Flodda Statutes.
"Loan" means an amount equal to the outstanding obligation under a particular
Loan Agreement or Participation Agreement.
"Loan Agreements" or "Participation Agreements" shall mean the agreements,
including the exhibits attached thereto, which the governmental entities shall execute prior
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to borrowing funds through the Program, which Loan Agreements or Participation
Agreements shall be in the forms approved by the Council.
"Program" shall mean the financing program of the Council created and structured
pursuant to the terms and conditions of this Agreement and the Program Documents.
"Program Documents" shall mean, collectively, the Indenture(s), any Loan
Agreements, any Participation Agreements and such other contracts relating to credit
enhancement, agreements, opinions of counsel and certificates as the Council shall deem
appropriate.
"Project" shall mean such capital improvements or facilities and other governmental
undertakings as shall be financed or refinanced through the Program.
"Representative" shall mean that individual or official serving as a Council Member.
"State" shall mean the State of Flodda:
"Trustee" shall mean such entity to be :hereafter selected by the Council to act as
Trustee for the Program in accordance with the terms hereof, the Program Documents, and
any successor or assigns.
Whenever any words are used in this;Agreement in the masculine gender, they
shall be construed as though they were also in the feminine or neuter gender in all
situations where they would so apply, and whenever any words are used in this Agreement
in the singular form, they shall be construed as though they were also used in the plural
form in all situations where they would so apply.
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ARTICLE II
THE COUNCIL
SECTION 2.0'1. CREATION. The Council Members hereby create the "Flodda
Municipal Loan Council," a legal entity created pursuant to this Agreement and the Act, as
an unincorporated non-profit association under State law, none of the profits of which shall
inure to the benefit of any pdvate person.
SECTION 2.02. PURPOSE. The purpose ofthe Council isto enable participating
govemmental entities to (a) finance or refinance Projects permitted by the Act on a
cooperative and cost-effective basis, (b) benefit from the economies of scale associated
with large scale financings which may otherwise be unrealized if separate financings were
undertaken and (c) maximize the benefits dedved from the availability of moneys provided
by the State for funding Projects.
SECTION 2.03. POWERS. (a) The Council is authorized for the purpose of
carrying out the Program to exemise all of the privileges, benef~s, powers and terms of the
Act in connection with the authorization, issuance and sale of the Bonds pursuant to
Article IV. Such powers include, but are not limited to, the power to make and enter into
contracts and agreements necessary or incidental to the performance of its duties and the
execution of its duties under this ^greementi to employ consultants, advisors, experts,
attorneys and such other employees and agents as may, in the judgment of the Council,
be necessary, and to fix their compensation; to sue or be sued in its own name; to receive
and accept any aid or contributions from any source of money, property, labor or other
things of value; to adopt a seal; and to adopt a place or places of its official meetings.
(b) No enumeration of powers herein shall be deemed exclusive or restrictive,
but shall be deemed to incorporate all implied powers necessary or incident to carrying out
the purposes of the Council.
SECTION 2.04. MEMBERSHIP. The Council Members shall consist of those
governmental entities which have been admitted pursuant to Article III hereof.
SECTION 2.05. DURATION OF COUNCIL. From and after the date of its creation,
the Council shall exist so long as any Bonds of the Council or obligations of any
participating govemmental entities under the Program remain outstanding. Upon
termination, any assets of the Council shall be allocated among the govemmental entities
in accordance with the terms of each applicable Program Document.
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ARTICLE III
MEMBERSHIP, REPRESENTATION
SECTION 3.01. MEMBERSHIP. (a) Membership in the Council shall consist of
those govemmental entities which from time to time are listed on Exhibit A hereto, having
adopted an authorizing resolution in order to join the Council as a Council Member.
(b) The initial Council Members shall consist of: The City of Stuart, City of
Deland and City of Rockledge.
(c) The Council may admit any governmental entity to membership upon the
affirmative vote of two-thirds (2/3) of the Board of Directors at a duly called meeting of the
Council.
(d) As a precondition to membership in the Council, each Council Member shall
constitute a governmental entity in the State of Florida and shall deliver a duly authorized
and executed counterpart to this Agreement.
SECTION 3.02. REPRESENTATION AND BOARD OF DIRECTORS. (a) The
governing body of each Council Member shall:appoint one or more Representatives to act
on its behalf to provide information and attend meetings from time to time of the Council.
(b) The governing body of each COuncil Member, in its sole discretion, may
remove its Representative or Representatives at any time and may appoint a new
Representative or Representatives to the Council.
(c) The affairs, actions and duties of the Council shall be undertaken by the
Board of Directors. The Board shall consist of not less than one (1) nor more than five (5)
elected public official(s), each one of which shall be appointed in the manner provided for
in subsection (d) below.
(d) Directors shall serve unlimited terms. The Directors shall be appointed by
the President of the Florida League of Cities, Inc. Vacancy's shall also be filled by
appointment by the President of the Florida League of Cities, Inc.
SECTION 3.03. ACTION. (a) The affairs, actions and duties of the Council shall
be undertaken at a duly called meeting pursuant to Section 3~09 hereof.
(b) At any meeting of the Council at which any official action is to be taken, three
of the Directors shall constitute a quorum; and a majority vote of the Directors present shall
be the act of the Council except as provided in Sections 3.01(c), 3.10(b) and 5.05 hereof.
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(c) A certificate, resolution or instrument signed by the Chairman, Vice-Chairman
or such other designated person of the Council as may be hereafter selected by the
Council shall be evidence of the action of the Council and any such certificate, resolution
or other instrument so signed shall conclusively be presumed to be authentic. Likewise,
all facts and matters stated therein shall conclusively be presumed to be true.
SECTION 3.04. ELECTION OF OFFICERS; APPOINTMENT OF
ADMINISTRATOR. (a) Once a year, and at such other time as may be necessary to fill
a vacancy, at a meeting of the Council called for the purpose thereof, the Council through
its Board of Directors shall elect a Chairman and a Vice-Chairman to conduct the meetings
of the Commission and to perform such other functions as herein provided. Said Chairman
and Vice-Chairman shall serve one (1) year terms unless they resign sooner pursuant to
Section 3.06 hereof or are otherwise removed pursuant to Section 3.10 hereof.
(b) The Council shall enter into a Program Administration Agreement with the
Administrator with respect to administering and managing the Program. The Commission
may also enter into such other agreements as may be necessary to establish and maintain
the Program, including, but not limited to, employing counsel, accountants, auditors,
financial advisors and other consultants, employing underwriters for marketing the Bonds,
and obtaining credit enhancers for the Bonds:
(c) The Board of Directors shall conduct the business of and further the
purposes of the Council including, without limitation, the development, structuring and
maintaining of the Program. In order to more effectively carry out its duties, the Board may
delegate to the Administrator certain responsibilities and duties provided that the Board
provide sufficient guidelines and cdteda for the performance of such duties and
responsibilities.
SECTION 3.05. AUTHORITY OF OFFICERS. (a) The Chairman and the Vice-
Chairman shall take such action and sign 'such documents, including the Program
Documents, on behalf of the Council and in furtherance of the purposes of this Agreement
and the Program as shall be approved by resolution of the Council.
(b) The Program Administrator or his designee, shall keep minutes of all
meetings, proceedings and acts of the Council but such minutes need not be verbatim.
Copies of all the minutes of the meetings of the Council shall be sent by the Program
Administrator or its designee to all RepreSentatives of the Council. The Program
Administrator may also attest the execution of documents.
SECTION 3.06. RESIGNATION. (a) i Any Director may resign from all duties or
responsibilities hereunder by giving at least Seven (7) days prior wdtten notice sent by
registered mail to the Program Administrator. Such notice shall state the date said
resignation shall take effect and such resignation shall take effect on such date.
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(b) Any Director, upon leaving office, shall forthwith tum over and deliver to the
Program Administrator any and all records, books, documents or other property in his
possession or under his control which belongs to the Council and/or relates to the
Program.
SECTION 3.07. EXPENSES. The Council may establish, from time to time,
procedures for reimbursement for reasonable expenses incurred in accordance with the
terms of this Agreement.
SECTION 3.08. LIABILITY AND INSURANCE. No member of the Board of
Directors, Representative, agent, officer, official or employee of the Council shall be liable
for any action taken pursuant to this Agreement in good faith or for any omission, except
in accordance with Section 768.28, Flodda Statutes, or for any act or omission or
commission by any other member of the Board of Directors, Representative, agent, officer,
official or employee of the Council.
The initial parties to this Agreement, and any party who may now or hereafter
become a member of the Council, agree the initial parties to this Agreement, individually
or collectively, by executing this Agreement, have not and do not assume any liabilities
arising out of the creation or operation of the Agreement, and that the initial parties to this
Agreement, individually or collectively, shall only be liable for the obligations of the Council
to the extent they specifically covenant to do so by separate agreement as a member of
the Council. The Council hereby agrees to save, hold harmless and indemnify the initial
parties to this Agreement, and their officers, employees, and agents, of and from any loss,
damage or expense incurred by said parties as a result of the said parties' execution of this
Agreement,
The Board of Directors is hereby authorized and empowered to obtain, at the
expense of the Council, liability insurance fully;protecting the respective Directors from any
loss or expense incurred, including reasonable attorney's fees, for all acts of the Directors
except bad faith and gross negligence. The Council hereby agrees to save, hold harmless
and indemnity the Directors from any loss, damage or expense incurred by said persons
while acting in their official capacity excepting bad faith and gross negligence.
SECTION 3.09. MEETINGS. (a) The Council shall convene at a meeting called by
either a majority of the Board of Directors or at the request of the Chairman. Meetings
shall be conducted at such locations as may be acceptable to the majority of the Board of
Directors and in accordance with the laws of the State. The Chairman shall set forth the
date, time, location and purpose of each meeting and notice thereof, unless otherwise
waived, shall be furnished to each Representative and members of the Board of Directors
by the Program Administrator, or his designee, not less than seven (7) days prior to the
date of such meeting. The Chairman may direct the Program Administrator or such other
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designee as he may select to send the prerequisite notice for any meeting of the Council
otherwise called in accordance with the provisions hereof.
(b) Within a reasonable period of time after the creation of the Council, the duly
appointed Board of Directors shall hold an organizational meeting in a mutually agreeable
location in the State of Flodda to elect officers and perform such other duties as shall be
provided under this Agreement.
SECTION 3.10. WITHDRAWAL AND REMOVAL OF COUNCIL MEMBERS. (a)
Any Council Member may withdraw from the Council at any time, if the following conditions
are satisfied: (i) there shall be at least three (3) Council Members remaining in the Council
subsequent to withdrawal, and (ii) a certified resolution from the Council Member's
governing body setting forth its intent to withdraw from the Council is presented to the
Council. Upon satisfaction of the above conditions, such withdrawal shall be effective.
(b) Any member of the Board of Directors may be removed upon the affirmative
vote of at least two-thirds (2/3) of the Council Members at a duly called meeting of the
Council.
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ARTICLE IV
THE BONDS
SECTION 4.0'1. BONDS. Pursuant to the provisions of the Intertocal Act, the
Council may issue, from time to time, in vadous sedes, Bonds to implement the Program
and to finance and refinance Loans in accordance with the terms of the Program. Loans
made by the Council shall be used by governmental entities to finance and refinance the
acquisition and construction of Projects. Such Bonds shall be issued upon such terms,
containing such provisions, beadng interest at such lawful rate or rates, and supported by
such other documents as may hereafter be established by the Council. The Bonds may
be issued pursuant to an Indenture or Indentures and be secured in such manner as
determined by the Council.
SECTION 4.02. BOND PROCEEDS; The proceeds from the issuance of the
Bonds shall be deposited and used for such purposes and under such conditions as set
forth herein and in the Program Documents. Such proceeds may be used to finance or
refinance Projects, establish debt service reserve accounts, capitalize interest, credit
enhancement and pay costs of issuance. Governmental entities may reimburse
themselves from proceeds of the Bonds for Project costs previously incurred by them.
SECTION 4.03. LIMITED OBLIGATIONS. Notwithstanding anything to the
contrary herein or in the Program Documents, the Bonds shall not constitute "bonds" within
the meaning of Article VII, Section 12 of the Constitution of Flodda, which must be
approved at an election of the qualified electors of the Council Members. The Bonds shall
not constitute a general obligation of any of the Council Members, the State of Flodda, or
a lien upon any property owned by or situated within the territorial limits of any of the
Council Members, or the State of Flodda, except in each case to the extent otherwise
specifically provided in the Program Documents. The holders of the Bonds shall not have
the dght to require or compel any exercise Of the taxing power of any of the Council
Members or the State of Flodda to pay the principal of, redemption premium, if any, and
interest on the Bonds or to make any other payments provided for under the Program
Documents, except in each case to the extent otherwise specifically provided in the
Program Documents.
SECTION 4.04. VALIDATION. Pdor to their issuance, the Bonds may be validated
in the manner provided in the Intertocal Act and Chapter 75, Florida Statutes, but nothing
herein shall be construed to require such validation.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. DELEGATION OF DUTY. Nothing contained herein shall be
deemed to authorize the delegation~f the constitutional or statutory duties of the State or
the Council Members or any officers thereof.
SECTION 5.02. FILING. A copy of this Agreement shall be filed for record with the
Clerk of the Circuit Court in each County wherein a participating Council Member is
located.
SECTION 5.03. IMMUNITY. All of the privileges and immunities from liability and
exemptions from laws, ordinances and rules which apply to the activity of officials, officers,
agents or employees of the Council Members shall apply to the officials, officers, agents
or employees of the Council when performing their respective functions and duties under
the provisions of this Agreement.
SECTION 5.04. LIMITED LIABILITY. No Council Member shall in any manner be
obligated to pay any debts, obligations or liabilities adsing as a result of any actions of the
Council, the Representatives or any other agents, employees, officers or officials of the
Council, except to the extent otherwise provided in the Program Documents applicable to
such Council Member and neither the Council, its Board of Directors, the Representatives
or any other agents, employees, officers or officials of the Council have any authority or
power to otherwise obligate the Council Member in any manner.
SECTION 5.05. AMENDMENTS. This Agreement may be amended in writing at
any time by the cencurrenca of a two-thirds (~3) vote of the Board of Directors present at
a duly called meeting of the Council. However, this ^greement may not be amended so
as to (a) permit any profits of the Council to inure to the benefit of any private person orto
permit the assets of the Council to be distributed to any entity, other than the Council
Members, or (b) permit the diversion or application of any of the money or other assets of
the Council for any purposes other than those specified herein or to adversely affect the
tax-exempt status, if applicable, of the Bonds!
SECTION 5.06. CONTROLLING LAW. This Agreement shall be construed and
governed by laws of the State.
SECTION 5.07. EFFECTIVE DATE. ~This Agreement shall be effective from the
date of execution hereof.
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IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of
the Council Members by their authorized representatives.
FLORIDA MUNICIPAL LOAN COUNCIL
(SEAL)
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT B
PROJECTS
A. Land Acquisition. The purchase of real property within the City of Aventura, Florida (the
"City") to be used for municipal purposes such as (1) parks and recreation and (ii) the
location of other City facilities including, without limitation, a City administrative complex
and police station.
B. Buildings and other improvements. The acquisition, construction, equipping and installation
of improvements on or to the real property described above including, without limitation,
municipal parks and City government and police facilities.
C. For the repayment of the Line of Credit pursuant to the Line of Credit (Revenue Note) dated
December 20 1996, which line of credit was used to provide temporary funding for the
projects enumerated in A and B, above.
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EXHIBIT C
FORM OF LOAN AGREEMENT
Exhibit C
LOAN AGR~.I~MENT
By and Between
FLORIDA MUNICIPAL LOAN COUNCIL
and
THE CITY OF , FLORIDA
Dated as of 1, 1999
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BONDS, SERIES 1999
This Instrument Prepared By:
Grace E. Dunlap, Esq.
Bryant, Miller and Olive, P.A.
101 East Kennedy Boulevard
Tampa, Florida 33602
LOAN AGREEMENT
TABLE OF CONTENTS
ARTICLE I
DEFI2qlTIONS
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BORROWER AND COUNCIL
SECTION 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS ..... 10
SECTION 2.02. COVENANTS OF BORROWER ........................... 13
ARTICLE rtl
THE LOAN
SECTION 3.01. THE LOAN ........................................... 18
SECTION 3.02. EVIDENCE OF LOAN ..................................
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQ~S
SECTION 4.01. COMMENC~ OF LOAN TERM ...................... 19
SECTION 4.02. TERMINATION OF LOAN TERM ......................... 19
SECTION 4.03. LOAN CLOSING SUBMISSIONS ......................... 19
ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF BASIC PAYMENTS ........................ 21
SECTION 5.02. PAYMENT OF SURETY BOND COSTS ..................... 21
SECTION 5.03. PAYMENT OF ADDITIONAL PAYMENTS ................. 21
SECTION 5.04. CREDIT FOR I~FEREST EARNINGS AND EXCESS
PAYMENTS .......................................... 22
SECTION 5.05. OBLIGATIONS OF BORROWER UNCONDITIONAL ......... 22
SECTION $.06. REFUNDING BONDS ................................... 23
SECTION 5.07. PREPAYMENT ........................................ 23
DEFEASANCE
ASSIGNMENT AND PAYMENT BY THIRD PAKTIES
SECTION 7.01. ASSIGNMENT BY COUNCIL ............................ 25
SECTION 7.02. ASSIGNMENT BY BORROWER .......................... 25
SECTION 7.03. PAYMENTS BY THE BOND INSURER .................... 25
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED ........................ 26
SECTION 8.02. NOTICE OF DEFAULT .................................. 27
SECTION 8.03. KEMEDI~S ON DEFAULT ............................... 27
SECTION 8.04. [THIS SECTION RESERVED] ............................ 28
SECTION 8.05. NO REMEDY EXCLUSIVE; WAIVER, NOTICE ............. 28
SECTION 8.06. APPLICATION OF MONEYS ............................. 28
MISCELLANEOUS
SECTION 9.01. NOTICES ............................................. 29
SECTION 9.02. BINDING EFFECT ..................................... 29
SECTION 9.03. SEVERABILITY ....................................... 29
SECTION 9.04. AMENDMENTS, CHANGES AND MODIFICAT. IONS ......... 30
SECTION 9.05. EXECUTION IN COUNTERPARTS ........................ 30
SECTION 9.06. APPLICABLE LAW .................................... 30
SECTION 9.07. BENEFIT OF BONDHOLDERS; COMPLIANCE WITH
INDENTURE .......................................... 30
SECTION 9.08. CONSENTS AND APPROVALS ........................... 30
-SECTION 9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS
OF COUNCIL AND BORROWER ......................... 30
SECTION 9.10. CAPTIONS ........................................... 30
SECTION 9.11. NO PECUNIARY LIABILITY OF COUNCIL ................. 30
SECTION 9.12. PAYMENTS DUE ON HOLIDAYS ........................ 31
SECTION 9.13. CALCULATIONS ...................................... 31
SECTION 9.14. TIME OF PAYMENT ................................... 31
EXHIBIT A - USE OF LOAN PROCEEDS
EXHIBIT B - CERTIFIED RESOLUTION OF CITY OF ,
FLORIDA
EXHIBIT C - OPIINION OF BORROWER'S COUNSEL
EXHIBIT D - PRINCIFAL REPAYMENT SCHEDULE
LOAN AGReeMENT
This Loan Agreement (the "Loan Agreement"or the "Agreement'') dated as of
199.= and entered into between the FLORIDA MUNICIPAL LOAN COUNCIL (the "Council"), ~
public body corporate and politic, and the CITY OF , FLORIDA ("the
Borrower"), a duly constituted municipality under the laws of the State of Florida.
WITNESSETH:
WHEREAS, pursuant to the authority of the hereinafter defined Act, the Council desires to
loan to the Borrower the amounI necessary to enable the Borrower to finance the cost of the Projects,
as hereinaRer defined, and the Borrower desires to borrow such amount from the Council subject to
the terms end conditions of and for the purposes set forth in this Agreement; end
WHEREAS, the Council is a public body corporate and politic duly created, organized and
existing under and by virtue of the Interlocal Agreement among the City of
Florida, the City of , Florida, the City of , Florida, the City of
, Florida, the City of , Florida, and the City of , Florida in
accordance with Chapter 163, Pan I, Florida Statutes, as amended (the "Interlocal Act"); and
WHEREAS, the Council has dete~atined that there is substantial need within the State for a
financing prosrarn (the "Program") which will provide fimds for qualifying projects (the "Projects")
for the participating Borrowers; and
WHlk'REAS, the Council is authorized under the Interlocal Act to issue its revenue bonds to
provide fi~nds for such purposes; and
WHEREAS, the Council bas determined that the public interest will best be served and that
the purposes of the Interlocal Act can be more advantageously obtained by the Council's issuance of
revenue bonds in order to loan funds to the Borrowers to finance Projects; and
WHEREAS, the Borrower is authorized under mad pursuant to the Act, as amended, to emer
imo this Loan Agreement for the purposes set forth herein; and
WHEREAS, the Council and the Borrower have determined that the lending of funds by the
Council to the Borrower pursuant to the terms of this Agreement and that certain Trust Indenture
dated as of ,199_, between the Council and the Trustee (as defined herein) relating to
the Bonds (as hereinafter defined), including any amendments and supplements thereto (the
"Indenture"), will assist in the development and maintenance of the public welfare of the residents of
the State and the areas served by the Borrower, and shah serve a public purpose by improving the
health and living conditions, and providing adequate governmental services, facilities and programs
and will promote the most efficient and economical development of such services, facilities and
programs in the State; and
WHEREAS, neither the Council, the Borrower nor the State or any political subdivision
thereof (other than the Borrowers to the extent of their obligations under their respective Loan
Agreements), shall in any way be obligated to pay the principal of, premium, if any, or interest on
those certain revenue bonds of the Council designated "Florida Municipal Loan Council Revenue
Bonds, Series 1999" (the "Bonds") as the same shall become due, and the issuance of the Bonds shall
not directly, indirectly or contingently obligate the Borrower, the State or any political subdivision
or municipal corporation thereof to levy or pledge any form of ad valorem taxation for their payment
but shall be payable solely from the funds and revenues pledged under and pursuant to this Agreement
and the Indenture.
NOW, TI-fI:-REFORE, for and in consideration of the premises hereinafter contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless the context or use indicates another meaning or intent, the following words and
terms as used in this Loan Agreement shall have the following meanings, and any other
hereinafter dt,~ned, shah have the meanings as therein defined.
"Accountant" or "Accountants" means an independent certified public accountant or
a firm of independent certified public accountants.
"Accounts" means the accounts created pursuant to Section 4.02 of the Indenture.
"Act" means, collectively, to the extent applicable to the Borrower, Chapter 163, Part
I, Florida Statutes, Chapter 125, Part I, Florida Stsmtes, Chapter 166, Part II, Florida Statutes,
as amended, and all other applicable provisions oftnw.
"Additonal Payments" means payments required by Section 5.03 hereof.
"Arbitrage Regulations" means the income tax regulations promulgated, proposed or
applicable pur=~Ant to Section 148 of the Code as the same may be amended or supplemented
or proposed to be amended or supplemented from time to time.
of the Council and such other designated members, agents or representatives as may hereafter
be selected by Council resolution; and, when used with reference to a Borrower which is a
municipality, means the person performing the functions of the Mayor or Deputy, Acting or
Vice Mayor thereof or other oflicex authorized to exercise the powers and performs the duties
of the Mayor; and, when used with reference to a Borrower which is a County means the
person performing the function of the Chairman or Vice Chalxman of the Board of County
Commissioners of such Borrower, and, when used with reference to an act or document, also
meara any other person authorized by resolution to perform such act or sign such document.
"Basic Payments" means the payments denominated as such in Section 5.01 hereof.
"Board" means the gnveming body of the Borrower.
"Bond Counsel" means B~ant, Miller and Olive, P.A., Tampa, Florida or any other
nationally recognized bond counsel.
3
"Bondholder" or "Holder" or "holder of Bonds" or "Owner" or "owner of Bonds"
whenever used herein with respect to a Bond, means the person in whose name such Bond is
registered.
"Bond Insurance" means the insurance policy of the Bond Insurer which insures
payment of the principal of and interest on the Bonds when due.
"Bond Insurance Premium" means the premiums payable to the Bond Insurer for the
Bond Insurance.
"Bond Insurer" means and any successors
thereto.
"Bonds" means the Florida Municipal Loan Council Revenue Bonds, Series 1999 issued
pursuant to Article H of the Indenture.
"Bond Year" means a 12-month period be~ifnnlng on 1 and ending on
30.
"Borrower" means the governmental unit Which is described in the f~st paragraph and
on the cover page ofthis Loan Agreement and which is borrowing and using the Loan proceeds
to finance, refinance and/or be reimbursed for, ail or a portion of the costs of one or more
Projects.
"Borrowe~" mesl~ coll~tiv~ly, th~ Borrower I~g:Uting thi.~ Loan Agreement and the
other governmental units which have received loans from the Council made from proceeds of
the Bonds.
"Ba~iness Day" means any day of the year which is not a Saturday or Sunday or a day
on which banking institutions located in New York CRy or the State are required or authorized
to remain closed or on which the New York Stock Exchange is closed.
"Certiflca~# "Statement," "Request," "Requisition" and "Order" of the Council mean,
respectively, a written certificate, statement, request, requisition or order signed in the name
of the Council by its Chairm~ Executive Director or such other person as may be designated
and authorized to sign for the Council. Any such instrument and supporting opinions or
representations, if any, may, but need not, be combined in a single insmunent with any other
instrument, opinion or representation, and the two or more so combined shall be reed and
construed as a single instrument.
"Closing" means the closing of a Loan pursuant to the Indenture and this Agreement.
4
"Code# means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated, proposed or applicable thereunder.
"Commencement Date" means the date when the term ofthis A~reement begins and the
obligation of the Borrower to make Loan Repayments accrues.
"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost of Issuance Fund" means the fund by that name established pursuant to Section
4.02 of the Indenture.
"Counsel" means an attorney duly admitted to practice law before the highest court of
any state and, without limitation, may include legal counsel for either the Council or the
Borrowers.
"Default* means an event or condition the occun'ence of which would, with the lapse
of time or the ~ivin~ of notice or both, become an Event of Default.
"Event of D,~,,k" shall have the meauing ascribed to such term in Section 8.01 of this
"F'mancial New~u~per" or ~Journal" means ~ W~ Street Journal or The Bond Buyer
or any other newspaper or journal containing financial news, printed in the English language,
customarily published on each Business Day and circulated in New York, New York, and
selected by the Trustee, whose decision shall be final and conclusive.
"Fiscal Year' means the fiscal year of the Borrower.
"Fitch" means Fitch Investors Service, L.P., a limited pa~nership organized and existing
under the laws of the State of Delaware, its successors and assigns.
"Funds" means the funds created pursuant to Section 4.02 of the Indenture.
"Governmental Obligations" means (i) direct and general obligations of the United
States of America, or those which are unconditionally ~uaranteed as to principal and interest
by the same, inclu&inE interest on obligations of the Resolution Funding Corporation and (ii)
pre-refunded municipal obli~ons meeting the following criteria'
(a) the municipal obli~fions may not be callable prior to maturity or, alternatively, the
trustee has received irrevocable instructions concerning their calling and redemption;
(b) the municipal obligations are secured by cash or securities described in
subparagraph (i) above (the '~efeasance Obligations"), which cash or Defeasance Obligations
may be applied only to interest, principal, and premium payments of such municipal obligations;
(c) the principal and inter~ of the Defeasance Obligations (plus any cash in the fund)
are sufficient to meet the liabilities of the municipal obligations;
(d) the Defeasance Obligations serving as security for the municipal obligations must
be held by an escrow agent or a trustee; and
(e) the Defeasance Obligations ar~ not available to satisfy any other claims, including
those against the Trustee or escrow agent.
Additionally, evidences of ownership of proportionate interests in fiature interest and
principal payments of Defeasance Obligations are permissible. Investments in these
proportionate interests are limited to circumstances wherein (a) a bank or trust company acts
as custodian and holds the underlying obligations; (b) the owner of the investment is the real
party in inte~st and has the right to proceed directly and individually ,?in~t the obligor of the
underlying obligations; and (c) the underlying obligations are held in a special account separate
and apart from the custodian's general assets, and are not available to satisfy any claim of the
custodian, any person claiming through the custodian, or any person to whom the custodian
may be obligated.
"Indenture" means the Trust Indenture dated as of 1, 1999 between the
Council and the Trustee, including any indentures supplemental thereto, pursuant to which (i)
the Bonds are authorized to be issued and (ii) the Council's interest in the Trust Estate is
pledged as security for the paymem of principal of~ premium, if any, and interest on the Bonds.
"Interest Payment Date" means 1 and 1 of each year,
commencing 1, 1999.
"Interest Period" means the semi-annual period between Interest Payment Dates.
"interlocal Act" means Chapter 163, Part I, Florida Statutes.
"Interlocel Agreement" means that certain Interlocal Agreement originally dated as of
,199_ among the various Borrowers executing it from time to time, the original
parties to which are the City of , the City of and the City of
6
, as amended and supplemented together with the additional governmental entities
who become members of the Council, all as amended and supplemented fi.om time to time.
"Liquidation Proceeds" means amounts received by the Trustee or the Council in
connection with the enforcement of any of the remedies under this Loan Agreement after the
occurrence of an "Eve~ of De~,,It" under this Loan Agreement which has not been waived or
cured.
"Loan" means the Loan made to the Borrower from Bond proceeds to finance certain
Project(s) in the amount specified in Section 3.01 berlin.
"Loans" means all loans made by the Council under the Indenture to the Borrowers.
"Loan Agreement" or "Loan Agreements" means this Loan Agreement and any
amendments and supplements hereto.
"Loan Repayment Date" means 20, 1998, and thereai~er each
20 and 20, or if such day is not a Business Day, the nex~ preceding
Business Day.
"Loan Repayments" means the payments of principal and interest and other payments
payable by the Borrower pursuant to the provisions of this Loan Agreement, including, without
limitation, Additional Payments.
"Loan Term" means the term provided for in Article IV of this Loan Agreement.
"Moody's" means Moody's Investors Service, a corporation organized and existing
under the laws of the State of Delaware, its successors and theft assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Council, with the approval of the Bond Insurer, by
notice to the Trustee.
"Non-Ad Valorem Revenues" means all revenues and taxes of the Borrower derived
fi.om any source what,s, er other than ad valorem taxation on real and personal property, which
are leg, ally available for Loan Repayments.
"Opinion of Bond Counsel" means an opinion by Bond Counsel which is selected by
the Council and acceptable to the Trustee.
"Opinion of Counsel" means an opinion in writing of a legal counsel, who may, but need
not be, counsel to the Council, a Borrower or the Trustee.
"Outstanding Bonds" or "Bonds Outstanding" means all Bonds which have been
authenticated and delivered by the Trustee under the Indenture, except:
(a) Bonds canceled afrer purchase in the open market or because of payment at or
redemption prior to maturity;
Co) Bonds deemed paid under Article IX of the Indenture; and
(c) Bonds in lieu of which other Bonds have been authenticated under Section
2.06, 2.07 or 2.09 of the Indenture.
"Person" means an individual, a corpora6on, a patmership, an association, a trust or any
other entity or organization including a government or political subdivision or an agency or
instrumentality thereof.
"Principal Fund" means the fund by that name created by Section 4.02 of the Indenture.
"Principal Payment Date" means the nmmrity date or mandatory redemption date of any
Bond.
"Progrnm" means the Council's program of making Loans under the Act and pursuant
to the Indenture.
"Project" or "Projects" means a governmental undemflcing approved by the governing
body of a Borrower for a public purpose, including the refmnncing of any indebtedness.
"Project Loan Fund" means the fund by that name established pursuant to Section 4.02
of the Indenture.
"Proportionate Share" means, with respect to any Borrower, a fraction the numerator
of which is the outstanding principal amount of the Loan of such Borrower made from
proceeds of the Bonds and the denominator of which is the outstanding principal amount of ail
Loans made from proceeds of the Bonds and then outstanding.
"Purchase Price" means the purchase price of one or more Rems of a Project negotiated
by a Borrower with the seller of such items.
8
"Redemption Price" means, with respect to any Bond (or portion thereof), the principal
amount of such Bond (or portion) plus the applicable premium, if any, payable upon
redemption pursuant to the provisions of such Bond and the Indenture.
"Revenue Fund" means the fund by tha~ name created by Section 4.02 of the Indenture.
"Revenues" means all Loan Repayments paid to the Trustee for the respective accounts
of the Borrowers for deposit in the Principal Fund and Revenue Fund to pay principal of,
premium, if any, and interest on the Bonds upon redemption, at maturity or upon acceleration
of maturity, or to pay interest on the Bonds when due, and all receipts of the Trustee credited
to the Borrower under the provisions of this Loan Agreement.
"S&P" means Standard & Poor's Corporation, a corporation organized and existing
under the laws of the State of New York, its successors and their assigns, and, if such
corporation shali be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any other nationally reco~,nized
securities rating agency designated by the Council, with the approval of the Bond Insurer, by
notice to the Trustee.
"Special Record Date" means the date established pursuant to Section 10.05 of the
Indenture as a record date for the payment of defaulted interest, if any, on the Bonds.
"State" means the State of Florida.
"Supplemental Indenture" means any indenture hereafter duly authorized and emered
into between the Council and the Trustee, supplementing, modifying or amending the
Indenture, but only if and to the extent that such Supplemental Indenture is specifically
authorized in the Indenture.
"Trust Estate" means the property, rights, Revenues and other assets pledged and
assigned to the Trustee pursuant to the Oranting Clauses of the Indenture.
"Trustee" mesns , as
Trustee, or any successor thereto under the Indenture.
9
ARTICLE H
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BORROWER AND COUNCIL
SECTION 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Borrower and the Council represent, warrant and covenant on the date hereof for the benefit of the
Trustee, the Borrower, the Bond Insurer and Bondholders, as applicable, as follows:
(a) ORGANIZATION AND AUTHORITY. The Borrower:
(1) is a duly organized and validly existing municipality of the State and is a duly
organized and validly existing Borrower; and
(2) has all requisite power and authority to own and operate its properties and to
carry on its activities as now conducted and as presently proposed to be conducted.
(b) FULL DISCLOSURE. There is no fact that the Borrower knows of which has not been
specifically disclosed in writing to the Council and the Bond Insurer that materially and adversely
affects or, except for pending or proposed le~'d~tlon or reg. l~ions that are a matter of general public
information affecting Borrowers generally, that will materially affect adversely the properties,
activ/ties, prospects or condition (financial or otherwise) of the Borrower or the ability of the
Borrower to perform its Obligations under this Agreement.
The financial sta~ement~ including balance sheets, and any other written statement furnished
by the Borrower to the Council and the Bond Insurer do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements contained therein or
herein not misleading. There is no fact known to the Borrower which the Borrower has not disclosed
to the Council and the Bond Insurer in writing which materially affects adversely or is likely to
materially affect adversely the financial condition of the Borrower, or its ability to make the payments
under this Asreement when and as the same become due and payable.
(c) PENDING LITIGATION. To the knowledge of the Borrower there are no proceedings
pending, or to the knowledge of the Borrower threatened, against or affecting the Borrower, except
as spec/ftc, ally described in writing to the Council and the Bond Insurer, in any court or before any
governmental authoriW or arblh'/dion board or tribunal that, if adversely determined, would materially
and adverse/y affect the properties, prospects or condition (financial or otherwise) of the Borrower,
or the existence or pow~s or ability of the Borrower to enter into and perform its obligations under
this Asreement.
l0
(d) BORROWING LEGAL AND AUTHORIZED. The execution and delivery of this
Agreement and the consummation of the ~ons provided for in this A~reement and compliance
by the Borrower with the provisions of this Asreement:
(1) are within the powers of the Borrower and have been duly and effectively
authorized by all necessary action on the part of the Borrower. and
(2) do not and will not (i) conflict with or result in any material breach of any of the
terms, condinons or provisions ot~ or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Borrower pursuant to any
indenture, loan a~reement or other a~eement or instrument (other than this Asreement) or restriction
to which the Borrower is a party or by which the Borrower, its properties or operations are bound
as of the date of this Agreement or (ii) with the giving of notice or the passage of time or both,
constitute a breach or default or so result in the creation or imposition of any lien, charge or
encumbrance, which breach, default, lien, charge or encumbrance (described in (i) or (ii)) could
materially and adversely ~ the validity or the enforceability of this Asreement or the Borrower's
ability to perform fully its obliffations under this Asreement; nor does such action result in any
violation oftha provisions of the Act, or any laws, ordinances, governmental rules or regulations or
court orders to which the Borrower, its properties or operations may be bound.
(e) NO DEFAULTS. No event has occurred and no condition exists that constitutes an
Event of Default, or which, upon the execution and delivery of this Asreemenl and/or the passage
of time or giving of notice or both, would conciliate an Event of De~,,It. The Borrower is not in
violation in any material respect, and has not received notice of any claimed violation (except such
violations as (i) heretofore have been specifically disclosed in wrying to, and have been in writing
speeiiicalbj conserved to by the Council and the Bond Insurer and (ii) do not, and shall not, have any
material adverse effect on the transactions herein contemplated and the compliance by the Borrower
with the terms hereof), of any terms of any a~reement or other instrument to which it is a party or
by which it, its properties or operations may be bound, which may materially adversely affect the
ability of the Borrower to perform hereunder.
(fi GOVERNMENTAL CONSENT. The Borrower has obtained, or will obtain, all permits,
approvals and findings of non-reviewability required as of the date hereof by any governmental body
or officer for the ,_c~,i~ition and/or installation of the Project, including construction and renovation
work, the financin~ or refinancing thereof or the reimbursement of the Borrower therefor, or the use
of such Project, and, pl4or to the Loan, the Borrower will obtain all other such permits, approvals and
findings as may be _~-~'y for the foregoin~ and for such Loan and the proper application thereof;
the Borrower has complied with or will comply with all applicable provisions of law requiring any
notification, declaration, ~ or re~h~slion with any a~ency or other governmental body or officer
in connection with the acpvision or instsll~ulon ofthe Project, including construction and renovation
work necessary for such installation, financing or refinancing thereof or reimbursement of the
Borrower therefor;, and any such action, construction, installation, financing, refinancing or
reimbursement contemplated in this Loan Asreement is consistent with, and does not violate or
11
conflict with, the terms of any such agency or other governmental consent, order or other action
which is applicable thereto. No further consent, approval or authorization of, or filing, registration
or qualification with, any governmental authority is required on the part of the Borrower as a
condition to the execution and delivery of this Loan Agreement, or to amounts becoming outstanding
hereunder.
(g) COMPLIANCE WITH LAW. The Borrower is in compliance with all laws, ordinances,
governmental rules and regulations to which it is subject and which are material to its properties,
operations, finances or status as a municipal corporation or subdivision of the State.
(h) USE OF PROC~.F-r)S.
( 1 ) The Borrower will apply the proceeds of the Loan from the Council solely for the
financing for the cost of the Projects as set forth in Exhibit A hereto. If any Project listed in Exhibit
A is not paid for out of the proceeds of the Loan at the Closing of the Loan, Borrower shall, as
quickly as reasonably possible, with due diligence, and in any event prior to ,200,
use the remainder of the amounts listed in Exhibit A and any investment earnings thereon to pay the
cost of the Project, provided that, such time limit may be extended by the written consent of the
Council and the Trustee, and provided further that Borrower may amend Exhibit A without the
consent of the Council orthe Trustee to provide for the financing of a different or additional Project
if Borrower, at~er the date hereof, deems it to not be in the interest of Borrower to acquire or
construct any item of such Project or the cost of the Project proves to be less than the amounts listed
on ~ A and the investment eemings thereon. Notwithstanding the foregoing all such proceeds
shall be expended prior to ,200.~ Borrower will provide the Trustee and the Council
with evidence of the expenditure of the remaining amounts of the Loan and the investment earnings
thereon and the respective daIe(s) thereof as soon as practicable following the expenditure of all such
amounts on costs of the Project.
(2) Items of cost of the Project which may be financed include all reasonable or
necessa~ direct or indirect costs of or incidental to the acquisition, construction or installation of the
Project, including operational expenses during this construction period which would qualify for
caplt,li~on under generally accepted accounting principles, the incidental costs of placing the same
in use and financing expenses (including the application or origination fees, if any, of the Bond Insurer
and the Council), but not operating expenses.
(3) Borrower ,ntl_erstands that the actual Loan proceeds received by it are less than
the face amount oftbe Loan Agreement in an amount equal to a discount equal to __% of the
stated principal amount of the Loa~ The amount of Loan proceeds received by Borrower will thus
be smaller than the principal amount of the Loan. Borrower will ac, cordingly be responsible for
repaying, through the Basic Payments portion of its Loan Repayments, the portion of the Bonds
issued to fund its Loan and Bon'oweffs Proportionate Share of the Bonds issued to fired that portion
of the underwriting discount and other costs of issuing the Bonds.
12
(4) The Borrower covenants that it will make no use oftbe proceeds of the Bonds
which are in its control at any time during the term oftbe Bonds which would cause such Bonds to
be "Arbitrage Bonds" within the meaning of Section 148 of the Code.
(5) The Borrower, by the Tmstee's ac~.eptance of the Indenture, covenants that the
Borrower ~ neither take any action nor fall to take any action and to the extent that it may do so,
permit any other party to take any action which, if either taken or not taken, would adversely affect
the exclusion from gross income for Federal income tax purposes of interest on the Bonds.
(i) PROJECT. All items constituting the Project are as such term is defined in the Act.
(j) COMPLIANCE WITH INTERLOCAL ACT AND I]WFERLOCAL AGREEMENT. All
agreements and transactions provided for herein or contemplated hereby are in full compliance with
the terms of the Interlocal Agreement and the Inteflocal Act.
SECTION 2.02. COVENANTS OF BORROWER. The Borrower makes the following
covenants and represent~ons as of the date first above written and such covenants shall continue in
full force and effect during the Loan Term:
(a) SECURITY FOR LOAN REPAYMENT. Subject to the provisions of Section 2.02(1)
hereof, the Borrower covenants and agrees to appropriate in its annual budget, by amendment, if
required, and to pay when due under this Loan Agreement as promptly as money becomes available
directly into the appropriate Fund or Account cre~ted in the Indenture, amounts of Non-Ad Valorem
Revenues of the Borrower sufficient to satis~t the Loan Repayment as required under this Loan
Agreement. Such covemnt is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Revenues heretofore or hereinafter entered into. Such covenant and
agreement on the part of the Borrower to budget and appropriate such amounts of Non-Ad Valorem
Revenues shall be cumulative, end shall continue until such Non-Ad Valorem Revenues or other
legally available funds in amounts sufficient to make all required Loan Repayments, including
delinquent Loan Repayments, shall have been budgeted, appropriated and actually paid into the
appropriate Fund or Account. The Borrower further acknowledges and agrees that the Indenture
shall be deemed to be entered into for the benefit of the Holders of any of the Bonds and that the
obt;g,,fions of the Borrower to inciude the amount of any deficiency in Loan Repayments in each of
its annual budgets and to pay such deficiencies from Non-Ad Valorem Revenues may be enforced in
a court of competent jurisdiction in accordance with the remedies set forth herein and in the
Indenture. Notwithstanding the foregoing or any provision of this Loan Agreement to the contrary,
the Borrower does not covenant to maintain any services or programs now maintained by the
Governmental Unit which generate Non-Ad Valorem Revenues.
(b) DELIVERY OF INFORMATION TO THE BOND INSURER. Borrower shall deliver
to the Bond Insurer and the Council as soon as available and in any event within 180 days after the
end of each Fiscal Year an audited stslem~t of its financial position as of the end of such Fiscal Year
and the related ~ ofrevesmes and expenses, fund balances and changes in fund balances for
13
such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all reported by an independent certified public accountant, whose report shall state that such
financial statements present fairly Borrower's financial position as of the end of such Fiscal Year and
the results of operations and changes in financial position for such Fiscal Year. Within 75 days of the
close of each fiscal quarter, Borrower shall file copies of its unaudited financial statements with the
Council or the Bond Insurer, if so requested by the Council or the Bond Insurer, respectively.
(c) I]qFORMATION. Borrower's chief financial officer shall, at the reasonable request of
the Bond Insurer, discuss Borrower's financial matters with the Bond Insurer or their respective
designee and provide the Bond Insurer with copies of any documents reasonably requested by the
Bond Insurer or its designee unless such documents or material are protected or privileged from
disclosure under applicable Florida law.
(d) I]xFDEM]qlTY. To the extent p~a~,itted'by law, the Borrower will pay, and will protect,
indenmif3, and save, the Council, each member, officer, commissioner, employee and agent of any of
the Council, harmless from and against, any and all liabilities, losses, damages, costs and expenses
(including reasonable attorneys' fees), suits, claims and judgments of Whatsoever kind and nature
(including those in any mann~ directly or indirectly arising or resulting from, out of, or in connection
with, any injury to, or death of, any person or any damage to property-resulting from the use or
operation of the Project), whether arising directly or indirectly (in any case, whether or not by way
of the Borrower, its successors and assigns, agents, contractors, employees, licensees or otherwise
of the Borrower or resulting from, out of, or in connection with, the Project, this Loan Agreement
as a result of the breach or violation of any agreement, covenant, representations or warranty by the
Borrower set forth in this Loan Agreement or any document delivered in connection herewith or
therewith, but not including an action arising from the alleged invalidity of the Bonds, except to the
extent that such invalidity is caused by an act or omission of the Borrower or is caused by the
invalidity of this Loan Asreement. The Council shall also use counsel reasonably acceptable to the
Borrower in carryinG out its obligations under this paragraph, except as a result of the breach or
violation of any agreement, covenant, representations or warranty by the Borrower set forth in this
Loan Asreement or any document delivered pursuant hereto or thereto. The Council shall five to
the Borrower prompt notice of any such suits or claims.
The foregoing notwithstanding, nothing herein contained shall be construed and neither the
Trustee, the Council, the Bond Insurer, the State or the Bondholders shall have the right to compel
the exercise of the taxing pow~' of the Borrower in any form for the payment by the Borrower of its
obligations, if any, hereunder.
The provisions of this paragraph (d) shall survive the termination of this Loan Agreement.
(e) SPECIAL COVENANTS AND FINANCIAL RATIOS. The Borrower covenants that
in each Fiscal Year of the Borrower, it will not issue non-self-supporting revenue debt if after the
issuance of such debt, maximum annual debt service resulting from the total outstanding
non-self*supporting revenue debt service of the Borrower exceeds 50% of total general purpose
14
Non-Ad Valorem Revenues oftbe Borrower received in the immediately preceding Fiscal Year of
the Borrower. As used above, the te~m "non-self-supporting revenue debt" shall not include any debt
payable from revenues of a utility system. The Borrower covenants not to incur any indebtedness
payable from non ad valorem revenue sources unless (a) it has received the written consent of the
Bond Insurer (which conse~ shall not be unreasonably withheld) or (bXi) the gross non-ad valorem
revenues (all legally available non-ad valorem revenues of the Borrower from whatever source
including inve~hi~mt income) of the Borrower for the preceding Fiscal Year were at least 2.00 times
average annual debt service of all indebtedness of the Borrower payable from such sources, and (ii)
the net available non-ad valorem revenues of the Borrower for the preceding Fiscal Year were at least
1.10 times average annual debt service of all indebtedness payable from such sources. As used above
the term "net available non-ad valorem revenues" shall mean 'gross non-ad valorem revenues" as
delined above minus cost of operation and maintenance of the Borrower (minus, however, any such
costs paid from ad valorem taxes plus legally available unencumbered fund balances). For the
purpose of calculating average annual debt service on any indebtedness which bears interest at a
variable rate, such indebtedness shall be deemed to bear interest at the greater of (i) 1.25 times the
most recently published Bond Buyer Revenue Bond 30 Year Index or (ii) 1.25 times actual average
interest rate during the pdor Fiscal Year of such Borrower. Each Borrower shall give written notice
to the Bond Insurer upon the occurrence of any such indebtedness. Furthermore, the Borrower
covenants that on the date of execution of this Agreement, its general fund equity, based upon the
most recent audited fulancial statements, equals at least tlve percent (5%) of general fund
expenditures for the year reflected in said audited financial statements.
(f) FURTI-I~R ASSURANCE. The Borrower shall execute and deliver to the Trustee all
such documents and insttmnents and do all such other acts and things as may be reasonably necessary
to enable the Trustee to exercise and enforce its riffhts under this Loan Agreement and to realize
thereon, and record and ~le and re-record and re-file all such documents and instruments, at such time
or times, in such manner and at such place or places, all as may be reasonably necessary or required
by the Trustee to validate, preserve and protect the position of the Trustee under this Loan
Agreement.
(g) Iom~ING OF RECORDS AND BOOKS OF ACCOUNT. The Borrower shall keep or
c~ to be kept proper records and books of account, in which correct and complete entries will be
made in accordance with generally accepted accounting principles, consistently applied (except for
changes concurred in by the Borrower's independent auditors) reflecting all of its financial
transactions.
(h) PAYMENT OF TAXES, ETC. The Borrower shall pay all legally contracted obligations
when due and shall pay all taxes, assessments and governmental charges or levies imposed upon it
or upon its income or protits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims, which, if un?~d, might become a lien or charge upon
any of its properties, provided that it shall not be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by appropriate proceedings which shall
operate to stay the enforcement thereof.
15
(i) COMPLIANCE WITH LAWS, ETC. Subject to an annual appropriation of legally
available fimds, the Borrower shall comply with the requirements of all applicable laws, the terms of
all grants, rules, regulations and lawful orders of any governmental authority, non-compliance with
which would, singly or in the aggregate, materially adversely affect its business, properties, earnings,
prospects or credit, unless the same shall be contested by it in good faith and by appropriate
proceedings which shall operate to stay the enforcement thereof.
(j) TAX-EXEMPT STATUS OF BONDS. The Council and the Borrower understand that
it is the intention hereof that the interest on the Bonds not be included within the gross income of the
holders thereof for federal income tax purposes. In furtherance thereof~ the Borrower and the
Council each agree that they will take all action within its control which is necessary in order for the
interest on the Bonds or this Loan to remain excluded from gross income for federal income taxation
purposes and shah refrain from taking any action which results in such interest becoming included in
gross income.
The Borrower and the Council further covenant that, to the extent they have control over the
proceeds of the Bonds, they will not take any action or fail to take any action with respect to the
investment of the proceeds of any Bonds, with respect to the payments derived from the Bonds or
hereunder or with respect to the purchase of other Council obligations, whieh action or failure to act
may ~,~ the Bonds to be "Arbitrage Bonds" within the meaning of such term as used in Section 148
of the Code and the regulations promulgated thereunder. In furtherance of the covenant contained
in the preceding sentence, the Borrower and the Council agree to comply with the Tax Certificate as
to Arbitrage and the provisions of Seetion 141 through 150 of the Internal Revenue Code of 1986,
as amended, including the letter ofinsuuctiun atmcbed thereto as Exhibit D, delivered by Bryant,
Miller and Olive, P.A. to the Borrower end the Council simultaneously with the issuance of the
Bonds, as such letter may be amended from time to time, as a source of guidelines for achieving
compliance with the Code.
(k) INFORMATION REPORTS. The Borrower covenants to provide the Council with all
material and information it possesses or has the ability to possess necessary to enable the Council to
file all reports required under Section 149(e) of the Code to assure that interest paid by the Council
on the Bonds shall, for purposes of the federal income tax, be excluded from gross income.
(!) LIMITED OBLIOATIONS. Anything in this Loan Agreement to the contrary
notwithstanding, it is unde~-$wod and agreed that all obligations of the Borrower hereunder shall be
payable only from Non-Ad Valorem Revenues budgeted and appropriated as provided for hereunder
and nothing herein shall be deemed to pledge ad valorem taxation revenues or to permit or constitute
a mortgage or lien upon any assets owned by the Borrower and no Bondholder or any other person,
including the Council, the Trustee or the Bond Insurer, may compel the levy of ad valorem taxes on
real or personal property within the boundaries of the Borrower. The obligations hereunder do not
constitute an indebtedness of the Borrower within the meaning of any constitutional, statutory or
charter provision or limitation, and neither the Trustee, the Council, the Bond Insurer, or the
Bundhclders or any other person shall have the right to compel the exercise of the ed valorem taxing
16
power of the Borrower or taxation of any real or personal property therein for the payment by the
Borrower of its obligations hereunder. Except to the extent expressly set forth in this Loan
Agreement, this Loan A~eement and the obligations of the Borrower hereunder shall not be
construed as a limitation on the ability of the Borrower to pledge or covenant to pledge said revenues
or any revenues or taxes of the Issuer for other legally permissible purposes. Notwithstanding any
provisions of this Agreement, the Indenture or the Bonds to the contrary, thc Borrower shall never
be obligated to maintain or continue any of the activities of the Borrows' which generate user service
charges, regulatory fees or any Non-Ad Valorem Revenues. Neither this Loan Agreement nor the
obli~ions of the Borrower hereunder shall be construed as a pledge of or a lien on ail or any legally
available Non-Ad Valorem Revenues of the Borrower, but shall be payable solely as provided in
Section 2.02(a) hereof and is subject in all respects to the provisions of Section 166.241, Florida
Statutes, and is subject, further, to the payment of services and programs which are for essential
public purposes affecting the health, welfare and safety of the inhabitants of the Borrower expressly
limited to the Loan Payments and the Borrower shall have no joint liability with any other Borrower
or the Council for any of their respective liabilities, except to the extent expressly provided hereunder.
The Council and the Borrower understand that the amounts available to be budgeted and
appropriated to make Loan Payments hereunder is subject to the obli?tion of the Borrower to
provide essential services; however, such obligation is cumulative and would carry over from Fiscal
Year to Fiscal Year.
(m) REPORTING REQUIREMENTS. (i) The Borrower will file or cause to be filed with
the Bond Insurer and with the Council any official statement issued by, or on behalf of, the Borrower
in connection with the incurrence of any additional indebtedness by the Borrower. Such official
statements shall be filed within six~ (60) days after the publication thereof.
(ii) The Borrower agrees to provide not later than December 31 of each year, a
certificate of its Chief Financial Officer stating that to the best of its knowledge to the effect
that the Borrower is in compliance with the texms and conditions of this Loan Agreement, or,
spedfying the n,Va~ of any noncompliance and the remedial action taken or proposed to be
taken to cure such noncompliance.
(iii) The Borrower will file or cause to be filed with the Council its audited financial
statements within sixty (60) days after publication thereof.
17
ARTICLE Ill
THE LOAN
SECTION 3.01. THE LOAN. The Council hereby agrees to loan to the Borrower and the
Borrower hereby agrees to borrow from the Council the sum of $ which amount includes
a discount equal to __% of the principal amount of such Loan to reflect the Borrowers share
of the cost of the initial issuance of the Bovxis (including original is~ae discount, if any) subject to the
terms and conditions contained in this Loan Agreement and in the Indenture to the extent such
amount is (i) approved by the Council and (ii) approved in writing by the Bond Insurer and to the
extent such amount (but not including the discount amount) is determined by the Trustee in its sole
discretion to be available in the Project Loan Fund (established pursuant to Article IV of the
Indenture) for such purpose, such advanced amounts to be used by the Borrower for the purposes
of financing or refinancing the cost of, or receiving reimbursement for the equity in, the Projects in
accordance with the provisions of this Loan Agreement.
SECTION 3.02. EVIDENCE OF LOAN. The Borrower's obligation hereunder to repay
amounts advanced pursuant to Section 3.01, together with interest thereon, and other payments
required under this Loan Agreement, shall be evidenced by this Loan Agreement.
18
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQUIREMENTS
SECTION 4.01. COMMENCEMENT OF LOAN TERM. The Borrowers obligations under
this Loan Agreement shall commence on the date hereof unless otherwise provided in this Loan
Agreement.
SECTION 4.02. TERMINATION OF LOAN TERM. The Borrowers obligations under this
Loan Agreement shall tem~inate after payment in full of all amounts due under this Loan Agreement
and all amounts not theretofore paid shall be due and payable at the times and in the amounts set forth
in Exhibit D attached hereto; provided, however, that all covenants and all obligations provided
hereunder specified to so survive (including the obligation of the Borrower to pay its Proportionate
Share of the rebate obligations of the Council owed on the Bonds and agreed to by the Borrowers
pursuant to Section 5.03(bX7) hereof) shall survive the termination of this Loan Agreement and the
payment in full of principal and interest hereunder. Upon termination of the Loan Term as provided
above, the Council and the Trustee shall deliver, or cause to be delivered, to the Borrower an
acknowledgment thereof.
SECTION 4.03. LOAN CLOSING SUBMISSIONS. Concurrently with the execution and
delivery of this Loan Agreement, the Borrower is providing to the Trustee the following documents
each dated the date of such execution and delivery unless otherwise provided below:
(a) Certified resolutions of the Borrower substantially in the form of Exhibit B attached
hereto;
(b) An opinion of the Borrower's Counsel in the form of Exhibit C attached hereto to the
effect that the Loan Agreement is a valid and binding obligation of the Borrower and opining to such
other matters as may be ree~onably required by Bond Counsel and the Bond Insurer,
(c) A certificate of the officials of the Borrower who sign this Loan Agreement to the effect
that the representations and warranties of the Borrower are true and correct;
(d) A certificate of covenant compliance required by Section 2.02(e) hereof.
(e) A certificate signed by the Authorized Representative of the Borrower, in form and
substance sathfactory to Bond Counsel, stating (i) the estimated datns and the amounts of projected
expenditures for the Project and (ii) that it is reasonably anticipated by the Borrower that the Loan
proceeds will be fully advanced therefor and expended by the Borrower prior to ,200_,
and that the projected expenditures are based on the reasonable expectations of the Borrower having
due regard for its capital needs and the revenues available for the repayment thereof.
19
(f) This executed Loan Agreement;
(g) An opinion (addressed to the Council, the Trustee, the Bond Insurer and the Borrower)
of Bond Counsel to the effect that such financing, refinancing or reimbursement with Loan proceeds
is permitted under the Act, the Inder~ure and the resolution authorizing this Loan Agreement and will
not cause the interest on the Bonds to be included in gross income for purposes of federal income
taxation or adversely affect the validity, due authorization for or legality of the Bonds; and
(h) Such other certificates, documents, opinions and information as the Council, the Bond
Insurer, the Trustee or Bond Counsel may require.
All opinions and certificates shall be dated the date of the Closing.
2O
ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF BASIC PAYMENTS. Borrower shall pay to the order of
the Council all Loan Repayments in lawful money of the United States of America to the Trustee.
No such Loan Repayment shaH be in an amount such that interest on the Loan is in excess of the
maximum rate allowed by the laws of the State of Florida or of the United States of America. The
Loan shah be repaid in Basic Payments, consisting of:
(a) principal in the amounts and on the dates set forth in Exhibit D; plus
(b) interest calculated at the rates set forth in Exhibit D;
On the fifteenth (15th) day of the month immediately preceding each Interest Payment Date,
the Trustee shall give Borrower notice in writing of the total amount of ~he next Basic Payment due.
The Basic Payments shall be due on each 20 and 20 or if such
day is not a Business Day, the next preceding B~*~iness Day (a "Loan Repayment Date"), commencing
20, 1998, and extending through 20, 20_._, unless the due date
of the Basic Payments is accelerated pursuant to the terms of Section 8.03 hereof.
SECTION 5.02. PAYMENT OF SURETY BOND COSTS. The Borrower recognizes that
the Florida Municipal Insurance Trust has provided to the Council the Surety Bond. [address
repayment/documentation issues.]
SECTION 5.03. P,A. YI~'~NT OF ADD/TIONAL PA.Y~IENTS. In addition to Basic
Paym~,~, Borrower agr~s to pay on den~xnd of thc Council ortbe Trustee, the following Additional
?ayments~
(a) Borrowers Proportionate Share of. the annual fees of the Trustee; fees of the R~stt~
and Paying .Agent; the annual fees or expenses of the Council, if any, including the f~s of any
provider ofarbitrag~ re~at~ cek'~ulations tog~er with any arbitrage r~bete due; the Bond Insurance
?r~um, if any, of the Bond Insu~; and the f~s of the rating agencies.
(b) All reasonable f~s and expw. ses of the Coun~l or Trustee relating to this Loan
Asroernent~ including, but not limited to:
(1) the cost of reproducing this Loan Agreement;
(2) the raasonable fees and disbursements of Counsol u~ by the Council, the
Trustee aed th~ Bond Insur~ in connection with tbe ~ this Loan Agreement and the enforcement
th r of:
21
(3) reasonable extraordinary fees of the Trustee following an Event of Default
hereunder;
(4) all other reasonable out-of-pocket expenses of the Trustee and the Council in
connection with the Loan, this Loan Agreement and the enforcement thereof,
(5) ali taxes (including any recordin~ and filing fees) in connection with the execution
and delivery of this Loan Agreement and the pledge and assigl~ment of the Council's right, title and
interest in and to the Loan and the Loan Agreement, pursuant to the Indenture (and with the
exceptions noted therein), and all expenses, including reasonable attorneys' fees, relating to any
amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions
hereof;
(6) all reasonable fees and expenses of the Bond Insurer relating directly to the Loan;
and
(7) the Borrowegs Proportionate Share of any amounts owed to the United States of
America as rebate obligations on the Bonds, which obligation shall sunfive the termination of this
Loan Agreement.
SECTION 5.04. CREDIT FOR INTEREST EARNINGS AND EXCESS PAYMENTS.
(a) On each Interest Payment Date the Trustee shall credit against Borrower's obligation to
pay Loan interest and Additional Payments, Borrowers Proportionate Share of any interest earnings
which were received during the prior Interest Period by the Trustee on the Funds and Accounts held
under the Inde~ure. Notwithstanding the foregoing, amounts on deposit in each account in the Debt
Se~dce Reserve Fund, and earnings thereon, shall be credited only to the Borrower for which such
account was established.
(b) The credits provided for in (a) shall not be given to the extent the Borrower is in
default in payment of its Loan Repayments. If past-due Loan Repayments are later collected from
such defaulting Borrower, the amount of the missed credit shall, to the extent of the amount
collected, be credited in proportion to the amount of credit missed, to the now non-defaulting
Borrower from the past-due Loan Repayments.
(c) The credits may be accutm~l~ted. If the credit allowable for an Interest Period is more
than required on the next ensuing Interest Payment Date to satisfy the current Loan interest
repayment, it may be used on the following Interest Payment Date.
SECTION 5.05. OBLIGATIONS OF BORROWER UNCONDITIONAL. Subject in all
respects to the provisions of this Loan Agreement, including but not limited to Section 2.02(a) and
(1) hereof, the obligations of Borrower to make the Loan Payments required hereunder and to
· perform and observe the other agreements on its part contained herein, shall be absolute and
unconditional, and shall not be abated, rebated, set-off, reduced, abrogated, terminated, waived,
diminished, postponed or otherwise modified in any manner or to any extent whatsoever, while any
Bonds remain outstanding or any Loan Repayments remain unpaid, regardless of any contingency,
act of God, event or cause whatsoever. This Loan Agreement shall be deemed and construed to be
a "net coahact," and Borrower shall pay absolutely net the Loan Repayments and all other payments
required hereunder, regardless of any rights of set-off, recoupmenL abatement or counterclaim that
Borrower might otherwise have against the Council, the Trustee, the Bond Insurer or any other party
or parties.
SECTION 5.06. REFUNDING BONDS. In the event the Bonds are refunded, all references
in this Loan Agreement to Bonds shall be deemed to refer to the refunding bonds or, in the case of
a crossover refunding, to the Bonds and the refunding bends (but Bonower shah never be responsible
for any debt se~ice on or fees relating to crossover refunding bonds which are covered by earnings
on the escrow fired established fi.om the proceeds of such bonds). The Council agrees not to issue
bonds or other debt obligations to refund the Bonds without the prior written consent of the
Authorized RepresenUttive of the Borrower.
SECTION 5.07. PREPAYMENT. The Loan may be prepaid in whole or in part by the
Borrower on the dates and in the amounts on which the Bonds are subject to optional redemption
pursuant to Section 3.01 of the Indenture, it'any.
23
ARTICLE VI
DEFEASANCE
This Loan Agreement shall continue to be obligato~j and binding upon the Borrower in the
performance of the obligations imposed by this Loan Agreement and the repayment of all sums due
by the Borrower under this Loan Agreement shall continue to be secured by this Loan Agreement as
provided herein until all of the indebtedness and all of the payments required to be made by the
Borrower shall be fully paid to the Council or the Trustee. Provided, however, ii; at any time, the
Borrower shall have paid, or shall have made provision for payment ot~ the principal amount of the
Loan, intel~est thereon and redemption premiums, if any, with respect to the Bonds, then, and in that
event, the pledge of and lien on the revenues pledged to the Council for the benefit of the holders of
the Bonds shall be no longer in effect and all future obligations of the Borrower under this Loan
Agreement shall cease. For purposes of the preceding sentence, deposit of sufficient cash and/or
Governmental Obligations in irrevocable trust with a banking insfi~m'on or trust company, for the sole
benefit of the Council in respect to which such Governmental Obligations, the principal and interest
received will be sufficient to make timely payme~ of the principal, interest and redemption premiums,
if any, on the Outstanding Bonds, shall be considered "provision for payment."
Nothing herein shall be deemed to require tile Council to call any of the outstanding Bonds
for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Council in determining whether to exercise any such option for early
redemption.
ffthe Borrower shall make advance payments to the Council in an amount sufficient to retire
the Loan of the Borrower, including redemption premium and accrued interest to the next succeeding
redemption date of the Bonds, all future obligations of the Borrower under this Loan Agreement shall
cease, except as provided in Section 4.02 hereof.
24
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION7.01. ASSIGNMENT BY COUNCIL. The Borrower expressly acknowledges
that this Loan Agreement and the obligations of the Bon'ower to make payments hereunder (with the
exception of certain of the Council rights to indemnitication, fees, notices and expenses), have been
pledged and assigned to the Trustee as security for the Bonds under the Indenture, and that the
Trustee shall be ~tled to act hereunder and thereunder in the place and stead of the Council whether
or not the Bonds are in default.
SECTION 7.02. ASSIGNMENT BY BORROWER. This Loan Agreement may not be
assigned by the Borrower for any reason without the express prior written consent of the Council,
the Bond Insurer and the Trustee.
SECTION 7.03. PAYMENTS BY THE BOND INSUREK The Borrower acknowledges
that payment under this Loan Agreement from funds r~c~ved by the Trustee or Bondholders from
the Bond Insurer do not constitute payment under this Loan Agreement for the purposes hereof or
ful~llnlent of its obligations hereunder.
25
ARTICLE VIII
EVENTS OF DEFAULT AND REIV~DIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED. The following shall be "Events of
Default" under this Loan Agreement and the terms "Event of Default" and "Default" shall mean
(except where the context clearly indicates otherwise), whenever they are used in this Loan
Agreement, any one or more of the following events:
(a) Failure by the Borrower to timely pay any Loan Repayment, when due, so long as the
Bonds are outstanding, and failure by the Borrower to timely pay any other payment required to be
paid hereunder on the date on which it is due and payable;
Co) Failure by the Borrower to observe and perform any covenant, condition or agreement
other than a failure under (a), on its part to be observed or performed under this Loan Agreement,
for a period of thirty (30) days lffier notice of the failure, unless the Council, the Bond Insurer and
the Trustee shall a~ee in writing to an extension of such time prior to its expiration; provided,
however, if the failure stated in the notice can be wholly cured within a period of time not materially
detrimental to the rights of the Council, the Bond Insurer or the Trustee, but cannot be cured within
the applicable 30-day period, the Council, the Bond Insurer and the Trustee will not unreasonably
withhold their conseut to an extension of such time if corrective action is instituted by the Borrower
within the applicable period and diligently pursued until the failure is corrected;
(c) Any warranty, representation or other statement by the Borrower or by an officer or agent
of the Borrower contained in this Loan Agreement or in any instrument furnished in compliance with
or in reference to this Loan Agreement, is false or misleading in any material respect when made;
(d) A petition is flied against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readju~hf~ent of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereal~er in effect, and is not dismissed within 60 days of such filing;
(e) The Borrower files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolulion or liquidation law of any jurisdiction, whether now or hereaRer in effect, or consents to
the filing of any petition against it under such law;
(f) The Borrower admits insolvency or bankruptcy or its inability to pay its debts as they
become due or is generally not paying its debts as such debts become due, or becomes insolvent or
bankrupt or makes an assignmen~ for the benefit of creditors, or a custodian (including without .
limitation a receiver, liquidator or trustee) of the Borrower or any of its property is appointed by
court order or takes possession thereof and such order remains in effect or such possession continues
for more than 60 days;
26
(g) Default under any agreement to which Borrower is a party evidencing, securing or
otherwise respecting any indebtedness of the Borrower outstanding in the amount of $100,000 or
more il~ as a resull thereot~ such indebtedness may be declared immediately due and payable or other
remedies may be exercised with respect thereto;
(h) Any material provision of this Loan Agreement shall at any time for any reason cease to
be valid and binding on Borrower, or shall be declared to be null and void, or the validity or
enforceability of this Loan Agreement shall be contested by Borrower or any governmental agency
or authority, or if Borrower shall deny any further liability or obligation under this Loan Agreement;
or
(i) Final judl~ent for the payment.of money in the amount of $250,000 or more is rendered
against Borrower and stany time after 90 days from the entry thereof; unless otherwise provided in
the final judgment, (i) such judgment shall not have been discharged, or (ii) Borrower shall not have
taken and be diligently prosecuting an appeal therefrom or from the order, decree or process upon
which or pursuant to which such judgment shall have been granted or entered, and have caused the
execution of or levy under such judgment, order, decree or process of the enforcement thereof to
have been stayed pending determination of such appeal, provided that such execution and levy would
materially adversely affect the Borrower's ability to meet its obligations hereunder; or (iii) Borrower
is not obligated with respect to such judgment pursuant to the provisions of Chapter 768, Florida
Statutes.
SECTION 8.02. NOTICE OF DEFAULT. The Borrower agrees to give the Trustee, the
Bond Insurer and the Council prompt written notice if any petition, assignment, appointment or
possession referred to in Section 8.01(d), 8.01(e) and 8.01(f) is filed by or against the Borrower or
of the ocaurence of any other event or cundflion which constitutes a Default or an Event of Default,
or with the passage of time ortho giving of notice would constitute an Event of Default, immediately
upon becoming aware of the existence thereof.
SECTION 8.03. REMEDIES ON DEFAULT. Whenever any Event of Defanlt referred to
in Section 8.01 hereof shall have happened and be continuing, the Council or the Trustee sbs!l, with
the w~itten consent oftbe Bond Insurer or upon the direction of the Bond Insurer, in addition to any
other remedies herein or by law provided, have the fight, at its or their option without any further
demand or notice, to take such steps and exercise such remedies as provided in Section 9.02 of the
Indenture, and, without limitation, one or more of the following:
(a) Declare all Loan Payments, in an amount equal to 100% oftbe principal amount thereof
plus all accrued interest thereon to the date on which such Loan Repayments shall be used to redeem
Bonds pursuant to Section 3.02 of the Indenture and all other amounts due hereunder, to be
imrne~_is~ely due and payable, and upon notice to the Borrower the same shall become immediately
due and payable by the Borrower without further notice or demand.
27
CO) Take whatever other action at law or in equity which may appear necessary or desirable
to collect amounts then due and there~er to become due hereunder or to enforce any other of its or
their fights hereunder.
SECTION 8.04. [THIS SECTION RESERVED].
SECTION 8.05. NO REM~DY EXCLUSIVE; WAIVER, NOTICE. No remedy herein
conferred upon or reserved to the Council or the Trustee is intended to be exclusive and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this Loan
Agreement or now or herea_qer existing at law or in equity. No delay or omission to exercise any
right, remedy or power shall be construed to be a waiver thereof~ but any such right, remedy or power
may be exercised fi.om time to time and as often as may be deemed expedient. In order to entitle the
Council or the Trustee to exercise any remedy reserved to it in this Article VIII, it shall not be
necessary to give any notice other than such notice as may be required in this Article VIII.
SECTION 8.06. APPLICATION OF MONEYS. Any moneys collected by the Council or
the Trustee pursuant to Section 8.03 hereof shAl! be applied (a) first, to pay any attome3/s fees or
other expemas owed by Borrower pursuant to Section $.03(b)(3) and (4) hereof; Co) second, to pay
interest due on the Loan, (¢) third, to pay principal due on the Loan, (d)-fourth, to pay any other
amounts due hereunder, and (e) faffil, to pay interest and principal on the Loan and other amounts
payable hereunder but which are not due, as they become due (in the same order, as to amounts
which come due simultaneously, as in (a) through (d) in this Section 8.06).
28
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, certificates or other communication hereunder shall
be sufficiently given and shall be deemed given when hand delivered or mailed by registered or
certified mail, postage prepaid, to the parties at the following addresses:
Council: Florida Municipal Loan Council
cio Florida Leasue of Cities
301 Bronoush Sweet
Tallahassee, Florida 32301
Trustee, Paying Agent
and Registrar:
Bond Insurer:
Borrower:
with a copy to:
Any of the above parties may, by notice in writin& given to the others, designate any further
or different addresses to wi-rich subseque~ notices, certificates or other commu~cations shall be sent.
SECTION 9.02. BINDING EFFECT. This Loan Asreement shall inure to the benefit of and
shall be binding upon the Council and the Borrower and their respective successors and assigns.
SECTION 9.03. SEVERABILITY. In the event any provision of the Loan Asreement shall
be held.invalid or unenforceable by any court of competent jurisdiction, such holdin$ shall not
invalidate or render unenforceable any other provision hereof.
29
SECTION 9.04. AMENDMENTS, CHANGES AND MODIFICATIONS. This Loan
Agreement may be amended by the Council and the Borrower as provided in the Indenture; provided,
however, that no ~ach amendment shall be effective unless it shall have been consented to in writing
by the Bond Insurer.
SECTION 9.05. EXECUTION IN COUNTF_RPARTS. This Loan Agreement may be
simultaneously executed in several counterparts, each of which, when so executed and delivered, shall
be an original and all of which shall constitute but one and the same instrument.
SECTION 9.06. APPLICABLE LAW. This Loan Agreement shall be guvemed by and
construed in accordance with the laws of the State of Florida.
SECTION 9.07. BENEFIT OF BONDHOLDERS; COMPLIANCE WITH ENDENTURE.
This Loan Agreement is executed in part to induce the purchase by others of the Bonds.
Accordingly, all covenants, agreements and representations on the part of the Borrower and the
Council, as set forth in this Loan Agreement, are hereby declared to be for the benefit of the holders
from time to time ofthe Bonds. The Borrower covenants and agrees to do all things within its power
in order to comply with and to enable the Council to comply with all requirements and to fulfill and
to enable the Council to fulfill all covenants of the Indenture.
SECTION 9.08. CONSENTS AND APPROVALS. Whenever the written consent or
approval of the Council shall be required under the provisions of this Loan Agreement, such consent
or approval may be given by an Authorized Representative of the Council or such other additional
persons provided by law 0r by rules, regulations or resolutions of the Council.
SECTION 9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF
COUNCIL AND BORROWER. No recourse shall be had for the payment of the principal of or
premium or interest hereu~xier or for any claim based thereon or upon any representation, obligation,
covena~ or agreement in this Loan Agreement against any past, present or future oflficer, member,
counsel, employee, director or agent, as such, of the Council or the Borrower, either directly or
through the Council or the Borrower, or respectively, any successor public or private corporation
thereto under any rule of law or equity, statute or constitution or by the enforcement of any
assessment or ponalty or otherwise, and ail such liability of any such officers, members, counsels,
employees, directors or agents as such is hereby expressly waived and released as a condition of and
consideration for the execution of this Loan Agreement.
SECTION 9.10. CAPTIONS. The captions or headings in this Loan Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions of
sections of this Loan Agreemem.
SECTION 9.11. NO PECUI~ARY LIABILITY OF COUNCIL. No provision, covenant
or agreement contained in this Loan Agreement, or any obligation here~n imposed upon the Council,
or the breach thereot~ shall constitute an indebtedness or liability of the State or any political
3O
subdivision or municipal corporation of the State or any public corporation or govemmemal agency
existing under the laws thereof other than the Council. In making the agreements, provisions and
covenants set forth in this Loan Atp'eement, the Council has not obligated itself except with respect
to the application of the revenues, income and all other property as derived herefi'om, as hereinabove
provided.
SECTION 9.12. PAYMENTS DUE ON HOLIDAYS. With the exception of Basic
Payments, if the date for making any payment or the last date for performance of any act or the
exerdse of any fight, as provided in this Loan Agreement, shall be other than on a Business Day, such
payments may be made or act performed or fiffht exercised on tbe next succeeding Business Day with
the same force and effect as if done on the nominal date provided in this Loan Agreement.
SECTION 9.13. CALCULATIONS. Interest shall be computed on the basis ora 360-day
year of twelve 30-day months.
SECTION 9.14. TIME OF PAYMENT. Any Loan Repaymant or other payment hereunder
which is received by the Trustee or Council after 2:00 p.m. (New York time) on any day shall be
deemed received on the following Business Day.
31
IN WITNESS WHEREOF, the Florida Municipal Loan Council has caused this Loan
Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attested
by its duly authorized officers and the City of , Florida, has caused this Loan
Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attached
by its duly authorized officers. All of the above occurred as of the date first above written.
(SEAL) FLORIDA MUNICII~AL LOAN COUNCIL
ATTEST:
By:
Name:
Title:
By:
Name:
Tide:
(SEAL) CITY OF , FLORIDA
By:
Name:
Title:
ATTESTED BY:
By:
Name:
Tide:
Approved as to form and legality
this day of ,1999.
City Attorney
32
EXHIBIT A
CITY OF , FLORIDA
USE OF LOAN PROCEEDS
DESCRIPTION OF PRO~ECT TO BE ACQUIRF-r) OR CONSTRUCTED
TOTAL AMOUNT
TO BE FINANCED
PROJECT
A-1
EXI-n~IT B
[CERTIF~D RESOLUTIONS OF THE BORROWER]
[See Document No. ]
B-1
EXHIBIT C
OPh'qlON OF BORROWER'S COUNSEL
[Letterhead of Counsel to Borrower]
[Date of the Closing]
C-1
E~IT D
DEBT SERVICE SCI-IF~ULE
Principal Interest
Date Amounts Rate Interest Total
[TO COM~]
D-I
EXHIBIT D
FORM OF TRUST INDENTURE
Exhibit D
FLORIDA MUNICIPAL LOAN COUNCIL,
Issuer
and
[Name of Trustee],
Trustee
TRUST INDENTURE
$
Florida Municipal Loan Council
Revenue Bonds, Series 199-
Dated as of
This instrument also constitutes a security agreement under the
laws of the State of Florida.
TABLE OF CONTENTS
Page
RECITALS 1
GRANTING CLAUSES 2
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.01. Definitions . . 5
SECTION 1.02. Rules of Interpretation 13
ARTICLE II
THE BONDS
SECTION 2.01. Authorization; Book-Entry System 15
SECTION 2.02. Maturity and Interest Rate Provisions 17
SECTION 2.03. Payment Provisions 18
SECTION 2.04. Registered Bond Payment-Concerning
the Bond Insurance 18
SECTION 2.05. Payments in Advance of Scheduled
Maturity Dates by the Bond Insurer 20
SECTION 2.06. Mutilated, Lost, Stolen or Destroyed
Bonds; Bonds Not Delivered for Purchase 20
SECTION 2.07. Transfer and Exchange of Bonds;
Persons Treated as Owners 20
SECTION 2.08. Cancellation of Bonds 21
SECTION 2.09. Temporary Bonds 21
SECTION 2.10. Nonpresentment of Bonds . 22
SECTION 2.11. Form of Bonds 22
ARTICLE III
REDEMPTION OFBONDS
SECTION 3.01. Optional Redemption of the Bonds 23
SECTION 3.02. Mandatory Redemption of the Bonds 23
SECTION 3.03. Notice of Redemption 24
SECTION 3.04. Bonds Due and Payable on Redemption
Date; Interest Ceases To Accrue 25
SECTION 3.05. Cancellation 25
SECTION 3.06. Partial Redemption of Bonds 25
SECTION 3.07. Selection of Bonds To Be Redeemed 26
ARTICLE IV
REVENUES AND FUNDS
SECTION 4.01. Source of Payment of Bonds 27
SECTION 4.02. Creation of F~nds and Accounts 27
SECTION 4.03. Projec= Loan Fund 27
SECTION 4.04. Principal Fund 28
SECTION 4.05. Revenue Fund 28
SECTION 4.06. Cost of Issuance Fund 29
SECTION 4.07. Appli~a=ion of Bond Proceeds 29
SECTION 4.08. Moneys To Be Held in Trust 30
SECTION 4.09. Reports From Trustee 30
SECTION 4.10. Certain Verifications 31
ARTICLE V
PROJECT LOANS
SECTION 5.01. Terms and Conditions of Loans ... 32
SECTION 5.02. Loan Closing Submission 32
ARTICLE VI
SERVICING OF LOANS
ARTICLE VII
INVESTmeNT OF MONEYS
ARTICLE VIII
DISCHARGE OF INDENTURE
ARTICLE IX
DEFAULT PROVISIONS AND RE~DIES OF
TRUSTEE AND BONDHOLDERS
SECTION 9.01. Defaults; Events of Default 4O
SECTION 9.O2. Remedies; Rights of Bondholders 4O
SECTION 9.03. Right of Bondholders to' Direct
ii
Proceedings 42
SECTION 9.04. A~pointment of Receivers 43
SECTION 9.05. Application of Moneys 43
SECTION 9.06. Remedies Vested in Trustee 45
SECTION 9.07. Rights and Remedies of Bondholders 45
SECTION 9.08. Termination of Proceedings ...... 46
SECTION 9.09. Waivers of Events of Default 46
SECTION 9.10. Notice of Defaults Under Section
9.01(b); Opportunity of Council
To Cure Such Defaults 47
SECTION 9.11. Bond Insurer to be Deemed Bondowner;
Rights of Bond Insurer 48
ARTICLE X
THE TRUSTEE
SECTION 10.01. Acceptance of the Trusts 49
SECTION 10.02. Fees, Charges and Expenses of Trustee 51
SECTION 10.03. Notice to Bondholders if Default
Occurs Under Indenture 51
SECTION 10.04. Intervention by Trustee 51
SECTION 10.05. Successor Trustee . 51
SECTION 10.06. Resignation by Trustee 52
SECTION 10.07. Removal of Trustee 52
SECTION 10.08. Appointment of Successor Trustee 52
SECTION 10.09. Concerning Any Successor Trustee 53
SECTION 10.10. Preservation and Inspection of Documents 53
SECTION 10.11. [This Section Reserve~] 53
SECTION 10.12. Paying Agent 54
SECTION 10.13. Registrar 54
SECTION 10.14. Effect on Bondholders of Certain Actions 54
ARTICLE XI
SUPP?:~MENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Not
Requiring Consent of Bondholders 56
SECTION 11.02. Supplemental Indentures Requiring
Consent of Bondholders 56
SECTION 11.03. Notice to S&P and Fitch . 57'
ARTICLE XII
iii
AMENDMENT OF LOAN AG~EEMENTS
SECTION 12.01. Amendments, Etc., Not Requiring
Consent of Bondholders . 58
SECTION 12.02. Amendments, Etc., Requiring
Consent of Bondholders . 58
ARTICLE XIII
GENERAL COVENANTS
SECTION 13.01. Payment of Princigal and Interest . 60
SECTION 13.02. Performance of Covenants~ the Council 60
SECTION 13.03. Instruments of Fur=her Assurance 60
SECTION 13.04. Recording and Filing 61
SECTION 13.05. Rights Under the Loan Agreements 61
SECTION 13.06. Possession and Inspection of Loan
Agreements 61
SECTION 13.07. Provision of Documents to Bondholders 61
SECTION 13.08. Tax Covenants 62
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Consents, e~c., of Bondholders 64
SECTION 14.02 Limitation of Rights 64
SECTION 14.03 The Bond Insurer 64
SECTION 14.04 Severabili~y 65
SECTION 14.05 No~ices 65
SECTION 14.06 Paymen=s Due on Saturdays, Sundays
and Holidays 66
SECTION 14.07. Coun=erpar~s 66
SECTION 14.08. Applicable Provisions of Law 66
SECTION 14.09. Repor=ing Requirements 66
EXHIBIT A: Form of Bond
iv
TRUST INDENTURE
THIS TRUST INDENTURE is made and entered into as of ,
199 , by and between FLORIDA MUNICIPAL LOAN COUNCIL, a legal entity
and-public body corporate and politic duly created and existing
under the Constitution and laws of the State of Florida(the
"Council"), and , a banking association, duly
organized, existing and authorized to accept and execute trusts of
the character herein set out, with its principal corporate trust
office located in , , as Trustee (the "Trustee").
WITNESSETH:
WHERF2%S, all capitalized undefined terms used herein shall
have the meanings set forth in ;trticle I hereof; and
WHEREAS, the Council is duly created and existing pursuant to
the Constitution and laws of the State of Florida, including
particularly Part I of Chapter 163, .Florida Statutes, as amended
(the "Interlocal Act"), and certain resolutions of the City of
Stuart, Florida, the City of Deland, Florida and the City of
Rockledge, Florida; and
WHERF~, the Council, pursuant to the authority of the
Interlocal Act. and other applicable provisions of law, is
authorized, among other things, to issue revenue bonds on behalf of
and for the benefit of the Borrowers in the State in order to
finance, refinance or reimburse the cost of qualified Projects of
Borrowers, such bonds to be secured by instruments evidencing and
securing loans to said Borrowers and to be payable solely out of
the payments made by such Borrowers pursuant to Loan Agreements
entered into between the Borrowers and the Council or from other
moneys designated as available therefor and not otherwise pledged
or used as security, and to enter into a trust indenture providing
for the issuance of such bonds and for their payment and security;
and
WHEREAS, the Council has determined that the public interest
will be best served and that the purposes of the Interlocal Act can
be more advantageously obtained by the Council's issuance of
revenue bonds in order to provide funds to loan to the
participating Borrowers to finance, refinance or reimburse the cost
of qualifying Projects pursuant to Loan Agreements between the
respective Borrowers and the Council; and
WHERF2%S, the Council has previously by a resolution adopted on
(the "Resolution"), authorized the %ssuance of its Florida
Municipal Loan Council Revenue Bonds, in various series in the
aggregate principal amo{unt of not exceeding $500,000,000, pursuant
to certain trust indentures, to provide funds to finance, refinance
or reimburse the cost of q~/alified Projects of the participating
Borrowers; and
WHEREAS, The Council has now determined to issue its
$ Florida Municipal Loan Council Revenue Bonds at this
time pursuant to this Trust Indenture for the purposes more fully
described herein; and
WHEP~, in order to secure the payment when due of the
principal of, premiu/~, if any, and interest on the Bonds, the
Borrowers have covenanted in the Loan Agreements to budget and
appropriate legally available non-ad valorem funds of the Borrowers
sufficient for that purpose'and when so budgeted and appropriated
such funds of the Borrowers shall be the source of payment of
principal of, premiLu~, if any, and interest on the Bonds.
NOW, THEREFORE, THIS TRUST INDENTURE
W I TNE S SETH:
GRANTING CLAUSES
The Council, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of each Series of Bonds by the owners
thereof, and for other good and valuable consideration, the receipt
of which is hereby acknowledged, in order to secure the payment of
the principal of, premiLu~, if any, and interest on each Series of
Bonds according to their tenor and effect and to secure the
performance and observance by the Council of all the covenants
expressed or implied herein and in the Bonds, does hereby grant,
bargain, sell, convey, mortgage, assign, pledge and grant, without
recourse, a security interest in the Trust Estate to the Trustee,
and its successors in trust and assigns forever, for the securing
of the performance of the obligations of the Council hereinafter
set forth:
GRANTING CLAUSE FIRST
A~i right, title and interest of the Council under the Loan
Agreements (excluding fees and expenses payable to the Council and
rights of the Council to inde~u%ity and notices thereunder and
excluding any payments m~de by the Borrowers to comply with the
rebate provisions of Section 148(f) of the Code) if, as and when
entered into by the Borrowers and any documents securing payment
thereunder, including all extensions and renewals of any of the
.terms of the Loan Agreements and any documents securing payment
thereunder, if any, and without limiting the generality of the
foregoing, the present and continuing right to make claim for,
collect, receive and receipt for any income, issues and profits and
other sums of money payable to or receivable by the Council =o
bring actions or proceedings under the Loan Agreements, any
documents securing payment thereunder or for the enforcement
thereof, and to do any and all things which the Council is or may
become entitled to do under or due to its ownership of the
interests hereby granted in the Loan Agreements; provided, however,
that each Series of Bonds shall be secured only by the right, title
and interest of the Council in the Loan Agreement or Agreements to
which such Series of Bonds relates; and
GRANTING CLAUSE SECOND
Ail moneys and securities from time to time held by the
Trustee under the terms of this Indenture (except for moneys and
securities held in the Rebate F~nd); provided, however, that each
Series of Bonds shall be secured only by a security interest in and
claim on the moneys and securities held in the Accounts to which
such Series of Bonds relates; and
GRANTING CLAUSE THIRD
Ail Revenues, any proceeds of Bond Insurance, any and all
other property, rights and interests of every kind and nature from
time to time hereafter by delivery or by writing of any kind
granted, bargained, sold, alienated, demised, released, conveyed,
assigned, transferred, pledged, hypothecated or otherwise subjected
hereto, as and for additional security herewith, by the Council or
any other person on its behalf or with its written consent, and the
Trustee is hereby authorized to receive any and all such property
at any and all times and to hold and apply the same subject to the
terms hereof provided, however, that each Series of Bonds shall be
secured only by a security interest in and claim on the Revenues,
proceeds of Bond Insurance and other property, rights and interests
to which such Series of Bonds relates;
TO HAVE AND TO HOLD all and singular the Trust Estate, whether
now owned or hereafter acquired, to the Trustee and its respective
successors in trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and pro-
tection of all present and future owners of the Bonds issued under
and secured by this Indenture without privilege, priority or
distinction as to the lien or otherwise of any of the Bonds over
any of the other Bonds, except as otherwise specifically provided
herein with respect to each Series of Bonds;
3
PROVIDED, HOWEVER, that the holders of the Bonds shall be
entitled to payment only from the Loan Agreements more fully
described in Granting Clause First hereof pledged for the payment
of such Bonds, the Funds and Accounts set forth in Granting Clause
Second hereof established for such Bonds and the Revenues, proceeds
of Bond Insurance and other property, rights and interests
described in Granting Clause Third pledged for the payment of such
Bonds;
AND FURTHER PROVIDED, that if the Council, its successors or
assigns, shall well and truly pay, or cause to be paid, the
principal of, premitu~, if any, and interest on the Bonds due or to
become due thereon, at the times and in the manner mentioned in the
Bonds and as provided in ;trticle II hereof according to the true
intent and meaning thereof, and shall cause the payments to be made
as required under Article II hereof, or shall provide, as permitted
hereby, for the payment thereof in accordance with A~ticle VIII
hereof, and shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to
be kept, performed and observed by it, and shall pay or cause to be
paid to the Trustee and any Paying Agent all-sums of money due or
to become due in accordance with the terms and provisions hereof,
then upon such final payments or deposits as provided in Article
· VIII hereof, this Indenture and the rights hereby granted shall
cease, terminate and be void and the Trustee shall thereupon cancel
and discharge this Indenture and execute and deliver to the Council
such instruments in writing as shall be requisite to evidence the
discharge hereof.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and all of the Trust Estate is
to be dealt with and disposed of, under, upon and subject to the
terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes hereinafter expressed, and the Council has agreed
and covenanted, and does hereby agree and covenant, with the
Trustee and with the respective owners, from time to time, of the
Bonds, or any part thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.01. Definitiona.
Unless the context otherwise requires, the terms defined in
this Section shall, for all purposes of this Indenture and of any
Supplemental Indenture, have the meanings herein specified.
"Accountant" or "Accountants" means an independent certified
public accountant or a firm of independent certified public
accountants.
"Accounts" means the accounts created pursuant to Section 4.02
hereof.
"Act" means collectively, Chapter 163, Part I, Florida
Statutes, Chapter 166, Part II, Florida Statutes, and Chapter 125,
Part I, as amended, and all other applicable provisions of law.
"Additional Payments" means payments required by Section 5.03
of the Loan Agreement.
"Arbitrage Regulations" means the income tax regulations
promulgated, proposed or a991icable pursuant to Section 148 of the
Code, as the same may be amended or supplemented or proposed to be
amended or supplemented from time to time.
"Authorized Denominations" means $5,000 and integral multiples
thereof.
"Authorized Representative" means, when used pertaining to the
Council, the Chairman of the Council and such other designated
members, agents or representatives as may hereafter be selected by
Council resolution and, when used with reference to a Borrower
which is a municipality, means the person performing the functions
of the Mayor or Deputy or Vice Mayor thereof and, when used with
reference to a Borrower which is a County means the person
performing the functions 8f the Chairman or Vice Chairman of the
Board of County Commissioners of such Borrowers, and, when used
with reference to an act or document, also means any other person
authorized by resolution to perform such act or sign such document.
"Basic Payments" means the payments denominated as such in
Section 5.01 of the Loan Agreement.
"Board" means the governing body of the Borrower.
"Bond Counsel" means Bryant, Miller and Olive, P.A., Tampa,
Florida, or any other nationally recognized bond counsel which is
selected by the Council and acceptable to the Trustee.
"Bondholder" or "Holder" or "holder of Bonds" or "Owner" or
"owner of Bonds", whenever used herein with respect to a Bond,
means the person in whose name such Bond is registered.
"Bond Insurance Policy" means the municipal bond insurance
policy of the Bond Insurer which insures payment when due of the
principal of and interest on the Bonds as provided therein.
"Bond Insurance Premium" with respect to the Bonds, means the
premiums payable to the Bond Insurer for the Bond Insurance.
"Bond Insurer" means , and any successor
thereto.
"Bonds" means the Florida Municipal Loan Council Revenue
Bonds, Series 199 issued hereunder.
"Bond Year" means a 12-month period beginning on 1,
ending on and including 31.
"Borrower"'means a governmental unit which has entered into a
Loan Agreement and which is borrowing and using the Loan proceeds
to finance, refinance and/or be reimbursed for, all or a portion of
the costs of one or more Projects.
"Business Day" means a day of the year which is not a Saturday
or Sunday or a day on which banking institutions located in New
York or the State are required or authorized to r-m~in closed or on
which the New York Stock Exchange is closed.
"Certificate," "Statement," "Request," "Requisition" and
"Order" of the Council mean, respectively, a written certificate,
statement, request, requisition or order signed in the name of the
Council by its Chairman, Executive Director or such other person as
may be designated and authorized to sign for the Council. Any such
instrument and supporting opinions or representations, if any, may,
but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so
combined shall be read and construed as a single instrument.
"Closing" means the closing of a Loan pursuant to this
Indenture and a Loan Agreement.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated, proposed, or applicable there-
under.
"Commencement Date" means the date when the term of a Loan
Agreement begins and the obligation of the Borrower thereunder to
make Loan Repayments accrues.
"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost of Issuance Fund" means the fund by that name created by
Section 4.02 hereof.
"Counsel" means an attorney duly at,mitred to practice law
before the highest court of any state and, without limitation, may
include legal counsel for either the Council or the Borrower.
"Default" means an event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both,
become an Event of Default.
"Depository" means the securities depository acting as
Depository under the Indenture, which may be the Council.
~Designated Member" means any designated person selected by
the Council.
"DTC" means The Depository Trust Company, New York, New York,
and its successors and assigns.
"Event of Default" means any occurrence or event specified in
Section 9.01 hereof.
"Financial Newspaper" or "Journal" means The Wall Street
Journal or The Bond Buyer or any other newspaper or journal con-
taining financial news, printed in the English language,
custo~rily p~blished on each business day and circulated in New
York, New York, and selected by the Trustee, whose decision shall
be final and conclusive.
"Fiscal Year" means the fiscal year of the Borrower.
"Fitch" means Fitch IBCA, Inc., organized and existing under
the laws of the State of Delaware, its successors and assigns.
"Funds" means the funds created pursuant to Section 4.02
hereof.
7
"Governmental Obligations" means (a) direct and general obli-
gations of the United States of America, or those which are uncon-
ditionally guaranteed as to principal and interest by the same, and
(b) pre-refunded mtknicipal obligations meeting the following
criteria:
(i) the municipal obligations must be rated AAA by
Standard & Poor's and Aaa by Fitch and may not be callable
prior to maturity or, alternatively, the trustee has received
irrevocable instructions concerning their calling and
redemption;
(ii) the muniqipal obligations are secured by cash or
securities described in clause (a) above (the "Defeasance
Obligations"), which cash or Defeasance Obligations may be
applied only to interest, principal, and premium payments of
such municipal obligations;
(iii) the principal and interest of the Defeasance
Obligations (plus any cash in the fund) are sufficient to meet
the liabilities of the municipal obligatiDns;
(iv) the Defeasance Obligations serving as security for
the municipal obligations must be held by an escrow agent or
a trustee; and
(v) the Defeasance Obligations are not available to
satisfy any other cla~m~, including those against the Trustee
or escrow agent.
Additionally, evidences of ownership of proportionate
interests in future interest and principal payments of Defeasance
Obligations are permissible. Investments in these proportionate
interests are limited to circ~m~tances wherein (a) a bank or trust
company acts as custodian and holds the underlying obligations; (b)
the owner of the investment is the real party in interest and has
the right to proceed directly and individually against the obligor
of the underlying obligations; and (c) the underlying obligations
are held in a special account separate and apart from the
custodian's general assets, and are not available to satisfy any
claim of the custodian, any person claiming through the custodian,
or any person to whom the custodian may be obligated.
"Indenture" means this Trust Indenture dated as of
, between the Council and the Trustee, including any
indentures supplemental thereto, pursuant to which (i) the Bonds
are-authorized to be issued and (ii) the Council's interest in the
Trust Estate is pledged as security for the payment of principal
of, premium, if any, and interest on the Bonds.
8
"Interest Payment Date" means 1 and 1 of
each year.
"Interest Period" means the period commencing on an Interest
Payment Date and ending on the day preceding the next Interest
payment Date, provided that the initial Interest Period shall
commence on the date of issuance of the Bonds.
"Inter!ocal Act" means Chapter 163, Part I, Florida Statutes.
"Interlocal Agreement" means that certain Interlocal Agreement
originally dated as of , 199., among the various
Borrowers executing it from time to time, (u~il the withdrawal of
such members) the original parties to which are the City of Stuart,
the City of Deland and the City of Rockledge.
"Investment Securities" means any of the following invest-
ments:
(a) direct obligations of the United States of America
(including obligations issued or held in book-entry form on the
books of the Department of the Treasury of the United States of
America) or obligations the principal of and interest on which are
fully and unconditionally guaranteed by the United States of
America, including (if such instruments become legal investments
under the laws of the State for moneys held hereunder) instruments
evidencing an ownership interest in securities described in this
clause (a); (b) evidence of ownership of proportionate interest in
Government Obligations described in clause (a) of this definition
limited to circumstances wherein (i) a bank or trust company acts
as custodian and holds the underlying obligations; (ii) the owner
of the investment is the real party in interest and has the right
to proceed directly and individually against the obligor of the
underlying obligations; and (iii) the underlying obligations are
held in a special account separate and apart from the custodian's
general assets, and are not available to satisfy any claim of the
custodian, any person claiming through the custodian, or any person
to whom the custodian may be obligated; (c) interest-bearing demand
or time deposits (including certificates of deposit) in banks
(including the Trustee) and savings and loan associations which
deposits are fully insured by the Federal Deposit Insurance
Corporation ("FDIC") or which are secured at all times by
collateral security (described in clause (a) of this definition) in
which the Trustee has a perfected first lien and which (i) is held
by the Trustee or a third-party agent, (ii) is not subject to liens
and claims of third-parties, (iii) has a market value (valued at
least every 14 days) of no less than the amount of moneys so
invested and interest accrued thereon; (d) investment agreements or
repurchase agreements (the maturity of which is less than thirty
9
(30) days) with a bank or trust company organized under the laws of
any state of the United States or with a national banking associa-
tion, insurance company or government bond dealer reporting to,
trading with and recognized as a primary dealer by the Federal
Reserve Bank of New York and which is a member of The Security
Investors Protection Corporation or with a dealer which is rated
(or the parent company of which is rated) "A" or above by S&P and
Fitch if such investments are fully secured by FDIC or collateral
security described in (a) of this definition, in which the Trustee
has a perfected first lien and which (i) is held by the Trustee or
a third-party agent during the term of such repurchase agreement,
(ii) is not subject to liens or claims of third parties, and
(iii) has a market value (determined at least once every 7 days) at
least equal to 103% of the amo%mt so invested and interest accrued
thereon; and (e) any other investment in which proceeds of the
Bonds may be invested under Florida law, provided that such
investments are approved in writing by the Bond Insurer.
"Liquidation Proceeds" means amounts received by the Trustee
or the Council in connection with the enforcement of any of the
remedies under a Loan Agreement after the occurrence of an "event
of default" under a Loan Agreement which has not been waived or
cured.
"Loan" means a loan to a Borrower from proceeds of a Series of
Bonds to finance a Project or Projects pursuant to a Loan Agreement
in the amount specified in Section 3.01 of the Loan Agreement.
"Loans" means all loans made by the Council under this
Indenture to Borrowers.
"Loan Agreement" or "Loan Agreements" means the Loan Agreement
or Loan Agreements between the Council and the Borrower(s)
participating in the Program with respect to the Bonds, and any
amendments and supplements thereto which are executed for the
purpose of securing repayment of the Loan made by the Council to
such participating Borrower(s) from proceeds of a Series of Bonds
and establishing the terms and conditions upon which such Loans are
to be made.
"Loan Repayment Date" means and thereafter each
and or if such day is not a Business
Day, the next preceding Business Day.
"Loan Repayments" means the payments of principal and interest
and other payments payable by the Borrower pursuant to the
provisions of the Loan Agreement.
10
"Loan Term" means the term provided for in Article IV of the
Loan Agreement.
"Non-Ad Valorem Revenues" means, with respect to a Borrower,
all revenues and taxes of such Borrower derived from any source
whatsoever other than ad valorem taxation on real and personal
property, which is legally available for Loan Repayments.
"Opinion of Bond Counsel" means an opinion by a nationally
recognized bond counsel firm experienced in matters relating to the
exclusion from gross income of interest payable on obligations of
states and their instrumentalities and political subdivisions, and
which is selected by the Council and acceptable to the Trustee.
"Opinion of Counsel" means an opinion in writing of a legal
counsel, who may, but need not be, counsel to the Council, a
Borrower or the Trustee.
"Outstanding" or "Bonds Outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds canceled after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) .Bonds deemed paid under Article VIII hereof; and
(c) Bonds in lieu of which other Bonds have been authen-
ticated under Section 2.06, 2.07 or 2.09 hereof.
"Person" means any individual, corporation, partnership,
association, trust or any other entity or organization including a
government or political subdivision or an agency or instrumentality
thereof.
"Principal Fund" means the fund by that name created by Sec-
tion 4.02 hereof.
"Principal Payment Date" means the maturity date or mandatory
redemption date of any Bond.
"Program" means the Council's program of making Loans under
the Act and pursuant to this Indenture.
"Project" or "Projects" means a governmental undertaking
approved by the governing body of a Borrower for a public purpose,
including the refinancing of any bonded indebtedness.
11
"Project Loan Fund" means the fund by that name created by
Section 4.02 hereof.
"Proportionate Share" means, at the time such calculation is
made, with respect to any Borrower, a fraction the numerator of
which is the outstanding principal amount of the Loan of such
Borrower made from proceeds of the Bonds and the denominator of
which is the outstanding principal amount of all Loans made from
proceeds of the Bonds.
"Purchase Price" means the purchase price of one or more items
of a Project negotiated by a Borrower with the seller of such
items.
"Rating Category" means one of the generic rating categories
of either Fitch or S&P, without regard of any refinement or
graduation of such rating category by a numerical modifier or
otherwise.
"Rebate D/nd" means the fund by that name created by Section
4.02 hereof.
"Record Date" means, with respect to any Interest Payment
Date, the fifteenth day of the calendar month preceding such
Interest Payment Date.
"Red-mption Price" means, with respect to any Bond (or portion
thereof), the principal amount of such Bond (or portion) plus the
applicable premium, if any, payable upon redemption pursuant to the
provisions of such Bond and this Indenture.
"Representation Letter" shall mean the Representation Letter
from the Council to the Depository.
"Revenue F%md" means the fund by that name created by Section
4.02 hereof and all accounts therein.
"Revenues" means all Loan Repayments paid to the Trustee for
the respective Accounts of the Borrowers for deposit in the Revenue
Fund and the Principal Fund to pay principal of, premium, if any,
and interest on the Bonds upon redemption, at maturity or upon
acceleration of maturity, or to pay interest on the Bonds when due,
and all receipts of the Trustee credited to the Borrower under the
provisions of the related Loan Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., a corporation organized and
.existing under the laws of the State of New York, its successors
and their assigns, and, if such corporation shall be dissolved or
12
liquidated or shall no longer perform the functions of a securities
rating agency, "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the
council, with the approval of the Bond Insurer, by notice to the
Trustee.
"Series" means each series of obligations authenticated and
delivered on original issuance and identified pursuant to this
Indenture in addition to the Series Bonds, if any, and any
obligations thereafter authenticated and delivered in lieu of or in
substitution therefor.
"Special Record Date" means the date established pursuant to
Section 9.05 as a record date for the payment of defaulted interest
on the Bonds.'
"State" means the State of Florida.
"Supplemental Indenture" means any indenture hereafter duly
authorized and entered into between the Council and the Trustee,
supplementing, modifying or amending this Indenture, but only if
and to the extent that such Supplemental Indenture is.specifically
authorized hereunder.
"Trustee" means , as Trustee, or any
successor thereto under this Indenture.
"Trust Estate" means the property, rights, Revenues and other
assets pledged and assigned to the Trustee pursuant to the Granting
Clauses hereof.
SECTION 1.02. Rulee of Intezl~re~at~on. For all purposes of
this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(a) "This Indenture" means this instrument as originally
executed and as it may from time to time be supplemented,
modified or amended by any Supplemental Indenture.
(b) Ail reference in this instrument to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words "herein",
"hereof", "hereunder" and "herewith", and other words of
similar import, refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
13
(c) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular.
(d) Ail accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles.
(e) The terms defined elsewhere in this Indenture shall
have the meanings therein prescribed for them.
(f) Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and
neuter genders.
(g) The headings or captions used in this Indenture are
for convenience of reference only and shall no~ define or
limit or describe any of the provisions hereof or the scope or
intent hereof.
14
ARTICLE II
THE BONDS
SECTION 2.01. Authorization; Book-Entry System.
(a) Authorization, Issuance and Execution of Bonds. Bonds
may be issued hereunder from time to time in order to obtain moneys
to carry out the purposes of the Program for the benefit of the
Council and the Borrowers. The Bonds shall be designated as
"Florida Municipal Loan Council Revenue Bonds, Series " At
any time after the execution of this Indenture, the Council may
execute and the Trustee shall authenticate and, upon request of the
Council, deliver Series __ Bonds in the aggregate principal
amount of Dollars ($ ). This Indenture
constitutes a continuing agreement with the Owners from time to
time of the Bonds appertaining thereto to secure the full payment
of the principal of, premium, if any, and interest on all such
Bonds subject to the covenants, provisions and conditions herein
contained.
The Bonds shall be issuable as fully registered bonds without
coupons and shall be executed in the name and on behalf of the
Council with the manual or facsimile signature of its Chairman,
under its seal attested by the manual or facsimile signature of its
Vice-Chairman or Designated Member. Such seal may be in the form
of a facsimile of the Council's seal and may be reproduced,
imprinted or impressed on the Bonds. The Bonds shall then be
delivered to the Registrar, as hereinafter defined, for
authentication by it. In case any of the officers who shall have
signed or attested any of the Bonds shall cease to be such officer
or officers of the Council before the Bonds so signed and attested
shall have been authenticated or delivered by the Registrar or
issued by the Council, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such authentication,
delivery and issue, shall be as binding upon the Council as though
those who signed and attested the same had continued to be such
officers of the Council, and also any Bond may be signed and
attested on behalf of the Council by such persons 'as at the actual
date of execution of such Bond shall be the proper officers of the
Council although at the nominal date of such Bond any such person
shall not have been such officer of the Council.
Only such of the Bonds as shall bear thereon a certificate of
authentication s~bstantially in the form hereinafter recited,
manually executed by the Registrar as hereinafter defined, shall be
valid or obligatory for any purpose or entitled to the benefits of
15
this Indenture, and such certificate of the Registrar shall be
conclusive evidence that the Bonds so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to
the benefits of this Indenture.
(b) Each Series of Bonds shall be initially issued in the
form of a separate single certificated fully registered Bond for
each of the maturities of the Series. Upon initial issuance, the
ownership of each such Bond shall be registered in the registration
books kept by the Registrar in the name of Cede & Co., as nominee
of DTC. Except as provided in this Section, all of the outstanding
Bonds of a Series shall be registered in the registration books
kept by the Registrar in the name of Cede & Co., as nominee of DTC.
With respect to Bonds registered in the registration books
kept by the Registrar in the name of Cede & Co., as nominee of DTC,
the Council, the Registrar and the Paying Agent shall have no
responsibility or obligation to any such Participant or to any
indirect participant. Without limiting the immediately preceding
sentence, the Council, the Registrar and the Paying Agent shall
have no responsibility or obligation with respect to (i) the
accuracy of the records of DTC, Cede & Co. or any Participant with
respect to any ownership interest in the Bonds, (ii) the delivery
to any Participant or any other person other than a Bondholder, as
shown in the registration books kept by the Registrar, of any
notice with respect to the Bonds, including any notice of redemp-
tion, or (iii) the payment to any Participant or any other person,
other than a Bondholder, as shown in the registration books kept by
the Registrar, of any amount with respect to principal of, premium,
if any, or interest on the Bonds. The Council, the Registrar and
the Paying Agent may treat and consider the person in whose name
each Bond is registered in the registration books kept by the
Registrar as the holder and absolute owner of such Bond for the
purpose of payment of principal, premium and interest with respect
to such Bond, for the purpose of giving notices of redemption and
other matters with respect to such Bond, for the purpose of
registering transfers with respect to such Bond, and for all other
purposes whatsoever. The Paying Agent shall pay all principal of,
premium, if any, and interest on the Bonds only to or upon the
order of the respective Holders, as shown in the registration books
kept by the Registrar, or their respective attorneys duly
authorized in writing, as provided herein and all such payments
shall be valid and effective to fully satisfy and discharge the
Council's obligations with respect to payment of principal of,
premium, if any, and interest on the Bonds to the extent of the sum
or sums so paid. No person other than a Holder, as shown in the
registration books kept by the Registrar, shall receive a
certificated Bond evidencing the obligation of the Council to make
payments of principal, premium, if any, and interest pursuant to
16
the provisions hereof. Upon delivery by DTC to the Council of
written notice to the effect that DTC has determined to substitute
a new nominee in place of Cede & Co., and subject to the provisions
herein with respect to Record Dates, the words "Cede & Co." in this
Indenture shall refer to such new nominee of DTC; and upon receipt
of such a notice the Council shall promptly deliver a copy of the
same to the Registrar and the Paying Agent.
Upon receipt by the Council of written notice from DTC {i) to
the effect that DTC has received written notice from the Council to
the effect that a continuation of the requirement that all of the
outstanding Bonds be registered in the registration books kept by
the Registrar in the name of Cede & Co., as nominee of DTC, is not
in the best interest of the beneficial owners of the Bonds or (ii)
to the effect that DTC is unable or unwilling to discharge its
responsibilities and no substitute depository willing to undertake
the functions of DTC hereunder can be found which is willing and
able to undertake such functions upon reasonable and customary
terms, the Bonds shall no longer be restricted to being registered
in the registration books kept by the Registrar in the name of Cede
& Co., as nominee of DTC, but may be registered in whatever name or
names Holders transferring or exchanging Bonds shall designate, in
accordance with the provision hereof.
SECTION 2.02. Maturity and Interest Rate Provisions. The
Series Bonds shall be dated as of 1, and shall bear
interest payable on 1 and 1 and on each Interest
Payment Date thereafter. They shall be in the denomination of
$5,000 each, or integral multiples thereof, and shall be numbered
consecutively from R-1 upward. The Series __ Bonds shall bear
interest and shall mature at the rates, in the amounts and on the
dates set forth below:
SECTION 2.03. Payment Provisions. The principal of, premium,
if any, and interest on the Bonds shall be payable in any coin or
currency of the United States of America which on the respective
dates of payment thereof is legal tender for the payment of public
and private debts. Principal of and premium, if any, on the Bonds
shall be payable at the principal corporate trust office of the
Trustee, or any successor paying agent and registrar appointed
pursuant to the provisions of Sections 10.12 and 10.13 hereof (the
"Paying Agent" or "Registrar"), and payment of the interest on each
Bond shall be made by the Paying Agent on each Interest Payment
Date to the person appearing as the registered owner thereof on the
bond registration books maintained by the Registrar as of the close
· of business on the Record Date preceding the Interest Payment Date
(or, if interest on the Bonds is in default and the Bond Insurer is
17
in default under the Bond Insurance, a Special Record Date
established pursuant to Section 9.05), by check mailed to such
registered owner at his address as it appears on such registration
books or at the prior written request and expense of an owner of
$1,000,000 in aggregate principal amount of Series __ Bonds, by
bank wire transfer to a domestic bank account, notwithstanding the
cancellation of any such Bonds upon any exchange or transfer
thereof subsequent to the Record Date or Special Record Date and
prior to such Interest Payment Date. Payment of the principal (or
redemption price) of all Bonds shall be made upon the presentation
and surrender of such Bonds as the same shall become due and pay-
able.
SECTION 2.04. Registere(l Bond Payment-Concerning the Bond
Insurance. So long as the Bond Insurance shall be in full force
and effect, the Council and the Trustee hereby agree to comply with
the following provisions:
[insert insurance provisions]
SECTION 2.05. Paya~n~s in A~hrance of S~hoc~uloc~Ma~urit-yDa~es
by ~o ~ Inst. In the event that the Bond Insurer shall make
any pa~ents of principal of, and/or interest on any of the Bonds
pursuant to the te~s of the Bond Insurance and the Bonds are
accelerated or are rede~ed pursuit to Section 3.02 hereof, the
Bond Insurer ~y at any time and at its sole option pay all or a
portion of ~ts due under the Bonds to the Bondo~ers prior to
the s~a=ed ~turity dates thereof.
SECTION 2.06. ~la~, ~s~, Stol~ o= Des~ ~nds;
~ Not ~i~ for ~se. If any Bond is mutilated, lost,
stolen or destroyed, the Co~cil shall execute and the Registrar
shall authenticate a new Bond of the s~e date, maturity and
denomination as that mutilated, lost, stolen or destroyed; provided
that in the case of any mutilated Bond, such mutilated Bond shall
first be s~rendered to =he Regis=rat, and in the case of any lost,
stolen or destroyed Bond, there shall be first furnished to the
Council and the Registrar evidence of such loss, theft or
destruction satisfactory to the Co~cil ~d the Registrar, together
with ~ ind-m-ity satisfactory to th~. In the event ~y such Bond
shall have ~tured or been called for red~ption, instead of
issuing a duplicate Bond, the Paying Agent may pay the s~e. The
Council and the Registrar may charge the ~er of such Bond with
their reason~le fees and expenses in co~ection with replacing any
Bohd mutilated, lost, stolen or destroyed.
18
sECTION 2.07. Transfer andExchange of Bonds; Persons Treated
as Owners. The Council shall cause books for the registration and
transfer of the Bonds, as provided in this Indenture, to be kept by
the Registrar. Upon surrender for transfer of any Bond at the
principal corporate trust office of the Registrar, accompanied by
an assignment duly executed by the registered Owner or his attorney
duly authorized in writing, the Council shall execute and the
Registrar shall authenticate and deliver in the name of the
transferee or transferees a new Bond or Bonds for a like aggregate
principal amount.
Bonds may be exchanged at the principal corporate trust office
of the Registrar for a like aggregate principal amount of Bonds of
other Authorized Denominations. The Council shall execute and the
Registrar shall authenticate and deliver Bonds which the Bondholder
making the exchange is entitled to receive, bearing numbers not
contemporaneously outstanding.
The Registrar shall not be required to (i) transfer or
exchange any Bonds during the ten (10) days next preceding any day
upon which notice of redemption of Bonds is-to be mailed or
(ii) transfer or exchange any Bonds selected, called or being
called for redemption in whole or in part.
The person in whose name any Bond shall be registered shall be
deemed and regarded by the Trustee, the Registrar and the Council
as the absolute Owner thereof for all purposes, and payment of or
on account of the principal of, pr,m~m, if any, or interest on any
Bond shall be made only to or upon the written order of the
registered Owner thereof or his legal representative, subject to
Section 2.03 hereof, and neither the Council nor the Trustee nor
the Registrar shall be affected by any notice to the contrary, but
such registration may be changed as hereinabove provided. Ail such
payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or s%uns paid.
A reasonable transfer charge may be made for any exchange or
transfer of any Bond and the Registrar shall require the payment by
any Bondholder requesting exchange or transfer of a sum sufficient
to cover any tax or other governmental charge required to be paid
with respect to such exchange or transfer and a sum sufficient to
pay the cost of preparing each new Bond issued upon such exchange
or transfer.
SECTION 2.08. Cmn~llat-%on of Bonc~. Whenever any Out-'
standing Bond shall be delivered to the Registrar for cancellation
pursuant to this Indenture, upon payment of the principal amount
thereof or for replacement pursuant to Section 2.06 hereof or for
19
transfer or exchange pursuant to Sections 2.07 or 2.09 hereof, such
Bond shall be canceled by the Registrar, and evidence of such
cancellation shall be furnished by the Registrar to the Council.
SECTION 2.09. Temporary Bonds. Pending the preparation of
definitive Bonds, the Council may execute and the Registrar shall
authenticate and deliver temporary Bonds. T-mporary Bonds shall be
issuable as fully registered Bonds, of any Authorized Denomination,
and substantially in the form of the definitive Bonds but with such
omissions, insertions and variations as may be appropriate for
temporary Bonds, all as may be determined by the Council.
Temporary Bonds may be issued without specific terms and may con-
~ain such reference to any provisions of this Indenture as may be
appropriate..Every temporary Bond shall be executed by the Council
and authenticated by the Registrar upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Bonds. As promptly as practicable, the Council shall
execute and shall furnish definitive Bonds and thereupon temporary
Bonds may be surrendered in exchange therefor without charge at the
principal corporate trust office of the Registrar, and the
Registrar shall authenticate and deliver iN exchange for such
temporary Bonds a like aggregate principal amount of definitive
Bonds. Until so exchanged, the-temporary Bonds shall be entitled
to the same benefits %mder this Indenture as definitive Bonds.
SECTION 2.10. Nonpresentment ofBonds. In the event any Bond
shall not be presented for payment when the principal thereof
becomes due, either at maturity, or at the date fixed for redemp-
tion thereof, or otherwise, or if any interest check shall no= be
cashed, if funds sufficient to pay such Bond or interest shall have
been made available by the Council to the Trustee for the benefit
of the Owner thereof, all liability of the Council to the Owner
thereof for the payment of such Bond or interest, as the case may
be, shall forthwith cease, terminate and be completely discharged,
and thereupon it shall be the duty of the Paying Agent to hold such
funds, uninvested and without liability for interest thereon, for
the benefit of the Owner of such Bond or interest, as the case may
be, who shall thereafter be restricted exclusively to such funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, said Bond or interest, as the case may
be, provided that any money deposited with the PayingAgent for the
payment of the principal of (and premium, if any) or interest on
any Bond and r-m~ining unclaimed for six years after such principal
(and premium, if any) or interest has become due and payable shall
be paid to the Council, and the Owner of such Bond or interest, as
the case may be, shall thereafter, as an unsecured general
creditor, look only to the Council for payment thereof, and all
liability of the Trustee with respect to s~ch trust money shall
20
thereupon cease; provided, however, that the Trustee, before being
required to make any such payment to the Council, may, at =he
expense of the Council, cause to be published once, in a Financial
Newspaper or Journal, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of
such money then remaining will be paid to the Council.
SECTION 2.11. Form of Bon~s. The Bonds to be issued here-
under, and the certificate of authentication by the Registrar to be
endorsed on all such Bonds, shall be substantially in the form set
forth as Exhibit A hereto, with such variations, omissions and
insertions as are permitted by this Indenture or are required =o
conform the form of Bond to the other provisions of this Indenture
(any portion of such form of Bond may be printed on the back of the
Bonds).
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. Opt.%onal Redemp~on of the Bonds.
The Bonds maturing on or before are not subject to
optional redemption by the Council. The Bonds maturing after
are subject to redemption at the option of the
Council on or after , as a whole at any time, or in
part on any Interest Payment Date, in any manner determined by the
Trustee in its discretion, taking into consideration the maturity
of the Loan being prepaid by a particular Borrower or Borrowers
during the following periods and at the following redemption
prices, expressed as a percentage of the principal amount of the
Bonds to be redeemed, plus accrued interest to the red-mption date:
Redemption Period
(Both Dates Inclusive) Redemption Price
SECTION 3.02. Mandatory Redee~on of the Bonds.
(a) The Bonds maturing on are subject to
mandatory redemption, in part, by lot, at redemption prices equal
to 100% of the principal amount thereof, plus interest accrued to
the redemption date, beginning on and on each 1
thereafter, in the following principal amounts in the following
years:
Principal
Year Amount
(b) The Series Bonds are also subject to mandatory
red-mption at any t/me, in whole or in part, at a redemption price
of the principal amount thereof plus accrued interest to the
redemption date, without pr-m~um, but only with the approval of the
Bond Insurer, from all amountS received by the Trustee as a result
of an acceleration of any Loan or Loans made from the proceeds of
such Series of Bonds ("Liquidation Proceeds"). If Bonds are to bm
redeemed in part by mandatory redemption, the Bonds to be redeemed
will be selected on a proportionate basis from among all of the
· maturities of such Bonds and within each maturity by lot. Bonds to
22
be redeemed in each year on a proportionate basis shall be selected
with such proportionate basis to be determined by the Trustee by
multiplying the total amount of Liquidation Proceeds from such Loan
or Loans by the ratio which the principal portion of scheduled Loan
Repayments of such Loan or Loans in each Bond Year bears to the
total principal amount of such Loan or Loans. The Series of Bonds
which is subject to mandatory redemption will be dependent on the
Loan or Loans which are accelerated.
SECTION 3.03. Notice of Redemption. In the case of every
redemption, the Registrar, at the direction of the Trustee, shall
cause notice of such redemption to be given to the registered Owner
of any Bonds designated for redemption in whole or in part, at his
address as the same shall last appear upon the Bond registration
books by mailing a copy of the redemption notice by first-class
mail at least thirty (30) days prior to the redemption date. The
failure of the Registrar to give notice to a Bondholder or any
defect in such notice shall not affect the validity of the redemp-
tion of any other Bonds. A copy of any such notice shall also be
sent by the Registrar to the Bond Insurer and any person necessary
to ensure compliance by the Council with applicable rules and
regulations regarding such notices.
Each notice of redemption shall specify the date fixed for
redemption, the red-mption price to be paid, the place or places of
payment, that payment will be made upon presentation and surrender
of the Bonds to be redeemed, that interest, if any, accrued to the
date fixed for red-mption will be paid as specified in said notice,
and that on and after said date interest thereon will cease to
accrue. If less than all the Outstanding Bonds are to be redeemed,
the notice of redemption shall specify the numbers of the Bonds or
portions thereof, including CUSIP identification numbers ($5,000 or
any integral multiple thereof) to be redeemed.
The Registrar also shall mail a copy of such notice by regis-
tered or certified mail or overnight delivery service (or by tele-
copy where permitted) for receipt not less than thirty (30) days
before such red-mption date to the following: The Depository
Trust Company, 711 Stewart Avenue, Garden City, New York 11530;
Midwest Securities Trust Company, Capital Structures - Call
Notification, 440 South LaSalle Street, Chicago, Illinois 60605;
Philadelphia Depository Trust Company, Reorganization Division,
1900 Market Street, Philadelphia, Pennsylvania 19103; Attention:
Bond Department; provided, however, that such mailing shall not be
a condition precedent to such redemption and failure so to mail any
such notice shall not affect the validity of any proceedings for
the redemption of Bonds.
23
sECTION 3.04. Bonds Due and Payable on Redemption Date;
Interest ceases To Accrue. On the redemption date, the principal
amount of each Bond to be redeemed, together with the accrued
interest thereon to such date, shall become due and payable; and
from and after such date, notice (if required) having been given
and moneys available solely for such redemption being on deposit
with the Trustee in accordance with the provisions of this Article
III, then, notwithstanding that any Bonds called for redemption
shall not have been surrendered, no further interest shall accrue
on any of such Bonds or portions thereof to be redeemed. From and
after such date of redemption (such notice having been given and
moneys available solely for such redemption being on deposit with
the Trustee), the Bonds or portions thereof to be redeemed shall
not be deemed to be Outstanding hereunder, and the Council shall be
under no further liability in respect thereof.
SECTION 3.05. Canoellation. Ail Bonds which have been
redeemed shall be canceled by the Registrar as provided in SECTION
2.08 hereof.
SECTION 3.06. Partial Redemption of Bonds. Upon surrender
of any Bond in a denomination greater than $5,000 called for
redemption in part only, the Council shall execute and the
Registrar shall authenticate and deliver to the registered Owner
thereof a new Bond or Bonds of authorized denominations in an
aggregate principal amount equal to the unredeemed portion of the
Bond surrendered.
SECTION 3.07. Sel~tion of Bonds To Be Redeemed. The Bonds
shall be redeemed pursuant to Sections 3.01 and 3.02 only in the
principal amount of an Authorized Denomination. The Bonds or
portions of the Bonds to be redeemed shall, except as otherwise
provided in Section 3.02 hereof, be selected by the Registrar by
lot or in such other manner as the Council in its discretion may
deem appropriate.
24
ARTICLE IV
REVENUES AND FUNDS
SECTION 4.01. Source of Payment of Bonds. The Bonds and all
payments by the Council hereunder are limited and special
obligations of the Council and are payable solely out of Revenues
and certain proceeds of the Bonds as authorized by the Constitution
and laws of the State, including particularly the Act, as and to
the extent provided herein. The Bonds and the Council's other
obligations hereunder are solely and exclusively obligations of the
Council to the extent set. forth herein and do not constitute or
create an obligation, general or special, or .debt, liability or
moral obligation of the State or any political subdivision or any
municipal corporation of the State. The Bonds shall not be or
constitute a general obligation of the Council, the State of
Florida or any political subdivision or any municipal corporation
thereof or a lien upon any property owned or situated within the
territorial limits of the Council, the State of Florida or any
political subdivision or any municipal corpora[ion thereof except
the Trust Estate, in the manner provided herein and in the Loan
Agreements. The Loan Agreements do not represent joint liabilities
of the Borrowers executing Loan Agreements with the Council, and
shall be payable solely as provided in such Loan Agreements.
SECTION 4.02. Creation of Func~ and Accounts. There are
hereby established by the Council the following Funds and Accounts
to be held by the Trustee: (1) the Project Loan Fund, with a
Series Account therein, (2) the Principal Fund with a Series
Account therein, (3) the Revenue Fund, with a Series
Account therein, (4) the Cost of Issuance Fttnd, with a Series
Account therein, and (5) the Rebate Fund, with a Series
Account therein, to be held by the Trustee or the Council and
applied as provided in Section 13.08 hereof.
SECTION 4.03. Project Loan Fund. Moneys in the Project Loan
Fund shall be disbursed at Closing to make Loans to Borrowers upon
the submission of the documents by Borrowers as required by, and
upon the terms and conditions specified in, A~ticle V hereof.
Thereafter, such Project Loan Fund monies are held by the
Borrowers. Upon the occurrence of an event of default under a Loan
Agreement and the exercise by the Trustee of the remedy specified
in Section 8.03(a) of such Loan Agreement, any moneys in the
Project Loan Fund not yet disbursed to the defaulting Borrower, if
any, shall be transferred by the Trustee to the Principal Fund and
applied in accordance with the second paragraph of Section 4.04
hereof.
25
SECTION 4.04. Principal Fund. Upon the receipt of Loan
Repayments or Liquidation Proceeds, the Trustee shall deposit in
the appropriate Account of the Principal Fund all payments or
recoveries of principal of Loans or payments to be applied to the
payment of any premium due upon optional redemption of the appro-
priate Series of Bonds.
Amounts in the appropriate Account of the Principal Fund shall
be used as follows: (1) to pay scheduled principal payments of the
appropriate Series of Bonds and (2) to pay the principal of and
premium, if any, on the appropriate Series of Bonds redeemed
pursuant to Section 3.01 or Section 3.02 when required by such
Sections.
Upon acceleration of maturity of a Series Bonds pursuant to
Section 9.02, all amounts in the respective Account of the
Principal Fund shall be used to pay maturing principal of and
interest on the appropriate Series of Bonds.
SECTION 4.05. Revenue Fund. Upon the receipt of Loan Repay-
ments or Liquidation Proceeds or proceeds earmarked for capitalized
interest, the Trustee shall deposit in the appropriate Account of
the Revenue Fund all moneys remaining after the deposits required
by Section 4.04 hereof. Ail investment earnings on amounts in the
Funds and Accounts (except the Rebate Fund) shall be deposited in
the corresponding Account of the Revenue Fund as received. Any
amounts received by the Trustee hereunder which are not required to
be deposited elsewhere shall also be deposited in the appropriate
Account of the Revenue Fund.
Amounts in the appropriate Account of the Revenue Fund shall
be used to make the following payments or transfers in the
following order of priority:
(1) On each Interest Payment Date, to pay interest due
on the appropriate Series of Bonds;
(2) At such times as are necessary, to pay accrued
interest due on the appropriate Series of Bonds redeemed pursuant
to Sections 3.01 or 3.02 hereof;
(3) At such times as are necessary, to pay the fees and
expenses of the Trustee, DTC, the Registrar and the Paying Agent
(including the cost of printing additional Bonds) and the fees and
expenses of the Council (including costs of issuing the Bonds if
insufficient amounts are on hand in the Cost of Issuance Fund), any
counsel consulted by the Council with respect to any Loan, or of
independent Accountants employed pursuant to Section 4.10 hereof;
26
provided, further, that the Bond Insurer may authorize the payment
of any such fees or expenses prior to the payment of interes~ on
the appropriate Series of Bonds, subject to Section 4.1I hereof;
(4) On each Interest Payment Date of each year, all
amounts remaining in an Account within Revenue Fund, other than
fees being collected in installments pursuant to the relevant Loan
Agreement and amounts which will be credited against the relevant
Borrower's next Loan Repayments, shall be deposited in the appro-
priate Account of the Principal Fund, as provided in Section 5.04
of the Loan Agreements.
SECTION 4.06. Cost of Issuance Fund. Moneys in the appro-
priate Account of the Cost'of Issuance Fund shall be used to pay
costs of issuing the appropriate Series of Bonds to the extent not
paid from other sources, which costs may include, all printing
expenses in connection with this Indenture, the Loan Agreements,
the preliminary and final Official Statements for the Bonds and the
Bonds; the underwriters' discount for the initial purchase of the
Bonds; the initial Bond Insurance Premium; administrative expenses
of the Council; and legal fees and expenses of counsel to the
Council, bond counsel and counsel to the Bond Insurer and fees of
the financial advisor to the Council; any accounting, expenses
incurred in counection with determining that the Bonds are not
arbitrage bonds, the Trustee's and the Paying Agent and Registrar's
initial fees and expenses (including attorney's fees), upon the
submission of reql/isitions by the Council signed by an officer of
the Council stating the amount to be paid, to whom it is to be paid
and the reason for such payment, and that the amount of such
requisition is justly due and owing and has not been the subject of
another requisition which was paid and is a proper expense of
issuing such Bonds. Any monies remaining in the Cost of Issuance
Fund on shall be transferred to the appropriate
Account of the Revenue Fund and be credited on a pro rata basis
toward each Borrower's obligation to pay Loan interest, taking into
consideration the discount at which such Loans were made as
specified in Section 3.01 of each Loan Agreement.
SECTION 4.07. A~lioa~on of BoD~ Prooeeds. The proceeds of
the Series Bonds shall be deposited with .the Trustee as
follows:
(i) In the Series Account of the Revenue Fund,
the sum of $ which represents accrued interest;
(ii) In the Series Account of the Cost of Issu-
ance Fund, the sum of $ ;
27
In the Series Account of the Project Loan Fund, the
sum of $ which represents the balance of the pro-
ceeds received from the sale of the Series Bonds.
SECTION 4.08. Moneys To Be Held in Trust. With the exception
of moneys deposited in the Rebate Fund, all moneys required to be
deposited with or paid to the Trustee for the account of any Fund
or A~co~nt established under any provision of this Indenture shall
be held by the Trustee, in trust, and except for moneys deposited
with or paid to the Trustee for the redemption of Bonds, notice of
the redemption of which has been duly given, and except as
otherwise provided in Section 2.10 hereof, shall, while held by the
Trustee, constitute part of the Trust Estate and be subject to the
security interest created hereby.
SECTION 4.09. R~r~s Fro~Trustee. Unless otherwise advised
in writing, the Trustee shall furnish monthly to the Council, the
Bond Insurer and to any Borrower, upon request, on the twentieth
(20th) day of the month following the month in which the Bonds are
delivered, and on the twentieth (20th) day of each month
thereafter, a report on the status of each of the Funds and
Accounts established under this ;trticle IV which are. held by the
Trustee, showing at least the balance in each such Fund or Account
as of the first day of the preceding month, the total of deposits
to and the total of disbursements from each such Fund or Account,
the dates of such deposits and disbursements, and the balance in
each such Fk/nd or Account on the last day of the preceding month.
SECTION 4.19. Certain Verifica~ione. The Council, the
Trustee and/or the Bond Insurer from time to time may cause a firm
of independent Accountants to supply the Council, the Trustee and
the Bond Insurer with such information as the Council, the Trustee
or the Bond Insurer may request in order to determine in a manner
reasonably satisfactory to the Council, the Trustee and the Bond
Insurer all matters relating to (a) the sufficiency of projected
cash flow receipts and disbursements on the Loans and Funds
described herein to pay the principal of and interest on the Bonds
and (b) the actuarial yields on the Loans and on the Bonds as the
same may relate to any data or conclusions necessary to verify that
the Bonds are not arbitrage bonds within the meaning of Section 148
of the Code. Payment for costs and expenses incurred in connection
with supplying the foregoing information shall be paid from moneys
in the Revenue Fund pursuant to Section 4.05(2) hereof.
ARTICLE V
PROJECT LOANS
SECTION 5.01. Terms and Condi~onl of Loans. The Council
will make Loans to Borrowers in order to (i) finance the acquisi-
tion, installation and construction of Projects by Borrowers and
(ii) refund or refinance debt incurred by Borrowers to acquire,
install and construct Projects, all in accordance with provisions
more fully set forth in the Loan Agreements.
SECTION 5.02. Loan Closin~ Sukz~eeion. No Loan shall be made
by the Council unless and until the Bond Insurer has consented in
writing and unless and until the documents required by Section 4.03
of the Loan Agreements are submitted to the Council.
29
ARTICLE VI
SERVICING OF LOANS
The Trustee shall be responsible for calculating payments due
in respect of the Loans, holding collateral pledged in respect of
the Loans, if any, and enforcing the Loans; provided, however, that
the Trustee shall have no duty to take notice of any default in
respect of any Loan (other than a payment default) unless the
Trustee shall be notified of such default in a written instrument.
3O
ARTICLE VII
INVESTMENT OF MONEYS
All moneys in any of the Funds and Accounts shall be invested
by the Trustee in Investment Securities with due regard for the
fiduciary responsibility of the Trustee to maximize investment
income. All Invesr/nent Securities shall be acquired subject to the
limitations set forth in Section 13.08 hereof, at the direction of
the Council, which may be telephonically made and promptly
confirmed in writing, except that Investnnent Securities with
respect to each Borrower's account in the Debt Service Reserve Fund
shall be acquired, subject to the limitations set forth in Section
13.08 hereof, at the direction of the Borrower for which such
account in the Debt Service Reserve Fund was established, which may
be telephonically made and promptly confirmed in writing.
Moneys in the Funds and Accounts shall be invested in Invest-
ment Securities with respect to which payments of principal thereof
and interest thereon are scheduled or otherwise-payable not later
than the dates on which it is estimated that such moneys will be
required by the Trustee for the purposes specified in this
Indenture. Investment Securities acquired pursuant to this Section
under a repurchase agreement with the seller thereof may be deemed
to mature on the dates on and in the amounts (i.e., for the
repurchase price) which the Trustee may deliver such Investment
Securities to such seller for repurchase under such agreement.
Investment Securities acquired as an investment of moneys in
any Fund or Account shall be credited to such Fund or Account. For
the purpose of determining the amount in any Fund or Account, all
Investment Securities credited to any such Fund or Account shall be
valued at market value on the date of determination; provided,
however, that repurchase agreements shall be valued at the aggre-
gate repurchase price of the securities r-maining to be repurchased
pursuant to such agreements and investment agreements shall be
valued at the aggregate amount remaining invested therein (in each
case exclusive of accrued interest after the first payment of
interest following purchase).
All interest, profits and other income earned from investment
(other than in Loans) of all moneys in any Fund or Account (except
the Rebate Fund) shall be deposited when received in the appro-
priate Account of the Revenue Fund, except that an amount of
interest received with respect to any Investment Security equal to
the amount of accrued interest, if any, paid as part of the
31
purchase price of such Investment Security shall be credited to the
Fund or Account from which such accrued interest was paid.
Subject to Section 13.08 hereof and except as provided herein,
investments in any and all Funds and Accounts may be commingled for
purposes of making, holding and disposing of investments,
notwithstanding provisions herein for transfer to or holding in
particular Funds and Accounts of amounts received or held by the
Trustee hereunder, provided that, notwithstanding any such
commingling, the Trustee shall at all times account for such
investments strictly in accordance with the Funds and Accounts to
which they are credited and otherwise as provided in this Inden-
ture. The Trustee may act as principal or agent in the acquisition
or disposition of Investment Securities. The Trustee may sell, or
present for redemption, any Investment Securities so purchased
whenever it shall be necessary in order to provide moneys to meet
any required payment, transfer, withdrawal or disbursement from the
Fund or Account to which such Investment Security is credited, and
the Trustee shall not be liable or responsible for any loss
resulting from any investment made pursuant to this ;trticle VII.
In computing the amount in any Fund or Account, .Investment
Securities shall be valued at the market value of such obligations,
exclusive of accrued interest. With respect to all Funds and
Accounts, valuation shall occur annually and immediately upon a
withdrawal from the Debt Service Reserve Fund. If amounts on
deposit in the Debt Service Reserve Fund shall, at any time, be
less than the applicable Debt Service Reserve Fund Requirement,
such deficiency shall be made up as required by the Loan Agree-
ments.
All amounts representing accrued and capitalized interest, if
any, shall be held by the Trustee, pledged solely to the payment of
interest and invested only in Government Obligations maturing at
such times, and in such amounts as are necessary to match the
interest payments on the appropriate Series of Bonds.
32
ARTICLE VIII
DISCHARGE OF INDENTURE
If the Council shall pay or cause to be paid (other than by
the Bond Insurer) to the Owner of any Bond secured hereby the
principal of and interest due and payable, and thereafter to become
due and payable, upon such Bond, or any portion of such Bond in the
principal amount of $5,000 or any integral multiple thereof, such
Bond or portion thereof shall cease to be entitled to any lien,
benefit or security under this Indenture. If the Council shall pay
or cause to be paid (other than by the Bond Insurer) to the Owners
of all the Bonds of a Series secured hereby the principal of and
interest due and payable, and thereafter to become due and payable
thereon, and shall pay or cause to be paid (other than by the Bond
Insurer) all other sums payable hereunder by the Council and
related to such Series, then, and in that case, the right, title
and interest of the Trustee in the related Trust Estate shall
thereupon cease, terminate and become void. In such event, the
Trustee shall assign, transfer and turn over to the Council the
related Trust Estate and, at the direction of the Council, cancel
any outstanding Loans related to such Series of Bonds; provided
that if such Series of Bonds are paid from the proceeds of
refunding bonds, the Loans shall at the direction of the Council
not be canceled but shall be transferred and pledged as security
and a source of payment for the refunding bonds.
Notwithstanding the release and discharge of the lien of this
Indenture as provided above, those provisions of this Indenture
relating to the maturity of the Bonds, interest payments and dates
thereof, exchange and transfer of Bonds, replacement of mutilated,
destroyed, lost or stolen Bonds, the safekeeping and cancellation
of Bonds, nonpresentment of Bonds, the holding of moneys in trust,
and the duties of the Trustee in connection with all of the fore-
going, remain in effect and shall be binding upon the Trustee and
the Bondholder.
Any Bond shall be deemed to be paid within the meaning of this
Article and for all purposes of this Indenture when (a) payment of
the principal of and premium, if any, on such Bond, plus interest
thereon to the due date thereof (whether such due date is by reason
of maturity or upon redemption as provided herein), either
(i) shall have been made or caused to be made (other than by the
Bond Insurer) in accordance with the reruns thereof, or (ii) shall
have been provided for (other than by the Bond Insurer) by
irrevocably depositing with the Trustee in trust and irrevocably
..setting aside exclusively for such payment (1) moneys sufficient to
33
make such payment and/or (2) Governmental Obligations maturing as
to principal and interest in such amounts and at such time as will
insure the availability of sufficient moneys to make such payment,
and (b) all necessary and proper fees, compensation and expenses of
the Trustee and the Council pertaining to such Series of Bonds with
respect to which such deposit is made shall have been paid or the
payment thereof provided for to the satisfaction of the Trustee.
At such times as a Bond shall be deemed to be paid hereunder, as
aforesaid, such Bond shall no longer be secured by or entitled to
the benefits of this Indenture, except for the purposes of any such
payment from such moneys or Governmental Obligations.
Notwithstanding the foregoing paragraph, no deposit under
clause (a) (ii) of the immediately preceding paragraph shall be
deemed a payment of such Series of Bonds as aforesaid (1) until the
Council shall have given the Trustee, in form satisfactory to the
Trustee, irrevocable instructions:
(i) stating the date when the principal of each such
Bond is to be paid, whether at maturity or on a redemption date
(which shall be any redemption date permitted by this Indenture);
(ii) to call for redemption pursuant to this Indenture
any Bonds to be redeemed prior to maturity pursuant to (i) hereof;
and
(iii) if all the Bonds of such Series are not to be
redeemed within 30 days, to mail, as soon as practicable, in the
manner prescribed by Article III hereof, a notice to the Owners of
such Series of Bonds that the deposit required by (a)(ii) above has
been made with the Trustee and that said Bonds are deemed to have
been paid in accordance with this Article and stating the maturity
or redemption date upon which moneys are to be available for the
payment of the principal or redemption price, if applicable, of
said Series of Bonds as specified in (i) hereof; and
(2) if any Bonds of such Series are to be redeemed within the
next 30 days, until proper notice of redemption of those Bonds has
been given.
Any moneys so deposited with the Trustee as provided in the
two foregoing paragraphs may at the direction of the Council also
be invested and reinvested in Governmental Obligations described in
clause (i) of the definition thereof, maturing in the amounts and
at the times as hereinbefore set forth, and all income from all
such Governmental Obligations in the hands of the Trustee pursuant
to this Article which is not required for the payment of the Bonds
and interest thereon with respect to which such moneys shall have
been so deposited, shall be paid to the' Council as and when
34
realized if not needed to pay any fees or expenses provided for
hereunder.
No deposit under this Article shall be made or accepted here-
under and no use made of any such deposit unless the Trustee shall
have received an Opinion of Bond Counsel to the effect that such
deposit and use would not cause the Bonds to be treated as arbi-
trage bonds within the meaning of Section 148 of the Code.
Notwithstanding any provision of any other Article of this
Indenture which may be contrary to the provisions of this Article,
all moneys or Governmental Obligations set aside and held in trust
pursuant to the provisions of this Article for the payment of Bonds
of a Series (including interest thereon) shall be applied to and
used solely for the payment of the particular Bonds (including
interest thereon) with respect to which such moneys or obligations
have been so set aside in trust.
Anything in Article XI hereof to the contrary notwithstanding,
if moneys or obligations have been deposited or set aside with the
Trustee pursuant to this Article for the payment of Bonds of a
Series and interest thereon when due and such Bonds and interest
shall not have in fact been actually paid in full when due, no
amendment to the provisions of this Article shall be made without
the consent of the Owner of each Bond affected thereby.
Anything to the contrary provided elsewhere in this Indenture
notwithstanding, this Indenture shall not be discharged as long as
any amounts are owing to the Bond Insurer and no Bond shall be
deemed paid ~nder this Indenture if the Bond Insurer shall have
made any payment under the Bond Insurance in respect of the
principal of or interest on such Bond ~ntil the amount of such
principal or interest, together with interest thereon provided for
herein and in the Bonds on past-due principal and interest, shall
have been paid to the Bond Insurer. Furthermore, if the discharge
of the Indenture is based upon, or utilizes a forward supply
contract, the Insurer's prior written consent must be received
before the Indenture shall be discharged by the Trustee.
Prior to any defeasance becoming effec%ive under this
Indenture, (i) the Bond Insurer shall have received an opinion of
counsel, satisfactory to the Bond Insurer, to the effect that the
proceeds of any deposit to effectuate such defeasance shall not
constitute a voidable preference in a case commenced under the
Federal Bankruptcy Code by or against the Council or any applicable'
Borrower, (ii) the amounts required to be deposited in an escrow
fund pursuant to this Indenture and the escrow deposit agreement
entered into in order to effectuate such defeasance shall be
invested only in Government Obligations and (iii) the Bond Insurer
35
shall have received (a) the final official statement delivered in
connection with the refunding bonds, (b) a copy of the accountant's
verification report, (c) a copy of the escrow deposit agreement in
form and substance acceptable to the Bond Insurer, (d) a copy of an
opinion of Bond Counsel, dated the date of closing addressed to the
Bond Insurer, to the effect that the refunded bonds have been paid
within the meaning and with the effect expressed in the Indenture,
and the covenants, agreements and other obligations of the Council
to the holders of the refunded bonds have been discharged and
satisfied. (The opinion re~ired by (i) above may be waived in ~he
discretion of the Bond Insurer at the time of such defeasance.
AR?~CL~ ~'X
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 9.01. Defaults; Events of Default. If any of the
following events occurs with respect to a Series of Bonds, it is
hereby defined as and declared to be and to constitute an "Event of
Default" with respect to such Series of Bonds:
(a) Default in the payment' of the principal of or interest
on any Bond of that Series after the-principal or interest has
become due, whether at maturity or upon call for redemption.
(b) Default in the performance or observance of any covenant,
agreement or condition on the part of the Council contained in this
Indenture or in the Bonds of that Series (other than defaults
mentioned in Section 9.01(a) and (c)) and failure to remedy the
same after notice of the default pursuant to Section 9.10 hereof.
(c) If the Council shall file a petition seeking a
composition of indebtedness under the federal bankruptcy laws, or
under any other applicable law or statute of the United States of
America or of the State, or the Council by the Council of any act
of bankruptcy, or adjudication of the Council as a bankrupt, or
assignment by the Council for the benefit of its creditors or the
approval by a court of competent jurisdiction of a petition
applicable to the Council in any proceeding for its reorganization
instituted under federal bankruptcy laws, or under any other
applicable law or statute of the United States of America or of the
State.
SECTION 9.02. Remedies; Rights of Bondholders. Upon the
occurrence of an Event of Default with respect to a Series of
Bonds, the Trustee shall have the following rights and remedies:
(a) The Trustee may, and in the case of Event of Default
under Section 9.01(c) above shall, pursue any available remedy at
law or in equity or by statute, including the federal bankruptcy
laws or other applicable law or statute of the United States of
America or of the State, to enforce the payment of principal of and
interest on the Bonds of such Series then Outstanding, including
enforcement of any rights of the Council or the Trustee under the
related Loan Agreements.
(b) The Trustee may by action or suit in equity require the
'Council to account as if it were the trustee of an express trust
37
for the Owners of the Bonds of such Series and may then take such
action with respect to the related Loan Agreements as the Trustee
shall deem necessary or appropriate and in the best interest of the
Bondholders, subject to the terms of the related Loan Agreements,
including the sale of part or all of the related Loan Agreements.
(c) Upon the filing of a suit or other commencement of
judicial proceedings to enforce any rights of the Trustee and of
the Bondholders under this Indenture, the Trustee shall be
entitled, as a matter of right, to the appointment of a receiver or
receivers of the related Trust Estate and of the Revenues, issues,
earnings, income, products and profits thereof, pending such pro-
ceedings, with such powers as the court making such appointment
shall confer.
(d) The Trustee shall give written notice of any Event of
Default to the Council and the Bond Insurer as promptly as practi-
cable after the occurrence of an Event of Default becomes known to
the Trustee. If an Event of Default has occurred and is continu-
ing, the Bond Insurer shall, subject to the provisions in the
following sentence, have the right to direct the Trustee to declare
immediately due and payable the principal amount of the Outstanding
Bonds of such Series, provided' that as a condition to such
direction of acceleration the Bond Insurer shall have deposited
with the Trustee a sLu: for payment with respect to principal of and
interest accrued and to accrue (to a date not less than 30 days
following the Bond Insurer's notice of direction to the Trustee of
acceleration) on the Series of Bonds Outstanding. NOTWITHSTANDING
THE FOREGOING OR J~NY P~SIO~ HE~IN TO THE CO~'~RY, IN THE EVENT
AR EVENT OF DEFAULT H~ OCC~D BECA/JSE OF A DEF/~JLT UNDER LESS
THAN AT.?: OF THE RELATED LO~,N ~&~RE~NTS, T~u~ BOND INSU'R~R SH~LL
ONLY HAVE THE RIGHT TO DIRECT THE TRUSTEE TO DECLARE I~DIJ%TELY
DUE ~ PA~ABLE A P~IPAL AIdOUNT OF THE (X~TST~/~)ING BO~DS OF SUCH
SERIES IN AR AliT EQUAL TO ~ PP~'NCIPAL AIdOUNT OF THE RELATED
LOAN OR LOANS THEN IN DEF~JLT. In such event the Bond Insurer
shall direct the Trustee as to which of the Outstanding Bonds of
such Series shall be declared immediately due and payable. In
making such declaration, the Bond Insurermay only declare Bonds of
such Series immediately due and payable as are reasonably related
to the related Loan Repayments. When the Trustee £s directed that
payment with respect to such Series of Bonds is to be accelerated
pursuant to this Section, or when the Bond Insurer, in connection
with acceleration of such Bonds by the Trustee, shall have elected
in its discretion to deposit funds in an amount sufficient to pay
all amounts of principal and interest due on such Bonds including
by reason of acceleration and has so notified the Trustee, the
Trustee shall mail notice to the registered Owners of such Bonds
not less than fifteen days prior to the date (the "Insurance
38
Payment Date") to which interest accrued and to accrue on such
Bonds has been provided by the Bond Insurer, which notice shall
state the manner in which such Bonds may be assigned to the Bond
Insurer or to an agent or designee thereof in exchange for payment
thereon and shall state that from and after the Insurance Payment
Date, interest shall cease to accrue on such Bonds for the benefit
of such registered Owners (provided that an amount equal to such
interest shall continue to accrue on such Bonds assigned to the
Bond Insurer as aforesaid).
If an Event of Default shall have occurred, and if requested
so to do by the Bond Insurer or by the owners of 25% or more in
aggregate principal amount of Outstanding Bonds of a Series
affected thereby and indemnified as provided in Section 10.01(k)
hereof, the Trustee shall be obligated to exercise such one or more
of the rights and powers conferred by this Section as the Trustee,
being advised by counsel, shall deem most expedient in the
interests of the Bondholders.
No right or remedy by the terms of this Indenture conferred
upon or reserved to the Trustee (or to the Bondholders or the Bond
Insurer) is intended to be exclusive of any other right or remedy,
but each and every such right or remedy shall be c~mulative and
shall be in addition to any other right or remedy given to the
Trustee or to the Bondholders hereunder or now or hereafter
existing at law. or in equity or by statute. The assertion or
employment of any right or remedy shall not prevent the concurrent
or subsequent assertion or employment of any other right or remedy.
No delay or omission in exercising any right or remedy
accruing upon any default or Event of Default shall impair any such
right or remedy or shall be construed to be a waiver of any such
default or Event of Default or acquiescence therein; and every such
right or remedy may be exercised from time to time and as often as
may be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
No waiver of any default or Event of Default hereunder by the
Trustee shall be effective without the approval of the Bond
Insurer.
SECTION 9,03. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
Bond Insurer or, with consent of the Bond Insurer (provided such
consent shall not be r~quired if the Bond Insurer is in default
39
under the Bond Insurance), the Owners of a majority in aggregate
principal amount of the Outstanding Bonds of all Series affected
thereby shall have the right, at any time during the continuance of
an Event of Default, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the time, method
and place of conducting all proceedings to be taken in connection
with the enforcement of the ter~ and conditions of this Indenture,
or for the appointment of a receiver or any other proceedings
hereunder; provided that such direction shall not be otherwise than
in accordance with the provisions of law and of this Indenture.
SECTION 9.04. Appointment of Receivers. Upon the occurrence
of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce any rights of the
Trustee and of the Bondholders under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the Trust Estate and of the revenues,
issues, earnings, income, products and profits thereof, pending
such proceedings, with such powers as the court making such
appointment shall confer.
SECTION 9.05. Al~plica~%on of Moneys. Ail moneys received by
the Trustee pursuant to any right given or action taken under the
provisions of this Article, including by virtue of action taken
under provisions of any Loan Agreement, shall, after payment of the
costs and expenses of the proceedings resulting in the collection
of such moneys and of the fees (including reasonable Trustee's
fees), expenses, liabilities and advances payable to, incurred or
made by the Trustee (including reasonable fees and disbursements of
its counsel), be applied, along with any other moneys available for
such purposes, as follows:
(a) Unless the principal of all the Bonds of a Series shall
have become due and payable, all such moneys shall be applied:
FIRST -- To the payment to the persons entitled thereto
of all amounts payable pursuant to Section 4.05(1) or Section
4.05(2) and, as to installments of interest, in the order of
the maturity of the installments of such interest and, if the
amount available shall not be sufficient t~ pay in full any
particular installment of interest, then to the payment
ratably, according to the amounts due on such installment, to
the persons entitled thereto, without any discrimination or
privilege;
SECOND -- To the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds of such Series
which shall have become due at stated maturity or pursuant to
40
a call for redemption (other than such Bonds called for
redemption for the payment of which moneys are held pursuan~
to the other provisions of this Indenture), in the order of
their due dates and, if the amount available shall not be
sufficient to pay in full Bonds of such Series due on any
particular date, then to the payment ratably, according to the
amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege;
THIRD -- To payment to the persons entitled thereto of
all amounts payable pursuant to Sections 4.05(3); and
FOURTH -- To be held as provided in Article IV hereof for
the payment to the persons entitled thereto as the same shall
become due of the amounts payable pursuant to this Indenture
(including principal of such Bonds due upon call for redemp-
tion) and, if the amount available shall not be sufficient to
pay in full amounts due on any particular date, payment shall
be made ratably according to the priorities set forth in
subparagraphs FIRST, SECOND and THIRD above.
(b) If the principal of all the Bonds of a Series shall have
become due, all such moneys shall be applied to the payment of the
principal of and interest then due and unpaid upon the Bonds and
amounts payable pursuant to Section 4.05(3), with Bond principal
and interest to be paid first, without preference or priority of
principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or
of any Bond over any other Bond, ratably, according to the amounts
due respectively for principal and interest, and with the items
enumerated in Section 4.05(3) to be paid second to the Persons
entitled thereto without any discrimination or privilege.
Whenever moneys are to be applied pursuant to the provisions
of this Section, such moneys shall be applied at such times, and
from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an Interest Payment
Date unless the Trustee shall deem another date more suitable) upon
which such application is to be made and upon such date interest on
the amounts of principal and past-due interest to be paid on such
date shall cease to accrue. Defaulted interest on a Bond shall be
payable to the person in whose name such Bond is registered at the
close of business on a Special Record Date for the payment of
defaulted interest established by notice mailed by the Trustee to
the registered Owners of Bonds not more than fifteen (15) days
preceding such Special Record Date. Such no%~ce shall be mailed to
41
the person in whose name the Bonds are registered at the close of
business on the fifth (5th) day preceding the date of mailing. The
Trustee shall not be required to make payment of principal of any
Bond to the Owner of such Bond until such Bond shall be presented
to the Trustee for appropriate endorsement or for cancellation if
fully paid.
Whenever all principal of and interest on all Bonds of such
Series have been paid under the provisions of this Section and all
expenses and charges of the Trustee and the Bond Insurer have been
paid, any balance remaining in the Funds and Accounts shall be
transferred to the Council as provided in ~trticle VIII hereof.
SECTION 9.06. Remedies Vested in Trustee. Ail rights of
action (including the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production
thereof in any trial or other proceeding related thereto and any
trial or other proceeding related thereto and any such suit or
proceeding instituted by the Trustee shall be brought in its name
as Trustee without the necessity of joining as plaintiffs or
defendants any Owners of the Bonds, and any recovery of judgment
shall be for the equal and ratable benefit of the Owners of all the
Outstanding Bonds of all Series affected thereby.
SECTION 9.07. Rights and Remedies of Bondholders. No Owner
of any Bond or the Bond Insurer shall have any right to institute
any suit, action or proceeding at law or in equity for the enforce-
ment of this Indenture or for the execution of any trust hereof or
for the appointment of a receiver or any other remedy hereunder,
unless (a) a default has occurred, (b) such default shall have
become an Event of Default and the Owners of not less than 25% in
aggregate principal amount of Outstanding Bonds of all Series
affected thereby, with the consent of the Bond Insurer or the Bond
Insurer shall have made written request to the Trustee and shall
have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, (c) such Owners of
Bonds or the Bond Insurer shall have offered to the Trustee
indemnity as provided in Section 10.01(1) hereof, and (d) the
Trustee shall for 60 days after receipt of such request and
indemnification fail or refuse to exercise the rights and remedies
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such request and offer of indemnity
are hereby declared in every case at the option of the Trustee to"
be conditions precedent to the execution of the powers and trusts
of ~his Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver
42
or for any other remedy hereunder; it being understood and intended
that no one or more Owners of the Bonds or the Bond Insurer shall
have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by its, his or their action or
to enforce any right hereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and
for the equal and ratable benefit of the Owners of all Outstanding
Bonds of all Series affected thereby. However, nothing contained
in this Indenture shall affect or impair the right of any Bond-
holder to enforce the payment of the principal of and interest on
any Bond at and after the maturity or redemption date of such
principal or interest, or the obligation of the Council to pay the
principal of and interest o~ each of the Bonds issued hereunder to
the respective'registered Owners thereof at the time, place, from
the source and in the manner in this Indenture and in the Bonds
expressed.
SECTION 9.08. Termination of Proceedings. In case the
Trustee or any Owner of any Bonds or the Bond Insurer shall have
proceeded to enforce any right under this Indenture by the appoint-
ment of a receiver or otherwise, and such proceedings..shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Council, the
Trustee, the Bond Insurer and the Bondholders shall be restored to
their former positions and rights hereunder, respectively, and with
regard to the property herein subject to this Indenture, and all
rights, remedies and powers of the Trustee and Owners of Bonds
shall continue as if no such proceedings had been taken.
SECTION 9.09. Waivers of Events of Default. The Trustee may,
with the consent of the Bond Insurer, at its discretion waive any
Event of Default hereunder (other than an Event of Default
specified in 9.01(c) above) and its consequences and may rescind
any declaration of maturity of all the Bonds of all Series affected
thereby (except an acceleration of maturity of all or a portion of
such Bonds directed by the Bond Insurer) and shall do so upon the
written request of the Bond Insurer or the Owners of (a) more than
two-thirds in aggregate principal amount of all Outstanding Bonds
of all Series affected thereby (with the consent of the Bond
Insurer, unless the Bond Insurer is in default under the Bond
Insurance) in the case of default in the payment of principal or
interest, or (b) more than one-half in aggregate principal amount
of all Outstanding Bonds of all Series affected thereby (with the
consent of the Bond Insurer, unless the Bond Insurer is in default
under the Bond Insurance) in the case of any other default;
provided, however, that there shall not be waived (i) any default
· -in the payment of the principal of any such Outstanding Bond at the
43
date of maturity specified therein or (ii) any default in the
payment when due of the interest on any such Outstanding Bond,
unless prior to such waiver all arrears of interest or all arrears
of payments of principal when due, as the case may be, with
interest on overdue principal and interest as provided in Section
2.04(f) hereof, and all expenses of the Trustee in connection with
such default shall have been paid or provided for, and in case of
any such waiver or rescission, or in case any proceeding taken by
the Trustee on account of any such default shall have been discon-
tinued or abandoned or determined adversely, then, and in every
such case, the Council, the Trustee, the Bond Insurer and the
Bondholders shall be restored to their former positions and rights
hereunder, respectively, but no such waiver or rescission shall
extend to any subseq%/ent or other default, or impair any right
consequent thereon. No such waiver shall affect the rights of
third parties to payment Of amounts provided for hereunder.
SECTION 9.10. Notice of Defaults Under Section 9.01(b);
Opportunity of Council To Cure Such Defaults. Anything herein to
the contrary notwithstanding, no default under Section 9.01(b)
hereof shall constitute an Event of Default until actual notice of
such default by registered or certified mail shall be given to the
Council by the Trustee or by the Bond Insurer or the Owners of not
less than 25% in aggregate principal amount of all Outstanding
Bonds of all Series affected thereby and the Council shall have had
30 days after receipt of such notice to correct the default or
cause the default to be corrected, and shall not have corrected the
default or caused the default to be corrected within the applicable
period; provided, however, if the default be such that it cannot be
corrected within the applicable period, it shall not constitute an
Event of Default if corrective action is instituted by the Council
within the applicable period and diligently pursued until the
default is corrected.
With regard to any alleged default concerning which notice is
given to the Council under the provisions of this Section, the
Council hereby grants the Trustee full authority for the account of
the Council to perform any covenant or obligation alleged in said
notice to constitute a default, in the name and stead of the
Council with full power to do any and all things and acts to the
same extent that the Council could do and perform any such things
and acts and with power of substitution.
The Council and the Trustee shall notify the Bond Insurer
within five (5) days after each has received notice or has know-
ledge of (i) an Event of Default specified in Section 9.01 hereof;
(ii)- the withdrawal of amounts on deposit in the Debt Service
Reserve Fund; or (iii) the failure to make any required deposit to
44
the Principal Fund or the Revenue Fund to pay principal or interest
when due.
Any notice that is required to be given to the Bondholders or
the Trustee pursuant to this Indenture or any Supplemental Inden-
ture shall also be provided to the Bond Insurer. All notices
required to be given to the Bond Insurer under this Indenture shall
be in writing and shall be sent by registered or certified mail
addressed to Municipal Bond Investors Assurance Corporation.
SECTION 9.11. Bond Insurer to be D==me~Bondowner; Rights of
Bond Insurer. (a) Notwithstanding any provisions of this Inden-
ture to the contrary, unless the Bond Insurer is in default under
the Bond Insurance, the Bond Insurer shall at all times be deemed
the exclusive Owner of all Bonds for all purposes except for the
purpose of payment of the principal of and premium, if any, and
interest on the Bonds prior to the payment by the Bond Insurer of
the principal of and interest on the Bonds. The Bond Insurer shall
have the exclusive right to direct any action or remedy to be
undertaken by the Trustee, by the Owners or by any other party
pursuant to the Indenture and the Loan Agreements, and no acceler-
ation shall be permitted, and no event of default shall be waived,
without the Bond Insurer's consent~ Ail rights to collect, receive
and dispose of such collateral shall be independent of any rights
to effect acceleration of the Bonds.
(b) The Bond Insurer shall be s~brogated to any and all of
the rights of the Owners of any and all of the Bonds insured by the
Bond Insurer (unless the Bond Insurer is in default under the Bond
Insurance) at all times for the purpose of the execution and
delivery of a Supplemental Indenture or of any amendment, change or
modification of the Loan Agreements or the initiation by Bond-
holders of any action to be undertaken by the Trustee at the Bond-
holder's request. In addition, the Bond Insurer's consent to any
Supplemental Indenture and any amendment, change or modification of
any Loan Agreement shall be required.
(c) Anything in this Indenture to the contrary
notwithstanding, upon the occurrence and continuance of an event of
default as defined herein, the Bond Insurer shall, be entitled to
control and direct the enforcement of all rights and remedies
granted to the Bondholders for the benefit of the Bondholders under
this Resolution.
45
ARTICLE X
THE TRUSTEE
SECTION 10.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees to
perform said trusts, but only upon and subject to the following
express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been c~red or waived),
the Trustee shall exercise such of the rights and powers vested in
it by this Indenture.
(b) The Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys,
agents, receivers or employees but shall be answerable for the
conduct of the same in accordance with the standard specified
above, and shall be entitled to advice of counsel concerning all
matters of trusts hereof and the duties hereunder, and may in all
cases pay such reasonable compensation to all such attorneys,
agents, receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon the
opinion or advice of any attorneys (who may but need not be the
attorney or attorneys for the Council, the Bond Insurer or a
Borrower) approved by the Trustee in the exercise of reasonable
care. The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in reliance
upon such opinion or advice.
(c) The Trustee shall not be responsible for any recital
herein, or in the Bonds, or for the validity of the execution by
the Council of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may become
the Owner of Bonds secured hereby with the same rights which it
would have if not the Trustee.
(e) Unless an officer of the corporate trust department of
· the Trustee shall have actual knowledge thereof, the Trustee shall
46
not be rec~ired to take notice or be deemed to have notice of any
default hereunder except defaults under Section 9.01(a) hereof
unless the Trustee shall be specifically notified in writing of
such default by the Council or the Bond Insurer or a court of law
or by any Owner of Bonds. All notices or other instruments
rec~ired by this Indenture to be delivered to the Trustee must, in
order to be effective, be delivered at the principal corporate
trust office of the Trustee and, in the absence of such notice so
delivered, the Trustee may conclusively assume there is no default
except as aforesaid. The Trustee shall provide copies of any such
notices as soon as practicable to the Council, Bond Insurer and the
Borrowers.
(f) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram
or other paper or document believed to be genuine and correct and
to have been signed or sent by the proper person or persons. The
Trustee shall not withhold unreasonably its consent, approval or
action to any reasonable request of the Council. Any action taken
by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the registered Owner
of any Bond, shall be conclusive and binding upon all future Owners
of the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(g) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding,
the Trustee shall be entitled in good faith to rely upon a certifi-
cate si~ed by an authorized officer of the Council as sufficient
evidence of the facts therein contained and prior to the occurrence
of a default of which the Trustee has knowledge, or is deemed to
have notice pursuant to Section 10.01(e), shall also be at liberty
to accept a similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient, but may
at its discretion secure such further evidence deemed necessary or
advisable, but shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Executive Director or
Secretary of the Council under its seal to the effect that a
resolution in the form therein set forth has been.adopted by the
Council as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(h) Ail moneys received by the Trustee hereunder, until used
or applied as herein provided, shall be held in trust for the
purposes for which they were received.
(i) At any and all reasonable times, the Trustee and its duly
authorized agents, attprneys, experts, engineers, accountants and
47
representatives and the Bond Insurer, shall have the right to
inspect any and all of the books, papers and records of the Council
pertaining to the Revenues and receipts under the Loan Agreements
and the Bonds, and to take such memoranda from and in regard
thereto as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Before taking the action referred to in Section 9.02 or
9.07 hereof, the Trustee may require that a satisfactory indemnity
bond be furnished for the reimbursement of all expenses to which it
may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its negligence
or willful default by reason of any action so taken.
SECTION 10.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement for reason-
able fees for its services rendered hereunder and all advances,
counsel fees and other expenses reasonably and necessarily made or
incurred by the Trustee but solely from moneys available therefor
pursuant to Section 4.05 hereof or Section 9.05 hereof and pursuant
to the Loan Agreements.
SECTION 10.03. No~ice ~o Bondholders if Default Occurs Under
Indenture. If the Trustee becomes aware of an Event of Default,
then the Trustee shall promptly give written notice thereof by
registered or certified mail to the Bond Insurer and by first-class
mail to the Owners of all Outstanding Bonds of all Series affected
thereby, as shown by the bond registration books.
SECTION 10.04. Intervention b~ Trustee. In any judicial
proceeding to which the Council is a party and which in the opinion
of the Trustee and its counsel has a substantial bearing on the
interests of Owners of the Bonds, the Trustee may intervene on
behalf of the Bondholders, and shall do so if requested in writing
by (i) the Bond Insurer, or (ii) the Owners of at least 25% of the
aggregate principal amount of Bonds then Outstanding, with the
consent of the Bond Insurer.
SECTION 10.05. Succesao= Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which i= may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially'
as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which
it is a party, ipso facto shall be and become, to the extent
48
permitted by law, successor Trustee hereunder and vested with all
of the title to the Trust Estate and all the trusts, powers,
discretions, immunities, privileges and all other matters as was
its predecessor, without the execution or filing of any instrument
or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Any successor Trustee appointed pursuant to this Section or
through consolidation, sale, or merger shall be a trust company or
bank in good standing located in or incorporated under the laws of
the State, duly authorized to exercise trust powers and subject to
examination by federal or state authority, having a reported
capital and surplus of not less than $75,000,000 and acceptable to
the Bond Insurer.
SECTION 10.06. Resignation by Trustee. The Trustee and any
successor Trustee may a~ any time resign from the trusts hereby
created by giving sixty (60) days' written notice by registered or
certified mail to the Council and the Bond Insurer and by first-
class mail to the registered Owner of each Bond, and such resigna-
tion shall take effect upon the appointment of a-successor Trustee
as hereinafter provided and the acceptance of such appointment by
such successor. No such acceptance shall be effective unless the
Bond Insurer has consented in writing to such appointment.
SECTION 10.07. R~mo~al of Trustee. The Trustee may be removed
at any time, by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Council and signed by the Bond
Insurer or the Owners of a majority in aggregate principal amount
of all Bonds then Outstanding, or by the Bond Insurer for any
breach of trust set forth herein.
SECTION 10.08. Appoin~t of Successor Trustee. In case the
Trustee hereunder shall resign or be removed, or be dissolved, or
shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken
under the control of any public officer or officers, or of a
receiver appointed by a court, a successor may be appointed by a
resolution of the Council, with the consent of the Bond Insurer, or
if the Council shall not have appointed a successor Trustee, by
filing with the Council an instrument or concurrent instruments in
writing signed by Owners of not less than a majority in principal
amount of Bonds outstanding, or by their attorneys in fact, duly
authorized. Nevertheless, in case of such vacancy, the Bond
Insurer may appoint a t-mporary Trustee to fill such vacancy until
a successor to the Trustee shall be appointed in the manner above
prescribed; and any such t-mporary Trustee so appointed by the Bond
. Insurer shall ~mmediately and without further act be superseded by
49
any Trustee so appointed. Notice of the appointment of a successor
Trustee shall be given in the same manner as provided by Section
10.06 hereof with respect to the resignation of a Trustee. Every
such Trustee appointed pursuant to the provisions of this Section
shall be a trust company or bank in good standing having a
corporate trust office in the State, having a reported capital and
surplus of not less than $50,000,000 and subject to examination by
federal or State authority, if there be such an institution
willing, q~/alified and able to accept the trust upon reasonable or
customary terms. The Bond Insurer shall be notified immediately
upon the resignation or termination of the Trustee and the
appointment of a successor Trustee.
SECTION 10.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its or his predecessor and also to the Council and
the Bond Insurer an instrument in writing accepting such
appointment hereunder, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all
the estates, properties, rights, powers, trusts, duties and
obligations of its predecessors; but such predecessor shall,
nevertheless, on the written request of the Council, or of the
successor Trustee, execute and deliver an instrument transferring
to such successor Trustee all the estates, properties, rights,
powers and trusts of such predecessor hereunder; and every
predecessor Trustee shall deliver all securities, moneys, documents
and other property held by it as the Trustee hereunder to its or
his successor hereunder. Should any instrument in writing from the
Council be required by any successor Trustee for more fully and
certainly vesting in such successor the estate, rights, powers and
duties hereby vested or intended to be vested in the predecessor,
any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Council. The
resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder, together
with all other instruments provided for in this Article, shall be
filed or recorded by the successor Trustee in each recording office
where this Indenture shall have been filed or recorded. Such
successor Trustee shall give notice of such successors to Fitch and
S&P.
SECTION 10.10. Preserva~on and Inspec~on of Documents. Ail
documents received by the Trustee under the provisions of the
Indenture shall be retained in its possession and shall be subject
at all reasonable times to the inspection of the Council and the
Bond Insurer, at reasonable hours and under reasonable conditions.
SECTION 10.11. [This Section Reserved]
50
SECTION 10.12. Paying A~ent. The Council hereby appoints the
Trustee as Paying Agent. The Council may, with the approval of the
Trustee and the Bond Insurer appoint additional Paying Agents for
the Bonds. Each Paying Agent shall designate to the Council and
the Trustee its principal office and signify its acceptance of the
duties and obligations imposed upon it hereunder by a written
instrument of acceptance delivered to the Council under which such
Paying Agent will agree, particularly:
(a} to hold all sums received by it for the payment of the
principal of or interest on Bonds in trust for the benefit of the
Owners of the Bonds until such sums shall be paid to such Owners of
the Bonds or otherwise disposed of as herein provided;
(b) to keep such books and records as shall be consistent
with prudent industry practice, to make such books and records
available for inspection by the Council and the Trustee at all
reasonable times; and
(c) upon the reqUest of the Trustee, to forthwith deliver to
the Trustee all sums so held in trust by the Paying Agent.
SECTION 10.13. Registrar. The Council hereby appoints the
Trustee as Registrar for the Bonds. The Registrar shall designate
tO the Trustee its principal office and signify its acceptance of
the duties imposed upon it hereunder by a written instrument of
acceptance delivered to the Council and the Trustee under which
such Registrar will agree, particularly, to keep such books and
records as shall be consistent with prudent industry practice and
to make such books and records available for inspection by the
Council and the Trustee at all reasonable times.
The Council shall cooperate with the Trustee to cause the
necessary arrangements to be made and to be thereafter continued
whereby Bonds, executed by the Council and authenticated by the
Registrar or any authenticating agent, shall be made available for
exchange, registration and registration of transfer at the prin-
cipal office of the Registrar. The Council shall cooperate with the
Trustee to cause the necessary agreements to be made and thereafter
continued whereby the Registrar shall be furnished 9uch records and
other information at such times as shall be reqUired to enable the
Registrar to perfor~ the duties and obligations imposed upon it
hereunder.
SECTION 10.14. Eff~t on Bondholders of Certain Actions.
Notwithstanding any other provision of this Indenture, in
determining whether the rights of the Bondholders will be adversely
affected by any action taken pursuant to the terms and provisions
51
of this Indenture, the Trustee or Paying Agent shall consider the
effect on the Bondholders as if there were no Bond Insurance
Policy.
52
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Not Requiring Consent
of Bondholders. The Council and the Trustee may, without the
consent of or notice to any of the Bondholders but only with the
consent of the Bond Insurer, enter into any indenture or indentures
supplemental to this Indenture for any one or more of the following
purposes:
(a) To cure or correct any ambiguity or omission or formal
defect in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit
of the Bondholders any additional benefits, rights, remedies,
powers or authorities that may lawfully be granted to or conferred
upon the Bondholders or the Trustee, or to make any change which,
in the judgment of the Trustee, is not to the material prejudice of
the Bondholders;
(c) To s~bject to this Indenture additional revenues,
properties or collateral; or
(d) To modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939 or any similar federal statute hereafter in effect or to
permit the qualification of the Bonds for sale under the securities
laws of the United States of America or of any of the states of the
United States of America, and, if they so determine, to add to this
Indenture or any indenture supplemental hereto such other terms,
conditions and provisions as may be permitted by said Trust
Indenture Act of 1939 or similar federal statute.
SECTION 11.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by
Section 11.01 hereof and subject to the terms and provisions
contained in this Section, and not otherwise, the Owners of not
less than two-thirds in aggregate principal amount of the Out-
standing Bonds affected thereby shall have the right, from time to
time, to consent to and approve the execution by the Council and
the Trustee of such other indenture or indentures supplemental.
hereto as shall be deemed necessary and desirable by the Trustee
for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;
53
provided, however, that nothing in this Section contained shall
permit, or be construed as permitting (1) without the consent of
the Owners of all then Outstanding Bonds affected thereby, of
(a) an extension of the maturity date of the principal of or the
interest on any Bond, or (b) a reduction in the principal amount of
any Bond or the rate of interest thereon, or (c) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or
(d) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture, or (e) the
creation of any lien hereunder other than a lien ratably securing
all of the Bonds at any time Outstanding hereunder, or (2) any
modification of the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges of the Trustee without the
written consent of the Trustee.
If at any time the Council shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed
execution of such supplemental indenture to be mailed by registered
or certified mail to each Owner of a Bond affected thereby at the
address shown on the registration books. Such notice shall briefly
set forth the nature of the proposed supplemental indenture and
shall state that copies thereof are on file at the principal
corporate trust office of the Trustee for inspection by all Bond-
holders. If, within sixty (60) days, or such longer period as
shall be prescribed by the Council, following the mailing of such
notice, the Owners of not less than two-thirds in aggregate prin-
cipal amount of the Outstanding Bonds affected thereby at the time
of the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein provided,
no Owner of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution there-
of, or to enjoin or restrain the Trustee or the Council from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such supplemental
indenture as in this Section permitted and provided, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith.
Notwithstanding the foregoing or any other provisions to the
contrary, for as long as the Bond Insurance remains in full force
and effect, consent and approval by the Bond Insurer shall consti-
tute the required consent and approval of the Owners of the Bonds.
SECTION 11.03. Notice to S&P and Fitch. The Trustee shall
give notice to S&P and Fitch of any supplemental indentures or any
amendments to any Loan Agreement.
54
ARTICLE XII
AMENDMENT OF LOAN A~REEMENTS
SECTION 12.01. Amendments, Etc., Not Requiring Consent of
Bondholders. The Co~u~cil and the Trustee may, without the consent
of or notice to the Bondholders, but only with the consent of the
Bond Insurer, consent to any amendment, change or modification of
any Loan Agreement that may be required (a) by the provisions of
such Loan Agreement or to conform to The provisions of this
Indenture, (b) for the purpose of curing any ~mhiguity or inconsis-
tency or formal defect or omission, (c) so as to add additional
rights acquired in accordance with the provisions of such Loan
Agreement or (d) in connection with any other change therein which,
in the judgment of the Trustee, is not to the ~aterial prejudice of
the Trustee or the Owners of the Bonds of the related Series.
SECTION 12.02. Amendments, Etc., Recluiring Consent of
Bondholders. Except for amendments, changes or modifications
provided for in Section 12.01 hereof, neither t~e Council nor the
Trustee shall consent to any amendment, change or modification of
any Loan Agreement without the mailing of notice and the written
approval or consent of the Owners of not less than two-thirds in
aggregate principal amount of the Bonds of the related Series at
the time Outstanding given and procured as in this Section
provided. If at any time the Council and a Borrower shall request
the consent of the Trustee to any such proposed amendment, change
or modification of a Loan Agreement, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause notice
of such proposed amendment, change or modification to be mailed in
the same manner as provided by Section 11.02 hereof with respect to
supplemental indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall
state that copies of the instrument embodying the same are on file
with the Trustee for inspection by all Bondholders. Nothing
contained in this Section shall permit, or be construed as
permitting, a reduction of the aggregate principal amount of Bonds
the Owners of which are required to consent to any amendment,
change or modification of a Loan Agreement, a reduction in, or a
postponement of, the payments under any Loan Agreement or any
changes that affect the exclusion of interest on the Bonds from the
gross income of the Holders thereof for purposes of Federal income
taxation, without the consent of the Owners of all of the Bonds of
the related Series then Outstanding.
Notwithstanding the foregoing or any other provisions ~o the
'contrary, for as long as the Bond Insurance remains in full force
55
and effect, consent and approval by the Bond Insurer shall consti-
tute the required consent and approval of the Owners of the Bonds.
Nothing contained in this Section shall be construed to
prevent the Trustee, with the consent of the Council and the Bond
Insurer, from settlin~ a default under any Loan A~reement on such
terms as the Trustee may determine to be in the best interests of
the Owners of the Bonds.
ARTICLE XIII
GENERAL COVENANTS
SECTION 13.01. Payment of Principal and Interest. The Council
covenants that it will promptly pay the principal of and interest
on every Bond issued under this Indenture at the place, on the
dates and in the manner provided herein and in said Bonds according
to the true intent and meaning thereof, provided that the principal
and interest are payable by the Council solely from the Trust
Estate as provided in this Indenture, and nothing in the Bonds or
this Indenture shall be considered as assigning or pledging any
other funds or assets of the Council other than such Trust Estate.
SECTION 13.02. Performance of Covenants; the Council. The
Council covenants that it will faithfully perform at all times any
and all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its proceedings
pertaining hereto. The Council covenants that it is duly
authorized under the Constitution and laws of the State, including
particularly the Act, to issue the Bonds authorized hereby and to
execute this Indenture, to execute and deliver Loan Agreements, to
assign the Loan Agreements and collateral documents and amounts
payable thereunder, and to pledge the Revenues and any other pro-
perty hereby pledged in the manner and to the extent herein set
forth; that all action on its part for the issuance of the Bonds
and the execution and delivery of this Indenture has been duly and
effectively taken, and that the Bonds in the hands of the Owners
thereof are and will be valid and enforceable obligations of the
Council according to the terms thereof and hereof.
SECTION 13.03. Instruments of Further Assurance. The Council
agrees that the Trustee may defend its rights to the payments of
the Revenues for the benefit of the Owners of the Bonds, against
the claims and demands of all persons whomsoever. The Council
covenants that it will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered, such
indentures supplemental hereto and such further acts, instruments
and transfers as the Trustee may reasonably require for the better
assuring, transferring, pledging, assigning and confirming unto the
Trustee all and singular the rights assigned hereby and the amounts
and other property pledged hereby to the payment of the principal
of and interest on the Bonds. The Council covenants and agrees
that, except as provided herein or in the Loan Agreements, it will
not sell, convey, assign, pledge, encumber or otherwise dispose of
57
any part of the Revenues or the proceeds of the Bonds or its rights
under the Loan Agreements.
SECTION 13.04. Recording and Filing. The Trustee shall keep
and file or cause to be kept and filed all financing statements
related to this Indenture and all supplements hereto, the Loan
Agreements and all supplements thereto and such other documents as
may be necessary to be kept and filed in such manner and in such
places as may be required by law in order to preserve and pro~ect
fully the security of the Owners of the Bonds and the rights of the
Trustee hereunder. In carrying out its duties under this Section
13.04, the Trustee shall be entitled to rely on an opinion of its
counsel specifying what actions are required to comply with this
Section 13.04.
SECTION 13.05. Rights UncLor the Loan A~re~uonto. The Loan
Agreements, the form of which has been filed with the Trustee and
duly executed counterparts of each of which will be retained by the
Trustee, as required .by Section 13.06 hereof, set forth the
covenants and obligations of the Council and the Borrowers,
including provisions that the Loan Agreements may not be
effectively amended without the concurring written consent of the
Trustee, as provided in Article XII~hereof, and reference is hereby
made to the Loan Agreements for a detailed statement of said cove-
nants and obligations of the Borrowers under the Loan Agreements,
and the Council. agrees that the Trustee in its name or to the
extent permitted by law, in the name of the Council, may enforce
all rights of the Council and all obligations of the Borrowers
under the Loan Agreements (and waive the same except for rights
expressly granted to the Council) on behalf of the Bondholders
whether or not the CounCil is in default hereunder.
SECTION 13.06. Possession an~ Ins~e(:~on of Loan A~roements.
The Trustee shall retain possession of an executed copy of each
Loan Agreement to which it is a party or in which it has an
interest and release them only in accordance with the provisions of
this Indenture. The Council and the Trustee covenant and agree
that all books and documents in their possession relating to the
Loan Agreements and to the distribution of proceeds thereof shall
at all times be open to inspection by such accountants or other
agencies or persons as the other party or the Bond Insurer may from
time to time designate.
SECTION 13.07. PTov~sio~ of Do~n~ ~o Bon~holclere. If any
Bondholder shall request of the Council or Trustee a copy of the
Indenture, the Bond Insurance or any Loan Agreement, the Trustee
shall, at the expense of the Bondholder, provide such Bondholder
with a photocopy or other copy of any such document requested.
SECTION 13.08. Tax Covenants.
(a) The Council shall not use or permit the use of any
proceeds of the Bonds or any other funds of the Council, and the
Trustee shall not use or permit the use of any proceeds of the
Bonds or any other funds of the Council held by the Trustee,
directly or indirectly, to acquire any securities or obligations,
and shall not use or permit the use of any amounts received by the
Council or Trustee with respect to the Loan Agreements in any
manner, and shall not take or permit to be taken any other action
or actions, which would cause any Bond to be an "arbitrage bond"
within the meaning of Section 148, or "federally quaranteed" within
the meaning of the Code. If at any time the Council is of the
opinion that for purposes of this subsection (a) it is necessary to
restrict or limit the yield on or change in any way the investment
of any moneys held by the Trustee under this Indenture, the Council
shall so instruct the Trustee in writing, and the Trustee shall
take such action as may be necessary in accordance with such
instructions.
(b) The Council shall not use or permit the use of any
proceeds of Bonds or any other funds of the Council, and the
Trustee shall not use or permit the use of any proceeds of the
Bonds or any other funds of the Council held by the Trustee,
directly or indirectly, in any manner, and shall not take or permit
to be taken any other action or actions, which would result in any
of the Bonds being treated as a "private activity bond," as defined
in Section 141 of the Code.
(c) The Council and the Trustee shall at all times do and
perform all acts and things permitted by law and this Indenture
which are necessary or desirable in order to assure that interest
paid on the Bonds will be excluded from gross income for purposes
of Federal income taxation and shall take no action that would
result in such interest not being excluded from Federal gross
income.
{d) The Council covenants that it will maintain adequate
accounting records, and rebate investment income from the invest-
ment of proceeds of the Bonds to the United States Treasury within
the time allowed and in the manner specified by the Code and regu-
lations and will otherwise comply with such laws and regulations.
In order to insure compliance with the rebate provisions of
Section 148(f) of the Code, the Council shall create the Rebate'
Fund with a Series Account therein. Such Fund may be held by
th~ Council or, at the option of the Council, by the Trustee. The
Rebate Fund or any Account therein need not be maintained if the
Council shall have received an Opinion of Bond Counsel acceptable
59
to the Council to the effect that failure to maintain the Rebate
Fund or such Account therein shall not adversely affect the
exclusion of interest on the Bonds from gross income for purposes
of Federal income taxation. Moneys in the Rebate Fund shall not be
considered moneys held under the Indenture and shall not constitute
a part of the Trust Estate held for the benefit of the Bondholders
or the Council. Moneys in the Rebate D/nd (including earnings and
deposits therein) shall be held for future payment to the United
States Government as required by the regulations and as set forth
in instructions delivered to the Council upon issuance of the
Bonds.
60
ARTICLE Xi'V
MISCET.?-%NEOUS
SECTION 14.01. Consents, etc., of Bondholders. Any consent,
request, direction, approval, objection or other instrument
required by this Indenture to be signed and executed by the Bond-
holders may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Bondholders in person
or by agent appointed in writing. Proof of the execution of any
such consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent and of the
ownership of Bonds, if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be
conclusive in favor of the Council, the Trustee and any subsequent
Owners of the Bonds with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by any person of any
such writing may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within
such jurisdiction that the person signing such writing acknowledged
before him the execution thereof, or by an affidavit of any witness
to such execution.
(b) The fact of ownership of Bonds and the amount or amounts,
numbers and other identification of Bonds, and the date of owning
the same shall be proved by the registration books of the Council
maintained by the Registrar pursuant to Section 2.07 hereof.
SECTION 14.02. Li~at~on of Rights. With the exception of
rights herein expressly conferred or as otherwise provided herein,
nothing expressed or mentioned in or to be implied from this
Indenture or the Bonds is intended or shall be construed to give to
any person or company other than the parties hereto and the owners
of the Bonds, any legal or equitable right, remedy or claim under
or in respect to this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the cove-
nants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and
the Owners of the Bonds as herein provided. The Bond Insurer is
recognized as a third-party beneficiary hereunder and may enforce
any such right, remedy or claim conferred, given or granted
hereunder.
SECTION 14.03. The Bond Insurer. Ail provisions in Article
III, IV, IX, X, XI, XII or XIII regarding consents, approvals,
'directions, appointments or requests by the Bond Insurer shall be
61
deemed to not require or permit such consents, directions,
appointments or requests by the Bond Insurer and shall be read as
if the Bond Insurer were not mentioned therein during any time in
which (a) the Bond Insurer is in default in its obligation to make
payments under the Bond Insurance, (b) the Bond Insurance shall at
any time for any reason cease to be valid and binding on the Bond
Insurer, or shall be declared to be null and void by final and
conclusive judicial determination, or the validity or enforce-
ability of any provision thereof is being contested by the Bond
Insurer or any governmental agency or authority, or if the Bond
Insurer is denying further liability or obligation under the Bond
Insurance, or (c) a final determination against the Bond Insurer,
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of the State
of New York, whether now or hereafter in effect.
SECTION 14.04. Severabilit'y. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative or unenforceable to any extent whatever.
SECTION 14.05. Notices. A~y notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid, or sent by telegram or telex,
addressed to the parties as follows:
Council: Florida Municipal Loan Council
cio Florida League of Cities
301 North Bronough Street
Tallahassee, Florida 32301
Trustee, Paying
Agent and
Registrar:
Bond Insurer:
The above parties may, by notice given hereunder, designate any
further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 14.06. Payments Due on S&~ur~aya, Sundays and
Holidays. In any case where the date of payment of principal of or
62
interest on the Bonds or the date fixed for redemption of any Bonds
shall be a Saturday or Sunday or a legal holiday in the city of
payment or a day or on which banking institutions are authorized by
law to close in the city of payment, then payment of interest or
principal shall be made on the succeeding Business Day with the
same force and effect as if made on the interest payment date or
the date of maturity or the date fixed for redemption.
SECTION 14.07. Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which,
when so executed and delivered, shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 14.08. A~licable Provisions of Law. This Indenture
shall be governed by and construed in accordance with the laws of
the State.
SECTION 14.09. Re~rting P~z~en~s. The Council will file
or cause to be filed with the Bond Insurer any official statement
issued by, or on behalf of, the Council in connection with the
incurrence of any additional indebtedness by such Council.
[Balance of Page Intentionally Left Blank.]
63
IN WITNESS WHEREOF, the Council has caused this Indenture to
be executed on its behalf by its Chairman and the seal of the
Council to be hereunto affixed and duly attested by its Vice-
Chairman or Designated Member; and the Trustee, to evidence its
acceptance of the trusts created hereunder, has caused this
Indenture to be executed in its name by its duly authorized
officers and its corporate seal to be hereunto affixed and duly
attested, all as of the day and year first above written.
FLORIDA MUNICIPAL LOAN COUNCIL
[SEAL]
Attest: B~
Chairman
By
[Vice-Chairman] [Designated Member]
[SEAL] [Name of Trustee]
as Trustee
ATTEST: By
Title:
By
Title:
64
EXHIBIT A
NO.
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BOND
SERIES
Maturity Date: Interest Rate: Dated Date: CUSIP=
Registered Owner:
Principal Amount: DOLLARS
FLORIDA MUNICIPAL LOAN COUNCIL, a legal entity and public body
corporate and politic duly created and existing under the
Constitution and laws of the State of Florida (the "Council"), for
alue recel ed, hereby prouttses to pay (but only out of the
Reve.nues and other, assets pled. ged .t.h. erefor as here%nafter
mentmoned) to the Registered Owner ~dent~fled above, or registered
assigns, on the Maturity Date identified above (subject to any
right of prior redeu~tion hereinafter mentioned), the Principal
Amount identified above, in lawful money of the United States of
America; and to pay interest thereon in like lawful money from
, until payment of said Principal Amount has
been made or du y--~--~ovided for, at the Interest Rate set forth
above on 1, , and on each I and 1
thereafter (an "Interest Payment Date"), ~interest on this
Bond is in default, in which event it shall bear interest from the
last date to which interest has been paid until payment of such
Principal Amount shall be discharged as provided in the Indenture
hereinafter ~.ntioned. The principal (or redemption price) hereof
is payable upon presentation hereof at the principal office of
, as Paying Agent and Registrar {together with
any successor thereto, the "Paying Agent" and the "Registrar").
Interest hereon is payable by check mailed, except as provided in
the Indenture, to the person whose name appears on the bond regis-
tration books ~aintained by the Registrar as the Registered Owner
hereof as of the close of business on the 15th day of the calendar
month preceding each Interest Payment Date, at such person's
address as it appears on such registration books.
This Bond is one of a duly authorized issue of bonds of the
· Council designated as "Florida Municipal Loan Council Revenue
Bonds, Series " (the "Bonds"), issued in the aggregate
A-1
principal amount of
Dollars ($ ), pursuant to the
provisions of Chapter 163, Part I, Florida Statutes, Chapter 159,
Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes,
Chapter 125, Part I, Florida Statutes, and other applicable pro-
visions of law (collectively, the "Act"), and pursuant to a Trust
Indenture, dated as of , between the Council and
, (the "Trustee") (together with any
supplements or amendments thereto, the "Indenture,). The Bonds are
issued for the purpose of providing funds to make loans
to (the "Borrowers")
to finance, refinance or reimburse the costs of various capital
projects and to refund certain outstanding bonds of the Council,
pursuant to loan agreements between the Council and such Borrowers
(together with any supplements or amendments thereto, the "Loan
Agreements").
Capitalized terms used but not defined herein shall have the
meaning set forth in the Indenture.
Reference is hereby made to the Indenture (a copy of which is
on file at the principal corporate trust office of the Trustee) and
to rheA ct for a description of =he rights and remedies thereunder
(and limitations thereon) of the registered owners of the Bonds, of
the nature and extent of the security, of the ri~ts, duties and
i~unities of the Trustee and of the r=ghts and o~l~gations of the
Council thereunder, to all the provisions of which Indenture the
Registered Owner of this Bond, by acceptance hereof, assents and
agrees.
The Bonds and the interest thereon are payable from Revenues
(as defined in the Indenture) and are secured by a pledge and
assignment of said Revenues and of amounts held in certain funds
and accounts established pursuant to ~he Indenture (including
the Bonds untzl applied as ~et forth
proceeds of ~he sale of . .
therein), subject to the provxs~ons of the Indenture permitting the
application thereof for the purposes and on the terms and condi-
tions set forth in the Indenture. The Bonds are further secured by
an assignment of the right, title and interest of the Council in
the Loan Agreements to the Trustee, to the extent and as more
particularly described in the Indenture.
The Bonds maturing on and before 1,. are not
subject to optional redemption prior to the~ respective
maturities. The Boxes maturing on and after 1, are
subject to redemption at the option of the Council on or after
1, , as a whole at any time, or in part on any
Interest Payment Date, in any manner determined by the Trustee in
its discretion, during the following periods and at the following
redemption prices, expressed as a percentage of the principal
.amount of the Bonds to be redeemed, plus accrued interest to the
redemption date.
A-2
Redemption Period
~Both Dates Inclusive) ' '
The Series Bonds that mature on 1, are
subject to mandatory redemption, in part, by lot, at redemption
prices equal to 100% of the principal amount thereof, plus interest
accrued to the redemption date, beginning o~ 1, , and
on each I thereafter in the followLng principal amounts in
the following years,
In addition, the Bonds are subject to mandatory redemption at
any time, in whole or in part, at a redemption price of the princi-
pal amount thereof plus accrued interest to the redemption date,
without premium, but only with the approval of the Bond Insurer,
from all amounts received by the Trustee as a result of an accel-
eration of any Loan or Loans made from the proceeds of the Bonds
(the .Liquidation Proceeds"). If Bonds are to be redeemed in part
by mandatory redemption, the Bonds to be redeemed will be selected
on a proportionate basis from among all of the maturities of such
Bonds and within each maturity by lot. Bonds to be redeemed in
each year on a proportionate basis shall be selected with such
proportionate basis to be detezmined by the Trustee by multiplying
the total amount of Liquidation Proceeds from such Loan by the
ratio which the principal portion of scheduled Loan Repayments Of
such Loan in each Bond Year bears to the total principal amount of
such Loan.
In the case of every redemption, the Registrar, at the direc-
tion of the Trustee, shall cause notice of such redemption to be
given to the Registered Owner .of any Bonds designated for redemp-
tion in whole or in part as provided in the Indenture. The failure
of the Registrar to give notice to a Bondholder or any defect in
such notice shall not affect the validity of the redemption of any
othe~ Bon.d~_. On the redemption date, the principal amo.u~n.~ and
premium, xf any, of each Bond to be redeemed, together wxt~ the
accrued interest thereon to such date, shall become due and payr
able; from and after such date of redemption (such notice having
been given and moneys available solely for such redemption being on
deposit with the Trustee), the Bonds or portions thereof to be
redeemed shall not be deemed to be outstanding under the Indenture,
A-3
and the Council shall be under no further liability in respect
thereof.
In the event that the Bond Insurer shall make any payments of
principal of and/or interest on any of the Bonds pursuant to the
terms of the m~nicipal bond insurance policy, and the Bonds are
accelerated or redeemed pursuant to the ter~ of the Indenture or
Loan, the Bond Insurer may pay all or a portion of amounts due
under the BondS to the Owners thereof prior to the stated maturity
dates thereof.
If an Event of Default (as defined in the Indenture) shall
occur, the principal of all Bonds may be declared due and payable
upon the conditions, in the manner and with the effect provided in
the Indenture. The Indenture provides that in certain events such
declaration and its consequences may be rescinded.
The Indenture and the rights and obligations of the Council
and of the Bondholders and of the Trustee .may be modified or
amended from time to time and at any time, without consent of the
Bondholders in the manner, to the extent and upon the terms pro-
vided in the Indenture.
The Bonds are limited obligations of the Council and are not
a lien or charge upon the funds or property of the Council, except
to. the extent of the herein mentioned .pledge and assignment.
Nezther the State of Florzda nor the Councxl shall be obi=gated to
pay the principal of the Bonds, or the interest thereon, except
from Revenues received by the Council, and neither the faith and
credit nor the taxing power of the State of Florida or of any poli-
tical subdivision or any municipal corporation thereof is pledged
to the payment of the principal of, or interest on, the BondS. The
BondS are not a debt of t_he State of Florida and said State is not
liable for the payment thereof.
It is hereby certified and recited that any and all condi-
tions, things and acts required to exist, to have happened and to
have been performed precedent to and in the issuance of this Bond
do exist, have happened and have been performed in due time, form
and m~-ner aa required by the Act, as hereinafter defined, and by
the Constitution and laws of the State of Florida, and that the
amount of this Bond, together with all other indebtedness of the
Council, does not exceed any limit prescribed by the'Act, or by the
Constitution and laws of the State of Florida, and is not in excess
of the amount of Bonds permitted to be issuedunder the Indenture.
This Bond shall not be entitled to any benefit under the
Indenture, or become valid or obligatory for any purpose, until the
certificate of authentication and registration hereon endorsed
shall have been signed by the Registrar.
IN wITNESS WHEREOF, FLORIDA MUNICIPAL LOAN COUNCIL has caused
this Bond to be executed in its name and on its behalf by the
facsimile signature of its Chairman and its seal to be reproduced
hereon by facsimile and attested by the facsimile signature of its
Vice-Chairman, all as of the date of the Bonds.
FLORIDA MUNICIPAL LOAN COUNCIL
By
Chairman
Attest~
Vice-Chairman
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VALIDATION CERTIFICATE
This Bond is one of a series of Bonds which were validated and
confirmed by judgment of the Circuit Court for County,
Florida, rendered on ,
Chairman
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is one of the Bonds described in the within-mentioned
Indenture.
[Trustee]
Date of Authentication~ as Registrar
Authorized Signer
For value received the undersigned do(es) hereby sell, assign
and transfer unto
the within-mentioned registered Bond and
hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on
the books of the Registrar with full power of substitution in the
premises.
Dated~
Signature guaranteed,
A-6
STATEMENT OF INSURANCE
Ao7